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Exhibit 2.7
Agreement for Purchase and Sale of Assets
Between Janex and Futech
AGREEMENT
FOR
PURCHASE AND SALE
OF
ASSETS
THIS AGREEMENT is made as of the 23 day of October 2000, by and between
Futech Interactive Products, Inc., an Arizona corporation ("SELLER"), and Janex
International, Inc., a Colorado corporation ("BUYER").
R E C I T A L S:
A. Seller owns and operates a business (the "BUSINESS") which, among
other things, owns and licenses to third parties certain intellectual property
rights and manufactures, markets, distributes and sells toys, games, books,
stationery and other products under the trade name "Futech Interactive
Products."
B. Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, the Business and the assets of the Business, free and clear of
debts other than as called for below, all in accordance with the terms and
conditions set forth below (the "TRANSACTION").
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
T E R M S:
1. PURCHASE AND SALE. Seller hereby agrees to sell to Buyer, and
Buyer agrees to purchase from Seller, free and clear of debts other than as
called for below, the following (collectively the "ASSETS") (the assets
identified on EXHIBIT 1 attached hereto (the "EXCLUDED ASSETS") are not
included in the assets sold pursuant to this Agreement).
1.1 All furniture, fixtures, vehicles, machinery and equipment
used in connection with the operation of the Business (other than that
leased under the Equipment Leases (defined below)), including but not
limited to the assets identified on EXHIBIT 1.1 attached hereto (all of
the foregoing are collectively referred to below as the "FIXED
ASSETS").
1.2 All notes receivable, accounts receivable, prepaid items,
supplies and all other property currently used by Seller in connection
with the operation of the Business.
1.3 All finished and unfinished goods, work-in-process,
inventories, and materials of Seller.
1.4 All of Seller's interest in the leases identified on
EXHIBIT 1.4 attached hereto (the "EQUIPMENT LEASES.")
1.5 All rights to the trade names "Futech Interactive
Products" and any and all other trade names used by Seller in
connection with the Business, along with any and all trademarks,
service marks, logos and designs relating hereto, including all
internet domain names used in the Business. As soon as practicable
after the Closing, Seller will change its corporate name to eliminate
the use of any of the names transferred to Buyer.
1.6 Any and all deposits associated with the operation of the
Business, including but not limited to all deposits on leases,
insurance contracts transferred to Buyer, utility deposits and license
deposits.
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1.7 All of Seller's books and records (or copies thereof),
computer programs, software, drawings, financial and tax information
(or copies thereof), and all customer and vendor files.
1.8 The contracts and other accounts which remain unperformed
as of the Closing, and which are listed on EXHIBIT 1.8 attached hereto.
1.9 The other contracts, licenses, accounts and other general
intangibles currently held by Seller, and which are listed on EXHIBIT
1.9 attached hereto.
1.10 All patents, copyrights, trade secrets, customer and
supplier lists, promotional materials, and other intangible rights
used in connection with the operation of the Business, including but
not limited to those described on EXHIBIT 1.10 attached hereto.
1.11 The phone numbers and all phone and other advertising
associated with the Business.
1.12 All warranties and all warranty claims of Seller.
1.13 The oKID.com website (the "WEBSITE"), all software rights
relating thereto, all graphics rights and artwork rights relating
thereto, including all original artwork and all copies thereof, all
rights to the animated characters appearing on the Website, and all
licenses and other agreements with third parties relating to the
Website
1.14 All rights to the trade name "oKID" and all names used
for animated characters appearing on the Website, along with any and
all trademarks, service marks, logos and designs relating hereto,
including all internet domain names used in connection with the
Website.
1.15 All of Seller's internet addresses used by the Website.
1.16 All other assets of the Business, including but not
limited to those identified on EXHIBIT 1.16 attached hereto.
2. PURCHASE PRICE AND MANNER OF PAYMENT.
2.1 The purchase price for the Assets shall, subject to
adjustments as described below, and be payable as follows:
2.1.1 Sixty Thousand Eight Hundred Twenty Three
Dollars ($60,823.00), which amount has already been paid by
Buyer (Seller acknowledges receipt of said funds).
