AGREEMENT
This AGREEMENT ("Agreement"), dated as of October 27, 2004,
by and among BRANDMAKERS, INC., a Utah corporation
("BRANDMAKERS"), the stockholders of BRANDMAKERS as listed on
the signature page (the "BRANDMAKERS Stockholders"), Xxxx X.
Xxxxxxxx and Xxxxxxx Xxxxx (the "New Shareholders").
WHEREAS, the New Shareholders have been requested by the
Board of Directors of BRANDMAKERS to formulate a plan to reduce
the liabilities of BRANDSMAKERS and provide new management for
BRANDMAKERS due to severe financial distress of the company
resulting in its inability to conduct its normal business
operations; and
WHEREAS, the New Shareholders have formulated a plan under
which certain of its creditors would convert their accounts
payable of BRANDMAKERS into common stock of BRANDMAKERS and
therefore improve BRANDMAKERS's financial condition by
conversion of liabilities to stockholders equity (the
"Conversion"); and
WHEREAS, the New Shareholders are satisfied that a
satisfactory number of the creditors of BRANDMAKERS have agreed
to the Conversion and are willing to undertake management of
BRANDSMAKERS on the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants, and
agreements set forth herein, the parties hereto agree as
follows:
1. The New Shareholders will purchase 70,000,000 shares of
BRANDMAKERS common stock from the BRANDMAKER Stockholders for
the sum of $5,000. BRANDMAKERS will issue 22,000,000 shares of
its common stock to the New Shareholders in consideration of
their services in connection with the Conversion and management
of BRANDMAKERS.
2. BRANDMAKERS and the BRANDMAKERS Stockholders represent
and warrant to the New Shareholders that: (a) BRANDMAKERS is in
good standing under the laws of the State of Utah and has the
corporate power to enter into this Agreement and to carry out
its obligations hereunder. (b) The execution and delivery of
this Agreement by BRANDMAKERS and the consummation by
BRANDMAKERS of the transactions contemplated hereby have been
duly authorized by its Board of Directors and no other corporate
proceedings on the part of BRANDMAKERS are necessary to approve
this Agreement or the transactions contemplated hereby. (c) The
shares of BRANDMAKERS common stock to be delivered to the New
Shareholders have been duly authorized, validly issued and are
fully paid and non-assessable. (d) The total authorized shares
of capital stock of BRANDMAKERS is 200,000,000 shares of common
stock. (e) The financial statements, financial information and
other information provided to the New Shareholders is true and
correct and did not omit any information required to make the
information provided not misleading.
3. As of the closing, BRANDMAKERS shall appoint the persons
specified by the New Shareholders as the sole directors and
officers of BRANDMAKERS in a form satisfactory to the New
Shareholders.
As of the closing, the remaining assets of BRANDMAKERS (the
"Business") shall have been disposed of to the BRANDMAKERS
Stockholders. The BRANDMAKERS Stockholders hereby assume, agree
to pay and perform and shall be responsible for all the
obligations of BRANDMAKERS under the GE Capital lease for an EMC
Clariion Array as well as for the lawsuit against BRANDMAKERS
filed by Xxxxxxxxx Xxxxxxx and Western Services, LLC or any
other lawsuit concerning the activities of BRANDMAKERS involved
in this suit. The BRANDMAKERS Stockholders shall also be
responsible for any obligations concerning the Business being
acquired by them arising on or after the closing date. The
foregoing sentence does not imply that the BRANDMAKER
Stockholders are responsible for the debts and obligations of
BRANDMAKERS arising prior to the closing, except as to the GE
Capital lease and Silagin litigation referred to above. The
BRANDMAKERS Stockholders hereby agree to protect, indemnify and
hold harmless BRANDMAKERS from all costs, expenses (including
reasonable attorneys' fees, and all other losses incurred by
BRANDMAKERS in connection with the foregoing lease and
litigation, including all costs and expenses (including court
costs and reasonable attorneys' fees whether suit be filed or
not, including attorneys' fees incurred in connection with all
appeals) incurred by BRANDMAKERS in the enforcement hereof or
the preservation of its rights hereunder. Any payments due
BRANDMAKERS under this agreement shall be payable at its
principal business office at the time such payment is due. Each
of the BRANDMAKERS Stockholders hereby assign to BRANDMAKERS any
and all claims, liabilities, demands, and causes of action known
or unknown, fixed or contingent, which they now have or may have
in the future or claim to have against BRANDMAKERS, its
successors, subsidiaries, employees, officers and directors,
including but not limited to their service as employees,
officers and directors of BRANDMAKERS and do hereby agree not to
assert any such claims. Notwithstanding the foregoing, this
assignment does not include any rights of the BRANDMAKERS
Stockholders arising under Section 4 of this Agreement.
