UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. _______)*
Mizar Energy Company.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
60685C 10 9
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(CUSIP Number)
Laura M. Holm, Esq..
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English, McCaughan & O'Bryan
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100 N.E. 3rd Avenue, Suite 1100
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Fort Lauderdale, FL33301
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
December 28, 1999
-----------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Note: Schedules filed in paper formal shall included a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
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CUSIP No. 60685C 10 9 Page 1 of 10 Pages
- ------------------------ ---------------------
- -------- -----------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR IRS. IDENTIFICATION NO. OF ABOVE PERSON
HBOA.COM, Inc.
- -------- -----------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) 9
- -------- -----------------------------------------------------------------------
3 SEC USE ONLY
- -------- -----------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- -------- -----------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) 9
- -------- -----------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
District of Columbia
- ------------------- ------- ----------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 850,000
------- ----------------------------------------------------
8 SHARED VOTING POWER
0
BENEFICIALLY
------- ----------------------------------------------------
9 SOLE DISPOSITIVE POWER
OWNED BY
850,000
EACH
------- ----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
REPORTING
PERSON
WITH
- -------- -----------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
850,000
- -------- -----------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES*
- -------- -----------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
59.4%
- -------- -----------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- -------- -----------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ------------------------ ---------------------
CUSIP No. 60685C 10 9 Page 2 of 10 Pages
- ------------------------ ---------------------
- -------- -----------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR IRS. IDENTIFICATION NO. OF ABOVE PERSON
Gary D. Verdier
- -------- -----------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) 9
- -------- -----------------------------------------------------------------------
3 SEC USE ONLY
- -------- -----------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- -------- -----------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) 9
- -------- -----------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- -------- -----------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
------- ----------------------------------------------------
8 SHARED VOTING POWER
850,000
BENEFICIALLY
------- ----------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
OWNED BY
------- ----------------------------------------------------
10 SHARED DISPOSITIVE POWER
850,000
EACH
REPORTING
PERSON
WITH
- -------- -----------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
850,000
- -------- -----------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES*
- -------- -----------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
59.4%
- -------- -----------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- -------- -----------------------------------------------------------------------
<PAGE>
Item 1. Security and Issuer
This statement relates to the common stock of Mizar Energy Company, a
Colorado corporation ("Mizar"). The principal executive offices of Mizar are
located at 5459 South Iris Street, Littleton, Colorado 80123.
Item 2. Identity and Background
This Schedule is being filed by HBOA.COM, Inc., District of Columbia
corporation ("HBOA"). The business address for HBOA is 5200 NW 33rd Avenue,
Suite 215, Ft. Lauderdale, Florida 33309. HBOA is engaged in the sale of
products and services to the owners of home based businesses. Gary D. Verdier is
the sole executive officer and director of HBOA. Mr. Verdier is also the
controlling shareholder of HBOA.
During the last five years, neither HBOA nor Mr. Verdier has been (i)
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction, and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violations of any such laws.
Item 3. Source and Amount of Funds or Other Consideration
The Shares were issued to HBOA pursuant to a stock purchase agreement
dated November 17, 1999, as amended (the "Stock Purchase Agreement"), between
Philip J. Davis and John C. Lee and HBOA. HBOA's consideration for acquiring the
Shares was Sixty Three Thousand Seven Hundred Fifty Dollars ($63,750).
Item 4. Purpose of Transaction
HBOA acquired the Shares from Philip J. Davis and John C. Lee, so that
it would have a controlling interest in Mizar. Furthermore, HBOA also acquired
the Shares for investment purposes. The shares were sold to HBOA in a private
transaction pursuant to Section 4(1) of the Securities Act of 1933, as amended,
and thus the resale of the Shares is restricted.
Pursuant to the terms of the Stock Purchase Agreement, Philip J. Davis
and John C. Lee, the persons who were previously officers and directors of Mizar
resigned. The new officer and director of Mizar is Gary D. Verdier. Mr. Verdier
is the Chief Executive Officer, Treasurer, Secretary and Chairman of Mizar.
HBOA intends to effect a merger or business combination of itself with
and into Mizar. HBOA will send a proxy statement to the Mizar shareholders so
they can vote on the proposed merger or business combination of HBOA and Mizar.
In the merger or business combination, the existing shareholders of HBOA will
receive shares of Mizar's common stock in exchange for surrendering their shares
of HBOA's common stock. At this time, HBOA does not know how many shares of
Mizar's common stock will be issued to the HBOA shareholders.
<PAGE>
Except as described in the preceding paragraphs, HBOA does not have any
present plans or proposals which relate to or would result in: (a) the
acquisition by any person of additional securities of Mizar or the disposition
of securities of Mizar, (b) an extraordinary corporate transaction, such as a
merger, reorganization or liquidation, involving Mizar, (c) a sale or transfer
of a material amount of assets of Mizar, (d) any change in the present board of
directors or management of Mizar, including plans or proposals to change the
number or term of directors or to fill any existing vacancies on the board, (e)
any material change in the present capitalization or dividend policy of Mizar,
(f) any other material change in Mizar's business or corporate structure, (g)
any changes in Mizar's charter, by-laws or instruments corresponding thereto or
other actions which may impede the acquisition of control of Mizar by any
person, (h) a class of securities of Mizar's to be delisted from a national
securities exchange or cease being authorized to be quoted in an inter-dealer
quotation system of registered national securities association, (i) a class of
equity securities of Mizar becoming eligible for termination of registration
pursuant to Section 12(g) (4) of the Securities Exchange Act of 1934 or (j) any
action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer
(a) HBOA is deemed to beneficially own 850,000 shares of Mizar's
common stock, representing approximately 59.4% of Mizar's issued
and outstanding common stock. Gary Verdier is the sole executive
officer and director of HBOA. Mr. Verdier is also a controlling
shareholder of HBOA. By virtue of his position as an executive
officer and controlling shareholder, Mr. Verdier may be deemed to
beneficially own 850,000 shares of Mizar's common stock.
(b) Except as set forth above, neither HBOA nor Mr. Verdier has
effected any transactions in the shares of Common Stock during
the last sixty days.
(c) Not applicable.
(d) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer
Except as described above, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) with respect
to any securities of Mizar to which HBOA or Mr. Verdier is a party or is
subject.
Item 7. Materials to be filed as Exhibits
(a) Joint Filing Agreement pursuant to Rule 13d-1(f)
(b) Stock Purchase Agreement dated November 17, 1999, as amended
between HBOA.COM, Inc. and Philip J. Davis and John C. Lee
(c) Amendment No. 1 dated December 28, 1999 between HBOA.COM,
Inc. and Philip J. Davis and John C. Lee.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
HBOA.COM, Inc.
Dated: December 28, 1999 /s/ Gary Verdier
------------------
Gary Verdier
Dated: December 28, 1999 /s/ Gary Verdier
----------------
Gary Verdier
<PAGE>
JOINT FILING AGREEMENT
(Pursuant to Rule 13d-1(f))
The undersigned hereby agrees that the Schedule 13D to which this Joint
Filing Agreement ("Agreement") is attached is, and any amendements, will be
filed with the U.S. Securities and Exchange Commission on behalf of each of the
undersigned. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original but all together shall constitute one and
the same Agreement.
HBOA.COM, INC.
Dated: December 28, 1999 /s/ Gary Verdier
------------------
Gary Verdier
Dated: December 28, 1999 /s/ Gary Verdier
----------------
Gary Verdier
EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is entered into in
Broward County, Florida as of November 17, 1999, among HBOA. COM, INC..( the
"Buyer"), and PHILIP J. DAVIS ("Davis") and JOHN C. LEE ("Lee") ("Davis" and
"Lee" shall sometimes be referred to individually as the "Seller" and
collectively as the "Sellers").
Preliminary Statements
----------------------
7. The Sellers collectively own 1,400,000 shares of common stock of Mizar
Energy Corporation, a Colorado corporation (the "Company").
B. The Sellers wish to sell 1,000,000 shares of the Company's common
stock to the Buyer.
8. The Buyer desires to acquire from the Seller, and the Sellers desires to
sell to the Buyer 1,000,000 shares of the Company's common stock (the "Shares")
on the terms and subject to the conditions set forth in this Agreement.
Agreement
---------
In consideration of the preliminary statements and the respective
covenants, representations and warranties contained in this Agreement, the
parties agree as set forth below.
ARTICLE a.
Definitions
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Each term which is defined on Schedule 1 to this Agreement shall have
the meaning ascribed thereto on Schedule 1.
ARTICLE b.
Purchase of Shares; Consideration
---------------------------------
i. Shares to be Purchased. On the terms and subject o the conditions
set forth herein, on the Closing Date, the Sellers shall sell, transfer, assign,
convey and deliver to the Buyer, all of Sellers' right, title and interest in
and to all of the Shares.
ii. Consideration. The aggregate purchase price for all of the Shares
shall be Seventy Five Thousand Dollars ($75,000) (the "Purchase Price"). The
Buyer will give the Sellers an amount equal to Seventy Three Thousand Dollars
($73,0000) at the Closing by bank check or certified check.
<PAGE>
2.3 Security Deposit. On the date of the execution of this Agreement or
within two (2) business days thereafter, the Buyer shall deliver to the Seller
an amount equal to Three Thousand Dollar ($3,000) (the "Security Deposit"). This
Security Deposit shall be the property of the Sellers and shall be deducted from
the Purchase Price at the Closing (on the Closing Date ( as defined in Section
7.1) if the stock sale closes. If the stock sale fails to close due to any fault
of the Sellers or because the Sellers breached any of their representations,
warranties or covenants contained in this Agreement, the Sellers agree that they
will refund the Security Deposit to the Buyer.