2.1.2 An amount up to Eighty Nine Thousand One
Hundred Seventy Seven Dollars ($89,177.00), as necessary for
Seller to pay Seller's legal fees for Seller's bankruptcy
proceedings, payable as required by Seller's bankruptcy
counsel. Said amount, and the amount described in Section
2.1.1 above, are fully refundable until approval of the
Transaction by the bankruptcy court. Upon such approval, said
amounts shall automatically become non-refundable except in
the event of Seller's default under this Agreement.
2.1.3 Three Million Four Hundred Thousand (3,400,000)
shares of Buyer's common stock. Buyer will use Buyer's best
efforts to register said shares under the Securities Act
within 150 days after the Closing.
Seller agrees, and will confirm said agreement by
executing one or more documents so confirming, in form and with content
acceptable to Buyer, that: (A) the stock to be issued under this
Agreement will be a restricted security, issued pursuant to one or more
exemptions to the registration requirements of the Securities Act; (B)
Buyer's obligation to issue the stock is subject to Buyer determining
to Buyers' satisfaction that these transactions are in compliance with
the Securities Act and all other applicable federal and state laws;
and (C) Seller
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will execute such documents as are necessary and/or appropriate to
insure compliance with applicable federal and state laws. Buyer
obtaining documentation as to the foregoing shall be a condition to
the obligation of Buyer to close the Transaction, or to issue the
stock.
2.2 The purchase price shall be allocated in accordance with
EXHIBIT 2.2 attached hereto.
2.3 The purchase price includes assumption of liabilities as
set out in Section 3 below.
3. LIABILITIES.
3.1 Buyer at the Closing will assume only the following of
Seller's obligations (the assumed obligations being referred to in this
Agreement as the "ASSUMED LIABILITIES"):
3.1.1 Seller's obligations to U.S. Bank after
liquidation of existing inventory and receivables, not to
exceed in the aggregate sum of $8,000,000.00. As part of the
consideration for this transaction and for Buyer assuming
the U. S. Bank debt, the open account debt owing by Buyer to
Seller as of the Closing (in the approximate amount of
$1,645,000.00) will as of the Closing, without additional
documentation or consideration being required, be and be
deemed for all purposes to be fully paid and forever
discharged.
3.1.2 Seller's obligation to Golden Books Family
Entertainment, not to exceed in aggregate however the sum of
$1,000,000 to be paid over three years in three annual
payments of $333,333.34 beginning December 31, 2001.
3.1.3 Seller's obligation to Bank of America, not to
exceed in aggregate however the sum of $180,000 to be paid
over one year in four quarterly payments of $45,000
beginning March 31, 2001.
3.1.4 Seller's obligation to four Futech employees
namely Vincent W. Goett, Connie Lambros, Daniel Lesnick and
Joseph Petter, as salary compensation due for working
through the entire Futech reorganization period to date, not
to exceed in aggregate however the sum of $400,000. The
total $400,000 will be apportioned according to each
employees specified annual compensation package and will be
paid no later than December 1, 2000.
3.2 All liabilities of Seller other than those identified in
Section 3.1 above shall be and remain the obligations of Seller, and
Seller shall indemnify, defend and hold Buyer harmless from and against
any and all such liabilities. Without limiting the generality of the
foregoing, it is expressly understood and agreed that Buyer is not
assuming any tort liability, any environmental liability, any
contractual liability for contracts not disclosed to and agreed upon by
Buyer, or any liability to or for employees or employee benefits. The
indemnities set forth in this Section shall survive the Closing.
3.3 Buyer may offset against the purchase price any and all
liabilities associated with the Business which are not expressly
assumed by Buyer but which Buyer pays. The parties understand and agree
that Buyer has no obligation to pay any debt of Seller, other than as
expressly called for in Sections 3.1.1 of this Agreement.
