INTEREST PURCHASE AGREEMENT AND SHARE EXCHANGE
by and among
KING CAPITAL HOLDINGS, INC.
a Florida Corporation
and
KING CAPITAL, LLC
a Ohio Corporation
effective as of September 22, 2003
1
INTEREST PURCHASE AGREEMENT AND SHARE EXCHANGE
THIS INTEREST PURCHASE AGREEMENT AND SHARE EXCHANGE, made and entered
into this 22nd day of September, by and among King Capital Holdings, Inc., a
Florida corporation with its principal place of business located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Holdings"); King Capital, LLC, an
Ohio Limited Liability Corporation with its principal place of business at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("King Capital") and ▇▇▇▇
▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, the interest holders of King Capital ("Interest
Holders") (collectively King Capital, ▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, the
shareholders of King Capital shall be known as the "King Capital Group").
Premises
A. This Agreement provides for the acquisition of King Capital whereby
King Capital shall become a wholly owned subsidiary of Holdings and in
connection therewith, the issuance of a total of 10,000,000 shares of Holdings
to the Interest Holders.
B. The boards of directors of Holdings and the managing members of King
Capital have determined, subject to the terms and conditions set forth in this
Agreement, that the transaction contemplated hereby is desirable and in the best
interests of their stockholders, respectively. This Agreement is being entered
into for the purpose of setting forth the terms and conditions of the proposed
acquisition.
Agreement
NOW, THEREFORE, on the stated premises and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the mutual
benefits to the parties to be derived here from, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS AND WARRANTIES OF
KING CAPITAL HOLDINGS, INC.
As an inducement to and to obtain the reliance of King Capital,
Holdings represents and warrants as follows:
Section 1.1 Organization. Holdings is a corporation duly organized,
validly existing, and in good standing under the laws of Florida and has the
corporate power and is duly authorized, qualified, franchised and licensed under
all applicable laws, regulations, ordinances and orders of public authorities to
own all of its properties and assets and to carry on its business in all
material respects as it is now being conducted, including qualification to do
business as a foreign corporation in the jurisdiction in which the character and
location of the assets owned by it or the nature of the business transacted by
it requires qualification. Included in the Schedules attached hereto
(hereinafter defined) are complete and correct copies of the articles of
incorporation, bylaws and amendments thereto as in effect on the date hereof.
The execution and delivery of this Agreement does not and the consummation of
the transactions contemplated by this Agreement in accordance with the terms
hereof will not violate any provision of Holding's articles of incorporation or
bylaws. Holdings has full power, authority and legal right and has taken all
action required by law, its articles of incorporation, its bylaws or otherwise
to authorize the execution and delivery of this Agreement.
2
Section 1.2 Capitalization. The authorized capitalization of Holdings
consists of 100,000,000 Common Shares, $0.001 par value per share, and
10,000,000 shares of Preferred Stock, $.001 par value. As of the date hereof,
Holdings has 1,000,000 common shares issued and outstanding.
All issued and outstanding shares are legally issued, fully paid and
nonassessable and are not issued in violation of the preemptive or other rights
of any person. Holdings has no securities, warrants or options authorized or
issued.
Section 1.3 Subsidiaries. Holdings has no subsidiaries.
Section 1.4 Tax Matters: Books and Records.
(a) The books and records, financial and others, of Holdings are in
all material respects complete and correct and have been
maintained in accordance with good business accounting practices;
and
(b) Holdings has no liabilities with respect to the payment of any
country, federal, state, county, or local taxes (including any
deficiencies, interest or penalties).
(c) Holdings shall remain responsible for all debts incurred by
Holdings prior to the date of closing.
Section 1.5 Litigation and Proceedings. There are no actions, suits,
proceedings or investigations pending or threatened by or against or affecting
Holdings or its properties, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign or before any
arbitrator of any kind that would have a material adverse affect on the
business, operations, financial condition or income of Holdings. Holdings is not
in default with respect to any judgment, order, writ, injunction, decree, award,
rule or regulation of any court, arbitrator or governmental agency or
instrumentality or of any circumstances which, after reasonable investigation,
would result in the discovery of such a default.
