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EXHIBIT 2.1

 

 

     THIS STOCK EXCHANGE AGREEMENT (this Agreement), entered into this 30th  day of September 2010, by and between Passionate Pet, Inc. (PPIN) a Nevada Corporation herein after (PPIN) and John Dunn an individual herein after (DUNN), pursuant to the following facts:

RECITALS

     WHEREAS, PPIN desires to exchange (210,000) of its common stock for (210,000) shares of common stock owned by John Dunn in Passionate, Pet, Inc. a California corporation which relates to its business of retail sales of pet food and supplies and accessory equipment.  The terms and subject to the conditions set forth herein; and

     WHEREAS, PPIN is willing to assume only certain specified liabilities of DUNN as set out in Schedule 2;

     NOW, THEREFORE, in consideration of the agreements of the parties hereto, and intending to be legally bound hereby, the parties hereto agree as follows:

 

     1.1 Exchange of Stocks. At the Closing (as defined in Section 3), PPIN agrees to exchange convey, transfer, assign, and deliver to DUNN the common stock set out in 2.1 (a) of this agreement (210,000 common shares of Passionate Pet, Inc. a Nevada corporation), and DUNN agrees to exchange, 210,000 of the shares of Passionate Pet, Inc. a California corporation and all of his Stocks, properties, and business of every kind and description and wherever situated the Stocks derived from and in connection with the retail store located in Irvine California (the Stocks), listed on Schedules 1 though 1.G attached hereto, Without limiting the generality of the foregoing, the Stocks to be acquired by PPIN hereunder shall include the following except those items stated in Schedule 1.A

          (a) All of DUNN's goodwill and business as a going concern, including the name Passionate Pet or any variation thereof in Schedule 1.B.

          (b) All of DUNN's inventories and fixtures and other miscellaneous supplies and materials stated in Schedule 1.C.

          (c) All machinery, equipment, tools, motor vehicles, transportation, packing and delivery equipment and supplies, furniture and fixtures of every kind and description owned by DUNN or ordered by him (a listing of which is attached hereto in Schedule 1.D.

          (d) All of DUNN's right, title, and interest of every kind and description in and to the following Stocks: Passionate Pet, Inc. a California corporation.

       (i) All of DUNN's rights and privileges under "Assigned Contracts/Pending Quotations" unfilled purchase and sales orders as defined in Schedule 1.E.

 

       (ii) All of DUNN's rights to or under all trademarks, service marks, certification marks, United States and foreign trademark registrations and applications, trade names, copyrights, United States and foreign patents and patent applications, if any, including international priority rights associated therewith, and all patent and other license, trade secrets, inventions, and royalties as defined in Schedule 1.F.

       (iii) All of DUNN's customer lists, credit files, schedules of fixed Stocks, books of account, contracts, sales representation  agreements, and sales agency agreements (if any), files, papers, books, records, designs, drawings, specifications and engineering data, and all other public or confidential business records, all to the extent reasonably required for the orderly continuation of the business operations of DUNN (collectively, the "Business Records") see Schedule 1.G.

     1.2 Assumption of Certain Liabilities. PPIN shall not assume any liabilities as of the date of this Agreement see Schedule 2 hereto (the "Assumed Liabilities") and PPIN shall not assume, incur, guarantee, or be otherwise obligated with respect liability whatsoever of DUNN other than as so stated.

With respect to any Assumed Liability, such assumption by PPIN is for the benefit only of PPIN and shall not expand, increase, broaden, or enlarge the rights or remedies of any other party, nor create in any other party any right against PPIN that such party would not have against DUNN if this Agreement had not been consummated.

     1.3 Other Liabilities Not Assumed. PPIN shall not assume any liabilities of DUNN or PPPIC that are not listed on the Schedule 2 and, with respect to each Assumed Liability listed on the Schedule 2, PPIN does not assume and shall not have or be under any liability or obligation over and above any amount, or after the occurrence of any limitation or expiration date, of such liability or obligation stated on such schedule.