3.4 Seller will, to the extent requested by Buyer, deliver to
Buyer prior to the Closing, estoppel letters or certificates, in form
acceptable to Buyer, from the lessors under the Equipment Leases.
3.5 Seller hereby agrees to indemnify, defend and hold Buyer
harmless from and against any and all liabilities, claims, expenses and
other costs arising from Seller's operations of the Business prior to
the Closing, except as expressly assumed by Buyer pursuant to this
Section 3. Buyer hereby agrees to indemnify, defend and hold harmless
Seller from and against any and all liabilities, claims,
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expenses or other costs arising from Buyer's operations of the
Business from and after the Closing. The indemnities set forth in this
Section shall survive the Closing.
4. INTERIM EVENTS. Seller agrees that Seller will take no action prior
to the Closing, other than in the ordinary course of Business, which would or
might have a material adverse effect upon the financial condition of Seller, and
no benefits will be paid or incurred to shareholders, officers, or directors of
Seller between the date hereof and the Closing, other than as is consistent with
past activities and practices. Seller will use Seller's best efforts to preserve
for Buyer the present relationships of Seller with Seller's employees, customers
and others having business relations with Seller.
5. CONDITIONS TO CLOSING. Buyer's obligation to close the Transaction
shall be conditioned upon (each of the conditions may be waived by Buyer in
writing only):
5.1 Buyer obtaining from the lessors of the Equipment Leases
their consents to the transfer of those leases to Buyer on terms
acceptable to Buyer;
5.2 Buyer having obtained, or having obtained the appropriate
consents or approvals to the assignment of, all permits, licenses and
contracts necessary to continue the operations of the Business;
5.3 Seller having maintained the Assets in the same condition
as of the date of this Agreement (subject to ordinary wear and tear
only);
5.4 Seller having conducted the Business diligently and
substantially in the same manner as prior to the execution of this
Agreement and not having entered into any contract, commitment or
transaction not in the usual and ordinary course of business;
5.5 Approval of the transaction by the Seller's secured
creditors;
5.6 The operations of the Business not having changed in a
material and adverse manner between the date of this Agreement and the
date of Closing;
5.7 There being no governmental investigations or suits
pending or threatened with respect to the operations of the Business,
except as may otherwise be agreed to in writing by Buyer;
5.8 Approval for the Transaction by the Board of Directors and
the shareholders of Buyer;
5.9 Buyer's approval of an appraisal of Seller's intellectual
property rights, with Seller to obtain and pay the costs of that
appraisal;
5.10 Buyer's approval of Seller's most recent Financial
Statements prior to the Closing;
5.11 Buyer obtaining for use by Buyer, based solely upon the
strength of the assets of the Business, revolving credit lines and
other debt instruments satisfactory to Buyer;
5.12 Buyer obtaining from the lenders under the debts to be
assumed by Buyer under this Agreement their consents to the transfer of
those debts to Buyer on terms acceptable to Buyer;
5.13 Approval of the Transaction by the Bankruptcy Court for
Seller's bankruptcy; and
5.14 Approval by the shareholders of Buyer of an amendment to
Buyer's governing documents authorizing an increase in the authorized
number of shares of stock of Buyer to 125,000,000.
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6. CLOSING. The closing of the Transaction (the "Closing") shall
occur within eleven (11) days after approval of the Transaction by the
bankruptcy court, but in any event by _________, 2000 at 10:00 a.m. M.S.T. at
the Business. The Transaction shall be consummated without the use of an
independent escrow company.
7. RESTRICTIVE COVENANTS.
(a) Seller agree not to, without the prior written consent of
Buyer, which consent may be withheld for any or no reason, for a period
of 3 years following the Closing, directly or indirectly, own, manage,
operate, control, be employed by, participate in, render services to,
make loans to, or be connected in any manner with the ownership,
management, operation, or control of any business located within the
United States of America, in any business competitive with the Business
(which shall be deemed to include all business operations, publishing,
manufacturing, and/or distributing books, toys or games, or electronic
or other parts or components thereof).
