EXHIBIT 10.43
ASSET PURCHASE AGREEMENT
dated as of
___________, 2000
by and between
XXXXXXXXX.XXX, INC.
and
WESTERN TECHNOLOGIES GROUP, LLC
ASSET PURCHASE AGREEMENT
Asset Purchase Agreement (the "Agreement") dated as of _________, 2000,
by and between Western Technologies Group, LLC a California limited liability
corporation ("Seller"), and Xxxxxxxxx.xxx, Inc. ("Buyer"), a Nevada corporation.
Whereas, Seller conducts a business (the "Business") which
operates as a web site developer; and
Whereas, Buyer desires to purchase substantially all of the
assets of the Business from Seller, and Seller desires to sell
substantially all of the assets of the Business to Buyer, upon
the terms and subject to the conditions hereinafter set forth;
Now, therefore, in consideration of the foregoing and the
representations, warranties, covenants and agreements herein contained, the
parties hereto agree as follows:
1) PURCHASE AND SALE
a) Purchase and Sale. Upon the terms and subject to the conditions of this
Agreement, Buyer agrees to purchase from Seller and Seller agrees to
sell, transfer, assign and deliver, or cause to be sold, transferred,
assigned and delivered, to Buyer at closing on the Closing Date, all of
the Seller's then existing assets and business, as a going concern
reflected on the attached Schedule 1.1 "Purchased Asset Schedule" dated
as of _____________, with such changes therein that have occurred in the
ordinary course of the Seller's business between ______________ and the
Closing Date ("Purchased Assets").
b) Assumption of Liabilities. Upon the terms and subject to the conditions
of this Agreement, Buyer agrees, effective at the Closing Date, to
assume all of the liabilities of Seller except for those set forth on
Schedule 1.2, as the same existed on __________ with such changes
therein that have occurred in the ordinary course of the Seller's
business between _____________ and the Closing Date ("Assumed
Liabilities"). Buyer shall assume and agree to pay and discharge all of
the Seller's liabilities and obligations to the extent provided for in
that separate Assignment and Assumption Agreement attached hereto as
Exhibit A including, but not limited to, the following:
i) All of the Seller's liabilities and obligations as of ____________
which are reflected or reserved against in the Seller's Asset
Statement as of that date;
ii) All of the Seller's liabilities and obligations arising in the
ordinary conduct of its business between ____________, and the
closing;
iii) All the Seller's liabilities and obligations in respect of
contracts and commitments entered into in the ordinary course of
the Seller's business at any time before or after _____________ and
before closing;
iv) All facilities and personal property leases described on Schedule
1.2 attached hereto; and
v) All Total Non-Recourse Debt of Seller existing as of the Closing
Date.
c) Excluded Liabilities. Notwithstanding any provision in this Agreement or
any other writing to the contrary, Buyer is assuming only the Assumed
Liabilities and is not assuming any other liability or obligation of
Seller (or any predecessor owner of all or part of its business and
assets) of whatever nature, whether presently in existence or arising
hereafter. All such other liabilities and obligations shall be retained
by and remain obligations and liabilities of Seller. Specifically, Buyer
shall not assume or be liable for any liability of Seller in respect of:
i) Any profit derived from the sale provided for by this Agreement;
ii) The preparation of filing in any tax returns in the payment of any
taxes, license fees, or any other charges levied, assessed, or
imposed upon the Seller's business or property before the Closing
Date, except that Buyer shall pay Seller at closing the amount
shown to be accrued and owing for taxes on the schedule of accounts
payable;
iii) Any state, local or federal taxes resulting from the sale of the
assets contemplated by this transaction.
d) Purchase Price.
i) The purchase price for the Purchased Assets (the "Purchase Price")
shall be the value of the Assumed Liabilities.
ii) The Purchase Price shall be allocated among the Purchased Assets as
agreed by the parties, such agreement to be completed prior to the
day of closing. Buyer and Seller shall reflect such allocation in
any filing pursuant to Section 1060 of the Internal Revenue Code or
any regulation thereafter. The Purchase Price shall be allocated
among the Purchased Assets as agreed by the parties, such agreement
to be completed prior to the day of closing. Buyer and Seller shall
reflect such allocation in any filing pursuant to Section 1060 of
the Internal Revenue Code or any regulation thereafter.
e) Incentive Payment. As an inducement to achieve a certain level of
pre-tax profits in the year 2002, a Pre-Tax Payout shall be paid to
Seller as follows:
i) Seller's business has a three-year profit object to achieve a $3.3
million pre-tax profit for calendar year 2002 which shall be
calculated according to Generally Accepted Accounting Principals,
shall be included in the consolidated financials of Buyer, and
shall include reasonable charges for accounting, legal and other
charges directly incurred by Seller, whether paid by Seller or by
Buyer on behalf of Seller (the "Pre-Tax Profit").