     1.4 Assignment of Certain Contracts. At the Closing, PPIN shall succeed to the rights and privileges of DUNN, and shall assume the express obligations of DUNN's performable after the Closing pursuant to those leases, insurance policies, contracts, and other agreements, and only those leases, insurance policies, contracts, and other agreements of DUNN that are listed as "Assigned Contracts" Schedule 1.E hereto ("Assigned Contracts") as and in the form of the copies thereof (or, if oral, as and in the form of the written statements of the terms thereof) furnished or made available to PPIN. Without limiting the generality of the foregoing, PPIN shall not assume and shall have no liability with respect to any obligations of DUNN under any Assigned Contract (a)required therein to be performed by DUNN at or prior to the Closing or (b)arising out of any breach thereof not included in the copies (or written statements of the terms) of such Assigned Contracts delivered or made available to PPIN pursuant hereto.

     1.5 Instruments of Conveyance, Assumption, or Assignment. The sale, conveyance, transfer, assignment, and delivery of the Stocks, the Assigned Contracts and the assumption of the Assumed Liabilities, as herein provided, shall be effected by bills of sale, endorsements, assignments, deeds, drafts, checks, stock powers, or other instruments in such reasonable and customary form as shall be requested by DUNN, and PPIN shall at any time and from time to time after the Closing, upon reasonable request, execute, acknowledge, and deliver such additional bills of sale, endorsements, assignments, deeds, drafts, checks, stock powers, or other instruments and take such other actions as may be reasonably required to effectuate the transactions contemplated by this Agreement.

     2.1 Stock Exchange. In consideration for the sale, conveyance, transfer, and delivery of the Stocks and Assigned Contracts and upon the terms and subject to the conditions set forth in this Agreement, PPIN shall only assume the Liabilities set out in Schedule 2 and PPIN shall convey, transfer to DUNN the following, which shall be:

 

    (a)  Two Hundred and Ten Thousand (210,000) shares of common stock of Passionate Pet, Inc a Nevada corporation, PPIN, said stock shall be restricted pursuant to Rule 144 of the Securities Act of 1933.

 

  2.2 Stock Exchange. In consideration for the sale, conveyance, transfer, and delivery of the Stocks and Assigned Contracts and upon the terms and subject to the conditions set forth in this Agreement, DUNN convey, transfer to PPIN the following, which shall be:

 
 

 

    (a)  Two Hundred and Ten Thousand (210,000) shares of common stock of Passionate Pet, Inc a California corporation, PPIC, said stock shall be restricted pursuant to Rule 144 of the Securities Act of 1933.

3.   CLOSING.

     3.1 Closing. The closing of the exchange (the "Closing") shall take place at the offices of PPIN at 18871 Teller Ave. Irvine California 92553 at 10:00 a.m. on September 30, 2010, or at such other time and place as may be mutually agreed upon (the "Closing Date").

At the Closing, DUNN shall deliver to PPIN such bills of sale, endorsements, assignments, deeds, drafts, checks, stock powers, or other instruments as shall be effective to vest in PPIN good and marketable title to the Stocks subject to no liens, encumbrances, or rights in any other party whatsoever, except as are described in the applicable Schedules. DUNN shall prior to closing deliver completed Schedules 1 through 3 as outlined above.

At the Closing, PPIN shall deliver to DUNN such bills of sale, endorsements, stock powers, or other instruments as shall be effective to vest in DUNN good and marketable title to the Stocks subject to no liens, encumbrances, or rights in any other party whatsoever, except as are described in the applicable Schedules.

     Except as otherwise provided herein, DUNN will pay all sales, use, franchise, and other taxes and charges which may become payable in connection with the exchange of the Stocks pursuant to the terms of this Agreement.

5.   REPRESENTATIONS AND WARRANTIES OF DUNN.

     DUNN represents and warrants, covenants and agrees that:

     5.1 Authority to Convey. DUNN is an individual with full power and authority to carry on the business of exchanging such Stocks and to execute and deliver and carry out the transactions contemplated by this Agreement.

