ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made effective as
of the 5th day of December, 2000, by and between XXXX INDUSTRIES, INC.,
a Nevada corporation ("HRII"), HOLOWORLD ACQUISITION CORPORATION, a
Nevada corporation, (the "Purchaser"), HOLOWORLD, INC., a Delaware
corporation, and ALISOCOR, LLC, a California limited liability company
(collectively the "Seller").
WHEREAS, HRII has authorized fifty million (50,000,000) shares of common
stock, having a par value of One Cent ($0.01) per share (the "HRII's
Common Stock"), of which approximately five million two hundred ten
thousand seven hundred sixty five (5,210,765) shares are issued and
outstanding as of the date hereof (the "Public Float"); and
WHEREAS, the Seller possesses all of the assets necessary to conduct
its business as a developer, owner and operator of themed specialty-
entertainment restaurants doing business under the name Holoworld(TM)
(the "Business"); and
WHEREAS, the respective Boards of Directors of HRII, the Purchaser
and the Seller, each deem it advisable and in the best interests of such
corporations and their respective shareholders that the Purchaser
acquire from the Seller the Acquired Assets as contemplated herein,
and otherwise consummate the several transactions as set forth in this
Agreement; and
WHEREAS, subject to the terms and conditions contained herein, the par-
ties each desire to exercise, implement and otherwise consummate the
several transactions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby expressly
acknowledged, each of the parties hereto, intending to be legally
bound, hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.01 Acquired Assets. Subject to the terms and conditions set
forth herein, the Seller agrees to sell, transfer, assign and deliver to
the Purchaser, and the Purchaser agrees to purchase from the Seller, all
of the assets and properties of the Seller used or useful in the conduct
of the Business as currently conducted (other than the Excluded Assets,
as defined in Section 1.06 below), tangible or intangible, wherever
located (collectively, the "Acquired Assets"), including without
limitation all of the following:
(a) Tangible Assets. All of the items of tangible property owned
by the seller at the Closing (as such term is hereinafter defined),
whether real, personal or mixed, including without limitation the specific
tangible assets set forth on Schedule 1.01(a) attached hereto;
(b) Materials and Supplies. All materials and supplies of any kind
owned by the Seller at the Closing, whether or not such materials and
supplies are specifically set forth on Schedule 1.01(a) attached hereto;
(c) Accounts. All accounts receivable, chattel paper, monies, bank
accounts, deposits with any financial institution, certificated or uncer-
tificated securities, prepaid expenses, rights to rebates or refunds,and
rights to insurance belonging or insuring to the Seller as of the Closing
Date including, without limitation, the several accounts receivable
specifically set forth on Schedule 1.01(c) attached hereto;
(d) Contract Rights. All contract rights, leases, documents,
instruments, choses in action, and other general intangibles inuring to or
for the benefit of the Seller as of the Closing Date;
(e) Promotional Rights. All (i) trademarks, service marks, logos,
copyrights, "d/b/a's" and trade names, whether or not the same have been
registered federally or with any
state or municipal office, and all applications for or registrations of
any of the foregoing, marketing or promotional designs, brochures,
advertisements, concepts, literature, rights against other persons in
respect of any of the foregoing and any other promotional items including,
without limitation, all of the Seller's rights and interests in and to
the name Holoworld(TM), and any derivation thereof; and (ii) formulas,
recipes, know-how, trade secrets, processes, designs, licenses, pricing
policies, customer lists or profiles, information as to the identities
or requirements of existing customers or potential customers or vendors,
market information, market analyses, marketing plans and all other
proprietary rights (collectively, the "Proprietary Rights") used or
useful or developed or acquired for use in the Business and owned,
licensed or otherwise in the possession of the Seller as of the Closing
Date; and
(f) Books and Records. All papers and records (whether in written
or other form) of any kind presently in or hereafter coming into the care,
custody or control of the Seller (including, without limitation, any such
papers or records held by others on behalf of the Seller) relating to any
of the Acquired Assets, to the Business, or to the past, present or future
operation thereof including, but not limited to, purchase and sales
records, computer programs, software packages, computer printouts,
business and financial reports and records, manuals and forms, personnel
and labor relations records, environmental control records, accounting
and management manuals, business stationary, blank forms, blank checks and
other blank instruments, and any papers and records relating to any of the
Seller's Proprietary Rights.
1.02 Purchase Price. In consideration for the sale, conveyance and
transfer of the Acquired Assets and the representations, warranties and
covenants set forth herein and in the other documents and instruments
delivered or to be delivered at or prior to the Closing (as hereinafter
defined) pursuant hereto (collectively, the "Closing Documents"), the
parties hereby agree as follows:
(a) Purchaser shall deliver to the Seller, in the manner designated
by the Seller at or prior to the Closing Date, five million (5,000,000)
shares of HRII's Common Stock (the "Acquisition Shares"), which at the
Closing shall be equal to or greater than ninety percent (90%) of the
issued and outstanding number of shares of HRII's Common Stock as of
such date (the "Purchase Price"); and
(b) the Purchaser shall acquire the Acquired Assets subject only to
such claims, obligations and liabilities of the Seller as were incurred
in connection with such Acquired Assets in the ordinary course as
reflected on the Seller's Financial Statements (as hereinafter defined).
1.03 Closing. The consummation of the transactions contemplated
in this agreement and in the other Closing Documents shall take place at
a closing (referred to herein as the "Closing") to be held at such
location, on such date and at such time as the parties shall mutually
agree following notification by both parties that all conditions precedent
to such parties' respective obligations to close as set forth herein
have been satisfied or waived by the party benefiting from such conditions
(the "Closing Date").
1.04 Nature of Transaction. It is the intention of both parties that
this transaction be, and qualify as, a tax-free reorganization under Section
361(c) of the Internal Revenue Code. Each party covenants to the other
that it shall report this transaction for all purposes as such and, to
the extent either party is advised prior to or after the Closing of any
action which must be taken in support of such characterization, it shall
use its best efforts to take such action without delay.
1.05 Instruments of Conveyance; Transfer of Possession. At the
Closing, he Seller will deliver to the Purchaser a duly completed and
executed Xxxx of Sale in the form of Exhibit A and a duly completed
Assignment Agreement in the form of Exhibit B attached hereto, and the
Seller shall execute, acknowledge and deliver at or after the Closing
such further instruments of conveyance as the Purchaser deems reasonably
necessary or advisable to carry out and perfect the transfer of the
Acquired Assets contemplated hereby. Simultaneously with the Closing,
the Seller shall put the Purchaser into full possession and enjoyment of
the Acquired Assets.
1.06 Assets to be Retained by the Seller. The Seller shall retain
its franchise to be a Delaware corporation and a California limited
liability company, respectively, and their respective equity transfer
books and records, the record books containing the minutes of
meetings of their directors, shareholders and members, and such other
of their records as have exclusively to do with their organization,
existence and capitalization (collectively, the "Excluded Assets").
1.07 Maintenance of Existing Agreements with Affiliates of the
Purchaser. HRII agrees that, prior to the Closing Date, it will effect
the termination of all existing contracts and agreements with
Affiliates, including but not limited to the Advisory Agreement between
NewBridge Capital Inc. ("NewBridge"), successor to NuVen Advisors Limited
Partnership, Xxxx X. Xxxx ("Luke") and HRII dated January 1, 1998, as
amended October 10, 1999 (the "NuVen Agreement"). Seller agrees that
simultaneously with the Closing it shall authorize HRII to execute
two Advisory Agreements, effective the Date of Closing for advisory
services to be provided by NewBridge and Xxxx Xxxx (collectively, the "
NewBridge Agreement"), substantially in the forms attached as Exhibits
C-1 and C-2 to this Agreement. The NewBridge Agreement shall have a
term of not less than two (2) years and shall provide for monthly fees
to be paid to NewBridge and Luke equal to $3,500 and $1,500, respectively.
Seller acknowledges that, at Closing HRII will incur a fee under the
NuVen Agreement of One Million Dollars ($1,000,000) which will result
in a payment to NewBridge, or a credit against the purchase price of
the Option Shares (as defined in Section 3.03 below) at the election
of NewBridge, and the issuance of an additional thirty-five thousand
(35,00) shares to Luke.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser, as of the
date hereof and as of the Closing Date, as follows (all of such
representations and warranties being qualified in their entirety by
any item set forth in the Disclosure Schedules attached to this Agreement):
2.01 Organization and Authority. Holoworld, Inc. is a corporation
duly incorporated, validly existing and in good standing under the laws
of the State of Delaware, with the corporate power and authority to
carry on its Business as now being conducted. Alisocor, LLC is a limited
liability company duly organized, validly existing and in good standing
under the laws of the State of California, with power and authority to
carry on its Business as now being conducted. In addition, the Seller is
duly qualified to do Business in each jurisdiction in which the nature of
its Business requires it to be so qualified, except to the extent that
the failure to so qualify does not have a material adverse effect on the
Business of the Seller, taken as a whole. The execution and delivery of
this Agreement and the consummation of the transactions contemplated in
this Agreement have been, or will be prior to closing, duly authorized by
all requisite corporate actions on the part of the Seller, to the extent,
if any, that such authorizations are necessary. This Agreement has been
duly executed and delivered by the Seller and constitutes the valid,
binding, and enforceable obligation of the Seller.
2.02 Ability to Carry out Agreement. The execution and performance
of this Agreement will not violate, or result in a breach of, or
constitute a default in, any provisions of applicable law, any agreement,
instrument, judgment, order or decree to which the Seller is a party or
to which the Seller is subject, other than such violations, breaches, or
defaults which, singly or in the aggregate, do not have a material adverse
effect upon the Business of the Seller, taken as a whole, or on the
enforceability or validity of this Agreement. No consents of any persons
under any contract or agreement required to be disclosed or disclosed
pursuant to this Agreement are required for the execution, delivery, and
performance by the Seller of this Agreement.
2.03 Financial Information. The Seller has provided, or will
provide prior to Closing, to the Purchaser its financial statements for
the fiscal year ending December 31, 1999, and for the two fiscal quarters
ended June 30, 2000. All financial statements and financial information
included in the Seller's financial statements shall be referred to as
the "Seller's Financial Statements." All financial statements and
reports included in the Seller's Financial Statements shall be in
accordance with the books and records of the Seller (subject to normal
year-end adjustments) and present fairly the financial condition of the
Seller and the results of its operations for the periods specified
therein, all in accordance with generally accepted accounting principles
applied on a basis consistent with prior accounting periods. Except as
set forth in the Seller's Financial Statements, the Seller has no
obligations or liabilities (whether accrued, absolute, contingent,
liquidated or otherwise, including without limitation any tax
liabilities due or to become due) which are not fully disclosed and
adequately provided for in the Seller's Financial Statements, excepting
current liabilities incurred and obligations under agreements entered
into in the usual and ordinary course of business since the date of the
sellers's Financial Statements, none of which (individually or in the
aggregate) are material except as expressly indicated in the Seller's
Financial Statements. The Seller is not a guarantor or otherwise
contingently liable for any material amount of any indebtedness.
2.04 Conduct of Business. Since December 31, 1999, except as
disclosed in the Seller's Financial Statements, the Seller has not
(i) discharged or satisfied any Liens other than those securing,
or paid any obligation or liability other than, current liabilities
shown on the Seller's Financial Statements and current liabilities
incurred since the date of the Seller's Financial Statements, in each
case in the usual or ordinary course of its Business, (ii) mortgaged,
pledged or subjected to Lien any of its tangible or intangible assets
(other than purchase money liens incurred in the ordinary course of
business for such assets not yet paid for), (iii) sold, transferred or
leased any of its assets except in the usual and ordinary course of its
Business, (iv) canceled or compromised any material debt or claim, or
waived or released any right of material value, (v) suffered any
physical damage, destruction or loss (whether or not covered by
insurance) material adversely affecting the properties, Business or
prospects of the Seller, (vi) entered into any transaction, other than
in the usual and ordinary course of its Business, except as contemplated
by this Agreement, (vii) encountered any labor difficulties or labor
union organizing activities, (viii) made or agreed to any wage or
salary increase or entered into any employment agreement, (ix) issued
or sold any shares of capital stock or other securities or granted any
options with respect thereto, except as disclosed on the Seller's
Financial Statements, or on Schedule 2.04 attached hereto, (x) amended
its Bylaws or other organizational documents, as applicable, (xi)
agreed to declare or pay any dividends or other distributions in respect
of its outstanding capital stock, or (xii) suffered or experienced any
change in, or condition affecting, the condition (financial or otherwise)
of its properties, assets, liabilities, business, operations or
prospects, other than changes, events or conditions in the ordinary
course of its business none of which has (individually or in the
aggregate) been materially adverse.
2.05 Litigation. Except as disclosed in Schedule 2.05 attached
hereto, there is no pending nor (to the actual knowledge of the Seller)
threatened action, suit or arbitration to which its property, assets or
Business is or is likely to be subject and in which an unfavorable
outcome, ruling or finding will or is likely to have a materially
adverse effect on the condition, financial or otherwise, or properties
, assets, Business or operations of the Seller or create any material
liability on the part of the Seller or which would conflict with this
Agreement or any action taken or to be taken in connection therewith.
2.06 Tax Matters. The Seller has filed all federal, state and
local tax returns and reports which are due or required to be filed by
it, and, except as disclosed in the Seller's Financial Statements or
Schedule 2.06 attached hereto, has paid, or made adequate provision for
the payment of, all taxes, interest, penalties, assessments or
deficiencies shown to be due or claimed to be due or which have or may
become due on or in respect to such tax returns and reports. Such federal
and state income tax returns, to the Seller's actual knowledge, have
not been audited and are not being audited by any governmental authority.
2.07 Contracts. Except as disclosed in the Seller's Financial
Statements, there is no contract, agreement, arrangement, undertaking or
understanding, oral or written (collectively, a "Contract"), to which
the Seller is a party or by which they or any of their properties or
assets are bound which are material to the business, financial condition,
or results of operation of the Seller. For purposes of the preceding
sentence, the term "material" refers to any obligation or liability
which by its terms calls for aggregate payments of more than $10,000.
2.08 Material Contract Breaches; Defaults. To the best of its
knowledge ad belief, the Seller has not materially breached, nor has it
any knowledge of any pending or threatened claims or any legal basis
for a claim that the Seller has materially breached, any of the terms
or conditions of any Contract to which it is a party or is bound and
which is material to the Business, financial condition, or results of
operation of the Seller, taken as a whole. To the best of its knowledge
and belief, the Seller is not in default in any material respect under
the terms of any outstanding Contract which is material to the Business,
operations, properties, assets, or condition of the Seller, and there is
no event of default or other event which, with
notice or lapse of time or both, would constitute a default in any material
respect under any such Contract in respect of which the Seller has not
taken adequate steps to prevent such a default from occurring.
2.09 Directors and Officers. Schedule 2.09 attached hereto
accurately sets forth the names and titles of the persons serving as
directors and officers of the Seller.
2.10 Employee and Labor Matters. The Seller has no employment
agreements hat cannot be canceled on thirty (30) days notice, nor any
collective bargaining agreement covering any of its employees, and it
has encountered no material labor difficulties. Schedule 2.10 attached
hereto sets forth a complete and accurate list of all employee benefit
plans, including all profit sharing, bonus, stock, pension, or similar
plans to which the Seller is a party or by which the Seller is bound.
The Seller will deliver to the Purchaser on request complete and correct
copies of all the agreements, plans, or other written materials identified
in the Seller's Financial Statements. There is no existing material
default by the Seller under any of the agreements, plans, or arrangements
identified on Schedule 2.10, and there exists no condition or
circumstance which, with notice or lapse of time or both, would
constitute such a default. There is no pending or threatened labor
dispute, strike, slowdown, or work stoppage, no unfair labor practice
claim pending against the Seller before the National Labor Relations
Board, the Seller is not engaged in any unfair labor practice, and there
is no grievance or arbitration proceeding pending against, or threatened
to be asserted or commenced against, the Seller under any collective
bargaining agreement or other labor contract. All Taxes relating to the
Seller which the Seller is required by law to withhold or collect have
been duly withheld or collected and have been timely paid over to the
proper authorities to the extent due and payable.
2.11 Other Properties and Equipment. Except as disclosed pursuant
to this Agreement, the Seller has good title, subject to no security
interests, liens, encumbrances, or claims of others, to all structures,
facilities, machinery and equipment, supplies, raw materials, vehicles,
tools, parts, office equipment, furniture, furnishings, and all items of
personal property and equipment in, at, on or about such real properties
owned or leased by the Seller, or used or necessary in its operations or
business, including without limitation those reflected in the Seller's
Financial Statements. All such structures, facilities, equipment,
machinery, vehicles and tools are in reasonably good operating condition
and repair and are sufficient to enable the Seller to carry on its
operations.
2.12 Trademarks. Except as disclosed on Schedule 2.12, (i) the
Seller does not own or use any trademark, service xxxx, trade name,
copyright or patent, or any registration or application for registration
of any of the foregoing, and (ii) to the best of the Seller's knowledge
and belief, the Seller has not infringed upon, and is not infringing
upon, any trademark, service xxxx, trade name, copyright, or patent that
is owned or used by any other person.
2.13 Leaseholds. Each and every lease to which the Seller is a
party is valid and enforceable. The Seller has not received any notice of
a material default by it under the terms of any such lease which default
remains uncured, and the Seller is not in material breach or default by
it under the terms of any such lease.
2.14 Subsidiaries. The Seller has no subsidiaries.
2.15 Permits. The Seller has obtained and maintained in full force
and effect all franchises, permits, certificates, authorizations,
licenses and other similar authority required by law or governmental
regulations from all applicable federal, state or local authorities and
any other regulatory authorities, which are necessary for the conduct of
its Business as now being conducted by it and as planned to be conducted,
and it is not in default or noncompliance in any material respect under
any of such franchises, permits, certificates, authorizations, licenses
or other similar authority.
2.16 Compliance with Laws, Rules, Etc. The Business and operations
of the seller is being, and has been, conducted in compliance with all
applicable federal, state, and local laws, rules and regulations. The
Seller is not in violation of any terms of its Articles of Incorporation,
By-Laws or other organizational document, as applicable, or of any
judgment, decree, order, statute, rule or regulation to which it is
subject, except to the extent that any violation or noncompliance would
not materially and adversely affect the Business, operations, properties,
assets, or condition of the Seller, provided that such violation or
noncompliance would not result in the incurring of any material liability.
