PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement") is made and
entered into as of the 17th day of July 2003, by and between the
following:
XXXXX X. XXXXXXX, XX., an individual, (hereinafter, the
"Seller"); and
PARAMCO FINANCIAL GROUP, INC., a Delaware corporation
(hereinafter "Paramco").
W I T N E S S E T H
WHEREAS, subject to the terms and conditions of this
Agreement, Paramco and Seller desire for Paramco to purchase from
Seller and for Seller to sell to Paramco all of the outstanding
common stock of ALLIANCE CAPITAL GROUP, INC., a Delaware
corporation (the "Alliance Capital Group Stock" and "Alliance
Capital Group ", respectively); and
WHEREAS, the Board of Directors of Paramco deems it
desirable and in the best interests of Paramco and its
stockholders that Paramco purchase the Alliance Capital Group
Stock in consideration of issuance by Paramco to Seller an
aggregate of one hundred twenty thousand (120,000) shares of
Paramco Common Stock (the "Paramco Shares"); and
WHEREAS, Seller deems it desirable and in the best interests
of Seller that Seller sell the Alliance Capital Group Stock to
Paramco; and
WHEREAS, Paramco and Seller desire to provide for certain
undertakings, conditions, representations, warranties, and
covenants in connection with the transactions contemplated by
this Agreement; and
WHEREAS, Seller and the Board of Directors of Paramco have
approved and adopted this Agreement, subject to the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements herein contained, the parties
hereto do hereby agree as follows:
SECTION 1
DEFINITIONS
1.1 "Agreement", "Alliance Capital Group", "Alliance Capital
Group Stock", "Paramco", "Paramco Shares", "Seller",
respectively, shall have the meanings defined in the foregoing
preamble and recitals to this Agreement.
1.2 "Closing Date" shall mean 10:00 a.m., local time, July
25, 2003, at Denver, Colorado, the date on which the parties
hereto shall close the transactions contemplated herein; provided
that the parties can change the Closing Date and place of Closing
to such other time and place as the parties shall mutually agree,
in writing. As of the Closing Date, all Exhibits to this
Agreement shall be complete and attached to this Agreement.
1.3 "1933 Act" shall mean the Securities Act of 1933, as
amended.
1.4 "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
1.5 "SEC Documents" shall have the meaning defined in
Section 3.5 hereof.
1.6 "Confidential information" shall have the meaning
defined in Section 11.1 hereof.
SECTION 2
AGREEMENT FOR PURCHASE AND SALE OF ALLIANCE CAPITAL GROUP STOCK
2.1 Substantive Terms of the Purchase and Sale of Alliance
Capital Group Stock.
Seller shall sell and deliver to Paramco one hundred percent
(100%) of the issued and outstanding capital stock of Alliance
Capital Group in a form enabling Paramco, then and there, to
become the record and beneficial owner of said common stock,
consisting of one hundred thousand (100,000) shares, which
represent all of the issued and outstanding capital stock of
Alliance Capital Group.
2.2 Consideration Paid by Paramco.
(a) Paramco shall deliver to Seller the Paramco
Shares, as follows: one hundred twenty (120,000) shares
to be issued in the name of Xxxxx X. Xxxxxxx, Xx. The
Paramco Shares shall be issued pursuant to an exemption
from registration under the 1933 Act and from
registration under any and all applicable state
securities laws and the certificates representing the
Paramco Shares shall bear the restrictive legend set
forth in Rule 144 of the Rules and Regulations of the
1933 Act and any appropriate legend required under
applicable state securities laws. The Paramco Shares
shall be validly issued and outstanding, fully paid,
and non-assessable.
(b) It is the present intention of Paramco that,
following the Closing Date, Alliance Capital Group will
operate as a wholly owned subsidiary of Paramco.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF PARAMCO
Paramco, in order to induce the Seller to execute this
Agreement and to consummate the transactions contemplated herein,
represents and warrants to Seller, as follows:
3.1 Organization and Qualification. Paramco is a
corporation duly organized, validly existing, and in good
standing under the laws of Delaware, with all requisite power and
authority to own its property and to carry on its business as it
is now being conducted. Paramco is duly qualified as a foreign
corporation and in good standing in each jurisdiction where the
ownership, lease, or operation of property or the conduct of
business requires such qualification, except where the failure to
be in good standing or so qualified would not have a material,
adverse effect on the financial condition or business of Paramco.
