Exhibit 2
AGREEMENT
FOR
PURCHASE AND SALE
OF
ASSETS
THIS AGREEMENT is made as of the 15th day of May, 2001, by and between
Futech Interactive Products, Inc., an Arizona corporation ("SELLER"),
Interactive Technologies Group, Inc., an Arizona corporation ("BUYER"), and
Janex International, Inc., a Colorado corporation ("JANEX").
R E C I T A L S:
A. Seller owns and operates a business (the "BUSINESS") which, among
other things, owns and licenses to third parties certain intellectual property
rights and manufactures, markets, distributes and sells toys, games, books,
stationery and other products under the trade name "Futech Interactive
Products."
B. Seller desires to sell to Buyer, and Buyer desires to purchase from
Seller, the Business and the assets of the Business, free and clear of debts
other than as called for below, all in accordance with the terms and conditions
set forth below (the "TRANSACTION").
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
T E R M S:
1. PURCHASE AND SALE. Seller hereby agrees to sell to Buyer, and Buyer agrees to
purchase from Seller, free and clear of debts other than as called for below,
the following (collectively the "ASSETS") (the assets identified on EXHIBIT 1
attached hereto (the "EXCLUDED ASSETS") are not included in the assets sold
pursuant to this Agreement).
1.1 All furniture, fixtures, vehicles, machinery and equipment
used in connection with the operation of the Business (other than that
leased under the Equipment Leases (defined below)), including but not
limited to the assets identified on EXHIBIT 1.1 attached hereto (all of
the foregoing are collectively referred to below as the "FIXED
ASSETS").
1.2 All notes receivable, accounts receivable, prepaid items,
supplies and all other property currently used by Seller in connection
with the operation of the Business.
1.3 All finished and unfinished goods, work-in-process,
inventories, and materials of Seller.
1.4 All of Seller's interest in the leases identified on
EXHIBIT 1.4 attached hereto (the "EQUIPMENT LEASES.")
1.5 All rights to the trade names "Futech Interactive
Products" and any and all other trade names used by Seller in
connection with the Business, along with any and all trademarks,
service marks, logos and designs relating hereto, including all
internet domain names used in the Business. As soon as practicable
after the Closing, Seller will change its corporate name to eliminate
the use of any of the names transferred to Buyer.
1.6 Any and all deposits associated with the operation of the
Business, including but not limited to all deposits on leases,
insurance contracts transferred to Buyer, utility deposits and license
deposits.
1.7 All of Seller's books and records (or copies thereof),
computer programs, software, drawings, financial and tax information
(or copies thereof), and all customer and vendor files.
1.8 The contracts and other accounts which remain unperformed
as of the Closing, and which are listed on EXHIBIT 1.8 attached hereto.
1.9 The other contracts, licenses, accounts and other general
intangibles currently held by Seller, and which are listed on EXHIBIT
1.9 attached hereto.
1.10 All patents, copyrights, trade secrets, customer and
supplier lists, promotional materials, and other intangible rights used
in connection with the operation of the Business, including but not
limited to those described on EXHIBIT 1.10 attached hereto.
1.11 The phone numbers and all phone and other advertising
associated with the Business.
1.12 All warranties and all warranty claims of Seller.
1.13 The xXXX.xxx website (the "WEBSITE"), all software rights
relating thereto, all graphics rights and artwork rights relating
thereto, including all original artwork and all copies thereof, all
rights to the animated characters appearing on the Website, and all
licenses and other agreements with third parties relating to the
Website
1.14 All rights to the trade name "oKID" and all names used
for animated characters appearing on the Website, along with any and
all trademarks, service marks, logos and designs relating hereto,
including all internet domain names used in connection with the
Website.
1.15 All of Seller's internet addresses used by the Website.
1.16 All other assets of the Business, including but not
limited to those identified on EXHIBIT 1.16 attached hereto.
2. PURCHASE PRICE AND MANNER OF PAYMENT.
2.1 The purchase price for the Assets shall, subject to
adjustments as described below, consist of and be payable as follows:
2.1.1 One Hundred and Fifty Thousand Dollars
($150,000.00), which amount has already been paid by or for
Buyer (Seller acknowledges receipt of said funds).