In the event of any actual or threatened breach of
the provisions of this Section, Buyer shall be entitled to an
injunction restraining the actual or threatened breach. The parties
further agree that should there be a violation of the provisions of
this Section, the violating party shall be liable to Buyer for, in
addition to amounts pursuant to other remedies available against that
party, two (2) times the greater of the amount of profit earned by the
violating party as a result of the violation and the amount of profit
which would have been earned by Buyer from the activities causing the
violation had Buyer conducted said activities, plus interest on said
greater amount calculated at eighteen percent (18%) per annum from the
date of the violating activities until paid, as liquidated damages for
only Buyer's loss of potential profits. Nothing in this paragraph shall
be construed as prohibiting Buyer from pursuing any other available
remedies for such breach or threatened breach, including pursuing a
recovery for damages.
(b) Seller shall not at any time, without the prior written
consent of Buyer, which consent may be withheld for any or no reason,
disclose, in any fashion other than as required in the day to day
affairs of Buyer, to any person or entity: (i) the names of customers
of Buyer or the Business, or the names of other persons or entities
having business dealings with Buyer or the Business, or (ii) any of the
business methods or confidential information of Buyer or the Business,
including but not limited to its customer lists, prospective customers,
customers purchasing habits, customer contact personnel, marketing and
servicing techniques, financial matters, sales and marketing systems
and methods, marketing development and business expansion plans and
projections, personnel training and development programs, customer and
supplier relationships, and trade secrets.
(c) Seller shall not, at any time within two (2) years after
the Closing, without the prior written consent of Buyer, which consent
may be withheld for any reason or no reason, directly or indirectly
induce, encourage or solicit or assist any person who was or is
employed (whether as an employee or as an independent contractor) by
the Business during the two years preceding the Closing, to leave the
employ of the Business.
(d) The parties acknowledge and agree that the restrictions
contained herein, including but not limited to the time period and
geographical area restrictions, are fair and reasonable and necessary
for the successful operation of the Business, that violation of any of
them would cause irreparable injury, and that the restrictions
contained herein are not unreasonably restrictive of any party's
ability to earn a living. If the scope of any restriction in this
Section is too broad to permit enforcement of such restriction to its
fullest extent, then such restriction shall be enforced to the maximum
extent permitted by law, and all parties hereto consent and agree that
such scope shall be modified judicially or by arbitration in any
proceeding brought to enforce such restriction. The parties hereto
acknowledge and agree that remedies at law for any breach or violation
of the provisions of this Section would alone be inadequate, and agree
and consent that temporary and permanent injunctive relief may be
granted in connection with such violations, without the necessity of
proof of actual damage, and such remedies shall be in addition to other
remedies and rights the parties may have at law or in
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equity. The parties agree that no party shall be required to give
notice or post any bond in connection with applying for or obtaining
any such injunctive relief.
(e) The parties acknowledge and agree that the covenants in
this Section shall be construed as an agreement independent of any
other provision of this Agreement, so that the existence of any claim
or cause of action by Seller against Buyer, whether predicated on this
Section or otherwise, shall not constitute a defense to the enforcement
of this Section.
8. DUE DILIGENCE INVESTIGATION. Buyer shall have until the Closing (the
"Due Diligence Period") in which to conduct any due diligence investigations,
including UCC-1 searches, which Buyer may deem necessary or appropriate to
ascertain the financial viability and value of the Business. Throughout the Due
Diligence Period, Buyer (and its agents) shall have the right to inspect: (i)
all books, records and computer systems maintained by Seller, in order to
authenticate and audit all financial information provided to Buyer, (ii) all
equipment and machinery used in the Business to verify that it is in an
acceptable state of repair, (iii) all agreements to which Seller is a party, and
(iv) all facilities and physical operations of Seller, including facilities
warehousing inventory. Seller shall provide access to Seller's federal and state
income tax returns, sales tax returns, financial statements (internal and those
issued to third parties), personal property tax returns, and all other
governmental filings, for the three previous years, for the purpose of
conducting due diligence investigations. Buyer may, in Buyer's sole discretion,
terminate this Agreement at any time prior to the Closing for any reason deemed
appropriate by Buyer (but this provision does not effect the non-refundable
character of the amounts described in Sections 2.1.1 and 2.1.2 above, as called
for in Section 2.1.2 above).