ii) Based on the amount of Pre-Tax Profit, Buyer will pay to Seller's
representatives as defined in 1(e)(ii) below, the following
amounts:
Pre-Tax Profit (before Pre-Tax Payout) % of Pre-Tax Profit
Paid to Seller
$3,300,000.00 and above 50%
$3,299,999,99 - $2,800,000.0 40%
$2,799,999.99 - $2,400,000.00 30%
$2,399,999.99 - $2,000,000.00 20%
$1,999,999.99 - $1,500,000.00 10%
No Pre-Tax Payout shall be made if the Pre-Tax Profit does not
exceed $1,499,999.99.
iii) Should Buyer fund Seller's working capital needs in excess of
$750,000 for the period from Closing through December 31, 2002,
such amounts funded in excess of $750,000 shall be deducted from
the Pre-Tax Profit before payout when determining the Pre-Tax
Payout calculation. (For example, if the Pre-Tax Profit before
payout is $3,000,000.00 and Buyer has funded $1,000,000 of Seller's
working capital, the Pre-Tax Profit before payout for purposes of
the Pre-Tax Payout plan calculation shall be $2,750,000.00.)
iv) For any Pre-Tax Payout by Buyer, Seller agrees that such payment
should be made not directly to Seller but that 40% of such payout
should be made by Buyer to Xxx Xxxxxxx and 60% should be made to
the Seller's management team, with such management team at the time
of the payout, if any, and the percentages of the payout to each
member of such management team, being determined by Buyer's
Executive Management team.
v) The Pre-Tax Payout, if any, shall be made on or before April 15,
2003 and may be made in the common stock of Buyer or in cash, at
Buyer's sole option. Should Buyer choose to make the Pre-Tax
Payout, if any, in the form of Buyer's common stock, the number of
shares paid out shall be calculated using a daily average of
Buyer's common stock during each business day of February 2003.
(1) For the purposes herein, the value of Buyer's common stock
shall be determined as follows:
(a) If the security is listed for trading on one or more
national security exchanges (including NASDAQ), the
reported price of such security on each of the dates in
question, or if such security shall not have been traded
on such dates, the reported last price on such exchange
on the first day prior thereto on which such security was
so traded; or
(b) If the security is not traded for trading on a national
security exchange (including NASDAQ), but is traded in
the over the counter market, the mean of the highest and
lowest prices for such security on each of the dates in
question, or if there are no such bid prices for such
security on such dates, the mean of the highest and
lowest bid prices on the first date prior thereto on
which such prices existed; or
(c) If neither (a) nor (b) immediately above is applicable,
the value of such security shall mean the book value per
share of the common shares of Seller as of such date. The
term "book
value per share" shall mean the net book value of Seller
as is determined by the Seller's independent certified
public accountants in accordance with generally accepted
accounting principals consistently applied divided by the
number of the outstanding shares of common stock of
Seller.
f) Bonus Pool.
i) Buyer will pay to the management team of Seller (which management
team shall specifically exclude Xxx Xxxxxxx whose bonus, if any, is
specifically covered in an Employment Agreement by and between Xxx
Xxxxxxx and Buyer dated ________, 2000), with such management team
being determined by Buyer's Executive Management team, 5% of the
Seller's profit before tax (the "Bonus Pool"), with such profit
before tax being calculated according to Generally Accepted
Accounting Principals, shall be included in the consolidated
financials of Buyer, and shall include reasonable charges for
accounting, legal and other charges directly incurred by Seller,
whether paid by Seller or by Buyer on behalf of Seller, in each of
the calendar years 2000 and 2001.
ii) However, such Bonus Pool, if any, shall only be paid by Buyer for
calendar year 2000 if such profit before tax for that year is at
least $150,000.00 and shall only be paid for calendar year 2001 if
pre-tax profit for that year is at least $750,000.00.
iii) The Bonus Pool, if any, for 2000 shall be paid by Buyer on or
before March 31, 2001 and the Bonus Pool, if any, for 2001 shall be
paid by Buyer on or before March 31, 2002. There shall not be a
Bonus Pool as described in this section for the calendar year 2002.
Any bonuses paid to the management team of Seller in calendar year
2002 shall be governed under paragraph 1e, Incentive Payment.
g) Closing. The closing (the "Closing") of the purchase and sale of the
Purchased Assets and the assumption of the Assumed Liabilities hereunder
shall take place at the offices of Buyer in El Segundo, California, at
10:00 a.m. on or before April 30, 2000, or at such other time or place
as Buyer and Seller may agree.
h) Seller and Buyer shall enter into an Assignment and Assumption Agreement
substantially in the form attached hereto as Exhibit A, and Seller shall
deliver to Buyer such general warranty deeds, bills of sale,
endorsements, consents, assignments and other good and sufficient
instruments of conveyance and assignment (the "Conveyance Documents") as
the parties and their respective counsel shall deem reasonably necessary
or appropriate to vest in Buyer all right, title and interest in, to and
under the Purchased Assets.