3.2 Ownership of Paramco. Paramco is authorized to issue
two classes of stock of up to 100,000,000 common shares, $0.001
par value per share, of which approximately 29,182,747 are
currently issued and outstanding, and up to 10,000,000 preferred
shares, $0.001 par value per share of which three series have
been designated: Series A, consisting of 131,000 authorized
shares, all of which are outstanding; Series B, consisting of
3,750,000 authorized shares, none of which is outstanding; and
Series C, consisting of 150,000 authorized shares, none of which
is outstanding. Paramco has granted 3,350,000 warrants, each for
the purchase of one share of Paramco Common Stock, at various
exercise prices. Paramco has not granted any options issued
under its stock option plan.
3.3 Authorization and Validity. Paramco has the requisite
power and is duly authorized to execute and deliver and to carry
out the terms of this Agreement. The board of directors and
stockholders of Paramco have taken all action required by law,
its Articles of Incorporation and Bylaws, both as amended, or
otherwise to authorize the execution and delivery of this
Agreement and the consummation of the transactions contemplated
hereby, subject to the satisfaction or waiver of the conditions
precedent set forth in Section 8 of this Agreement. Assuming
this Agreement has been approved by all action necessary on the
part of Seller, this Agreement is a valid and binding agreement
of Paramco.
3.4 No Defaults. Paramco is not in default under or in
violation of any provision of its Articles of Incorporation or
Bylaws, both as amended. Paramco is not in default under or in
violation of any material provision of any indenture, mortgage,
deed of trust, lease, loan agreement, or other agreement or
instrument to which it is a party or by which it is bound or to
which any of its is subject, if such default would have a
material, adverse effect on the financial condition or business
of Paramco. Paramco is not in violation of any statute, law,
ordinance, order, judgment, rule, regulation, permit, franchise,
or other approval or authorization of any court or governmental
agency or body having jurisdiction over it or any of its
properties which, if enforced, would have a material, adverse
effect on the financial condition or business of Paramco.
Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated herein, will
conflict with or result in a breach of or constitute a default
under any of the foregoing or result in the creation of any lien,
mortgage, pledge, charge, or encumbrance upon any asset of
Paramco and no consents or waivers thereunder are required to be
obtained in connection therewith in order to consummate the
transactions contemplated by this Agreement.
3.5 SEC Documents; Financial Statements. As of the Closing,
Paramco has filed all reports, schedules, forms, statements and
other documents required to be filed by it with the SEC pursuant
to the reporting requirements of the 1934 Act (all of the
foregoing filed prior to the date hereof and all exhibits
included therein and financial statements and schedules thereto
and documents incorporated by reference therein being hereinafter
referred to as the "SEC Documents"). As of their respective
dates, the SEC Documents substantially complied in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the SEC promulgated thereunder applicable to the
SEC Documents, and none of the SEC Documents, at the time they
were filed with the SEC, contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading. As of their respective dates, the
financial statements of Paramco included in the SEC Documents
substantially complied as to form in all material respects with
applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial
statements have been prepared in substantial accordance with
generally accepted accounting principles, consistently applied,
during the periods involved (except (i) as may be otherwise
indicated in such financial statements or the notes thereto, or
(ii) in the case of unaudited interim statements, to the extent
they may exclude footnotes or may be condensed or summary
statements) and fairly present in all material respects the
financial position of Paramco as of the dates thereof and the
results of its operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments). No other information provided by or
on behalf of Paramco to the Seller which is not included in the
SEC Documents, including, without limitation, contains any untrue
statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they are or were made, not
misleading. Neither the Company nor any of its officers,
directors, employees or agents has provided the Seller with any
material, non-public information.
3.6 Absence of Certain Changes. Since the most recent
filing by Paramco with the SEC, there has been no material
adverse change and no material adverse development in the
business, properties, operations, financial condition, results of
operations or prospects of Paramco. Paramco has not taken any
steps, and does not currently expect to take any steps, to seek
protection pursuant to any bankruptcy law nor does Paramco have
any knowledge or reason to believe that its creditors intend to
initiate involuntary bankruptcy proceedings.