     5.2 Due Authorization; Effect of Transaction. No provisions of any agreement, instrument, or understanding, or any judgment, decree, rule, or regulation, to which DUNN is a party or by which DUNN is bound, has been or will be violated by the execution and delivery by DUNN of this Agreement or the performance or satisfaction of any agreement or condition herein contained upon its part to be performed or satisfied and satisfaction has been duly obtained. Upon execution and delivery, this Agreement will be a legal, valid, and binding obligation of DUNN, enforceable i n accordance with its terms.

 
 

  5.3 Personal Properties. DUNN owns and has good and marketable title to all the tangible and intangible personal property and Stocks, free and clear of all mortgages, liens, encumbrances, equities, claims, and obligations to other persons, of whatever kind and character, except as set forth in the Schedules 2 and 2.A

     5.4 Litigation and Compliance with Laws. Schedule 3 contains a brief description of all litigation or legal or other actions, suits, proceedings, or investigations, at law or in equity or admiralty, or before any federal, state, municipal, or other governmental department (including, without limitation, the National Labor Relations Board), commission, board, agency, or instrumentality, domestic or foreign, in which DUNN or any of its officers or directors, in such capacity, is engaged, or, to the knowledge and belief of DUNN, with which DUNN or any of its officers or directors is threatened in connection with the busine ss or affairs or properties or Stocks of DUNN. DUNN is and at all times since its inception has been in compliance with all laws and governmental rules and regulations, domestic and foreign, and all requirements of insurance carriers, applicable to its business or affairs or properties or Stocks, including, without limitation, those relating to environmental protection, water or air pollution, and similar matters.

     5.5 Trademarks, Licenses, Etc. Schedule 1.F sets forth all of the trademarks, trade names, service marks, patents, copyrights, registrations, or applications with respect thereto, and licenses or rights under them owned, used, or intended to be acquired or used by DUNN, and, to the extent indicated in the Schedule 1.F, they have been duly registered in such offices as are indicated therein. DUNN is the sole and exclusive owner of the trademarks, trade names, service marks, and copyrights, the holder of the full record title to the trademark registrations and the sole owner of the inventions covered by the patents and patent applications, all as set forth in the Schedule 1.F; DUNN has the sole and exclusive right, to the extent listed in the Schedule 1.F, to use such trademarks, trade names, service marks, patents and copyrights, and, except to the extent set forth on the Schedule 1.F, all of them are free and clear of any mortgages, liens, encumbrances, equities, licenses, claims, and obligations to other persons of whatever kind and character.

     5.6 Material Information. This Agreement (including all the Schedules and Exhibits hereto) nor any certificate or other information or document furnished or to be furnished by either DUNN to PPIN contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact required to be stated herein or therein or necessary to make the statements herein or therein not misleading.

     5.7 No Governmental Authorizations or Approvals Required. No authorization or approval of, or filing with, any governmental agency, authority, or other body will be required in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.

     5.8 Continuing Representations. The representations and warranties of DUNN herein contained shall survive the Closing for one year (1) year.

6.   REPRESENTATIONS, WARRANTIES, AND AGREEMENTS OF PPIN.

 

     6.1 Due Authorization; Effect of Transaction. No provision of PPIN's Certificate of Incorporation or Bylaws, or of any agreement, instrument, or understanding, or any judgment, decree, rule, or regulation, to which PPIN is a party or by which it is bound, has been, or will be violated by the execution by PPIN of this Agreement or the performance or satisfaction of any agreement or condition herein contained upon its part to be performed or satisfied, and all requisite corporate and other authorizations for such execution, delivery, performance, and satisfaction have been duly obtained. Upon execution and delivery, this Agreement will be a legal, valid, and binding obligation of PPIN, enforceable in accordance with its terms. PPIN is not in default in the performance, observance, or fulfillment of any of the terms or conditions of its Certificate of Incorporation or Bylaws.

     6.2 Litigation and Compliance with Laws. No litigation or legal or other actions, suits, proceedings, or investigations, at law or in equity or admiralty, or before any federal, state, municipal, or other governmental department (including, without limitation, the National Labor Relations Board), commission, board, agency, or instrumentality, domestic or foreign, in which or any of its officers or directors, in such capacity, is engaged, or, to the knowledge and belief of PPIN, with which PPIN or any of its officers or directors is threatened in connection with the business or affairs or properties or Stocks of PPIN. PPIN is and at all times since its inception has been in compliance with all laws and governmental rules and regulations, domestic and foreign, and all requirements of insurance carriers, applicable to its business or affairs or properties or Stocks, including, without limitation, those relating to environmental protection, water or air pollution, and similar matters.