2.1.2 Issuance of shares of common stock of Janex as
follows:
(a) Three Million Four Hundred Thousand
(3,400,000) shares to Seller;
(b) Seven Million (7,000,000) shares to
Xxxxx Xxxxxxxxxx;
(c) Four Million Eight Hundred Thousand
(4,800,000) shares to Xxxx Xxxxxx;
(d) Four Million Eight Hundred Thousand
(4,800,000) shares to Xxxxxxxx Xxxxxx; and
(e) One Million Five Hundred Thousand
(1,500,000) shares to U.S. Bank.
Janex will issue the foregoing shares within
150 days after the Closing, and Janex will use its
best efforts to register said shares under the
Securities Act within 150 days after the Closing.
Buyer's obligation to issue the stock as described above is subject to: (i)
Buyer determining to Buyers' satisfaction that these transactions are in
compliance with the Securities Act and all other applicable federal and state
laws; (ii) all recipients of the shares confirming their agreement by executing
one or more documents so confirming, in form and with content acceptable to
Buyer, that: (A) the stock to be issued under this Agreement will be a
restricted security, issued pursuant to one or more exemptions to the
registration requirements of the Securities Act; and (B) they will execute such
documents as are necessary and/or appropriate to insure compliance with
applicable federal and state laws.
2.2 The purchase price shall be allocated in accordance with
EXHIBIT 2.2 attached hereto.
2.3 The purchase price includes assumption of liabilities as
set out in Section 3 below.
3. LIABILITIES.
3.1 Buyer at the Closing will assume only the following of
Seller's obligations (the assumed obligations being referred to in this
Agreement as the "ASSUMED LIABILITIES"):
3.1.1 Seller's obligations to U.S. Bank after
liquidation of existing inventory and receivables, not to
exceed in the aggregate sum of $3,000,000.00. As part of the
consideration for this transaction and for Buyer assuming the
U.S. Bank debt, the open account debt owing by Buyer to Seller
as of the Closing (in the approximate amount of $1,645,000)
will as of the closing without additional documentation or
consideration being required be and be deemed for all purposes
to be fully paid and forever discharged.
3.2 All liabilities of Seller other than those identified in
Section 3.1 above shall be and remain the obligations of Seller, and
Seller shall indemnify, defend and hold Buyer harmless from and against
any and all such liabilities. Without limiting the generality of the
foregoing, it is expressly understood and agreed that Buyer is not
assuming any tort liability, any environmental liability, any
contractual liability for contracts not disclosed to and agreed upon by
Buyer, or any liability to or for employees or employee benefits. The
indemnities set forth in this Section shall survive the Closing.
3.3 Buyer may offset against the purchase price any and all
liabilities associated with the Business which are not expressly
assumed by Buyer but which Buyer pays. The parties understand and agree
that Buyer has no obligation to pay any debt of Seller, other than as
expressly called for in Sections 3.1.1 of this Agreement.
3.4 Seller will, to the extent requested by Buyer, deliver to
Buyer prior to the Closing, estoppel letters or certificates, in form
acceptable to Buyer, from the lessors under the Equipment Leases.
3.5 Seller hereby agrees to indemnify, defend and hold Buyer
harmless from and against any and all liabilities, claims, expenses and
other costs arising from Seller's operations of the Business prior to
the Closing, except as expressly assumed by Buyer pursuant to this
Section 3. Buyer hereby agrees to indemnify, defend and hold harmless
Seller from and against any and all liabilities, claims, expenses or
other costs arising from Buyer's operations of the Business from and
after the Closing. The indemnities set forth in this Section shall
survive the Closing.
4. INTERIM EVENTS. Seller agrees that Seller will take no action prior to the
Closing, other than in the ordinary course of Business, which would or might
have a material adverse effect upon the financial condition of Seller, and no
benefits will be paid or incurred to shareholders, officers, or directors of
Seller between the date hereof and the Closing, other than as is consistent with
past activities and practices. Seller will use Seller's best efforts to preserve
for Buyer the present relationships of Seller with Seller's employees, customers
and others having business relations with Seller.