Section 1.6 Material Contract Defaults. Holdings is not in default in
any material respect under the terms of any outstanding contract, agreement,
lease or other commitment which is material to the business, operations,
properties, assets or condition of Holdings, and there is no event of default in
any material respect under any such contract, agreement, lease or other
commitment in respect of which Holdings has not taken adequate steps to prevent
such a default from occurring.
Section 1.7 Information. The information concerning Holdings as set
forth in this Agreement and in the attached Schedules is complete and accurate
in all material respects and does not contain any untrue statement of a material
fact or omit to state a material fact required to make the statements made in
light of the circumstances under which they were made, not misleading.
3
Section 1.8 Title and Related Matters. Holdings has good and
marketable title to and is the sole and exclusive owner of all of its
properties, inventory, interest in properties and assets, real and personal
(collectively, the "Assets") free and clear of all liens, pledges, charges or
encumbrances. Holdings owns free and clear of any liens, claims, encumbrances,
royalty interests or other restrictions or limitations of any nature whatsoever
and all procedures, techniques, marketing plans, business plans, methods of
management or other information utilized in connection with Holdings' business.
No third party has any right to, and Holdings has not received any notice of
infringement of or conflict with asserted rights of other with respect to any
product, technology, data, trade secrets, know-how, proprietary techniques,
trademarks, service marks, trade names or copyrights which, singly on in the
aggregate, if the subject of an unfavorable decision ruling or finding, would
have a materially adverse affect on the business, operations, financial
conditions or income of Holdings or any material portion of its properties,
assets or rights.
Section 1.9 Contracts On the closing date:
(a) There are no material contracts, agreements franchises, license
agreements, or other commitments to which Holdings is a party or
by which it or any of its properties are bound:
(b) Holdings is not a party to any contract, agreement, commitment or
instrument or subject to any charter or other corporate
restriction or any judgment, order, writ, injunction, decree or
award materially and adversely affects, or in the future may (as
far as Holdings can now foresee) materially and adversely affect,
the business, operations, properties, assets or conditions of
Holdings; and
(c) Holdings is not a party to any material oral or written: (I)
contract for the employment of any officer or employee; (ii)
profit sharing, bonus, deferred compensation, stock option,
severance pay, pension benefit or retirement plan, agreement or
arrangement covered by Title IV of the Employee Retirement Income
Security Act, as amended; (iii) agreement, contract or indenture
relating to the borrowing of money; (iv) guaranty of any
obligation for the borrowing of money or otherwise, excluding
endorsements made for collection and other guaranties, of
obligations, which, in the aggregate exceeds $1,000; (v)
consulting or other contract with an unexpired term of more than
one year or providing for payments in excess of $10,000 in the
aggregate; (vi) collective bargaining agreement; (vii) contract,
agreement or other commitment involving payments by it for more
than $10,000 in the aggregate.
Section 1.10 Compliance With Laws and Regulations. To the best of
Holding's knowledge and belief, Holdings has complied with all applicable
statutes and regulations of any federal, state or other governmental entity or
agency thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets or condition of
Holdings or would not result in Holdings incurring material liability.
Section 1.11 Insurance. All of the insurable properties of
Holdings are insured for Holdings `s benefit under valid and enforceable policy
or policies containing substantially equivalent coverage and will be outstanding
and in full force at the Closing Date.
Section 1.12 Approval of Agreement. The directors of Holdings
have authorized the execution and delivery of the Agreement by and have approved
the transactions contemplated hereby.
Section 1.13 Material Transactions or Affiliations. There are no
material contracts or agreements of arrangement between Holdings and any person,
who was at the time of such contract, agreement or arrangement an officer,
director or person owning of record, or known to beneficially own ten percent
(10%) or more of the issued and outstanding Common Shares of Holdings and which
is to be performed in whole or in part after the date hereof. Holdings has no
commitment, whether written or oral, to lend any funds to, borrow any money from
or enter into material transactions with any such affiliated person.
4
Section 1.14 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which Holdings is a
party or to which any of its properties or operations are subject.