Buyer and its representatives will further have the authority to
communicate with Seller's creditors, debtors, suppliers, agents and employees.
Seller agrees to aid Buyer and its representatives in Buyer's investigations and
evaluations of the Business and the Assets, and to provide whatever information
and documents Buyer reasonably deems necessary or appropriate to the making of
an informed decision regarding the Transaction.
9. ACCESS TO CUSTOMER FILES AND OTHER RECORDS. For a period of three
(3) years following the Closing, where there is a legitimate purpose not
injurious to Buyer, or if there is an audit by any taxing authority, other
governmental inquiry, or litigation or prospective litigation, to which Seller
is or may become a party, then Seller shall be granted access, at reasonable
times and after reasonable notice, to all customer files and other records
transferred to Buyer pursuant to this Agreement.
10. REPRESENTATIONS AND WARRANTIES. Seller hereby represents and
warrants as follows, as of the date hereof and as of the date of the Closing:
10.1 AUTHORITY. As of the date of execution of this Agreement,
and subject to approval of the bankruptcy court, Seller has the power
and authority to enter into and perform its obligations under this
Agreement, the Board of Directors of Seller has recommended and
resolved that the Transaction is to move forward subject to shareholder
approval, and the Board of Directors of Seller have authorized and
ratified the execution and delivery of this Agreement. As of the
Closing, all of the foregoing are true, and the Board of Directors of
Seller has approved of the documents herein required to consummate the
Transaction.
10.2 FINANCIAL INFORMATION. Seller has furnished Buyer with
true, correct and complete copies of Seller's financial statements and
other books and records relating to the operation of the Business,
which statements fairly present the financial condition of the Business
as of their respective dates.
10.3 TAXES. All federal and state income, excise, franchise,
payroll, property, sales, and other tax returns required to be filed by
or with respect to the Business (except returns not yet due) have been
filed, are complete and accurately reflect in all material respects all
matters therein required to be reflected, and all taxes shown on such
returns to be due, and any assessments received by Seller with respect
thereto, have been paid in full. Seller shall pay all such future taxes
relating to periods prior to the Closing, when and as the same shall
become due and payable. Seller shall provide Buyer with such
certificates and
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other evidence of payment of all taxes due in connection with the
Assets and the Business as Buyer shall request.
10.4 LIENS. All property to be transferred by Seller to Buyer
pursuant to this Agreement is, at the time of this Agreement, or will
be at the Closing, free and clear of any and all liens and
encumbrances, other than as called for in Section 3.1.1 above.
10.5 LICENSES. Seller has any and all licenses, permits, and
contracts necessary and/or appropriate to operate the Business in the
manner in which the Business is currently operated.
10.6 HAZARDOUS MATERIALS. The Business has not dealt in any
manner with any hazardous or toxic materials or waste.
10.7 COMPLETE DISCLOSURE. Seller has disclosed to Buyer all
facts and papers which would or might be important to Buyer in making
the decision to purchase the Business as called for in this Agreement.
10.8 JUDGMENTS AGAINST SELLER AND/OR BUSINESS. Neither Seller
nor the Business is under any governmental investigation, no such
investigation has been threatened, and there are no judgments against
Seller, the Business or the Assets.
10.9 COMPLETE SALE. The assets to be transferred under this
Agreement are all of the assets used by Seller in the operation of the
Business, other than the Excluded Assets.
10.10 ASSETS IN GOOD CONDITION. Each of the Assets which is a
tangible asset is and will be at the Closing in good working order and
condition.
10.11 DISCLOSURE MATERIALS. The financial condition of the
Business is at least as favorable as presented in the financial
information, including tax returns and financial statements, and books
and records provided by Seller to Buyer. Those materials and the other
materials disclosed to Buyer are true, complete and accurate in all
respects, and fairly represent the information they purport to provide.