5. CONDITIONS TO CLOSING. Buyer's obligation to close the Transaction shall be
conditioned upon (each of the conditions may be waived by Buyer in writing
only):
5.1 Buyer obtaining from the lessors of the Equipment Leases
their consents to the transfer of those leases to Buyer on terms
acceptable to Buyer;
5.2 Buyer having obtained, or having obtained the appropriate
consents or approvals to the assignment of, all permits, licenses and
contracts necessary to continue the operations of the Business;
5.3 Seller having maintained the Assets in the same condition
as of the date of this Agreement (subject to ordinary wear and tear
only);
5.4 Seller having conducted the Business diligently and
substantially in the same manner as prior to the execution of this
Agreement and not having entered into any contract, commitment or
transaction not in the usual and ordinary course of business;
5.5 Approval of the transaction by the Seller's secured
creditors;
5.6 The operations of the Business not having changed in a
material and adverse manner between the date of this Agreement and the
date of Closing;
5.7 There being no governmental investigations or suits
pending or threatened with respect to the operations of the Business,
except as may otherwise be agreed to in writing by Buyer;
5.8 Approval for the Transaction by the Board of Directors and
the shareholders of Buyer;
5.9 Buyer's approval of an appraisal of Seller's intellectual
property rights, with Seller to obtain and pay the costs of that
appraisal;
5.10 Buyer's approval of Seller's most recent Financial
Statements prior to the Closing;
5.11 Buyer obtaining for use by Buyer, based solely upon the
strength of the assets of the Business, revolving credit lines and
other debt instruments satisfactory to Buyer;
5.12 Buyer obtaining from the lenders under the debts to be
assumed by Buyer under this Agreement their consents to the transfer of
those debts to Buyer on terms acceptable to Buyer;
5.13 Approval of the Transaction by the Bankruptcy Court for
Seller's bankruptcy; and
5.14 Approval by the shareholders of Buyer of an amendment to
Buyer's governing documents authorizing an increase in the authorized
number of shares of stock of Buyer to a minimum 125,000,000.
6. CLOSING. The closing of the Transaction (the "Closing") shall occur as soon
as practicable following bankruptcy court approval of the Buyer's motion to
extend the time for issuance of Janex common stock until 150 days after closing.
The Transaction shall be consummated without the use of an independent escrow
company.
7. RESTRICTIVE COVENANTS.
(a) Seller agrees not to, without the prior written consent of Buyer,
which consent may be withheld for any or no reason, for a period of 3 years
following the Closing, directly or indirectly, own, manage, operate, control, be
employed by, participate in, render services to, make loans to, or be connected
in any manner with the ownership, management, operation, or control of any
business located within the United States of America, in any business
competitive with the Business (which shall be deemed to include all business
operations, publishing, manufacturing, and/or distributing books, toys or games,
or electronic or other parts or components thereof).
In the event of any actual or threatened breach of the provisions of
this Section, Buyer shall be entitled to an injunction restraining the actual or
threatened breach. The parties further agree that should there be a violation of
the provisions of this Section, the violating party shall be liable to Buyer
for, in addition to amounts pursuant to other remedies available against that
party, two (2) times the greater of the amount of profit earned by the violating
party as a result of the violation and the amount of profit which would have
been earned by Buyer from the activities causing the violation had Buyer
conducted said activities, plus interest on said greater amount calculated at
eighteen percent (18%) per annum from the date of the violating activities until
paid, as liquidated damages for only Buyer's loss of potential profits. Nothing
in this paragraph shall be construed as prohibiting Buyer from pursuing any
other available remedies for such breach or threatened breach, including
pursuing a recovery for damages.