i) Seller shall deliver to Buyer a certified copy of the resolution by the
Seller's board of directors certifying that Seller has authorized the
execution, delivery of performance and the transaction contemplated
herein and authorizing the officers of Seller to execute this Agreement.
j) Closing Opinion. At closing Seller shall provide to Buyer and opinion of
counsel stating:
i) the Seller's corporate existence and good standing are as stated
herein;
ii) except as may be expressed by counsel, counsel does not know or
have any reasonable grounds to know of any litigation, proceeding,
or government investigation pending against or related to the
Seller, its properties or business; and
iii) all proceedings required by law or by the provisions of this
Agreement to be taken by Seller and its shareholders in connection
with the transactions provided for in this Agreement have been duly
and valuably taken.
k) Closing Opinion. At closing Buyer shall provide to Seller and opinion of
counsel stating:
i) that the Buyer is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation, with full power and authority to own its properties
and to engage in its business as presently conducted or
contemplated, and is duly qualified and in good standing as a
foreign corporation under the laws of each jurisdiction in which it
is authorized to do business except where such failure to qualify
does not have a material adverse effect on the business or assets
of the Buyer. All of the outstanding shares of capital stock of the
Buyer have been duly authorized and validly issued and are fully
paid and non-assessable and were not issued in violation of the
preemptive rights of any person;
ii) except as set forth herein or in any schedule or exhibit attached
to the Purchase Agreement, counsel does not know or have any
reasonable grounds to know of any litigation, proceeding, or
government investigation pending against or related to the Buyer,
its properties or business;
iii) all proceedings required by law or by the provisions of this
Agreement to be taken by Buyer and its shareholders in connection
with the transactions provided for in this Agreement have been duly
and valuably taken;
iv) neither the execution and delivery of the Purchase Agreement nor
the consummation of the transaction contemplated thereby (1)
violates any provision of the Certificate of Incorporation or
Bylaws (or other governing instrument) of the Buyer; (2) breaches
or constitutes a default (or an event) that, with notice or lapse
of time or both, would constitute a default under any agreement of
the Buyer with any other person to the extent that any such default
would constitute a material adverse effect upon the Company, or (3)
violates any statute, law, regulation, or rule or order applicable
to the Buyer;
v) no consent, approval or authorization of, or declaration, filing,
or registration with, any state or federal authorities is required
in connection with the execution, delivery and performance of the
Purchase Agreement or the consummation of the transaction
contemplated thereby; and
vi) all of the shares of stock when issued to the Seller will be duly
issued and fully paid and nonassessable and that in conjunction
with
the issuance of such the Buyer and has complied with all federal
and state securities laws.
l) Seller shall provide to Buyer at closing a Certificate of Good Standing
dated not more than thirty (30) days prior to the Closing Date.
m) Seller will deliver to Buyer on the Closing Date an officer's
certificate certifying that Seller has taken all corporate action
necessary to authorize the transactions contemplated by this Agreement.
n) Buyer shall deliver to Seller a certified copy of the resolution by the
Buyer's board of directors certifying that Buyer has authorized the
execution, delivery of performance and the transaction contemplated
herein and authorizing the officers of Buyer to execute this Agreement.
o) Buyer will deliver to Seller on the Closing Date an officer's
certificate certifying that Buyer has taken all corporate action
necessary to authorize the transactions contemplated by this Agreement.
p) Buyer shall provide to Seller at closing a Certificate of Good Standing
dated not more than thirty (30) days prior to the Closing Date.
2) REPRESENTATIONS AND WARRANTIES OF THE SELLER
a) Seller hereby represents and warrants to Buyer that:
i) Organization and Good Standing. The Seller is a corporation duly
incorporated, validly existing and in good standing under the laws
of its jurisdiction of incorporation, and has all corporate powers
and all material governmental licenses, authorizations, consents
and approvals required to carry on its business as now conducted.
ii) Corporate Authorization. The execution, delivery and performance by
Seller of this Agreement and the consummation by Seller of the
transactions contemplated hereby and thereby are within Seller's
corporate powers and have been duly authorized by all necessary
corporate action on the part of Seller. This Agreement constitutes
a valid and binding agreement of Seller.
iii) Sufficiency of and Title to the Purchased Assets. Upon consummation
of the transactions contemplated hereby, Buyer will have acquired
good and marketable title in and to, or a valid leasehold interest
in, each of the Purchased Assets.
b) Warranties.
i) Seller has made no warranties to customers of the Business other
than customary implied warranties and those warranties set forth on
printed materials provided with the products sold to such
customers.
ii) Seller provides no representations or warranties as to the
conditions of the Purchased Assets and Buyer is buying them in an
"as is", "where is" condition.
