ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement, dated
April 7, 2010 (this “Agreement”) is entered into by and between Call
Xxxxxxxxxx.xxx Inc., a New York corporation (the “Buyer”), and Xxxxxx Xxxxxx
Xxxx, an individual (the “Seller”).
RECITALS:
WHEREAS, the Seller is the
owner and developer of software related to “eLearning” (the “Software”) and
certain intellectual property rights associated with the Software;
WHEREAS, Seller desires to
sell all of its
assets associated with the Software to the Buyer and the Buyer desires to
purchase such assets from the Seller, all on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in
consideration of the mutual premises and agreements contained herein, and for
other good and valuable consideration, the adequacy and receipt of which is
hereby acknowledged by each of the parties to this Agreement, the parties agree
as follows:
ARTICLE
I
Sale
and Purchase of Assets
1.1 Sale and Purchase of
Assets. At the Closing, upon the terms and subject to the
conditions set forth in this Agreement, the Seller shall sell, convey, assign,
transfer and deliver to Buyer (or Buyer’s authorized designee), and the Buyer
shall purchase, acquire, accept and take possession of, all of the Seller’s
rights with respect to any of the assets described below (collectively the
“Acquired Assets”), and any variations or deviations thereof, in
perpetuity:
(a) Software-Related
Property. For purposes of this Agreement, the term “Software”
shall include, but shall not be limited to, all object code, verified source
code (all such codes are to be delivered on a compact disc), and any other
documentation thereof as may be reasonably requested by the Buyer, whether in
machine-readable form, programming language or any other language or symbols and
whether stored, encoded, recorded or written on disk, or other media of any
nature and all Intellectual Property therein.
(b) Intellectual Property, Trade Names
and Similar Rights. All intellectual property rights, in
common law or otherwise, associated with the Acquired Assets (other than such
rights that are contemplated in Section 1.2 below), including, but not limited
to, patents, patent applications, patent rights, trademarks, trademark
applications, trade names, service marks, service xxxx applications, copyrights,
copyright registrations, know-how, franchises, licenses, trade secrets,
proprietary processes, computer programs and other computer software, technology
and formulae, including any and all rights of the Seller with respect thereto as
a licensee (collectively, the “Intellectual Property
Rights”).
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1.2 No Other Assets Sold; Excluded
Assets. The Acquired Assets are the only assets, properties or
rights being conveyed, sold, transferred, assigned and delivered pursuant to
this Agreement. The Buyer’s rights and title to the Acquired Assets
shall specifically exclude the rights from end users of the Software who have
previously purchased the Software from the Seller for their own business
purposes and not for resale.
1.3 Non-Assumption of
Liabilities. The Acquired Assets will be sold, conveyed,
transferred and assigned to the Buyer on the Closing Date free and clear of all
mortgages, charges, pledges, liens, security interests, claims encumbrances or
restrictions of any kind or nature (collectively, the “Liens”). The
Buyer shall not assume, accept or undertake any obligations, duties, debts or
liabilities of the Seller of any kind whatsoever pursuant to this Agreement or
otherwise.
1.4 Consideration for the Acquired
Assets. In consideration of the transfer of the Acquired Assets from the
Seller to the Buyer and the Seller’s representations, warranties and agreements
hereunder, the Buyer shall issue to the Seller the following:
(a) 2,750,000
restricted shares (each, a “Share”) of the Compliance Systems Corporation common
stock,; and
(b) 500,000
warrants (each, a “Warrant”) to purchase shares (each, a “Warrant Share”) of
Compliance Systems Corporation Common Stock at a per-Warrant Share exercise
price of $0.05. The terms, conditions, rights and privileges of the
Warrants are reflected in the warrant certificate, substantially in the form
attached hereto as Exhibit A (the
“Warrant Certificate”).
1.5 Closing. Subject to
the terms and conditions contained in this Agreement, the transfer of the
Acquired Assets by Seller to Buyer (the “Closing”) will take place on the date
hereof at the offices of Compliance Systems Corporation, or at such other time,
such other place or in such other manner as the parties may mutually
agree. The actual date on which the Closing occurs is herein referred
to as the “Closing Date.”
(a) Buyer’s Obligations at
Closing. At the Closing, the Buyer shall deliver to Seller the
certificate or certificates evidencing the Shares, registered in the Seller’s
name (or in the same of Seller’s authorized designee), the Warrant Certificate,
and any other good and sufficient instruments of conveyance and transfer as
shall be necessary to evidence Buyer's purchase of the Acquired
Assets.
