STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
by and among
UNIVERSAL FLIRTS, CORP.
a Delaware Corporation
and
UNIVERSAL FLIRTS, INC.
a New York Corporation
effective as of May 27, 2004
STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
THIS STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE, made and entered into
this 27th day of May, by and among Universal Flirts, Corp., a Delaware
corporation with its principal place of business located at 142 Mineola Avenue
Suite 2-D, Roslyn Heights, NY 11577 ("Corporation"); Universal Flirts, Inc., a
New York Corporation with its principal place of business at 142 Mineola Avenue
Suite 2-D, Roslyn Heights, NY 11577 ("Incorporated") and Darrell Lerner, the
sole shareholder of Incorporated ("Shareholder") (collectively Incorporated and
the Shareholder of Incorporated shall be known as the "Incorporated Group").
Premises
A. This Agreement provides for the acquisition of Incorporated whereby
Incorporated shall become a wholly owned subsidiary of Corporation and in
connection therewith, the issuance of a total of 8,500,000 shares of Corporation
to the Incorporated shareholders.
B. The boards of directors of Incorporated and Corporation 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
UNIVERSAL FLIRTS, CORP.
As an inducement to and to obtain the reliance of Incorporated,
Corporation represents and warrants as follows:
Section 1.1 Organization. Corporation is a corporation duly organized,
validly existing, and in good standing under the laws of Delaware 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 Corporation's articles of incorporation
or bylaws. Corporation 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.
Section 1.2 Capitalization. The authorized capitalization of
Corporation consists of 100,000,000 Common Shares, $0.001 par value per share,
and 10,000,000 Preferred Shares, $0.001 par value per share. As of the date
hereof, Corporation has 500,000 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. Corporation has no securities, warrants or options authorized or
issued.
Section 1.3 Subsidiaries. Corporation has no subsidiaries.
Section 1.4 Tax Matters: Books and Records.
(a) The books and records, financial and others, of Corporation are
in all material respects complete and correct and have been
maintained in accordance with good business accounting practices;
and
(b) Corporation has no liabilities with respect to the payment of any
country, federal, state, county, or local taxes (including any
deficiencies, interest or penalties).
(c) Corporation shall remain responsible for all debts incurred by
Corporation 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
Corporation 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 Corporation. Corporation
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. Corporation 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 Corporation, and there is no event of default
in any material respect under any such contract, agreement, lease or other
commitment in respect of which Corporation has not taken adequate steps to
prevent such a default from occurring.
Section 1.7 Information. The information concerning Corporation 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.
Corporation's filings with the SEC are complete and accurate in all material
respects and do 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 1.8 Title and Related Matters. Corporation 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. Corporation 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
Corporation's business. No third party has any right to, and Corporation 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 Corporation 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 Corporation is a party
or by which it or any of its properties are bound:
(b) Corporation 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 Corporation can now foresee) materially and adversely
affect , the business, operations, properties, assets or
conditions of Corporation; and
(c) Corporation 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
Corporation's knowledge and belief, Corporation 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
Corporation or would not result in Corporation incurring material liability.
Section 1.11 Insurance. All of the insurable properties of Corporation
are insured for Corporation `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 Corporation 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 Corporation 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 Corporation
and which is to be performed in whole or in part after the date hereof.
Corporation 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.
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 Corporation
is a party or to which any of its properties or operations are subject.
Section 1.15 Governmental Authorizations. Corporation 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
Corporation of this Agreement and the consummation of the transactions
contemplated hereby.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF UNIVERSAL FLIRTS, INC.
As an inducement to, and to obtain the reliance of Corporation,
Incorporated represents and warrants as follows:
Section 2.1 Organization. Incorporated is a corporation duly organized,
validly existing and in good standing under the laws of New York 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 Incorporated's certificate of incorporation or bylaws.
Incorporated 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
Incorporated consists of 1,000,000 shares, $0.0001 par value and no preferred
shares. As of the date hereof, there are 1,000,000 shares issued and
outstanding.