3) REPRESENTATIONS AND WARRANTIES OF BUYER
a) Buyer hereby represents and warrants to Seller that:
i) Organization and Good Standing. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws
of Nevada and is qualified in each jurisdiction where the nature of
its business or the ownership of property requires such
qualification except where such failure to qualify shall not have a
material adverse effect on the business or financial ability of the
Buyer and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry
on its business as now conducted;
ii) Corporate Authorization. The execution, delivery and performance by
Buyer of this Agreement and the consummation by Buyer of the
transactions contemplated hereby are within the corporate powers of
Buyer and have been duly authorized by all necessary corporate
action on the part of Buyer and constitutes a valid and binding
agreement of Buyer enforceable in accordance with its terms subject
to the laws of bankruptcy and those laws affecting creditors rights
generally;
iii) No Violation of Other Agreements. Neither the execution and
delivery of the Purchase Agreement nor the consummation of the
transaction contemplated thereby (1) violates any provision of the
Certificate of Incorporation or Bylaws (or other governing
instrument) of the Buyer; (2) breaches or constitutes a default (or
an event) that, with notice or lapse of time or both, would
constitute a default under any agreement of the Buyer with any
other person to the extent that any such default would constitute a
material adverse effect upon the Company, or (3) violates any
statute, law, regulation, or rule or order applicable to the Buyer;
iv) No Consents Required. No consent, approval or authorization of, or
declaration, filing, or registration with, any state or federal
authorities is required in connection with the execution, delivery
and performance of the Purchase Agreement or the consummation of
the transaction contemplated thereby; and
v) Issuance of Shares of Stock. All of the shares of stock when issued
to the Seller will be fairly issued and fully paid and none
assessable and that in conjunction with the issuance of such the
Buyer and has complied with all federal and state securities laws.
4) TAX MATTERS
a) Tax Definitions. The following terms, as used herein, have the following
meanings:
i) "Code" means the Internal Revenue Code of 1986, as amended.
ii) "Post-Closing Tax Period" means any Tax period (or portion thereof)
ending after the Closing Date.
iii) "Pre-Closing Tax Period' means any Tax period (or portion thereof)
ending on or before the close of business on the Closing Date.
iv) "Proration Date" means the Closing Date.
v) "Tax" means any net income, alternative or add-on minimum tax,
gross income, gross receipts, sales, use, ad valorem, franchise,
capital, paid-up capital, profits, greenmail, license, withholding,
payroll, employment, excise, severance, stamp, occupation, premium,
property, environmental or windfall profit tax, custom, duty or
other tax,
governmental fee or other like assessment or charge or any kind
whatsoever, together with any interest or any penalty, addition to
tax or additional amount imposed by any governmental authority
(domestic or foreign) responsible for the imposition of any such
tax.
b) Tax Cooperation: Allocation of Taxes.
i) Buyer and Seller agree to furnish or cause to be furnished to each
other, upon request, as promptly as practicable, such information
and assistance relating to the Purchased Assets as is reasonably
necessary for the filing of all Tax returns, and making of any
election related to Taxes, the preparation for any audit by any
taxing authority, and the prosecution or defense of any claim, suit
or proceeding relating to any Tax return. Seller and Buyer shall
cooperate with each other in the conduct of any audit or other
proceeding related to Taxes involving the Purchased Assets and each
shall execute and deliver such powers of attorney and other
documents as are necessary to carry out the intent of this Section.
ii) All real property taxes, personal property taxes and similar ad
valorem obligations (except for those Taxes which are accrued on
Seller's financial statements delivered to Buyer hereunder, which
taxes shall constitute a portion of the Assumed Liabilities) levied
with respect to the Purchased Assets for a taxable period which
includes (but does not end on) the Proration Date (collectively,
the "Apportioned Obligations") shall be apportioned between Seller
and Buyer as of the Proration Date and accrued on Seller's
financial statements delivered to Buyer hereunder based on the
number of days of such taxable period included in the Pre-Closing
Tax Period and the number of days of such taxable period included
in the Post-Closing Period. Seller shall be liable for the
proportionate amount of such taxes that is attributable to the
Pre-Closing Tax Period, and Buyer shall be liable for the
proportionate amount of such taxes that is attributable to the
Post-Closing Tax Period. Within ninety (90) days after the Closing,
Seller and Buyer shall present a statement to the other setting
forth the amount of the tax liability so accrued under this Section
(4)(b)(ii) together with such supporting evidence as is reasonably
necessary to calculate the proration amount. The proration amount
shall to the extent such adjustment would have resulted in a net
worth adjustment at the Closing Date, be used to calculate an
adjustment to the purchase price under Section (1)(d)(i).