     6.3 Common Stock. The shares to be issued pursuant to Section 2.1(a) of this Agreement are not registered under the Securities Act of 1933 and will be "restricted shares" within the meaning of Rule 144 under the 1933, Securities Act. The certificates evidencing the shares issued to DUNN will bear restrictive legends as appropriate. PPIN shall be under no obligation to register the shares under the 1933 Securities Act or any state securities law for resale by the Buyer.

     6.4 Continuing Representations. Except for Section 6.3, the representations and warranties of PPIN herein contained shall survive the Closing for one year (1) year. The representation and warranty set forth in Section 6.3 shall survive the Closing without limitation.

7.   CONDITIONS OF DUNN'S OBLIGATIONS.

 The obligations of DUNN hereunder are subject to the fulfillment to the  reasonable satisfaction of the DUNN, prior to or at the Closing, of each  of the following conditions:

     7.1 Non Competition Agreement. DUNN agrees not to compete in the retail or wholesale pet food or supply business for a period of 3 years.

     7.2 Permits, Etc. DUNN shall have assigned to PPIN, or PPIN shall have obtained, all such permits, licenses, approvals, authorizations, variances, agreements, and warranties from federal, state, and local governmental authorities, which PPIN shall, in the exercise of its sole discretion, deem necessary or desirable for the operation by PPIC of the businesses of after the Closing.

 

 

     7.3 Representations and Covenants. The representations and warranties of DUNN contained in this Agreement or otherwise made in writing by it or him or on its or his behalf pursuant hereto or otherwise made in connection with the transactions contemplated hereby shall be true and correct at and as of the Closing Date with the same force and effect as though made on and as of such date; each and all of the covenants, agreements, and conditions to be performed or satisfied by DUNN hereunder at or prior to the Closing Date shall have been duly performed or satisfied; and DUNN shall have furnished PPIN with such certificates and other documents evidencing the truth of such representations and warranties and the performance and satisfaction of such covenants, agreements, and conditions as PPIN shall have reasonably requested.

     7.4 Instruments of Transfer. DUNN shall have delivered to PPIN bills of sale, assignments, deeds, stock powers, and other instruments of transfer and assignment in accordance with the provisions hereof, transferring to PPIN all of DUNN's right, title, and interest in the shares of Passionate Pet, Inc. a California and to the Stocks, including any Assigned Contracts, to be transferred, assigned, and conveyed by DUNN to PPIN pursuant to the provisions of this Agreement.

8.   CONDITIONS OF PPIN OBLIGATIONS.

     The obligations of PPIN hereunder are subject to the fulfillment to the reasonable satisfaction of PPIN prior to or at the Closing of each of the following conditions:

     8.1 Representations and Covenants. The representations and warranties of PPIN contained in this Agreement or otherwise made in writing by it or on its behalf pursuant hereto or otherwise made in connection with the transactions contemplated hereby shall be true and correct at and as of the Closing Date with the same force and effect as though made on and as of such date; each of the covenants, agreements, and conditions to be performed or satisfied by PPIN hereunder at or prior to the Closing Date shall have been duly performed or satisfied; and PPIN shall have furnished DUNN with such certificates or other documents evidencing the truth of such representations and warranties and the performance and satisfaction of such covenants, agreements, and conditions as DUNN shall have reasonably requested.

     8.2 No Opposition. No suit, action, or proceeding shall be pending or threatened on the Closing Date before or by any court or governmental authority seeking to restrain or prohibit the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.

9.   INDEMNIFICATION BY DUNN.

     9.1 Indemnification.

     (a) DUNN hereby agrees to indemnify, defend, and hold PPIN harmless from and against the amount of any actual (or potential in the case of any litigation or claims by any person not a party to this Agreement) damage, loss, cost, or expense (including reasonable attorneys' fees and settlement  to PPIN ("Loss") occasioned or caused by, resulting from, or arising out of:

 

 

          (i) Any failure by DUNN to perform, abide by, or fulfill any of the agreements, covenants, or obligations set forth in or entered into, in connection with this Agreement to be so performed or fulfilled by the DUNN.