Section 1.15 Governmental Authorizations. Holdings has all licenses,
franchises, permits or other governmental authorizations legally required to
enable it to conduct its business in all material respects as conducted on the
date hereof. Except for compliance with federal and state securities and
corporation laws, as hereinafter provided, no authorization, approval, consent
or order of, or registration, declaration or filing with, any court or other
governmental body is required in connection with the execution and delivery by
Holdings of this Agreement and the consummation of the transactions contemplated
hereby.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF KING CAPITAL, INC.
As an inducement to, and to obtain the reliance of Holdings, King
Capital represents and warrants as follows:
Section 2.1 Organization. King Capital is a limited liability
corporation duly organized, validly existing and in good standing under the laws
of Ohio and has the corporate power and is duly authorized, qualified,
franchised and licensed under all applicable laws, regulations, ordinances and
orders of public authorities to own all of its properties and assets and to
carry on its business in all material respects as it is now being conducted,
including qualification to do business as a foreign entity in the country or
states in which the character and location of the assets owned by it or the
nature of the business transacted by it requires qualification. Included in the
Attached Schedules (as hereinafter defined) are complete and correct copies of
the articles of incorporation, bylaws and amendments thereto as in effect on the
date hereof. The execution and delivery of this Agreement does not and the
consummation of the transactions contemplated by this Agreement in accordance
with the terms hereof will not, violate any provision of King Capital's
certificate of incorporation or bylaws. King Capital has full power, authority
and legal right and has taken all action required by law, its articles of
incorporation, bylaws or otherwise to authorize the execution and delivery of
this Agreement.
Section 2.2 Capitalization. The authorized capitalization of King
Capital consists of 100 membership units. As of the date hereof, there are 100
membership units issued and outstanding.
All issued and outstanding membership units have been legally issued,
fully paid, are nonassessable and not issued in violation of the preemptive
rights of any other person. King Capital has no other securities, warrants or
options authorized or issued.
Section 2.3 Subsidiaries. King Capital has no subsidiaries.
5
Section 2.4 Tax Matters; Books & Records
(a) The books and records, financial and others, of King Capital are
in all material respects complete and correct and have been
maintained in accordance with good business accounting practices;
and
(b) King Capital has no liabilities with respect to the payment of
any country, federal, state, county, local or other taxes
(including any deficiencies, interest or penalties).
(c) King Capital shall remain responsible for all debts incurred
prior to the closing.
Section 2.5 Information. The information concerning King Capital as set
forth in this Agreement and in the attached Schedules is complete and accurate
in all material respects and does not contain any untrue statement of a material
fact or omit to state a material fact required to make the statements made, in
light of the circumstances under which they were made, not misleading.
Section 2.6 Title and Related Matters. King Capital has good and
marketable title to and is the sole and exclusive owner of all of its
properties, inventory, interests in properties and assets, real and personal
(collectively, the "Assets") free and clear of all liens, pledges, charges or
encumbrances. Except as set forth in the Schedules attached hereto, King Capital
owns free and clear of any liens, claims, encumbrances, royalty interests or
other restrictions or limitations of any nature whatsoever and all procedures,
techniques, marketing plans, business plans, methods of management or other
information utilized in connection with King Capital's business. Except as set
forth in the attached Schedules, no third party has any right to, and King
Capital has not received any notice of infringement of or conflict with asserted
rights of others with respect to any product, technology, data, trade secrets,
know-how, proprietary techniques, trademarks, service marks, trade names or
copyrights which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a materially adverse affect on the
business, operations, financial conditions or income of King Capital or any
material portion of its properties, assets or rights.
Section 2.7 Litigation and Proceedings. There are no actions, suits or
proceedings pending or threatened by or against or affecting King Capital, at
law or in equity, before any court or other governmental agency or
instrumentality, domestic or foreign or before any arbitrator of any kind that
would have a material adverse effect on the business, operations, financial
condition, income or business prospects of King Capital. King Capital does not
have any knowledge of any default on its part with respect to any judgement,
order, writ, injunction, decree, award, rule or regulation of any court,
arbitrator or governmental agency or instrumentality.