Thereafter, Seller shall notify Buyer upon receipt of any xxxx for
real or personal property taxes relating to the Purchased Assets,
part or all of which are attributable to the Post-Closing Tax
Period, and shall promptly deliver such xxxx to Buyer who shall pay
the same to the appropriate taxing authority, provided that if such
xxxx covers a Pre-Closing Tax Period, Seller shall also remit prior
to the due date of assessment to Buyer payment for the
proportionate amount of such xxxx that is attributable to the
Pre-Closing Tax Period shall constitute another adjustment under
Section (1)(d)(i).
5) COVENANTS OF SELLER
a) No Solicitations. Unless and until the occurrence of an Event of
Default by Buyer under any instrument evidencing or securing any
indebtedness which arose in connection with the transaction contemplated
hereby, Seller and each of the principal shareholders of Seller, shall
not, for a period of three (3) years following the Closing Date, employ
or solicit, either directly or indirectly, the performance of services
by any employee of Seller employed by the Seller on or after March 31,
2000.
b) Telephone Numbers. Seller will make commercially reasonable efforts to
assist Buyer in transferring Seller's current telephone and facsimile
numbers to Buyer as of the Closing Date.
c) Name. Seller shall allow Buyer to use the name "Western Technology
Group" and "WesTech" at no cost to Buyer, for such time as Buyer deems
necessary.
d) Utilities. Seller will make commercially reasonable efforts to assist
Buyer in transferring Seller's current water, sewage and electrical
services (collectively "Utilities") to Buyer as of the Closing Date.
Seller shall accrue on its financial statements all charges for
Utilities incurred prior to and on the Closing Date. Buyer agrees that
it shall be obligated for charges for Utilities incurred subsequent to
the Closing Date.
e) Release of Liens. Seller will take all action necessary prior to the
Closing Date to release any and all liens or other encumbrances on the
Purchased Assets and the Inventory Assets, if any, including, without
limitation, causing any necessary UCC-2 Termination Statements to be
filed.
f) Non-Competition. Seller, all subsidiary corporations of each and any
business in which Xxx Xxxxxxx is an officer, director or in which Xx.
Xxxxxxx has a one-third or greater equity interest (collectively, the
"Non-Competing Entities"), will not engage in sales activities competing
with the Business. If any Customer requests sales of Business products
or services from Seller for three (3) years from the Closing Date,
Seller will refer such Customer to Buyer. As used herein, "sales
activities" shall mean selling, leasing, taking orders, soliciting
orders or contacting Customers of Seller, as such Customers exist on the
books and records of the Seller as of the Closing Date. This covenant
not to compete shall automatically terminate and be of no further force
and effect upon the occurrence of an Event of Default by Buyer under
this Agreement or under any instrument evidencing or securing
indebtedness which arose as part of the transaction contemplated hereby.
The parties specifically acknowledge that an employment agreement is
being entered into simultaneously with the signing of this Agreement by
and between Xxx Xxxxxxx and Buyer.
6) INDEMNIFICATION
a) Indemnification of Seller. Effective on the Closing Date and thereafter,
Buyer shall indemnify and hold harmless Seller and its directors,
officers, employees and agents, and shareholders from and against any
and all liabilities, damages, losses, penalties, deficiencies, expenses
and costs incurred by any of them, including without limitation
reasonable attorneys' and accountants' fees (hereafter individually a
"Loss" and collectively "losses"), arising
from or in connection with:
i) any claim made or litigation instituted by a third party relating
to Buyer's ownership rights in and to the Purchased Assets;
ii) any liability or obligation of Buyer which relates to the ownership
or use of any of the Purchased Assets or the conduct of the
Business subsequent to the Closing Date including liabilities
arising out of the Assumed Liabilities, including but not limited
to liabilities arising from or relating thereto;
iii) any claim first made or litigation instituted by a third party
relating to Seller's conduct of the Business notice for which claim
or litigation is received by Buyer or Seller subsequent to the
Closing Date;
iv) any taxes imposed on Buyer, the Business or any of the Purchased
Assets for any period subsequent to the Closing;
v) any and all actions, suits, proceedings, demands, assessments or
judgments, costs and expenses reasonably arising out of any of the
foregoing matters set forth in this Section (6)(a); and
vi) the breach by Buyer of any representations or warranties made by
Buyer herein or in any document given by Buyer in connection with
the consummation of the transaction contemplated hereby.
b) Indemnification of Buyer. Effective on the Closing Date and thereafter,
the Seller shall, jointly and severally, indemnify and hold harmless
Buyer and its directors, officers, employees and agents, from and
against any and all Losses arising from or in connection with:
i) any claim made or litigation instituted by a third party relating
to Seller's conduct of the Business notice of which claim or
litigation has been received by Seller prior to the Closing Date;
or
ii) any and all actions, suits, proceedings, demands, assessments or
judgments, costs and expenses reasonably arising out of any of the
foregoing matters set forth in this Section (6)(b)(ii) except to
the extent such losses shall arise in connection with or constitute
Assumed Liabilities hereunder.
