EXHIBIT 10.29
JANEX INTERNATIONAL, INC.
615 HOPE ROAD
EATONTOWN, NJ 07724
August 18, 2000
Futech Interactive Products, Inc.
2999 N. 44th Street, Suite 225
Phoenix, AZ 85018-7247
Attn: Vincent W. Goett, Chief Executive Officer
Ladies and Gentlemen:
This letter is to notify you that Janex International, Inc., after due
consideration from its management and Board of Directors, hereby exercises its
right to withdraw from the transaction contemplated by the Asset Purchase
Agreement dated July 12, 2000.
Sincerely,
S/ Dan Lesnick
Daniel Lesnick
President
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
THIS AGREEMENT is made as of the 12 day of July, 2000, by and between
Futech Interactive Products, Inc., an Arizona corporation ("SELLER"), and Janex
International, Inc., a Colorado corporation ("BUYER").
R E C I T A L S:
A. Seller owns and operates a business (the "BUSINESS") which, among
other things, owns and licenses to third parties certain intellectual property
rights and manufactures, markets, distributes and sells toys, games, books,
stationery and other products under the tradename "Futech Interactive Products."
B. Seller desires to sell to Buyer, and Buyer desires to purchase from
Seller, the Business and the assets of the Business, free and clear of debts
other than as called for below, all in accordance with the terms and conditions
set forth below (the "TRANSACTION").
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
T E R M S:
1. PURCHASE AND SALE. Seller hereby agrees to sell to Buyer, and Buyer agrees
to purchase from Seller, free and clear of debts other than as called for below,
the following (collectively the "ASSETS") (the assets identified on EXHIBIT 1
attached hereto (the "EXCLUDED ASSETS") are not included in the assets sold
pursuant to this Agreement).
1.1 All furniture, fixtures, vehicles, machinery and equipment used
in connection with the operation of the Business (other than that leased
under the Equipment Leases (defined below)), including but not limited to
the assets identified on EXHIBIT 1.1 attached hereto (all of the foregoing
are collectively referred to below as the "FIXED ASSETS").
1.2 All notes receivable, accounts receivable, prepaid items,
supplies and all other property currently used by Seller in connection with
the operation of the Business.
1.3 All finished and unfinished goods, work-in-process, inventories,
and materials of Seller.
1.4 All of Seller's interest in the leases identified on EXHIBIT 1.4
attached hereto (the "EQUIPMENT LEASES.")
1.5 All rights to the trade names "Futech Interactive Products" and
any and all other trade names used by Seller in connection with the
Business, along with any and all trademarks, service marks, logos and
designs relating hereto, including all internet domain names used in the
Business. As soon as practicable after the Closing, Seller will change its
corporate name to eliminate the use of any of the names transferred to
Buyer.
1.6 Any and all deposits associated with the operation of the
Business, including but not limited to all deposits on leases, insurance
contracts transferred to Buyer, utility deposits and license deposits.
1.7 All of Seller's books and records (or copies thereof), computer
programs, software, drawings, financial and tax information (or copies
thereof), and all customer and vendor files.
1.8 The contracts and other accounts which remain unperformed as of
the Closing, and which are listed on EXHIBIT 1.8 attached hereto.
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1.9 The other contracts, licenses, accounts and other general
intangibles currently held by Seller, and which are listed on EXHIBIT 1.9
attached hereto.
1.10 All patents, copyrights, trade secrets, customer and supplier
lists, promotional materials, and other intangible rights used in
connection with the operation of the Business, including but not limited to
those described on EXHIBIT 1.10 attached hereto.
1.11 The phone numbers and all phone and other advertising associated
with the Business.
1.12 All warranties and all warranty claims of Seller.
1.13 The oKID.com website (the "WEBSITE"), all software rights
relating thereto, all graphics rights and artwork rights relating thereto,
including all original artwork and all copies thereof, all rights to the
animated characters appearing on the Website, and all licenses and other
agreements with third parties relating to the Website
1.14 All rights to the trade name "oKID" and all names used for
animated characters appearing on the Website, along with any and all
trademarks, service marks, logos and designs relating hereto, including all
internet domain names used in connection with the Website.
1.15 All of Seller's internet addresses used by the Website.
1.16 All other assets of the Business, including but not limited to
those identified on EXHIBIT 1.16 attached hereto.