ARTICLE c.
Representations and Warranties of the Buyer
-------------------------------------------
In order to induce the Sellers to enter into this Agreement and to
consummate the transactions contemplated hereby, as of the date hereof and as of
the Closing Date, Buyer makes the representations and warranties set forth below
to the Sellers.
i. Organization. Buyer has all requisite right, power and authority to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby.
ii. Authorization; Enforceability. The execution, delivery and
performance of this Agreement by the Buyer and the consummation by the Buyer of
the transactions contemplated hereby are duly authorized. This Agreement and all
other documents to be executed by the Buyer pursuant to this Agreement have been
and will be duly authorized, executed and delivered by it, and constitute, and
upon execution will constitute, the legal, valid and binding obligations of the
Buyer, as applicable, enforceable against it in accordance with their respective
terms, except to the extent that their enforcement is limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting the
enforcement of creditors' rights generally and by general principles of equity.
iii. No Violation or Conflict. The execution, delivery and performance
of this Agreement by the Buyer and the consummation by the Buyer of the
transactions contemplated hereby: (a) do not and will not violate or conflict
with any provision of law or regulation, or any writ, order, judgment or decree
of any court or governmental or regulatory authority, or any provision of the
Buyer's Articles of Incorporation or Bylaws; and (b) do not and will not, with
or without the passage of time or the giving of notice, result in the breach of,
or constitute a default, cause the acceleration of performance, or require any
consent under, or result in the creation of any lien, charge or encumbrance upon
any property or assets of the Buyer pursuant to any material instrument or
agreement to which the Buyer is a party or by which the Buyer or any of their
respective properties may be bound or affected.
iv. Brokers. The Buyer has not employed any financial advisor, broker
or finder and has not incurred and will not incur any broker's, finder's,
investment banking or similar fees, commissions or expenses, in connection with
the transactions contemplated by this Agreement.
v. Consents and Approvals. No consent, approval, waiver or
authorization of, or registration, qualification or filing with or notice to any
federal, state or local governmental or
<PAGE>
regulatory authority is required to be made by the Buyer in connection with the
execution, delivery or performance of this Agreement by the Buyer or the
consummation by them of the transactions contemplated hereby.
3.6 Representations and Warranties. The Buyer agrees to all of the
representations and warranties contained in Schedule 3.6 attached hereto and
incorporated herein by reference.
ARTICLE d.
Representations and Warranties of the Sellers
---------------------------------------------
In order to induce the Buyer to enter into this Agreement and to
consummate the transactions contemplated hereby, as of the date hereof and as of
the Closing Date, the Sellers, jointly and severally, makes the representations
and warranties set forth below to the Buyer.
i. Ownership of Shares. Each Seller is the record and beneficial owner
of 500,000 Shares of the Company's common stock represented by the certificate
numbers set forth on Scheduled 4.1 attached hereto (which Schedule will be
completed on or before the Closing Date). The Sellers represent and warrant that
all of the Shares are free and clear of any and all security interests,
encumbrances, and rights of any kind or nature whatsoever (collectively, the
"Encumbrances"), and upon delivery of the Shares hereunder, the Buyer will
acquire title thereto, free and clear of any and all Encumbrances. Other than
voting rights, redemption rights and such other rights conferred by applicable
charter documents and by applicable law, there exist no Securities Rights (as
defined herein) with respect to the Shares. All rights and powers to vote the
Shares are held exclusively by the Sellers. All of the Shares are validly
issued, fully paid and non-assessable, were not issued in violation of the terms
of any agreement or other understanding, and were issued in compliance with all
applicable federal and state securities or "blue sky" laws and regulations. The
certificates representing the Shares to be delivered by the Sellers at the
Closing are, and the signatures and endorsements thereof or stock powers
relating thereto will be, valid and genuine. For the purposes of this section,
"Securities Rights" means with respect to the Company's securities, any options,
warrants, subscription rights, other rights, proxies, puts, calls demands,
plans, commitments, agreements, understandings or arrangements of any kind
relating to such securities (whether issued or unissued) or any other securities
convertible into or exchangeable for an issuer's securities, and includes all
written or unwritten contractual rights relating to the issuance, sale,
assignment, transfer, purchase, redemption, conversion, exchange, registration
or voting of such securities and all rights conferred by the Company's governing
documents and by any applicable agreements.
ii. Power and Authority: Enforceability. The Sellers have all requisite
right, power and authority to enter into this Agreement and each ancillary
document to be entered into by them pursuant hereto and to sell, transfer and
deliver the Shares owned by them to the Buyer and perform their obligations
hereunder and thereunder, and this Agreement and each such ancillary document
constitutes or, will upon execution thereof constitute, the legal, valid and
binding obligation of the Sellers, enforceable against them in accordance with
its terms, except to the extent that their enforcement is limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting the
enforcement of creditors' rights generally and by general principles of equity.
<PAGE>
iii. Organization of the Company. The Company is a corporation duly
organized, validly existing and in good standing under the laws of Colorado. To
the knowledge of the Company and Sellers, neither the ownership nor the leasing
of the Company's properties nor the conduct of its businesses requires the
Company to qualify to transact business as a foreign corporation in any
jurisdiction. The Company has all requisite right, power and authority to (a)
own or lease and operate its properties and assets, (b) conduct its business as
presently conducted, and (c) engage in and consummate the transactions
contemplated hereby.
iv. Authorization; Enforceability. This Agreement and all other
documents to be executed and delivered by the Company or the Sellers pursuant to
this Agreement have been and will be duly authorized, executed and delivered by
them, as applicable, and constitute, and upon execution will constitute, the
legal, valid and binding obligations of the Company and the Sellers, as
applicable, enforceable against them, as applicable, in accordance with their
respective terms, except to the extent that their enforcement is limited by
bankruptcy, insolvency, reorganization or other laws relating to or affecting
the enforcement of creditors' rights generally and by general principles of
equity.
v. No Violation or Conflict. The execution, delivery and performance of
this Agreement by the Company and the Sellers and the consummation by the
Company and the Sellers of the transactions contemplated hereby: (a) do not and
will not violate or conflict with any provision of law or regulation, or any
writ, order, judgment or decree of any court or governmental or regulatory
authority, or any provision of the Company's Articles of Incorporation or
Bylaws, or other organizational documents or any license, franchise or permit to
which Sellers or the Company is a party or by which he is bound; and (b) do not
and will not, with or without the passage of time or the giving of notice,
result in the breach of, or constitute a default, cause the acceleration of
performance or require any consent under, or result in the creation of any lien,
charge or encumbrance upon any property or assets of Sellers or of the Company
pursuant to any instrument or agreement to which the Sellers or the Company is a
party or by which the Sellers or the Company or their respective properties or
assets may be bound or affected, other than instruments or agreements as to
which consent shall have been obtained or is in the process of being obtained at
or prior to the Closing, each of which instruments or agreements is listed on
Schedule 4.5 hereto.
vi. Consents and Approvals. No consent, approval, waiver or
authorization of, or registration, qualification or filing with or notice to any
federal, state or local governmental or regulatory authority, or any other
Person, is required to be made by the Sellers or the Company in connection with
the execution, delivery or performance of this Agreement by the Company or by
the Sellers or the consummation by the Company or the Sellers of the
transactions contemplated hereby, except for the consents of governmental
authorities set forth on Schedule 4.20 and the consents of other persons to the
assignment of the Material Agreements set forth on Schedule 4.28, all of which
will be received or are in the process of being received or in the process of
being received prior to the Closing.
vii. Brokers. There are no financial advisors, brokers, finders,
investment banking or similar fees, commissions or expenses relating to this
transaction.
<PAGE>
viii. Capitalization. As of the date of this Agreement, the authorized
capital stock of the Company consists solely of 25 million shares of common
stock, of which 1,430,700 are issued and outstanding (the "Issued Shares"), and
10 million shares of preferred stock, of which none are issued and outstanding.
All of the Issued Shares are free and clear of any and all Encumbrances (as
defined in Section 4.1). Other than voting rights, redemption rights and such
other rights conferred by applicable charter documents and by applicable law,
there exist no Securities Rights (as defined in Section 4.1) with respect to the
Issued Shares. All of the Issued Shares are validly issued, fully paid and
non-assessable, were not issued in violation of the terms of any agreement or
other understanding, and were issued in compliance with all applicable federal
and state securities or "blue sky" laws and regulations.
ix. Absence of Undisclosed Liabilities. The Company has no debt,
obligation or liability, absolute, fixed, contingent or otherwise, of any nature
whatsoever, whether due or to become due, including any unasserted claim,
whether incurred directly or by any predecessor thereto, and whether arising out
of any act, omission, transaction, circumstance, sale of goods or services,
state of facts or other condition which could have a material adverse effect on
the Company's financial condition or results of operations, except: (i) those
reflected or reserved against on the Company's unaudited financial statements
for the third quarter ended September 30, 1999 in the amount shown therein, (ii)
those that have arisen in the ordinary course of business of the Company after
the date of the most recent Unaudited financial Statements through the Closing
Date, none or which, individually or in the aggregate, has had or will have a
Material Adverse Effect and (iii) those set forth in Schedule 4.9.
x. Subsidiaries and Investments. The Company has no Investments. The
Company has no Subsidiaries.
