EXHIBIT 2.1
AGREEMENT FOR PURCHASE AND SALE
OF STOCK OF
XXXXXXX XXXXXXXX, INC.
A CALIFORNIA CORPORATION
THIS AGREEMENT FOR PURCHASE AND SALE OF STOCK ("AGREEMENT") is entered
into this 31st day of December, 1996, by and between XXXXXXX XXXXXXXX, INC.,
a California corporation ("COMPANY"), and OSP Publishing, Inc., a Delaware
corporation ("SELLER") with reference to the following facts:
A. Seller owns fifty-one percent (51%) (five hundred and ten shares) of
the outstanding common stock (the "STOCK") of Company.
B. Seller now desires to sell and Company desires to redeem and
purchase from Seller all of the Seller's Stock for the Purchase Price (as
herein defined), and in accordance with the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties agree as follows:
1. PRIOR AGREEMENT.
Upon the payment in full of all obligations by Company to Seller
pursuant to this Agreement, any and all prior agreements between Company and
Seller, and any of Seller's agents, subsidiaries, employees, directors or
agents, are hereby terminated.
2. PURCHASE AND SALE OF STOCK.
2.1 Subject to the terms and conditions set forth herein, Seller
hereby sells, transfers and assigns to Company and Company hereby acquires,
accepts, purchases and redeems from Seller, all of Seller's right, title and
interest in and to the
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Stock and for other inter-company payables between Seller and Company for
the total sum of One Million Five Hundred Seventy-Five Thousand Dollars
($1,575,000.00) (the "PURCHASE PRICE").
2.2 Concurrent with the Closing (as that term is defined herein),
of the transaction contemplated by this Agreement, Company shall deliver a
cashier's check or wire transfer to Seller's counsel Xxxxxx, Xxxxxx &
Xxxxxxxx Attorney-Client Trust Account in the amount of Four Hundred
Seventeen Thousand Dollars ($417,000.00) and a One Million One Hundred
Fifty-Eight Thousand Dollar ($1,158,000.00) Promissory Note in the form of
Exhibit "2.2" hereto ("Promissory Note").
2.3 The Purchase Price set forth in paragraph 2.1 above shall be
allocated by the parties as provided for on the Schedule of Allocation
set forth on Schedule 2.3
3. CANCELLATION OF THE NOTE.
Concurrent with the payment in full of the Promissory Note provided
for in paragraph 2.2 of this Agreement, Seller shall deliver to the Company
the Promissory Note with a written notation, "This Promissory Note has been
paid in full," affixed to the face of the Promissory Note and signed by an
officer authorized by Seller.
4. RESIGNATION.
Effective with the payment of the Promissory Note, Seller shall
cause the resignation of Xxxxxxx Xxxx and Xxxxxx Xxxxxx as directors of
Company. Upon the execution of this Agreement, Xxxxxxx Xxxx and Xxxxxx
Xxxxxx shall execute and deliver their written resignations, as set forth on
Schedule "4," which shall be held in trust by Seller's counsel and shall be
delivered to Company's counsel at such time as said Promissory Note is
paid in full.
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5. PROMISSORY NOTE.
5.1 The Promissory Note referred to herein shall provide for the
payment of One Million One Hundred Fifty-Eight Thousand Dollars
($1,158,000.00) on or before February 28, 1997.
6. THE STOCK.
Concurrently with the Closing, Seller shall tender Five Hundred Ten
shares (510) shares of the Common Stock of Company represented by Stock
Certificate Numbers 7, 9 and 10, endorsed in blank, or a lost stock
certificate affidavit in a form reasonably satisfactory to Company evidencing
its entire ownership interest in and to all of the Stock and shall execute
and deliver such other documents as may be reasonably necessary under
applicable laws to consummate a transfer and redemption of the Stock.
7. CLOSING DATE.
The Closing shall occur on or before 4:30 p.m. on December 31, 1996,
at the Law Offices of Katz, Hoyt, Xxxxxx & Xxxxx, 00000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (the "CLOSING").
8. RELEASES.
Except for the specific obligations, representations and warranties
of the parties pursuant to this Agreement, or any other document or
instrument to be delivered in connection with this Agreement, and except as
otherwise provided herein, Company, on the one hand, and Seller on the other
hand, for itself and for its agents, servants, employees, shareholders,
subsidiaries, officers, directors, attorneys, accountants, agents,
successors, and assigns, forever release and discharge each and all of the
other parties hereto, and their respective agents, servants, employees,
shareholders, subsidiaries, officers, directors, attorneys, accountants,
agents, successors, and assigns, from any and all claims, demands, debts,
liabilities, accounts, obligations, costs, damages, losses, expenses, liens,
actions or causes of action, rights of indemnity (legal or equitable), rights
to subrogation,
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rights to contributions and remedies of any nature whatsoever (collectively
the "CAUSES OF ACTION"), know or unknown which each of the parties had, now
has or has acquired at any time prior to the date of the execution of this
Agreement, including specifically but not exclusively and without limiting
the generality of the foregoing, any and all claims, damages, demands and
causes of action, known or unknown, suspected or unsuspected, by each of
them, including specifically but not exclusively and without limiting the
generality of the foregoing: (i) outstanding receivables and payables
between Company and Seller; (ii) the Company's past, present and future
profits; or (iii) arising out of or in any way connected with any loss,
damage or injury whatsoever, known or unknown, suspected or unsuspected,
relating to any act or omission by or on the part of any party committed or
omitted prior to the date hereof.