All issued and outstanding common shares have been legally issued,
fully paid, are nonassessable and not issued in violation of the preemptive
rights of any other person. Incorporated has no other securities, warrants or
options authorized or issued.
Section 2.3 Subsidiaries. Incorporated has no subsidiaries.
Section 2.4 Tax Matters; Books & Records
(a) The books and records, financial and others, of Incorporated are
in all material respects complete and correct and have been
maintained in accordance with good business accounting practices;
and
(b) Incorporated 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) Incorporated shall remain responsible for all debts incurred
prior to the closing.
Section 2.5 Information. The information concerning Incorporated 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. Incorporated 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, Incorporated
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 Incorporated's business. Except as set
forth in the attached Schedules, no third party has any right to, and
Incorporated 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 Incorporated 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 Incorporated, 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 Incorporated. Incorporated does not
have any knowledge of any default on its part with respect to any judgment,
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 Incorporated is a party
or by which it or any of its properties are bound;
(b) Incorporated 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 Incorporated can now foresee) materially
and adversely affect, the business, operations, properties,
assets or conditions of Incorporated; and
(c) Incorporated 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 Incorporated
is a party or to which any of its properties or operations are subject.
Section 2.10 Material Contract Defaults. To the best of Incorporated'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
Incorporated, and there is no event of default in any material respect under any
such contract, agreement, lease or other commitment in respect of which
Incorporated has not taken adequate steps to prevent such a default from
occurring.
Section 2.11 Governmental Authorizations. To the best of Incorporated's
knowledge, Incorporated 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 Incorporated of the transactions
contemplated hereby.
Section 2.12 Compliance With Laws and Regulations. To the best of
Incorporated's knowledge and belief, Incorporated 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 Incorporated or would not result in Incorporated 's incurring any
material liability.
Section 2.13 Insurance. All of the insurable properties of Incorporated
are insured for Incorporated`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 2.14 Approval of Agreement. The directors of Incorporated 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
Incorporated 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
Incorporated to own beneficially, ten percent (10%) or more of the issued and
outstanding Common Shares of Incorporated and which is to be performed in whole
or in part after the date hereof except with regard to an agreement with the
Incorporated shareholders providing for the distribution of cash to provide for
payment of federal and state taxes on Subchapter S income. Incorporated 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 Incorporated Securities. On the
Closing Date, the holders of all of the Incorporated Common Shares shall deliver
to Corporation (i) certificates or other documents evidencing all of the issued
and outstanding Incorporated Common Shares, duly endorsed in blank or with
executed power attached thereto in transferable form. On the Closing Date, all
previously issued and outstanding Common Shares of Incorporated shall be
transferred to Corporation, so that Incorporated shall become a wholly owned
subsidiary of Corporation.
Section 3.2 Issuance of Corporation Common Shares. In exchange for all
of the Incorporated Common Shares tendered pursuant to Section 3.1, Corporation
shall issue to the Incorporated shareholders a total of 8,500,000 Corporation
common shares which are restricted in accordance with Rule 144 of the 1933
Securities Act. The 8,500,000 common shares shall be transferred to Darrell
Lerner, the sole Incorporated shareholder:
Darrell Lerner 8,500,000 Shares
Section 3.3 Events Prior to Closing. Upon execution hereof or as soon
thereafter as practical, management of Corporation and Incorporated 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 May 27, 2004 ("Closing
Date").
Section 3.5 Termination.