The Seller has not been notified by any regulatory or governmental
authority that it is now in violation of any law, rule, regulation,
ordinance, or order.
2.17 Environmental and Occupational Health or Safety Matters.
(a) For purposes of this section, the following terms shall have
the meanings indicated:
(i) "Environmental Laws" means each and every federal, state or local
law,statute, ordinance, or regulation pertaining to health, industrial
hygiene, or the environment.
(ii) "CERCLA" means and refers to the Comprehensive Environmental
Response Compensation Liability Act of 1980, as amended, 42 U.S.C. Section
s 9601 et
seq.
(iii) "RCRA" means and refers to the Resource Conservation and
Recovery Act of 1976, as amended, 42 U.S.C. Sections 6901 et seq.
(iv) "HMTA" means and refers to the Hazardous Materials Transportation
Act, as amended, 49 U.S.C. Sections 1801, et seq.
(v) "Hazardous Substance" means and refers to (a) those substances
include within the definitions of "hazardous substances", "hazardous
materials", "toxic substances", or "solid waste" in CERCLA, RCRA, HMTA,
and in the regulations promulgated pursuant to said laws; (b) those
substances regarded as hazardous wastes or hazardous substances under
applicable state statutes and in the regulations promulgated pursuant to
said statutes; (c) those substances listed in the United States Department
of Transportation table (49 CFR 172.101 and amendments thereto) or by the
Environmental Protection Agency as hazardous substances (40 CFR 302 and
amendments thereto); and (d) such other substances, materials, and wastes
which are or become regulated under applicable federal, state or local
laws, ordinances or regulations, or which are classified as hazardous or
toxic under federal, state, or local laws, ordinances or regulations.
(b) With respect to any real properties owned by the Seller, the
Seller and, to the actual knowledge of the Seller, its predecessors in
interest, have implemented and complied in all material respects with all
Environmental Laws applicable to such properties with respect to Hazardous
Substances, industrial hygiene and to all other environmental conditions.
(i) With respect to such real properties, neither the Seller (nor, to
the actual knowledge of the Seller, its predecessors in interest) have
owned, used, generated, manufactured, stored, handled, treated, released
or disposed of any Hazardous Substances on such properties except i
n compliance with all applicable Environmental Laws.
(ii) There are no citations, fines or penalties heretofore asserted
against the Seller under any federal, state or local law relating to air
or water pollution, or other environmental protection matters or
occupational health or safety.
2.18 Conflict of Interest Transactions. Except as disclosed in the
Sellers Financial Statements, no past or present shareholder, director,
officer, or employee of the Seller, and no affiliate of any
past or present shareholder, director, officer, or employee of the Seller,
(i) is indebted to, or has any financial, business, or contractual
relationship or arrangement with the Seller, (ii) has any direct or
indirect interest in any property, asset, or right which is owned or
used by the Seller, or (iii) has been directly or indirectly involved in
any transaction with the Seller.
2.19 Corporate Records. Copies of the Articles of Incorporation,
Bylaws ad other organizational documents, as applicable, of the Seller,
minute books, stock transfer ledgers, and other documents and records of
the Seller material to the transaction contemplated by this Agreement will
be made available to the Purchaser at or before the Closing. All such
records and documents are complete, true, and correct.
2.20 Brokers. The Seller has not agreed to pay any brokerage fees,
finders fees, or other fees or commissions with respect to the transac-
tions contemplated in this Agreement. To Seller's actual knowledge, no
person or entity is entitled, or intends to claim that it is entitled,
to receive any such fees or commissions in connection with such
transactions. The Seller further agrees to indemnify and hold harmless
the Purchaser against liability to any broker claiming to act on behalf
of the Seller.
2.21 Approvals. No authorization, consent, or approval of, or
registration or filing with, any governmental authority or any other person
is required to be obtained or made by the Seller or any other entity in
connection with the execution, delivery, or performance of this Agreement.
2.22 Full Disclosure. The information concerning the Seller set
forth in this Agreement, and in the Disclosure Schedules attached hereto is,
to the best of the Seller's actual knowledge and belief, complete and
accurate in all material respects and does not contain any untrue statement
of a material fact or omit to state a material fact required to make the
statements made, in light of the circumstances under which they were made,
not misleading.
2.23 Date of Representations and Warranties. Each of the
representations and warranties of the Seller set forth in this Agreement
is true and correct at and as of the Closing, with the same force and
effect as though made at and as of the Closing, except for changes
permitted or contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF HRII THE PURCHASER
Each of HRII and the Purchaser hereby jointly and severally represent
and xxxxxx to the Seller, as of the date hereof and as of the Closing
Date, as follows (all of such representations and warranties
being qualified in their entirety by any item set forth in the Disclosure
Schedules attached to this Agreement):
3.01 Organization and Authority. HRII and the Purchaser are each
corporations duly incorporated, validly existing and in good standing
under the laws of the State of Nevada, with the corporate power and
authority to carry on its business as now being conducted. In addition,
HRII and the Purchaser are each duly qualified to do business in each
jurisdiction in which the nature of their respective businesses requires
them to be so qualified, except to the extent that the failure to so
qualify does not have a material adverse effect on the respective
businesses of either of them. The execution and delivery of this
Agreement and the consummation of the transactions contemplated in this
Agreement have been, or will be prior to closing, duly authorized by all
requisite corporate actions on the part of each of them, to the extent,
if any, that such authorizations are necessary. This Agreement has been
duly executed and delivered by HRII and he Purchaser, and constitutes
the valid, binding, and enforceable obligation of each of them in
accordance with its terms.
3.02 Ability to Carry out Agreement. The execution and performance
of this Agreement will not violate, or result in a breach of, or
constitute a default in, any provisions of applicable law, any agreement,
instrument, judgment, order or decree to which either HRII or the
Purchaser is a party, or to which HRII or the Purchaser is subject,
other than such violations, breaches, or defaults which, singly or in
the aggregate, do not have a material adverse effect on the respective
businesses of HRII or the Purchaser, or on the enforceability or
validity of this Agreement. No consents of any persons under any
contact or agreement required to be disclosed or disclosed pursuant to
this Agreement are required for the execution, delivery, and performance
by HRII or the Purchaser under this Agreement.
3.03 Capitalization of HRII and the Purchaser. As of the date of
execution of this Agreement, the capitalization of HRII is comprised of
fifty million (50,000,000) shares of authorized Common Stock, of which
approximately five million two hundred ten thousand seven hundred sixty
five (5,210,765) shares of common stock are issued and outstanding as
of the date hereof. Of such amount, five million (5,000,000) restricted
shares of common stock have been or will be contributed to the capital
of the Purchaser, for delivery to the Sellers at the Closing as
contemplated herein (the "Acquisition Shares"). The Acquisition Shares
will be delivered by HRII and the Purchaser to the sellers at the Closing
in compliance with all applicable federal and state securities laws.
Additionally, HRII has outstanding and available for exercise, options
to purchase one million shares of its common stock (the "Option Shares")
and the obligation to issue two hundred thousand (200,000) shares (the
"Fee Shares") of its common stock in exchange for legal, accounting and
other professional services rendered through the date hereof. Excluding
the Option Shares, but inclusive of the Fee Shares, the Acquisition
Shares and the Public Float, at Closing HRII will have approximately
five million four hundred ten thousand seven hundred sixty five
(5,410,765) shares of its common stock issued and outstanding. Except
as set forth herein, there are no other outstanding options, warrants,
convertible securities, or other rights, or any instrument, exchange-
able or exercisable for or convertible into any of such securities,
issued by or binding on HRII and the Purchaser to issue, purchase or
acquire any shares of capital stock of HRII or the Purchaser.
3.04 Securities Matters.
(a) HRII and the Purchaser have been, and are now, in compliance
with all applicable laws, rules and regulations pertaining to the public
or private sale of securities in the United States, and in each state
thereof where its securities are offered for sale and/or sold. HRII
has filed all reports, documents and other items which are required to
be filed with the Securities Exchange Commission and any applicable
state securities agency (collectively, the "Securities Reports"),
including without limitation all reports on Form 10-K and Form 10-Q,
which are required to have been filed by the date hereof (and shall
have filed any such Securities Reports which are required to have been
filed as of the Closing Date). All of the statements contained in
such Securities Reports were true and correct as of the dates made,
and are still true and correct (except to the extent specifically
disclosed on any of the HRII's Financial Statements or in the
disclosure Schedules attached hereto), and none of such Securities
Reports fails to state any material fact which a reasonably prudent
person would consider important in making an investment decision in the
Purchaser, or any fact which makes the disclosures contained in any
Securities Report misleading in the context in which made. HRII has not
received any notice from the Securities and Exchange Commission or any
state securities agency, or any other person, that it is in violation
of ay law, rule, regulation, order, decree or judgment with respect to
its securities and, to the best knowledge and belief of HRII and the
Purchaser, no grounds for any such notice exist. Neither HRII nor the
Purchaser have received any claim or notice from any holder of their
respective securities regarding any dispute or other concern relating
to or arising out of such person's purchase or ownership of any of their
respective securities.
(b) Set forth on Schedule 3.04(b) are the Shareholders of HRII (the
"Purchasers's Insiders"), who have entered into Lock Up Agreements in for
m and substance mutually acceptable to the parties, as attached hereto
as Exhibit D.
3.05 Financial Information. HRII has provided, or will provide
prior to Closing, to the Seller its financial statements for the fiscal
year ending December 31, 1999 and for the three fiscal quarters ended
September 30, 2000, which financial may be indicated as a part of the
SEC Reports (the "HRII Financial Statements"), including all other
reports included in the HRII Financial Statements. All financial
reporting included in the HRII Financial Statements shall be in
accordance with the books and records of the Purchaser (subject to
normal year-end adjustments), and present fairly the financial condition
of HRII and the results of its operations for the periods therein
specified, all in accordance with generally accepted accounting principles
applied on a basis consistent with prior accounting periods. Except as
set forth in the HRII Financial Statements or the SEC Reports, the
Purchaser has no obligations or liabilities (whether accrued, absolute,
ontingent, liquidated or otherwise, including without limitation any
tax liabilities due or to become due) which are not fully disclosed
and adequately provided for in the HRII Financial Statements, excepting
current liabilities incurred and obligations under agreements entered
into in the usual and ordinary course of business since the date the
reof none of which (individually or in the aggregate) are material.
HRII is not a guarantor or otherwise contingently liable for any material
amount of indebtedness. Except as indicated in the HRII Financial
Statements, there exists no default under the provisions of any
instrument evidencing indebtedness or of any agreement relating thereto.
The Puchaser has been formed solely for the purpose of engaging in the
several transactions described herein, and does not have any prepared
financial statement of its own, nor is there any condition, circumstances
or event which would alter the HRII Financial Statement in any
significant manner if the Purchaser's financial records were fully
consolidated with those of HRII in accordance with CAAP.
3.06 Assets, Liabilities and Business. HRII has no business operations
, an no assets or liabilities other than as set forth in its Quarterly
Report on Form 10-Q. As of the Closing Date, HRII will have no assets and
no liabilities.
3.07 Litigation. Except as disclosed in the HRII Financial Statements
, thre is no pending (nor to the actual knowledge of HRII, threatened
) action, suit or arbitration to which its property, assets or business is
or is likely to be subject and in which an unfavorable outcome, ruling or
finding will or is likely to have a material adverse effect on the
condition, financial or otherwise, or properties, assets, business or
operations of HRII (on a continuing basis post-acquisition), or create
any material liability on the part of HRII or which would conflict with
this Agreement or any action taken or to be taken in connection with it.
3.08 Tax Matters. HRII has filed all federal, state and local tax
returns nd reports which are due or required to be filed by it, and has
paid, or made adequate provision for the payment of, all taxes, interest,
penalties, assessments or deficiencies shown to be due or claimed to be
due or which have or may become due on or in respect to such tax returns
and reports. Such federal and state income tax returns have not been
audited and are not being audited by any governmental authority. The
Purchaser has not been required to file any tax return, nor has it
received any material tax liability.
3.09 Contracts. Except as disclosed in the HRII Financials
Statements or te SEC Reports, there are no Contracts to which HRII is a
party or by which they or any of its properties or assets are bound which
are material to the business, financial condition, or results of operation
of HRII and/or the Purchaser. For purposes of the preceding sentence,
the term "material" refers to any obligation or liability which by its
terms calls for aggregate payments of more than $10,000.
3.10 Material Contract Breaches; Defaults. HRII and the Purchaser
has not aterially breached, nor has it any knowledge of any pending or
threatened claims or any legal basis for a claim that either HRII or the
Purchaser has materially breached, any of the terms or conditions of any
Contract to which either of them is a party or is bound and which are
material to the in respective and/or combined businesses, financial
condition, or results of operation. HRII and/or the Purchaser are not
in default in any material respect under the terms of any Contract
which is material to the business, operations, properies, assets, or
condition of either of them, and there is no event of default or other
event which, with notice or lapse of time or both, would constitute a
default in any material respect under any such Contract.
3.11 Directors and Officers. Schedule 3.11 accurately set forth
the names and titles of all persons serving as directors and officers of
each of HRII and the Purchaser.
3.12 Employee and Labor Matters. Neither HRII nor the Purchaser
has any employees.
3.13 Compliance with Laws, Rules, etc. The respective businesses
of each of HRII and the Purchaser are being, and have been, conducted in
compliance with all applicable federal, state, and local laws, rules and
regulations. Neither HRII nor the Purchaser is in violation of any terms
of their respective Articles of Incorporation or By-Laws, or any judgment,
decree, order, statute, rule or regulation to which either of them is
subject, except to the extent that any violation or noncompliance would
not materially and adversely affect the business, operations, properties,
assets, or condition of HRII and is subsidiaries, except to the extent
that any violation or noncompliance would not result in the incurring of
any material liability. Neither HRII nor the Purchaser have been notified
by any regulatory or governmental authority that it is now in violation of
any law, rule, regulation, ordinance, or order.
3.14 Conflict of Interest Transactions. Except as disclosed in the
SEC Reorts, no past or present shareholder, director, officer, or employee
of either HRII or the Purchaser, and no affiliate thereof, (i) isindebted
to, or has any financial, business, or contractual relationship or
arrangement with either HRII or the Purchaser, (ii) has any direct or
indirect interest in any property, asset, or right which is owned or used
by either HRII or the Purchaser, or (iii) has been directly or indirectly
involved in any transaction with either HRII or the Purchaser.
3.15 Brokers. Other than the advisory fees discussed herein, neither
HRIInor the Purchaser has agreed to pay any brokerage fees, finder's
fees, or other fees or commissions with respect to
the transactions contemplated in this Agreement. No person or entity is
entitled, or to the actual knowledge of either HRII or the Purchaser,
intends to claim that it is entitled, to receive any such fees or
commissions in connection with such transactions. Each of HRII and the
Purchaser further agree, jointly and severally, to indemnify and hold
harmless the Seller against liability to any broker claiming to act on
behalf of either HRII or the Purchaser.
3.16 Approvals. Except as otherwise provided in this Agreement, no
authorzation, consent, or approval of, or registration or filing with,
any governmental authority or any other person is required to be obtained
or made by HRII, the Purchaser or any other entity in connection with the
execution, delivery, or performance of this Agreement.
3.17 Full Disclosure. The information concerning HRII and the
Purchaser st forth in this Agreement, in the HRII Financial Statements,
in the SEC Reports and in the Disclosure Schedules hereto is complete
andaccurate in all material respects and does not contain any untrue
statement of a material fact or omit to state a material fact required
to make the statements made, in light of the circumstances under which
they were made, not misleading.
3.18 Date of Representations and Warranties. Each of the
representations nd warranties of HRII and the Purchaser set forth in
this Agreement shall be true and correct at and as of the Closing Date,
with the same force and effect as though made again by them in their
entirety at and as of the Closing Date, except for changes permitted
or contemplated by this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT TO OBLIGATIONS OF HRII AND THE PURCHASER
All obligations of the Purchaser under this Agreement are subject to
the flfillment by the Seller, prior to or as of the Closing, of each of
the following conditions:
4.01 Deliveries of the Seller. The Seller shall have delivered to
the Purchaser the following items at or prior to the Closing:
(a) A duly executed original of this Agreement;
(b) the Xxxx of Sale;
(c) such other documents as are necessary to transfer all of the
Acquired Assets to the Purchaser;
(d) the Certificates required by Section 5.02 below;
(e) a Certificate of the Secretary of the Seller certifying (i) the
incumbency of the person's signing this Agreement and the other Closing
Documents on behalf of the Seller; (ii) a copy of the Articles of
Incorporation, Bylaws and other organizational documents of the Seller,
as applicable; and (iii) authorizing resolutions by the Board of Directors,
shareholders and/or members of the Seller, as applicable, evidencing the
corporate authority to enter into and perform the transactions
contemplated by this Agreement;
(f) a Certificate of Good Standing from the Secretary of States of
Delaware and California, as applicable, dated not more than thirty (30)
days prior to the date of Closing; and
(g) an opinion of counsel to the Seller, in such form as is
reasonably acceptable to the Purchaser, as to such matters of law as
is reasonably requested by the Purchaser with respect to the ability
of the Seller to perform this Agreement.
4.02 Representations and Warranties. The representations and
warranties of the Seller contained in Article III of this Agreement
shall have been true and correct when made, and shall be true and
correct on and as of the Closing Date.
