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EXHIBIT 10(ii)
AGREEMENT dated as of October 18, 1996, by and among CREATIVE LEARNING
PRODUCTS, INC., a New Jersey corporation ("CLP"), and KARDS FOR KIDS, INC., a
New Jersey corporation ("KFK"), each having its principal office at 150 Morris
Avenue, Springfield, New Jersey 07081, NIGHTWING ENTERTAINMENT GROUP, INC., a
Nevada Corporation ("NEG"), having its principal office at 1000 Universal
Studios Plaza, Bldg. 22, Suite 202, Orlando, Florida 32819.
W I T N E S S E T H:
WHEREAS, NEG desires to acquire from KFK, and KFK desires to transfer
to NEG, all the assets, properties, business and good will of Congress
Entertainment ("CE"), a division of a wholly-owned subsidiary of CLP, located at
604 Route 611, P.O. Box 845, Tannersville, Pennsylvania 18372, for the
consideration set forth herein from NEG, which acquisition shall simultaneously
include the assumption by NEG of all liabilities of CE provided in Schedule "A",
all upon the terms and conditions hereinafter set forth.
WHEREAS, in order to carry out the foregoing objectives, CLP, KFK, and
NEG desire to enter into and adopt this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warrants, and agreements herein contained, the parties hereto
do hereby agree as follows:
1. Assets to be Transferred.
(a) Subject to the terms and conditions set forth herein, on the
Closing Date (as hereinafter defined) KFK shall sell, assign, transfer and
convey to NEG all of the business, properties, and assets of CH of every kind,
nature and description (real, personal and mixed, both tangible and nontangible
and every interest therein, wheresoever located, including, with limitation, all
rights to the name "Congress Entertainment" and all other names used by CE in
its business, which assets of CE shall be free and clear of all security
interests, liens, charges and encumbrances, except those liabilities assumed by
NEG as set forth in Section 2(b) hereto and as shall be set forth on Schedule
"A" to be appended hereto (the "CE Transfer").
2. Consideration for CE Transfer.
(a) On the Closing Date, NEG will cause to be issued and delivered
to CLP, certificates representing 2,000,000 shares of the Common Stock, par
value $.001 (the "NEG Common Stock"), of NEG.
(b) As further consideration for said assets, NEG and KFK will
execute and deliver at the Closing an Assignment and Assumption Agreement, in
form reasonably satisfactory to
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counsel for CLP, pursuant to which NEG shall assume all of the debts and
obligations of CE that are specifically set forth in Exhibit "A" to be attached.
(c) All shares of the NEG Common Stock delivered under this
Agreement shall be delivered pursuant to Section 4(2) of the Securities Act of
1933, as amended (the "Act"), and, accordingly, may not be transferred unless
registered under the Act or there is an opinion that the shares may be sold
pursuant to an exemption such as Rule 144 pursuant to the Act.
(d) NEG agrees to use its best efforts to register the shares of
the amended Common Stock issued to CLP by the filing of an appropriate
Registration Statement on Form S-1 or such other forms as may be appropriate
under the Act. The Company will exert its best efforts to obtain effectiveness
of such Registration Statement on or prior to the 200th day after the closing.
In order to effect the purpose and intent of this Section 2,
NEG shall obtain and deliver at the closing, a letter signed by Mr. Philip
Cohen, President, and/or other principal shareholders of NEG owning or
controlling an aggregate 50.1% or more of the outstanding voting shares of NEG
to the effect that said registration will be promptly undertaken.
3. The Closing.
The closing of the transactions contemplated by this Agreement shall
take place before October 31, 1996 on such date as CLP and NEG may agree (the
"Closing Date") at 10:00 A.M., at the offices of CLP or at such other time and
place upon which CLP and NEG hereto may agree.
4. Conditions Precedent.
(a) NEG agrees, before the Closing, to provide CLP with a copy of
the latest draft of NEG's Form 10 or other form registering the NEG Common Stock
pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended,
and a representation that NEG will become a reporting company and its shares are
traded on the Nasdaq OTC Bulletin Board system.
(b)(i) CLP agrees to allow NEG and its representatives reasonable
access to CE's financial data and personnel.
(ii) CLP will deliver a full, complete and accurate schedule A that
will disclose all liabilities to be agreed to and assumed by
NEG.
(c) NEG agrees to use its best efforts to reach an agreement with
Charles Staley of CE as it pertains to the account of
Publishers Clearing House.
