AGREEMENT
OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE, dated this_____ day of August 1999, by
and between:
Global Entertainment Holdings/Equities, Inc., a Colorado Corporation
(herein referenced to as "Purchaser"), with its principle
office at 0000 X. 00xx Xxxxxx, Xxxxx, Xxxxxxxx 00000
and
Prevail Online, Inc. or its assigns,
a Colorado Corporation (herein referred to as "Seller"), with its principle
office at 000 Xxxxxxxx Xxxxxx, #000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
and
owners of all the outstanding stock
of the Seller, (herein collectively referenced to as "Shareholders")
WITNESSETH:
WHEREAS, Purchaser has expressed an interest in the purchase and acquisition
of all of the issued and outstanding shares of Seller's capital stock, Seller
and its Shareholders; and
WHEREAS, Seller and Shareholders wish to sell on the terms and the
conditions and in the manner reflected herein, (100%) of the issued and
outstanding shares of capital stock of Seller; and
WHEREAS, Seller and Shareholders warrant that they own 100% of the issued
and outstanding capital stock of the Seller; and
WHEREAS, during the negotiations Purchaser was unable to verify the validity
of the financial, marketing, personnel and legal information furnished by
Seller; and
WHEREAS, Purchaser assumed the information provided by Sellers are true and
correct in all material respects and Purchaser and Seller reached the terms of
the acquisition of Seller's shares based upon this information; and
WHEREAS, Purchaser intends to conduct a thorough investigation of Seller's
business to independently verify this information; and
WHEREAS, Purchaser expects to expend substantial time, money and effort,
including both its internal staff and outside Consultants, investigating
Seller's business; and
WHEREAS, as a result of such investigation of the business of Seller,
Purchaser will divert much of its acquisition efforts away from other promising
prospects; and
WHEREAS, Purchaser agrees to provide Seller with a copy of all of its final
studies and reports in the event Purchaser elects not to purchase the shares of
Seller.
NOW, THEREFORE, in consideration of the premises and covenants and
Agreements contained herein, the Purchaser, and Seller agree to give and to
grant Purchaser a 90 day right to
purchase its shares under the terms and conditions set forth hereafter.
1. EXECUTION OF AGREEMENT. This Agreement shall at all times from the date of
its execution be a binding obligation of Seller and Shareholders. The Purchaser
shall be, thereafter, fully bound by all the terms and conditions of this
Agreement and shall thereafter be liable for any breach thereof. Prior to the
execution of the Agreement, Purchaser may at any time and for any reason elect
not to purchase shares from the Seller and Shareholders and Purchaser shall on
account thereof not be liable for any damages or additional consideration accept
as expressly stated hereinafter in this Section 1. In the event Purchaser
elects not to purchase the shares, Purchaser agrees to deliver to Seller a copy
of all financial reports and studies made in connections with its investigation
of Seller. Further, Purchaser covenants and agrees not to disclose to
competitors any confidential information gained as a result of its investigation
of Seller's business.
2. PURCHASE AND SALE. Seller agrees to sell and transfer to Purchaser, and
Purchaser agrees to purchase from Seller, the shares to be sold (as hereinafter
defined) on the Closing Date, at the Purchase Price, and upon, and subject to
the terms and conditions hereinafter set forth.
ARTICLE I
DEFINITIONS
1.1 GENERAL CONSTRUCTION: For purposes hereof, except as otherwise expressly
provided:
1.1.1 Defined terms include the plural as well as the singular;
1.1.2 All accounting terms not otherwise defined have the meanings
assigned under generally accepted accounting principles;
1.1.3 All references to Exhibits are to all the Exhibits attached to
this Agreement; and
1.1.4 Pronouns of either gender or neuter shall include, as
appropriate, the other pronoun forms.
1.2 DEFINITIONS: As used in this Agreement, the following terms shall have
the following definitions.
1.2.1 Affiliate: When used with respect to a person, an "affiliate"
of that person is a person controlling, controlled by, or under common control
with that person.
1.2.2 Agreement: This Agreement, including all of its Exhibits and
all other documents specifically referred to in this Agreement that have been or
are to be delivered by a party to this Agreement to another such party in
connection with the Transaction and this Agreement and including all duly
adopted amendments, modifications, and supplements to or for this Agreement,
Exhibits and other documents.
1.2.3 Unaudited Financial Statements: With respect to the Seller,
Prevail Online, Inc.
1.2.4 Closing: As defined in Article VIII.
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1.2.5 Closing Date: As defined in Section 8.1.
1.2.6 Seller's Balance Sheet: Balance Sheet as of_________ included
in the Unaudited Financial Statements.
1.2.7 Entity: A corporation, partnership, sole proprietorship, joint
venture, or other form of organization formed for the conduct of a business,
whether active or passive.
1.2.8 GAAP: Generally accepted accounting principles, as in effect on
the date of any statement, report or determination that purports to be, or is
required to be, prepared or made in accordance with GAAP. All references herein
to financial statements prepared in accordance with GAAP shall mean in
accordance with GAAP consistently applied throughout the periods to which
reference is made.
1.2.9 Inventories: The stock of goods held, if any, by the Seller
from time to time in the ordinary course of the business of the Seller, in the
form in which such inventories then are held or after incorporating with other
goods or items, or the like.
1.2.10 Liabilities: At any point in time (the "Determination Time"),
the obligations of a person or Entity, whether known or unknown, contingent or
absolute, recorded on its books or note, arising or resulting in any way from
facts, events, agreements, obligations or occurrences that existed or transpired
at a prior point in time, or resulted from the passage of time to the
Determination Time, but not including obligations accruing or payable after the
Determination Date to the extent (but only to the extent) that such obligations
(1) arise under previously existing agreements for services, benefits, or other
considerations, and (2) accrue or become payable with respect to services,
benefits, or other considerations received by the person or Entity after the
Determination Time.
1.2.11 Permits: Any permits, licenses, orders, approvals, franchises,
registrations, authorizations or other approvals from any federal, state, local
and foreign governmental or regulatory body or authority (public or self-
regulatory).
1.2.12 Subsidiary: A corporation with respect to which another Entity
owns, directly or indirectly, shares entitling it to elect a majority of the
Board of Directors or in which it has a majority of the equity interest.
1.2.13 Transaction: The purchase of all (100%) of the issued and
outstanding, .001 value shares of capital stock of the Seller by the Purchaser
from the Shareholder, as provided in Article II of this Agreement, Purchaser
will exchange One Hundred Sixty Three Thousand (163,000) of its $.001 par value
common stock for One Hundred (100,000) shares (100%) of all the Seller's, issued
and outstanding $.001 par value common stock.