Section 2.8 Contracts. On the Closing Date:
(a) There are no material contracts, agreements, franchises, license
agreements, or other commitments to which King Capital is a party
or by which it or any of its properties are bound;
(b) King Capital is not a party to any contract, agreement,
commitment or instrument or subject to any charter or other
corporate restriction or any judgment, order, writ, injunction,
decree or award which materially and adversely affects, or in the
future may (as far as King Capital can now foresee) materially
and adversely affect, the business, operations, properties,
assets or conditions of King Capital; and
6
(c) King Capital is not a party to any material oral or written: (i)
contract for the employment of any officer or employee; (ii)
profit sharing, bonus, deferred compensation, stock option,
severance pay, pension, benefit or retirement plan, agreement or
arrangement covered by Title IV of the Employee Retirement Income
Security Act, as amended; (iii) agreement, contract or indenture
relating to the borrowing of money; (iv) guaranty of any
obligation for the borrowing of money or otherwise, excluding
endorsements made for collection and other guaranties of
obligations, which, in the aggregate exceeds $1,000; (v)
consulting or other contract with an unexpired term of more than
one year or providing for payments in excess of $10,000 in the
aggregate; (vi) collective bargaining agreement; (vii) contract,
agreement, or other commitment involving payments by it for more
than $10,000 in the aggregate.
Section 2.9 No Conflict With Other Instruments.The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which King Capital
is a party or to which any of its properties or operations are subject.
Section 2.10 Material Contract Defaults. To the best of King Capital's
knowledge and belief, it is not in default in any material respect under the
terms of any outstanding contract, agreement, lease or other commitment which is
material to the business, operations, properties, assets or condition of King
Capital, and there is no event of default in any material respect under any such
contract, agreement, lease or other commitment in respect of which King Capital
has not taken adequate steps to prevent such a default from occurring.
Section 2.11 Governmental Authorizations. To the best of King Capital's
knowledge, King Capital has all licenses, franchises, permits and other
governmental authorizations that are legally required to enable it to conduct
its business operations in all material respects as conducted on the date
hereof. Except for compliance with federal and state securities or corporation
laws, no authorization, approval, consent or order of, or registration,
declaration or filing with, any court or other governmental body is required in
connection with the execution and delivery by King Capital of the transactions
contemplated hereby.
Section 2.12 Compliance With Laws and Regulations. To the best of King
Capital's knowledge and belief, King Capital has complied with all applicable
statutes and regulations of any federal, state or other governmental entity or
agency thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets or condition of
King Capital or would not result in King Capital 's incurring any material
liability.
Section 2.13 Insurance. All of the insurable properties of King Capital
are insured for King Capital`s benefit under valid and enforceable policy or
policies containing substantially equivalent coverage and will be outstanding
and in full force at the Closing Date.
7
Section 2.14 Approval of Agreement. The managing members of King
Capital have authorized the execution and delivery of the Agreement and have
approved the transactions contemplated hereby.
Section 2.15 Material Transactions or Affiliations. As of the Closing
Date, there will exist no material contract, agreement or arrangement between
King Capital and any person who was at the time of such contract, agreement or
arrangement an officer, director or person owning of record, or known by King
Capital to own beneficially, ten percent (10%) or more of the issued and
outstanding Membership Units of King Capital and which is to be performed in
whole or in part after the date hereof except with regard to an agreement with
the King Capital managing members providing for the distribution of cash to
provide for payment of federal and state taxes. King Capital has no commitment,
whether written or oral, to lend any funds to, borrow any money from or enter
into any other material transactions with, any such affiliated person.
ARTICLE III
EXCHANGE PROCEDURE AND OTHER CONSIDERATION
Section 3.1 Share Exchange/Delivery of King Capital Securities. On the
Closing Date, the holders of all of the King Capital Membership Units shall
deliver to Holdings (i) Membership Units certificates or other documents
evidencing all of the issued and outstanding King Capital Membership Units, duly
endorsed in blank or with executed power attached thereto in transferrable form.
On the Closing Date, all previously issued and outstanding Membership Units of
King Capital shall be transferred to Holdings, so that King Capital shall become
a wholly owned subsidiary of Holdings.