(b) Seller shall not at any time, without the prior written consent of
Buyer, which consent may be withheld for any or no reason, disclose, in any
fashion other than as required in the day to day affairs of Buyer, to any person
or entity: (i) the names of customers of Buyer or the Business, or the names of
other persons or entities having business dealings with Buyer or the Business,
or (ii) any of the business methods or confidential information of Buyer or the
Business, including but not limited to its customer lists, prospective
customers, customers purchasing habits, customer contact personnel, marketing
and servicing techniques, financial matters, sales and marketing systems and
methods, marketing development and business expansion plans and projections,
personnel training and development programs, customer and supplier
relationships, and trade secrets.
(c) Seller shall not, at any time within two (2) years after the
Closing, without the prior written consent of Buyer, which consent may be
withheld for any reason or no reason, directly or indirectly induce, encourage
or solicit or assist any person who was or is employed (whether as an employee
or as an
independent contractor) by the Business during the two years preceding the
Closing, to leave the employ of the Business.
(d) The parties acknowledge and agree that the restrictions contained
herein, including but not limited to the time period and geographical area
restrictions, are fair and reasonable and necessary for the successful operation
of the Business, that violation of any of them would cause irreparable injury,
and that the restrictions contained herein are not unreasonably restrictive of
any party's ability to earn a living. If the scope of any restriction in this
Section is too broad to permit enforcement of such restriction to its fullest
extent, then such restriction shall be enforced to the maximum extent permitted
by law, and all parties hereto consent and agree that such scope shall be
modified judicially or by arbitration in any proceeding brought to enforce such
restriction. The parties hereto acknowledge and agree that remedies at law for
any breach or violation of the provisions of this Section would alone be
inadequate, and agree and consent that temporary and permanent injunctive relief
may be granted in connection with such violations, without the necessity of
proof of actual damage, and such remedies shall be in addition to other remedies
and rights the parties may have at law or in equity. The parties agree that no
party shall be required to give notice or post any bond in connection with
applying for or obtaining any such injunctive relief.
(e) The parties acknowledge and agree that the covenants in this
Section shall be construed as an agreement independent of any other provision of
this Agreement, so that the existence of any claim or cause of action by Seller
against Buyer, whether predicated on this Section or otherwise, shall not
constitute a defense to the enforcement of this Section.
8. DUE DILIGENCE INVESTIGATION. Buyer shall have until the Closing (the "Due
Diligence Period") in which to conduct any due diligence investigations,
including UCC-1 searches, which Buyer may deem necessary or appropriate to
ascertain the financial viability and value of the Business. Throughout the Due
Diligence Period, Buyer (and its agents) shall have the right to inspect: (i)
all books, records and computer systems maintained by Seller, in order to
authenticate and audit all financial information provided to Buyer, (ii) all
equipment and machinery used in the Business to verify that it is in an
acceptable state of repair, (iii) all agreements to which Seller is a party, and
(iv) all facilities and physical operations of Seller, including facilities
warehousing inventory. Seller shall provide access to Seller's federal and state
income tax returns, sales tax returns, financial statements (internal and those
issued to third parties), personal property tax returns, and all other
governmental filings, for the three previous years, for the purpose of
conducting due diligence investigations. Buyer may, in Buyer's sole discretion,
terminate this Agreement at any time prior to the Closing for any reason deemed
appropriate by Buyer (but this provision does not effect the non-refundable
character of the amounts described in Sections 2.1.1 and 2.1.2 above, as called
for in Section 2.1.2 above).
Buyer and its representatives will further have the authority to
communicate with Seller's creditors, debtors, suppliers, agents and employees.
Seller agrees to aid Buyer and its representatives in Buyer's investigations and
evaluations of the Business and the Assets, and to provide whatever information
and documents Buyer reasonably deems necessary or appropriate to the making of
an informed decision regarding the Transaction.
9. ACCESS TO CUSTOMER FILES AND OTHER RECORDS. For a period of three (3) years
following the Closing, where there is a legitimate purpose not injurious to
Buyer, or if there is an audit by any taxing authority, other governmental
inquiry, or litigation or prospective litigation, to which Seller is or may
become a party, then Seller shall be granted access, at reasonable times and
after reasonable notice, to all customer files and other records transferred to
Buyer pursuant to this Agreement.