2. PURCHASE PRICE AND MANNER OF PAYMENT.
2.1 The purchase price for the Assets shall, subject to adjustments
as described below, be and be payable as follows:
2.1.1 Twenty Thousand Eight Hundred Twenty Three Dollars
($20,823.00), which amount has already been paid by Buyer (Seller
acknowledges receipt of said funds).
2.1.2 An amount up to One Hundred Twenty Nine Thousand One
Hundred Seventy Seven Dollars ($129,177.00), as necessary for Seller
to pay Seller's legal fees for Seller's bankruptcy proceedings,
payable as required by Seller's bankruptcy counsel. Said amount, and
the amount described in Section 2.1.1 above, are fully refundable
until approval of the Transaction by the bankruptcy court. Upon such
approval, said amounts shall automatically become non-refundable
except in the event of Seller's default under this Agreement.
2.1.3 Twenty Million (20,000,000) shares of Buyer's common stock.
Buyer will use Buyer's best efforts to register said shares under the
Securities Act within 150 days after the Closing.
Notwithstanding the foregoing, if the publicly traded price of Buyer's
common stock is not at least $1.00 per share on the date of the
Closing, and said stock does not reach said price (adjusted as
necessary to take into account transactions such as stock splits)
within twenty-four (24) months thereafter, then Buyer shall issue
additional shares of Buyer's common stock to Seller, as soon as is
practicable after the date which is twenty-four (24) months after the
date of Closing, and the number of shares to be so issued shall be
calculated as follows: divide (x) the difference between (i)
$20,000,000.00 and (ii) the highest publicly traded closing price of
Buyer's common stock during the 24 month period from the Closing
through the date which is 24 months thereafter, times the 20,000,000
shares of stock issued pursuant to this Section (including the value
of all splits and other rights relating
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thereto), by (y) the publicly traded closing price on the date which
is 24 months after the date of the Closing.
Seller agrees, and will confirm said agreement by executing one or
more documents so confirming, in form and with content acceptable to
Buyer, that: (A) the stock to be issued under this Agreement will be a
restricted security, issued pursuant to one or more exemptions to the
registration requirements of the Securities Act; (B) Buyer's
obligation to issue the stock is subject to Buyer determining to
Buyers' satisfaction that these transactions are in compliance with
the Securities Act and all other applicable federal and state laws;
and (C) Seller will execute such documents as are necessary and/or
appropriate to insure compliance with applicable federal and state
laws. Buyer obtaining documentation as to the foregoing shall be a
condition to the obligation of Buyer to close the Transaction, or to
issue the stock.
2.2 The purchase price shall be allocated in accordance with EXHIBIT
2.2 attached hereto.
2.3 The purchase price includes assumption of liabilities as set out
in Section 3 below.
3. LIABILITIES.
3.1 Buyer at the Closing will assume only the following of Seller's
obligations (the assumed obligations being referred to in this Agreement as
the "ASSUMED LIABILITIES"):
3.1.1 Seller's obligations to U.S. Bank, not to exceed in the
aggregate however the sum of $10,000,000.00. As part of the
consideration for this transaction and for Buyer assuming the U. S.
Bank debt, the open account debt owing by Buyer to Seller as of the
Closing (in the approximate amount of $1,645,000.00) will as of the
Closing, without additional documentation or consideration being
required, be and be deemed for all purposes to be fully paid and
forever discharged.
3.2 All liabilities of Seller other than those identified in
Section 3.1 above shall be and remain the obligations of Seller, and
Seller shall indemnify, defend and hold Buyer harmless from and
against any and all such liabilities. Without limiting the generality
of the foregoing, it is expressly understood and agreed that Buyer is
not assuming any tort liability, any environmental liability, any
contractual liability for contracts not disclosed to and agreed upon
by Buyer, or any liability to or for employees or employee benefits.
The indemnities set forth in this Section shall survive the Closing.
3.3 Buyer may offset against the purchase price any and all
liabilities associated with the Business which are not expressly
assumed by Buyer but which Buyer pays. The parties understand and
agree that Buyer has no obligation to pay any debt of Seller, other
than as expressly called for in Sections 3.1.1 of this Agreement.