4.03 Officer's Certificates. The Seller shall have delivered to the
Purchaser a certificate (in such form as the parties shall mutually agree)
dated as of the Closing Date and executed by its Chief Executive Officer,
certifying that the conditions set forth in this Agreement have been
fully satisfied, and that there has been no material adverse change in
the assets, properties, prospects, condition, affairs, operations or
business of the Seller as now conducted or as proposed to be conducted,
since the date of this Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER
All obligations of the Seller under this Agreement are subject to the
fulfillment by HRII and the Purchaser, prior to or as of the Closing,
of each of the following conditions:
5.01 Deliveries of the Purchaser. Each of the HRII and the Purchaser
shall have delivered to the Seller, as indicated, the following items
at or prior to the Closing:
(a) a duly executed original of this Agreement;
(b) the stock certificates, made as designated by the Seller prior
to the Closing, evidencing the ownership of the Seller of the Acquisition
Shares, representing (excluding the Option Shares) not less than Ninety
percent 90% of the total issued and outstanding shares of HRII Common
Stock as of the Closing Date;
(c) the Certificates required by Section 5.03 below;
(d) Certificates of the Secretaries of each of HRII and the Purchaser
certifying (as to itself only) (i) the incumbency of the person's signing
this Agreement and the other Closing Documents on its behalf; (ii) a copy
of its Articles of Incorporation and Bylaws; and (iii) authorizing
resolutions by its Board of Directors and shareholders, as applicable,
evidencing the corporate authority to enter into and perform the
transactions contemplated by this Agreement;
(e) Certificates of Good Standing from the Secretary of State of
Nevada dated not more than thirty (30) days prior to the date of Closing;
and
(f) an opinion of counsel to HRII and the Purchaser, in such form as
is reasonably acceptable to the Seller, as to such matters of law as is
reasonably requested by the Seller with respect to the ability of each
of them to perform this Agreement; and
(g) the favorable opinion of Xxxxxxxx & Associates, CPAs, Miami,
Florida, the independent auditor for the Seller which shall remain the
independent auditor for the combined company, that the transaction will
not result in any taxable event for the parties.
(h) duly executed copies of the Lock Up Agreements referenced in
Section 3.04(b), signed by the HRII Insider, who is the subject of such
Lock Up, and a certificate from the applicable escrow holder, who is the
custodian of the shares subject to each such Lock Up certifying that he
is the custodian of the certificates representing such number of shares
of each HRII Affiliate subject to Lock Up as is set forth on Schedule
3.04(b).
5.02 Representations and Warranties. The representations and
warranties of HRII and the Purchaser contained in ARTICLE III of this
Agreement shall have been true and correct when made, and shall be true
and correct on and as of the Closing Date.
5.03 Officer's Certificates. Each of HRII and the Purchaser shall
have delivered to the Seller, certificates (in such form as the parties
shall mutually agree) dated as of the Closing Date and executed by its
Chief Executive Officer, certifying that the conditions set forth in
this ARTICLE V. I have been fully satisfied, and that there has been
no material adverse change in the assets, properties, prospects,
condition, affairs, operations or business of the Purchaser, as now
conducted or as proposed to be conducted, since the date of this
Agreement.
ARTICLE VI
AVAILABILITY OF INFORMATION
The parties represent that, by virtue of their respective business
activites and economic bargaining power or otherwise, they have been
able to conduct their own due diligence and have had access to or have
been furnished with, prior to or concurrently with the execution hereof,
the information which they consider to be adequate to make a decision
to enter into and perform the several transactions set forth herein.
ARTICLE VII
POST-CLOSING COVENANTS
7.01 Conduct of Business as Usual. The parties shall, during the
period fom the date hereof to the Closing Date, continue to conduct their
respective businesses only in the usual and ordinary course in the manner
heretofore conducted, and the character of such businesses shall not be
changed, nor shall any new line of business be undertaken except to the
extent disclosed to, and approved by, the other party in writing prior
to Closing.
7.02 Maintenance of Capital Structure. Except as expressly contem-
plated uder the terms of this Agreement, or as otherwise disclosed to,
and approved by, the other party in writing prior to Closing, during the
period from the date hereof to the Closing Date, no change shall be made
in the Certificate of Incorporation, Bylaws or other organizational
documents of any of the parties, and no change shall be made in the
authorized or issued capital stock of HRII or the Purchaser without the
prior written consent of the Seller.
7.03 Avoidance of Special Settlements. Other than to satisfy a
condition recedent pursuant hereto, or as otherwise disclosed to the
other party in writing prior to Closing, during the period from the
date hereof to the Closing Date neither party shall discharge, compromise,
satisfy or settle any Lien, other than current liabilities shown on such
party's financial statements and current liabilities incurred since that
date in the ordinary course of such party's business.
7.04 Avoidance of Distributions. During the period from the date
hereof the Closing Date, neither party shall declare any dividends, make
any payments or distributions to its stockholders or purchase for cash or
redeem any of its shares of capital stock, except to the extent disclosed
to, and approved by, the other party in writing prior to the Closing.
7.05 Compliance with Laws, Rules, Etc. During the period from the
date heeof to the Closing Date, each party shall conduct its business and
operations in compliance with all applicable federal, state, and local
laws, rules and regulations, and neither party shall take any action
which is in violation of the terms of any Contract, instrument, judgment,
decree, order, statute, rule or regulation to which it or any of its
properties or assets is subject, except to the extent that any violation
or noncompliance would not materially and adversely affect its business,
operations, properties, assets, or financal condition, and that any
violation or noncompliance would not result in the incurring of any
material liability.
7.06 Conflict of Interest Transactions. During the period from the
date hereof to the Closing Date, neither party shall engage in any trans-
action of the type which would need to be disclosed under Sections 2.18
or 3.14 (as applicable) of this Agreement.
ARTICLE VIII
TERMINATION
This Agreement may be terminated:
8.01 By the parties immediately upon their unanimous, mutual written
consent.
8.02 By any party (provided, however, that for purposes of this
ARTICLE VIII, HRII and the Purchaser shall be deemed to be one and the
same party), if:
(a) the other party shall have breached any material provision of
this Agreement, upon five (5) business days notice provided that such notice
of termination shall be ineffective to the extent that the breaching party
shall be able to cure such breach within such 5-day period without causing
any prejudice to the non-breaching party; (b) the other party has a
receiver appointed for its assets or property, or otherwise becomes
insolvent or unable to timely satisfy its obligations in the ordinary
course of business; or
(c) if the other party makes a general assignment for the benefit of
credtors, institutes (or has instituted against it) any bankruptcy pr
oceeding for reorganization or for rearrangement of its financial affairs,
files a petition in a court of bankruptcy, or is adjudicated a bankrupt;
or
(d) if any of the disclosures made herein or subsequent hereto by
either party are determined to be materially false or misleading.
ARTICLE IX
INDEMNIFICATION
9.01 Indemnification of HRII and the Purchaser. The Seller hereby
agrees o hold harmless and indemnify HRII and the Purchaser from and
against any and all obligation, liability, loss, cost, charge, damage or
expense (including, but not limited to, reasonable attorneys' fees in
defense thereof) of whatever type or nature (i) caused by or arising out
of any breach or violation of any material term, condition, covenant or
other obligation contained in this Agreement or any Closing Document by
the Seller; (ii) caused by or arising out of the failure of any represen-
tation or warranty of the Seller contained herein to be true and correct
when made; or (iii) caused by or arising out of any action taken, or
omitted to be taken, by the Seller, or any officer, director, shareholder,
agent or representative thereof, in the conduct of its business or
operations through the Closing Date.
9.02 Indemnification of the Seller. The Purchaser and HRII each
hereby agees, jointly and severally to hold harmless and indemnify the
Seller from and against any and all obligation, liability, loss, cost,
charge, damage or expense (including, but not limited to, reasonable
attorneys' fees in defense thereof) of whatever type or nature (i) caused
by or arising out of any breach or violation of any material term of this
Agreement or any Closing Document by HRII and/or the Purchaser; (ii)
caused by or arising out of the failure of any representation or warranty
of HRII and/or the Purchaser contained heren to be true and correct; or
(iii) caused by or arising out of any action taken, or omitted to be
taken, by HRII and/or the Purchaser, or any officer, director, shareholder,
agent or representative thereof, in the conduct of its business or
operations through the Closing Date.
9.03 Coordination of Legal Defense. In the event that any party may
become the subject of any litigation or other proceeding as a result of
any of the foregoing items for which it may be entitled to indemnification
pursuant to the provisions of Section 10.01 or 10.02 hereof, the party so
entitled to indemnification shall have the right to coordinate its own
defense and legal representation, and the indemnifying party shall pay
all costs incurred in connection ther ewith, and shall otherwise use its
best efforts to cooperate with the party being indemnified and its counsel
in defending against such litigation or proceeding, provided, however,
that to the extent that HRII and the Purchaser shall use separate legal
counsel or otherwise incur additional expense then would have been the
case if they were only one entity, then the additional incidental costs
incurred by reason thereof shall be borne solely by HRII and/or the
Purchaser, and not bye the Seller or any agent, representative or
affiliate of the Seller.
ARTICLE X
MISCELLANEOUS
10.01 Authority. The officers of the Purchaser and the Seller
executing tis Agreement are duly authorized to do so and each party has
taken all action required by law or otherwise to properly and legally
execute this Agreement.
10.02 Notices. Any notice under this Agreement shall be deemed to
have been sufficiently given if sent by registered or certified mail,
postage prepaid, addressed as follows:
To the Seller: Holoworld, Inc.
Aliscor, LLC
00000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xx. Xxxxxx Xxxxxx
President
With a copy (which shall constitute notice) to:
Feldhake, August & Xxxxxxxxx LLP
00000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. August, Esq.
To the Purchaser: Xxxx Industries, Inc.
0000 XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Attn: Xxxx X. Xxxx
President
With copy to: NewBridge Capital Inc.
0000 XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxx
President
or to any other address which may hereafter be designated by either
party notice given in such manner. All notices shall be deemed to
have been given as of the date of receipt.
10.03 Entire Agreement. This Agreement sets forth the entire
understanding between the parties hereto and no other prior written or
oral statement or agreement shall be recognized or enforced.
10.04 Severability. If a court of competent jurisdiction determines
that any clause or provision of this Agreement is invalid, illegal or
unenforceable, the other clauses and provisions of the Agreement shall
remain in full force and effect and the clauses and provision which are
determined to be void, illegal or unenforceable shall be limited so that
they shall remain in effect to the extent permissible by law.
10.05 Assignment. No party may assign this Agreement without the
express written consent of the other party and any approved assignment
shall be binding on and inure to the benefit of such successor or, in
the event of death or incapacity, on assignor's heirs, executors,
administrators and successors.
10.06 Applicable Law. This Agreement shall be governed by the
internal laws of the State of California, without giving effect to the
Principle of Conflicts of law applied thereby.
10.07 Attorneys' Fees. If any legal action or other preceding (not
including arbitration) is brought for the enforcement of or to declare a
ny right or obligation under this Agreement or as a result of a breach,
default or misrepresentation in connection with any of the provisions
of this Agreement, or otherwise because of a dispute among the parties
hereto, the prevailing party will be entitled to recover actual attorney's
fees (including for appeals and collection) and other expenses incurred
in such action or proceeding, in addition to any other relief to which
such party may be entitled.
10.08 No Third Party Beneficiary. Nothing in this Agreement,
expressed or implied, is intended to confer upon any entity or person, other
than the parties hereto and their successors, any rights or remedies under
or by reason of this Agreement, unless this Agreement specifically states
such intent.
10.09 Facsimile Counterparts. A facsimile, telecopy or other
reproduction of this Agreement may be executed by one or more parties
hereto and such executed copy may be delivered by facsimile or similar
instantaneous electronic transmission device pursuant to which the
signature of or on behalf of such party can be seen, and such execution
and delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties agree to
execute an original of this Agreement as well as any facsimile, telecopy
or other reproduction hereof.
10.10 Further Assurances. At any time, and from time to time after
the Closing, each party will execute such additional instruments and take
such action as may be reasonably requested by the other party to confirm