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ARTICLE II
THE TRANSACTION
THE TRANSACTION: Subject to the terms, conditions, provisions and limitations
contained in this Agreement, the Purchaser, in reliance upon the
representations and warranties of the Shareholder and Seller made herein and in
the Exhibits attached hereto, will at the Closing, acquire from the Shareholder
and the Shareholder, in reliance upon the representations and warranties of the
Purchaser and the majority Shareholders of the Purchaser, made herein will at
the Closing, transfer, convey and assign (with full assignment powers) to the
Purchaser, free and clear of any and all liens, charges or other encumbrance,
100,000 shares of common stock, $.001 par value, of the Seller, comprising all
(100%) of the, issued and outstanding shares of capital stock of the Seller and
representing their entire ownership of equity securities of the Seller. Any
corporate actions necessary to accomplish this or to obtain outstanding shares
of the Seller for conveyance to the Purchaser at Closing shall be the sole
responsibility of the Shareholder and the Seller; and, the Purchaser hereby
agrees to transfer, convey and assign (with full assignment powers) to Sellers,
One Hundred Sixty Three Thousand (163,000) shares of the Purchaser's $.001 non-
assessable, par value common stock which represents 1.7% of the Purchaser's
issued and outstanding common stock, as of the closing.
2.1 OPTIONS TO SHAREHOLDER: Per the Letter of Intent to Enter into an
Executive Employment Agreement attached hereto as Exhibit "L", Purchaser will
grant to Seller 90,000 options in accordance with the terms set forth in above
referenced Exhibit "L" for the purpose of Executive Compensation.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SHAREHOLDER AND THE SELLER
The Shareholder, jointly and severally, and the Seller make the following
representations and warranties to the Purchaser, each of which shall be deemed
material, and all of which are qualified with respect to the effect, if any,
that any potential claims by Prevail Online, Inc. or any of their controlling
persons or Shareholders has or may have relating to this Agreement and/or former
relationships of Shareholder with those companies, which matters have been
discussed by the parties in detail prior to the execution of this Agreement:
3.1 VALID CORPORATE EXISTENCE; QUALIFICATION: Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Colorado. Seller has the corporate power and authority to carry on its business
as now being conducted. The Seller is duly qualified as a corporation to do
business, and is in good standing in each jurisdiction where the character of
the properties are owned or leased by it. A copy of the Seller's Certificate of
Incorporation (certified by the appropriate official of the State of Colorado)
and by-laws
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and minute books (certified by the Seller's Secretary), as amended to date,
which will be delivered to the Purchaser at or prior to the Closing, are true
and complete copies of those documents as now in effect. The minute books of
the Seller contain accurate records of all meetings of its Board of Directors,
and stockholders since its incorporation, and accurately reflect all
transactions referred to therein.
3.2 CAPITALIZATION: The authorized capital stock of the Seller consists of OK
75,000,000 shares of common stock, $.001 par value per share and 25,000,000
shares of preferred stock There is no other capital stock authorized for
issuance. As of the date hereof, there are 100,000 shares of common stock
validly issued and outstanding, fully paid and non-assessable and no shares are
reserved for issuance nor are there outstanding any options, warrants,
convertible instruments or other rights, agreements or commitments to acquire
common stock of the Seller. The shares are currently held by the Shareholders
(free and clear of all liens and encumbrances) as follows:
Xxxxxx X. Xxxxxxx 93,577.98 93.6%;
Xxxxxx Xxxx 6,422.02 6.4%.
3.3 CORPORATE AUTHORITY; BINDING NATURE OF AGREEMENT: The Seller has the power
to enter into this Agreement and to carry out its obligation hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by the Majority
Shareholders of the Seller and no other corporate proceedings on the part of the
Seller are necessary to authorize the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby. This Agreement
constitutes the valid and binding obligation of the Seller and is enforceable in
accordance with its terms.
3.4 CONSENTS: There are no consents of governmental and other regulatory
agencies, foreign or domestic, and of other third parties required to be
received by or on the part of the Shareholder or the Seller, to enable it to
enter into and carry out this Agreement in all material respects.
3.5 FINANCIAL STATEMENTS: The Seller, at the closing Date, will deliver to the
Purchaser, the Unaudited Financial Statements of the Seller. All of the
historical financial statements contained in such documents will have been
prepared from the books and records of the Seller. The Unaudited Financial
Statements and the consolidated audit will be prepared in accordance with GAAP,
and fairly and accurately reflect the financial position and condition of the
Seller at the dates and for the periods indicated. Without limiting the
foregoing, at the date of the Seller's Balance Sheet, the Seller will have owned
each of the assets included in preparation of the Seller's Balance Sheet, and
for the valuation of such assets in the Seller's Balance Sheet, will not be for
more than their fair saleable value (on an item by item basis) at that date; and
the Seller will have no Liabilities other than those included in the Seller's
Balance Sheet, nor any Liabilities in amounts in excess of the amounts included
for them in the Seller Balance Sheet. From the date hereof, through the Closing
Date, the Seller will continue to prepare financial statements on the
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same basis that it has done so in the past, will promptly deliver the same to
the Purchaser, and agrees that from and after such delivery, the foregoing
representations will be applicable to each financial statement so prepared and
delivered. The Unaudited Financial Statements will be prepared by the
Company's accountant, whose report thereon is included herein and referenced as
Exhibit "B".
3.6 NO UNDISCLOSED LIABILITIES: Except as set forth in the Seller's Balance
Sheet included in the Unaudited Financial Statements as Exhibit B, the Seller
has no material debts, liabilities or obligations, known or unknown, contingent
or absolute, in excess of $1,000, except those arising in the ordinary course of
business of the Seller and consistent with past practice.