10. REPRESENTATIONS AND WARRANTIES. Seller hereby represents and warrants as
follows, as of the date hereof and as of the date of the Closing:
10.1 AUTHORITY. As of the date of execution of this Agreement,
and subject to approval of the bankruptcy court, Seller has the power
and authority to enter into and perform its obligations under this
Agreement, the Board of Directors of Seller has recommended and
resolved that the Transaction is to move forward subject to shareholder
approval, and the Board of Directors of Seller have authorized and
ratified the execution and delivery of this Agreement. As of the
Closing, all of the foregoing are true, and the Board of Directors of
Seller has approved of the documents herein required to consummate the
Transaction.
10.2 FINANCIAL INFORMATION. Seller has furnished Buyer with
true, correct and complete copies of Seller's financial statements and
other books and records relating to the operation of the Business,
which statements fairly present the financial condition of the Business
as of their respective dates.
10.3 TAXES. All federal and state income, excise, franchise,
payroll, property, sales, and other tax returns required to be filed by
or with respect to the Business (except returns not yet due) have been
filed, are complete and accurately reflect in all material respects all
matters therein required to be reflected, and all taxes shown on such
returns to be due, and any assessments received by Seller with respect
thereto, have been paid in full. Seller shall pay all such future taxes
relating to periods prior to the Closing, when and as the same shall
become due and payable. Seller shall provide Buyer with such
certificates and other evidence of payment of all taxes due in
connection with the Assets and the Business as Buyer shall request.
10.4 LIENS. All property to be transferred by Seller to Buyer
pursuant to this Agreement is, at the time of this Agreement, or will
be at the Closing, free and clear of any and all liens and
encumbrances, other than as called for in Section 3.1.1 above.
10.5 LICENSES. Seller has any and all licenses, permits, and
contracts necessary and/or appropriate to operate the Business in the
manner in which the Business is currently operated.
10.6 HAZARDOUS MATERIALS. The Business has not dealt in any
manner with any hazardous or toxic materials or waste.
10.7 COMPLETE DISCLOSURE. Seller has disclosed to Buyer all
facts and papers which would or might be important to Buyer in making
the decision to purchase the Business as called for in this Agreement.
10.8 JUDGMENTS AGAINST SELLER AND/OR BUSINESS. Neither Seller
nor the Business is under any governmental investigation, no such
investigation has been threatened, and there are no judgments against
Seller, the Business or the Assets.
10.9 COMPLETE SALE. The assets to be transferred under this
Agreement are all of the assets used by Seller in the operation of the
Business, other than the Excluded Assets.
10.10 ASSETS IN GOOD CONDITION. Each of the Assets which is a
tangible asset is and will be at the Closing in good working order and
condition.
10.11 DISCLOSURE MATERIALS. The financial condition of the
Business is at least as favorable as presented in the financial
information, including tax returns and financial statements, and books
and records provided by Seller to Buyer. Those materials and the other
materials disclosed to Buyer are true, complete and accurate in all
respects, and fairly represent the information they purport to provide.
All the information disclosed, as a whole, does not contain any
statement that, as of the date hereof, or as of the Closing, is false
or misleading, and does not omit to state any material fact (i)
necessary to make the
statements made, in light of the circumstances under which they were
made, not false or misleading, or (ii) necessary to provide Buyer with
complete and accurate information as to the assets and financial
standing of the Business.
10.12 DEFAULTS. There are no defaults or events with which the
giving of notice or the passage of time would constitute defaults under
any document under which Seller is obligated, including but not limited
to the Equipment Leases.
10.13 VENDOR ACCOUNTS. Seller will use Seller's best efforts
to cause a transfer to Buyer of all of Seller's supplier and other
vendor accounts without adverse changes in the account terms.
10.14 OUTSTANDING LIABILITIES. Seller's liabilities are not
paid current. Payment of Seller's debt are subject to Seller's
bankruptcy filing.
10.15 INVENTORY. Seller's inventory is useable and in good
condition, with not more than 1% thereof being obsolete, and all of the
inventory is owned by Seller, none of it being held by Seller on
consignment.