or perfect title to the Assets and HRII's Common Stock to be transferred
hereunder, or otherwise to carry out the intent and purposes of this
Agreement.
10.11 Confidentiality. Except as may be required by HRII under
applicable federal or state securities rules and regulations, neither party
shall disclose the contents of this Agreement to any person or entity,
including, but not limited to the public or the media; provided, however:
(i) that the Seller may make such disclosures of this Agreement to persons
whose third party consents are necessary for purposes of closing this
transaction, and (ii) that may make such disclosures of this Agreement
to any federal, state or local agency which the Purchaser, in its sole
discretion, deems necessary to know of an or all of the terms of this
Agreement and to any persons whose third party consents are necessary
for purposes of closing this transaction.
10.12 Amendment or Waiver. Every right and remedy provided herein
shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith,
and no waiver by any party of the performance of any obligation by the
other shall be construed as a waiver of the same or any other default
then, theretofore, or thereafter occurring or existing. At any time
prior to Closing, this Agreement may be amended by a writing signed by
all parties hereto.
10.13 Headings. The section and subsection headings in this
Agreement are nserted for convenience only and shall not affect in any
way the meaning or interpretation of this Agreement.
SCHEDULE 1.01(a)
TO ASSET PURCHASE AGREEMENT
TANGIBLE ASSETS
1. Denver Asset List
BOSE SPEAKERS 50
BOSE AMPS 3
BOSE EQUALIZER 14
SONY PROJECTORS 2
SONY PLASMA TV 42" 1
SONY 32" FLATSCREEN XXXX TV 4
5'X4' HIGH GAIN FLAT SCREEN 1
200 DISC CD PLAYER 2
25" TV 1
PAN TILT VIDEO CAMERA WITH REMOTE 1
VHS/VCR 2
SOUNDWEB 2
AUDIO RACKS 2
VIDEO MATRIX 1
SATELLITE DISH 2
FIRE ALARM SYSTEM 1
SECURITY CAMERAS 7
OUTDOOR DOME CAMERAS 2
CAMERA DUPLEXORS 1
TIME LAPSE VCR 1
20" MONITOR 1
VCR TAPES 30
V50 CONTROL SECURITY PANEL 1
DOOR CONTACT SNESORS 11
MOTION DETECTORS 3
SIREN 1
BOOTHS 16
TABLES 58
CHAIRS 122
BAR STOOLS 44
OFFICE DESK 1
FILE CABINETS 5
SAFE 1
COUNTERS 3
HOST STAND 1
COMPUTER CABINET 1
BAR CABINET 2
ROOFTOP HEATING/COOLING UNITS 6
ELECTRICAL WALL HEATERS 8
POWER ROOF VENT 1
MAKEUP AIR UNIT 1
CEILING EXHAUST FANS 2
KITCHEN EXHAUST FANS 4
DISHWASHING HOOD 1
WATER HEATERS 2
GALVANIZED DUCTWORK
MOPSINK 1
MOPRACK 1
WALL SHELF 1
SHELVING UNIT 1
HANDSINK 3
LOCKER ASSEMBLY 1
SHELVING-STORAGE 87
SHELVING WALKIN COOLER 66
SHELVING-MOBILE WALKIN COOLER 40
SHELVING MOBILE WALKIN-FREEZER 24
SHELVING UNIT-CHEMICALS 1
SHELVING UNIT-MOBILE-UTENSILS 1
SHELVING-LIQUOR STORAGE 36
WALKIN-COOLER/FREEZERCOMBINATION 1
REFRIGERATION SYSTEMS 1
STAINLESSSTEEL WALL GUARDS 17
STAINLESS STEEL WALL CAP 1
STAINLESS STEEL DUCT TO CEILING 1
STAINLESS STEEL HOOD TRIM 1
STAINLESS STEEL WALL FLASHING 1
EXHAUST HOOD 1
EXHAUST HOOD 1
EXHAUST HOOD 1
FIRE SUPPRESSION SYS-HOODS 1
STOCK POT STOVE 1
DOUBLE CONVECTION OVEN 1
PIZZA OVEN 1
FILL FAUCET 1
SPREADER 1
RANGE 1
RANGE 1
CHEESE MELTER 1
BROILER RADIANT 1
WORK TABLE 1
FRY WARMERS 2
FRYER ASSEMBLY 1
BAKERS TABLE 1
WALL SHELF ITEM 37 1
MOBILE INGREDIENTS BINS 3
WALL SHELF ITEM# 39 1
PREP SINKS 1
FAUCET ITEM #41 1
LETTUCE DRIER 1
WORK TABLE ITEM #43 1
WALL SHELF ITEM # 44 1
POT FILLER FAUCET 1
WORK TABLE ITEM # 46 1
WALL SHELF ITEM #47 1
SLICER STAND 1
SLICER 1
MIXER 1
MIXER STAND 1
PROOFER 1
MIXER(60) SIXTY QUART 1
CHEFS COUNTER 1
WARMERS 2
HOT FOOD XXXXX 1
COLD PAN 1
MICROWAVE OVEN 1
DISH TABLE ASSEMBLY 1
MOBILE SOAK SINK 1
GARBAGE DISPOSER 1
PRE RINSE 1
WARMING DRAWERS 1
RACK CARTS 2
UTENSILS SINKS 1
FAUCETS 2
UTENSILS RACK 1
SERVICE COUNTER 1
WALL SHELF #71 1
WALL SHELF #72 1
WATER AND ICE STATION 1
REFRIGERATOR 1
DESSERT TABLE 1
WALL SHELF #79 1
MICROWAVE OVEN-DESSERTS 1
WATER FILTERS 1
ICE MACHINE 1
AIR SCREEN 1
ICE BIN WITH SEALED IN COLD PLATE 1
ICE STORAGE BIN-MOBILE 1
JOCKEY BOX 1
BLENDER STATION 1
WORK TABLE 1
GLASS STORAGE XXXX 0
XXXXXXXX XXXX 0
XXXXXX XXX # 00 1
BLENDER STATION #98 1
STAINLESS STEEL FILLERS 1
DIPPERWELL 1
DROP IN ICE CREAM XXXX 0
XXXX XXXX # 000 1
BACK BAR REFRIGERATOR BASES 2
CAPPUCHINO MACHINE 1
GRINDER 1
SERVICE STAND 1
FLOOR TROUGH 1
RACK CART # 112 1
REMOTE BEER SYSTEM 1
LASER TAG MAZE WALL SECTIONS 96
FLOOR BRACKET SYSTEM 192
WALL BRACKET SYSTEM 192
COMPUTERS 3
17" MONITORS 6
VENTURESCAPE NODES 30
SEQUENCER SOFTWARE 3
POWER TRANSFORMERS 3
AMPLIFIERS 3
SPEAKERS 9
MICROPHONES 3
MIXERS 3
VESTS/GUNS 50
DOWNLOADER 3
FLAT BEAM SCANNER 3
FRESNEL LIGHTS 8
SNAPSHOT STROBE 1
XXXXXX ROBOSCANS 4
SYMPHANY LIGHT 1
DIMMER PACK 1
SUBPANELS 10
FLORESCENT LIGHTS 422
HALOGEN LIGHTS 147
EXIT LIGHTS 17
EXTERIOR LIGHTS 6
MISC LIGHTS 46
EMERGENCY LIGHTS 15
HIGH POWER LIGHTS 12
DELL FILE SERVER 1
JAVELIN 12.1" TOUCH SCREENS 6
THERMAL RECIEPT PRINTERS 6
TERMINAL SOFTWARE 6
MAGNETIC CARD READERS 6
8 PORT HUB 1
POS ASSECORIES
CASH DRAWERS 4
GATEKEEPER SOFTWARE 1
DEBIT CARD SYSTEM SERVER 1
POS DEBIT CARD 2
SELF SERVE KIOSK 2
SYSTEM SOFTWARE 1
DEBIT CARD READERS 85
DEBIT CARD ISSUERS 3
TIME TUNNEL 1
SPACE SHIP 1
SIGNS 6
ROCKWORK AND VOLCANO
FOG XXXXX 0
XXXXXXXX XXXX 1
SEATING NODE 1
REDEMPTION COUNTER AND THEME 1
SPACESHIP ARCADE BULKHEADS 7
BAR AND COUNTERS 1
WALL PANELS
THEME PIPES
XEROX PHOTOCOPIER 1
FAX MACHINE 1
OFFICE SUPPLIES
CHINA GLASS AND SILVER
FOOD INVENTORY
KITCHEN UTENSILS
OFFICE COMPUTER 2
PRINTER 1
OFFICE CHAIRS 10
TOILET SINKS 8
FAUCETS 8
TOILETS
MERCHANDISE
TOSHIBA 16 LINE DIGITAL SYSTEM 1
PHONES 8
2. Corporate Office Asset List
CHAIRS (GREY CLOTH) 57
CONFERENCE TABLE 1
CUBICLES 29
PLANTS FLOOR 30
PICTURE FRAME 6
DESK 2
COMPUTERS 7
FAX MACHINE 3
COPIER MACHINE 2
PRINTERS 3
WOODEN CHAIRS 4
SOFA CHAIR (CLOTH) 2
XXXXX LEATHER COUCH 1
ANTIQUE COFFEE TABLE (OBLONG) 1
CREDENZA & GLASS CABINET 1
XXXXX EXECUTIVE CHAIRS (LEATHER) 2
XXXXX VISITORS CHAIRS (LEATHER 2
COMPUTER CART 1
PRINTER CART 1
XXXXX WOODEN ENDTABLE 1
MAHOGANY BOOKSHELF 1
BLACK LEATHER ANTIQUE CHAIRS 2
BLACK METAL TABLE 1
CALL COUNTING COMPUTER 1
CALL COUNTING PRINTER 1
PLANT DESK TOP 15
FILE CABINET (STEEL) 14
END TABLE ( XXXXX & BLACK) 1
EXECUTIVE DESK (XXXXX) 2
BLACK COMPUTER TABLE 1
BLACK LEATHER EXECUTIVE CHAIRS 3
MICROWAVE 2
TELEVISION & VCR 1
VCR 1
TELEVISION 1
MAHOGANY DESK 2
CREDENZA 2
BLACK STEEL FILE CABINET 1
PHONES 45
30 LINE TOSHIBA DIGITAL PHONE SYSTEM 2
PHONE ON HOLD MACHINE 1
T-1 DIGITAL JUNCTION BOX 2
LAPTOP COMPUTER WITH DOCKING STATION 1
MINIATURE GOLF COURSE 1
VIRTUAL REALITY GOLF MACHINE 1
SECURITY MONITORING SYSTEM 1
100" VIDEO GAME CABINET WITH PROJECTION 1
PA SYSTEM 1
COMPUTERS 2
20/20 POS SYSTEM 1
MOTION SIMULATOR RIDE MACHINE 1
SCHEDULE 1.01(c)
TO ASSET PURCHASE AGREEMENT
ACCOUNTS
ENTITY BANK #
HOLOZ I 1 BANK OF AMERICA 12016-13662
SOFTNET VENTURE CAPITAL
DBA: HOLOZ I
2 HIGHLAND FEDERAL BANK 00-00-00000
HOLOZ II 1 HIGHLAND FEDERAL BANK 09-00-1887
HOLOZ PARTNERS 1 FIRST BANK & TRUST 1427179487
FORMER
1A HIGHLAND FEDERAL BANK 00-00-00000
2 BANK OF AMERICA 12016-13662
SOFTNET VENTURE CAPITAL
DBA: HOLOZ I
HOLOWORLD INC 1 CITIBANK 601148992
HOLOWORLD III 1 CITIBANK 601148828
2 XXXXX FARGO BANK 0644-508871
HOLOWORLD INC
ATF HOLOWOTLD 3
3 XXXXX FARGO BANK 0644-509226
HOLOWORLD INC
OPERATING ACCOUNT
4 FIRST BANK AND TRUST 1427179568
FORMER
4A HIGHLAND FEDERAL BANK 00-00-00000
SALES TAX DEPOSIT CITIBANK 670015684
HOLOCOR LLC 1 CITIBANK 601148984
CITIBANK-INTEREST CHK ACCT 670016997
ALISOCOR LLC 1 CITIBANK 601149529
SOFTNET VENTURE CAPITAL HIGHLAND FEDERAL 00-00-00000
SOFTNET VENTURE CAPITAL FIRST BANK 1427188957
HOLOWORLD (PASADENA ACCT.) CITI BANK 601280464
HOLOWORLD INC-(OPERATING) CHARTER PACIFIC BANK 0000000
HOLOWORLD INC-PAYROLL ACCT CHARTER PACIFIC BANK 0000000
ALISOCOR LLC. CHARTER PACIFIC BANK 0000000
PASADENA H-III CHARTER PACIFIC BANK 0000000
HOLOWORLD INC- CAFE ACCT CHARTER PACIFIC BANK 0000000
CD ACCT CHARTER PACIFIC BANK 102980
HOLOWORLD CAFE- OPERATIONS COMMUNITY FIRST BANK 4505020448
HOLOWORLD CAFE-PAYROLL COMMUNITY FIRST BANK 4505020455
HOLOWORLD CAFE-DEPOSIT COMMUNITY FIRST BANK 4505020430
SCHEDULE 2.04
TO ASSET PURCHASE AGREEMENT
SELLER OF SECURITIES
HOLOWORLD INC
Invoice Register
For the Period From Oct 1, 2000 to Mar 6, 2001
Filter Criteria includes: 1) Invoice Numbers from S99000 to S99999.
Report order is by Invoice Number.
Invoice No Date Name Amount Amt Recvd
S99224 10/2/00 XXXXX &/OR XXXXXXXX XXXXX 19,999.76 19,999.76
S99225 10/2/00 XXX-XXXXX XXXX XXXXX 29,999.20 29,999.20
S99226 10/5/00 XXXXXX X. XXXXX 8,800.00 8,800.00
S99227 10/5/00 XXXXXXX X. XXXXXXXXX 17,600.00 17,600.00
S99228 10/13/00 XXXXXX XXXXXX 8,800.00 8,800.00
S99229 10/17/00 ZOOM HOLDINGS 9,999.44 9,999.44
S99230 10/19/00 G. XXXXXX XXXXX 49,999.84 49,999.84
S99233 10/20/00 XXXXX X. XXXX 8,800.00 8,800.00
S99234 10/25/00 XXXXXXXX &/OR XXXXXXXXX XXXXX 35,200.00 8,800.00
S99235 10/26/00 XXXXXX &/OR XXXXXX XXXXX 24,999.92 24,999.92
S99236 10/26/00 KURNEYW. XXXXXX 8,800.00 8,800.00
S99237 10/27/00 XXXX XXXXXXX XXXXXXXXXX 8,800.00 8,800.00
S99238 10/27/00 XXXXXXX XXX &/OR XXXX XXXXXXX 39,999.52 39,999.52
S99239 10/27/00 XXX- XXXXXXX X. XXXXXXXXXXXX 8,800.00 8,800.00
S99240 10/30/00 XXXXX XXXXXXXX 4,400.00 4,400.00
S99241 10/30/00 XXX XXXXXX 4,400.00 4,400.00
S99243 11/1/00 XXX-XXXXX XXXXXXXX 8,800.00 8,800.00
S99244 11/2/00 XXXXXX X. XXXXXXX 9,999.44 9,999.44
S99246 11/8/00 BEE XXXXXXX JR. 24,999.92 24,999.92
S99247 11/13/00 XXXX &/OR XXXX XXXXX 8,800.00 8,800.00
S99248 11/13/00 XXXX X. GEAR 35,200.00 35,200.00
S99249 11/13/00 XXXXXXXX X. XXXXX 24,999.92 24,999.92
S99250 11/13/00 XXX - XXXXXX X. XXXXXXXX 17,600.00 17,600.00
S99251 11/13/00 XXXXXXX X. XXXXXXX 49,999.84 49,999.84
S99252 11/15/00 XXXXXX X. XXXXX 17,600.00 17,600.00
S99253 11/17/00 KURNEYW. XXXXXX 8,800.00 8,800.00
S99254 11/21/00 XXXXXX X. XXXXXXXXX 8,800.00 8,800.00
S99255 11/21/00 XXXXXX & XXXXXXXXX X'XXXXXX 17,600.00 17,600.00
S99256 11/21/00 TOLLET TRUST 8,800.00 8,800.00
S99257 11/22/00 XXXXXX &/OR XXXXXX XXXXX 8,800.00 8,800.00
S99258 11/27/00 XXXXX X. XXX XXXXXX 8,800.00 8,800.00
S99259 11/21/00 XXX X. XXXX TRUST 24,999.92 24,999.92
S99260 11/30/00 BEE XXXXXXX JR. 24,999.92 24,999.92
S99261 12/1/00 XXXXX X. &/OR XXXX X. XXXXX 17,600.00 17,600.00
S99262 12/4/00 XXX-XXXXX XXXXX 8,800.00 8,800.00
S99263 12/7/00 WOOD FAMILY TRUST # 1 8,800.00 8,800.00
S99264 12/13/00 XXX- XXXXX XXXX 22,000.00 21,802.00
S99265 12/18/00 XXXX X. GEAR 49,999.84 49,999.84
S99266 12/18/00 XXX-XXXXXXX XXXXX 39,999.52 38,949.00
S99267 12/19/00 XXX X. XXXXXX 99,999.68 99,999.68
S99268 12/27/00 JOHNW. XXXX 17,600.00 17,600.00
S99269 1/17/01 XXXXXX X.XXXXXX 17,600.00 17,600.00
S99270 2/23/01 THE XXX FAMILY REVOCABLE TRUST 17,600.00 17,600.00
S99271 2/27/01 XXXXX X. XXXXXXX 22,000.00 22,000.00
========== ==========
Total 920,995.68 893,347.16
ALISOCOR, LLC
Invoice Register
For the Period From Oct 1, 2000 to Mar 6, 2001
Filter Criteria includes: Report order is by Invoice Number.
Invoice No Date Name Amount Amt Recvd
98456 10/10/00 XXXXX XXXXXXX 10,000.00 10,000.00
98458 10/13/00 XXXXX X. ORGAN 10,000.00 10,000.00
98459 10/23/00 XXXX X.XXXXXXX LIVING TRUST 10,000.00 10,000.00
98460 10/24/00 XXXX XXXXXXXXXX 10,000.00 10,000.00
98461 10/26/00 XXX- XXXXXX X. XXXXX 20,000.00 15,000.00
98462 11/3/00 XXXXXX X. XXXXXXXX 10,000.00 10,000.00
98463 11/7/00 REINHOLDJOHNSON 20,000.00 20,000.00
98464 11/9/00 XXXXXX X. XXXXXX 10,000.00 10,000.00
98467 11/15/00 XXXXXX X. XXXXX 10,000.00 10,000.00
98468 11/16/00 XXXXXXX &/OR XXXXX X. XXXXXXXX 10,000.00 10,000.00
98469 11/20/00 XXXXXXX XXXX &/OR XXXXXXX XXXX 20,000.00 20,000.00
98470 11/20/00 XXXXX X. XXXX 5,000.00 5,000.00
98471 11/29/00 XXX X. XXXXXX 70,000.00 70,000.00
98472 11/1/00 XXXXX XXXXXXX 5,000.00 5,000.00
98473 12/8/00 XXXXX XXXXXXXX XXXXX 10,000.00 10,000.00
98474 12/8/00 XXXX X. &/OR XXXXXX X. XXXXX 5,000.00 5,000.00
98475 12/11/00 W. XXXXXXX XXXXXXX 20,000.00 20,000.00
98476 12/11/00 XXXXXX X. XXXXXXX LIVING TRUST 20,000.00 20,000.00
98476 12/12/00 XXXX X. XXXXXXXX 10,000.00 10,000.00
98477 12/12/00 XXXXXXX &/OR XXXXXX XXXXXXX 20,000.00 20,000.00
98478 12/13/00 XXXXXX &/OR XXXX XXXXXX 10,000.00 10,000.00
98479 12/14/00 W. XXXXXXX XXXXXXX 10,000.00 10,000.00
98480 12/14/00 JESS &/OR XXXXX XXXXX 10,000.00 10,000.00
98481 12/15/00 XXXXXXX XXXX &/OR XXXXXXX XXXX 10,000.00 10,000.00
98482 12/15/00 XXX - XXXXXXX X. XXXXXXXX 20,000.00 20,000.00
98483 12/15/00 XXX-XXXXXXX X. XXXXXXX 20,000.00 20,000.00
98484 12/18/00 XXXXX XXXXXXX 10,000.00 10,000.00
98485 12/18/00 SHOU &/OR XXXX XXXXX 10,000.00 10,000.00
98486 12/18/00 XXXXX X. XXXX 10,000.00 10,000.00
98487 12/18/00 LARRY&/ORGAIL XXXX 10,000.00 10,000.00
98488 12/19/00 XXXXXXX XXXX XXX 30,000.00 30,000.00
96489 12/19/00 K. SPECHT&/ORA. NEUSCHELER 10,000.00 10,000.00
98490 12/19/00 XXXXX X. XxXXXX 10,000.00 10,000.00
98491 12/20/00 XXXXXX X. XXXXXXX LIVING TRUST 10,000.00 10,000.00
98492 12/20/00 XXXXXXX &/OR XXX XXXXXXXX 20,000.00 20,000.00
98493 12/20/00 XXXXX XXXXXX 10,000.00 10,000.00
98494 12/21/00 W. XXXXXXX XXXXXXX 10,000.00 10,000.00
98496 1/2/01 XXXXX XXXXXXXX XXXXX 6,500.00 6,500.00
========== ==========
Total 531,500.00 526,500.00
SCHEDULE 2.04a
SELLER'S FINANCIAL STATEMENTS
HOLOWORLD, INC. AND AFFILIATES
COMBINED FINANCIAL STATEMENTS
AS OF SEPTEMBER 30, 2000
HOLOWORLD, INC. AND AFFILIATES
CONTENTS
PAGE 1 ACCOUNTANTS' COMPILATION REPORT
PAGE 2 COMBINED BALANCE SHEET AS OF SEPTEMBER 30, 2000
PAGE 3 COMBINED STATEMENT OF OPERATION FOR THE NINE MONTHS
ENDED SEPTEMBER 30, 2000
PAGE 4 COMBINED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
(DEFICIENCY) FOR THE NINE MONTHS ENDED SEPTEMBER 30,
2000
PAGE 5 COMBINED STATEMENT OF CASH FLOWS FOR THE NINE MONTHS
ENDED SEPTEMBER 30, 2000
ACCOUNTANTS' COMPILATION REPORT
To the Board of Directors of:
Holoworld, Inc.
We have compiled the accompanying combined balance sheet of Holoworld,
Inc.and Affiliates as of September 30, 2000 and the related combined
statements of operations, changes in stockholders' equity (deficiency)
and cash flows for the nine months then ended, in accordance with
Statements on Standards for Accounting and Review Services issued by
the American Institute of Certified Public Accountants.
A compilation is limited to presenting in the form of financial statements
information that is the representation of management. We have not audited
or reviewed the accompanying financial statements and accordingly, do not
express an opinion or any other form of assurance on them.
Management has elected to omit substantially all of the disclosures
required by generally accepted accounting principles. If the omitted
disclosures were included in the financial statements, they might influence
the user's conclusions about the Company's financial position, results of
operations and cash flows. Accordingly, these financial statements are not
designed for those who are not informed about such matters.
XXXXXXXX & COMPANY, P.A.