3.7 ACTIONS SINCE THE SELLER'S BALANCE SHEET: Except as set forth and reflected
in this Agreement, since the date of the Seller's Balance Sheet, the Seller has
not:
3.7.1 incurred any material obligation or liability, known or unknown,
absolute or contingent, except those arising in the ordinary and usual course of
its business and those incurred in connection with the transactions contemplated
by this Agreement;
3.7.2 issued or sold, or agreed to issue or sell any capital stock of
the Seller or any securities convertible into or rights to acquire any such
capital stock or any dividend or distribution declared, set aside or paid on any
such capital stock;
3.7.3 discharged or satisfied any lien or encumbrance, except in the
ordinary and usual course of business, or paid or satisfied any liability,
absolute or contingent, other than as set forth in the Seller's Balance Sheet in
the ordinary and usual course of business and those incurred in connection with
the transactions contemplated by this Agreement;
3.7.4 made any wage or salary increases or granted any bonuses other
than wage and salary increases and bonuses granted in accordance with its normal
salary increase and bonus policies;
3.7.5 mortgage, pledged or subjected to any lien, pledge, charge or
other encumbrance any of its properties or assets, or permitted any of its
property or assets to be subject to any lien or other encumbrance, except in the
ordinary and usual course of business;
3.7.6 sold, assigned or transferred any of its properties or assets,
except in the ordinary and usual course of business;
3.7.7 entered into any transaction or course of conduct not in the
ordinary and usual course of business;
3.7.8 waived any rights of substantial value, or canceled, modified or
waived any indebtedness for borrowed money held by it, except in the ordinary
and usual course of business;
3.7.9 made any loans or advances to any person or assumed, guaranteed,
endorsed or otherwise became responsible for the obligations of any person; or
3.7.10 incurred any indebtedness for borrowed money (except for
endorsement, for collection or deposit of negotiable instruments received in the
ordinary and usual course of
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business).
3.8 NO ADVERSE DEVELOPMENTS: Since the date of the Seller's Balance Sheet,
there has not been:
3.8.1 any material adverse changes in the assets, properties,
operations, financial condition or prospects of the Seller;
3.8.2 any damage, destruction or loss, whether covered by insurance or
not, having a material adverse effect on the business, operations, financial
condition or prospects of the Seller;
3.8.3 any entry into or termination of any material commitment,
contract, agreement or transaction affecting the Seller, including, without
limitation, any material borrowing or capital expenditure or sale or other
disposition of any material asset or assets, other than this Agreement and
agreements executed in the ordinary and usual course of business;
3.8.4 any transfer of or right granted under any material lease,
license, agreement, patent, trademark, trade name or copyright;
3.8.5 default or breach by the Seller in any material respect under any
contract or Permit;
3.8.6 any event other than in the ordinary and usual course of business
which could be reasonably expected to have a material adverse effect upon the
business of the Seller, and after reasonable inquiry by the Shareholder and the
Seller, they know of no development or threatened development of a nature that
is, or which could be reasonably expected to have a materially adverse effect
upon the business of the Seller or upon any of its assets, properties,
operations or financial conditions.
3.9 TAXES: All tax returns of Seller which are due have been duly filed and
are correct and all taxes, assessments and other governmental charges upon the
Seller which are shown to be due and payable thereon have been paid. All tax
returns of the Seller which become due prior to the Closing shall be timely
filed by the Seller. The Seller does not know of any ongoing tax audit,
proposed tax deficiency, assessment, charge or levy against it, the payment of
which is not adequately provided for on the books of the Seller. The Seller
will provide to the Purchaser prior to the Closing a true and correct copy of
its tax returns for the prior three years, any returns filed subsequent to the
date hereof.
3.10 OWNERSHIP OF ASSETS: The Seller owns outright, and has good, marketable
and insurable title to all of its assets and properties reflected in the
Seller's Balance Sheet of business since the Seller's Balance Sheet date, free
and clear of all liens, mortgages, pledges, conditional sales agreements,
restrictions on transfer or other encumbrances or charges whatsoever. The
Seller does not own any patents, copyrights, trademarks, trade names or other
similar intangible assets. No other person has any ownership or similar right
in, or contractual or other right to acquire any such right in, any of the
Seller's assets. The Shareholder and the Seller do not know of any potential
action by any party, governmental or other and no proceedings with respect
thereto have been instituted of which the Seller has notice that would
materially effect the Seller's ability to use and to utilize
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each of such assets in its business. Exhibit "C" sets forth a listing of all
major equipment owned by the Seller, including a description thereof. All
properties and other assets owned by the Seller or used by the Seller in the
conduct of its business are in good operating condition and repair (ordinary
wear and tear excepted), are suitable for the conduct of its business as
presently conducted, have been properly maintained, and do not require any
maintenance or repairs except for routine maintenance and repairs that are not
material in nature or in cost.
3.11 INSURANCE: Policies of fire, liability, workers compensation and other
forms of insurance maintained by the Seller, which are usual and customary in
the business of the Seller as to amount and scope, and are adequate to protect
the Seller against any reasonably foreseeable risk of loss, including business
interruption, are listed in Exhibit "D" and identifies for each policy, the
carrier, amount of coverage, annual premium, risks covered, placing broker or
agent, and other relevant information as to each. All policies listed in
Exhibit D have been provided to the Purchaser prior to the Closing. All
premiums have been currently paid on such policies, and all policies will be
maintained and, if necessary, renewed through the Closing Date. Neither the
Shareholder nor the Seller have failed to give any notice or present any claim
under any such policy as to which any insurance Seller is denying liability or
defending under a reservation of rights clause or otherwise.
3.12 LITIGATION, COMPLIANCE WITH LAW: There are no pending or threatened
actions, suits, proceedings or governmental investigations or reviews relating
to the Seller or any of its properties, assets or business or, to the knowledge
of the Shareholder or the Seller, any order, injunction, award or decree
outstanding, against the Seller or against or relating to any of its properties,
assets or business; and the Shareholder and the Seller, after reasonable
inquiry, knows of no basis for any such action, suits or proceedings or any such
governmental investigations, reviews, orders, injunctions or decrees. To the
knowledge of the Shareholder and the Seller, the Seller is not in violation of
any material law, regulation, ordinance, order, injunction, decree, award, or
other requirement of any governmental body, court or arbitrator relating to its
properties, assets or business.
3.13 COMPLIANCE WITH INSTRUMENTS; ETC: The Seller is not:
3.13.1 in default under any indenture, agreement or instrument to which
it is a party or by which it is bound; or
3.13.2 in violation of its Certificate of Incorporation, by-laws or of
any applicable law.
3.14 INVENTORIES: All Inventories of the Seller, whether or not reflected in
the Seller's Balance Sheet are of a quality and quantity usable and salable in
the ordinary course of business, except for obsolete items and items of below
standard quality, all of which in the aggregate are immaterial in amount. Items
included in such Inventories are carried on the books of the Seller, and are
valued on the Seller's Balance Sheet, at the lower of cost or market and, in any
event, are not greater than their net realizable value, on an item-by-item
basis, after appropriate deductions for cost of completion, marketing costs,
transportation expense and allocation of overhead. To the best
8
knowledge of the Seller, the Inventory is unadulterated and does not contain any
ingredient or substances prohibited by pertinent laws, rules or regulations and
all labels for and printed materials relating to the Inventory correctly
represent the ingredients thereto and comply with all laws, rules or regulations
pertaining to the labeling of the products comprising the Inventory.