3.4 Seller will, to the extent requested by Buyer, deliver to
Buyer prior to the Closing, estoppel letters or certificates, in form
acceptable to Buyer, from the lessors under the Equipment Leases.
3.5 Seller hereby agrees to indemnify, defend and hold Buyer
harmless from and against any and all liabilities, claims, expenses
and other costs arising from Seller's operations of the Business prior
to the Closing, except as expressly assumed by Buyer pursuant to this
Section 3. Buyer hereby agrees to indemnify, defend and hold harmless
Seller from and against any and all liabilities, claims, expenses or
other costs arising from Buyer's operations of the Business from and
after the Closing. The indemnities set forth in this Section shall
survive the Closing.
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4. INTERIM EVENTS. Seller agrees that Seller will take no action prior to
the Closing, other than in the ordinary course of Business, which would or might
have a material adverse effect upon the financial condition of Seller, and no
benefits will be paid or incurred to shareholders, officers, or directors of
Seller between the date hereof and the Closing, other than as is consistent with
past activities and practices. Seller will use Seller's best efforts to preserve
for Buyer the present relationships of Seller with Seller's employees, customers
and others having business relations with Seller.
5. CONDITIONS TO CLOSING. Buyer's obligation to close the Transaction
shall be conditioned upon (each of the conditions may be waived by Buyer in
writing only):
5.1 Buyer obtaining from the lessors of the Equipment Leases their
consents to the transfer of those leases to Buyer on terms acceptable to
Buyer;
5.2 Buyer having obtained, or having obtained the appropriate
consents or approvals to the assignment of, all permits, licenses and
contracts necessary to continue the operations of the Business;
5.3 Seller having maintained the Assets in the same condition as of
the date of this Agreement (subject to ordinary wear and tear only);
5.4 Seller having conducted the Business diligently and substantially
in the same manner as prior to the execution of this Agreement and not
having entered into any contract, commitment or transaction not in the
usual and ordinary course of business;
5.5 The operations of the Business not having changed in a material
and adverse manner between the date of this Agreement and the date of
Closing;
5.6 There being no governmental investigations or suits pending or
threatened with respect to the operations of the Business, except as may
otherwise be agreed to in writing by Buyer;
5.7 Approval for the Transaction by the Board of Directors and the
shareholders of Buyer;
5.8 Buyer's approval of an appraisal of Seller's intellectual
property rights, with Seller to obtain and pay the costs of that appraisal;
5.9 Buyer's approval of Seller's most recent Financial Statements
prior to the Closing;
5.10 Buyer obtaining for use by Buyer, based solely upon the strength
of the assets of the Business, revolving credit lines and other debt
instruments satisfactory to Buyer;
5.11 Buyer obtaining from the lenders under the debts to be assumed by
Buyer under this Agreement their consents to the transfer of those debts to
Buyer on terms acceptable to Buyer;
5.12 Approval of the Transaction by the Bankruptcy Court for Seller's
bankruptcy; and
5.13 Approval by the shareholders of Buyer of an amendment to Buyer's
governing documents authorizing an increase in the authorized number of
shares of stock of Buyer to 125,000,000.
6. CLOSING. The closing of the Transaction (the "Closing") shall
occur within eleven (11) days after approval of the Transaction by the
bankruptcy court, but in any event by _________, 2000 at 10:00 a.m. M.S.T.
at the Business. The Transaction shall be consummated without the use of an
independent escrow company.
7. RESTRICTIVE COVENANTS.
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(a) Seller agree not to, without the prior written consent of
Buyer, which consent may be withheld for any or no reason, for a
period of 3 years following the Closing, directly or indirectly, own,
manage, operate, control, be employed by, participate in, render
services to, make loans to, or be connected in any manner with the
ownership, management, operation, or control of any business located
within the United States of America, in any business competitive with
the Business (which shall be deemed to include all business
operations, publishing, manufacturing, and/or distributing books, toys
or games, or electronic or other parts or components thereof).
