PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement") is made and
entered into as of the 10th day of September, 2002, by and
between the following:
XXXXXXX X. XXXXX, an individual, and XXXX X. XXXXX, an
individual, (hereinafter, each being a "Seller" and,
collectively, the "Sellers"); and
THE PRESTIGE XXXXX.XXX, INC., a Nevada corporation
(hereinafter "Prestige").
W I T N E S S E T H
WHEREAS, subject to the terms and conditions of this
Agreement, Prestige and Sellers desire for Prestige to purchase
from Sellers and for Sellers to sell to Prestige all of the
outstanding common stock of PARAMOUNT FINANCIAL GROUP, INC., a
Colorado corporation (the "PFG Stock" and "PFG", respectively);
and
WHEREAS, the Board of Directors of Prestige deems it
desirable and in the best interests of Prestige and its
stockholders that Prestige purchase the PFG Stock in
consideration of issuance by Prestige to Sellers an aggregate of
One Million Five Hundred Sixty-two Thousand Five Hundred
(1,562,500) shares of Prestige common stock (the "Prestige
Shares"); and
WHEREAS, Sellers deems it desirable and in the best
interests of Sellers that Sellers sell the PFG Stock to Prestige;
and
WHEREAS, Prestige and Seller desire to provide for certain
undertakings, conditions, representations, warranties, and
covenants in connection with the transactions contemplated by
this Agreement; and
WHEREAS, Sellers and the Board of Directors of Prestige 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", "PFG", "PFG Stock" "Prestige", "Prestige
Shares", "Seller" and "Sellers", 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,
September 10, 2002, 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 "PMI" shall mean Paramount Mortgage Investments Inc., a
Colorado corporation.
1.7 "PREI" shall mean Paramount Real Estate Investment
Trust, Inc., a Colorado corporation.
1.8 "Paramount Companies" shall mean PFG, PMI, and PREI.
1.9 "Confidential information" shall have the meaning
defined in Section 11.1 hereof.
SECTION 2
AGREEMENT FOR PURCHASE AND SALE OF PFG STOCK
2.1 Substantive Terms of the Purchase and Sale of PFG
Stock.
Sellers shall sell and deliver to Prestige one hundred
percent (100%) of the issued and outstanding common stock of PFG
in a form enabling Prestige, then and there, to become the record
and beneficial owner of said common stock, consisting of five
million (5,000,000) shares which represents all of the issued and
outstanding capital stock of PFG.
2.2 Consideration Paid by Prestige.
(a) Prestige shall deliver to Sellers the
Prestige Shares, as follows: One Million Four Hundred
Sixty-two Thousand Five Hundred (1,462,500) shares to
be issued in the name of Xxxxxxx X. Xxxxx and One
Hundred Thousand (100,000) shares to be issued in the
name of Xxxx X. Xxxxx. The Prestige 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 thecertificates
representing the Prestige Shares shall bear the
restrictive legend set forth in Rule 144 of the Rules
and Regulation of the 1933 Act and any appropriate
legend required under applicable state securities laws.
The Prestige Shares shall be validly issued and
outstanding, fully paid, and non-assessable.
(b) It is the present intention of Prestige that,
as soon as practicable following the Closing Date, PFG
will be merged with and into Prestige with Prestige
being the surviving entity. In connection with such
merger, Prestige currently expects to change its name
to "Paramount Financial Corporation". The present
subsidiaries of PFG, PMI and PREI will each become a
wholly-owned subsidiary of Prestige.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF PRESTIGE
Prestige, in order to induce each of Sellers to execute this
Agreement and to consummate the transactions contemplated herein,
represents and warrants to Sellers, as follows:
3.1 Organization and Qualification. Prestige is a
corporation duly organized, validly existing, and in good
standing under the laws of Nevada, with all requisite power and
authority to own its property and to carry on its business as it
is now being conducted. Prestige 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
Prestige.
3.2 Ownership of Prestige. Prestige is authorized to issue
two classes of stock of up to 50,000,000 common shares, $0.001
par value per share, of which approximately 4,978,032 are
currently issued and outstanding, and of up to 5,000,000
preferred shares, $0.001 par value per share. As of this date,
no shares of preferred stock are issued or outstanding and no
class or series of preferred stock have been designated or
determined by Prestige. 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 Prestige.
3.3 Authorization and Validity. Prestige 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 Prestige 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 Sellers, this Agreement is a valid and binding agreement
of Prestige.
3.4 No Defaults. Prestige is not in default under or in
violation of any provision of its Articles of Incorporation or
Bylaws, both as amended. Prestige 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 Prestige. Prestige 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 Prestige.
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
Prestige 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,
Prestige 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 Prestige 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 Prestige 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 the Prestige to the Sellers 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 circumstance under which they are or were
made, not misleading. Neither the Company nor any of its
officers, directors, employees or agents have provided the
Sellers with any material, non-public information.