3.7 Documents. The copies of all agreements and other
instruments that have been delivered by Paramco to Seller are
true, correct, and complete copies of such agreements and
instruments and include all amendments thereto.
3.8 Disclosure. The representations and warranties made by
Paramco herein and in any schedule, statement, certificate, or
document furnished or to be furnished by Paramco to Seller
pursuant to the provisions hereof or in connection with the
transactions contemplated hereby, taken as a whole, do not and
will not as of their respective dates contain any untrue
statements of a material fact, or omit to state a material fact
necessary to make the statements made not misleading.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller, in order to induce Paramco to execute this Agreement
and to consummate the transactions contemplated herein,
represents and warrants to Paramco as follows:
4.1 Organization and Qualification. Alliance Capital Group
is a Delaware corporation, duly organized, validly existing, and
in good standing under the laws of the state of Texas with all
requisite power and authority to own its property and assets and
to carry on its business as it is now being conducted. Alliance
Capital Group is qualified as a foreign corporation and is in
good standing in each jurisdiction where the ownership, lease, or
operation of property or the conduct of its business requires
such qualification, except where the failure to be in good
standing or so qualified would not have a material, adverse
effect on the financial condition and business of Alliance
Capital Group.
4.2 Ownership of Alliance Capital Group Stock. Alliance Capital
Group is authorized to issue one class of stock, of up to one
million (1,000,000) shares of common stock, no par value per
share. At the date hereof, of such authorized shares, one
hundred thousand (100,000) shares of common stock have been
validly issued and are outstanding, fully paid, and non-
assessable. All of the shares of common stock are owned of
record and beneficially by the Seller, who has not granted any
options, warrants, or other securities exercisable or convertible
into or any calls, commitments, or agreements of any kind
relating to any issued equity securities of Alliance Capital
Group. There are no options, warrants, or other securities
exercisable or convertible into or any calls, commitments, or
agreements of any kind relating to any unissued equity securities
of Alliance Capital Group by or on behalf of Alliance Capital
Group.
4.3 Authorization and Validity. The Seller has the
requisite power and is duly authorized to execute and deliver and
to carry out the terms of this Agreement. Assuming this
Agreement has been approved by all action necessary on the part
of Paramco, this Agreement is a valid and binding agreement of
Seller.
4.4 Alliance Capital Group Financial Statements.
(a) Alliance Capital Group financial statements (as
prepared by Seller as the management of Alliance Capital
Group) for the current fiscal year ending December 31, 2003
and any notes thereto, fairly and accurately present the
financial condition and the results of operations, income,
expenses, assets, liabilities, changes in shareholders'
equity, and cash flows of Alliance Capital Group , all in
accordance with GAAP, consistent with the past practices of
Alliance Capital Group (collectively, "Alliance Capital
Group Financial Statements").
(b) Alliance Capital Group Financial Statements are
capable of being examined and reported upon with an
unqualified opinion expressed by an independent public or
certified public accountant and will comply with the
requirements and standards set forth in Regulation S-X, as
promulgated and adopted by the Securities and Exchange
Commission.
4.5 Conduct and Transactions of Alliance Capital Group.
Since inception, Alliance Capital Group has conducted the
operations of its business consistent with past practice and used
its best efforts to maintain and preserve its properties, key
employees, and relationships with customers and suppliers.
Without limiting the foregoing, during such period Alliance
Capital Group did not:
(a) Incur any liabilities except to maintain its
facilities and assets in the ordinary course of its
business;
(b) Declare or pay any dividends on any shares of
capital stock or make any other distribution of assets to
the holders thereof;
(c) Issue, reissue, or sell, or issue options or
rights to subscribe to, or enter into any contract or
commitment to issue, reissue, or sell, any shares of capital
stock or acquire or agree to acquire any shares of capital
stock;
(d) Amend its Articles of Incorporation or Bylaws or
merge or consolidate with or into any other corporation or
sell all or substantially all of its assets or change in any
manner the rights of its capital stock or other securities;
(e) Pay or incur any obligation or liability, direct
or contingent, except in the ordinary course of its
business;
(f) Incur any indebtedness for borrowed money, assume,
guarantee, endorse, or otherwise become responsible for
obligations of any other party, or make loans or advances to
any other party except in the ordinary course of its
business;
(g) Increase in any manner the compensation, direct or
indirect, of any of its officers or executive employees,
except as otherwise disclosed in Exhibit 4.5(g), hereto; or
(h) Make any capital expenditures except in the
ordinary course of its business.