In the event of any actual or threatened breach of the
provisions of this Section, Buyer shall be entitled to an injunction
restraining the actual or threatened breach. The parties further agree
that should there be a violation of the provisions of this Section,
the violating party shall be liable to Buyer for, in addition to
amounts pursuant to other remedies available against that party, two
(2) times the greater of the amount of profit earned by the violating
party as a result of the violation and the amount of profit which
would have been earned by Buyer from the activities causing the
violation had Buyer conducted said activities, plus interest on said
greater amount calculated at eighteen percent (18%) per annum from the
date of the violating activities until paid, as liquidated damages for
only Buyer's loss of potential profits. Nothing in this paragraph
shall be construed as prohibiting Buyer from pursuing any other
available remedies for such breach or threatened breach, including
pursuing a recovery for damages.
(b) Seller shall not at any time, without the prior written
consent of Buyer, which consent may be withheld for any or no reason,
disclose, in any fashion other than as required in the day to day
affairs of Buyer, to any person or entity: (i) the names of customers
of Buyer or the Business, or the names of other persons or entities
having business dealings with Buyer or the Business, or (ii) any of
the business methods or confidential information of Buyer or the
Business, including but not limited to its customer lists, prospective
customers, customers purchasing habits, customer contact personnel,
marketing and servicing techniques, financial matters, sales and
marketing systems and methods, marketing development and business
expansion plans and projections, personnel training and development
programs, customer and supplier relationships, and trade secrets.
(c) Seller shall not, at any time within two (2) years after the
Closing, without the prior written consent of Buyer, which consent may
be withheld for any reason or no reason, directly or indirectly
induce, encourage or solicit or assist any person who was or is
employed (whether as an employee or as an independent contractor) by
the Business during the two years preceding the Closing, to leave the
employ of the Business.
(d) The parties acknowledge and agree that the restrictions
contained herein, including but not limited to the time period and
geographical area restrictions, are fair and reasonable and necessary
for the successful operation of the Business, that violation of any of
them would cause irreparable injury, and that the restrictions
contained herein are not unreasonably restrictive of any party's
ability to earn a living. If the scope of any restriction in this
Section is too broad to permit enforcement of such restriction to its
fullest extent, then such restriction shall be enforced to the maximum
extent permitted by law, and all parties hereto consent and agree that
such scope shall be modified judicially or by arbitration in any
proceeding brought to enforce such restriction. The parties hereto
acknowledge and agree that remedies at law for any breach or violation
of the provisions of this Section would alone be inadequate, and agree
and consent that temporary and permanent injunctive relief may be
granted in connection with such violations, without the necessity of
proof of actual damage, and such remedies shall be in addition to
other remedies and rights the parties may have at law or in equity.
The parties agree that no party shall be required to give notice or
post any bond in connection with applying for or obtaining any such
injunctive relief.
(e) The parties acknowledge and agree that the covenants in this
Section shall be construed as an agreement independent of any other
provision of this Agreement, so that the existence of any claim or
cause of action by Seller against Buyer, whether predicated on this
Section or otherwise, shall not constitute a defense to the
enforcement of this Section.
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8. DUE DILIGENCE INVESTIGATION. Buyer shall have until the Closing
(the "Due Diligence Period") in which to conduct any due diligence
investigations, including UCC-1 searches, which Buyer may deem necessary or
appropriate to ascertain the financial viability and value of the Business.
Throughout the Due Diligence Period, Buyer (and its agents) shall have the
right to inspect: (i) all books, records and computer systems maintained by
Seller, in order to authenticate and audit all financial information
provided to Buyer, (ii) all equipment and machinery used in the Business to
verify that it is in an acceptable state of repair, (iii) all agreements to
which Seller is a party, and (iv) all facilities and physical operations of
Seller, including facilities warehousing inventory. Seller shall provide
access to Seller's federal and state income tax returns, sales tax returns,
financial statements (internal and those issued to third parties), personal
property tax returns, and all other governmental filings, for the three
previous years, for the purpose of conducting due diligence investigations.
Buyer may, in Buyer's sole discretion, terminate this Agreement at any time
prior to the Closing for any reason deemed appropriate by Buyer (but this
provision does not effect the non-refundable character of the amounts
described in Sections 2.1.1 and 2.1.2 above, as called for in Section 2.1.2
above).
Buyer and its representatives will further have the authority to
communicate with Seller's creditors, debtors, suppliers, agents and
employees. Seller agrees to aid Buyer and its representatives in Buyer's
investigations and evaluations of the Business and the Assets, and to
provide whatever information and documents Buyer reasonably deems necessary
or appropriate to the making of an informed decision regarding the
Transaction.