Boca Raton, Florida
February 12, 2001
HOLOWORLD, INC. AND AFFILIATES
COMBINED BALANCE SHEET
AS OF SEPTEMBER 30, 2000
ASSETS
CURRENT ASSETS
Cash $ 187,637
Inventories 8,304
Total Current Assets 195,941
PROPERTY AND EQUIPMENT - NET 2,892,942
OTHER ASSETS
Restricted cash 7,726
Security deposits 308,950
Loans receivable - related parties 135,808
Total Other Assets 452,484
TOTAL ASSETS $ 3,541,367
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIENCY)
CURRENT LIABILITIES
Accounts payable and accrued expenses $ 920,654
Notes payable 34,886
Loans payable - related company 2,732,994
Capital lease obligations - current portion 70,498
Total Current Liabilities 3,759,032
LONG TERM LIABILITIES
Capital lease obligations 19,481
TOTAL LIABILITIES 3,778,513
STOCKHOLDERS' EQUITY (DEFICIENCY)
Preferred stock, $0.001 par value, 10,000,000
shares authorized, 4,995,669 issued and outstanding 4,996
Common stock, $0.001 par value, 25,000,000 shares
authorized, 24,919,414 issued and outstanding 24,989
Additional paid-in capital 9,037,814
Less subscriptions receivable (16,600)
Accumulated deficit (9,288,345)
TOTAL STOCKHOLDERS' EQUITY (DEFICIENCY) (237,146)
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIENCY) $ 3,541,367
HOLOWORLD, INC. AND AFFILIATES
COMBINED STATEMENT OF OPERATION
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2000
NET REVENUE $ 161,491
COST OF SALES 82,715
GROSS PROFIT 78,776
SELLING, GENERAL AND ADMINISTRATIVE 1,531,976
LOSS FROM OPERATIONS (1,453,200)
OTHER INCOME (EXPENSE)
Interest expense (1,420)
Interest income 2,502
Loss on sale of property and equipment (487,445)
Management fee 90,000
Total Other Income (expense) (396,363)
NET LOSS $ (1,849,563)
NET LOSS PER COMMON SHARE - BASIC AND DILUTED $ (0.08)
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING -
BASIC AND DILUTED $ 24,307,687
HOLOWORLD, INC. AND AFFILIATES
COMBINED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIENCY)
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2000
PREFERRED STOCK COMMON STOCK ADDITIONAL PAID-IN
SHARES AMOUNT SHARES AMOUNT CAPITAL
Balance, December 31, 1999 283,636 $ 284 23,811,343 $ 23,881 $ 6,296,771
Issuance of stock for cash,
net of offering costs 4,712,033 4,712 1,107,771 1,108 2,741,043
Net loss for nine month period
ended September 30, 2000 0 0 0 0 0
Balance,September 30, 2000 4,995,669 $ 4,996 24,919,114 $ 24,989 $ 9,037,814
HOLOWORLD, INC. AND AFFILIATES
COMBINED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIENCY)
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2000
SUBSCRIPTIONS ACCUMULATED
RECEIVABLE DEFICIT TOTAL
Balance, December 31, 1999 $ (47,400) $ (7,438,782) $ (1,165,246)
Issuance of stock for cash,
net of offering costs 30,800 0 2,777,663
Net loss for nine month period
ended September 30, 2000 0 (1,849,563) (1,849,563)
Balance,September 30, 2000 $ (16,600) $ (9,288,345) $ (237,146)
HOLOWORLD, INC. AND AFFILIATES
COMBINED STATEMENT OF CASH FLOWS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2000
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (1,849,563)
Adjustments to reconcile net loss
to net cash used in operating activities:
Write off of inventory 5,479
Depreciation and amortization 58,068
Loss on disposal of property and equipment 522,445
Changes in operating assets and liabilities:
Increase (decrease) in:
Cash overdraft (71,983)
Accounts payable and accrued expenses (161,891)
Net cash used in operating activities (1,497,445)
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment (1,982,786)
Proceeds from sale of property and equipment (35,000)
Deposits (16,451)
Due from officer 36,475
Net cash used in investing activities (1,997,762)
CASH FLOWS FROM FINANCING ACTIVITIES:
Loan from related parties 857,008
Payments on loans payable (21,750)
Payment on capital lease obligations (1,770)
Proceeds from issuance of common stock 2,777,663
Net cash provided by financing activities 3,611,151
NET INCREASE IN CASH 115,944
CASH AND CASH EQUIVALENTS - BEGINNING OF PERIOD 71,693
CASH AND CASH EQUIVALENTS - END OF PERIOD $ 187,637
SCHEDULE 2.05
TO ASSET PURCHASE AGREEMENT
LITIGATION
Litigation Relating to the Acquisition Proposal. As of the date of this
Proxy Statement, Holoworld Management is not aware of any lawsuits that have
been filed or threatened by any of the Equity Owners of Holoworld, or the
shareholders of HRII, or any other person, relating to the, or attempting
to block or hinder the consummation of, the Acquisition Proposal.
Xxxxxx Xxxxx vs. Holoworld, Inc., et al. On August 18, 2000, Xxxxxx Xxxxx
("Xx. Xxxxx") filed a petition against Holoworld, Inc., Holoworld III, Xxxxxx
Xxxxxx, Zara Xxxxxx, Xxxxxxx Gaigner, and Softnet Venture Capital
(the "Defendants") all begin the sale of unregistered securities, sale of
securities by unregistered agents, liability for being an unregistered issuer,
omissions, fraud, fraudulent concealment and punitive damages. The petition
was filed in the Iowa District Court for Xxxxxx County, and stems from a
five thousand dollar ($5,000) investment in Holoworld by Xx. Xxxxx. Holowold
and Xx. Xxxxxx have retained counsel that is attempting to negotiate an
amicable settlement to this lawsuit. A trial date has been set for this case
for July 25, 2001, but Holoworld Management believes the case will be resolved
prior to that date.
Alleged Violations of Securities Laws
Holoworld, Inc. Holoworld, Inc., the business entities related to Holowold
that were subject to the Roll Up, and/or Xxxxxx Xxxxxx individually, are
currently (and have for some time been) involved in various legal proceedings
related to the alleged violation of state and/or federal securities laws,
based upon its offering and sale to investors of the securities of Holoworld
and/or its affiliates without being in compliance with Regulation D and without
registration. For each of the matters listed below, the relevant defendants
or respondents, including Holoworld, Inc. and Xx. Xxxxxx, have retained counsel
and/or intend to fully comply with any orders or negotiated settlements.
Hawaii. On October 19, 1996, the Department of Commerce and Consumer Affars
of Hawaii issued a Preliminary Cease and Desist Order (the "Hawaii Order")
to Sid a.k.a. Xxxxxx Xxxxxx, among others (the "Subjects"). The Hawaii Order
identified Xxxxxx Xxxxxx as a principal of Everest Venture Capital, Inc.,
which was alleged to have sold unregistered securities in the State of Hawaii
as unregistered brokers or agents. Such alleged sales were claimed to be in
violation of chapter 485 of the Hawaii Revised Statutes, and as a result the
Subjects were ordered to cease and desist from making further solicitaion or
sales of unregistered or non-exempt securities in the State of Hawaii and
ordered to make recission of investments to Hawaii investors. The Order
further prohibited the Subjects from acting as agents in the State of Hawaii
without registration of securities sold, and to cease acting as brokers in the
state. The Subjects may not omit any material fact in the future sale of any
securities in Hawaii.
Pennsylvania. On or about July 1997, the Commission of Securities for the
state of Pennsylvania issued an inquiry and cease and desist letter (the
"Pennsylvania Inquiry") to Xxxxxx Xxxxxx (the "Respondent"). The Pennsylvania
Inquiry requested that the Respondent provide certain information regarding
the manner of the offers and sales of securities of Holoworld, Inc., to
Pennsylvania residents.
On or about August 20, 1997, the Pennsylvania Commissioner of Securities
issued a Cease and Desist to Holoworld, Inc., Holoworld III, Xxxxxx X. Xxxxxx,
and others which identified certain violations of Pensylvania state law by
the parties and prohibited the parties from offering or selling units of the
Holoworld III Unit Investment Trust to residents of Pennsylvania unless
certain conditions are met.
North Carolina. On August 29, 1997, North Carolina Department of the
Secratary of State issued an inquiry (the "North Carolina Inquiry") to
Holoworld, Inc. and Xxxxxx Xxxxxx (the "Respondents"). The North Carolina
Inquiry requested that the Respondents provide certain information regarding
the manner of the offers and sales of securities of Holoworld, Inc. to North
Carolina residents.
Minnesota. On August 29, 1997, the Minnesota Department of Commerce issue an
Order For Written Statement, Production of Documents and Report Sales (the
"Minnesota Order") to Xxxxxx Xxxxxx and Holoworld amongothers (the "Subjects").
The Minnesota Order identified Xxxxxx Xxxxxx as a principal of Holoworld, Inc.
alleged to have sold unregistered securities in the State of Minnesota as an
unregistered broker or agent. The Order requested the production of certain
documents, reports and statements regarding the manner, method, device and
timing of sale of Holoworld securities in Minnesota.
Due to the actions alleged in the Minnesota Order, the holders of the secuities
issued subject to the Minnesota Order may have the right to rescind their
respective purchases of Holoworld securities. (See : Risk Factors/Alleged
Securities Violations).
Arkansas. On September 5, 1997, the Arkansas Security Department issued a
inquiry (the "Arkansas Inquiry") to Xxxxxx Xxxxxx ("Xxxxxx"). The Arkansas
Inquiry requested that Xx. Xxxxxx provide certain information regarding the
manner of the offers and sales of securities of an entity unrelated to the
Company to Arkansas residents. The Arkansas Inquiry further alleged that such
sales may have been made in violation of Arkansas Code Xxx. Sections 00-00-000
et. seq. On October 27, 1997, the Arkansas Security Commissioner is sued a
Cease and Desist Order to Xxxxxx Xxxxxx and Holoworld, Inc., among thers. The
order alleged that certain violations of state law occurred, and prohibited the
parties from any further offer or sale of securities in the State of Arkansas
unless they are properly registered or exempt from registration. On
October 27, 1997, the Arkansas Security Commissioner issued an Order to Cease
and Desist to Holoworld, Inc. and Xxxxxx Xxxxxx.
Iowa. On September 9, 1997, the Commissioner of Insurance for the State
of Iowa issued a Cease and Desist Order (the "Iowa Order") to Holoworld, Inc.,
Xxxxxx Xxxxxx and Zara Haider, among others (the "Subjects"). The Iowa Order
identified Xxxxxx Xxxxxx and Zara Haider as principals of Holoworld, Inc., who
were alleged to have sold unregistered securities in the State of Iowa as
unregistered brokers or agents. Such alleged sales were claimed to be in
violation of Iowa Code sections 502.201, 502.301 and 502.401, and as a result
the Subjects were ordered to cease and desist from making further soliciations
or sales of unregistered or non-exempt securities in the State of Iowa. The
Order further prohibited the Subjects from acting as agents in the State of
Iowa without registration, and prohibited Holoworld, Inc., from employing
individuals to solicit securities sales in Iowa without registering its agents.
The Subjects may not omit any material fact in the sale of any securities in
Iowa.
On May 4, 1999, Iowa's Superintendent of Securities issued a Cease and Desist
Order which prohibited Holoworld, Inc., Holoworld III, Xxxxxx Xxxxxx and Zara
Haider from offering or selling any securities while the securities are
unregistered and not exempt from registration. The individuals were required
to cease and desist acting as agents without registration. The entities were
also required to cease and desist employing individuals as agents who are not
registered. The individuals also were required to cease and desist making
untrue statements or omissions of material fact in the offer or sale of
securities.
On July 14, 1999, Iowa's Superintendent of Securities issued a second Cease
and Desist Order which prohibited Holoworld, Inc. Holoworld III, Xxxxxx Xxxxxx
and Zara Haider from offering or selling any securitieswhile the securities
are unregistered and not exempt from registration. On December 29, 1999,
those individuals filed an opposition to the State's motion for order
compelling discovery directed to them. In 2000, the Subjects engaged in a
dialogue with the State of Iowa seeking to be permitted additional time to
fashion an appropriate rescission offer to all Iowa residents who invested in
Holoworld,and to provide adequate disclosures about Holoworld (through this
Proxy Statement) for the Iowa investors to make a decision whether or not to
elect rescission. The Subjects have continued voluntarily to provide
requested information to the State of Iowa, and have obtained a continuance
until at least March 30, 2001 in order to continue with settleent negotiations
in an attempt to resolve this matter without the need of an administrative
hearing.
Washington. On October 14, 1997, the Department of Financial Institution for
the State of Washington issued an inquiry (the "Washington Inquiry") to Xxxxxx
Xxxxxx, Holoworld, Inc., and Holoworld III. The Washington Inquiry requested
that Holoworld, Inc., Holoworld III and Haider provide certain information
regarding the manner of the offers and sales of securities to Washington
residents.
Missouri. On December 11, 1997, the Office of the Secretary of State of
Missouri issued an inquiry (the "Missouri Inquiry") to Holoworld III. The
Missouri Inquiry requests that Holoworld III provide certain information
regarding the manner of the offers and sales of securities to Missouri
residents. Holoworld has since begun a dialogue with the State of Missouri
in order to be permitted time to fashion an appropriate rescission offer to
all Missouri residents who invested in Holoworld, and to provide adequate
disclosures about Holoworld (through this Proxy Statement) for the Missouri
investors to make a decision whether or not to elect rescission.
Kansas. On December 18, 1997 the Kansas Securities Commissioner issued a
initial emergency Cease and Desist Order (the "First Kansas Order") to
Holoworld, Inc., Holoworld III, Xxxxxx X. Xxxxxx and others (the "Subjects")
for the alleged sale of unregistered securities in violation of Kansas law
for operating as unregistered broker-dealers or agents in Kansas. The First
Kansas Order prohibited the Subjects from offering or selling (or assisting
the sale of) securities of Holoworld III or any other issuer, unless the
securities have been registered or are exempt from registration, unless the
subjects have become registered broker-dealers or agents, and unless the
Subjects refrain from any further violation of the Kansas Securities Act.
On March 31, 1998, the Kansas Securities Commissioner issued a second
emergency Cease and Desist Order (the "Second Kansas Order") to Holocor, LLC,
Holoworld, Inc., Xxxxxx X. Xxxxxx and others. This orderalleged that the same
Subjects to the first Kansas order offered and sold securities to Holocor, LLC
in violation of the first order, and in violation of certain Kansas state law.
The Second Kansas Order prohibited the Subjects from offering or selling (or
assisting in the offer or sale of) securities of Holocor, LLC or any other
issuer, unless the securities have been registered or are exempt from
registration, and unless the Subjects refrain from any further violation of the
Kansas Securities Act.
Federal Trade Commission. On January 7, 1998, the Federal Trade
Commission ("FTC") issued concurrent Civil Investigative Demands for
Documentary Material and for Written Interrogatories to Holoworld, Inc. This
investigation was conducted under Sections 6, 9, 10 and 20 of the Federal
Trade Commission Act, 15 U.S.C. Sections 46, 49 , 50 and 57b-1 as amended.
The purpose of the investigation is to determine whether the Company or its
agents have engaged in unfair or deceptive acts or practices in affecting
commerce and/or in deceptive or abusive telemarketing acts or practices in
violation of certain rules of the FTC. Holoworld has not received any
correspondence from the FTC since July 1998.
Virginia. On or about May 5, 1998, the Division of Securities and Retail
Franchising of the Commonwealth of Virginia issued a letter of inquiry (the
"Virginia Inquiry") to Xxxxxx Xxxxxx, Holoworld, Inc. and others (the
"Subjects"). The Virginia Inquiry requested that the Subjects provide certain
information regarding the manner of the offers and sales to Virginia residents
of securities of an entity related to Holoworld. On September 17, 1998,
the Virginia Division of Securities issued a letter offering terms of
settlement, where by Holoworld, Inc. agreed to an injunction to make future
offers and sales of securities to raise proceeds (other than those for
rescission or exchange of securities) in the future except in conformity with
the state and federal laws.
Alabama. On September 30, 1998, the Alabama Securities Commission issued a
Cease and Desist Order (the "Alabama Order") to Holocor, LLC. The Alabama Order
recited that the application filed on behalf of Holocor for a Limited Offering
Exemption pursuant to Regulation D, Rule 506 was deficient because Holocor had
failed to concurrently file a Consent to Service of Process, and because it
failed to identify any agents of the issuer receiving remuneration in its
Form D. Holocor is in the process of correcting the deficiencies.
U.S. Securities and Exchange Commission. On November 2, 1998, the United
States Securities and Exchange Commission (the "SEC") issued an inquiry
letter pursuant to its authority under Section 20 of the Securities Act of
1933 and Section 21 of the Securities Exchange Act of 1934, requesting
Holoworld to supply information voluntarily to the SEC. Holoworld has fully
cooperated with the investigation to date and intends to fully comply with
the inquiry in the future.
Montana. On November 24, 2000, the State Auditor's Office of the Montana
Securities Department, filed a notice of proposed agency action and
opportunity for hearing and a temporary cease and desist order (the "Montana
Action"). The Montana Action is against Holoz2, Holocor LLC, Alisocor LLC,
Holoworld Inc., and Xxxxxx X. Xxxxxx, among others (the "Respondents").
The Respondents have engaged in a dialogue with the State of Montana in order
to fashion an appropriate rescission offer to all Montana residents who
invested in Holoworld, and to provide adequate disclosures about Holoworld
(through this Proxy Statement) for the Montana investors to make a decision
whether or not to elect rescission. The Respondents have voluntarily provided
requested information to the State of Montana, and plan to work with the State
of Montana to resolve this matter without the need of an administrative
hearing.
Idaho On December 5, 2000 the State of Idaho Department of Finance Securties
Bureau sent an investigation letter to Xxxxxx Xxxxxx requesting information
concerning the solicitation of Idaho residents to invest in Holoworld Inc.
Holoworld has begun a dialogue with the State of Idaho in order to attempt to
resolve this matter without an action being filed. Holoworld has voluntarily
provided requested information to the State of Idaho and plans to work with
the State of Idaho fashion an appropriate rescission offer to all Idaho
residents who invested in Holoworld, and to provide adequate disclosures about
Holoworld (through this Proxy Statement) for the Idaho investors to make a
decision whether or not to elect rescission.
Alisocor LLC
Alisocor LLC is currently party only to the Montana Action listed above.
SCHEDULE 2.06
TO ASSET PURCHASE AGREEMENT
TAX RETURNS
None
SCHEDULE 2.09
TO ASSET PURCHASE AGREEMENT
DIRECTORS AND OFFICERS
OF SELLER
HOLOWORLD, INC.
Directors: .................................Xxxxxx Xxxxxx
Zara Haider
Officers:
President, CEO, and Treasurer...............Xxxxxx Xxxxxx
Vice President and Secretary................Zara Haider
ALISOCOR, LLC
Managing Member.............................Xxxxxx Xxxxxx
SCHEDULE 2.10
TO ASSET PURCHASE AGREEMENT
EMPLOYEE AND LABOR MATTERS
None
SCHEDULE 2.12
TO ASSET PURCHASE AGREEMENT
TRADEMARKS
Holoworld(TM)
SCHEDULE 3.04(b)
TO ASSET PURCHASE AGREEMENT
HRII INSIDERS
HRII INSIDER NUMBER OF SHARES
FLS, LLC 333
Xxx X. Xxxxxx 6,920
Xxxxxx Xxxx 16,600
Xxxxxxxx Xxxxx 11,000
Xxxx Xxxx 10,000
Xxx Xxxxx 11,000
Xxxx X. Xxxx 213,367
ZCL, LLC 30,000
NewBridge Capital, Inc. 50,060
SCHEDULE 3.11
TO ASSET PURCHASE AGREEMENT
DIRECTORS AND OFFICERS
OF HRII AND PURCHASER
HRII:
XXXX INDUSTRIES, INC.