4.6 Compensation Due Employees. As of the Closing Date,
Alliance Capital Group will not have any outstanding liability
for payment of wages, payroll taxes, vacation pay (whether
accrued or otherwise), salaries, bonuses, pensions, contributions
under any employee benefit plans or other compensation, current
or deferred, under any labor or employment contracts, whether
oral or written, based upon or accruing in respect of those
services of employees of Alliance Capital Group that have been
performed prior to the Closing Date, except as specified on
Exhibit 4.6 hereto. As of the Closing Date, Alliance Capital
Group will not have any unfunded, contingent or other liability
under any defined benefits plan or any other retirement or
retirement-type plan, whether such plan(s) are to continue or are
thereupon terminated, except for the normal on-going obligations
for future contributions under such plan(s) not related,
generally or specifically, to the termination of such plan(s) or
except as specified on Exhibit 4.6 hereto.
4.7 Union Agreements and Employment Agreements. Alliance
Capital Group is not a party to any union agreement or any
organized labor dispute. Alliance Capital Group has no written
or verbal employment agreements with any of its employees, except
as listed in Exhibit 4.7 hereto.
4.8 Contracts and Leases. Except as listed in Exhibit 4.8
hereto, Alliance Capital Group is not a party to any written or
oral leases, commitments, or any other agreements. On the
Closing Date, Alliance Capital Group has paid or performed in
all material respects all obligations required to be paid or
performed by any of them to such date and will not be in default
under any document, contract, agreement, lease, or other
commitment to which any of them is a party.
4.9 Insurance. All insurance against losses or damages or
other risks which are in force for the benefit of any of Alliance
Capital Group are set forth in Exhibit 4.9 hereto.
4.10 Liabilities. Alliance Capital Group has no
liabilities, except as described in Exhibit 4.10 hereto, which
liabilities are also set forth in relevant detail on Alliance
Capital Group Financial Statements.
4.11 Proprietary Rights. Alliance Capital Group owns or is
duly licensed to use such trademarks and copyrights as are
necessary to conduct its business as presently conducted. The
conduct of business by Alliance Capital Group does not, to the
best knowledge of Seller, infringe upon the trademarks or
copyrights of any third party.
4.12 Internal Controls. Since inception,
(a) There have been no transactions except in
accordance with the general or specific authorization of
management of Alliance Capital Group;
(b) Alliance Capital Group has devised and maintained
systems of internal accounting controls and procedures (the
"Internal Controls") that were designed with the objective
of providing reasonable assurance that (1) Alliance Capital
Group transactions were properly authorized; (2) Alliance
Capital Group assets were safeguarded against unauthorized
or improper use; and (3) Alliance Capital Group transactions
were properly recorded and reported, all (i) to permit the
preparation of Alliance Capital Group financial statements
in conformity with generally accepted accounting principles
and (ii) to maintain accountability for assets and expenses.
(c) Alliance Capital Group chief executive officer and
chief financial officer have evaluated Alliance Capital
Group Internal Controls, which evaluation included a review
of the controls' objectives and design and the controls'
implementation by Alliance Capital Group and its management.
In the course of the Internal Controls' evaluation, Alliance
Capital Group management sought to identify data errors,
controls problems, or acts of fraud and to confirm that
appropriate corrective action, including process
improvements, were being undertaken. The Internal Controls
were also evaluated on an ongoing basis by other personnel
in Alliance Capital Group organization. Among other
matters, Alliance Capital Group has sought to determine
whether there were any "significant deficiencies" or
"material weaknesses" in the Internal Controls, or whether
Alliance Capital Group had identified any acts of fraud
involving personnel who had a significant role in the
Internal Controls. For purposes of this subsection,
"significant deficiencies" means "reportable conditions"
(control issues that could have a significant adverse effect
on the ability to record, process, summarize and report
financial data in the financial statements) and "material
weakness" means a particularly serious reportable condition
where the Internal Controls do not reduce to a relatively
low level the risk that misstatements caused by error or
fraud may occur in amounts that would be material in
relation to Alliance Capital Group Financial Statements and
not be detected within a timely period by employees in the
normal course of performing their assigned functions.