xi. Financial Statements. True and complete copies of the Company's
audited financial statements for the fiscal year ended December 31, 1998 and the
unaudited financial statements for the first quarter ended March 31, 19999, the
second quarter ended June 30, 1999 and the third quarter ended September 30,
1999 (collectively, the "Financial Statements") have been delivered to the
Buyer. The Financial Statements (i) were prepared in accordance with the books
of account and other financial records of the Company, (ii) present fairly the
financial condition and results of operations of the Company as of the dates
thereof or for the periods covered thereby, (iii) have been prepared in
accordance with generally accepted accounting principles ("GAAP") applied on a
basis consistent with the past practices of the Company and (iv) include all
adjustments (consisting only of normal recurring accruals) that are necessary
for a fair presentation of the financial condition of the Company and the
results of the operations of the Company, as of the dates thereof or the periods
covered thereby (subject to normal recurring year end adjustments).
xii. Conduct of Business. The Company has conducted its businesses only
in the ordinary and usual course consistent with past practices and there has
not occurred any material adverse change in its condition (financial or
otherwise), results of operations, properties, assets, liabilities, business or
prospects. Without limiting the generality of the foregoing, except as disclosed
on Schedule 4.12, since September 30, 1999, the Company has not:
<PAGE>
(1) declared or paid any dividends or other distribution (whether
in cash, stock or other property) with respect to its capital stock, or
otherwise transferred or agreed to transfer any assets to any of its
shareholders or Affiliates;
(2) suffered any damage, destruction or loss, whether or not
covered by insurance, which has had or could have an adverse effect on any of
its properties, assets, business or prospects;
(3) voluntarily or involuntarily sold, transferred, surrendered,
abandoned or disposed of any of its assets or property rights (tangible or
intangible), other than inventory and minor amounts of personal property, in the
ordinary course of business consistent with past practices at a price equal to
the greater of fair market value or book value;
(4) disclosed any proprietary or confidential information to any
third party;
(5) granted or made any mortgage or pledge or subjected itself or
any of its properties or assets to any Encumbrance, except Permitted
Encumbrances,
(6) created, incurred or assumed any liability or indebtedness,
for borrowed money or entered into any capitalized lease obligations;
(7) made or committed to make any capital expenditures;
(8) applied any of its assets to the direct or indirect payment,
discharge, satisfaction or reduction of any amount payable directly or
indirectly to or for the benefit of Sellers or any Affiliate thereof or to the
prepayment of any such amounts, or otherwise entered into or modified any
arrangement with any Affiliate of the Company or Sellers;
(9) written off the value of any inventory or any accounts
receivable or increased the reserves for obsolete, damaged, spoiled or otherwise
not usable inventory or doubtful or uncollectible receivables;
(10) granted any increase in the compensation payable or to become
payable to directors, officers or employees (including, without limitation, any
such increase pursuant to any bonus, pension, profit-sharing or other plan or
commitment or otherwise), other than merit increases to officers and employees
(other than the Sellers and their Affiliates) in the ordinary course of business
and consistent with past practices;
(11) altered the manner of keeping its books, accounts or records,
or changed in any manner the accounting practices therein reflected;
(12) accelerated or delayed collection of notes or accounts
receivable in advance of or beyond their regular dates or the dates when the
same could have been collected in the ordinary course of business consistent
with past practices;
<PAGE>
(13) allowed its levels of inventory to vary in any material
respect from the levels customarily maintained;
(14) experienced any other event or condition of any character
which has had or could have, individually or in the aggregate, a material
adverse effect on the condition (financial or otherwise), results of operations,
assets, liabilities. properties, business or prospects of the Company, or on
employee, customer or supplier relations;
(15) engaged in or agreed to engage in any of the transactions or
occurrences which would be prohibited prior to the Closing; or
(16) agreed, whether in writing or otherwise, to do any of the
foregoing.
xiii. Compliance with Laws. The Company has conducted its business in
compliance with all federal, state, local and foreign laws, ordinances,
regulations, judgments, rulings, orders and other requirements applicable to it,
including without limitation those relating to (a) employment, safety and
health, and (b) environmental protection, building, zoning and land use. No
governmental authority has asserted that the Company is not in compliance with
any such laws, ordinances, regulations, judgments, rulings, orders and other
requirements. The Company is not subject to any order, judgment or decree of any
court or governmental authority. The Buyer will be furnished with true and
correct copies of all reports of inspections of the Company's businesses and
properties through the date hereof under all applicable federal, state, foreign
and local laws and regulations. Except as set forth on Schedule 4.13, there has
been no inspection of the Company's businesses and properties conducted by
insurance companies, consultants, or any other Persons. All deficiencies noted
in any such reports have been corrected.
xiv. Litigation. Except as set forth on Schedule 4.14, there are no
actions, suits, investigations, claims or proceedings pending or, to the
knowledge of the Company or the Sellers, threatened before any court,
governmental or regulatory authority or arbitrator: (a) affecting the Company
(as plaintiff or defendant) which: (i) could, individually or in the aggregate,
have a material adverse effect on the condition (financial or otherwise),
results of operations, properties, assets, liabilities, business or prospects of
the Company; or (ii) without limiting the generality of the foregoing (A)
threatens to revoke, vary, modify or terminate any of the Governmental
Authorizations or to declare any of them invalid in any respect; (B) involves
any of the Company intangible property; (C) involves any material claim against
the Company under any warranty, whether express or implied, on products
repaired, overhauls or services sold by the Company; (D) involves any material
claim against the Company for injury to persons, animals or property suffered as
a result of the sale, manufacture or distribution of any product or performance
of any repairs, overhauls or services by the Company including, but not limited
to, claims arising out of the defective or unsafe nature of its products or
services; or (E) involves a claim for specific performance, injunctive relief or
other equitable remedies; or (b) which questions the legality or propriety of
the transactions contemplated by this Agreement; and there exist no facts or
circumstances known to the Company or the Sellers creating a reasonable basis
for the institution of any such action, suit, investigation, claim or proceeding
described in clauses (a) or (b) above. No action, suit, investigation, claim or
proceeding
<PAGE>
of the kind described in clauses (a) and (b) above have been pending, settled or
adjudicated during the three years preceding the date of this Agreement.
xv. Title to and Condition of Personal Property. The Company has, and
will have at Closing, good, valid and marketable title to all of its Assets,
including, without limitation, each item of equipment and other personal
property, tangible and intangible(other than inventory disposed of in the
ordinary course of business consistent with past practices to Persons other than
the Sellers or Affiliates of the Company or the Sellers) and to each item of
equipment and other personal property, tangible and intangible, acquired is free
and clear of any Encumbrances whatsoever except for Permitted Encumbrances.
Schedule 4.15 will contain a detailed list as of the Closing Date of all
machinery, equipment, vehicles, furniture and other personal property owned by
the Company or used by the Company in the operation of its business. All
tangible personal property owned by the Company or used by the Company in the
operation of its business is in good operating condition and in a good state of
maintenance and repair, ordinary wear and tear excepted. There are no properties
or assets, tangible or intangible, owned by any Person other than the Company
which are used in connection with the business of the Company.
xvi. Real Property. Schedule 4.16 contains a copy of any leases for
Real Property and/or improvements thereon to which the Company is a party,
guarantor or obligor. The Company does not own any Real Property.
xvii. Governmental Authorizations. Set forth on Schedule 4.17 is a list
of all authorizations, consents, approvals, franchises, licenses and permits
required under applicable law or regulation for the operation of the business of
the Company as presently operated (the "Governmental Authorizations"). To the
knowledge of the Sellers, all the Governmental Authorizations have been duly
issued or obtained and are in full force and effect, and the Company is in
compliance with the terms of all the Governmental Authorizations. Neither the
Company nor the Sellers have any knowledge of any facts which could be expected
to cause them to believe that the Governmental Authorizations will not be
renewed by the appropriate governmental authorities in the ordinary course. To
the knowledge of the Sellers, each of the Governmental Authorizations except as
disclosed in Schedule 4.17 may be assigned and transferred to the Buyer in
accordance with this Agreement and will continue in full force and effect
thereafter, in each case without (i) the occurrence of any breach, default or
forfeiture of rights thereunder, or (ii) the consent, approval, or act of, or
the making of any filings with, any Person.
xviii. Other Person Authorizations. Set forth on Schedule 4.18 is a
list of all authorizations, consents, approvals, franchises, licenses and
permits required by any Person for the operation of the business of the Company
as presently operated (the "Other Person Authorizations"). To the knowledge of
the Sellers, all of the Other Person Authorizations have been duly issued or
obtained and are in full force and effect, and the Company is in compliance with
the terms of all the Other Person Authorizations. The Sellers do not have any
knowledge of any facts which could be expected to cause them to believe that the
Other Person Authorizations will not be renewed by the appropriate Person in the
ordinary course. To the knowledge of the Sellers, each of the Other Person
Authorizations except as disclosed in Schedule 4.18 may be assigned and
transferred to the Buyer in accordance with this Agreement and will continue in
full force and effect thereafter, in each case
<PAGE>
without (i) the occurrence of any breach, default or forfeiture of rights
thereunder, or (ii) the consent, approval, or act of, or the making of any
filings with, any Person.
xix. Insurance. Set forth on Schedule 4.19 is a list of all insurance
policies providing insurance coverage of any nature to the Company. The Company
will deliver to the Buyer a true and complete copy of all of the Company's
insurance policies as amended. Such policies are sufficient for compliance by
the Company with all requirements of law and all Material Agreements. All of
such policies are in full force and effect and are valid and enforceable in
accordance with their terms, and the Company has complied with all material
terms and conditions of such policies, including the payment of premium
payments. As set forth on Schedule 4.19, none of the insurance carriers has
indicated to the Company an intention to cancel any such policy. The Company has
no claim pending or anticipated against any of the insurance carriers tinder any
of such policies and there has been no actual or alleged occurrence of any kind
which may give rise to any such claim.
xx. Labor Relations. None of the employees of the Company is a member
of any labor union, and the Company is not a party to, otherwise bound by or, to
the Company's or the Sellers's knowledge, threatened, with any labor or
collective bargaining agreement. None of the employees of the Company is known
to be engaged in organizing any labor union or other employee group that is
seeking recognition as a bargaining unit. Without limiting the generality of
Section 4.20, (i) no unfair labor practice complaints are pending or, to the
Company's or the Sellers's knowledge, threatened against the Company, and (ii)
no Person has made or threatened to make any claim, and to the Company's or the
Sellers's knowledge, no Person has made any claim and there is no known basis
for any material claim, against the Company under any statute, regulation or
ordinance relating to employees or employment practices, including without
limitation those relating to age, sex and racial discrimination, conditions of
employment, and wages and hours.
xxi. Employment Agreements and Employee Benefit Plans.