3.15 TRADE NAMES: There are no trade names under which the Seller has conducted
any part of its business since inception.
3.16 REAL PROPERTY: The Seller owns no real property and leases the real
property. (See Lease, Exhibit "E")
3.17 INTEREST IN COMPETITOR, SUPPLIERS OR CUSTOMERS: None of the officers,
directors or shareholders of the Seller or, to the best of their knowledge,
members of their immediate families, owns an interest in any person or firm
which is a competitor, supplier, or customer of or to the Seller or, has an
existing contractual relationship with the Seller.
3.18 ACCOUNTS PAYABLE: The accounts payable reflected on the Seller's Balance
Sheet, and those reflected in the most recent balance sheet included in the
Unaudited Financial Statements, and those reflected on the books of the Seller
at the time of the Closing, reflect all amounts owed by the Seller in respect of
trade accounts due and other payables of the Seller, and the actual Liability of
the Seller in respect of such obligations was not and will not be, on any of
such dates, in excess of the amounts, so reflected on the balance sheets or the
books of the Seller, as the case may be.
3.19 EMPLOYEES: To their best knowledge, the Seller has complied with all
laws, regulations and orders relating to the employees of its business,
including but not limited to OSHA, EEO, ERISA, and wages and hours. None of the
Seller's employees are represented by any labor union or collective bargaining
agent. The Seller does not maintain or make any employer contributions under
any bonus, profit sharing compensation, or other plans, agreements, trusts,
funds, or arrangements for the benefit of directors, officers or employees of,
or whose principal responsibilities relate to, the Seller, and with the
exception of the Letter of Intent to Enter into an Executive Employment
Agreement attached as Exhibit "L", there are no employment, consulting,
severance, or indemnification arrangements, agreements, or understandings
between the Seller and any current or former directors, officers or other
employees (or Affiliates thereof) of, or whose principal responsibilities relate
to, the Seller. Exhibit "F" identifies all present employees of the Seller and
their respective salaries. The Seller is not, and following the Closing will
not be, bound by any express or implied contract or agreement to employ,
directly or as a consultant or otherwise, any person for any specific period of
time, except as set forth pursuant to the provisions hereof.
3.20 AGREEMENTS AND OBLIGATIONS; PERFORMANCE: Exhibit "G" sets forth a list
of material agreements to which the Seller is a party or is otherwise bound.
Other than these material agreements, the Seller is not party to or bound by
any:
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3.20.1 written or oral agreement or other contractual commitment,
understanding or obligation which involves aggregate payments or receipts in
excess of $2,000 that cannot be cancelled on 30 days or less notice without
penalty or premium or any continuing obligation or liability;
3.20.2 contractual obligation or contractual liability of any kind to
the Shareholder or Seller which will not be cancelled on or prior to the Closing
except as otherwise provided by this Agreement;
3.20.3 contract, arrangement, commitment or understanding with its
customers or any officer, employee, stockholder, director, representative or
agent thereof for the repurchase of products, sharing of fees, the rebating of
charges to such customers, bribes, kickbacks from such customers or other
similar arrangements;
3.20.4 contract for the purchase or sale of any materials, products or
supplies or for any services, which commits or will commit it for a fixed term;
3.20.5 contract of employment with any employee not terminable at will
without penalty or premium or any continuing obligation or liability, except as
otherwise provided by this Agreement;
3.20.6 deferred compensation, bonus or incentive plan or agreement not
cancelled at will without penalty or premium or any continuing obligation or
liability which will not be cancelled on or prior to the Closing;
3.20.7 management or consulting agreement not terminable at will
without penalty or premium or any continuing obligation or liability which the
Seller and each such individual agree to cancel on the Closing Date;
3.20.8 lease for real or personal property (including borrowings
thereon) license or royalty agreements;
3.20.9 union or other collective bargaining agreement;
3.20.10 agreement, commitment or understanding relating to indebtedness
for borrowed money;
3.20.11 contract which, by its terms, requires the consent of any party
thereto, to the consummation of the transactions contemplated hereby;
3.20.12 contract containing covenants limiting the freedom of the
Seller to engage or compete in any line or business or with any person in any
geographical area;
3.20.13 contract or option relating to the acquisition or sale of any
business;
3.20.14 voting trust agreement or similar agreement;
3.20.15 option for the purchase of any asset, tangible or intangible;
or
3.20.16 other contract, agreement, commitment or understanding which
materially affects any of its properties, assets or business, whether directly
or indirectly, or which was entered into other than in the ordinary course of
business. The Seller has in all material respects
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performed all material obligations required to be performed by it to date under
all agreements to which it is a party and is not in default in any material
respect under any of its agreements and has received no notice of any default or
alleged default which has not heretofore been cured or which notice has not
heretofore been withdrawn.
3.21 COOPERATION IN FILING WITH SEC OR OTHER REGULATORY AGENCIES: The
Shareholders and the Seller shall cause its officers, directors, employees,
accountants and attorneys to cooperate fully with the Purchaser in connection
with the filing of any statements, public or private offerings, returns or
notices with the Securities and Exchange Commission, NASD, or any other
Regulatory Agency.
3.22 NO SUBSIDIARIES: The Seller does not have any subsidiaries and the Seller
and the Shareholder do not own directly or indirectly any equity interest in any
other business or entity which deals in or relates to the World Wide Web
Publishing industry. The Shareholder and the Seller shall transfer to the
Purchaser all of their right, title and interest in and to any such entity
without any further consideration payable to them by the Purchaser and shall
execute such documents as are necessary to effectuate this purpose.
3.23 NO BREACH: Neither the execution and delivery of this Agreement nor
compliance by the Shareholder and the Seller with any of the provisions hereof
nor the consummation of the transactions contemplated hereby, will:
3.23.1 violate, alone or with notice over the passage of time, result
in the material breach or termination of, or otherwise give any contracting
party the right to terminate, or declare a default under, the terms of any
material agreement or other material document or undertaking, oral or written to
which the Seller is a part or by which its properties or assets may be bound;
3.23.2 result in the imposition of any lien, mortgage, security
interest, pledge, encumbrance, easement, claim or other restriction or charge on
any of the assets of the Seller, and will not alter or impair any of the assets
of the Seller nor the Purchaser's ability to utilize in the same manner in which
they are currently utilized by the Seller in connection with its business;
3.23.3 violate any judgment, order, injunction, decree or award
against, or binding upon, the Seller or upon its properties or assets; or
3.23.4 violate any law or regulation of any jurisdiction relating to
the Seller, its assets or properties.