All the information disclosed, as a whole, does not contain any
statement that, as of the date hereof, or as of the Closing, is false
or misleading, and does not omit to state any material fact (i)
necessary to make the statements made, in light of the circumstances
under which they were made, not false or misleading, or (ii) necessary
to provide Buyer with complete and accurate information as to the
assets and financial standing of the Business.
10.12 DEFAULTS. There are no defaults or events with which the
giving of notice or the passage of time would constitute defaults under
any document under which Seller is obligated, including but not limited
to the Equipment Leases.
10.13 VENDOR ACCOUNTS. Seller will use Seller's best efforts
to cause a transfer to Buyer of all of Seller's supplier and other
vendor accounts without adverse changes in the account terms.
10.14 OUTSTANDING LIABILITIES. Seller's liabilities are not
paid current. Payment of Seller's debt are subject to Seller's
bankruptcy filing.
10.15 INVENTORY. Seller's inventory is useable and in good
condition, with not more than 1% thereof being obsolete, and all of the
inventory is owned by Seller, none of it being held by Seller on
consignment.
10.16 LOSSES. There are no unrealized or anticipated losses on
any commitment or contract of Seller.
10.17 PATENTS. There is no litigation pending or threatened
with respect to the patents of Seller, there is no outstanding order,
judgment, decree or stipulation affecting the validity or
enforceability of said patents, there exits no outstanding notices of
infringement given by Seller regarding the patents, there are
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no pending interferences or other contested proceedings pending, or
that are in the process of being instituted, in the United States
Patent Office or in the courts, relating to said patents, and, to the
best knowledge of Seller, none of Seller's patents are being presently
infringed.
10.18 RECEIVABLES. All accounts receivable arose in the
regular course of business, and, to the best knowledge to Seller, are
collectable and subject to no defenses or counterclaims.
The representations and warranties in this Section shall survive the Closing of
the Transaction.
11. SELLER'S CORPORATE NAME. At the Closing, Seller will deliver to
Buyer appropriate executed originals of an Amendment to Seller's Articles of
Incorporation changing Seller's corporate name to a name which does not contain
the words "Futech Interactive Products" and is not a deceptively similar name.
Such executed documents shall be in the number and in such form as are
acceptable for filing with the Arizona Corporation Commission, and shall be
accompanied by Seller's check in the appropriate amount necessary for filing and
publishing said documents.
12. EXPENSES. Each party shall bear its own expenses in completing the
Transaction. "Expenses" shall mean any expense of any nature incurred in
connection with the Transaction, including without limitation attorneys' fees,
accounting fees, filing fees and other costs.
13. BROKERAGE COMMISSIONS. Seller shall be solely responsible for the
payment of any and all brokerage fees or commissions in connection with the
Transaction and shall indemnify and hold harmless Buyer from and against any
liabilities or claims incurred in connection with such fees or commissions.
14. GOVERNING LAW; JURISDICTION. The U.S. bankruptcy courts shall have
the sole and exclusive jurisdiction and venue in any case or controversy arising
under this Agreement or by reason of this Agreement.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns, but may not be assigned by Seller.
16. ENTIRE AGREEMENT; TERMINATION OF PRIOR AGREEMENTS. Except as
otherwise set forth herein, this Agreement constitutes the entire agreement
between the parties which respect to the subject matter hereof, and supersedes
all prior understandings, if any, with respect thereto. The parties acknowledge
and agree that certain documents existed prior to this Agreement relating to the
purchase by Buyer from Seller of certain assets, and the parties hereby agree
that all of said documents, including all amendments thereto, are hereby
terminated in their entirety.
17. FURTHER ASSURANCES. The parties agree to do such further acts and
things and to execute and deliver such additional agreements and instruments as
any party may reasonably require to consummate, evidence, or confirm any
agreement contained herein in the manner contemplated hereby.
18. MODIFICATION. Any modification or waiver of any term of this
Agreement, including a modification or waiver of this term, must be in writing
and signed by the parties to be bound by the modification or waiver.