c) Indemnification Procedure.
i) Claims for Indemnification. Except for Third Party Claims described
below, if an event giving rise to indemnification hereunder shall
have occurred or is threatened, the indemnified party promptly
shall deliver to the indemnifying party written notice thereof,
stating that such event has occurred or is threatened, describing
such event in reasonable detail and specifying or reasonably
estimating the amount of the prospective Loss and the method of
computation thereof (a "Claim"), all with reasonable particularity
and containing a reference to the provisions of the this Agreement
in respect of which such right of indemnification is claimed or has
arisen (the "Notice of Claim"). For purposes hereof, any Claim for
indemnification shall be deemed to have been made as of the date on
which the Notice of Claim is delivered in accordance with the terms
of this Section.
ii) In the event the indemnifying party shall in good faith dispute the
validity of all or any amount of a Claim for indemnification as set
forth in the Notice of Claim, the indemnifying party shall, within
thirty (30) days after delivery of the Notice of Claim, execute and
deliver to the indemnified party a notice setting forth with
reasonable particularity the grounds, amount of, and basis upon
which the Claim is disputed (the "Dispute Statement").
iii) In the event the Indemnifying party shall within thirty (30) days
deliver to the indemnified party a Dispute Statement, then the
portion of the claim described in the Notice of Claim disputed by
the indemnifying party (the "Disputed Liability") shall not be due
and payable except in accordance with a final and unappealable
judgment or decision of a court or arbitration tribunal of
competent jurisdiction, or a written agreement between the
indemnifying party and the indemnified party stipulating the amount
of the Admitted Liability (as defined below).
iv) In the event the indemnifying party shall not within thirty (30)
days after receipt of the Notice of Claim deliver to the
indemnified party a Dispute Statement identifying a Disputed
liability, then the amount of the claim described in the Notice of
Claim, or if a Dispute Statement is delivered, the portion thereof
not disputed as a Disputed Liability, shall be deemed to be
admitted (the "Admitted Liability") and shall, upon the incurring
of an actual Loss arising therefrom, immediately be due and
payable.
d) Settlement of Third Party Claims. If the indemnified party shall receive
notice of any Claim by a third party which is or may be subject to
indemnification (a "Third Party Claim"), the indemnified party shall
give the indemnifying party prompt written notice of such Third Party
Claim and shall permit the indemnifying party, at its option, to
participate in the defense of such Third Party Claim by counsel of its
own choice and at its expense. If, however, the indemnifying party
acknowledges in writing to the indemnified party the indemnifying
party's obligation to indemnify the indemnified party hereunder against
all Losses that may result from such Third Party Claim (subject to the
limitations set forth herein), then the indemnifying party shall be
entitled, at its option, to assume and control the defense of such Third
Party Claim at its expense and through counsel of its choice after
delivery of written notification.
i) In the event the indemnifying party exercises its right to
undertake the defense of any such Third Party Claim, the
indemnified party shall cooperate with the indemnifying party in
such defense and make available to the indemnifying party, at the
indemnifying party's expense, all witnesses, pertinent records,
materials and information in its possession or under its control
relating thereto as is reasonably required by the indemnifying
party. However, no such Third Party Claim may be settled by the
indemnifying party without the written consent of the indemnified
party, unless the settlement involves only the payment of money by
the indemnifying party. Similarly, no Third Party Claim shall be
settled by the indemnified party without the written consent of the
indemnifying party.
ii) In the event the indemnified party is, directly or indirectly,
conducting the defense against any such Third Party Claim, the
indemnifying party shall cooperate with the indemnified party in
such defense and make available to it all such witnesses, records,
materials and information in its possession or under its control
relating thereto as is reasonably required by the indemnified
party.
e) Limitations on Sellers Indemnification Notwithstanding anything
contained herein to the contrary, the Seller's indemnification hereunder
shall be subject to the following:
i) The Buyer shall be entitled to indemnification only if and to the
extent that the aggregate indemnifiable damages exceed an amount
greater than an amount which would, if known on the Closing Date
would have resulted in an adjustment to the Purchase Price as
determined pursuant to Section (1)(d).