5. Representations and Warranties.
In order to induce CLP and KFK to execute and perform this Agreement,
NEG does hereby, represent, warrant, and agree (which representations,
warranties, and agreements shall be
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and be designed to be, continuing and survive the execution and delivery of this
Agreement and the Closing Date) as follows:
(a) NEG is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada, with full power and
authority, corporate and otherwise, and with all licenses, permits,
certifications, registrations, approvals, consents and franchises necessary to
own or lease and operate its properties and to conduct its business as such
business currently is being conducted.
(b) NEG has the full power and authority, corporate and otherwise,
to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby:
(c) The execution, delivery and performance of this Agreement by
NEG, the consummation by NEG of the transactions herein contemplated and the
compliance by NEG with the terms and conditions of this Agreement have been duly
authorized by all necessary corporate action.
(d) This Agreement is the valid and binding obligation of NEG,
enforceable in accordance with its terms, subject, as to enforcement or
remedies, to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the rights of creditors generally and the discretion of
courts in granting equitable remedies;
(e) At the closing, all of the shares of the NEG Common Stock to
be issued by NEG pursuant to this Agreement shall be deemed to be duly and
validly authorized and, when issued to CLP, duly and validly issued, fully paid
and nonassessable and free and clear of all federal and state issuance taxes,
security interests, liens, claims, encumbrances and charges, subject to NEG's
obligation to register the shares under the Act.
6. CLPI Representations and Warranties.
In order to induce NEG to execute and perform this Agreement, CLP does
hereby represent, warrant, covenant and agree (which representations,
warranties, covenants and agreements shall be, and be deemed to be, continuing
and survive the execution and delivery of this Agreement, and the Closing) as
follows:
(a) Each of CLP and KFK is a corporation duly organized, validly
existing and in good standing under the laws of the State of New Jersey, CLP's
shares are publicly traded on the Nasdaq Small-cap System under the symbol
"CLPI" and each of CLP and KFK has full power and authority, corporate and
otherwise, and with all licenses, permits, certifications, registrations,
approvals, consents and franchises necessary to own or lease and operate its
properties and to conduce its business as currently being conducted.
(b) Each of CLP and KFK has the full power and authority,
corporate and otherwise, to execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby, including the CE Transfer.
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(c) The execution, delivery and performance of this Agreement by
each of CLP and KFK, the consummation by KFK of the transactions herein
contemplated and the compliance by each of CLP and KFK with the terms of this
Agreement have been duly authorized by all necessary corporate action, and this
Agreement has been duly and properly authorized, executed and delivered by CLP
and KFK.
(d) This Agreement is the valid and binding obligation of each CLP
and KFK, enforceable in accordance with its terms, subject, as to enforcement or
remedies, to applicable bankruptcy, insolvency, reorganization, moratorium and
the other laws affecting the rights of creditors generally and the discretion of
courts in granting equitable remedies.
7. Notices.
Any and all notices, requests or instructions desired or required to be
given by any party hereto to any other party hereto shall be in writing, sent by
nationally recognized overnight courier or mailed to the recipient first class,
postage prepaid, certified, return receipt requested at the addresses set forth
in the introductory paragraph hereof or to such other address as each party may
notify the other parties.
8. Amendments.
This Agreement may be amended at any time prior to the Closing Date by
a writing executed by the respective officers of CLP, KFK and NEG.
9. Governing Law.
This Agreement shall be governed by, and constructed in accordance
with, the laws of the State of New Jersey applicable to contracts executed and
to be fully performed therein and without regard to principles of conflicts of
laws.
10. Effectiveness.
This Agreement shall inure to the benefit of, and be binding upon, the
parties hereto and their respective successors, transferees, heirs, assigns and
beneficiaries.
11. Integration.
This Agreement (including the Exhibits hereto, the documents and
instruments delivered by the parties hereto as herein provided and any other
documents executed and delivered or to be executed and delivered pursuant to the
provisions of this Agreement as here provided) sets forth the entire agreement
among the parties hereto with respect to the subject matter herein contained.
There are no covenants, promises, agreements, conditions or understandings,
either oral or written, between or among the parties hereto with respect to the
subject matter hereof except as herein and in such ancillary documents. This
Agreement can only be altered, amended, modified, terminated or rescinded by a
writing executed by the party to be charged.
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12. Counterparts.
This Agreement may be executed in multiple copies, each of which shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be executed as of the date first above written.
CREATIVE LEARNING
PRODUCTS, INC.
Witness:________________________ By:________________________________
Peter J. Jegou, President
Dated: October 18, 1996
KARDS FOR KIDS, INC.
Witness: ________________________ By:________________________________
Peter J. Jegou, President
Dated: October __, 1996
NIGHTWING ENTERTAINMENT
GROUP, INC.
Witness: ________________________ By:________________________________
Philip Cohen, President
Dated: October 10, 1996
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