3.24 BROKERS: All negotiations relative to this Agreement and the Transaction
contemplated hereby have been carried on directly with the Purchaser without the
intervention of any broker, finder investment banker or other third party.
Shareholder and the Seller have not engaged, consented to, or authorized any
broker, finder, investment banker or any other third party to act on its behalf,
directly or indirectly, as a broker or finder in connection with this Agreement
and the Transaction, and the Shareholder and the Seller agree to indemnify the
Purchaser against, and to hold the Purchaser harmless from any claim for
brokerage or similar commission or other
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compensation which may be made against the Purchaser by any third party in
connection with any of the transactions contemplated hereby which claim is based
upon any action by the Shareholder or the Seller.
3.25 UNTRUE OR OMITTED FACTS: No representation, warranty, document,
certificates or other writings furnished by the Shareholder or the Seller in
this Agreement contains any untrue statement of a material fact, or omits to
state a fact necessary in order to make such representations, warranties or
statements not materially misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser makes the following representations and warranties to the
Shareholder, each of which shall be deemed material:
4.1 VALID CORPORATE EXISTENCE; QUALIFICATIONS: The Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Colorado. The Purchaser has the corporate power and authority to carry
on its business as now being conducted. There is no jurisdiction in which
failure to qualify would have a material adverse effect on the Purchaser or its
assets, properties or business. A copy of the Purchaser's Certificate of
Incorporation (certified by the appropriate official of the State of Colorado)
and by-laws and minute books (certified by the Purchaser's Secretary), as
amended to date, which will be delivered to the Shareholder and Seller at or
prior to the Closing, are true and complete copies of those documents as now in
effect. The minute books of the Purchaser contain accurate records of all
meetings of its Board of Directors, and stockholders since its inception, and
accurately reflect all transactions referred to therein.
4.2 CAPITALIZATION: (Xxxxx needs to confirm these numbers)The authorized
capital stock of the Purchaser consists of 100,000,000 shares of $.001 par
value, non-assessable, common stock, of which 9,684,437 shares are issued and
outstanding, see Exhibit "H" for list of shareholders. The Purchaser has other
capital stock authorized for issuance consisting of twenty-five million
(25,000,000) shares of $.001 par value Preferred Stock of which, there is none
issued and outstanding at this time.
4.3 CORPORATE AUTHORITY; BINDING NATURE OF AGREEMENT: The Purchaser has the
power to enter into this Agreement and to carry out its obligation hereunder.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by the Board of
Directors of the Purchaser and no other corporate proceedings on the part of the
Purchaser are necessary to authorize the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby. This
Agreement constitutes the valid and binding obligation of the Purchaser and is
enforceable in accordance with its terms.
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4.4 CONSENTS: There are no consents of governmental and other regulatory
agencies, foreign or domestic, and of other third parties required to be
received by or on the part of the Purchaser, to enable it to enter into and
carry out this Agreement in all material respects.
4.5 BROKERS: All negotiations relative to this Agreement and the Transaction
contemplated hereby have been carried on directly with the Shareholders and the
Seller without the intervention of any broker, finder, investment banker or
other third party. The Purchaser has not engaged, consented to, or authorized
any broker, finder, investment banker or any other third party to act on its
behalf, directly or indirectly, as a broker or finder in connection with this
Agreement and the Transaction, and the Purchaser agrees to indemnify the
Shareholder and the Seller against, and to hold the Shareholder and the Seller
harmless from any claim for brokerage or similar commission or other
compensation which may be made against the Shareholder or the Seller by any
third party in connection with any of the transactions contemplated hereby which
claim is based upon any action by the Purchaser.
4.6 FINANCIAL STATEMENTS: The Purchaser, prior to the Closing Date, will
deliver to the Sellers, the Unaudited Financial Statements of the Purchaser.
All of the historical financial statements contained in such documents will have
been prepared from the books and records of the Purchaser. The Unaudited
Financial Statements and the consolidated audit will be prepared in accordance
with GAAP, and fairly and accurately reflect the financial position and
condition of the Purchaser as at the dates and for the periods indicated.
Without limiting the foregoing, at the date of the Purchaser's Balance Sheet,
the Purchaser will have owned each of the assets included in preparation of the
Purchaser's Balance Sheet, and for the valuation of such assets in the
Purchaser's Balance Sheet, will not be for more than their fair saleable value
(on an item by item basis) at that date; and the Purchaser will have no
Liabilities other than those included in the Purchaser's Balance Sheet, nor any
Liabilities in amounts in excess of the amounts included for them in the
Purchaser's Balance Sheet. From the date hereof, through the Closing Date, the
Purchaser will continue to prepare financial statements on the same basis that
it has done so in the past, will promptly deliver the same to the Sellers, and
agrees that from and after such delivery, the foregoing representations will be
applicable to each financial statement so prepared and delivered. The Unaudited
Financial Statements will be prepared by the Company's accountant, whose report
thereon is included herein and referenced as Exhibit "B".
4.7 NO UNDISCLOSED LIABILITIES: Except as set forth in the Purchaser's
Balance Sheet included in the Unaudited Financial Statements as Exhibit B, the
Purchaser has no material debts, liabilities or obligations, known or unknown,
contingent or absolute, in excess of $1,000, except those arising in the
ordinary course of business of the Purchaser and consistent with past practice.
4.8 LITIGATION, COMPLIANCE WITH LAW: There are no pending or threatened
actions, suits, proceedings or governmental investigations or reviews relating
to the Purchaser or any of its properties, assets or business or, to the
knowledge of the Purchaser, any order, injunction, award
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or decree outstanding, against the Purchaser or against or relating to any of
its properties, assets or business; and the Purchaser, after reasonable inquiry,
knows of no basis for any such action, suits or proceedings or any such
governmental investigations, reviews, orders, injunctions or decrees, with the
exception of the counter suit filed by former Directors and Officers of BSW,
formally a wholly owned subsidiary of the Purchaserto the knowledge of the
Purchaser, the Purchaser is not in violation of any material law, regulation,
ordinance, order, injunction, decree, award, or other requirement of any
governmental body, court or arbitrator relating to its properties, assets or
business.