4. Within sixty (60) days after the closing date BRANDMAKERS
shall deliver to the BRANDMAKERS Stockholders the following
share of BRANDMAKERS common stock:
Xxxxxx Xxxxxxxxx 75,000 shares
Xxxxx Xxxxxxxx 75,000 shares
Xxx Xxxxxxxx 75,000 shares
Such shares are calculated after the proposed reverse stock
split contemplated by BRANDMAKERS to occur after the effective
date and shall be the number of shares issued to the BRANDMAKERS
Stockholders after the said stock split (the "dilution
protection"). In the event BRANDMAKERS files a registration
statement for the sale of common stock on behalf of any
stockholder it will offer to register the foregoing shares on
behalf of the BRANDMAKERS Stockholders. This registration
obligation shall terminate at the time when such shares may be
sold without registration under SEC Rule 144.
5. Each New Shareholder understands and acknowledges that
the shares being acquired pursuant to this Agreement have not
been registered under the Securities Act of 1933 but are being
offered in reliance upon the exemption provided in Section 4(2)
of the Securities Act of 1933 for nonpublic offerings and hereby
agrees as follows:
(a) The Shares are being acquired solely for the
account of each stockholder, for investment purposes only, and
not with a view to, or for sale in connection with, any
distribution thereof and with no present intention of
distributing or reselling any part of the Shares.
(b) Each stockholder agrees not to dispose of the
Shares or any portion thereof unless and until counsel for
issuer of the Shares shall have determined that the intended
disposition is permissible and does not violate the Securities
Act of 1933 or any applicable state securities laws, or the
rules and regulations thereunder.
(c) Each stockholder acknowledges that issuer has made
all documentation pertaining to all aspects of the issuer
available to him and to his qualified representatives, if any,
and has offered such person or persons an opportunity to discuss
the business and operations with the officers of the issuer.
(d) Each stockholder is knowledgeable and experienced
in making and evaluating investments of this nature and desires
to accept the Shares on the terms and conditions set forth.
(e) Each stockholder is able to bear the economic risk
of an investment, in the Shares.
(f) Each stockholder understands that an investment in
the Shares is not liquid, and each stockholder has adequate
means of providing for his or her current needs and personal
contingencies and has no need for liquidity in this investment.
6. Closing of the transactions herein shall be made pursuant
to an escrow agreement set forth in Exhibit A hereto with an
attorney engaged by the New Shareholders.
7. Captions. The Article and paragraph headings throughout
this Agreement are for convenience and reference only, and shall
in no way be deemed to define, limit, or add to the meaning of
any provision of this Agreement.
8. No Oral Change. This Agreement and any provision hereof,
may not be waived, changed, modified, or discharged orally, but
it can be changed by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, or
discharge is sought.
9. Non-Waiver. Except as otherwise expressly provided
herein, no waiver of any covenant, condition, or provision of
this Agreement shall be deemed to have been made unless
expressly in writing and signed by the party against whom such
waiver is charged; and (i) the failure of any party to insist in
any one or more cases upon the performance of any of the
provisions, covenants, or conditions of this Agreement or to
exercise any option herein contained shall not be construed as a
waiver or relinquishment for the future of any such provisions,
covenants, or conditions, (ii) the acceptance of performance of
anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or
provision hereof shall not be deemed a waiver of such breach or
failure, and (iii) no waiver by any party of one breach by
another party shall be construed as a waiver with respect to any
other or subsequent breach.
10. Time of Essence. Time is of the essence of this
Agreement and of each and every provision hereof.
11. Entire Agreement. This Agreement contains the entire
Agreement and understanding between the parties hereto,
supersedes all prior agreements and understandings, and
constitutes a complete and exclusive statement of the
agreements, responsibilities, representations and warranties of
the parties.
12. Choice of Law. This Agreement and its application shall
be governed by the laws of the State of Florida.
13. Counterparts and Facsimile. This Agreement may be
executed simultaneously in one or more counterparts, each of
which shall be deemed an original, but all of which together
shall constitute one and the same instrument. This Agreement may
be executed by fax. Any signature page delivered by a fax
machine or facsimile copy machine shall be binding to the same
extent as an original signature page, with regard to this
Agreement or any amendment thereto. Any party who delivers such
a signature page agrees to later deliver an original counterpart
to any party which requires it.