3.6 Absence of Certain Changes. Since the most recent
filing by Prestige 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 Prestige. Prestige has not taken any
steps, and does not currently expect to take any steps, to seek
protection pursuant to any bankruptcy law nor does Prestige 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 Prestige to Sellers 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
Prestige herein and in any schedule, statement, certificate, or
document furnished or to be furnished by Prestige to Sellers
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 SELLERS
Each of Sellers, in order to induce Prestige to execute this
Agreement and to consummate the transactions contemplated herein,
represents and warrants to Prestige as follows:
4.1 Organization and Qualification. PFG is a Colorado
corporation, duly organized, validly existing, and in good
standing under the laws of the state of Colorado with all
requisite power and authority to own its property and assets and
to carry on its business as it is now being conducted. PFG 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 PFG. PMI is a Colorado
corporation, duly organized, validly existing, and in good
standing under the laws of the state of Colorado with all
requisite power and authority to own its property and assets and
to carry on its business as it is now being conducted. PMI 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 PMI. With respect to those
states in which PMI conducts business as a mortgage lender, PMI
is duly licensed or approved to do business as a mortgage lender
in each jurisdiction in which such licensing or approval is
required. PREI is a Colorado corporation, duly organized,
validly existing, and in good standing under the laws of the
state of Colorado with all requisite power and authority to own
its property and assets and to carry on its business as it is now
being conducted. PREI 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 PREI.
4.2 Ownership of PFG Stock. PFG is authorized to issue one
class of stock, of up to Fifty Million (50,000,000) shares of
common stock, $0.001 par value per share. At the date hereof, of
such authorized shares, Five Million (5,000,000) 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 either of Sellers. 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 PFG.
4.3 Authorization and Validity. 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 Prestige,
this Agreement is a valid and binding agreement of Sellers.
4.4 Conduct and Transactions of PFG, PMI and PREI. During
their respective current fiscal years, each of the Paramount
Companies conducted the operations of their respective businesses
consistent with past practice and each used its best efforts to
maintain and preserve its respective properties, key employees,
and relationships with customers and suppliers. Without limiting
the foregoing, during such period each of the Paramount Companies
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 respective 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 4.4(g), hereto; or
(h) Make any capital expenditures except in the
ordinary course of its business.
4.5 Compensation Due Employees. The Paramount Companies
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 the
Paramount Companies that have been performed prior to the Closing
Date, except as specified on Exhibit 4.5 hereto. On the Closing
Date, the Paramount Companies 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 4.5
hereto.
4.6 Union Agreements and Employment Agreements. The
Paramount Companies are not parties to any union agreement or any
organized labor dispute. The Paramount Companies have no written
or verbal employment agreements with any of their employees,
except as listed in Exhibit 4.6 hereto.
4.7 Contracts and Leases. Except as listed in Exhibit 4.7
hereto, the Paramount Companies are not a party to any written or
oral leases, commitments, or any other agreements. On the
Closing Date, the Paramount Companies have 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.
4.8 Insurance. All insurance against losses or damages or
other risks which are in force for the benefit of any of the
Paramount Companies are set forth in Exhibit 4.8 hereto.
4.9 Liabilities. The Paramount Companies have no
liabilities, except as described in Exhibit 4.9 hereto.
4.10 Proprietary Rights. The Paramount Companies owns or
are duly licensed to use such trademarks and copyrights as are
necessary to conduct their business as presently conducted. The
conduct of business by the Paramount Companies does not, to the
best knowledge of Sellers, infringe upon the trademarks or
copyrights of any third party.
4.11 Internal Controls.
(a) There have been no transactions except in
accordance with the general or specific authorization of
management of the Paramount Companies.
(b) The Paramount Companies have devised and
maintained respective systems of internal accounting
controls sufficient to provide reasonable assurances that
transactions are recorded as necessary (i) to permit
preparation of financial statements in conformity with
generally accepted accounting principles and (ii) to
maintain accountability for assets and expenses.
4.12 Contracts and Agreements. The Paramount Companies are
not a party to any material contracts or agreements in respect of
the operation of their business, except as listed in Exhibit 4.12
hereto.
4.13 Minute Books. The respective minute books of the
Paramount Companies contain 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 Prestige 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.
4.14 Litigation. Except as set forth in Exhibit 4.14, there
are no actions, suits, proceedings, orders, investigations, or
claims (whether or not purportedly on behalf of PFG, PMI or PREI)
pending against or affecting PFG, PMI or PREI 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 PFG, PMI or PREI or which seeks
to prohibit, restrict, or delay the consummation of the stock
sale contemplated hereby. PFG, PMI and PREI are 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.
4.15 Taxes. At the Closing Date, all tax returns required to be
filed with respect to the operations or assets of each of the
Paramount Companies 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 4.15, as of the Closing Date, none of the Paramount
Companies have 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. The PFG, PMI and PREI Tax Returns are
true and complete in all material respects. No audits by federal
or state authorities are currently pending or threatened.
4.16 No Defaults. None of the Paramount Companies is in
default under or in violation of any provision of its respective
Articles of Incorporation or Bylaws. The Paramount Companies are
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 any is a party or by which
any is bound or to which any of their respective assets are
subject, if such default would have a material, adverse effect on
the financial condition or business of PFG, PMI or PREI. None of
the Paramount Companies is 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 PFG, PMI or
PREI. 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 PFG,
PMI or PREI and no consents or waivers thereunder are required to
be obtained in connection therewith in order to consummate the
transactions contemplated by this Agreement.