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(b) Seller’s Obligations at
Closing. At the Closing, the Seller shall execute and deliver
such assignments, bills of sale, endorsements, notices, assurances and such
other instruments of conveyance and transfer as counsel for Buyer shall
reasonably request and as shall be effective to vest in Buyer good and
marketable title to all of the Acquired Assets. Simultaneously with
such delivery, Seller shall take all such steps as may be necessary to put Buyer
in actual possession and control of the Acquired Assets. Seller
further agrees that it will at any time, and from time to time after the Closing
Date, upon the reasonable request of Buyer and without additional consideration,
do, execute, acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered, all such further acts, assignments, transfers,
conveyances, powers of attorney and assurances as may be required in conformity
with this Agreement for the better assigning, transferring, granting, conveying,
assuring and confirming to Buyer or to its successors and assigns, or for aiding
and assisting in collecting and reducing to possession, any or all of the
Acquired Assets or other properties sold, conveyed, assigned, transferred and
delivered at the Closing to Buyer as provided herein.
ARTICLE
II
Representations
and Warranties of the Seller
In order to induce the Buyer to enter
into this Agreement, and in consideration of the delivery of the Shares by the
Buyer to the Seller for the Acquired Assets as set forth in Section 1.4 above,
the Seller hereby represents and warrants as follows:
2.1 Proprietary
Rights.
(a) Schedule
2.1(a), attached hereto, is a complete and correct list and brief
description of all of the Acquired Assets and all materials related thereto as
contemplated in Section 1.1 above (including, but not limited to, any 3rd party
rights to use such Acquired Assets). The Seller: (i) owns all right,
title and interest in each item of the Acquired Assets, free from any
contractual or other restrictions, and has the full right to use all of the
Acquired Assets as used or required to conduct the Seller’s business as
currently conducted and (ii) has not granted to any other person or entity any
interest in or right to exploit any such Acquired Asset(s), as licensee or
otherwise (except as disclosed on Schedule 3 hereto). The Seller
represents and warrants that effective as of the Closing Date, the Company
License and all of such other agreements that Seller has entered into with third
party persons or entities (as licensee) with respect to the Acquired Assets
(including, but not limited to, the grant of any license to use, in any manner,
the Software and/or the Acquired Assets) shall be terminated and the Buyer shall
have no obligations of any kind with respect to such third party persons or
entities, provided that nothing herein shall serve to terminate the agreements
of customers as contemplated in Section 1.2 above.
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(b) None
of the Acquired Assets infringes upon or violated the rights of any person or
entity, including any rights under the laws of copyright, U.S. patent, trademark
and trade secret, and no claim alleging any such infringement or violation has
been made to the Seller as of the Closing Date. There are no sums
owing or to become due to any person or entity in respect of the Seller’s
ownership, use or exploitation of such Acquired Assets. The Seller is
not aware, to the best of its knowledge, of any infringement by any other person
or entity of the Software or the Acquired Assets. The Software and
Acquired Assets are fully transferable to the Buyer in the manner contemplated
in this Agreement.
(c) With
respect to the Acquired Assets:
(i)
The Seller maintains machine-readable master-reproducible copies,
reasonably complete technical documentation for the most current release
thereof;
(ii)
In each case, the machine-readable copy substantially conforms to
the corresponding source code listing;
(iii)
Such Software is written in the language set forth on Schedule
2.1(a);
(iv)
Such Software can be maintained and modified by
reasonably competent programmers familiar with such language, hardware, and
operating systems; and
(v)
In each case, the Software operates substantially in
accordance with the documentation therefore without operating defects of a
material nature.
(d) Except
as set forth herein and/or on the accompanying disclosure schedules, the Seller
has not granted to any other person or entity any interest in the Acquired
Assets, as licensee, sublicense or otherwise.
(e) None
of the processes, methodologies, trade secrets, research and development results
and other know-how included in the Intellectual Property Rights, the value of
which is contingent upon the maintenance and the confidentiality thereof, has
been disclosed by the Seller to any other person or entity, other than the
Seller’s employees, contractors, customers, representatives and agents of the
Seller who are parties to customary confidentiality and non-disclosure
agreements with the Seller.
(f) The
Software does not contain any copy protection, computer virus, malicious code,
or destructive feature.