19. SEVERABILITY. In the event any portion of this Agreement shall be
declared by any court of competent jurisdiction to be invalid, illegal, or
unenforceable, such portion shall be deemed severed from this Agreement, and the
remaining parts hereof shall remain in full force and effect as fully as though
such invalid, illegal or unenforceable portion had never been a part of this
Agreement.
20. COUNTERPARTS, FACSIMILE SIGNATURES. This Agreement may be executed
by the parties in one or more counterparts, and any number of counterparts
signed in the aggregate by the parties shall constitute a single instrument. The
parties authorize and agree to
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accept facsimile signatures in counterparts to this Agreement, and that said
facsimile signatures shall for all purposes be binding upon the parties as if
the same were original signatures.
21. ATTORNEY'S FEES. Should any party institute any action or
proceeding to enforce this Agreement or any provision hereof, or for damages by
reason of any alleged breach of this Agreement, or of any provision hereof, or
for a declaration of rights hereunder, the prevailing party(s) of such action or
proceeding shall be entitled to receive from the other involved party or parties
all costs and expenses, including attorneys' fees and expert witness fees
incurred by the prevailing party(s) in connection with such action or
proceeding.
22. NOTICES. Any notice or communication given under the terms of this
Agreement ("Notice") shall be in writing and shall be delivered in person or
mailed by certified mail, return receipt requested, in the United States Mail,
postage pre-paid, addressed as follows:
If to Seller: Futech Interactive Products, Inc.
2999 North 44th Street, Suite 225
Phoenix, Arizona 85018
If to Buyer: Janex International, Inc.
615 Hope Road, Building 1
Eatontown, New Jersey 07724
or at such other address as a person may from time to time designate by Notice
hereunder. Notice shall be effective upon delivery in person, or if mailed, at
midnight on the third business day after the date of mailing.
23. PARAGRAPH TITLES AND HEADINGS. The titles and headings of sections
of this Agreement are for the convenience of reference only, and are not
intended to define, limit, or describe the scope or intent of any provision of
this Agreement, and shall not affect the construction of any provision of this
Agreement.
24. MISCELLANEOUS. The parties agree that each party and its counsel
have reviewed and revised this Agreement, or had an opportunity to review and
revise this Agreement, and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not apply to the
interpretation of this Agreement or any amendments or exhibits hereto. In the
event of default by Seller hereunder, Buyer shall, in addition to its other
remedies under this Agreement and in law or equity, be entitled to specific
performance of Seller's obligations under this Agreement. The parties do not
intend to confer any benefit upon any person, firm, or corporation other than
the parties hereto. No representation or warranty herein may be relied upon by
any person not a party to this Agreement. The Exhibits attached hereto are
incorporated into and are part of this Agreement. The parties agree that the
Assets and the Business as a going concern constitute unique property, that
there is no adequate remedy at law for the damage which might be sustained for
the failure of a party to this Agreement to consummate the Transaction, and,
accordingly, that each party hereto shall be entitled to the remedy of specific
performance to enforce such consummation. The parties agree that time is of the
essence of each and every provision of this Agreement.
DATED the date first hereinabove written.
SELLER: Futech Interactive Products, Inc., an Arizona
corporation
By /s/ VINCENT W. GOETT
----------------------------------------
Vincent W. Goett, Interim CEO
BUYER: Janex International, Inc., a Colorado corporation
By /s/ DANIEL LESNICK
-----------------------------------------
Daniel Lesnick, President
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LIST OF EXHIBITS: (OMITTED EXHIBITS WILL BE SUPPLIED UPON REQUEST)
-------------------------------------------------------------------
Excluded Assets 1
List of Specific Furniture, Fixtures and Equipment 1.1
Assumed Leases 1.4
Unperformed Contracts 1.8
General Intangibles 1.9
List of Specifically Included Intellectual Property Rights 1.10
List of Specifically Listed Other Assets 1.16
Purchase Price Allocation 2.2
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