          (ii) Any material inaccuracy in or breach of any of the representations or warranties set forth in this Agreement, or any certificate or Schedule or other writing furnished pursuant hereto.

          (iii) Any failure on the part of DUNN to withhold from the exchange any Stocks or amounts due to any governmental authority or other person that results in a loss to PPIN.

          (iv) Any claim, known or unknown, arising out of or by virtue of or based upon any liability or obligation of either DUNN that is not an Assumed Liability.

          (v) Any claim, known or unknown, arising out of or by virtue of or based upon any contract or agreement of either DUNN that (i) is not an Assigned Contract, or (ii) is connected with any breach by either DUNN of an Assigned Contract, or any failure by either DUNN to have performed any obligation or satisfied any liability hereunder to the extent required to be performed or satisfied at or prior to the Closing, or (iii) is not set forth (or described) in writing and furnished or made available to PPIN pursuant hereto.

          (vi) Any liability or obligation for any tort or any breach or violation of any contractual, quasi contractual, legal, fiduciary, or equitable duty by DUNN, whether before, at, or after the Closing.

  9.2 Notice of Claim. PPIN shall give prompt written notice to DUNN of any claim (actual or threatened) or other event that in the judgment of either PPIN might result or has resulted in a Loss by PPIN hereunder, and DUNN shall have the right to assume the defense of such claim or any litigation resulting therefrom; provided that counsel for PPIN, who shall conduct the defense of such claim (actual, threatened, or assert ed) or litigation, shall be reasonably satisfactory to the DUNN, and DUNN may participate in such defense at their expense, and provided, further, that the omission by PPIN to give notice as provided herein shall not relieve DUNN of his obligations hereunder except to the extent that the omission results in a failure of actual notice to DUNN and DUNN is damaged solely as a result of the failure to give notice. DUNN, in the defense of any such claim or litigation, shall, except with the consent of each PPIN, consent to the entry of any judgment or decree or ente r into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to PPIN of a release from all liability in respect to such claim or litigation, and the PPIN shall have no liability with respect to any payment made by a PPIN in connection with the settlement, satisfaction, or compromise of any claim unless the PPIN shall have approved thereof in advance in writing, which approval shall not unreasonably be withheld or delayed. If PPIN shall not have received notice that DUNN shall assume the defense of such claim within twenty (20) days after the notice is sent to the DUNN< /font> of the existence of such claim, PPIN shall be free to proceed with the defense of such claim . Each such notice shall be accompanied (or followed as promptly as is reasonably practicable after the amount of such Loss becomes determinable) by a certificate signed by the President of PPIN as the case may be, and setting forth in reasonable detail the calculation of the amount of such Loss in accordance with the provisions hereof, and accompanied by copies of all relevant documents and records. The omission to give such notice or provide such certificate by PPIN shall not relieve DUNN of his obligation under this Section 9.2 except to the extent such omission results in a failure of actual notice to DUNN and DUNN is damaged solely by such failure to give notice. No Loss shall be considered to have occurred with respect to any payment made by PPIN in settlement, satisfaction, or compromise of any claim unless the PPIN shall have approved thereof in advance and in writing.

10.  BULK SALES ACT.

     PPIN and DUNN both acknowledge that, in effecting the transactions contemplated hereby, neither PPIN nor DUNN has taken any steps to comply with the California Bulk Sales Law. Notwithstanding the foregoing, DUNN covenants and agrees to pay and discharge promptly and when due, and in all respects to defend PPIN against, all claims of creditors (other than the Assumed Liabilities) that are asserted against PPIN by reason of noncompliance with this Bulk Sales Law. DUNN hereby agrees to defend and to indemnify and hold PPIN harmless from, against, and in respect of (and shall on receipt of evidence of loss, liability, or damage reimburse PPIN for) any loss, liability, damage, cost, or expense, including, without limitation, reasonable attorneys' fees (other than the Assumed Liabilities), suffered or incurred by the PPIN by reason of any failure of DUNN to pay or discharge any such claim promptly and when due or the failure of the parties to comply with the Bulk Sales Law.