2.2 Authorization; Binding Effect.
This Agreement and the consummation of the transactions contemplated
hereby constitute the legal, valid and binding obligation of Seller enforceable
against each in accordance with its terms.
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2.3 No Authorization
Required. No consent, approval, authorization or order of, or
qualification with, any court, regulatory authority or governmental body or any
third party is required for the consummation by Seller of the transactions
contemplated by this Agreement.
2.4 Effect of
Agreement. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby by Seller
will not, with or without the giving of notice or the lapse of time or both, (a)
violate any provision of law, statute, rule or regulation to which Seller is
subject; (b) violate any judgment, order, writ or decree of any court applicable
to Seller; (c) have any effect on any of the permits, licenses, orders or
approvals held or utilized by Seller in the conduct of its business; or (d)
result in the breach of, or conflict with, any term, covenant, condition or
provision of, result in the modification or termination of, constitute a default
under, or result in the creation or imposition of any lien, security interest,
charge or encumbrance upon any of the properties or assets of Seller pursuant to
any commitment, lease, contract or other agreement or instrument to which Seller
is a party or by which Seller, or any of its or his respective assets or
property is or may be bound or affected or from which Seller derives substantial
benefits.
2.5 Absence of Undisclosed
Liabilities. Except as and to the extent reflected in the
Financial Statements, Seller has no material (individually or in the aggregate)
liabilities (secured or unsecured and whether accrued, absolute, direct,
indirect, contingent or otherwise).
2.6 Title to Assets, Absence of Liens,
Condition of Assets. Except as disclosed in Schedule
2.6, Seller has good and marketable title to all of the Acquired Assets
owned by it, free and clear of all Liens, and the instruments of conveyance, and
other endorsements and instruments of transfer and assignment contemplated by
this Agreement are sufficient to transfer good and marketable title to the
Acquired Assets owned by it to Buyer, free and clear of all
Liens. Seller further warrants that all items listed in Schedule
2.6 shall terminate as of the Closing Date. The Acquired
Assets are in good and usable condition, ordinary wear and tear excepted, are in
good repair and have been maintained in accordance with good business and
maintenance practice.
2.7 Litigation. There
are no legal proceedings pending or threatened against Seller or affecting any
of the Acquired Assets. The Seller is not subject to any judgment,
order or decree of any government authority with respect to or affecting the
Acquired Assets.
2.8 Tax Matters. Seller
has duly filed all federal, state, county and local tax returns required to be
filed, including those with respect to income, withholding, Social Security,
unemployment, franchise, excise, sales and use taxes, and has paid in full all
taxes, interest, penalties, assessments or deficiencies shown to be due on such
returns and reports or claimed to be due on such tax returns and
reports. No claims for additional taxes are pending or threatened
with respect thereto for any prior fiscal year which would affect the Acquired
Assets or the transfer thereof to Buyer.
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2.9 Intellectual
Property. Schedule
2.9 contains a true, complete and correct list of: (i) all
patent registrations and all pending applications for patent registrations which
Seller owns or is using in connection which the Acquired Assets or the use of
which is necessary for the conduct of the business of the Seller as currently
being conducted, (ii) all trademarks, service marks, and trade names, and all
registrations and pending applications relating thereto, which Seller owns or is
using in connection with the Acquired Assets or the use of which is necessary
for the conduct of the business of the Seller as currently being conducted, and
(iii) all copyrights and all copyright registrations and applications relating
thereto which Seller owns or is using in connection with the Acquired Assets or
the use of which is necessary for the conduct of the business. Except
as disclosed in Schedule
2.9, (i) Seller owns all right, title and interest in and to the
Intellectual Property Rights; (ii) all of the Intellectual Property Rights are
in good standing, valid and subsisting and in full force and effect in
accordance with their terms; (iii) no impediment exists to Seller’s exclusive
ownership, use and validity of any of the Intellectual Property Rights owned by
it; (iv) no other person, corporation, partnership, joint venture, organization,
association or entity owns any interest in or uses in any way any of the
Intellectual Property Rights; (v) none of the Intellectual Property Rights are
involved in, or is the subject of, any pending or threatened infringement,
interference, opposition, or similar action, suit or proceeding or has otherwise
been challenged in any way; and (vi) neither the ownership or operation of the
Acquired Assets by Seller, nor the marketing, sale or distribution by Seller of
the Seller’s products, nor the marketing, sale or performance by Seller of the
Seller’s services, nor the use of any product of the Seller for the purposes for
which sold, infringes upon or conflicts with any patent, trademark, trade name,
service xxxx, copyright, privilege, franchise, immunity or right of any other
person, firm, corporation or entity. Schedule
2.9 contains a list of all agreements, contracts and commitments to which
Seller is a party (including, without limitation, licenses and other such
agreements), whether written or oral, which affect any of the Intellectual
Property Rights. Except as disclosed in Schedule
2.9, such licenses and agreements are valid, binding and enforceable in
accordance with their respective terms for the periods stated therein, and there
is no existing default or event of default thereunder or any event which with
notice and/or lapse of time would constitute a default.