4.17 Documents. The copies of all agreements and other
instruments that have been delivered by Sellers to Prestige are
true, correct, and complete copies of such agreements and
instruments and include all amendments thereto.
4.18 Disclosure. The representations and warranties made by
Sellers herein and in any schedule, statement, certificate, or
document furnished or to be furnished by PFG, PMI, PREI and/or
either of Sellers to Prestige 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) Prestige acknowledges that it has made an
investigation of PFG, PMI and PREI to confirm, among other
things, the assets, liabilities, and status of business of
PFG, PMI and PREI and the cash position, accounts
receivable, liabilities, and mortgages in process. In the
event of termination of this Agreement, Prestige will
deliver to Sellers all documents, work papers, and other
materials and all copies thereof obtained by Prestige, or on
its behalf, from PFG, PMI, PREI or Sellers, whether obtained
before or after the execution hereof, will not use, directly
or indirectly, any confidential information obtained from
PFG, PMI, PREI or Sellers hereunder or in connection
herewith, and will keep all such information confidential
and not used in any way detrimental to PFG, PMI, PREI or
Sellers except to the extent the same is publicly disclosed
by PFG, PMI, PREI or Sellers.
(b) Each of Sellers acknowledges that he has made an
investigation of Prestige, which has included, among other
things, the opportunity of discussions with executive
officers of Prestige, and its accountants, investment
bankers, and counsel. In the event of termination of this
Agreement, Sellers will deliver to Prestige all documents,
work papers, and other materials and all copies thereof
obtained by either of them, or on behalf of either of them,
from Prestige, whether obtained before or after the
execution hereof and will not use, directly or indirectly,
any confidential information obtained from Prestige
hereunder or in connection herewith, and will keep all such
information confidential and not used in any way detrimental
to Prestige, except to the extent the same is publicly
disclosed by Prestige.
(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. Prestige and Sellers 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 as set forth in Exhibit
6.1, neither Prestige nor Sellers, 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. Each party hereto agrees to
indemnify and hold the other party harmless against or in respect
of any 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) Sellers shall have executed and delivered
documents to Prestige sufficient then and there to transfer
record and beneficial ownership to Prestige of the PFG
Stock, consisting of an aggregate of 5,000,000 shares of
common stock of PFG;
(b) Prestige shall have delivered to Sellers the Prestige
Shares, consisting of One Million Five Hundred Sixty-two Thousand
Five Hundred (1,562,500) shares of Prestige common stock, as
follows: One Million Four Hundred Sixty-two Thousand Five Hundred
(1,462,500) in the name of Xxxxxxx X. Xxxxx and One Hundred
Thousand (100,000) shares in the name of Xxxx X. Xxxxx.
SECTION 8
CONDITIONS PRECEDENT TO PRESTIGE'S OBLIGATIONS TO CLOSE
The obligations of Prestige 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 Sellers contained in this Agreement shall be
true and correct in all material respects on and as of the
Closing Date, and Sellers 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 Prestige.
SECTION 9
CONDITIONS PRECEDENT TO SELLERS' OBLIGATIONS TO CLOSE
The obligation of Sellers 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 Prestige contained in this Agreement shall be
true and correct in all material respects on and as of the
Closing Date, and Prestige 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 Prestige and Sellers 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 Prestige acknowledges that its principals have, and
will, acquire information and materials from Sellers and/or the
Paramount Companies and knowledge about the technology, business,
products, strategies, customers, clients and suppliers of the
Paramount Companies and that all such information, materials and
knowledge acquired, are and will be trade secrets and
confidential and proprietary information of PFG, PMI or PREI
(collectively, such acquired information, materials, and
knowledge are the "Confidential Information"). Prestige, 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 Sellers,
PFG, PMI or PREI to Prestige shall remain the property of the
disclosing party.
11.3 Prestige, and its principals, shall maintain in secrecy
all Confidential Information disclosed to them by Sellers, PFG,
PMI or PREI using not less than reasonable care. Prestige, 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 Sellers, PFG, PMI or PREI without
restriction pursuant to judicial action, or government
regulations or other requirements.
11.4 The obligations of Prestige under Sections 11.1, 11.2,
and 11.3 of this Agreement shall expire 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) Prestige, if the conditions precedent in Sections
8 and 10 of this Agreement have not been satisfied or waived
by the Closing Date; and
(c) Sellers, 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 Prestige or Sellers
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 Prestige or Sellers 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 Sellers: Xxxxxxx X. Xxxxx
Xxxx X. Xxxxx
00000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
to Prestige: The Prestige Xxxxx.Xxx, Inc.
Attention: Chief Executive Officer
0000 Xx. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
copy to: Xxxxx Xxxx LLP
(which shall not Attention: 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 Sellers nor Prestige 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.
THE PRESTIGE XXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx
President
/s/ Xxxxxxx X. Xxxxx
--------------------
XXXXXXX X. XXXXX
/s/ Xxxx X. Xxxxx
--------------------
XXXX X. XXXXX