-------------------------------------------------
(1) Employment Agreements. There are no employment, consulting,
severance or indemnification arrangements, agreements, or understandings between
the Company and any officer, director, consultant or employee ("Employment
Agreements"). The Company has no material unaccrued liability for any arrears of
wages, bonuses or other employee benefits (including, without limitation,
termination or severance pay, sick pay, personal days and holiday pay) for any
of its employees.
(2) Employee Benefit Plans. The Company does not have any
employment benefit plans.
xxii. Tax Matter.
-----------
(1) All federal, state, local and foreign Tax Returns and reports
required to be filed with respect to the Company or its businesses or assets,
including, without limitation, any consolidated federal income tax returns filed
on behalf of the affiliated group (as defined in Section 1504(a) of the Code) of
which the Company is a member, and any combined income tax return filed on
behalf of a group of corporations of which the Company is a member, have been
duly and timely
<PAGE>
filed as required, are true, correct and complete as filed, and reflect
accurately all liability for Taxes for the periods to which such returns and
documents relate, and all amounts showing as owing thereon have been paid. All
Taxes upon the Company or upon its properties, assets, income or franchises
which are due and payable, and all assessments and taxes upon any group of
corporations of which the Company is a member or upon such group's properties,
assets or income, through the Closing Date have been paid, except as reflected
by accruals on the Closing Date balance sheet. The parties acknowledge that the
federal income tax return for the final year ended on October 31, 1998, has not
yet been filed.
(2) All Taxes collectible or payable by the Company or relating to
or chargeable against any of its assets, revenues or income through the date of
this Agreement were fully collected and paid by such date and all similar items
collectible or payable through the Closing Date will have been fully collected
and paid by that date. No taxation authority has audited the records of the
Company or given notice of its intention to audit the records of the Company. No
claims or deficiencies have been asserted against the Company with respect to
any Taxes which have not been paid or otherwise satisfied and there exists no
reasonable basis for the making of any such claims. The Company has not waived
any restrictions on assessment or collection of Taxes or consented to the
extension of any statute of limitations relating to taxation. All state sales
taxes due and owing to the State of Florida have been paid.
xxiii. Material Agreements.
--------------------
(1) Schedule 4.23 sets forth a brief description of all material
written and oral contracts or agreements to which the Company is a party or by
which the Company or any of its assets or properties is bound or affected,
including without limitation any:
(a) contract resulting in a commitment for expenditure or
other obligation, or which provides for the receipt or potential receipt,
involving in excess of $1,000 in any instance, or series of related contracts
that in the aggregate give rise to rights or obligations exceeding such amount;
(b) indenture, mortgage, promissory note, loan agreement,
guarantee or other agreement or commitment for the borrowing or lending of money
or encumbrance of assets;
(c) agreement which restricts the Company from engaging in any
line of business or from competing with any other Person;
(d) agreement or arrangement for the sale or lease of any of
the assets, property or rights of the Company outside the ordinary course of
business or requiring the consent of any party to the transfer and assignment of
any assets, property and rights;
(e) agreement relating to any Intangible Property, including
confidentiality or secrecy agreements;
<PAGE>
(f) agreement relating to the development, manufacture,
distribution or sale of any products or products under development by the
Company;
(g) warranties made with respect to products manufactured,
packaged, distributed or sold by the Company;
(h) contract for the purchase or lease by the Company of
goods, equipment, supplies or capital assets or the performance by others of
services which the Company reasonably anticipates will involve the payment by
the Company of more than $1,000 after the date hereof or which extends beyond
November 18, 1999 or contract for the purchase by the Company of raw materials
which the Company reasonably anticipates will involve the payment by the Company
of more than $1,000 after the date hereof or which extends beyond November 18,
1999;
(i) contract for the sale of products of the Company which the
Company reasonably anticipates will involve the payment of more than $1,000
after the date hereof or which extends beyond November 18, 1999;
(j) consignment, distributor, dealer, manufacturers
representative or sales agency contract which the Company reasonably anticipates
will involve the payment of more than $1,000 after the date hereof or which
extends beyond November 18, 1999 or advertising representative, advertising or
public relations contract which the Company reasonably anticipates will involve
the payment of more than $1,000 after the date hereof or which extends beyond
November 18, 1999;
(k) agreement, contract or arrangement with any Affiliates of
the Company or Sellers; or
(l) any other contract, agreement, instrument, arrangement or
commitment that is material to the condition (financial or otherwise), results
of operations, assets, properties, liabilities, business or prospects of the
Company (collectively, and together with the Employment Agreements, Plans and
all other agreements required to be disclosed on any Schedule to this Agreement,
the "Material Agreements"). The Company has previously furnished to the Buyer
true, complete and correct copies of all written agreements, as amended,
required to be listed on Schedule 4.25.
(2) To the knowledge of the Company and Sellers, each of the
Material Agreements are each in full force and effect and are the valid and
legally binding obligations of the Company and enforceable in accordance with
their respective terms, subject only to bankruptcy, insolvency or similar laws
affecting the rights of creditors generally and to general equitable principles.
Neither the Company nor the Sellers have received notice of default by the
Company under any of the Material Agreements, and the Company is not in default
under any of the Material Agreements and no event has occurred which, with the
passage of time or the giving of notice or both, would constitute a default by
the Company thereunder. To the Company and the Sellers's knowledge, none of the
other parties to the Material Agreements is in default thereunder, nor has an
event occurred which, with the passage of time or the giving of notice or both,
would constitute a default
<PAGE>
by such other party thereunder. Neither the Company nor the Sellers have
received notice of the pending or threatened cancellation, revocation or
termination of any of the Material Agreements, nor are any of them aware of any
facts or circumstances which could reasonably be expected to lead to any such
cancellation, revocation or termination.
(3) Except as otherwise indicated on Schedule 4.25, to the
knowledge of the Company and Sellers, each of the Material Agreements may
survive the transfer to the Buyer pursuant to this Agreement and will continue
in full force and effect under the current terms thereof, in each case without
breaching the terms thereof or resulting in the forfeiture or impairment of any
right thereunder and without the consent, approval or act of, or the making of
any filing with any Person. xxiv. Related Parties. Except as disclosed on
Schedule 4.24, none of the Sellers nor any current director, officer of the
Company, or person who has resided at the same address of any of such persons at
any time greater than thirty (30) days in the aggregate during the past
twenty-four (24) months (individually a "Relate Party" and collectively the
"Related Parties") or any Affiliate thereof: (a) owns, directly or indirectly,
any interest in any Person which is a competitor, potential competitor, supplier
or customer of the Company; (b) owns, directly or Indirectly, in whole or in
part, any property, asset or right, real, personal or mixed, tangible or
intangible (including, but not limited to, any of the Intangible Property) which
is utilized by or in connection with the business of the Company; (c) is a
customer or supplier of the Company; or (d) directly or indirectly has an
interest in or is a party to any contract, agreement, lease, arrangement or
understanding, whether or not in writing, pertaining or relating to the Company,
except for employment, consulting or other personal service agreements which are
listed on Schedule 4.26 hereto.
xxv. Absence of Certain Business Practices. None of the Sellers, any
Related Party, any Affiliate of the Sellers or of any Related Party, any agent
of the Company, or any other Person acting on behalf of or associated with the
Company, acting alone or together, has: (a) received, directly or indirectly,
any rebates, payments, commissions, promotional allowances or any other economic
benefits, regardless of their nature or type, from any customer, supplier,
employee or agent of any customer or supplier, official or employee of any
government (domestic or foreign) or other Person; or (b) directly or indirectly,
given or agreed to give any money, gift or similar benefit to any customer,
supplier, employee or agent of any customer or supplier, official or employee of
any government (domestic or foreign), or any political party or candidate for
office (domestic or foreign) or other Person who was, is or may be in a position
to help or hinder the business of the Company (or assist the Company in
connection with any actual or proposed transaction) which (i) may subject the
Company to any material damage or penalty in any civil, criminal or governmental
litigation or proceeding, (ii) if not given in the past, may have had a material
adverse effect on the assets, business, operations or prospects of the Company
or (iii) if not continued in the future, may materially adversely affect the
assets, business, operations or prospects of the Company.