Section 3.2 Issuance of Holdings Common Shares. In exchange for all of
the King Capital Membership Units tendered pursuant to Section 3.1, Holdings
shall issue to the Shareholders a total of 10,000,000 shares in the following
manner. The 10,000,000 Holdings common shares are restricted in accordance with
Rule 144 of the 1933 Securities Act:
▇▇▇▇ ▇▇▇▇ - 9,500,000 shares
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - 500,000 shares
Section 3.3 Events Prior to Closing. Upon execution hereof or as soon
thereafter as practical, management of Holdings and King Capital shall execute,
acknowledge and deliver (or shall cause to be executed, acknowledged and
delivered) any and all certificates, opinions, financial statements, schedules,
agreements, resolutions rulings or other instruments required by this Agreement
to be so delivered, together with such other items as may be reasonably
requested by the parties hereto and their respective legal counsel in order to
effectuate or evidence the transactions contemplated hereby, subject only to the
conditions to Closing referenced herein below.
Section 3.4 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on or about September 22, 2003 ("Closing
Date").
Section 3.5 Termination.
(a) This Agreement may be terminated by the board of directors or
majority interest of Shareholders or Managing Members of either
Holdings or King Capital, respectively, at any time prior to the
Closing Date if:
8
(i) there shall be any action or proceeding before any court
or any governmental body which shall seek to restrain,
prohibit or invalidate the transactions contemplated by
this Agreement and which, in the judgment of such board
of directors, made in good faith and based on the advice
of its legal counsel, makes it inadvisable to proceed
with the exchange contemplated by this Agreement; or
(ii) any of the transactions contemplated hereby are
disapproved by any regulatory authority whose approval is
required to consummate such transactions.
In the event of termination pursuant to this paragraph (a) of this
Section 3.5, no obligation, right, or liability shall arise hereunder and each
party shall bear all of the expenses incurred by it in connection with the
negotiation, drafting and execution of this Agreement and the transactions
herein contemplated.
(b) This Agreement may be terminated at any time prior to the Closing
Date by action of the board of directors of Holdings if King
Capital shall fail to comply in any material respect with any of
its covenants or agreements contained in this Agreement or if any
of the representations or warranties of King Capital contained
herein shall be inaccurate in any material respect, which
noncompliance or inaccuracy is not cured after 20 days written
notice thereof is given to King Capital. If this Agreement is
terminated pursuant to this paragraph (b) of this Section 3.5,
this Agreement shall be of no further force or effect and no
obligation, right or liability shall arise hereunder.
(c) This Agreement may be terminated at any time prior to the Closing
Date by action of the Managing Members of King Capital if
Holdings shall fail to comply in any material respect with any of
its covenants or agreements contained in this Agreement or if any
of the representations or warranties of Holdings contained herein
shall be inaccurate in any material respect, which noncompliance
or inaccuracy is not cured after 20 days written notice thereof
is given to Holdings. If this Agreement is terminated pursuant to
this paragraph (d) of this Section 3.5, this Agreement shall be
of no further force or effect and no obligation, right or
liability shall arise hereunder.
In the event of termination pursuant to paragraph (b) and (c) of this
Section 3.5, the breaching party shall bear all of the expenses incurred by the
other party in connection with the negotiation, drafting and execution of this
Agreement and the transactions herein contemplated.
Section 3.6 Directors of Holdings After Acquisition. After the Closing
Date, ▇▇▇▇ ▇▇▇▇ shall remain as the sole director of Holdings. Each director
shall hold office until his successor shall have been duly elected and shall
have qualified or until his earlier death, resignation or removal.
Section 3.7 Officers of Holdings . Upon the closing, the following
person shall remain as officer of Holdings:
NAME OFFICE
▇▇▇▇ ▇▇▇▇ Chief Executive Officer, Chief Financial
Officer, President and Secretary
9
ARTICLE IV
SPECIAL COVENANTS
Section 4.1 Access to Properties and Records. Prior to closing,
Holdings and King Capital will each afford to the officers and authorized
representatives of the other full access to the properties, books and records of
each other, in order that each may have full opportunity to make such reasonable
investigation as it shall desire to make of the affairs of the other and each
will furnish the other with such additional financial and operating data and
other information as to the business and properties of each other, as the other
shall from time to time reasonably request.