ARTICLE V
COVENANTS OF THE SHAREHOLDER AND THE SELLER
5.1 COVENANTS OF THE SHAREHOLDER AND THE SELLER: The Shareholder and the
Seller hereby covenants to, from and after the date hereof and until the Closing
or earlier termination of this Agreement, without the prior written consent of
the Purchaser:
5.1.1 Best Efforts: To take every action reasonably required of it and
use its best efforts to satisfy the conditions at closing as set forth in this
Agreement and otherwise to ensure the prompt and expedient consummation of the
Transaction substantially as contemplated by this Agreement, and will exert all
reasonable efforts to cause the Transaction to be consummated, provided in all
instances that the representations and warranties of the Purchaser in this
Agreement are and remain true and accurate and that the covenants and agreements
of the Purchaser in this Agreement are satisfied or appear capable of being
satisfied and subject, at all times, to the right and ability of the directors
of the Seller to satisfy their fiduciary obligations.
5.1.2 Access and Information: To afford the officers, attorneys,
accountants and other authorized representatives of the Purchaser (collectively,
the "Representatives"), free and full access, during regular business hours and
upon reasonable notice, to all of its books, records, contracts, commitments and
properties (including, without limitation, tax returns) at the Purchaser's own
expense, to review, examine and investigate the books, records and properties of
the Seller to determine the accuracy of the representations and warranties made
by the Shareholder and the Seller. The Shareholder and the Seller shall cause
its employees, accountants and attorneys to cooperate fully with said review,
examination and investigation. The Seller shall promptly furnish to the
Purchaser (i) all communications to its directors or to its Shareholder,
generally, (ii) internal monthly financial information concerning its business
properties and personnel as the Purchaser may reasonably request.
5.1.3 Insurance: To maintain in full force and effect insurance
coverage of a type and amount customary in its business, but not less than
presently in effect.
5.1.4 Discharge Taxes and Indebtedness: To pay and discharge, as they
become due, all taxes, assessments, debts, claims and other governmental or non-
governmental charges lawfully imposed upon on incurred by it or the properties
and assets of the Seller, except taxes,
14
assessments, debts, claims and charges contested in good faith in appropriate
proceedings for which the Seller shall have set aside adequate reserves for the
payment of such tax, assessment, debt, claim or charge. The Seller shall
provide the Purchaser, upon the Purchaser's request, evidence of payment of such
taxes, assessments, debts, claims and charges satisfactory to the Purchaser.
5.1.5 Compliance with Agreements; Compliance with Laws: To comply
with the terms and conditions of all material agreements, commitments or
instruments to which the Shareholder or the Seller is a party or by which he or
it may be bound. The Shareholder and the Seller shall duly comply in all
material respects with any material laws, ordinances, rules and regulations of
any foreign, federal, state or local government or any agency thereof, or any
writ, order or decree, and conform to all valid requirements of governmental
authorities relating to the conduct of its business, properties and assets. The
Seller also covenants to file all tax returns as they become due prior to the
Closing.
5.1.6 No Indebtedness: Not to incur any obligation or liability,
absolute or contingent, except for those incurred in the ordinary and usual
course of its business or in connection with the transactions contemplated by
this Agreement.
5.1.7 No Dividend, Retirement or Purchase of Stock: Not to declare or
pay any dividend or distribution, in cash or otherwise, or any shares of stock
of the Seller or redeem, return, purchase or otherwise acquire directly or
indirectly any shares of stock.
5.1.8 Conduct of Business Prior to Closing:
(i) to conduct its business only in the ordinary and usual
course and make no material change in any of its business practices and
policies;
(ii) to use its best efforts to preserve its business
organization intact, to keep available the services of its present employees and
consultants and to preserve its good will;
(iii) to maintain good relationships with suppliers, lenders,
creditors, employees, customers and others having business or financial
relationships with them;
(iv) it shall not (a) amend its Certificate of Incorporation or
by-laws or (b) split, combine, or reclassify any of its outstanding securities;
(v) it shall not (a) adopt, enter into, or amend any bonus,
profit sharing, compensation, stock option, warrant, pension, retirement,
deferred compensation, employment, severance, termination, or other employee
benefit plan, agreement, trust fund, or arrangement for the benefit or welfare
of any officer, director or employee of the Seller or (b) agree to any material
(in relation to historical compensation) increase in compensation payable or to
become payable to, or any increase in the contractual term of employment of, any
such employee, except in the ordinary course of business in accordance with past
practice;
(vi) it shall not sell, lease, mortgage, encumber, or otherwise
dispose of or grant any interest in any of its assets or properties except for
sale, encumbrances and other dispositions or
15
grants in the ordinary course of business and consistent with past practice and
except for liens for taxes not yet due or liens or encumbrances that are not
material in amount or effect and do not impair the use of the property, or as
specifically provided for or permitted in this Agreement;
(vii) it shall not enter into, or terminate, any material
contract, agreement, commitment or understanding;
(viii) it will not hold any meetings of its board of directors,
or any committee thereof, or of its Shareholder, without giving a representative
selected by the Purchaser the option to attend the same (although the Seller may
request that such representative absent himself during that portion of any such
meeting that pertains to issues arising under this Agreement); and
(ix) it shall immediately notify the Purchaser of any event or
occurrence or emergency material to, and not in the ordinary and usual course of
business.
5.1.9 No Breach: Not to voluntarily take any action or do anything
which will cause a breach of or default respecting its covenants,
representations or warranties set forth herein and promptly to notify the
Purchaser of any event or fact which represents or is likely to cause such a
breach or default.
5.1.10 Publicity: Prior to the Closing, any written news releases by
the Seller pertaining to this Agreement or the Transaction shall be submitted to
the Purchaser for review and approval prior to release by the Seller, and shall
be released only in a form approved by the Purchaser, provided, however, that
such approval shall not be unreasonably withheld, and (b) such review and
approval shall not be required, if prior review and approval would prevent the
timely and accurate dissemination of such press release as required to comply,
in the judgment of counsel, with any applicable law, rule or policy.
5.1.11 Updating of Schedules and Exhibits: The Seller and
Shareholder shall notify the Purchaser of any changes, additions or event which
may cause any change in or addition to any Exhibits delivered by it under this
Agreement, promptly after the occurrence of the same and at the Closing by the
delivery of updates of all Exhibits. No notification pursuant to this Section
shall be deemed to cure any breach of any representation or warranty made in
this Agreement unless the Purchaser specifically agrees thereto in writing nor
shall any such notification be considered to constitute or give rise to a waiver
by the Purchaser of any condition set forth in this Agreement.
5.1.12 Understanding of Shareholder and Seller: Shareholders hereby
state and understand that the materials, including current financial statements,
current income tax returns prepared and delivered by Shareholders, and they are
familiar with the Business of Purchaser, and they are acquiring the Purchaser's
restricted shares under Section 4(2), commonly known as the private offering
exemption of the Securities Act of 1933, as amended.