xxvi. Environmental Matters. The Sellers represent and warrant that no
property owned, leased, used or occupied by the Company currently or in the past
has been used by the Company or any other Person to manufacture, treat, store,
or dispose of any hazardous substance or any other regulated material, and such
property is free of all such substances and materials. Without limiting
<PAGE>
the generality of Section 4.13, the Sellers and the Company, are in compliance
with all laws, regulations and other federal, state or local governmental
requirements, and all applicable judgments, orders, writs, notices, decrees,
permits, licenses, approvals, consents or injunctions relating to the
generation, management, handling, transportation, treatment, disposal, storage,
delivery, discharge, release or emission of any waste, pollutant or toxic,
hazardous or other regulated substance (including, without limitation, asbestos,
radioactive material and pesticides and the keeping and posting of all Material
Safety Data Sheets and waste manifests) or to any other actions, omissions or
conditions affecting the environment (the "Environmental Laws"). Without
limiting the generality of Section 4.15, the Company has not received any
complaint, notice, order, or citation of any actual or alleged noncompliance
with any Environmental Law, and there is no proceeding, suit or investigation
pending or, to the Sellers's knowledge, threatened against the Company with
respect to any violation or alleged violation of the Environmental Laws, and
there is no reasonable basis for the institution of any such proceeding, suit or
investigation.
xxvii. Certain Claims; Business Generally. There are no claims existing
or, to the best of the Company's and the Sellers's knowledge, threatened under
or pursuant to any warranty, whether express or implied, on products or services
sold by the Company. To the knowledge of the Company and the Sellers, there are
no claims existing and there is no basis for any claim against the Company for
injury to persons, animals or property as a result of the sale, distribution or
manufacture of any product or performance of any service by the Company
including, but not limited to claims arising out of the defective or unsafe
nature of its products or services.
xxviii. Disclosure. No representation or warranty of the Company or the
Sellers contained in this Agreement, and no statement, notice, certificate or
other document furnished by or on behalf of the Sellers or the Company, the
Buyer or their agents pursuant hereto or in connection with the transactions
contemplated hereby, to the knowledge of the Company and the Sellers, contains
or will contain any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein or
therein not misleading or omits or will omit to state a material fact necessary
in order to provide a prospective purchaser of the Company with full and proper
information as to the business, assets, prospects, financial condition or
results of operations of the Company.
ARTICLE e.
Certain Agreements
------------------
i. Preserve, Accuracy of Representations and Warranties. Each of the
parties hereto shall refrain from taking any action which would render any
representation or warranty contained in this Agreement inaccurate as of the
Closing Date.
ii. Consents of Third Parties; Governmental Approvals.
(1) The Buyer and the Sellers will act diligently and reasonably
to secure, after the Closing Date, the consent, approval or waiver, in form and
substance reasonably satisfactory to the
<PAGE>
Buyer from any party to any Material Agreement required to be obtained to
satisfy the conditions set forth in this Agreement.
(2) During the period prior to and after the Closing Date, the
parties shall act diligently and reasonably, and shall cooperate with each
other, to secure any consents and approvals of any Person required to be
obtained by them in order to permit the consummation of the transactions
contemplated by this Agreement, or to otherwise satisfy the conditions set forth
in Section 7.2; provide that the Company shall not make any agreement or
understanding affecting the Company as a condition for obtaining any such
consents or approvals except with the prior written consent of the Buyer (which
consent shall not be unreasonably withheld).
iii. Operations Prior to the Closing Date. The Company will operate and
carry on its business only in the ordinary course and substantially as presently
operated. Consistent with the foregoing, the Company will (i) keep and
maintained the Company's assets in good operating condition and repair and (ii)
use its reasonable efforts consistent with good business practice to preserve
the goodwill of the Securities and Exchange Commission ("SEC"), the National
Association of Securities Dealers ("NASD"), suppliers, contractors, licensors,
employees, customers, distributors and others having business relations with it.
The Sellers shall use all reasonable efforts, consistent with past practices, to
promote the Company's business and to maintain the reputation associated with
the Company's business, and shall not take or omit to take any action which
causes, or which is likely to cause, any deterioration of the Company's present
business or relationships with the SEC or the NASD.
iv. Investigation. The representations, warranties and covenants set
forth in this Agreement shall not be affected or diminished in any way by any
investigation (or failure to investigate) at any time by or on behalf of the
party for whose benefit such representations, warranties and covenants were
made. All statements contained herein or in any schedule, certificate, exhibit,
list or other document delivered pursuant hereto shall be deemed to be
representations and warranties for purposes of this Agreement. No
representation, warranty, covenant or agreement of an), party shall limit the
generality of any other representation, warranty, covenant or agreement of such
party.
v. Notification. Each party to this Agreement shall promptly notify the
other parties in writing of the occurrence, or threatened occurrence, of (i) any
event that, with the lapse of time or notice or both, would constitute a breach
of this Agreement by such party; (ii) any event that would cause any
representation or warranty made by such party in this Agreement to be false or
misleading in any respect; and (iii) any event which would have been required to
be disclosed herein had such event occurred on or prior to the date of this
Agreement. Each party shall promptly notify the other of any action, suit or
proceeding that is instituted or threatened against such party to restrain,
prohibit or otherwise challenge the legality of any transaction contemplated by
this Agreement. The Sellers shall promptly notify the Buyer of any lawsuit,
claim, proceeding or investigation that may be threatened, brought, asserted or
commenced against the Company or which should have been listed in any Schedule
hereto if such lawsuit, claim, proceeding or investigation had arisen prior to
the date hereof. The updating of any schedule pursuant to this Section 5.5 shall
not be deemed to release any party for the breach of any representation,
warranty or covenant hereunder or of any other liability arising hereunder.
<PAGE>
vi. Reasonable Efforts. Subject to the terms and conditions of this
Agreement, each of the parties shall use its diligent and reasonable efforts in
good faith to take or cause to be taken as promptly as practicable all
reasonable actions, that are within its control to cause to be fulfilled: (i)
those conditions precedent to its obligations to consummate the transactions
contemplated hereby; and (ii) those actions upon which the conditions precedent
to the other party's obligations to consummate this Agreement are dependent.
ARTICLE f.
Additional Agreements
---------------------
i. Certain Tax Returns and Indemnity. Any Tax (including, without
limitation income tax, a sales Tax, use Tax or documentary stamp Tax) directly
attributable to the sale or transfer of the Shares shall be paid by the Sellers.
The Buyer and the Company agree to timely sign and deliver such certificates or
forms as may be necessary or appropriate to establish an exemption from (or
otherwise reduce), or make a report with respect to, such Taxes.
ii. Survival. The representations and warranties of the parties hereto
contained in this Agreement or in any exhibit or schedule to this Agreement
shall survive the Closing Date for five (5) years.
iii. Indemnification.
----------------
(1) By the Seller. Subject to the limitations set forth in Section
6.3(d), the Seller agree, jointly and severally, to indemnify and hold harmless
the Buyer and their respective directors, officers, employees and agents from,
against and in respect of, the full amount of any and all liabilities, damages,
claims, deficiencies, fines, assessments, losses, taxes, penalties, interest,
costs and expenses, including, without limitation, reasonable fees and
disbursements of counsel (collectively, the "Losses"), arising from, relating
to, caused from (whether in whole or in part), in connection with, or incident
to:
(a) any breach, inaccuracy or violation of any of the
representations, warranties, covenants or agreements of the Company or the
Seller contained in this Agreement, in any schedule or exhibit to this Agreement
or in any document or certificate delivered by them at or prior to the Closing;
(b) any and all loss or liability, including the costs and
expenses of prosecution or defense incurred by the Buyer as a consequence of or
relating to any claims and/or litigation relating to the Shares or any other
matters before the Closing;
(c) any and all Taxes, due or claimed to be due (including,
without limitation, Taxes on properties, income, franchises, licenses, sales,
services and payrolls) by any federal, state, local and foreign authority
applicable to the Company and/or the Shares in respect of or attributable to any
and all periods ending on or before the Closing Date; and
<PAGE>
(d) any and all actions, suits, proceedings, demands, assessments
or judgments, costs and expenses incidental to any of the foregoing.
(2) By the Buyer. Subject to the limitations set forth in Section
6.4(d), the Buyer agrees to indemnify and hold harmless the Sellers from,
against and in respect of, the full amount of any and all Losses arising from,
in connection with, or incident to:
(a) any breach, inaccuracy or violation of any of the
representations, warranties, covenants or agreements of the Buyer contained in
this Agreement, in any schedule or exhibit to this Agreement or in any document
or certificate delivered by the Buyer at or prior to the Closing;
(b) any and all actions, suits, proceedings, demands, assessments
or judgments, costs and expenses incidental to any of the foregoing.
(3) Indemnity Procedure. A party or parties responsible for
indemnifying another party against any matter pursuant to this Agreement is
referred to herein as the "Indemnifying Party" and a party or parties entitled
to indemnity is referred to as the "Indemnified Party."
An Indemnified Party under this Agreement shall, with respect to claims
asserted against such party by any third party, give written notice to each
Indemnifying Party of any liability which might give rise to a claim for
indemnity under this Agreement within 60 business days of the receipt of any
written claim from any such third party, and with respect to other matters for
which the Indemnified Party may seek indemnification, give prompt written notice
to each Indemnifying Party of any liability which might give rise to a claim for
indemnity; provided, however, that any failure to give such notice will not
waive any rights of the Indemnified Party except to the extent the rights of the
Indemnifying Party are materially prejudiced.
As to any claim, action, suit or proceeding by a third party, the
Indemnifying Party shall be entitled, together with the Indemnified Party, to
participate in the defense, compromise or settlement of any such matter through
the Indemnifying Party's own attorneys and at its own expense. The Indemnified
Party shall provide such cooperation and such access to its books, records and
properties as the Indemnifying Party shall reasonably request with respect to
such matter; and the parties hereto agree to cooperate with each other in order
to ensure the proper and adequate defense thereof, it being understood that the
Indemnified Party shall control any such defense, all at the Indemnifying
Party's expense. The Indemnifying Party shall pay all reasonable photocopying
and reproduction charges for any photocopies or reproductions required.