Directors:..................................Xxx X. Xxxxxx
Officers:
President, Treasurer and Secretary:.........Xxx X. Xxxxxx
PURCHASER:
HOLOWORLD ACQUISITION CORPORATION
Directors:..................................Xxx X. Xxxxxx
Officers:
President, Treasurer and Secretary:.........Xxx X. Xxxxxx
EXHIBIT A
TO ASSET PURCHASE AGREEMENT
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS:
That, HOLOWORLD, INC., a Delaware corporation, and ALISOCOR, LLC, a Califonia
limited liability company (collectively the "Seller"), for good and valuable
consideration paid to it by XXXX INDUSTRIES, INC., a Nevada corporation
("HRII"), and HOLOWORLD ACQUISITION CORPORATION, a Nevada corporation, (the
"Purchaser"), pursuant to an Agreement dated as of December 5, 2000, by and
between the Seller, the Purchaser, and HRII (the "Agreement"), and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged by the Seller, does hereby sell to, and assign, transfer, convey
and deliver unto Purchaser, its successors and assigns, all of its right,
title and interest in and to the Acquired Assets (as such term is defined in
the Agreement), free and clear of any liens, claims, charges, or encumbrances
of every kind or nature.
TO HAVE AND TO HOLD, UNTO THE PURCHASER, ITS SUCCESSORS AND ASSIGNS,
FOREVER.
The Seller hereby authorizes the Purchaser and HRII to take any appropriate
action to protect the right, title and interest hereby conveyed in connection
with any of the Acquired Assets hereby transferred, conveyed and delivered to
the Purchaser and HRII in the name of the Seller subject to the terms of the
Agreement.
This Xxxx of Sale, and the covenants and agreements contained herein, shall
be binding upon the Seller and its successors and assigns, and shall inure to
the benefit of the Purchaser, HRII and their successors and assigns.
[Signatures on following page]
IN WITNESS WHEREOF, the Seller has caused this Xxxx of Sale to be
duly executed and delivered as of the 7th day of March, 2001.
THE SELLER:
HOLOWORLD, INC. ATTEST:
By: /s/ Xxxxxx Xxxxxx By: /s/ Zara Haider
------------- -----------
Name: Xxxxxx Xxxxxx Name: Zara Haider
Title: President Title: Secretary
HRII:
XXXX INDUSTRIES, INC. ATTEST:
By: /s/ Xxxx X. Xxxx By: /s/ Xxx X. Xxxxxx
------------ -------------
Name: Xxxx X. Xxxx Name: Xxx X. Xxxxxx
Title: President Title: Secretary
THE PURCHASER:
HOLOWORLD ACQUISITION CORPORATION ATTEST:
By: /s/ Xxx X. Xxxxxx By: /s/ Xxx X. Xxxxxx
------------- -------------
Name: Xxx X. Xxxxxx Name: Xxx X. Xxxxxx
Title: President Title: Secretary
EXHIBIT B
TO ASSET PURCHASE AGREEMENT
INSTRUMENT OF
ASSIGNMENT AND ASSUMPTION
A. ASSIGNMENT OF TRANSFERRED RIGHTS.
KNOW ALL MEN BY THESE PRESENTS that HOLOWORLD, INC., a California corporaion,
and ALISOCOR, LLC, a California limited liability company (collectively, the
"Transferor"), for good and valuable consideration to the Transferor in hand
paid (receipt and sufficiency of which is hereby acknowledged), pursuant to
an Asset Purchase Agreement (the "Agreement") dated as of December 5, 2000
by and among the Transferor, and XXXX INDUSTRIES, INC. , a Nevada corporation
(the "Transferee"), do each hereby grant, convey, assign, transfer and deliver
unto the Transferee, its successors and asigns, to have and to hold forever,
all of their respective rights, title and interests as of the date hereof,
in and to the following assets (the "Transferred Rights") of the Transferor
to be conveyed, assigned, transferred and delivered unto the Transferee
pursuant to the Agreement (capitalized terms used herein but not otherwise
defined shall have the respective meanings ascribed to them in the Agreement):
1. Accounts Receivable. All trade and other accounts receivable owned
by the Transferor up to and including the Closing Date.
2. Contract Rights and Claims. All claims, charges, choses in action,
defenses and other rights of the Transferor under contracts, leases,
agreements, arrangements or undertakings of every kind and descriptionand
with any person, and all deposits, right s, debts, judgments, refunds,
adjustments and other claims of any kind, owned by the Transferor up to and
including the Closing Date.
3. Prepaid Expenses. All prepaid expenses of any kind in the
Transferor's favor up to and including the Closing Date.
4. Intellectual Property and Other Intangible Rights. All intellectual
property rights, trademarks, trade names, service marks, service names,
copyrights, applications for any of the foregoing, general intangible rights,
customer lists, concepts, story lines, schemes, blueprints, renderings, trade
secrets and other proprietary rights of every kind and description owned by
the Transferor up to and including the Closing Date.
The Transferor covenants that it will from time to time make, executed and
deliver such instruments, acts, consents and assurances as the Transferee
may reasonably request to more effectively convey, transfer to and vest in the
Transferee all of the Transferor's right, title and interest in and to the
Assets listed herein.
B. ASSUMPTION OF TRANSFERRED RIGHTS.
The Transferee hereby agrees with and covenants to the Transferor,
and each of them, as follows, with respect to the Transferred Rights:
1. The Transferee hereby assumes and agrees to pay, discharge, perform
and be bound by all of the duties, obligations and liabilities of the
Transferor, as applicable, associated with each Transferred Right transferred
pursuant to the Agreement and this Instrument of Assignment and Assumption;
2. nothing contained herein shall require the Transferee to perform,
pay o discharge any liabilities or obligations expressly assumed hereunder,
so long as the Transferee shall in good faith contest or cause to be
contested the amount or validity thereof, and the Transferor shall cooperate
with the Transferee in so contesting such claims to the extent reasonably
requested by the Transferee;
3. other than as specifically set forth in this Instrument of Assignme
nt ad Assumption, the Transferee assumes no liability or obligation of any
kind, character or description of the Transferor except as otherwise
contemplated by the Agreement; and
4. this Instrument of Assumption shall inure to the benefit of and be
binding upon the parties hereto, and their respective successors and assigns.
IN WITNESS WHEREOF, this Instrument of Assignment and Assumption has been
executed and delivered by the duly authorized representatives of each party
hereto as of the 7th day of March, 2001.
THE TRANSFEROR:
HOLOWORLD, INC. ATTEST:
By: /s/ Xxxxxx Xxxxxx By: /s/ Zara Haider
------------- -----------
Name: Xxxxxx Xxxxxx Name: Zara Haider
Title: President Title: Secretary
ALISOCOR, LLC WITNESS:
By: /s/ Xxxxxx Xxxxxx
------------- -----------
Name: Xxxxxx Xxxxxx
Title: Managing Member
THE TRANSFEREE:
XXXX INDUSTRIES, INC. ATTEST:
By: /s/ Xxx X. Xxxxxx By: /s/ Xxx X. Xxxxxx
------------- -------------
Name: Xxx X. Xxxxxx Name: Xxx X. Xxxxxx
Title: President Title: Secretary
EXHIBIT C-1
TO ASSET PURCHASE AGREEMENT
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT ("Agreement") is made effective as of the 7th day of
March 2001, by and between NewBridge Capital Inc., a Nevada Corporation
("Advisor") and Xxxx Industries, Inc., a Nevada corporation (the "Company").
WHEREAS, Advisor and Advisor's Personnel (as defined below) have experience
in evaluating and effecting mergers and acquisitions, supervising corporate
management, and in performing general administrative duties for publicly-held
companies and development stage investment ventures; and,
WHEREAS, the Company desires to retain Advisor to advise and assist the Company
in restructuring and in its continued development on the terms and conditions
set forth below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Company and
Advisor agree as follows:
1. Engagement. The Company hereby retains Advisor to perform the
following (collectively, the "Services"):
(a) act as exclusive financial advisor to the Company in connection with
the proposed restructuring of the Company and its subsidiaries whereby Advisor
will, upon the Company's request, assist the Company and its professional
advisors in (i) the preparation of documentation, (ii) merger, acquisition
and settlement negotiations, and (iii) the preparation and filing with the
Securities and Exchange Commission (the "Commission") of disclosure statements
pursuant to the Securities Act of 1933, as amended (the "Securities Act")
or the Securities Exchange Act of 1934 (the "Exchange Act" ) or other
activities as may be mutually agreed between Advisor and the Company;
(b) provide assistance to the Company in its understanding of and
response to market conditions;
(c) introduce the Company and its professional advisors to market make
rs, underwriters, and others in the securities industry who would be of use
to the Company;
(d) act as a financial advisor in connection with such assistance as the
Company may request from time to time in connection with (i) the purchase of
other businesses ("Business Opportunities"), or joint ventures or mergers
between the Company and an enterprise or individual currently not an Affiliate
of the Company, as that term is defined in Regulations S-X of the Exchange
Act (collectively, a "Merger Transaction"), and (ii) the potential sale of
all or a portion of the Company's assets (a "Sale Transaction") ; and
(e) in the performance of its duties hereunder, Advisor will, and will
cause its Advisor's Personnel to, comply with all applicable laws, rules and
regulations, and diligently perform the Services in good faith, and in the
best interests of the Company.
2. Information on the Company
In connection with Advisor's activities hereunder, the Company will furnish
Advisor and its counsel with all material and information regarding the
business and financial condition of the Company as may be necessary for the
Advisor to perform the Services as contemplated herein (all such information
so furnished being referred to herein as the "Information"). The Company
recognizes and acknowledges that Advisor (a) will use and rely solely on
the Information, and on information available from generally recognized public
sources, in performing the Services contemplated by this Agreement without
having inependently verified the same; (b) does not assume responsibility for
the accuracy or completeness of the Information; (c) will not make an
appraisal of any assets or liabilities of the Company; and (d) retains the
right to continue to conduct due diligence on the term of this Agreement.
3. Use of Advice
Except as required by applicable state or federal securities rules and
reguations, no statements made or advice rendered by Advisor in connection
with the Services performed by the Advisor pursuant to this Agreement will
be quoted by, nor will any such statements or advice be referred to, in any
report, document, release or other communication, whether written or oral,
prepared, issued or transmitted by the Company or any person or corporation
controlling , controlled by or under common control with, the Company or any
director, officer, employee, agent or representative of any such person,
without the prior written authorization of Advisor, which may be given or
wihheld in its sole discretion. However, the Company may disclose or refer
to such advice or statements without being required to obtain consent to
the extent required by law (in which case the appropriate party shall so
advise Advisor in writing prior to such disclosure or use and shall consult
with Advisor with respect to the form and timing of disclosure).
4. Term
Unless terminated earlier pursuant to paragraph 14 below, this Agreement
shall have an initial term of two (2) years (the "Primary Term"), with an
effective date retroactive to the date the Services were firstperformed
by Advisor, which was on or about December 1, 2000 (the "Effective Date").
At the conclusion of the Primary Term this Agreement will automatically be
extended on an annual basis (the "Extension Period") unless Advisor or the
Company shall serve written notice on the other party terminating the
Agreement. Any notice to terminate given hereunder shall be in writing and
shall be delivered at least thirty (30) days prior to the end of the Primary
Term or any subsequent Extension Period.
5. Time and Effort of Advisor
Advisor shall allocate such time and personnel acceptable to the Company
(the "Advisor's Personnel") as it deems reasonably necessary to provide the
Services. The particular amount of time may vary from day to day or week to
week. Except as otherwise agreed, Advisor's monthly statement identifying,
in general, tasks performed for the Company shall be conclusive evidence that
the specific services referenced therein have been performed. Additionally,
in the absence of willful misfeasance, bad faith, negligence or reckless
disregard for the obligations or duties hereunder by Advisor, or a breach of
any material provision of this Agreement, neither Advisor nor Advisor's
Personnel shall be liable to the Company or any of its shareholders for any
act or omission in the course of or connected with rendering the Services,
including but not limited to losses that may be sustained in any corporate
act involved in respect of any restructuring, Sale Transaction or Merger
Transaction with a Business Opportunity undertaken by the Company as a result
of introductions or advice provided by Advisor or Advisor's Personnel.
6. Compensation
The Company agrees to pay Advisor a fee for the Services provided by Advisor
pursuant to this Agreement, as follows:
(a) Advisory Fee. The Company shall pay Advisor a monthly fee
("Advisory Fee") equal to Three Thousand Five Hundred Dollars ($3,500),
payable monthly in advance in cash.
7. Indemnification
In partial consideration of the Services to be rendered hereunder the Company
shall indemnify Advisor and its officers, directors, and agents, (each an
"Advisor Indemnified Person") against any action brought against Advisor or
any Advisor Indemnified Person by the Company, any shareholder, creditor or
party related to the Company in connection with this engagement, the
Restructuring, or any merger or transaction affected by Advisor unless such
action or proceeding is based solely upon willful misconduct or the bad faith
or gross negligence of Advisor or any such Indemnified Person.
Similarly, Advisor shall indemnify the Company and its officers, director, and
agents, (each a "Company Indemnified Person") against any action brought
against the Company, or any Company Indemnified Person,in connection with or
arising out of this Agreement, or for willful malfeasance, bad faith,
negligence or reckless disregard of the Advisor's duties and obligations
hereunder.
8. Costs and Expenses
All third party and out-of-pocket expenses incurred by Advisor in the
performance of the Services shall be paid by the Company, or Advisor shall
be reimbursed if paid by Advisor on behalf of the Company, within ten (10)
days of receipt of written notice by Advisor; provided, however, that the
Company must approve in advance all such expenses.
9. Place of Services
The Services provided by Advisor or Advisor's Personnel hereunder will be
performed at Advisor's offices except as otherwise mutually agreed by Advisor
and the Company.
10. Independent Contractor
Advisor and Advisor's Personnel will act as independent contractors in the
performance of its duties under this Agreement. Accordingly, Advisor will be
responsible for payment of all federal, state, and local taxes on compensation
paid under this Agreement, including income and social security taxes,
unemployment insurance, and any other taxes due relative to Advisor's
Personnel, and any and all business license fees as may be required. This
Agreement neither expressly nor implicitly creates a relationship of principal
and agent, or employee and employer, between Advisor's Personnel and the
Company. Neither Advisor nor Advisor's Personnel are authorized to enter into
any agreements on behalf of the Company. The Company expressly retains the
right to approve, in its sole discretion, each Business Opportunity introduced
by Advisor, and to make all final decisions with respect to affecting a
transaction on any Business Opportunity.
11. Rejected Business Opportunity
If, during the Primary Term of this Agreement or any Extension Period, the
Company elects not to proceed to acquire, participate or invest in any
Business Opportunity identified and/or selected by Advisor, such Business
Opportunity shall revert back to and become proprietary to Advisor, and
Advisor shall be entitled to acquire or broker the sale or investment in such
rejected Business Opportunity for its own account, or submit such assets or
Business Opportunity elsewhere. In such event, Advisor shall be entitled to
any and all profits or fees resulting from Advisor's purchase, referral or
placement of any such rejected Business Opportunity, or the Company's
subsequent purchase or financing with such Business Opportunity if in
circumvention of Advisor. In addition, Advisor shall reimburse the Company
for any moneys that have been expended on such Business Opportunity that
the Advisor acquires or brokers for its own account or submits elsewhere.
12. No Agency Express or Implied
This Agreement is not intended to result in any partnership, employment,
agency, joint venture or other relationship between the parties other than
that of independent contractors. Other than as expressly set forth in this
Agreement, no party shall have the right, by virtue of this Agreement or
otherwise, to bind the other party to any obligation, charge, or other
liability whatsoever, nor shall either party represent to any person or
business organization that it has such right or that any other relationship
between the parties exists other than a contract for the express purposes
set forth herein.
13. Termination
The Company and Advisor may terminate this Agreement prior to the expiration
of the Primary Term upon the mutual written consent of the parties. Failing
to have mutual consent, without prejudice to any other remedy to which the
terminating party may be entitled, if any, either party may terminate this
Agreement with thirty (30) days written notice under the following conditions:
(a) By the Company.
(i) If during the Primary Term of this Agreement or any Extension Period,
Advisor is unable to provide the Services as set forth herein for thirty (30)
consecutive business days because of illness, accident, or other incapacity of
Advisor's Personnel;
(ii) If Advisor willfully breaches or neglects the duties required or
reasonably requested to be performed hereunder; or
(iii) In the event of any other breach of a material term of this
Agreement by Advisor or Advisor's Personnel; or
(iv) If the Advisor institutes, makes a general assignment for the
benefit of creditors, has instituted against it any bankruptcy proceeding
for reorganization or for rearrangement of its financial affairs, files a
petition in a court of bankruptcy, or is adjudicated a bankrupt; or,
(v) If any of the disclosures made herein or subsequent hereto by the
Advior to the Company are determined to be materially false or misleading,
or if the Advisor is convicted of or enters a plea of guilty ornolo contendere
to a felony or misdemeanor involving fraud, embezzlement, theft or dishonesty
or other criminal conduct.
(b) By Advisor.
(i) If the Company breaches this Agreement or fails to make any payments
or provide information required hereunder; or,
(ii) If the Company ceases business, or sells a controlling interest to
a third party, or agrees to a consolidation or merger of itself with
or into another corporation, or enters into such a transaction outside of the
scope of this Agreement, or sells substantially all of its assets to another
corporation, entity or individual outside of the scope of this Agreement ; or,
(iii) If the Company has a receiver appointed for its business or assets,
or otherwise becomes insolvent or unable to timely satisfy its obligations in
the ordinary course of business, including but not limited to the obligation
to pay the Advisory Fee; or,
(iv) If the Company institutes, makes a general assignment for the
benefit of creditors, has instituted against it any bankruptcy proceeding
for reorganization for rearrangement of its financial affairs, files a
petition in a court of bankruptcy, or is adjudicated a bankrupt; or,
(v) If any of the disclosures made herein or subsequent hereto by the
Compny to Advisor are determined to be materially false or misleading.
In the event Advisor elects to terminate without cause or this Agreement if
terminated prior to the expiration of the Primary Term or any Extension Period
by mutual written agreement, or by the Company for thereasons set forth in
A(i) and (ii) above, the Company shall only be responsible to pay Advisor for
unreimbursed expenses, the Advisory Fee accrued up to and including the
effective date of termination. If this Agreement is terminated by the
Company for any other reason, or by Advisor for reasons set forth in B(i)
through (v) above, Advisor shall be entitled to any outstanding unpaid
portion of rembursable expenses, if any, and any unpaid Advisory Fee for the
remainder of the unexpired portion of the applicable term (Primary Term or
Extension Period) of the Agreement.