9. WAIVER OF CIVIL CODE Section 1542.
The parties acknowledge that a risk exists that subsequent to the
execution of this Agreement, each party may incur or suffer losses, damages
or injuries which are in some way caused by circumstances or events referred
to above, but which were unknown or unanticipated at the time this Agreement
was executed. Each party does hereby assume the foregoing risks and agrees
that this Agreement shall apply to all unknown or unanticipated results of
the transactions and occurrences described above, as well as those known and
anticipated, and on the advice of counsel, each party does knowingly waive
any and all rights and protections under California Civil Code Section 1542,
which section has been duly explained and reads as follows:
A general release does not extend to the claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor.
10. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller makes the following representations and warranties (which
representations and warranties shall survive the execution
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of this Agreement), each of which (i) is material and is being relied upon by
Company; (ii) is true in all material respects as of the date hereof; and
(iii) shall be true as of the date of the Closing Date:
10.1 Seller is a corporation, duly organized, validly existing and
in good standing under the laws of the State of Delaware.
10.2 Seller is the sole owner of the Stock, free and clear of all
liens, encumbrances, claims, rights, demands, agreements and covenants.
10.3 Seller has entered into no commitments or agreements with any
governmental or nongovernmental person or entity affecting the Stock.
10.4 Neither this Agreement, nor any document or instrument to be
delivered hereunder, including but not limited to the transfer, assignment
and sale of the Stock violates or shall violate any oral or written contract
or agreement to which Seller is a party.
10.5 Seller has all requisite power and authority to enter into,
execute and deliver this Agreement and all other documents and instruments
to be executed by Seller in connection herewith and to transfer, convey and
sell to Company and the Stock.
10.6 Seller is the sole owner of, and has not previously assigned
or transferred any of its Causes of Action against the Company.
10.7 Seller and its officer, directors, shareholders, employees,
agents, assigns, and anyone acting in concert therewith shall not interfere
in any way with the operation and management of the Company.
10.8 Seller is not relying upon any representation or warranties,
oral, written or otherwise, with respect to the transaction which is
contemplated herein except as may be expressly set forth herein.
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10.9 Between the execution of this Agreement and the payment of the
Promissory Note, Seller will not take any action which intentionally and
directly lessens the monetary value of the Stock.
10.10 Seller has entered into no contract arrangement or
understanding with any broker, finder or similar agent with respect to the
transaction contemplated by this Agreement.
11. REPRESENTATIONS AND WARRANTIES OF COMPANY.
Company makes the following representations and warranties (which
representations and warranties shall survive the execution of this
Agreement), each of which (i) is material and is being relied upon by Seller;
(ii) is true in all material respects as of the date hereof; and (iii) shall
be true as of the date of the Closing.
11.1 Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of California.
11.2 Company has all requisite power and authority to enter into,
execute and deliver this Agreement and all of the documents and instruments
to be executed in connection herewith and to perform fully their obligations
hereunder and thereunder.
11.3 Neither this Agreement, nor any document or instrument to be
delivered hereunder, including but not limited to the transfer, assignment
and sale of the Stock to Company, violates or shall violate any oral or
written contract or agreement to which Company is a party.
11.4 Company is the sole owner of, and has not previously assigned
or transferred any of its Causes of Action against Seller.
11.5 Company has not entered into any contract, arrangement or
understanding with any broker, finder or similar agreement with respect to
the transaction contemplated by this Agreement.
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11.6 Company shall not and will not incur, except contemporaneously
with the payment of the Promissory Note, any obligations outside of the
ordinary and regular course of its operations consistent with its past
business practices.
12. SELLER'S INDEMNIFICATION.
Seller shall indemnify, defend and hold the Company, its
shareholders, directors, officers, employees, agents, attorneys, accountants,
successors and assigns, harmless from and against any and all claims, suits,
damages, losses, expenses, costs, obligations, liabilities, recoveries and
deficiencies, including without limitation, interest, penalties and
attorneys' fees and disbursements of all foreseeable and unforeseeable
consequential damages that they, or any of them, shall incur or suffer, and
that arise or result directly or indirectly from any breach of this Agreement
or any document or instrument executed in connection herewith.