An Indemnifying Party shall not make any settlement of any claims
without the written consent of the Indemnified Party, which consent shall not be
unreasonably withheld. Without limiting the generality of the foregoing, it
shall not be deemed unreasonable to withhold consent to a settlement involving
injunctive or other equitable relief against the Indemnified Party or its
assets, employees or business.
<PAGE>
With regard to claims of third parties for which indemnification is
payable hereunder, such indemnification shall be paid by the Indemnifying Party
upon the earliest to occur of: (i) the entry of a judgment against the
Indemnified Party and the expiration of any applicable appeal period, or if
earlier, five days prior to the date that the judgment creditor has the right to
execute the judgment or if earlier the date that the Indemnified Party must post
any bond with respect to any judgment or other judicial ruling; (ii) the entry
of an unappealable judgment or final appellate decision against the Indemnified
Party; (iii) a settlement of the claim; or (iv) with respect to indemnities for
Tax liabilities, upon the issuance of any resolution by a taxation authority.
Notwithstanding the foregoing, expenses of counsel to the Indemnified Party
shall be reimbursed on a current basis by the Indemnifying Party. With regard to
other claims for which indemnification is payable hereunder, such
indemnification shall be paid promptly by the Indemnifying Party upon demand by
the Indemnified Party.
(4) Limitation. No party shall have any obligation under the
indemnification provisions set forth in Sections 6.3(a) or 6.3(b) until the
aggregate of all claims for which such party is responsible under such
indemnification provisions with respect to any breach of a representation or
warranty exceeds $1,000 provided, however, that if any party is responsible for
indemnification hereunder for any amount in excess of such amount, then such
amount shall not be deemed applicable and such party shall be responsible to
fully indemnify the other party for all such claims.
(5) Indemnification Payments Net of Taxes. All sums payable by an
Indemnifying Party as indemnification under this Section 6.4 shall be paid free
and clear of all deductions or withholdings (including any taxes or governmental
charges of any nature) unless the deduction or withholding is required by law,
in which event or in the event the Indemnified Party shall incur any liability
for tax chargeable or assessable in respect of any such payment, the
Indemnifying Party shall pay such additional amounts as shall be required to
cause the net amount received by the Indemnified Party to equal the full amount
which would otherwise have been received by it had no such deduction or
withholding been made or no such liability for taxes been incurred.
(6) Set-Off. The Buyer shall be entitled, at its discretion and in
addition to any other rights and remedies they may have in law and in equity, to
set off at any time and from time to time, the amount of any losses against any
obligations of the Buyer to the Company or Seller under this Agreement or under
any of the agreements entered into pursuant hereto.
iv. Exclusive Dealing with the Buyer. From the date hereof to the
Closing Date (or the earlier termination of this Agreement in accordance with
its terms) Sellers shall not, directly or indirectly, solicit or initiate
discussions or negotiations with, or enter into any agreement with any person or
entity (other than the Buyer) concerning any of the transactions contemplated
hereby, except as required to effect the consummation of the transactions
contemplated herein. The Sellers also agree that they will not sell, transfer or
dispose of any shares of the Company's common stock until the Closing Date (or
the date on which this Agreement is terminated), whichever is earlier.
v. Lock-Up Agreements. After the Closing Date, each Seller will own
200,000 shares of the Company's common stock or 400,0000 shares will be owned
collectively by the Sellers (such shares shall be referred to as the "Remaining
Shares") Each Seller agrees that beginning on the Closing Date and for a period
of nine months thereafter( the "Lock-up Period"), the Remaining Shares
<PAGE>
will be subject to a lock-up agreement. The lock-up agreement will provide that
during the Lock-Up Period, the Sellers can collectively sell 133,000 shares of
the Company's common stock per quarter. Notwithstanding the foregoing, the Buyer
may agree to release the Sellers from their lock-up agreements at any time.
vi. Access and Inspection. Each party hereto has allowed and shall
allow the other parties ( as applicable) and their authorized representatives
full access during normal business hours from and after the date hereof and
prior to the Closing Date to all of the properties, books, contracts,
commitments and records of the Company for the purpose of making such
investigations as any party may reasonably request in connection with the
transactions contemplated hereby, and shall furnish such party such information
concerning its affairs as that party may reasonably request.
vii. Confidential Treatment of Information. From and after the date
hereof, the parties hereto shall and shall cause their representatives to hold
in confidence this Agreement (including the Exhibits and Schedules hereto), all
matters relating hereto and all data and information obtained with respect to
the other parties or their business, except such data or information as is
published or is a matter of public record, or as compelled by legal process. In
the event this Agreement is terminated pursuant to the terms contained herein,
each party shall promptly return to the other(s) any statements, documents,
schedules, exhibits or other written information obtained from them in
connection with this Agreement, and shall not retain any copies thereof.
viii. Publicity. The parties agree to reasonably cooperate in issuing
any press release or other public announcement or Making any governmental filing
concerning this Agreement or the transactions contemplated hereby. Nothing
contained herein shall prevent any party from at any time furnishing any
information to any governmental authority which it is by law or otherwise so
obligated to disclose or from making any disclosure which its counsel deems
necessary or advisable in order to fulfill such party's disclosure obligations
under applicable law.
ARTICLE G.
Closing Conditions Precedent; Termination
-----------------------------------------
i. Closing. The consummation of the sale and purchase and the transfers
and deliveries to be made pursuant to this Agreement (the "Closing") shall take
place at 2:00 p.m. local time (but shall be deemed to have occurred at 12:01
a.m. local time) at the offices of English, McCaughan & O'Bryan, P.A., on March
31, 2000 (the "Closing Date"), or at such other place, time or date as may be
agreed to by the parties, unless extended by either party for a sixty (60) day
period. All proceedings to be taken and all documents to be executed at the
Closing shall be deemed to have been taken, delivered and executed
simultaneously, and no proceeding shall be deemed taken nor documents deemed
executed or delivered until all have been taken, delivered and executed.
(1) At the Closing, the Company and the Sellers shall deliver to the
Buyer:
(i) Stock certificates for of the shares of capital stock of
Mizar being surrendered hereunder, duly endorsed or with stock
powers attached in blank.
<PAGE>
(ii) All corporate records of Mizar, including without
limitation corporate minute books, stock books, stock transfer
books, corporate seals, financial statements, financial
records (including the general ledger) and such other
corporate books and records as may reasonably be requested by
the Buyer and its counsel.
(iii) Copy of the Articles of Incorporation of the Company
certified as of a recent date by the Secretary of State of
Colorado and a copy of the by-laws of the Company certified on
the Closing Date by the secretary or an assistant secretary of
the Company;
(iv) Certificate of good standing of the Company issued as of
a recent date by the Secretary of State of Colorado;
(v) Incumbency certificates, duly executed and dated the
Closing Date, with respect to the officers of the Company
executing this Agreement;
(vi) Copies of the resolutions of the Board of Directors of
the Company authorizing the execution, delivery and
performance of this Agreement and the transactions
contemplated hereby, certified by the secretary or an
assistant secretary of the Company as of the Closing Date;
(vii) Executed Resignations of the officers and directors of
the Company as of the Closing Date;
(viii) Such other assignments and other instruments of
transfer or conveyance as the Buyer may reasonably request
or as may be otherwise necessary to evidence and effect the
sale, assignment, transfer, conveyance and delivery of the
Shares to the Buyer; and
(ix) a Certficate signed by the Sellers as described by
Section 7.2(e) of this Agreement.
In addition to the above deliveries, the Company and the Sellers shall
take all steps and actions as the Buyer may reasonably request or as
may otherwise be necessary to put the Buyer in actual possession or
control of the Shares.
(2) At the Closing, the Buyer shall deliver to the
Company and/or the Sellers:
(a) A bank or cashier's check for the amount of Seventy
Two Thousand Dollars ($72,000.00);
(b) Copies of the Articles of Incorporation of the Buyer
or its assignee;
<PAGE>
(c) Certificates of good standing of the Buyer issued as
of a recent date by the Secretary of State of the
State of Florida, if applicable;
(d) Incumbency certificates, duly executed and dated the
Closing Date, with respect to the officers of the
Buyer executing this Agreement, if applicable;
(e) Copies of the resolutions of Boards of Directors of
the Buyer authorizing the execution, delivery and
performance of this Agreement and the transactions
contemplated hereby, certified by the secretary or an
assistant secretary of the Buyer, as of the Closing
Date, if applicable; and
(f) The certificate contemplated in Section 7.3(c), duly
executed by the duly authorized officers of the
Buyer.
ii. Conditions Precedent to the Obligations of the Buyer.
The obligations of the Buyer to consummate the
transactions contemplated by this Agreement are
subject to the satisfaction at or prior to the
Closing of the following conditions, unless waived by
the Buyer:
(1) Representations and Warranties True. The
representations and warranties of the Company and the
Sellers contained in this Agreement and in any
certificate or other document delivered pursuant to
this Agreement shall be true and correct in all
material respects (except for representations and
warranties which are by their terms qualified by
materiality, which shall be true and correct in all
respects) as of the Closing Date with the same force
and effect as though made on and as of such date.
(2) Covenants Performed. All of the terms,
covenants and conditions of this Agreement to be
performed or complied with by the Company or the
Sellers on or prior to the Closing Date shall have
been duly performed or complied with in all respects.