14. Confidentiality; Non-Circumvention; Non-Competition; Non-Solicitation
The Company and Advisor acknowledge and agree that non-public information
concerning each party's plans, strategies, and overall business operations,
and the identity and sources of each party's Business Opportunities, is highly
confidential and proprietary to each party ("Confidential Information").
The parties acknowledge that such Confidential Information represents a
legitimate, valuable, and protectable interest of each party and gives each
party a competitive advantage, which would otherwise be lost if the
Confidential Information was improperly disclosed. The parties further
acknowledges that unauthorized or improper disclosure or use of Confidential
Information would cause each party irreparable harm and injury. The parties
therefore agree that, for a period of two (2) years following the later of
the date hereof or the termination of this Agreement, neither party will
disclose or threaten to disclose the Confidential Information, except as
required by law, to any person, partnership, company, corporation or to any
other business or governmental organization or agency, as the case may be,
without the express written consent of the other party. The parties further
agree not to use or threaten to use the Confidential Information in an way
contrary to the interests of Advisor. The parties further agrees that all
ownership rights to the Confidential Information are retained by each
respective party, and that no right of ownership shall pass to the other
party by virtue of this Agreement.
Advisor hereby agrees for itself, and shall obtain the agreement of each
Advisor's Personnel prior to permitting such person to provide Services to
the Company hereunder, that it (or such person) shall not, directly or
indirectly, during the Term of this Agreement and for a period of one (1)
year thereafter, engage in, or provide services to or act as an owner,
manager, advisor, director, partner, joint venturer or in any other capacity
to any person which engages in or proposes to engage in, the business of
owning, operating or managing themed restaurants which do or would be
reasonably expected to copete with the Company. In addition, neither Advisor
nor any of such other persons shall, directly or indirectly, use any
Confidential Information for any such purpose, nor solicit any employee,
vendor, customer or other business relationship away from the Company for any
purpose at any time.
15. Remedies
Advisor and the Company acknowledge that in the event of a breach of this
agreement by either party, money damages may be inadequate and the
non-breaching party may have no adequate remedy at law. Accordingly, in such
event, such rights or obligations shall be enforceable in a court of equity
by a decree of specific performance or other injunctive or equitable relief.
Such remedy, however, shall be cumulative and non-exclusive and shall be
in addition to any other remedy to which the parties may be entitled.
16. Miscellaneous
(a) Subsequent Events. Advisor and the Company each agree to notify the
other party if, subsequent to the date of this Agreement, either party incurs
obligations which could compromise its efforts and obligations under this
Agreement.
(b) Amendment. This Agreement may be amended or modified at any time and
in any manner only by an instrument in writing executed by the parties hereto.
(c) Further Actions and Assurances. At any time and from time to time ,
each party agrees, at its or their expense, to take actions and to execute and
deliver documents as may be reasonably necessary to effectuate the purposes
of this Agreement.
(d) Waiver. Any failure of any party to this Agreement to comply with
any of its obligations, agreements, or conditions hereunder may be waived in
writing by the party to whom such compliance is owed. The failure of any
party to this Agreement to enforce at any time any of the provisions of this
Agreement shall in no way be construed to be a waiver of any such provision
or a waiver of the right of such party thereafter to enforce each and every
such provision. No waiver of any breach of or non-compliance with this
Agreement shall be held to be a waiver of any other or subsequent breach or
non-compliance.
(e) Assignment. Neither this Agreement nor any right created by it shall
be assignable by either party without the prior written consent of the other.
(f) Notices. Any notice or other communication required or permitted
by this Agreement must be in writing and shall be deemed to be properl
y given when delivered in person to an officer of the other party, when
deposited in the United States mails for transmittal by certified or
registered mail, postage prepaid, or when deposited with a public telegraph
company for transmittal, or when sent by facsimile transmission charges
prepared, provided that the communication is addressed:
(i) In the case of the Company:
Xxxx Industries, Inc.
c/o Holoworld Inc.
00000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which does not constitute notice) to:
Feldhake, August & Xxxxxxxxx
00000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. August, Esq.
(ii) In the case of Advisor:
NewBridge Capital Inc.
0000 XxxXxxxxx Xx., Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copy to:
Xx. Xxxxxxx X. Xxxx
Xxxxxx & Weed
0000 XxxXxxxxx Xxxxx, Xxxxx #000
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
or to such other person or address designated in writing by the
Company or Advisor to receive notice.
(g) Headings. The section and subsection headings in this Agreement a
re iserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California applicable to the
performance and enforcement of contracts made within such state, without
giving effect to the law of conflicts of laws applied thereby. In the event
that any dispute shall occur between the parties arising out of or resulting
from the construction, interpretation, enforcement or any other aspect of this
Agreement, the parties hereby agree to accept the exclusive jurisdiction of
the Courts of the State of California sitting in and for the County of Orange.
In the event either party shall be forced to bring any legal action to protect
or defend its rights hereunder, then the prevailing party in such proceeding
shall be entitled to reimbursement from the non-prevailing party of all fees,
costs and other expenses (including, without limitation, the reasonable
expenses of its attorneys) in bringing or defending against such action.
(i) Binding Effect. This Agreement shall be binding upon the parties
hereof and insure to the benefit of the parties, their respective heirs
, administrators, executors, successors,
and assigns.
(j) Entire Agreement. This Agreement contains the entire agreement
between the parties hereto and supersedes any and all prior agreements,
arrangements, or understandings between the parties relating to the subject
matter of this Agreement. No oral understandings, statements, promises, or
inducements contrary to the terms of this Agreement exist. No representations,
warranties, covenants, or conditions, express or implied, other than as set
forth herein, have been made by any party.
(k) Severability. If any part of this Agreement is deemed to be
unenforceble the balance of the Agreement shall remain in full force and
effect.
(l) Counterparts. A facsimile, telecopy, or other reproduction of this
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument, by one or more parties hereto and such executed
copy may be delivered by facsimile of similar instantaneous electronic
transmission device pursuant to which the signature of or on behalf of such
party can be seen. In this event, such execution and delivery shall be
considered valid, binding and effective for all purposes. At the request of
any party hereto, all parties agree to execute an original of this Agreement
as well as any facsimile, telecopy or other reproduction hereof.
(m) Time is of the Essence. Time is of the essence of this Agreement
and for each and every provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
above written.
NEWBRIDGE CAPITAL INC. ATTEST:
By: /s/ Xxxx X. Xxxx By: /s/ Xxx X. Xxxxxx
------------ -------------
Name: Xxxx X. Xxxx Name: Xxx X. Xxxxxx
Title: President Title: Secretary
XXXX INDUSTRIES, INC. ATTEST:
By: /s/ Xxxx X. Xxxx By: /s/ Xxx X. Xxxxxx
------------ -------------
Name: Xxxx X. Xxxx Name: Xxx X. Xxxxxx
Title: President Title: Secretary
EXHIBIT C-2
TO ASSET PURCHASE AGREEMENT
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT ("Agreement") is made effective as of the 7th day
of March 2001, by and between Xxxx X. Xxxx, an individual ("Advisor") and
Xxxx Industries, Inc., a Nevada corporation (the "Company").
WHEREAS, Advisor and Advisor's Personnel (as defined below) have experience
in evaluating and effecting mergers and acquisitions, supervising corporate
management, and in performing general administrative duties for publicly-held
companies and development stage investment ventures; and,
WHEREAS, the Company desires to retain Advisor to advise and assist the
Company in restructuring and in its continued development on the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Company and
Advisor agree as follows:
1. Engagement. The Company hereby retains Advisor to perform the
following (collectively, the "Services"):
(a) act as exclusive financial advisor to the Company in connection with
the proposed restructuring of the Company and its subsidiaries whereby Advisor
will, upon the Company's request, assist the Company and its professional
advisors in (i) the preparation of documentation, (ii) merger, acquisition and
settlement negotiations, and (iii) the preparation and filing with the
Securities and Exchange Commission (the "Commission") of disclosure statements
pursuant to the Securities Act of 1933, as amended (the "Securities Act") or
the Securities Exchange Act of 1934 (the "Exchange Act" ) or other activities
as may be mutually agreed between Advisor and the Company;
(b) provide assistance to the Company in its understanding of and
response to market conditions;
(c) introduce the Company and its professional advisors to market make
rs, nderwriters, and others in the securities industry who would be of use
to the Company;
(d) act as a financial advisor in connection with such assistance as the
Company may request from time to time in connection with (i) the purchase of
other businesses ("Business Opportunities"), or joint ventures or mergers
between the Company and an enterprise or individual currently not an Affiliate
of the Company, as that term is defined in Regulations S-X of the Exchange
Act (collectively, a "Merger Transaction"), and (ii) the potential sale of
all or a portion of the Company's assets (a "Sale Transaction") ; and
(e) in the performance of its duties hereunder, Advisor will, and will
caus its Advisor's Personnel to, comply with all applicable laws, rules and
regulations, and diligently perform the Services in good faith, and in the
best interests of the Company.
2. Information on the Company
In connection with Advisor's activities hereunder, the Company will furnish
Advisor and its counsel with all material and information regarding the
business and financial condition of the Company as may be necessary for
the Advisor to perform the Services as contemplated herein (all such
information so furnished being referred to herein as the "Information").
The Company recognizes and acknowledges that Advisor (a) will use and rely
solely on the Information, and on information available from generally
recognized public sources, in performing the Services contemplated by this
Agreement without having inependently verified the same; (b) does not assume
responsibility for the accuracy or completeness of the Information; (c) will
not make an appraisal of any assets or liabilities of the Company; and
(d) retains the right to continue to conduct due diligence on the term of this
Agreement.
3. Use of Advice
Except as required by applicable state or federal securities rules and
reguations, no statements made or advice rendered by Advisor in connection
with the Services performed by the Advisor pursuant to this Agreement will
be quoted by, nor will any such statements or advice be referred to, in any
report, document, release or other communication, whether written or oral,
prepared, issued or transmitted by the Company or any person or corporation
controlling , controlled by or under common control with, the Company or any
director, officer, employee, agent or representative of any such person,
without the prior written authorization of Advisor, which may be given or
wihheld in its sole discretion. However, the Company may disclose or refer
to such advice or statements without being required to obtain consent to
the extent required by law (in which case the appropriate party shall so
advise Advisor in writing prior to such disclosure or use and shall consult
with Advisor with respect to the form and timing of disclosure).
4. Term
Unless terminated earlier pursuant to paragraph 14 below, this Agreement
shall have an initial term of two (2) years (the "Primary Term"), with an
effective date retroactive to the date the Services were firstperformed by
Advisor, which was on or about December 1, 2000 (the "Effective Date").
At the conclusion of the Primary Term this Agreement will automatically
be extended on an annual basis (the "Extension Period") unless Advisor or
the Company shall serve written notice on the other party terminating the
Agreement. Any notice to terminate given hereunder shall be in writing
and shall be delivered at least thirty (30) days prior to the end of the
Primary Term or any subsequent Extension Period.
5. Time and Effort of Advisor
Advisor shall allocate such time and personnel acceptable to the Company
(he "Advisor's Personnel") as it deems reasonably necessary to provide the
Services. The particular amount of time may vary from day to day or week
to week. Except as otherwise agreed, Advisor's monthly statement
identifying, in general, tasks performed for the Company shall be conclusive
evidence that the specific services referenced therein have been performed.
Additionally, in the absence of willful misfeasance, bad faith, negligence
or reckless disr
egard for the obligations or duties hereunder by Advisor, or a breach of
any material provision of this Agreement, neither Advisor nor Advisor's
Personnel shall be liable to the Company or any of its shareholders for
any act or omission in the course of or connected with rendering the
Services, including but not limited to losses that may be sustained in
any corporate act involved in respect of any restructuring, Sale
Transaction or Merger Transaction with a Business Opportunity undertaken
by the Company as a result of introductions or advice provided by Advisor
or Advisor's Personnel.
6. Compensation
The Company agrees to pay Advisor a fee for the Services provided by
Advisor pursuant to this Agreement, as follows:
(a) Advisory Fee. The Company shall pay Advisor a monthly fee
("Advisory fee") equal to One Thousand Five Hundred Dollars ($1,500),
payable monthly in advance in cash.
7. Indemnification
In partial consideration of the Services to be rendered hereunder the
Compny shall indemnify Advisor and its officers, directors, and agents,
(each an "Advisor Indemnified Person") against any action brought against
Advisor or any Advisor Indemnified Person by the Company, any shareholder,
creditor or party related to the Company in connection with this
engagement, the Restructuring, or any merger or transaction affected by
Advisor unless such action or proceeding is based solely upon willful
misconduct or the bad faith or gross negligence of Advisor or any such
Indemnified Person.
Similarly, Advisor shall indemnify the Company and its officers, directors
and agents, (each a "Company Indemnified Person") against any action
brought against the Company, or any Company Indemnified Person, in
connection with or arising out of this Agreement, or for willful
malfeasance, bad faith, negligence or reckless disregard of the Advisor's
duties and obligations hereunder.
8. Costs and Expenses
All third party and out-of-pocket expenses incurred by Advisor in the
perfrmance of the Services shall be paid by the Company, or Advisor shall
be reimbursed if paid by Advisor on behalf of the Company, within ten
(10) days of receipt of written notice by Advisor; provided, however,
that the Company must approve in advance all such expenses.
9. Place of Services
The Services provided by Advisor or Advisor's Personnel hereunder will
be prformed at Advisor's offices except as otherwise mutually agreed by
Advisor and the Company.
10. Independent Contractor
Advisor and Advisor's Personnel will act as independent contractors in
the erformance of its duties under this Agreement. Accordingly, Advisor
will be responsible for payment of all federal, state, and local taxes
on compensation paid under this Agreement, including income and social
security taxes, unemployment insurance, and any other taxes due relative
to Advisor's Personnel, and any and all business license fees as may be
required. This Agreement neither expressly nor implicitly creates a
relationship of principal and agent, or employee and employer, between
Advisor's Personnel and the Company. Neither Advisor nor Advisor's
Personnel are authorized to enter into any agreements on behalf of the
Company. The Company expressly retains the right to approve, in its
sole discretion, each Business Opportunity introduced by Advisor, and
to make all final decisions with respect to affecting a transaction on
any Business Opportunity.
11. Rejected Business Opportunity
If, during the Primary Term of this Agreement or any Extension Period,
the ompany elects not to proceed to acquire, participate or invest in
any Business Opportunity identified and/or selected by Advisor, such
Business Opportunity shall revert back to and become proprietary to
Advisor, and Advisor shall be entitled to acquire or broker the sale
or investment in such rejected Business Opportunity for its own account,
or submit such assets or Business Opportunity elsewhere. In such event,
Advisor shall be entitled to any and all profits or fees resulting from
Advisor's purchase, referral or placement of any such rejected Business
Opportunity, or the Company's subsequent purchase or financing with such
Business Opportunity if in circumvention of Advisor. In addition,
Advisor shall reimburse the Company for any moneys that have been
expended on such Business Opportunity that the Advisor acquires or
brokers for its own account or submits elsewhere.
12. No Agency Express or Implied
This Agreement is not intended to result in any partnership, employment,
agency, joint venture or other relationship between the parties other
than that of independent contractors. Other than as expressly set forth
in this Agreement, no party shall have the right, by virtue of this
Agreement or otherwise, to bind the other party to any obligation,
charge, or other liability whatsoever, nor shall either party represent
to any person or business organization that it has such right or that
any other relationship between the parties exists other than a contract
for the express purposes set forth herein.
13. Termination
The Company and Advisor may terminate this Agreement prior to the
expiration of the Primary Term upon the mutual written consent of the
parties. Failing to have mutual consent, without prejudice to any other
remedy to which the terminating party may be entitled, if any, either
party may terminate this Agreement with thirty (30) days written notice
under the following conditions:
(a) By the Company.
(i) If during the Primary Term of this Agreement or any Extension
Period, Advisor is unable to provide the Services as set forth herein for
thirty (30) consecutive business days because of illness, accident, or
other incapacity of Advisor's Personnel;
(ii) If Advisor willfully breaches or neglects the duties required
or reasonably requested to be performed hereunder; or
(iii) In the event of any other breach of a material term of this
Agreement by Advisor or Advisor's Personnel; or
(iv) If the Advisor institutes, makes a general assignment for the
benefit of creditors, has instituted against it any bankruptcy proceeding
for reorganization or for rearrangement of its financial affairs, file
s a petition in a court of bankruptcy, or is adjudicated a bankrupt;
or,
(v) If any of the disclosures made herein or subsequent hereto by
the Advisor to the Company are determined to be materially false or
misleading, or if the Advisor is convicted of or enters a plea of guilty
or nolo contendere to a felony or misdemeanor involving fraud, embezzlement,
theft or dishonesty or other criminal conduct.
(b) By Advisor.
(i) If the Company breaches this Agreement or fails to make any
payments or provide information required hereunder; or,
(ii) If the Company ceases business, or sells a controlling interest
to a xxxx party, or agrees to a consolidation or merger of itself with
or into another corporation, or enters into such a transaction outside
of the scope of this Agreement, or sells substantially all of its assets
to another corporation, entity or individual outside of the scope of this
Agreement; or,
(iii) If the Company has a receiver appointed for its business or
assets, or otherwise becomes insolvent or unable to timely satisfy its
obligations in the ordinary course of business, including but not limited
to the obligation to pay the Advisory Fee; or,
(iv) If the Company institutes, makes a general assignment for the
benefit of creditors, has instituted against it any bankruptcy proceeding
for reorganization for rearrangement of its financial affairs, files a
petition in a court of bankruptcy, or is adjudicated a bankrupt; or,
(v) If any of the disclosures made herein or subsequent hereto by the
Compny to Advisor are determined to be materially false or misleading.