9. ACCESS TO CUSTOMER FILES AND OTHER RECORDS. For a period of three
(3) years following the Closing, where there is a legitimate purpose not
injurious to Buyer, or if there is an audit by any taxing authority, other
governmental inquiry, or litigation or prospective litigation, to which
Seller is or may become a party, then Seller shall be granted access, at
reasonable times and after reasonable notice, to all customer files and
other records transferred to Buyer pursuant to this Agreement.
10. REPRESENTATIONS AND WARRANTIES. Seller hereby represents and
warrants as follows, as of the date hereof and as of the date of the
Closing:
10.1 AUTHORITY. As of the date of execution of this Agreement,
and subject to approval of the bankruptcy court, Seller has the power
and authority to enter into and perform its obligations under this
Agreement, the Board of Directors of Seller has recommended and
resolved that the Transaction is to move forward subject to
shareholder approval, and the Board of Directors of Seller have
authorized and ratified the execution and delivery of this Agreement.
As of the Closing, all of the foregoing are true, and the Board of
Directors of Seller has approved of the documents herein required to
consummate the Transaction.
10.2 FINANCIAL INFORMATION. Seller has furnished Buyer with true,
correct and complete copies of Seller's financial statements and other
books and records relating to the operation of the Business, which
statements fairly present the financial condition of the Business as
of their respective dates.
10.3 TAXES. All federal and state income, excise, franchise,
payroll, property, sales, and other tax returns required to be filed
by or with respect to the Business (except returns not yet due) have
been filed, are complete and accurately reflect in all material
respects all matters therein required to be reflected, and all taxes
shown on such returns to be due, and any assessments received by
Seller with respect thereto, have been paid in full. Seller shall pay
all such future taxes relating to periods prior to the Closing, when
and as the same shall become due and payable. Seller shall provide
Buyer with such certificates and other evidence of payment of all
taxes due in connection with the Assets and the Business as Buyer
shall request.
10.4 LIENS. All property to be transferred by Seller to Buyer
pursuant to this Agreement is, at the time of this Agreement, or will
be at the Closing, free and clear of any and all liens and
encumbrances, other than as called for in Section 3.1.1 above.
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10.5 LICENSES. Seller has any and all licenses, permits, and
contracts necessary and/or appropriate to operate the Business in the
manner in which the Business is currently operated.
10.6 HAZARDOUS MATERIALS. The Business has not dealt in any
manner with any hazardous or toxic materials or waste.
10.7 COMPLETE DISCLOSURE. Seller has disclosed to Buyer all facts
and papers which would or might be important to Buyer in making the
decision to purchase the Business as called for in this Agreement.
10.8 JUDGMENTS AGAINST SELLER AND/OR BUSINESS. Neither Seller nor
the Business is under any governmental investigation, no such
investigation has been threatened, and there are no judgments against
Seller, the Business or the Assets.
10.9 COMPLETE SALE. The assets to be transferred under this
Agreement are all of the assets used by Seller in the operation of the
Business, other than the Excluded Assets.
10.10 ASSETS IN GOOD CONDITION. Each of the Assets which is a
tangible asset is and will be at the Closing in good working order and
condition.
10.11 DISCLOSURE MATERIALS. The financial condition of the
Business is at least as favorable as presented in the financial
information, including tax returns and financial statements, and books
and records provided by Seller to Buyer. Those materials and the other
materials disclosed to Buyer are true, complete and accurate in all
respects, and fairly represent the information they purport to
provide. All the information disclosed, as a whole, does not contain
any statement that, as of the date hereof, or as of the Closing, is
false or misleading, and does not omit to state any material fact (i)
necessary to make the statements made, in light of the circumstances
under which they were made, not false or misleading, or (ii) necessary
to provide Buyer with complete and accurate information as to the
assets and financial standing of the Business.
10.12 DEFAULTS. There are no defaults or events with which the
giving of notice or the passage of time would constitute defaults
under any document under which Seller is obligated, including but not
limited to the Equipment Leases.
10.13 VENDOR ACCOUNTS. Seller will use Seller's best efforts to
cause a transfer to Buyer of all of Seller's supplier and other vendor
accounts without adverse changes in the account terms.