(3) No Material Adverse Change. There shall not
have occurred any event or condition of any character
which has adversely affected or may adversely affect
in any material respect the Buyer's ability to
operate the business of the Company as such business
is currently being operated, and no event or
condition shall have occurred which has adversely
affected or may adversely affect in any material
respect the Purchased Assets or the condition
financial or otherwise) of the Company or the
Company's assets, liabilities, earnings, book value,
business, Operations or prospects.
(4) Consents. The Sellers and the Company shall
have obtained all authorizations consents and
approvals of Persons reasonably necessary or
desirable to consummate the transactions contemplated
by this Agreement, each of which shall have been
obtained without the imposition of any adverse terms
or condition.
<PAGE>
(5) Company's and Sellers's Certificate. The
Company and the Sellers shall have delivered to the
Buyer a certificate executed by the President of the
Company and the Sellers, dated the Closing Date,
certifying in such detail as the Buyer may reasonably
request, that the conditions specified in Sections
7.2(a), (b) and (c) above have been fulfilled and as
to such other matters as the Buyer may reasonably
request.
(f) Listing on OTC Bulletin Board. The Company's
common stock shall have been approved for listing on
the OTC Bulletin Board. In connection with obtaining
a listing on the OTC Bulletin Board, the Company
intends to sell approximately 1 to 2 million shares
of its common stock in a private offering. If the
NASD notifies the Buyer and the Sellers that the
Company's common stock will not be listed on the OTC
Bulletin Board, the Buyer shall have thirty (30) days
to decide if it wishes to waive this condition
precedent to Closing and shall inform the Buyer of
its decision within said time period.
(g) Governmental Consents. All consents and
approvals required by governmental authorities for
the consummation of the transactions contemplated by
this Agreement shall have been obtained or shall be
in the process of being obtained. To the best of the
Sellers and the Company's knowledge, all of such
consents and approvals shall have been obtained or
will be obtained without the imposition of any
conditions which would adversely affect the Buyer or
the Company.
(h) No Litigation. No litigation, arbitration or
other proceeding shall be pending or, to the
knowledge of the parties, threatened by or before any
court, arbitration panel or governmental authority;
no law or regulation shall have been enacted after
the date of this Agreement; and no judicial or
administrative decision shall have been rendered; in
each case, which enjoins, prohibits or materially
restricts, or seeks to enjoin, prohibit or materially
restrict, the consummation of the transactions
contemplated by this Agreement.
(i) Company's Financial Condition. The
Company shall have cash balances equal to am amount
greater than $500 and less than $700 and total
liabilities shall not exceed $0 on the Closing Date.
(j) Deliveries. Each of the items specified
in Section 7.l(a) shall have been executed and/or
delivered, as applicable, to the Buyer.
iii. Conditions Precedent to the Obligations
of the Sellers. The obligations of the Sellers to
consummate the transactions contemplated by this
Agreement are subject to the satisfaction at or prior
to the Closing of the following conditions.
(1) Representations and Warranties True. The
representations and warranties of the Buyer contained
in this Agreement or in any certificate or other
<PAGE>
document delivered pursuant to this Agreement shall
be true and correct in all material respects (except
for representations and warranties which are by their
terms qualified by materiality, which shall be true
and correct in all respects) as of the Closing Date
with the same force and effect as though made on and
as of such date.
(2) Covenants Performed. The terms,
covenants and conditions of this Agreement to be
performed or complied with by the Buyer on or prior
to the Closing Date shall have been duly performed or
complied with in all respects.
(3) The Buyer's Certificate. The Buyer shall
have delivered to the Sellers a certificate executed
by its President, dated the Closing Date, certifying
in such detail as the Company may reasonably request,
that the conditions specified in Sections 7.3(a) and
(b) above have been fulfilled.
(4) No Litigation. No litigation,
arbitration or other proceeding shall be pending or,
to the knowledge of parties, threatened by or before
any court, arbitration panel or governmental
authority; no law or regulation shall have been
enacted after the date of this Agreement; and no
judicial or administrative decision shall have been
rendered; in each case, which enjoins, prohibits or
materially restricts, or seeks to enjoin, prohibit or
materially restrict, the consummation of the
transactions contemplated by this Agreement.
(5) Deliveries. Each of the items specified
in Section 7.l(b) shall have been executed and/or
delivered, as applicable, to the Company and/or the
Sellers.
iv. Termination. Anything contained in this Agreement
to the contrary notwithstanding, this Agreement may
be terminated at any time prior to the Closing Date:
(1) by the mutual consent of the Sellers and
the Buyer;
(2) by the Buyer if it is not satisfied with
investigation of the Company's business and financial
condition;
(3) by the Buyer in the event of any
material breach by the Sellers of any of their
respective agreements, representations or warranties
contained herein and the failure of the Sellers to
cure such breach within 14 days after receipt of
notice from the Buyer requesting such breach to be
cured; or
(4) by the Sellers in the event of any
material breach by the Buyer of any of the Buyer's
agreements, representations or warranties contained
herein and the failure of the Buyer to cure such
breach within 14 days after receipt of notice from
the Company requesting such breach to be cured.
<PAGE>
v. Notice of Termination. Any party desiring to terminate this
Agreement pursuant to Section 7.4 shall give notice of such termination to
the other parties to this Agreement.
vi. Effect of Termination. In the event that this Agreement shall be
terminated pursuant to Section 7.4, all further obligations of the parties
under this Agreement shall be terminated without further liability of any
party to the other, provided that nothing herein shall relieve any party
from liability for its breach or violation of this Agreement. Without
limiting the generality of any other provision herein, the terms of
Sections 8.10 through 8.12 and 8.16 hereof shall survive any such
termination.
ARTICLE h.
Miscellaneous
-------------
i. Notices. Any notice, request, demand or other communication required or
permitted under this Agreement shall be in writing and shall be delivered
personally or sent by prepaid overnight courier for next business day
delivery to the parties at the addresses set forth below their names below
(or at such other addresses as shall be specified by the parties by like
notice).
If to the Buyer:
----------------
HBOA.COM, INC.
5200 NW 33rd Ave. Suite 215
Ft. Lauderdale, FL 33309
With a copy to:
---------------
English, McCaughan & O'Bryan, P.A.
Attn: Laura M. Holm, Esq.
100 N. E. Third Avenue, Suite 1100
Fort Lauderdale, FL 33301
Telephone: (954) 462-3300
<PAGE>
If to the Sellers:
- ------------------
Philip J. Davis
John C. Lee
c/o Mizer Energy Company
Such notices, demands, claims and other communications shall be deemed
given when actually received or in the case of delivery by overnight
service with guaranteed next business day delivery, the next business
day or the day designated for delivery.
ii. Entire Agreement. This Agreement nd the exhibits and schedules to
this Agreement contain every obligation and understanding among the
parties relating to the subject matter hereof and merge all prior
discussions, negotiations and agreements, if any, among them, and none
of the parties shall be bound by any representations, warranties,
covenants, or other understandings, other than as expressly provided
or referred to herein.
iii. Assignment. This Buyer may assign this Agreement to another
business entity and it is contemplated that the Buyer will assign this
Agreement. The Sellers agree that any assignee of the Buyer shall have
all rights, obligations and duties of the Buyer under this Agreement.
However, this Agreement may not be assigned by Sellers, without the
written consent of each Buyer. Subject to the preceding sentence, this
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, heirs, personal
representatives, legal representatives, and permitted assigns.
iv. Waiver and Amendment. Any representation, warranty, covenant, term
or condition of this Agreement which may legally be waived, may be
waived, or the time of performance thereof extended, at any time by
the party hereto entitled to the benefit thereof, and any term,
condition or covenant hereof may be amended by the parties hereto at
any time. Any such waiver, extension or amendment shall be evidenced
by an instrument in writing executed on behalf of the appropriate
party by a person who has been authorized by such party to execute
waivers, extensions or amendments on its behalf. No waiver by any
party hereto, whether express or implied, of its rights under any
provision of this Agreement shall constitute a waiver of such party's
rights under such Provisions at any other time or a waiver of such
party's rights under any other provision of this Agreement. No failure
by any party hereto to take any action against any breach of this
Agreement or default by another party shall constitute a waiver of the
former party's right to enforce any provision of this Agreement or to
take action against such breach or default or any subsequent breach or
default by such other party.
v. No Third Party Beneficiary. Except with respect to the officers,
directors, employees and agents expressly referenced in Section 6.5
and the Buyer's assignee described in Section 8.3 hereof, nothing
expressed or implied in this Agreement is intended, or shall be
construed, to confer upon or give any Person other than the
<PAGE>
parties hereto and their respective heirs, personal representatives,
legal representatives, successors and permitted assigns, any rights or
remedies under or by reason of this Agreement.
vi. Severability. In the event that any one or more of the provisions
contained in this Agreement shall be declared invalid, void or
unenforceable, the remainder of the provisions of this Agreement shall
remain in full force and effect, and such invalid, void or
unenforceable provision shall be interpreted as closely as possible to
the manner in which it was written.
vii. Expenses. Each party agrees to pay, without right of
reimbursement from any other party, the costs incurred by it incident
to the performance of its obligations under this Agreement and the
consummation of the transactions contemplated hereby, including,
without limitation, costs incident to the preparation of this
Agreement, and the fees and disbursements of counsel, accountants and
consultants employed by such party in connection herewith.
viii. Headings. Article titles and headings to sections herein are
inserted for convenience of reference only and are not intended to be
a part of or to affect the meaning or interpretation of this
Agreement. The schedules and exhibits referred to herein shall be
construed with and as an integral part of this Agreement to the same
extent as if they were set forth verbatim herein. The specification of
any dollar amount in the representations or warranties contained in
this Agreement or the inclusion of any specific item in any schedule
hereto is not intended to imply that such amounts, or higher or lower
amounts, or the items so included or other items, are or are not
material, and neither party shall use the fact of the setting of such
amounts or the inclusion of any such item in any dispute or
controversy between the parties as to whether any obligation, item or
matter not described herein or included in a Schedule is or is not
material for purposes of this Agreement.
ix. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. Any
facsimile copy of a manually executed original shall be deemed a
manually executed original.
x. Litigation; Prevailing Party. In the event of any litigation with
regard to this Agreement, the prevailing party shall be entitled to
receive from the non-prevailing party and the non-prevailing party
shall pay upon demand all reasonable attorneys fees and legal expenses
for the prevailing party.
xi. Injunctive Relief. It is possible that remedies at law may be
inadequate and, therefore, the parties hereto shall be entitled to
equitable relief including, without limitation, injunctive relief,
specific performance or other equitable remedies in addition to all
other remedies provided hereunder or available to the parties hereto
at law or in equity.