Section 4.2 Availability of Rule 144. Holdings and King Capital
shareholders holding "restricted securities, " as that term is defined in Rule
144 promulgated pursuant to the Securities Act will remain as "restricted
securities". Holdings is under no obligation to register such shares under the
Securities Act, or otherwise. The stockholders of Holdings and King Capital
holding restricted securities of Holdings as of the date of this Agreement and
their respective heirs, administrators, personal representatives, successors and
assigns, are intended third party beneficiaries of the provisions set forth
herein. The covenants set forth in this Section 4.2 shall survive the Closing
and the consummation of the transactions herein contemplated.
Section 4.3 Special Covenants and Representations Regarding the
Holdings Common Shares to be Issued in the Exchange. The consummation of this
Agreement, including the issuance of the Holdings Common Shares to the Interest
Holders of King Capital as contemplated hereby, constitutes the offer and sale
of securities under the Securities Act, and applicable state statutes. Such
transaction shall be consummated in reliance on exemptions from the registration
and prospectus delivery requirements of such statutes which depend, inter alia,
upon the circumstances under which the King Capital Interest Holders acquire
such securities.
Section 4.4 Third Party Consents. Holdings and King Capital agree to
cooperate with each other in order to obtain any required third party consents
to this Agreement and the transactions herein contemplated.
Section 4.5 Actions Prior and Subsequent to Closing.
(a) From and after the date of this Agreement until the Closing Date,
except as permitted or contemplated by this Agreement, Holdings and King Capital
will each use its best efforts to:
(i) maintain and keep its properties in states of
good repair and condition as at present, except for
depreciation due to ordinary wear and tear and damage due
to casualty;
(ii) maintain in full force and effect insurance
comparable in amount and in scope of coverage to that now
maintained by it;
(iii) perform in all material respects all of its
obligations under material contracts, leases and
instruments relating to or affecting its assets,
properties and business;
10
(b) From and after the date of this Agreement until the Closing Date,
Holdings will not, without the prior consent of King Capital:
(i) except as otherwise specifically set forth
herein, make any change in its articles of incorporation
or bylaws;
(ii) declare or pay any dividend on its outstanding
Common Shares, except as may otherwise be required by
law, or effect any stock split or otherwise change its
capitalization, except as provided herein;
(iii) enter into or amend any employment, severance
or agreements or arrangements with any directors or
officers;
(iv) grant, confer or award any options, warrants,
conversion rights or other rights not existing on the
date hereof to acquire any Common Shares; or
(v) purchase or redeem any Common Shares.
Section 4.6 Indemnification.
(a) Holdings hereby agrees to indemnify King Capital, each of the
officers, agents and directors and current shareholders of King
Capital as of the Closing Date against any loss, liability,
claim, damage or expense (including, but not limited to, any and
all expense whatsoever reasonably incurred in investigating,
preparing or defending against any litigation, commenced or
threatened or any claim whatsoever), to which it or they may
become subject to or rising out of or based on any inaccuracy
appearing in or misrepresentation made in this Agreement. The
indemnification provided for in this paragraph shall survive the
Closing and consummation of the transactions contemplated hereby
and termination of this Agreement; and
(b) King Capital hereby agrees to indemnify Holdings, each of the
officers, agents, directors and current shareholders of Holdings
as of the Closing Date against any loss, liability, claim, damage
or expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing or
defending against any litigation, commenced or threatened or any
claim whatsoever), to which it or they may become subject arising
out of or based on any inaccuracy appearing in or
misrepresentation made in this Agreement. The indemnification
provided for in this paragraph shall survive the Closing and
consummation of the transactions contemplated hereby and
termination of this Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF HOLDINGS
The obligations of Holdings under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.1 Accuracy of Representations. The representations and
warranties made by Holdings in this Agreement were true when made and shall be
true at the Closing Date with the same force and effect as if such
representations and warranties were made at the Closing Date (except for changes
therein permitted by this Agreement), and Holdings shall have performed or
compiled with all covenants and conditions required by this Agreement to be
performed or complied with by Holdings prior to or at the Closing. King Capital
shall be furnished with a certificate, signed by a duly authorized officer of
Holdings and dated the Closing Date, to the foregoing effect.
11
Section 5.2 Director Approval. The Board of Directors of Holdings shall
have approved this Agreement and the transactions contemplated herein.