14. Notices. All notices, requests, demands, and other
communications under this Agreement shall be in writing and
shall be deemed to have been duly given on the date of service
if served personally on the party to whom notice is to be given,
or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed as follows:
BRANDMAKERS:|
0000 Xxxx Xxxxx Xxxx Xxxxxx, XX. 00000
BRANDMAKERS Stockholders:
c/o Xxx Xxxxxxxxx
000 Xxxxxxx Xxx.
Xxxxxxx, XX. 00000
New Shareholders:
x/x Xxxx Xxxxxxxxx, Xxx.
0000 Xxxxxxxxx Xxx., Xxxxx 000
Xxxxx, XX 00000
All such notices, requests, demands and communications
shall be deemed to have been fully given: at the time delivered
by hand, if personally delivered; two business days after being
deposited in the mail, postage prepaid, if mailed; and the next
business day after timely delivery to the carrier, if sent by
overnight air courier warranting next-day delivery. Any party
may change the address to which each such notice or
communication shall be sent by giving written notice to the
other parties of such new address in the manner provided herein.
15. Binding Effect. This Agreement shall inure to and be
binding upon the heirs, executors, personal representatives,
successors and assigns of each of the parties to this Agreement.
16. Mutual Cooperation. The parties hereto shall cooperate
with each other to achieve the purpose of this Agreement, and
shall execute such other and further documents and take such
other and further actions as may be necessary or convenient to
effect the transaction described herein.
17. Announcements. The parties will consult and cooperate
with each other as to the timing and content of any
announcements of the transactions contemplated hereby to the
general public or to employees, customers or suppliers.
18. Expenses. Each party will pay its own legal, accounting
and any other out-of-pocket expenses reasonably incurred in
connection with this transaction, whether or not the transaction
contemplated hereby is consummated.
19. Survival of Representations and Warranties. The
representations, warranties, covenants and agreements of the
parties set forth in this Agreement or in any instrument,
certificate, opinion, or other writing providing for in it,
shall survive the Closing irrespective of any investigation made
by or on behalf of any party.
20. Arbitration of Disputes Any dispute or controversy
arising out of or relating to this Agreement, any document or
instrument delivered pursuant to, in connection with, or
simultaneously with this Agreement, or any breach of this
Agreement or any such document or instrument shall be settled by
arbitration to be held in Miami-Dade County, Florida in
accordance with the rules then in effect of the American
Arbitration Association or any successor thereto. Each party
hereby authorizes and accepts service of process sufficient for
personal jurisdiction in any arbitration against it as
contemplated by this paragraph by registered or certified mail,
return receipt requested, postage prepaid, to its address for
the giving of notices as set forth in this Agreement. The
arbitrator may grant injunctions or other relief in such dispute
or controversy. The decision of the arbitration shall be final,
conclusive and binding on the parties to the arbitration.
Judgment may be entered on the arbitrator's decision in any
court having jurisdiction. Except as otherwise provided herein,
each party in such arbitration shall pay their respective costs
and expenses of such arbitration and all the reasonable
attorneys' fees and expenses of their respective counsel.
21. Representation on Authority of Parties/Signatories. Each
person signing this Agreement represents and warrants that he or
she is duly authorized and has legal capacity to execute and
deliver this Agreement. Each party represents and warrants to
the other that the execution and delivery of the Agreement and
the performance of such party's obligations hereunder have been
duly authorized and that the Agreement is a valid and legal
agreement binding on such party and enforceable in accordance
with its terms.
22. Counsel. Each party hereby acknowledges that they have
had the opportunity to engage independent counsel and have this
Agreement and the transactions contemplated hereby reviewed by
counsel of their choosing and have been advised to do so. The
parties acknowledge that Xxxx Xxxxxxxxx, Esq. is representing
only the New Shareholders in this matter.
AGREED TO AND ACCEPTED as of the date first above written.
BRANDMAKERS, INC.
By: /s/ Xxxxxx Xxxxxxxxx
Title: President
NEW STOCKHOLDERS:
/s/Xxxx X. Xxxxxxxx
/s/Xxxxxxx Xxxxx
BRANDMAKERS STOCKHOLDERS:
/s/Xxxxxx Xxxxxxxxx
/s/Xxxxx Xxxxxxxx
/s/Xxx Xxxxxxxx