2.10 Compliance with
Laws. The Seller has operated its business so as to comply
with all applicable domestic and foreign, federal, state and local statutes,
laws, ordinances, codes, governmental rules and regulations (including, without
limitation, those relating to occupational safety and health, privacy,
protection of minors, foreign and corrupt practices, antitrust, hiring, wages,
hours, employee benefit plans and programs, copyright, collective bargaining,
exchange control, environmental conditions, securities licensing or
registrations or the payment of withholding, social security and other
taxes). The Seller is not in violation of any foreign or domestic
statutes, laws, ordinances, codes, governmental rules or regulations, or any
judgment, order or decree (federal, state, local or foreign), except where such
violation would not have a material adverse effect on the value of the Acquired
Assets. No licenses, permits, franchises or other governmental authorizations
are necessary for the ownership or operation of the Acquired Assets or conduct
of the Seller’s business as presently conducted.
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2.11 Brokers and
Finders. No broker or finder is entitled to any brokerage
fees, commissions or finders fees in connection with the transactions
contemplated by this Agreement.
2.12 Disclosure and
Reliance. Seller has disclosed to Buyer all facts material to
the transactions contemplated in this Agreement. None of the
information, documents, certificates or instruments furnished or to be furnished
by Seller or any of its representatives to Buyer or any of its representatives
in connection with this Agreement or otherwise in connection with the
transactions contemplated thereby or hereby are false or misleading in any
material respect or contain any material misstatement of fact or omit to state
any material facts required to be stated to make the statements therein not
misleading. The representations and warranties made herein are made
by Seller with the knowledge and expectation that Buyer is placing reliance
thereon.
ARTICLE
III
Representations
and Warranties of the Buyer
Buyer hereby represents and warrants to
the Seller as follows:
3.1 Organization, Good Standing and
Corporate Power. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada, and
has all requisite corporate power and authority to own, operate and lease its
properties, and to carry on its business as now being conducted and to enter
into this Agreement and perform its obligations hereunder.
3.2 Authorization; Binding Effect.
The execution, delivery and performance of this Agreement by Buyer and
the consummation by it of the transactions contemplated hereby, have been
approved by all necessary corporate action on the part of Buyer and this
Agreement constitutes the legal, valid and binding obligation of Buyer
enforceable in accordance with its terms.
3.3 No Authorization
Required. No consent, approval, authorization or order of, or
qualification with, any court, regulatory authority or governmental body or any
third party is required for the consummation by Buyer of the transactions
contemplated by this Agreement.
3.4 Shares. The Shares
to be issued to the Seller pursuant to this Agreement, when issued, will be duly
authorized, validly issued, fully paid and nonassessable and will not have been
issued in violation of any subscriptive or preemptive rights.
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ARTICLE
IV
Post-Closing
Covenants
4.1 Further
Assurances. From and after the Closing Date, each party to
this Agreement shall, at any time and from time to time, make, execute and
deliver, or cause to be made, executed and delivered, such assignments, deeds,
bills of sale, drafts, checks, returns, filings and other instruments,
agreements, consents and assurances, and take or cause to be taken all such
actions as counsel for the other party may reasonably request to effectuate the
transaction contemplated by this Agreement. The Seller shall cause
its employees to cooperate reasonably with the Buyer as needed from and after
the Closing Date to facilitate the transfer of the Acquired Assets and shall
make such employees reasonably available to answer questions relating to the
Software, the Acquired Assets or the Intellectual Property Rights Being
Transferred.