Section 5.3 Officer's Certificate. King Capital shall have been
furnished with a certificate dated the Closing Date and signed by a duly
authorized officer of Holdings to the effect that: (a) the representations and
warranties of Holdings set forth in the Agreement and in all Exhibits, Schedules
and other documents furnished in connection herewith are in all material
respects true and correct as if made on the Effective Date; (b) Holdings has
performed all covenants, satisfied all conditions, and complied with all other
terms and provisions of this Agreement to be performed, satisfied or complied
with by it as of the Effective Date; (c) since such date and other than as
previously disclosed to King Capital, Holdings has not entered into any material
transaction other than transactions which are usual and in the ordinary course
if its business; and (d) no litigation, proceeding, investigation or inquiry is
pending or, to the best knowledge of Holdings, threatened, which might result in
an action to enjoin or prevent the consummation of the transactions contemplated
by this Agreement or, to the extent not disclosed in the Holdings Schedules, by
or against Holdings which might result in any material adverse change in any of
the assets, properties, business or operations of Holdings.
Section 5.4 No Material Adverse Change. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business or operations of nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business or operations of Holdings.
Section 5.5 Other Items. King Capital shall have received such further
documents, certificates or instruments relating to the transactions contemplated
hereby as King Capital may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF KING CAPITAL
The obligations of King Capital under this Agreement are subject to the
satisfaction, at or before the Closing date (unless otherwise indicated herein),
of the following conditions:
Section 6.1 Accuracy of Representations. The representations and
warranties made by King Capital in this Agreement were true when made and shall
be true as of the Closing Date (except for changes therein permitted by this
Agreement) with the same force and effect as if such representations and
warranties were made at and as of the Closing Date, and King Capital shall have
performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by King Capital prior to or at the
Closing. Holdings shall have been furnished with a certificate, signed by a duly
authorized executive officer of King Capital and dated the Closing Date, to the
foregoing effect.
Section 6.2 Managing Member Approval. The Managing Members of King
Capital shall have approved this Agreement and the transactions contemplated
herein.
Section 6.3 Officer's Certificate. Holdings shall be furnished with a
certificate dated the Closing date and signed by a duly authorized officer of
King Capital to the effect that: (a) the representations and warranties of King
Capital set forth in the Agreement and in all Exhibits, Schedules and other
documents furnished in connection herewith are in all material respects true and
correct as if made on the Effective Date; and (b) King Capital had performed all
covenants, satisfied all conditions, and complied with all other terms and
provisions of the Agreement to be performed, satisfied or complied with by it as
of the Effective Date.
12
Section 6.4 No Material Adverse Change. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business or operations of nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business or operations of King
Capital.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Brokers and Finders. Each party hereto hereby represents
and warrants that it is under no obligation, express or implied, to pay certain
finders in connection with the bringing of the parties together in the
negotiation, execution, or consummation of this Agreement. The parties each
agree to indemnify the other against any claim by any third person for any
commission, brokerage or finder's fee or other payment with respect to this
Agreement or the transactions contemplated hereby based on any alleged agreement
or understanding between the indemnifying party and such third person, whether
express or implied from the actions of the indemnifying party.
Section 7.2 Law, Forum and Jurisdiction. This Agreement shall be
construed and interpreted in accordance with the laws of the State of Florida,
United States of America.
Section 7.3 Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it or
sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
If to Holdings : ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
If to King Capital: King Capital, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered, mailed or telegraphed.
Section 7.4 Attorneys' Fees. In the event that any party institutes any
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parties shall reimburse the
non-breaching party or parties for all costs, including reasonable attorneys'
fees, incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
13
Section 7.5 Confidentiality. Each party hereto agrees with the other
party that, unless and until the transactions contemplated by this Agreement
have been consummated, they and their representatives will hold in strict
confidence all data and information obtained with respect to another party or
any subsidiary thereof from any representative, officer, director or employee,
or from any books or records or from personal inspection, of such other party,
and shall not use such data or information or disclose the same to others,
except: (i) to the extent such data is a matter of public knowledge or is
required by law to be published; and (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement.
Section 7.6 Schedules; Knowledge. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
Section 7.7 Third Party Beneficiaries.This contract is solely between
Holdings and King Capital and except as specifically provided, no director,
officer, stockholder, employee, agent, independent contractor or any other
person or entity shall be deemed to be a third party beneficiary of this
Agreement.