10.14 OUTSTANDING LIABILITIES. Seller's liabilities are not paid
current. Payment of Seller's debt are subject to Seller's bankruptcy
filing.
10.15 INVENTORY. Seller's inventory is useable and in good
condition, with not more than 1% thereof being obsolete, and all of
the inventory is owned by Seller, none of it being held by Seller on
consignment.
10.16 LOSSES. There are no unrealized or anticipated losses on
any commitment or contract of Seller.
10.17 PATENTS. There is no litigation pending or threatened with
respect to the patents of Seller, there is no outstanding order,
judgment, decree or stipulation affecting the validity or
enforceability of said patents, there exits no outstanding notices of
infringement given by Seller regarding the patents, there are no
pending interferences or other contested proceedings pending, or that
are in the process of being instituted, in the United States Patent
Office or in the courts, relating to said patents, and, to the best
knowledge of Seller, none of Seller's patents are being presently
infringed.
10.18 RECEIVABLES. All accounts receivable arose in the regular
course of business, and, to the best knowledge to Seller, are
collectable and subject to no defenses or counterclaims.
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The representations and warranties in this Section shall survive the Closing of
the Transaction.
11. SELLER'S CORPORATE NAME. At the Closing, Seller will deliver to Buyer
appropriate executed originals of an Amendment to Seller's Articles of
Incorporation changing Seller's corporate name to a name which does not contain
the words "Futech Interactive Products" and is not a deceptively similar name.
Such executed documents shall be in the number and in such form as are
acceptable for filing with the Arizona Corporation Commission, and shall be
accompanied by Seller's check in the appropriate amount necessary for filing and
publishing said documents.
12. EXPENSES. Each party shall bear its own expenses in completing the
Transaction. "Expenses" shall mean any expense of any nature incurred in
connection with the Transaction, including without limitation attorneys' fees,
accounting fees, filing fees and other costs.
13. BROKERAGE COMMISSIONS. Seller shall be solely responsible for the
payment of any and all brokerage fees or commissions in connection with the
Transaction and shall indemnify and hold harmless Buyer from and against any
liabilities or claims incurred in connection with such fees or commissions.
14. GOVERNING LAW; JURISDICTION. The U.S. bankruptcy courts shall have the
sole and exclusive jurisdiction and venue in any case or controversy arising
under this Agreement or by reason of this Agreement.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns, but may not be assigned by Seller.
16. ENTIRE AGREEMENT; TERMINATION OF PRIOR AGREEMENTS. Except as otherwise
set forth herein, this Agreement constitutes the entire agreement between the
parties which respect to the subject matter hereof, and supersedes all prior
understandings, if any, with respect thereto. The parties acknowledge and agree
that certain documents existed prior to this Agreement relating to the purchase
by Buyer from Seller of certain assets, and the parties hereby agree that all of
said documents, including all amendments thereto, are hereby terminated in their
entirety.
17. FURTHER ASSURANCES. The parties agree to do such further acts and
things and to execute and deliver such additional agreements and instruments as
any party may reasonably require to consummate, evidence, or confirm any
agreement contained herein in the manner contemplated hereby.
18. MODIFICATION. Any modification or waiver of any term of this
Agreement, including a modification or waiver of this term, must be in writing
and signed by the parties to be bound by the modification or waiver.
19. SEVERABILITY. In the event any portion of this Agreement shall be
declared by any court of competent jurisdiction to be invalid, illegal, or
unenforceable, such portion shall be deemed severed from this Agreement, and the
remaining parts hereof shall remain in full force and effect as fully as though
such invalid, illegal or unenforceable portion had never been a part of this
Agreement.
20. COUNTERPARTS, FACSIMILE SIGNATURES. This Agreement may be executed by
the parties in one or more counterparts, and any number of counterparts signed
in the aggregate by the parties shall constitute a single instrument. The
parties authorize and agree to accept facsimile signatures in counterparts to
this Agreement, and that said facsimile signatures shall for all purposes be
binding upon the parties as if the same were original signatures.
21. ATTORNEY'S FEES. Should any party institute any action or proceeding
to enforce this Agreement or any provision hereof, or for damages by reason of
any alleged breach of this Agreement, or of any provision hereof, or for a
declaration of rights hereunder, the prevailing party(s) of such action or
proceeding shall be entitled to receive from the other involved party or parties
all costs and expenses, including
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attorneys' fees and expert witness fees incurred by the prevailing party(s) in
connection with such action or proceeding.