<PAGE>
xii. Governing Law and Venue. This Agreement has been entered into and
shall be construed and enforced in accordance with the laws of the
State of Florida without reference to the choice of law principles
thereof. This Agreement shall be subject to the exclusive jurisdiction
of the courts of the State of Florida located in Broward County,
Florida or the United States District Court for the Southern District
of Florida. The parties to this Agreement agree that any breach of any
term or condition of this Agreement shall be deemed to be a breach
occurring in the State of Florida by virtue of a failure to perform an
act required to be performed in the State of Florida and irrevocably
and expressly agree to submit to the jurisdiction of the courts of the
State of Florida for the purpose of resolving any disputes among the
parties relating to this Agreement or the transactions contemplated
hereby. The parties irrevocably waive, to the fullest extent permitted
by law, any objection which they may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement, or any judgment entered by any court in
respect hereof brought in Broward County, Florida, and further
irrevocably waive any claim that any suit, action or proceeding
brought in Broward County, Florida, has been brought in an
inconvenient forum.
xiii. Risk of Loss. Prior to the Closing, the risk of loss or damage
to, or destruction of any or all of the Company's property and assets,
including, without limitation, the Purchased Assets, shall remain with
the Company.
xiv. Further Assurances. On the Closing Date, the company shall (i)
deliver to the Sellers such other bills of sale, deeds, endorsements,
assignments and other good and sufficient instruments of conveyance
and transfer, in form reasonably satisfactory to the Buyer and its
counsel, and the Buyer may reasonably request or as may be otherwise
reasonably necessary to vest in the Buyer all the right, title and
interest of the Company in, to or under any or all of the Assets, and
(ii) take all steps as may be reasonably necessary to put the Buyer in
actual possession and control of all the Assets. From time to time
following the Closing, the Company and the Sellers shall execute and
deliver, or cause to be executed and delivered, to the Buyer such
other instruments of conveyance and transfer as the Buyer may
reasonably request or as may be otherwise necessary to more
effectively convey and transfer to, and vest in, the Buyer and to put
the Buyer in possession of, any part of the Assets, and, in the case
of licenses, certificates, approvals, authorizations, agreements,
contracts, leases, easements and other commitments included in the
Assets which cannot be transferred or assigned effectively without the
consent of third parties which consent has not been obtained prior to
the Closing, to cooperate with the Buyer at its request in endeavoring
to obtain such consent promptly.
xv. Remedies Cumulative. No remedy made available by any of the
provisions of this Agreement is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter
existing at law or in equity.
<PAGE>
xvi. Participation of Parties; Construction. The parties hereto
acknowledge that this Agreement and all matters contemplated herein,
have been negotiated among all parties hereto and their respective
legal counsel and that all such parties have participated in the
drafting and preparation of this Agreement from the commencement of
negotiations at all times through the execution hereof. This Agreement
shall be construed and interpreted without regard to any presumption
or other rule or interpretation against the party who may have had
primary responsibility for drafting this Agreement.
IN WITNESS WHEREOF, the parties hereto have each executed and
delivered this Agreement as of the day and year first above written.
BUYER:
HBOA.COM, INC.
By: /s/ Gerald Hatfield
-------------------
Gerald Hatfield, President
Sellers:
/s/ Philip J. Davis
---------------------------------
PHILIP J. DAVIS
/s/ John C. Lee
---------------------------------
JOHN C. LEE
EXHIBIT 10.2
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 to the Stock Purchase Agreement (this Amendment")
is made and entered into as of this 28TH day of December 1999, by and
among HBOA.COM, Inc., a District of Columbia corporation ("HBOA" and
the "Buyer") and Philip J. Davis and John C. Lee (individually, a
"Seller" and collectively, the "Sellers").
Preliminary Statements
----------------------
WHEREAS, the Amendment amends that certain stock purchase agreement
("Stock Purchase Agreement") dated November 17, 1999 by and among
HBOA.com, Inc., a Florida corporation ("HBOA-Florida") and the Sellers
(the "Stock Purchase Agreement") relating to the purchase of shares of
common stock of Mizar Energy Company, a Colorado corporation (the
"Company") (hereinafter, the "Stock Purchase Agreement" shall refer to
the Stock Purchase Agreement, this Amendment and any and all other
amendments to the Stock Purchase Agreement);
WHEREAS, the parties wish to (1) have HBOA, the District of Columbia
corporation be added as a direct party to the Stock Purchase Agreement
and remove HBOA-Florida as a party from the Stock Purchase Agreement,
(2) have HBOA purchase 850,000 shares of the Company's common stock
from the Sellers (not 1,000,000 shares as provided in the Stock
Purchase Agreement dated November 17, 1999) and (3) change the
consideration for the purchase of the 850,000 shares of the Company's
common stock as described in Section 4 hereof;
NOW THEREFORE, in consideration of the foregoing, the agreements and
covenants set forth herein, other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Definitions
-----------
All terms not defined herein shall have the same meaning as the defined
terms in the Stock Purchase Agreement.
2. New Party to the Stock Purchase Agreement.
------------------------------------------
2.1 The Sellers agree that HBOA.com, Inc., a District of Columbia
party, shall be added as a party to the Stock Purchase Agreement and
shall take the place of HBOA- Florida.
<PAGE>
2.2 The Sellers expressly agree that HBOA.com, Inc., a District of
Columbia corporation shall be substituted in full place of HBOA-
Florida and shall have all rights and obligations of HBOA-Florida under
the Stock Purchase Agreement. The Sellers expressly agree that
HBOA-Florida shall be released from any and all obligations under the
Stock Purchase Agreement.
2.3 All references to the "Buyer" in the Stock Purchase Agreement shall
be deemed to refer to HBOA.com. Inc., a District of Columbia
corporation.
3. Number of Shares
----------------
3.1 The Buyer desires to purchase 850,000 shares of its common stock
from the Sellers and the Sellers desire to sell the Buyer 850,000
shares of its common stock.
3.2 The Sellers and the Buyer agree that all references to the
1,000,000 Shares of the Company's common stock shall be changed to
refer to 850,000 shares of the Company's common stock The references
include the references in the Preliminary Statements that (i) the
Sellers wish to sell 1,000,000 shares of the Company's common stock to
the Buyer and (ii) the "Shares" shall refer to 1,000,000 shares of the
Company's common stock.
3.3 All references to "Shares" in the Stock Purchase Agreement shall be
deemed to refer to 850,000 shares of the Company's common stock.
4. Consideration.
--------------
4.1 The Buyer's consideration for acquiring the Shares is Ten Dollars
($10.00) and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged and agreed to by the
Sellers. The Buyer also agrees that it will effect a business
combination or merger of itself with and into the Company.
4.2 Section 2.2 of the Stock Purchase Agreement is hereby deleted
in its entirety and the following section is hereby inserted:
"2.2 Consideration. The Sellers agree that the Buyer's
consideration for the purchase of the Shares is Sixty Three
Thousand Seven Hundred Fifty Dollars ($60,750).
4.3 Clause 7.1(b)(i) of the Stock Purchase Agreement which refers to
the delivery of a bank or cashier's check for the amount of Seventy Two
Thousand Dollars ($72,000) is hereby deleted in its entirety and
amended to read the delivery of cash or a bank check in the amount of
Sixty Three Thousand Seven Hundred Fifty Dollars ($63,750).
<PAGE>
5. Full Force and Effect.
----------------------
Except as specifically amended hereby, the provisions of the Agreement
shall remain in full force and effect.
6. Preamble; Preliminary Recitals. The Preliminary Recitals set forth
in the Preamble are hereby incorporated and made part of this
Amendment.
7. Entire Agreement and Amendment.
-------------------------------
The Amendment, together with the Agreement, as modified hereby,
constitutes the entire agreement between the parties. This Amendment
may not be amended, supplemented or modified in whole or in part except
by an instrument in writing signed by the party or parties against whom
enforcement of any such amendment, supplement or modification is
sought.
8. Governing Law and Counterparts.
-------------------------------
The Amendment shall be governed in all respects by and construed in
accordance with Florida law. This Amendment may be executed in one or
more counterparts, each of which will be deemed an original and all of
which together will constitute one and the same instrument. Any
facsimile copy of a manually executed original Amendment shall be
deemed a manually executed original Amendment and shall have the same
force and effect as a manually executed original Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment on the
date first above written.
BUYER:
HBOA.COM, INC., a District of Columbia
corporation
/s/ Gary D. Verider
-------------------
Gary D. Verdier, President
<PAGE>
Sellers:
/s/ Philip J. Davis
-------------------
PHILIP J. DAVIS
/s/ John C. Lee
---------------
JOHN C. LEE