4.2 Indemnification.
(a) Indemnification of Buyer by
Seller. Seller shall, and hereby agrees to indemnify and hold
Buyer harmless against and in respect of:
(i) All
debts, liability and obligations of Seller of any nature, whether accrued,
absolute, contingent, or known or unknown on the date hereof, existing or
arising on or resulting form events which occurred or failed to occur on or
before the date hereof, to the extent not specifically assumed by Buyer
hereunder;
(ii) Any
liability, loss, claim, damage or deficiency resulting directly or indirectly
from any misrepresentation, breach of warranty or nonfulfillment of any
agreement on the part of Seller under this Agreement, or from any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished to Buyer hereunder;
(iii) All
other actions, suits, proceedings, demands, assessments, adjustments, costs and
expenses incident to the foregoing, including, without limitation, reasonable
attorneys' fees and other out-of-pocket expenses; and
(b) Indemnification of Seller by Buyer.
Buyer shall, and hereby agrees to, indemnify and hold Seller harmless
against and in respect of any liability, loss,
claim, damage or deficiency resulting directly or indirectly from any
misrepresentation, breach of warranty or non-fulfillment of any agreement on the
part of Buyer under this Agreement, or any misrepresentation in or omission from
any certificate or other instrument furnished or to be furnished to Seller
hereunder.
(c) Indemnification
Procedure.
(i)
For the purposes of this Section 4.2, the term “Indemnitee”
shall refer to the person indemnified, or entitled, or claiming to be entitled
to be indemnified, pursuant to the provisions of Section 4.2(a) or Section
4.2(b), as the case may be, and the term “Indemnitor” shall refer to the person
having the obligation to indemnify pursuant to such provisions.
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(ii) Notice of
Claims. The Indemnitee shall be solely responsible for
determining whether to pursue against the Indemnitor any claim for which
indemnification is or may be available under this Section 8. In the
event the Indemnitee determines to pursue any such claim for indemnification,
the Indemnitee agrees to give the Indemnitor notice of any and all claims
asserted against the Indemnitee for which indemnification is or may be sought
under this Section 8. Such notice shall be given within a reasonable
time after the Indemnitee becomes aware of such claim. Failure to
give such notice shall not abrogate or diminish the Indemnitor’s obligation
under this Section 8 if the Indemnitor has or receives knowledge of the
existence of any such claim by any other means or if such failure does not
prejudice the Indemnitor’s ability to defend such claim.
4.3 Restrictive
Covenants.
(a) Non-Disclosure. The
Seller, the Company and each of the Company’s principal owners, directors,
officers, shareholders, managers, members, employees, contractors, and/or agents
or any such other entities with which any of the aforementioned individuals may
be involved in any similar capacity (collectively, “Affiliates”), in their
individual capacity, recognize and acknowledge that the business and financial
records, trade secrets, private processes, data base, products and confidential
methods of operations of the Buyer as they may exist from time to time, and the
identity of and information about customers, referral sources, and vendors with
respect to the Acquired Assets (collectively, the "Confidential Information"),
are valuable, special and unique assets of the Buyer. The Seller
therefore agrees that neither it, nor any of its Affiliates, will, at any time
after the Closing Date, disclose any of the Confidential Information to any
person, firm, corporation, limited liability company, partnership, association
or other entity for any reason or purpose whatsoever, nor shall it/he make use
of the Confidential Information for its/his own purposes or for the benefit of
any person, firm, corporation, limited liability company, partnership or other
entity. If the Seller and/or any Affiliates are required under a
final judicial or governmental order to disclose any Confidential Information,
then the Seller and/or the Affiliates may disclose the Confidential Information
provided that the Seller and/or the Affiliates give the Buyer sufficient prior
notice to contest such order.
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(b) Non-Competition. During
the period beginning on the Closing Date (except as may be required pursuant to
Section 4.4 below) and for two (2) years after the Closing Date (the
“Non-Compete Period”), neither the Seller nor any of its Affiliates shall,
directly or indirectly, own, manage, control, participate in, consult with,
render services for, do business with, or in any manner engage in or represent
any business in [New York
State] that is competitive with the Buyer or any business that is similar
to the Software and/or the Acquired Assets. Nothing herein shall
prohibit either the Seller or any Affiliate of the Seller from being a passive
owner of not more than three percent (3%) of the outstanding stock of any class
of a corporation which is publicly traded, so long as such Seller or Affiliate
has no active participation in the business of such corporation.