13. BUYER'S INDEMNIFICATION.
The Company shall indemnify, defend, and hold Seller, its
shareholders, directors, officer, employees, agents, attorneys, accountants,
successors and assigns, harmless from and against any and all claims, suits,
damages, losses, expenses, costs, obligations, liabilities, recoveries and
deficiencies, including without limitation, interest, penalties and
attorneys' fees and disbursements, of all foreseeable and unforeseeable
consequential damages that they, or any of them, shall incur or suffer, and
that arise or result directly or indirectly from any breach of this Agreement
or any document or instrument executed in connection herewith.
14. BOARD OF DIRECTORS MEETING.
If the Four Hundred Seventeen Thousand Dollar ($417,000.00) payment
set forth in paragraph 2.2 above is not made on or before 4:30 p.m. on
December 31, 1996, there shall be a Company Board of Directors meeting on
December 31, 1996, at 5:00 p.m. at Duff & Xxxxxx, located at 0000 Xxxxxxx
Xxxx Xxxx, Xxxxx
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000, Xxx Xxxxxxx, Xxxxxxxxxx 00000. If the Promissory Note (Exhibit 2.2) is
not paid on or before 4:30 p.m. on February 28, 1997, there shall be a
Company Board of Directors meeting on February 28, 1997, at 5:00 p.m. at Duff
& Xxxxxx.
15. NOTICES.
All notices, requests and other communication hereunder shall be in
writing and shall be delivered by courier or other means of personal service
or sent by overnight mail or registered or certified mail, return receipt
requested, addressed to:
If to Company: Xxxxxxx XxXxxxxx, Inc.
Attn: Xxxxxxx XxXxxxxx
and Xxxxxxx Xxxx
00000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
With copy to: Xxxxxxx X. Xxxxx, Esq.
Katz, Hoyt, Xxxxxx & Xxxxx LLP
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000-0000
If to Seller: OSP Publishing, Inc.
Attn: Xxxxxxx Xxxx
and Xxxxxx Xxxxxx
0000 Xxxxxxxxx Xxxx
Xxxx, XX 00000
With copy to: Xxxxxxx X. Xxxxxx, Esquire
Xxxxxx, Xxxxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxxxx Xxxx.
Xxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
All notices, requests and other communication shall be deemed given
on the date of delivery if given by personal service (with confirmation
notice) or if sent by overnight mail or registered mail, return receipt
requested, upon delivery to the
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address set forth above. Any party may change their address for notices,
requests and other communication by giving notice in the manner specified
above.
16. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
17. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties and their
respective successors, assigns and legal representatives.
18. GOVERNING LAW.
This Agreement is to be governed by and construed in accordance with
the laws of the State of California. Any suit brought herein shall be
brought in any State or Federal Court located in Los Angeles, California, and
all parties hereto waive any claim or defense that such forum is not
convenient or proper.
19. ATTORNEYS' FEES.
In the event suit is commenced to enforce this Agreement or
otherwise related to this Agreement, the prevailing party shall be entitled
to reasonable attorneys' fees and costs incurred in connection therewith.
20. INTERPRETATION.
The parties each agree that each of them and their respective
counsel have reviewed carefully this Agreement and participated in its
negotiation and preparation. Accordingly, the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement.
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21. CAPTIONS.
The captions and headings used in this Agreement are for convenience
of reference only and shall not be deemed to alter or affect any provision
hereof.
22. FINAL AGREEMENT.
This Agreement constitutes the entire agreement among the parties
pertaining to the subject matter contained herein and therein, and supersedes
all prior agreements, representations and understandings of the parties.
23. NO MODIFICATION.
No modification or amendment hereof shall be of any force or effect
unless in writing and executed by all the parties hereto.
24. FURTHER ASSURANCES.
The parties shall take such action and execute and deliver such
further documents as may be reasonably necessary or appropriate to effectuate
the intentions of this Agreement.
25. EXPENSES.
Each party shall bear all of its own costs and expenses incurred in
connection with the transaction contemplated herein.
26. GUARANTY.
Company shall cause its President and sole shareholder to execute a
Non Recourse Continuing Personal Guaranty in the form of Schedule 26.
27. TELECOPY TRANSMISSION.
A signature required under this Agreement and any of the related
agreements contemplated by the parties to be executed in conjunction with
this Agreement may be executed by facsimile with
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the originals to be delivered within five (5) business days of the Closing.
The facsimile signature can be relied upon and used with the same force and
effect as though it were an original.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
"SELLER"
OSP Publishing, Inc.
By: /s/ XXXXXXX XXXX
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Xxxxxxx Xxxx, President
"COMPANY"
XXXXXXX XXXXXXXX, INC.
/s/ XXXXXXX XXXXXXXX
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Xxxxxxx XxXxxxxx, President
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