In the event Advisor elects to terminate without cause or this Agreement
is terminated prior to the expiration of the Primary Term or any Extension
Period by mutual written agreement, or by the Company for thereasons set
forth in A(i) and (ii) above, the Company shall only be responsible to pay
Advisor for unreimbursed expenses, the Advisory Fee accrued up to and
including the effective date of termination. If this Agreement is
terminated by the Company for any other reason, or by Advisor for reasons
set forth in B(i) through (v) above, Advisor shall be entitled to any
outstanding unpaid portion of rembursable expenses, if any, and any
unpaid Advisory Fee for the remainder of the unexpired portion of the
applicable term (Primary Term or Extension Period) of the Agreement.
14. Confidentiality; Non-Circumvention; Non-Competition;
Non-Solicitation
The Company and Advisor acknowledge and agree that non-public information
concerning each party's plans, strategies, and overall business operations,
and the identity and sources of each party's Business Opportunities, is
highly confidential and proprietary to each party ("Confidential
Information").
The parties acknowledge that such Confidential Information represents
a leitimate, valuable, and protectable interest of each party and gives
each party a competitive advantage, which would otherwise be lost if the
Confidential Information was improperly disclosed. The parties further
acknowledges that unauthorized or improper disclosure or use of
Confidential Information would cause each party irreparable harm and
injury. The parties therefore agree that, for a period of two (2) years
following the later of the date hereof or the termination of this
Agreement, neither party will disclose or threaten to disclose the
Confidential Information, except as required by law, to any person,
partnership, company, corporation or to any other business or govern-
mental organization or agency, as the case may be, without the express
written consent of the other party. The parties further agree not to
use or threaten to use the Confidential Information in an way contrary
to the interests of Advisor. The parties further agrees that all
ownership rights to the Confidential Information are retained by each
respective party, and that no right of ownership shall pass to the
other party by virtue of this Agreement.
Advisor hereby agrees for itself, and shall obtain the agreement of each
Avisor's Personnel prior to permitting such person to provide Services
to the Company hereunder, that it (or such person) shall not, directly
or indirectly, during the Term of this Agreement and for a period of one
(1) year thereafter, engage in, or provide services to or act as an
owner, manager, advisor, director, partner, joint venturer or in any
other capacity to any person which engages in or proposes to engage in,
the business of owning, operating or managing themed restaurants which
do or would be reasonably expected to compete with the Company.
In addition, neither Advisor nor any of such other persons shall,
directly or indirectly, use any Confidential Information for any such
purpose, nor solicit any employee, vendor, customer or other business
relationship away from the Company for any purpose at any time.
15. Remedies
Advisor and the Company acknowledge that in the event of a breach of this
greement by either party, money damages may be inadequate and the non-
breaching party may have no adequate remedy at law. Accordingly,in such
event, such rights or obligations shall be enforceable in a court of
equity by a decree of specific performance or other injunctive or
equitable relief. Such remedy, however, shall be cumulative and non-
exclusive and shall be in addition to any other remedy to which the
parties may be entitled.
16. Miscellaneous
(a) Subsequent Events. Advisor and the Company each agree to notify
the oher party if, subsequent to the date of this Agreement, either party
incurs obligations which could compromise its efforts and obligations under
this Agreement.
(b) Amendment. This Agreement may be amended or modified at any time
and in any manner only by an instrument in writing executed by the par
ties hereto.
(c) Further Actions and Assurances. At any time and from time to time
, eah party agrees, at its or their expense, to take actions and to execute
and deliver documents as may be reasonably necessary to effectuate the
purposes of this Agreement.
(d) Waiver. Any failure of any party to this Agreement to comply with
any f its obligations, agreements, or conditions hereunder may be waived
in writing by the party to whom such compliance is owed. The failure of
any party to this Agreement to enforce at any time any of the provisions
of this Agreement shall in no way be construed to be a waiver of any such
provision or a waiver of the right of such party thereafter to enforce each
and every such provision. No waiver of any breach of or non-compliance
with this Agreement shall be held to be a waiver of any other or subsequent
breach or non-compliance.
(e) Assignment. Neither this Agreement nor any right created by it
shall be assignable by either party without the prior written consent of
the other.
(f) Notices. Any notice or other communication required or permitted
by tis Agreement must be in writing and shall be deemed to be properly
given when delivered in person to an officer of the other party, when
deposited in the United States mails for transmittal by certified or
registered mail, postage prepaid, or when deposited with a public telegraph
company for transmittal, or when sent by facsimile transmission charges
prepared, provided that the communication is addressed:
(i) In the case of the Company:
Xxxx Industries, Inc.
c/o Holoworld Inc.
00000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which does not constitute notice) to:
Feldhake, August & Xxxxxxxxx
00000 XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. August, Esq.
(ii) In the case of Advisor:
Xx. Xxxx Xxxx
0000 XxxXxxxxx Xx., Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copy to:
Xx. Xxxxxxx X. Xxxx
Xxxxxx & Weed
0000 XxxXxxxxx Xxxxx, Xxxxx #000
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
or to such other person or address designated in writing by the
Company or Advisor to receive notice.
(g) Headings. The section and subsection headings in this
Agreement are iserted for convenience only and shall not affect in
any way the meaning or interpretation of this Agreement.
(h) Governing Law. This Agreement shall be governed by and construed
in acordance with the internal laws of the State of California applicable
to the performance and enforcement of contracts made within such state,
without giving effect to the law of conflicts of laws applied thereby.
In the event that any dispute shall occur between the parties arising
out of or resulting from the construction, interpretation, enforcement
or any other aspect of this Agreement, the parties hereby agree to accept
the exclusive jurisdiction of the Courts of the State of California
sitting in and for the County of Orange. In the event either party shall
be forced to bring ny legal action to protect or defend its rights
hereunder, then the prevailing party in such proceeding shall be entitled
to reimbursement from the non-prevailing party of all fees, costs and
other expenses (including, without limitation, the reasonable expenses of
its attorneys) in bringing or defending against such action.
(i) Binding Effect. This Agreement shall be binding upon the parties
hereo and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors, and assigns.
(j) Entire Agreement. This Agreement contains the entire agreement
between the parties hereto and supersedes any and all prior agreements,
arrangements, or understandings between the parties relating to the
subject matter of this Agreement. No oral understandings, statements,
promises, or inducements contrary to the terms of this Agreement exist.
No representations, warranties, covenants, or conditions, express or
implied, other than as set forth herein, have been made by any party.
(k) Severability. If any part of this Agreement is deemed to be
unenforceble the balance of the Agreement shall remain in full force and
effect.
(l) Counterparts. A facsimile, telecopy, or other reproduction of
this Ageement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument, by one or more parties hereto and
such executed copy may be delivered by facsimile of similar instantaneous
electronic transmission device pursuant to which the signature of or on
behalf of such party can be seen. In this event, such execution and
delivery shall be considered valid, binding and effective for all purposes.
At the request of any party hereto, all parties agree to execute an
original of this Agreement as well as any facsimile, telecopy or other
reproduction hereof.
(m) Time is of the Essence. Time is of the essence of this Agreement
and f each and every provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
above written.
ADVISOR WITNESS:
By: /s/ Xxxx X. Xxxx
------------
Name: Xxxx X. Xxxx
XXXX INDUSTRIES, INC. ATTEST:
By: /s/ Xxxx X. Xxxx By: /s/ Xxx X. Xxxxxx
------------ -------------
Name: Xxxx X. Xxxx Name: Xxx X. Xxxxxx
Title: President Title: Secretary
EXHIBIT D
TO ASSET PURCHASE AGREEMENT
XXXX INDUSTRIES, INC.
LOCK UP AGREEMENT
THIS LOCK UP AGREEMENT (the "Agreement") is entered into and made
effectiv as of the _____ day of December, 2000, by and between
Xxxx Industries, Inc., a Nevada corporation (the "Company"),
______________________, [a ___ corporation]
(the "Stockholder") and Xxxxxxx Xxxx, Esq. (the "Escrow Holder").
WHEREAS, the Stockholder is the beneficial owner of ___________
sharesof the Company's common stock (the "Shares"); and,
WHEREAS, prior to or simultaneously with the execution of this
Agreement, ursuant to an Agreement separate and apart from this
Agreement, the Company has issued the Shares to the
Stockholder; and,
WHEREAS, as an inducement for the Company to issue the Shares
to the Stockolder, the Stockholder agreed to deposit the
Shares with the Escrow Holder pursuant to the terms and
conditions of this Agreement; and
,
WHEREAS, the parties hereto agree to the retention and release of
the Shares in accordance with the terms and conditions set forth
herein,which terms and conditions are for the benefit of the
Company and its other shareholders, as well as of the Stockholders.
NOW, THEREFORE, in consideration of the covenants and
agreements contined herein and for other consideration, the
receipt and sufficiency of which is expressly acknowledged,
Escrow Holder, the Company and the Stockholder, intending
to be legally bound, hereby each agree as
follows:
1. Escrow Terms and Conditions.
(a) Appointment of Escrow Holder. The Company and the Stockholder
hereby ppoint Xxxxxxx X. Xxxx, Esq., of Newport Beach,
California, as the Escrow Holder for this Agreement.
(b)Delivery of Shares. The certificates representing the Shares (the
"Cerificates") shall be delivered and deposited with the Escrow
Holder within five (5) business days of the date hereof.
(c) Release of Shares. The Escrow Holder agrees to retain
and release the Shares pursuant to the following conditions:
(i) The Shares are to be held by the Escrow Holder and are not to be
deposted with the Depository Trust Corporation, any broker-dealer firm
or any third party whatsoever.
(ii) The maximum number of Shares per week which may be released
to or for the benefit of the Stockholder pursuant to the
Stockholder's written instructions, shall be determined by (A)
calculating the average trading volume for the five trading
days immediately preceding the date of calculation, and (B)
multiplying such amount by five percent (5%) of such five-day a
verage trading volume (the "Release Amount"), provided, that
in no event shall the Stockholder be entitled to have released
from the Escrow Account an amount of Shares on any single
trading day which exceeds one-fifth (1/5) of the Release Amount
applicable for the week in which such trading day occurs.
For purposes of this Agreement, (C) a "trading day" shall
be any day that the principal stock market or stock exchange
on which the Shares are then traded shall be open for trading,
and (D) the "trading volume"shall be the aggregate number of
trades of the same class of stock as the Shares which are
recorded on such principal stock market or stock exchange on
the applicable trading day or days.
(iii)The Release Amounts applicable in respect of any week or trading
day hall be non-cumulative and, accordingly, expressly limited to a
maximum of the subject Shares per week or trading day, as applicable,
whether or not the maximum permitted Release Amount in respect of any
prior period shall have actually been released to, or for the benefit
of, the Stockholder.
2. Payment of Escrow Fees.
The Stockholder agrees to pay all reasonable fees and expenses charged
and ncurred by the Escrow Holder in carrying out his duties and
obligations pursuant to this Agreement.
3. Obligations of Escrow Holder.
The obligations of the Escrow Holder shall be governed by and subject
to the following provisions and conditions:
(a) No Security. The Escrow Holder shall not be required to give
security for, nor shall the Escrow Holder be responsible for the acts,
omissions, faults, errors, fraud, failure or misconduct of, any agent
whom he may reasonably employ in the exercise of the powers conferred
upon him hereunder, nor for any loss occasioned by the acts,
omissions, or defaults by the Escrow Holder, unless such acts,
omissions or defaults constitute a breach of trust
knowingly and intentionally committed by the Escrow Holder.
(b) Notifications. The Escrow Holder shall not in any way be
bound or affeted by any notice of modification or of cancellation
of this Agreement unless such notice is in writing and signed by
all parties hereto, nor shall the Escrow Holder be bound by
any modification hereof unless the same shall be satisfactory
to him.
(c) No Independent Verification Required. The Escrow Holder
may act in reliance upon any document, instrument or signature
believed by him to be genuine and the Escrow Holder may assume
that any person purporting to give any notice or
instruction in accordance with the provisions hereof has been
duly authorized to do so.
(d) Only Agreement. This Agreement sets forth exclusively
the Escrow Holder's duties with respect to any and all matters
pertinent hereto. The Escrow Holder shall not be
bound by the provisions of any agreement other than the
terms of this Agreement.
(e) Ambiguity or Uncertainty. In the event that the Escrow Holder
shall be uncertain as to his duties or rights hereunder, or should he
receive instructions, claims or demands from any other parties hereto
orfrom third parties with respect to the Shares held hereunder which,
in his opinion, are in conflict with any provisions of this Agreement,
he shall be entitled to refrain from taking any action (other than
to keep safely the Shares) until he shall be directed or otherwise
in writing by all of the parties hereto, and the said third parties,
if any, or by final order, or judgment of a court of competent
jurisdiction.
(f) No Discretion to Release Shares. The Escrow Holder, the
Stockholder ad the Company each expressly acknowledge to and agree
with each other that (i) the Escrow Holder shall not, under any
circumstances whatsoever (other thann a valid Court order), release any
Shares from the Escrow Account created hereby, except in strict
conformity with the express terms and conditions of this Agreement,
and (ii) other shareholders of the Company are entering into escrow
agreements similar to this Agreement in reliance upon the Stockholder
entering into and performing this Agreement, each of which other
shareholders shall have a third party beneficiary interest in, and
right to enforce, this Agreement.
4. Indemnification of Escrow Holder.
The Company and the Stockholder, jointly and severally, release,
indemnify and hold harmless the Escrow Holder from all
costs, charges, claims, demands, damages, losses and expenses
resulting from the Escrow Holder's compliance in good faith with
this Agreement.
5. Cooperation, Arbitration, Interpretation and Modification
of this Agreement.
(a) Cooperation of Parties. The parties hereto further agree
that they wil do all things necessary to accomplish and facilitate
the purpose of this Agreement, and that they will sign and execute
any and all documents necessary to bring about and perfect the
purposes of this Agreement as contemplated herein.
(b) Arbitration. The parties hereby submit all controversies,
claims and atters of difference arising out of this Agreement to
arbitration in Newport Beach, California according to the rules and
practices of the American Arbitration Association from time to time
in force. This submission and agreement to arbitrate shall be
specifically enforceable. The Agreement shall further be governed
by the laws of the State of California, County of Orange.
(c) Interpretation of Agreement. The parties agree that
should any provison of this Agreement be found to be ambiguous in
any way, such ambiguity shall not be resolved by construing such
provisions or any part of or the entire Agreement in favor of or
against any party herein, but rather by construing the terms of
this Agreement fairly and reasonable in accordance with their
generally accepted meaning.
6. Termination.
This Agreement shall terminate upon the release of all of the Shares
pursunt to the terms hereof or upon the joint written instructions
of the Company and the Stockholder.
7. Miscellaneous.
(a) Notices. Any notice required or permitted hereunder shall
be given inwriting and shall be conclusively deemed effectively given
upon either (a) personal delivery; (b) one day after facsimile
transmissionto the facsimile number indicated below and evidenced by
a written record of completed transmission to such number; or (c)
five days after deposit in the United States mail,by registered or
certified mail, postage prepaid, addressed to the following address,
or to such other address as the party may designate by ten (10)
days' advance written notice to the other party:
If to the Company: Xxxx Industries, Inc.
0000 XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
If to the Escrow Holder: Xxxxxxx Xxxx, Esq.
0000 XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Stockholder: ____________________________
____________________________
____________________________
Telephone: (____) __________
Facsimile: (____) __________
(a) Modification of Agreement. This Agreement may be amended
or modified n any way at any time by an instrument in writing
stating the manner in which it is amended or modified and signed
by each of the parties hereto. Any such writing amending or modifying
this Agreement shall be attached to and kept with this Agreement.
(b) Governing Law; Venue; Attorney's Fees. This Agreement shall
be governe by and construed in accordance with the internal
laws of the State of California applicable to the performance and
enforcement of contracts made within such state, without giving
effect to the law of conflicts of laws applied thereby.
In the event that any dispute shall occur between the parties
arising out of or resulting from the construction, interpretation,
enforcement or any other aspect of this Agreement, the parties
hereby agree to accept the exclusive jurisdiction of the Courts of
the State of California sitting in and for the County of Orange.
In the event either party shall be forced to bring any legal action
to protect or defend its rights hereunder, then the prevailing
party in such proceeding shall be entitled to reimbursement from
the non-prevailing party of all fees, costs and other expenses
(including, without limitation, the reasonable expenses of its
attorneys) in bringing or defending against such action.
(c) Entire Agreement. This Agreement constitutes the entire
Agreement an understanding of the parties hereto with respect
to the matters herein set forth, and all prior negotiations,
writings and understandings relating to the subject
matter of this Agreement are merged herein and are superseded
and canceled by this Agreement.
(d) Counterparts. This Agreement may be signed in one or
more counter part, each of which shall be an original, but all
of which, when take n as a whole, shall constitute but
one and the same instrument.
(e) Facsimile Transmission Signatures. A signature received
pursuant to a acsimile transmission shall be sufficient to bind
a party to, and under, this Agreement.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement
on thedate above written.
THE COMPANY:
XXXX INDUSTRIES, INC. ATTEST:
By: /s/ Xxxx X. Xxxx By: /s/ Xxx X. Xxxxxx
------------ -------------
Name: Xxxx X. Xxxx Name: Xxx X. Xxxxxx
Title: President Title: Secretary
THE STOCKHOLDER: WITNESS
Name:
----------- -----------
Title:
Address:
THE ESCROW HOLDER WITNESS
--------------------- -----------
Xxxxxxx X. Xxxx, Esq.
Weed & Co. L.P.
0000 XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
[SIGNATURES FOLLOW ON THE NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed the day and year first above written.
THE SELLER:
HOLOWORLD, INC. ATTEST:
By: /s/ Xxxxxx Xxxxxx By: /s/ Zara Haider
------------- -----------
Name: Xxxxxx Xxxxxx Name: Zara Haider
Title: President Title: Secretary
HRII:
XXXX INDUSTRIES, INC. ATTEST:
By: /s/ Xxxx X. Xxxx By: /s/ Xxx X. Xxxxxx
------------ -------------
Name: Xxxx X. Xxxx Name: Xxx X. Xxxxxx
Title: President Title: Secretary
THE PURCHASER:
HOLOWORLD ACQUISITION CORPORATION ATTEST:
By: /s/ Xxx X. Xxxxxx By: /s/ Xxx X. Xxxxxx
------------- -------------
Name: Xxx X. Xxxxxx Name: Xxx X. Xxxxxx
Title: President Title: Secretary