11.  AMENDMENTS; WAIVERS.

     This Agreement constitutes the entire agreement of the parties related to the subject matter of this Agreement, supersedes all prior or contemporary agreements, representations, warranties, covenants, and understandings of the parties. This Agreement may not be amended, nor shall any waiver, change, modification, consent, or discharge be effected, except by an instrument in

writing executed by or on behalf of the party against whom enforcement of any amendment, waiver, change, modification, consent, or discharge is sought.

     Any waiver of any term or condition of this Agreement, or of the breach of any covenant, representation, or warranty contained herein, in any one instance, shall not operate as or be deemed to be or construed as a further or continuing waiver of such term, condition, or breach of covenant, representation, or warranty, nor shall any failure at any time or times to enforce or require performance of any provision hereof operate as a waiver of or affect in any manner such party's right at a later time to enforce or require performance of such provision or of any other provision hereof; and no such written waiver, unless it, by its own terms, explicitly provides to the contrary, shall be construed to effect a continuing waiver of the provision being waived and no such waiver in any instance s hall constitute a waiver in any other instance or for any other purpose or impair the right of the party against whom such waiver is claimed in all other instances or for all other purposes to require full compliance with such provision.

 

 

 

 

 

 

 

     This Agreement shall not be assignable by any party without the written consent of the other. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

13.  SEVERABILITY.

     If any provision or provisions of this Agreement shall be, or shall be found to be, invalid, inoperative, or unenforceable as applied to any particular case in any jurisdiction or jurisdictions, or in all jurisdictions or in all cases, because of the conflict of any provision with any constitution or statute or rule of public policy or for any other reason, such circumstance shall not have the effect of rendering the provision or provisions in question invalid, inoperative, or unenforceable in any other jurisdiction or in any other case or circumstance or of rendering any other provision or provisions herein contained invalid, inoperative, or unenforceable to the extent that such other provisions are not themselves actually in conflict with such constitution, statute, or rule of public p olicy, but this Agreement shall be reformed and construed in any such jurisdiction or case as if such invalid, inoperative, or unenforceable provision had never been contained herein and such provision reformed so that it would be valid, operative, and enforceable to the maximum extent permitted in such jurisdiction or in such case.

14.  COUNTERPARTS.

     This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and in pleading or proving any provision of this Agreement it shall not be necessary to produce more than one such counterpart.

     The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.

16.  NOTICES.

     All notices, demands, and other communications hereunder shall be

in writing and shall be deemed to have been duly given if delivered or mailed, postage prepaid, certified mail, return receipt requested:

 

 

	(a)	TO DUNN:		(b)	TO PPIN:
		John Dunn			Passionate Pet, Inc. (PPIN)
		2 St. Giles Court			18871 Teller Ave.
		Ladera Ranch, California 92694			Irvine, Ca 92012

                                                                                                                                                  
                             And/or to such other person(s) and address (as) as either party shall have specified in writing to the other.

     Whenever used herein, the singular number shall include the plural, the plural shall include the singular, and the use of any gender shall include all genders.

18.  LAW TO GOVERN.

     This Agreement shall be governed by and construed and enforced in accordance with the law (other than the law governing conflict of law questions) of California.

 

 

     Any action to enforce, arising out of, or relating in any way to, any of the provisions of this Agreement may be brought and prosecuted in such court or courts located in Orange County as is provided by law; and the parties consent to the jurisdiction of the court or courts located in Orange County and to service of process by registered mail, return receipt requested, or in any other manner provided by law.

     IN WITNESS WHEREOF, DUNN and PPIN have caused this Agreement to be executed as of the date 30th day of September 2010

 

Passionate Pet, Inc. (PPIN)
By:	/s/ John Dunn
Name:  John Dunn President of
Passionate Pet, Inc. a Nevada corporation
John Dunn, an individual
By:	/s/ John Dunn

 

 

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