Alliance Capital Group has also sought to deal with other
Internal Controls matters in the evaluation thereof, and, in
each case if a problem were identified, Alliance Capital
Group considered what revision, improvement and/or
correction to make in accord with its on-going procedures.
4.13 Contracts and Agreements. Alliance Capital Group is
not a party to any material contracts or agreements in respect of
the operation of its business, except as listed in Exhibit 4.13
hereto.
4.14 Minute Books. The minute books of Alliance Capital
Group contains true, complete, and accurate records of all
meetings and other corporate actions of its shareholders and
Board of Directors, and true and accurate copies thereof have
been delivered to counsel for Paramco prior to the Closing Date.
The signatures appearing on all documents contained therein are
the true signatures of the persons purporting to have signed the
same.
4.15 Litigation. Except as set forth in Exhibit 4.15, there
are no actions, suits, proceedings, orders, investigations, or
claims (whether or not purportedly on behalf of Alliance Capital
Group) pending against or affecting Alliance Capital Group at law
or in equity or before or by any federal, state, municipal, or
other governmental department, commission, board, agency, or
instrumentality, domestic or foreign, nor has any such action,
suit, proceeding, or investigation been pending or threatened in
writing during the 12-month period preceding the date hereof,
which, if adversely determined, would materially and adversely
affect the financial condition of Alliance Capital Group which
seeks to prohibit, restrict, or delay the consummation of the
stock sale contemplated hereby. Alliance Capital Group is not
operating under or subject to, or in default with respect to, any
order, writ, injunction, or decree of any court or federal,
state, municipal, or other governmental department, commission,
board, agency, or instrumentality.
4.16 Taxes. At the Closing Date, all tax returns required
to be filed with respect to the operations or assets of Alliance
Capital Group prior to Closing Date have been correctly prepared
in all material respects and timely filed, and all taxes required
to be paid in respect of the periods covered by such returns have
been paid in full or adequate reserves have been established for
the payment of such taxes. Except as set forth in Exhibit 4.16,
as of the Closing Date, Alliance Capital Group has not requested
any extension of time within which to file any tax returns, and
all known deficiencies for any tax, assessment, or governmental
charge or duty shall have been paid in full or adequate reserves
have been established for the payment of such taxes. Alliance
Capital Group tax returns are true and complete in all material
respects. No audits by federal or state authorities are
currently pending or threatened.
4.17 No Defaults. Alliance Capital Group is not in default
under or in violation of any provision of its Articles of
Incorporation or Bylaws. Alliance Capital Group is not in
default under or in violation of any material provision of any
indenture, mortgage, deed of trust, lease, loan agreement, or
other agreement or instrument to which it is a party or by which
it is bound or to which any of its assets are subject, if such
default would have a material, adverse effect on the financial
condition or business of Alliance Capital Group. Alliance
Capital Group is not in violation of any statute, law, ordinance,
order, judgment, rule, regulation, permit, franchise, or other
approval or authorization of any court or governmental agency or
body having jurisdiction over it or any of its properties which,
if enforced, would have a material, adverse effect on the
financial condition or business of Alliance Capital Group.
Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated herein, will
conflict with or result in a breach of or constitute a default
under any of the foregoing or result in the creation of any lien,
mortgage, pledge, charge, or encumbrance upon any asset of
Alliance Capital Group and no consents or waivers thereunder are
required to be obtained in connection therewith in order to
consummate the transactions contemplated by this Agreement.
4.18 Documents. The copies of all agreements and other
instruments that have been delivered by Seller to Paramco are
true, correct, and complete copies of such agreements and
instruments and include all amendments thereto.
4.19 Disclosure. The representations and warranties made by
Seller herein and in any schedule, statement, certificate, or
document furnished or to be furnished by Alliance Capital Group
and/or either of Seller to Paramco pursuant to the provisions
hereof or in connection with the transactions contemplated hereby
taken as a whole do not and will not as of their respective dates
contain any untrue statements of a material fact, or omit to
state a material fact necessary to make the statements made not
misleading.