(a) This Agreement may be terminated by the board of directors or
majority interest of Shareholders of either Corporation or
Incorporated, respectively, at any time prior to the Closing Date
if:
(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 Corporation if
Incorporated 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 Incorporated
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 Incorporated. 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 board of directors of Incorporated if
Corporation 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 Corporation 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 Corporation. 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 Corporation After Acquisition. After the
Closing Date, Darrell Lerner shall remain the sole director of Corporation and
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 Corporation. Upon the closing, Darrell Lerner
shall remain as Chief Executive Officer, Chief Financial Officer, President,
Secretary, and Treasurer of Corporation
ARTICLE IV
SPECIAL COVENANTS
Section 4.1 Access to Properties and Records. Prior to closing,
Corporation and Incorporated 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. Corporation and Incorporated
shareholders holding "restricted securities, " as that term is defined in Rule
144 promulgated pursuant to the Securities Act will remain as "restricted
securities". Corporation is under no obligation to register such shares under
the Securities Act, or otherwise. The stockholders of Corporation and
Incorporated holding restricted securities of Corporation and Incorporated 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
Corporation Common Shares to be Issued in the Exchange. The consummation of this
Agreement, including the issuance of the Corporation Common Shares to the
Shareholders of Incorporated 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 Incorporated Shareholders acquire such
securities.
Section 4.4 Third Party Consents. Corporation and Incorporated 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,
Corporation and Incorporated 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;
(b) From and after the date of this Agreement until the Closing
Date, Corporation will not, without the prior consent of
Incorporated:
(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) Corporation hereby agrees to indemnify Incorporated, each of the
officers, agents and directors and current shareholders of
Incorporated 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) Incorporated hereby agrees to indemnify Corporation, each of the
officers, agents, directors and current shareholders of
Corporation 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 ASTURIAS
The obligations of Corporation 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 Corporation 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 Corporation shall have performed or
compiled with all covenants and conditions required by this Agreement to be
performed or complied with by Corporation prior to or at the Closing.
Incorporated shall be furnished with a certificate, signed by a duly authorized
officer of Corporation and dated the Closing Date, to the foregoing effect.
Section 5.2 Director Approval. The Board of Directors of Corporation
shall have approved this Agreement and the transactions contemplated herein.
Section 5.3 Officer's Certificate. Incorporated shall have been
furnished with a certificate dated the Closing Date and signed by a duly
authorized officer of Corporation to the effect that: (a) the representations
and warranties of Corporation 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)
Corporation 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 Incorporated, Corporation 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 Corporation,
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 Corporation Schedules, by or against Corporation
which might result in any material adverse change in any of the assets,
properties, business or operations of Corporation.
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
Corporation.
Section 5.5 Other Items. Incorporated shall have received such further
documents, certificates or instruments relating to the transactions contemplated
hereby as Incorporated may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF FISHTHEWORLD
The obligations of Incorporated 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 Incorporated 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 Incorporated shall have
performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by Incorporated prior to or at the
Closing. Corporation shall have been furnished with a certificate, signed by a
duly authorized executive officer of Incorporated and dated the Closing Date, to
the foregoing effect.
Section 6.2 Director Approval. The Board of Directors of Incorporated
shall have approved this Agreement and the transactions contemplated herein.
Section 6.3 Officer's Certificate. Corporation shall be furnished with
a certificate dated the Closing date and signed by a duly authorized officer of
Incorporated to the effect that: (a) the representations and warranties of
Incorporated 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) Incorporated 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.
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
Incorporated.
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 New York,
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 Corporation : Anslow & Jaclin, LLP
195 Route 9 South Suite 206
Manalapan, NJ 07726
If to Incorporated: 142 Mineola Avenue, Suite 2-D
Roslyn Heights, NY 11577
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.
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
Corporation and Incorporated 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.
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; Termination. In 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 Incorporated and Corporation
understand that Anslow & Jaclin, LLP is representing both parties in this
transaction which represents a conflict of interest Both Incorporated and
Corporation have the right to different counsel due to this conflict of
interest. Notwithstanding the above, both Incorporated and Corporation agrees to
waive this conflict and have Anslow & Jaclin, LLP represent both parties in the
above-referenced transaction. Both Incorporated and Corporation agree to hold
this law firm harmless from any and all liabilities that may occur or arise due
to this conflict.
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: UNIVERSAL FLIRTS, CORP.
By: /s/ Darrell Lerner
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ATTEST: UNIVERSAL FLIRTS, INC.
By: /s/ Darrell Lerner
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DARRELL LERNER
SOLE SHAREHOLDER - UNIVERSAL FLIRTS, INC.
By: /s/ Darrell Lerner
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