(c) During
the Non-Compete Period, the Seller and the Affiliates shall not, directly or
indirectly through another person or entity (i) induce or attempt to induce any
employee of the Buyer to leave the employ of the Buyer, do business with, or
engage in any conduct or communications with any employee of the Buyer that
directly or indirectly causes such employee to terminate their employment
relationship with the Buyer; (ii) hire, or do business with, any person who was
an employee of the Buyer until one (1) year after such individual’s employment
relationship with the Buyer has been terminated; or (iii) induce or attempt to
induce, or do business with, any customer, supplier, vendor, licensee or other
business relation of the Buyer to cease doing business with the Buyer, or in any
way interfere with the relationship between any such customer, supplier, vendor,
licensee or business relation, on the one hand, and the Buyer on the other
hand. For purposes of this Section 4.3 the term “Buyer” shall include
the Company and all Affiliates of the Buyer.
(d) The
existence of any claim or cause of action by the Seller against the Buyer shall
not constitute a defense to the enforcement by the Buyer of the covenants
contained in this Section 4.3, but such claim or cause of action shall be
litigated separately.
(e) The
Seller acknowledges that the restrictions specified under this Section 4.3 are
reasonable, in view of the nature of the business in which the Buyer is
engaged. The Seller further acknowledges that his services, if used
by a competitor, could cause significant harm to the
Buyer. Therefore, the Seller consents and agrees that if [it/he] violates or threatens
to violate any of the provisions contained in this Section 4.3, the Buyer shall,
in addition to such other remedies as it may have at law or in equity, be
entitled to an injunction to be issued (without posting any bond or other
undertaking) by a court or arbitrator of competent jurisdiction, restraining and
prohibiting the Seller from committing or continuing any violation of such
provisions.
(f) Notwithstanding
anything contained in this Section 4.3 to the contrary, if the restrictions
specified under this Section 4.3 should be determined to be unreasonable in any
judicial proceeding, then the period of time, scope and area of the restriction
shall be modified by a court so that this Agreement may be enforced to the
maximum extent in such area, scope and during such period of time as shall be
determined to be permitted by law.
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4.4 Cooperation. After the
Closing, the Seller shall (a) cooperate with the Buyer in its efforts to
continue and maintain for the benefit of the Buyer those business relationships
of Seller existing prior to the Closing and relating to the business of Seller,
including, but not limited to, all relationship utilized in connection with the
Acquired Assets; (b) refer to the Buyer all inquiries relating to such business
and the Acquired Assets; and (c) promptly deliver to the Buyer any cash or other
property that Seller receives and that properly belongs to Buyer or its
subsidiaries, including any payments with respect to receivables, and interest
payable thereon. Neither the Seller, the Company nor any of its
officers, employees, agents or stockholders shall take any action that would
tend to diminish the value of the Buyer or its subsidiaries after the Closing or
that would interfere with the business of the Buyer to be engaged in after the
Closing, including disparaging the name or business of the Buyer or its
subsidiaries.
ARTICLE
V
Miscellaneous
5.1 Public
Announcements. All public announcements relating to this
Agreement or the transactions contemplated hereby shall be made at such time and
in such manner as the parties hereto shall mutually agree.
5.2 Survival of Representations and
Warranties. Notwithstanding any right of any party hereto to
investigate the affairs of any of the parties hereto and notwithstanding any
knowledge of facts determined or determinable by any party hereto pursuant to
such investigation or right of investigation or otherwise acquired or learned by
any of the parties hereto, each of the parties shall have the right to rely
fully upon the representations, warranties, covenants and agreements of the
other party hereto contained in this Agreement and to pursue all rights and
remedies in connection therewith. Except as specifically set forth
herein, all representations, warranties, covenants and agreements made herein
shall survive the Closing and shall expire two years after the Closing
Date.
5.3 Notices. Notices or
other communications required or permitted to be given hereunder shall be in
writing and shall be deemed duly given if (a) personally delivered, against
written receipt therefor, (b) forwarded by pre-paid certified or registered
mail, return receipt requested, or (c) forwarded via a nationally recognized
overnight courier service (e.g., Federal Express, USPS
Express Mail, UPS, DHL, etc.) to the parties to which such notice or other
communication is required by this Agreement to be given, at the address of such
parties as follows:
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To
the Buyer:
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Xxxx
Xxxxxxxxx, President
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Compliance
Systems Corporation
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c/o
Call Xxxxxxxxxx.xxx Inc.