22. NOTICES. Any notice or communication given under the terms of this
Agreement ("Notice") shall be in writing and shall be delivered in person or
mailed by certified mail, return receipt requested, in the United States Mail,
postage pre-paid, addressed as follows:
If to Seller: Futech Interactive Products, Inc.
2999 North 44th Street, Suite 225
Phoenix, Arizona 85018
If to Buyer: Janex International, Inc.
615 Hope Road, Building 1
Eatontown, New Jersey 07724
or at such other address as a person may from time to time designate by Notice
hereunder. Notice shall be effective upon delivery in person, or if mailed, at
midnight on the third business day after the date of mailing.
23. PARAGRAPH TITLES AND HEADINGS. The titles and headings of sections of
this Agreement are for the convenience of reference only, and are not intended
to define, limit, or describe the scope or intent of any provision of this
Agreement, and shall not affect the construction of any provision of this
Agreement.
24. MISCELLANEOUS. The parties agree that each party and its counsel have
reviewed and revised this Agreement, or had an opportunity to review and revise
this Agreement, and that any rule of construction to the effect that ambiguities
are to be resolved against the drafting party shall not apply to the
interpretation of this Agreement or any amendments or exhibits hereto. In the
event of default by Seller hereunder, Buyer shall, in addition to its other
remedies under this Agreement and in law or equity, be entitled to specific
performance of Seller's obligations under this Agreement. The parties do not
intend to confer any benefit upon any person, firm, or corporation other than
the parties hereto. No representation or warranty herein may be relied upon by
any person not a party to this Agreement. The Exhibits attached hereto are
incorporated into and are part of this Agreement. The parties agree that the
Assets and the Business as a going concern constitute unique property, that
there is no adequate remedy at law for the damage which might be sustained for
the failure of a party to this Agreement to consummate the Transaction, and,
accordingly, that each party hereto shall be entitled to the remedy of specific
performance to enforce such consummation. The parties agree that time is of the
essence of each and every provision of this Agreement.
DATED the date first hereinabove written.
SELLER: Futech Interactive Products, Inc.,
an Arizona corporation
By: S/VINCENT W. GOETT
-------------------------
Vincent W. Goett, Interim CEO
BUYER: Janex International, Inc.,
a Colorado corporation
By: S/DAN LESNICK
-------------------------
Dan Lesnick, President
LIST OF EXHIBITS:
Excluded Assets 1
List of Specific Furniture, Fixtures and Equipment 1.1
Assumed Leases 1.4
Unperformed Contracts 1.8
General Intangibles 1.9
List of Specifically Included Intellectual Property Rights 1.10
List of Specifically Listed Other Assets 1.16
9
Purchase Price Allocation 2.2
The Registrant will provide copies of any Exhibit upon request.
10
EXHIBIT 1
(EXCLUDED ASSETS)
(Included Assets - see attached)
1. Property Leases (Wisconsin and Phoenix)
2. Golden Books Family Entertainment License
3. Hasbro Winner Circle License
4. Just Toys, Inc. Jellabies License
EXHIBIT 1.1
(LIST OF SPECIFIC FURNITURE, FIXTURES AND EQUIPMENT)
(SEE ATTACHED)
EXHIBIT 1.4
(ASSUMED LEASES)
EQUIPMENT ONLY
EXHIBIT 1.8
(UNPERFORMED CONTRACTS)
N/A
EXHIBIT 1.9
(GENERAL INTANGIBLES)
N/A
EXHIBIT 1.10
(LIST OF SPECIFICALLY INCLUDED INTELLECTUAL PROPERTY RIGHTS)
EXHIBIT 1.16
(LIST OF SPECIFICALLY LISTED OTHER ASSETS)
1. Seller's cash.
EXHIBIT 2.2
(PURCHASE PRICE ALLOCATION)
(SEE ATTACHED)
Furniture, fixtures and equipment Note #1
Inventory $_________
Accounts Receivable Note #2
Goodwill The Balance
Note 1: ____________________.
Note 2: The net face amount of the accounts receivable acquired, as of the
Closing.