7) MISCELLANEOUS
a) Conditions Precedent. This Agreement can be terminated by either party
upon written notice to the other party, in the event that any of the
following shall not have occurred on or before the Closing Date:
i) Buyer shall have obtained financing to replace Seller's current
inventory, receivables financing and/or other working capital needs
in amount of at least $500,000.00.
ii) Buyer shall have had an opportunity to conduct on-site due
diligence at Seller's facilities and from such due diligence Buyer
and Buyer's accountants, lenders and the like are satisfied as to
the financial condition of Seller as stated as of
b) Dispute Resolution.
i) Any and all disputes or differences pertaining to or arising out of
this Agreement or the breach, termination or invalidity thereof,
shall be finally and exclusively settled by binding arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association. The arbitration shall be held in Los
Angeles, California before one arbitrator appointed in accordance
with said rules. Judgment upon an award rendered may be entered in
any court having jurisdiction or application may be made to such
court for a judicial acceptance of the award and an order of
enforcement, as the case may be. The prevailing party in any such
proceeding shall be entitled to its actual attorneys' fees and all
other costs in connection with the arbitration and enforcement of
the arbiter's award.
ii) Either party may, without inconsistency with this Agreement, seek
from a court any interim or provisional relief that may be
necessary to protect the rights or property of that party, pending
the establishment of the arbitral tribunal or pending the arbitral
tribunal's determination of the merits of the controversy.
c) Expenses. Except as otherwise provided herein, all costs and expenses
incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
d) Notices. Any notices required or permitted to be given hereunder shall
be in writing and shall be deemed delivered (i) two (2) days after being
deposited in the mails, (ii) one day after being, deposited with an
express overnight courier service or (iii) the same day notice is sent
by electronic facsimile transmission if such transmission is made by
5:00 p.m. local time or one day after being sent by facsimile
transmission if such transmission is made after 5:00 p.m., addressed:
if to Seller, to:
Western Technologies Group, LLC
---------------------
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With a copies to:
Xxx Xxxxxxx
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if to Buyer, to:
Xxxxxxxxx.xxx, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxxxx, XX 00000
Phone: 000.000.0000
Fax: 000.000.0000.
e) Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that neither party may
assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of the other party hereto.
f) Governing Law. This Agreement shall be construed in accordance with and
governed by the law of the State of California.
g) Counterparts: Effectiveness. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
h) Captions. The captions herein are included for convenience of reference
only and shall be ignored in the construction or interpretation hereof.
i) Entire Agreement. This Agreement, constitutes the entire agreement
between the parties with respect to the subject matter hereof and
supersedes all prior agreements, understandings and negotiations, both
written and oral, between the parties with respect to the subject matter
of this Agreement No representation, inducement, promise, understanding,
condition or warranty not set forth herein has been made or relied upon
by either party hereto. Neither this Agreement nor any provision hereof
is intended to confer upon any Person other than the parties hereto any
rights or remedies hereunder.
In witness whereof, the parties hereto here caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
SELLER: BUYER:
WESTERN TECHNOLOGIES GROUP, LLC XXXXXXXXX.XXX, INC.
By: __________________________ By: __________________________
Name: ________________________ Name: ________________________
Title: _________________________ Title: ________________________
EXHIBIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT
Assignment and Assumption Agreement, dated as of ____________, 2000,
between Western Technologies Group LLC, a California limited liability
corporation ("Seller"), and Xxxxxxxxx.xxx, Inc. ("Buyer"), a Nevada corporation.
WITNESSETH
Whereas, Buyer and Seller have concurrently herewith consummated the
purchase by Buyer of the Purchased Assets pursuant to the terms and conditions
of the Asset Purchase Agreement dated _____________, between Buyer and Seller,
(the "Asset Purchase Agreement"); capitalized terms
not otherwise defined herein shall have the meaning given them in the Asset
Purchase Agreement;
Whereas, pursuant to the Asset Purchase Agreement, Buyer has agreed to
purchase the Purchased Assets and to assume certain liabilities and obligations
of Seller with respect to the Purchased Assets;
Now, therefore, in consideration of the sale and purchase of the
Purchased Assets and in accordance with the terms of the Asset Purchase
Agreement, Buyer and Seller agree as follows:
a) Seller does hereby sell, transfer, assign and deliver to Buyer all of
the right, title and interest of Seller in, to and under the Purchased
Assets.
b) Buyer does hereby accept and assume all the right, title and interest of
Seller in, to and under all of the Purchased Assets and the Lease and
Buyer assumes and agrees to pay, perform and discharge promptly and
fully when due all of the Assumed Liabilities.
This Agreement shall be construed in accordance with and governed by the
laws of the State of California, without regard to the conflicts of law rules of
such state.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
In witness whereof, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
SELLER: BUYER:
WESTERN TECHNOLOGIES GROUP, LLC XXXXXXXXX.XXX, INC.
By: __________________________ By: __________________________
Name: ________________________ Name: ________________________
Title: _________________________ Title: ________________________
SCHEDULE 1.1
PURCHASED ASSET SCHEDULE
The Purchased Assets shall consist of, as the same may exist on the Closing
Date, all:
SCHEDULE 1.2
ASSUMED LIABILITIES
The following shall comprise the Assumed Liabilities:
XXXX OF SALE OF BUSINESS
This Xxxx of Sale of Business is delivered pursuant to that certain Asset
Purchase Agreement (the "Agreement"), dated ___________, 2000, between Western
Technologies Group, LLC (the "Seller") and Xxxxxxxxx.xxx, Inc. (the "Buyer"),
providing for the purchase by Buyer of substantially all of the assets of
Seller. All capitalized terms used herein shall have the meanings set forth in
the Agreement.