SECTION 5
INVESTIGATION; PRESS RELEASE
5.1 Investigation.
(a) Paramco acknowledges that it has made an
investigation of Alliance Capital Group to confirm, among
other things, the assets, liabilities, and status of
business of Alliance Capital Group and the cash position,
accounts receivable, liabilities, and mortgages in process.
In the event of termination of this Agreement, Paramco will
deliver to Seller all documents, work papers, and other
materials and all copies thereof obtained by Paramco, or on
its behalf, from Alliance Capital Group or Seller, whether
obtained before or after the execution hereof, will not use,
directly or indirectly, any confidential information
obtained from Alliance Capital Group or Seller hereunder or
in connection herewith, and will keep all such information
confidential and not used in any way detrimental to Alliance
Capital Group or Seller except to the extent the same is
publicly disclosed by Alliance Capital Group or Seller.
(b) Seller acknowledges that he has made an
investigation of Paramco, which has included, among other
things, the opportunity of discussions with executive
officers of Paramco, and its accountants, investment
bankers, and counsel. In the event of termination of this
Agreement, Seller will deliver to Paramco all documents,
work papers, and other materials and all copies thereof
obtained by either of them, or on behalf of either of them,
from Paramco, whether obtained before or after the execution
hereof and will not use, directly or indirectly, any
confidential information obtained from Paramco hereunder or
in connection herewith, and will keep all such information
confidential and not used in any way detrimental to Paramco,
except to the extent the same is publicly disclosed by
Paramco.
(c) Except in the event that any party hereto discovers
in the course of its respective investigation any breach of a
representation or warranty by the other party hereto and does
not disclose it to such other party prior to the Closing Date,
no investigation pursuant to this Section 5.1 shall affect or
be deemed to modify any representation or warranty made by any
party hereto.
5.2 Press Release. Paramco and Seller shall agree with
each other as to the form and substance of any press releases and
the filing of any documents with any federal or state agency
related to this Agreement and the transactions contemplated
hereby and shall consult with each other as to the form and
substance of other public disclosures related thereto; provided,
however, that nothing contained herein shall prohibit either
party from making any disclosure that its counsel deems
necessary.
SECTION 6
BROKERAGE
6.1 Brokers and Finders. Except for Stanton, Walker &
Company, neither Paramco nor Seller, or any of their respective
officers, directors, employees, or agents, has employed any
broker, finder, or financial advisor or incurred any liability
for any fee or commissions in connection with initiating the
transactions contemplated herein. Stanton, Walker & Company has
been engaged by Paramco and Paramco is solely liable for any fee
or commission earned by Stanton, Walker & Company. Each party
hereto agrees to indemnify and hold the other party harmless
against or in respect of any other commissions, finder's fees, or
brokerage fees incurred or alleged to have been incurred with
respect to initiating the transactions contemplated herein as a
result of any action of the indemnifying party.
SECTION 7
CLOSING AGREEMENTS AND POST-CLOSING
7.1 Closing Agreements. On the Closing Date, the following
activities shall occur, the following agreements shall be
executed and delivered, and the respective parties thereto shall
have performed all acts that are required by the terms of such
activities and agreements to have been performed simultaneously
with the execution and delivery thereof as of the Closing Date:
(a) Seller shall have executed and delivered documents
to Paramco sufficient then and there to transfer record and
beneficial ownership to Paramco of the Alliance Capital
Group Stock, consisting of an aggregate of 100,000 shares of
common stock of Alliance Capital Group;
(b) Paramco shall have delivered to Seller the Paramco
Shares, consisting of one hundred twenty thousand (120,000)
shares of Paramco's Common Stock, as follows: one hundred
twenty thousand (120,000) shares in the name of Xxxxx X.
Xxxxxxx, Xx.
SECTION 8
CONDITIONS PRECEDENT TO PARAMCO'S OBLIGATIONS TO CLOSE
The obligations of Paramco to consummate this Agreement are
subject to satisfaction on or prior to the Closing Date of the
following conditions:
8.1 Representations and Warranties. The representations
and warranties of Seller contained in this Agreement shall be
true and correct in all material respects on and as of the
Closing Date, and Seller shall have performed in all material
respects all of his obligations hereunder theretofore to be
performed.