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ARTICLE VI
COVENANTS OF THE PURCHASER
6.1 COVENANTS OF THE PURCHASER: The Purchaser hereby covenants to, from and
after the date hereof and until the Closing or earlier termination of this
Agreement:
6.1.1 Best Efforts: To take every action reasonably required of in and
use its best efforts to satisfy the conditions to Closing set forth in this
Agreement and otherwise to ensure the prompt and expedient consummation of the
Transaction substantially as contemplated by this Agreement, and will exert all
reasonable efforts to cause the Transaction to be consummated, provided in all
instances that the representations and warranties of the Shareholder and the
Seller in this Agreement are and remain true and accurate and that the covenants
and agreements of the Shareholder and the Seller in this Agreement are satisfied
or appear capable of being satisfied and subject, at all times, to the right and
ability of the directors of the Purchaser to satisfy their fiduciary
obligations.
ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATION
OF THE SHAREHOLDER AND THE SELLER TO CLOSE
The obligation of the Shareholder and the Seller to enter into and complete the
Closing is subject to the fulfillment, prior to the Closing Date, of each of the
following conditions, any one or more of which may be waived by the Shareholder
or the Seller:
7.1 CONSENTS, LICENSES AND PERMITS: The Purchaser shall have obtained all
consents, licenses, permits, approvals and authorizations and waivers of third
parties necessary for the performance by it of all of its obligations under this
Agreement.
7.2 REPRESENTATIONS AND WARRANTIES: All representations and warranties of the
Purchaser set forth in this Agreement and in any written statement or other
document delivered pursuant hereto or in connection with the Transaction
contemplated hereby shall be true in all material respects as at the Closing
Date, as if made at the Closing and as of the Closing Date.
7.3 COVENANTS: The Purchaser shall have performed and complied in all material
respects with all covenants and each of its agreements and obligations required
by this Agreement to be performed or complied with prior to or at the Closing.
7.4 NO ACTIONS: No action, suit, proceeding or investigations shall have been
instituted against the Purchaser, and be continuing before a court or by a
governmental body or agency, or shall have been threatened and be unresolved, to
restrain or to prevent or to obtain damages in respect of, the carrying out of
the transactions contemplated hereby, or which might materially affect the right
of the Seller and the Shareholder in the Transaction after the Closing Date, or
which might have a materially adverse effect thereon.
7.5 APPROVAL OF BUSINESS PLAN: The Purchaser shall have approved pro formas
(Exhibit A) provided by Prevail Online, Inc. and shall approve within six months
from the date of this
17
Agreement the Business Plan (Exhibit "J").
7.6 ADDITIONAL DOCUMENTS: The Purchaser shall have delivered all such
certified resolutions, certificates and documents as the Shareholder or the
Seller or its counsel may have reasonably requested.
ARTICLE XIII
CLOSING
8.1 LOCATION AND TIME: The Closing provided for herein shall take place at the
offices of the Purchaser, located in the State of Nebraska. The date and time
of Closing shall be mutually determined by both parties.
8.2 ITEMS TO BE DELIVERED BY THE SHAREHOLDER OR THE SELLER: At the Closing,
the Shareholder and/or the Seller will deliver or cause to be delivered to the
Purchaser:
8.2.1 Stock certificates for 100,000 shares of common stock of the
Seller;
8.2.2 Unaudited financial statements;
8.2.3 Such other certified resolutions, documents and certificates as
are required to be delivered by the Shareholder or the Seller pursuant to the
provisions of the Agreement; and
8.3 ITEMS TO BE DELIVERED BY PURCHASER: At the Closing, the Purchaser will
deliver or cause to be delivered to the Shareholder:
8.3.1 Stock certificates required by Article II;
8.3.2 Such other certified resolutions, documents and certificates as
are required to be delivered by the Purchaser pursuant to the provisions of the
Agreement.
8.3.3 Unaudited financial statements.
ARTICLE IX
POST CLOSING OBLIGATIONS
9.1 SURVIVAL: The parties hereto agree that their respective representations
and warranties shall survive the execution and delivery of this Agreement and
the consummation of the transactions provided for herein.
9.2 INDEMNIFICATION BY SHAREHOLDER AND THE SELLER: The Shareholder and the
Seller shall indemnify, save and keep the Purchaser, its successors and assigns,
forever harmless against and from all liabilities, demands, claims, actions or
causes of action, assessments, losses, penalties, costs, damages or expenses,
including reasonable attorneys' fees and expenses, of every kind, nature and
description, fixed or contingent, sustained or incurred by Purchaser, its
successors or assigns arising out of, resulting from, based upon or in
connection with:
9.2.1 any representation or warranty made by the Shareholder and the
Seller to the Purchaser herein or any violation of agreements or covenants or
any instrument or document delivered to Purchaser in connection herewith being
incorrect in any material respect; and
9.2.2 the failure of the Shareholder or the Seller to comply with, or
the breach by
18
Shareholder or the Seller of any of the covenants and agreements in this
Agreement to be performed by Shareholder or the Seller.
9.3 INDEMNIFICATION BY THE PURCHASER: The Purchaser shall indemnify, save and
keep the Shareholder and the Seller, their successors and assigns, forever
harmless against and from all liabilities, demands, claims, actions or causes of
action, assessments, losses, penalties, costs, damages or expenses, including
reasonable attorneys' fees and expenses, of every kind, nature and description,
fixed or contingent, sustained or incurred by Shareholder and the Seller, its
successors or assigns arising out of, resulting from, based upon or in
connection with:
9.3.1 any representation or warranty made by Purchaser to Shareholder
or the Seller herein or any violation of agreements or covenants or any
instrument or document delivered to Shareholder and the Seller in connection
herewith being incorrect in any material respect provided a claim is asserted by
Shareholder or the Seller within one (1) year of the Closing Date.
9.3.2 the failure of the Purchaser to comply with, or the breach by
the Purchaser of any of the covenants and agreements in this Agreement to be
performed by the Purchaser;
9.4 DEFENSE OF CLAIMS: A party entitled to indemnification hereunder (an
"Indemnified Party") agrees to notify each party required to indemnity hereunder
(an "Indemnifying Party") with reasonable promptness of any claim asserted
against it in respect of which any Indemnifying Party may be liable under this
Agreement, which notification shall be accompanied by a written statement
setting forth the basis of such claim and the manner of calculation thereof. An
Indemnifying Party shall have the right to defend any such claim at its or his
own expense and with counsel of its or his choice; provided, however, that such
counsel shall have been approved by the Indemnified Party prior to engagement,
which approval shall not be unreasonably withheld or delayed; and provided
further, that the Indemnified Party may participate in such defense, if it so
chooses, with its own counsel and at its own expense.