10.16 LOSSES. There are no unrealized or anticipated losses on
any commitment or contract of Seller.
10.17 PATENTS. There is no litigation pending or threatened
with respect to the patents of Seller, there is no outstanding order,
judgment, decree or stipulation affecting the validity or
enforceability of said patents, there exits no outstanding notices of
infringement given by Seller regarding the patents, there are no
pending interferences or other contested proceedings pending, or that
are in the process of being instituted, in the United States Patent
Office or in the courts, relating to said patents, and, to the best
knowledge of Seller, none of Seller's patents are being presently
infringed.
10.18 RECEIVABLES. All accounts receivable arose in the
regular course of business, and, to the best knowledge to Seller, are
collectable and subject to no defenses or counterclaims.
The representations and warranties in this Section shall survive the Closing of
the Transaction.
11. SELLER'S CORPORATE NAME. If requested by Buyer, Seller will change Seller's
corporate name to a name which does not contain the words "Futech Interactive
Products" and is not a deceptively similar name.
12. EXPENSES. Each party shall bear its own expenses in completing the
Transaction. "Expenses" shall mean any expense of any nature incurred in
connection with the Transaction, including without limitation attorneys' fees,
accounting fees, filing fees and other costs.
13. BROKERAGE COMMISSIONS. Seller shall be solely responsible for the payment of
any and all brokerage fees or commissions in connection with the Transaction and
shall indemnify and hold harmless Buyer from and against any liabilities or
claims incurred in connection with such fees or commissions.
14. GOVERNING LAW; JURISDICTION. The U.S. bankruptcy courts shall have the sole
and exclusive jurisdiction and venue in any case or controversy arising under
this Agreement or by reason of this Agreement.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns, but may not be assigned by Seller.
16. ENTIRE AGREEMENT; TERMINATION OF PRIOR AGREEMENTS. Except as otherwise set
forth herein, this Agreement constitutes the entire agreement between the
parties which respect to the subject matter hereof, and supersedes all prior
understandings, if any, with respect thereto. The parties acknowledge and agree
that certain documents existed prior to this Agreement relating to the purchase
by Buyer from Seller of certain assets, and the parties hereby agree that all of
said documents, including all amendments thereto, are hereby terminated in their
entirety.
17. FURTHER ASSURANCES. The parties agree to do such further acts and things and
to execute and deliver such additional agreements and instruments as any party
may reasonably require to consummate, evidence, or confirm any agreement
contained herein in the manner contemplated hereby.
18. MODIFICATION. Any modification or waiver of any term of this Agreement,
including a modification or waiver of this term, must be in writing and signed
by the parties to be bound by the modification or waiver.
19. SEVERABILITY. In the event any portion of this Agreement shall be declared
by any court of competent jurisdiction to be invalid, illegal, or unenforceable,
such portion shall be deemed severed from this Agreement, and the remaining
parts hereof shall remain in full force and effect as fully as though such
invalid, illegal or unenforceable portion had never been a part of this
Agreement.
20. COUNTERPARTS, FACSIMILE SIGNATURES. This Agreement may be executed by the
parties in one or more counterparts, and any number of counterparts signed in
the aggregate by the parties shall constitute a single instrument. The parties
authorize and agree to accept facsimile signatures in counterparts to this
Agreement, and that said facsimile signatures shall for all purposes be binding
upon the parties as if the same were original signatures.
21. ATTORNEY'S FEES. Should any party institute any action or proceeding to
enforce this Agreement or any provision hereof, or for damages by reason of any
alleged breach of this Agreement, or of any provision hereof, or for a
declaration of rights hereunder, the prevailing party(s) of such action or
proceeding shall be entitled to receive from the other involved party or parties
all costs and expenses, including attorneys' fees and expert witness fees
incurred by the prevailing party(s) in connection with such action or
proceeding.
22. NOTICES. Any notice or communication given under the terms of this Agreement
("Notice") shall be in writing and shall be delivered in person or mailed by
certified mail, return receipt requested, in the United States Mail, postage
pre-paid, addressed as follows:
If to Seller: Futech Interactive Products, Inc.