8.2 Other. The joint conditions precedent in Section 10
hereof shall have been satisfied and all documents required for
Closing shall be acceptable to Counsel for Paramco.
SECTION 9
CONDITIONS PRECEDENT TO SELLER' OBLIGATIONS TO CLOSE
The obligation of Seller to consummate this Agreement is
subject to the satisfaction on or prior to the Closing Date of
the following conditions:
9.1 Representations and Warranties. The representations
and warranties of Paramco contained in this Agreement shall be
true and correct in all material respects on and as of the
Closing Date, and Paramco shall have performed in all material
respects all of its obligations hereunder theretofore to be
performed.
9.2 Other. The joint conditions precedent in Section 10
hereof shall have been satisfied.
SECTION 10
JOINT CONDITIONS PRECEDENT
The obligations of Paramco and Seller to consummate this
Agreement shall be subject to satisfaction or waiver in writing
by all parties of each and all of the following additional
conditions precedent at or prior to the Closing Date:
10.1 Other Agreements. All of the agreements contemplated
by Section 7.1 of this Agreement shall have been executed and
delivered, and all acts required to be performed thereunder as of
the Closing Date shall have been duly performed, including,
without limitation, completion of all exhibits to this Agreement.
10.2 Absence of Litigation. At the Closing Date, there
shall be no action, suit, or proceeding pending or threatened
against any of the parties hereto by any person, governmental
agency, or subdivision thereof, nor shall there be pending or
threatened any action in any court or administrative tribunal,
which would have the effect of inhibiting the consummation of the
transactions contemplated herein.
SECTION 11
CONFIDENTIALITY
11.1 Paramco acknowledges that its principals have, and
will, acquire information and materials from Seller and/or
Alliance Capital Group and knowledge about the technology,
business, products, strategies, customers, clients and suppliers
of Alliance Capital Group and that all such information,
materials and knowledge acquired, are and will be trade secrets
and confidential and proprietary information of Alliance Capital
Group (collectively, such acquired information, materials, and
knowledge are the "Confidential Information"). Paramco, itself,
and behalf of its principals, covenants to hold such Confidential
Information in strict confidence, not to disclose it to others or
use it in any way, commercially or otherwise, except in
connection with the transactions contemplated by this Agreement
and not to allow any unauthorized person access to such
Confidential Information.
11.2 The Confidential Information disclosed by the Seller
and/or Alliance Capital Group to Paramco shall remain the
property of the disclosing party.
11.3 Paramco, and its principals, shall maintain in secrecy
all Confidential Information disclosed to them by Seller and/or
Alliance Capital Group using not less than reasonable care.
Paramco, and its principals, shall not use or disclose in any
manner to any third party any Confidential Information without
the express written consent of the Seller unless or until the
Confidential Information is:
(a) publicly available or otherwise in the public
domain; or
(b) rightfully obtained by any third party without
restriction; or
(c) disclosed by Seller and/or Alliance Capital Group
without restriction pursuant to judicial action, or
government regulations or other requirements.
11.4 The obligations of Paramco under Sections 11.1, 11.2,
and 11.3 of this Agreement shall expire upon the sooner of the
Closing or one year from the date hereof as to Confidential
Information consisting of commercial and financial information
and two years from the date hereof as to Confidential Information
consisting of technical information. For this purpose, technical
information shall include without limitation all developments,
inventions, innovations, designs, discoveries, trade secrets and
know-how, whether or not patentable or copyrightable.
SECTION 12
TERMINATION AND WAIVER
12.1 Termination. This Agreement may be terminated and
abandoned on the Closing Date by:
(a) the mutual consent in writing of the parties
hereto;
(b) Paramco, if the conditions precedent in Sections 8
and 10 of this Agreement have not been satisfied or waived
by the Closing Date; and
(c) Seller, if the conditions precedent in Sections 9 and 10 of
this Agreement have not been satisfied or waived by the Closing
Date.
If this Agreement is terminated pursuant to Section 12.1, the
parties hereto shall not have any further obligations under this
Agreement, and each party shall bear all costs and expenses
incurred by it.