For value received, Seller hereby sells, assigns and transfers to Buyer the
following assets of Seller pertaining to or used in the Business, wherever
located, whether known or unknown, and whether or not on the books and records
of Seller:
(i) office equipment of the Seller including, without limitation, Seller's
telephone system, computer systems, tools and supplies of Seller's repair
department, advertising signs, catalogs and sales literature; (ii) leasehold
improvements not deemed to be the property of Seller's landlord including,
without limitations, trade fixtures; (iii) rights to use the trade names
"Western Technologies Group" and "WesTech" for such period of time as Buyer
deems necessary; (iv) all goodwill associates with the Business and the
Purchased Asset together with the right to represent to third parties that Buyer
is the successor to the Business; and (v) all other assets on the attached
Schedule 1.1 "Purchased Asset Schedule".
In witness whereof, the undersigned has executed this Xxxx of Sale of
Business in Los Angeles, California, effective as of _____________, 2000.
WESTERN TECHNOLOGIES GROUP, LLC
By: ____________________________________
Name: __________________________________
Title: _________________________________
XXXXXXXXX.XXX, INC.
OFFICERS CERTIFICATE
I, Xxx X. Xxxxxxxx, hereby certify (i) that I am the Secretary of
Xxxxxxxxx.xxx, Inc. (the "Buyer"), (ii) that I am authorized to deliver this
Officer's Certificate, and (iii) that the Buyer has authorized all corporate
action necessary on its part to authorized the transactions contemplated by the
Asset Purchase Agreement, dated _________, 2000, between Western Technologies,
Inc. and Buyer.
Dated: _____________, 2000 XXXXXXXXX.XXX, INC.
By: _________________________________
Name: Xxx X. Xxxxxxxx
Title: Secretary
WESTERN TECHNOLOGIES GROUP, LLC
OFFICERS CERTIFICATE
I, _________________, hereby certify (i) that I am the Secretary of
Western Technologies Group, LLC (the "Seller"), (ii) that I am authorized to
deliver this Officer's Certificate, and (iii) that the Buyer has authorized all
corporate action necessary on its part to authorized the transactions
contemplated by the Asset Purchase Agreement, dated _________, 2000, between
Seller and Xxxxxxxxx.xxx, Inc..
Dated: _____________, 2000 WESTERN TECHNOLOGIES GROUP, LLC
By:
Name: ______________________________
Title: Secretary
______________, 2000
Western Technologies Group, LLC
Re: Counsel's Opinion Letter
Dear Xx. Xxxxxxx:
In my capacity as Senior Vice President and General Counsel to
Xxxxxxxxx.xxx, Inc. (the "Corporation") I have acted counsel to the Corporation
in connection with that certain Asset Purchase Agreement dated ______________,
2000 by and between the Corporation and Western Technologies Group, LLC (the
"Purchase Agreement").
I have made such a factual and legal investigations as I deemed
necessary or relevant in connection with the opinions herein expressed.
Based on the following, I am of the opinion that:
1) The Corporation is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation, with full
power and authority to own its properties and to engage in their business as
presently conducted or contemplated, and is duly qualified and in good
standing as a foreign corporation under the laws of each jurisdiction in
which it is authorized to do business except where such failure to qualify
does not have a material adverse effect on the business or assets of the
Corporation. All of the outstanding shares of capital stock of the
Corporation has been duly authorized and validly issued and are fully paid
and non-assessable and were not issued in violation of the preemptive rights
of any person.
2) Except as set forth herein or in any schedule or exhibit attached to the
Purchase Agreement, I do not know or have any reasonable grounds to know of
any litigation, proceeding, or government investigation pending against or
related to the Corporation, its properties or business.
3) All proceedings required by law or by the provisions of the Purchase
Agreement to be taken by the Corporation and its shareholders in connection
with the transactions provided for in the Purchase Agreement have been duly
and valuably taken.
4) Neither the execution and delivery of the Purchase Agreement nor the
consummation of the transaction contemplated thereby (1) violates any
provision of the Certificate of Incorporation or Bylaws (or other governing
instrument) the Corporation; (2) breaches or constitutes a default (or an
event) that, with notice or lapse of time or both, would constitute a
default under any agreement of the Corporation with any other person to the
extent that any such default would constitute a material adverse effect upon
the Corporation; or (3) violates any statute, law, regulation, or rule or
order applicable to the Corporation.
5) No consent, approval or authorization of, or declaration, filing, or
registration with, any state or federal authorities is required in
connection with the execution, delivery and performance of the Purchase
Agreement or the consummation of the transaction contemplated thereby.
Very truly yours,
/s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
Senior Vice President & General
Counsel