9.5 RIGHTS WITHOUT PREJUDICE: The rights of the parties under this Article IX
are without prejudice to any other rights or remedies that it may have by reason
of this Agreement or as otherwise provided by law.
9.6 Seller is sufficiently capitalized and has sufficient operating cash
inflows and thus requires no additional financing to implement its business
plan.
9.7 OPERATING AGREEMENTS: From and after the Closing, the Purchaser and
Prevail Online, Inc. shall operate as follows:
9.7.1 Prevail Online, Inc. shall operate as a wholly owned subsidiary
of the Purchaser. No changes in the corporate organization of Global
Entertainment Holdings/Equities, Inc. shall be made without the consent of the
Board of Directors, or a majority Shareholder vote.
19
ARTICLE X
TERMINATION AND WAIVER
10.1 TERMINATION: This Agreement and the Transaction may be terminated at any
time prior to the Closing:
10.1.1 By mutual consent of the Seller and the Purchaser;
10.1.2 By the Seller if any of the conditions set forth in Article IV,
and by the Purchaser if any of the conditions set forth in Article III hereof,
shall not have been fulfilled on or prior to the Closing Date, or shall have
become incapable of fulfillment, and shall not have been waived. In the event
this Agreement is terminated as described above, this Agreement shall be void
and of no force and effect.
10.2 WAIVER: Any condition to the performance of the Seller, Shareholder and
the Purchaser which legally may be waived on or prior to the Closing Date may be
waived at any time by the party entitled to the benefit thereof by action taken
or authorized by an instrument in writing executed by the relevant party or
parties. The failure of any party at any time or times to require performance
of any provision hereof shall in no manner affect the right of such party at a
later time to enforce the same. No waiver by any party of the breach of any
term, covenant, representation or warranty contained in this Agreement as a
condition to such party's obligations hereunder shall release or affect any
liability resulting from such breach, and no waiver of any nature, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be or
construed as further or continuing waiver of any such condition or of any breach
of any other term, covenant, representation or warranty of this Agreement.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 EXPENSES: Each of the parties hereto shall bear his or its own expenses
in connection herewith, including any expenses incurred if the proposed
transaction is abandoned at any time prior to the consummation thereof.
11.2 CONFIDENTIAL INFORMATION: Each party agrees that such party and its
representatives will hold in strict confidence all information and documents
received from the other parties and, if the transactions herein contemplated
shall not be consummated, each party will continue to hold such information and
documents in strict confidence and will return to such other parties all such
documents (including the Exhibits attached to this Agreement) then in such
receiving party's possession without retaining copies thereof; provided,
however, that each party's obligations under this Section 11.2 to maintain such
confidentiality shall not apply to any information or documents that are in the
public domain at the time furnished by the others or that become in the public
domain thereafter through any means other than as a result of any act of the
receiving party or of its agents, officers, directors or stockholders which
constitutes a breach of this Agreement,
20
or that are required by applicable law to be disclosed or which the Purchaser
furnishes to its attorneys, accountants, underwriters or other persons it deems
necessary or advisable in connection with the preparation of Purchaser's
Refinancing. The parties agree that the remedy at law for any breach of this
Section 11.2 will be inadequate and a non-breaching party will be entitled to
injunctive relief to compel the breaching party to perform or refrain from
action required or prohibited hereunder.
11.3 MODIFICATION, TERMINATION OR WAIVER: This Agreement may be amended,
modified, superseded or terminated, and any of the terms, covenants,
representations, warranties or conditions hereof may be waived, but only by a
written instrument executed by the party waiving compliance. The failure of any
party at any time or times to require performance of any provisions hereof shall
in no manner affect the right of such party at a later time to enforce the same.
11.4 NOTICES: All notices, requests, demands and communications under or in
respect hereof shall be deemed to have been duly given and made if in writing if
delivered by hand or certified mail, return receipt requested to the party
concerned or by regular mail together with a facsimile transmission at its
address or fax number appearing below together with a copy as indicated.
Service shall be deemed to be effective by certified mail or by regular mail
together with a facsimile transmission on the date of mailing and transmitting.
The said addresses and fax numbers are as follows:
If to Shareholders and Seller: Prevail Online, Inc.
Xxx Xxxxxxx
000 Xxxxxxxx Xxx., #000
Xxx Xxxxxxxxx, XX
(000) 000-0000 (fax)
with a copy to:
If to Purchaser: Global Entertainment Equities/Holdings, Inc.
Xxxxxx X. Xxxxxx, (President)
0000 X. 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
000-000-0000 (fax)
The parties may change the persons, addresses and fax numbers to which the
notices or other communications are to be sent by giving written notice of any
such change in the manner provided herein for giving notice.
11.5 BINDING EFFECT AND ASSIGNMENT: This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of the parties hereto;
provided, however, that no
21
assignment of any rights or delegation of any obligations provided for herein
may be made by any party without the express written consent of the other
parties.
11.6 ENTIRE AGREEMENT: This Agreement contains the entire Agreement between
the parties with respect to the subject matter hereof.
11.7 EXHIBITS: The Exhibits attached hereto and the documents and instruments
referred to herein or required to be delivered simultaneously herewith or at the
Closing are expressly made a part of this Agreement as fully as though
completely set forth herein, and all references to this Agreement herein or in
any of such Exhibits, documents, or instruments shall be deemed to refer to and
include all such Exhibits, documents and instruments. All of the Exhibits
referred to herein are incorporated herein by reference.
11.8 GOVERNING LAW: This Agreement shall be governed by, and construed in
accordance with the laws of the State of Colorado.
11.9 COUNTERPARTS: This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but which together shall constitute one
and the same instrument.
11.10 SECTION HEADINGS: The section headings contained in this Agreement are
inserted for convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
11.11 JOINT AND SEVERAL: All obligations, representations, responsibilities
and the like of the Shareholder shall be joint and several.
IN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement
as of the day and year first above written.
WITNESS: Purchaser: Global Entertainment Holding/Equities, Inc.
By:___________________
_____________/President
Seller: Prevail Online, Inc.
By:___________________
_____________/President
By:___________________
____________/Shareholder
22
Exhibits
A Projections
B Financial Statements (Purchaser & Seller)
C List of Major Equipment and assets owned by Seller
D Insurance Policies
E Leases
F List of Employees and Salaries of Seller
G Material Agreements of Seller
H List of Shareholders of Purchaser
I Material Agreements of Purchaser
J Business Plan
K List of Shareholders of Seller
L Letter of Intent to Enter into an Executive Employment Agreement
23