Section 7.8 Entire Agreement.This Agreement represents the entire
agreement between the parties relating to the subject matter hereof. This
Agreement alone fully and completely expresses the agreement of the parties
relating to the subject matter hereof. There are no other courses of dealing,
understanding, agreements, representations or warranties, written or oral,
except as set forth herein. This Agreement may not be amended or modified,
except by a written agreement signed by all parties hereto.
Section 7.9 Survival; Termination. The representations, warranties and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for 18 months.
Section 7.10 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 7.11 Amendment or Waiver. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance hereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
Section 7.12 Expenses. Each party herein shall bear all of their
respective cost s and expenses incurred in connection with the negotiation of
this Agreement and in the consummation of the transactions provided for herein
and the preparation thereof.
Section 7.13 Headings; Context. The headings of the sections and
paragraphs contained in this Agreement are for convenience of reference only and
do not form a part hereof and in no way modify, interpret or construe the
meaning of this Agreement.
14
Section 7.14 Benefit. This Agreement shall be binding upon and shall
inure only to the benefit of the parties hereto, and their permitted assigns
hereunder. This Agreement shall not be assigned by any party without the prior
written consent of the other party.
Section 7.15 Public Announcements. Except as may be required by law,
neither party shall make any public announcement or filing with respect to the
transactions provided for herein without the prior consent of the other party
hereto.
Section 7.16 Severability. In the event that any particular provision
or provisions of this Agreement or the other agreements contained herein shall
for any reason hereafter be determined to be unenforceable, or in violation of
any law, governmental order or regulation, such unenforceability or violation
shall not affect the remaining provisions of such agreements, which shall
continue in full force and effect and be binding upon the respective parties
hereto.
Section 7.17 Failure of Conditions; ▇▇▇▇▇▇▇▇▇▇▇.▇▇ the event of any of
the conditions specified in this Agreement shall not be fulfilled on or before
the Closing Date, either of the parties have the right either to proceed or,
upon prompt written notice to the other, to terminate and rescind this
Agreement. In such event, the party that has failed to fulfill the conditions
specified in this Agreement will liable for the other parties legal fees. The
election to proceed shall not affect the right of such electing party reasonably
to require the other party to continue to use its efforts to fulfill the unmet
conditions.
Section 7.18 No Strict Construction. The language of this Agreement
shall be construed as a whole, according to its fair meaning and intendment, and
not strictly for or against either party hereto, regardless of who drafted or
was principally responsible for drafting the Agreement or terms or conditions
hereof.
Section 7.19 Execution Knowing and Voluntary. In executing this
Agreement, the parties severally acknowledge and represent that each: (a) has
fully and carefully read and considered this Agreement; (b) has been or has had
the opportunity to be fully apprized by its attorneys of the legal effect and
meaning of this document and all terms and conditions hereof; (c) is executing
this Agreement voluntarily, free from any influence, coercion or duress of any
kind.
Section 7.20 Amendment. At any time after the Closing Date, this
Agreement may be amended by a writing signed by both parties, with respect to
any of the terms contained herein, and any term or condition of this Agreement
may be waived or the time for performance hereof may be extended by a writing
signed by the party or parties for whose benefit the provision is intended.
Section 7.21 Conflict of Interest. Both King Capital and Holdings
understand that ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP is representing both parties in this
transaction which represents a conflict of interest. Both King Capital and
Holdings have the right to different counsel due to this conflict of interest.
Notwithstanding the above, both King Capital and Holdings agree to waive this
conflict and have ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP represent both parties in the
above-referenced transaction. Both King Capital and Holdings agree to hold this
law firm harmless from any and all liabilities that may occur or arise due to
this conflict.
15
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
and entered into as of the date first above written.
ATTEST: KING CAPITAL HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇
----------------------------
▇▇▇▇ ▇▇▇▇
ATTEST: KING CAPITAL, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇
----------------------------
▇▇▇▇ ▇▇▇▇
WITNESS: KING CAPITAL, INC. INTEREST HOLDERS
/s/ ▇▇▇▇ ▇▇▇▇
----------------------------
▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
16