SECTION 13
NATURE AND SURVIVAL OF REPRESENTATIONS, ETC.
13.1 All statements contained in any certificate or other
instrument delivered by or on behalf of Paramco or Seller
pursuant to this Agreement or in connection with the transactions
contemplated hereby shall be deemed representations and
warranties by such party. All representations and warranties and
agreements made by Paramco or Seller in this Agreement or
pursuant hereto shall survive the Closing Date hereunder until
the expiration of the 12th month following the Closing Date.
SECTION 14
MISCELLANEOUS
14.1 Notices. Any notices or other communications required
or permitted hereunder shall be sufficiently given if written and
delivered in person or sent by registered mail, postage prepaid,
addressed as follows:
to Seller: Xxxxx X. Xxxxxxx Xx.
0000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
to Paramco: Paramco Financial Group, Inc.
Attn: Xxxxxxx X. Xxxxx
0000 Xx. Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
copy to: Xxxxx Xxxx LLP
(which shall not Attn: Xxxxxxx X. Xxxx, Esq.
constitute notice) 0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
or such other address as shall be furnished in writing by the
appropriate person, and any such notice or communication shall be
deemed to have been given as of the date so mailed.
14.2 Time of the Essence. Time shall be of the essence of
this Agreement.
14.3 Costs. Each party will bear the costs and expenses
incurred by it in connection with this Agreement and the
transactions contemplated hereby.
14.4 Cancellation of Agreement. In the event that this
Agreement is canceled by mutual agreement of the parties or by
failures of any of the conditions precedent set forth in
Paragraphs 8, 9, and 10, neither Seller nor Paramco shall be
entitled to any damages, fees, costs, or other consideration.
14.5 Entire Agreement and Amendment. This Agreement and
documents delivered at the Closing Date hereunder contain the
entire agreement between the parties hereto with respect to the
transactions contemplated by this Agreement and supersedes all
other agreements, written or oral, with respect thereto. This
Agreement may be amended or modified in whole or in part, and any
rights hereunder may be waived, only by an agreement in writing,
duly and validly executed in the same manner as this Agreement or
by the party against whom the waiver would be asserted. The
waiver of any right hereunder shall be effective only with
respect to the matter specifically waived and shall not act as a
continuing waiver unless it so states by its terms.
14.6 Counterparts. This Agreement may be executed in one or
more counterparts each of which shall be deemed to constitute an
original and shall become effective when one or more counterparts
have been signed by each party hereto and delivered to the other
party.
14.7 Governing Law. This Agreement shall be governed by,
and construed and interpreted in accordance with, the laws of the
State of Colorado.
14.8 Attorneys' Fees and Costs. In the event any party to
this Agreement shall be required to initiate legal proceedings to
enforce performance of any term or condition of this Agreement,
including, but not limited to, the interpretation of any term or
provision hereof, the payment of moneys or the enjoining of any
action prohibited hereunder, the prevailing party shall be
entitled to recover such sums, in addition to any other damages
or compensation received, as will reimburse the prevailing party
for reasonable attorneys' fees and court costs incurred on
account thereof (including, without limitation, the costs of any
appeal) notwithstanding the nature of the claim or cause of
action asserted by the prevailing party.
14.9 Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their
respective heirs, executors, personal representatives,
successors, and assigns, as the case may be.
14.10 Access to Counsel. Each party hereto acknowledges
that each has had access to legal counsel of her or its own
choice and has obtained such advice therefrom, if any, as such
party has deemed necessary and sufficient prior to the execution
hereof. Each party hereto acknowledges that the drafting of this
Agreement has been a joint effort and any ambiguities or
interpretative issues that may arise from and after the execution
hereof shall not be decided in favor or, or against, any party
hereto because the language reflecting any such ambiguities or
issues may have been drafted by any specific party or her or its
counsel.
14.11 Captions. The captions appearing in this
Agreement are inserted for convenience of reference only and
shall not affect the interpretation of this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
PARAMCO FINANCIAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx
Chief Executive Officer
SELLER
By: /s/ Xxxxx X. Xxxxxxx Xx.
-------------------
Xxxxx X. Xxxxxxx Xx.