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00
Xxxx Xxxxxx
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Xxxxx
000
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Xxxx
Xxxx, Xxx Xxxx 00000
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with
a copy to:
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Xxxxxx
X. X’Xxxxxx, Esq.
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Moritt
Xxxx Hamroff & Xxxxxxxx LLP
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000
Xxxxxx Xxxx Xxxxx - Xxxxx 000
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Xxxxxx
Xxxx, Xxx Xxxx 00000
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To
the Seller:
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Xxxxxx
Xxxxxx Xxxx
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0000
00xx
Xxxxxx
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Xxxxxxx,
Xxx Xxxx 00000
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with
a copy to:
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Attn:
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or, in
the case of any of the parties to this Agreement, at such other address as such
party shall furnish to each of the other parties in accordance with this Section
5.3. Notices and other communications delivered personally shall be
deemed given as of the date of actual receipt; mailed notices and other
communications shall be deemed given as of the date three business days
following such mailing; and notices and other communications sent via overnight
courier service shall be deemed given as of the date one business day after
delivery to such courier service.
5.4 Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the Buyer, on the one hand, and the Seller, on the other hand, may
not assign their respective obligations hereunder without the prior written
consent of the other party. Any assignment in contravention of this
provision shall be void. No assignment shall release the Seller or
the Buyer from any obligation or liability under this Agreement.
5.5 Entire Agreement; Amendments;
Attachments. This Agreement, and all Schedules hereto, and all
instruments to be delivered by the parties pursuant hereto represent the entire
understanding and agreement among the parties hereto with respect to the subject
matter hereof and supersede all prior oral and written and all contemporaneous
oral negotiations, commitments and understandings between such parties. If the provisions of
any Schedule to this Agreement are inconsistent with the provisions of this
Agreement, the provisions of the Agreement shall prevail. The
Schedules attached hereto or to be attached hereafter are hereby incorporated as
integral parts of this Agreement.
5.6 Severability. Any
provision of this Agreement which is invalid, illegal or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability, without affecting in any way
the remaining provisions hereof in such jurisdiction or rendering that or any
other provision of this Agreement invalid, illegal or unenforceable in any other
jurisdiction.
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5.7 Expenses. Except as
otherwise expressly provided herein, the Buyer will pay all fees and expenses
(including, without limitation, legal and accounting fees and expenses) incurred
by it in connection with the transactions contemplated hereby and the Seller
will pay all fees and expenses incurred by it in connection with the
transactions contemplated hereby.
5.8 Governing Law. This
Agreement and the rights and obligations of the parties hereunder shall be
interpreted, construed, and enforced in accordance with the laws of the State of
New York, without regard to its choice and/or conflict of laws
provisions. Any legal action resulting from, arising under, out of or
in connection with, directly or indirectly, this Agreement shall be commenced
exclusively in the Supreme Court, State of New York, County of Nassau or the
U.S. District Court for the Eastern District of New York. All parties
to this Agreement hereby submit themselves to the jurisdiction of any such
court, and agree that service of process on them in any such action, suit or
proceeding may be affected by the means by which notices are to be given under
this Agreement.
5.9 Section Headings. The
section headings in this Agreement are for the convenience of the parties and in
no way alter, modify, amend, limit or restrict the contractual obligations of
the parties.
5.10 Counterparts. 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 be one and the same
document.
5.11 Construction. The
language used in this Agreement shall be deemed to be the language chosen by the
parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party. Any reference to any
federal, state, local or foreign statute or law shall be deemed also to refer to
all rules and regulations promulgated thereunder, unless the context requires
otherwise.
5.12 No Third Party
Beneficiaries. This Agreement shall not confer any rights or
remedies upon any person other than the parties and their respective successors
and permitted assigns.
5.13 Specific
Performance. Each of the parties acknowledges and agrees that
one or more of the other parties would be damaged irreparably in the event any
of the provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each of the
parties agrees that the other party shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and the terms and provisions hereof in any
action instituted in any court of the United States or any state thereof having
jurisdiction over the parties and the matter, in addition to any other remedy to
which it may be entitled, at law or in equity.
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IN WITNESS WHEREOF, this
Agreement has been duly executed by the parties hereto as of and on the date
first above written.
BUYER:
Call
Xxxxxxxxxx.xxx Inc.
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By:
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[s] Xxxx Xxxxxxxxx
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Xxxx
Xxxxxxxxx, President
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SELLER:
Xxxxxx
Xxxxxx Xxxx
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[s] Xxxxxx Xxxxxx
Xxxx
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