0000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
If to Buyer: Janex International, Inc.
000 Xxxx Xxxx, Xxxxxxxx 0
Xxxxxxxxx, Xxx Xxxxxx 00000
or at such other address as a person may from time to time designate by Notice
hereunder. Notice shall be effective upon delivery in person, or if mailed, at
midnight on the third business day after the date of mailing.
23. PARAGRAPH TITLES AND HEADINGS. The titles and headings of sections of this
Agreement are for the convenience of reference only, and are not intended to
define, limit, or describe the scope or intent of any provision of this
Agreement, and shall not affect the construction of any provision of this
Agreement.
24. MISCELLANEOUS. The parties agree that each party and its counsel have
reviewed and revised this Agreement, or had an opportunity to review and revise
this Agreement, and that any rule of construction to the effect that ambiguities
are to be resolved against the drafting party shall not apply to the
interpretation of this Agreement or any amendments or exhibits hereto. In the
event of default by Seller hereunder, Buyer shall, in addition to its other
remedies under this Agreement and in law or equity, be entitled to specific
performance of Seller's obligations under this Agreement. The parties do not
intend to confer any benefit upon any person, firm, or corporation other than
the parties hereto. No representation or warranty herein may be relied upon by
any person not a party to this Agreement. The Exhibits attached hereto are
incorporated into and are part of this Agreement. The parties agree that the
Assets and the Business as a going concern constitute unique property, that
there is no adequate remedy at law for the damage which might be sustained for
the failure of a party to this Agreement to consummate the Transaction, and,
accordingly, that each party hereto shall be entitled to the remedy of specific
performance to enforce such consummation. The parties agree that time is of the
essence of each and every provision of this Agreement.
DATED the date first hereinabove written.
SELLER: Futech Interactive Products, Inc., an Arizona corporation
By /s/ Xxxxxxx X. Xxxxx
----------------------------------------------
Xxxxxxx X. Xxxxx, Interim CEO
BUYER: Interactive Technologies Group, Inc., an Arizona corporation
By /s/ Xxx Xxxxxxx
----------------------------------------------
Xxx Xxxxxxx, President
JANEX: Janex International, Inc., a Colorado corporation
By /s/ Xxx Xxxxxxx
----------------------------------------------
Xxx Xxxxxxx, President
LIST OF EXHIBITS:
Exhibits will be provided to the Commission upon request
Excluded Assets 1
List of Specific Furniture, Fixtures and Equipment 1.1
Assumed Leases 1.4
Unperformed Contracts 1.8
General Intangibles 1.9
List of Specifically Included Intellectual Property Rights 1.10
List of Specifically Listed Other Assets 1.16
Purchase Price Allocation 2.2
EXHIBIT 1
(EXCLUDED ASSETS)
(SEE ATTACHED)
Exhibit 1, Page 1 of 1
EXHIBIT 1.1
(LIST OF SPECIFIC FURNITURE, FIXTURES AND EQUIPMENT)
(SEE ATTACHED)
Exhibit 1.1, Page 1 of 1
EXHIBIT 1.4
(ASSUMED LEASES)
NONE
Exhibit 1.4 Page 1 of 1
EXHIBIT 1.8
(UNPERFORMED CONTRACTS)
NONE
Exhibit 1.8 Page 1 of 1
EXHIBIT 1.9
(GENERAL INTANGIBLES)
NONE
Exhibit 1.9, Page 1 of 1
EXHIBIT 1.10
(LIST OF SPECIFICALLY INCLUDED INTELLECTUAL PROPERTY RIGHTS)
(SEE ATTACHED)
Exhibit 1.10, Page 1 of 1
EXHIBIT 1.16
(LIST OF SPECIFICALLY LISTED OTHER ASSETS)
1. Seller's cash.
2. (see attached)
Exhibit 1.16, Page 1 of 1
EXHIBIT 2.2
(PURCHASE PRICE ALLOCATION)
(SEE ATTACHED)
