EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
by and between
MUSLIM MEDIA NETWORK, INC.
and
AN - NAS, LLC
Dated as of February 15, 2005
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "AGREEMENT") is made and entered into
effective as of the 15th day of February, 2005, by and between MUSLIM MEDIA
NETWORK, INC., a Michigan corporation, having its principal place of business
located at 00000 Xxxx Xxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (hereinafter
referred to as the "BUYER") and AN - NAS, LLC, a Michigan limited liability
company, having its principal place of business located at 00000 Xxxx Xxxxx Xxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxx (hereinafter referred to as the "SELLER").
WITNESSETH:
WHEREAS, Seller publishes a weekly newspaper known as "The Muslim
Observer" and maintains a web-site known as xxx.xxxxxxxxxxxxxx.xxx, (such
newspaper and web-site are referred to hereinafter as the "Business") and is
desirous of selling certain assets relating to the Business, which assets are
more particularly described hereinafter; and
WHEREAS, Buyer desires to acquire the Business and the assets referenced
above; and
WHEREAS, the parties believe it is in their mutual best interests to enter
into the Agreement.
NOW, THEREFORE, for and in consideration of Ten and no/100ths ($10.00) and
other good and valuable consideration, together with the mutual promises and
covenants contained herein, the receipt, sufficiency and adequacy of which is
hereby acknowledged by the parties, the parties agree, intending to be legally
bound, as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS
1.1 AGREEMENT OF PURCHASE AND SALE. On the terms and subject to the
conditions of this Agreement, at the Closing (as defined in Article 2 hereof),
the Seller shall sell, transfer, convey, assign and deliver (or cause to be
sold, transferred, conveyed, assigned and delivered) to the Buyer, and the Buyer
shall purchase and accept delivery of, all of the Seller's right, title and
interest in and to all of the assets described on SCHEDULE 1.1(a),; said assets
are hereinafter called the "PURCHASED ASSETS". It is the intention of the
parties that after the Closing the Seller will discontinue providing the
products and services of the Business. It is the further intention of the
parties that through the acquisition of the Purchased Assets the Buyer shall
acquire all assets, documents and information which are needed to provide the
products and services formerly provided by the Business. The Purchased Assets
will be sold free and clear of all mortgages, deeds of trust, liens, pledges,
charges, security interests, contractual restrictions, claims or encumbrances of
any kind or character (collectively, "ENCUMBRANCES").
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1.2 PURCHASE PRICE; CONTRACTUAL COMMITMENT.
(a) PURCHASE PRICE. As the full consideration to be paid by the
Buyer for the Purchased Assets, the Buyer shall, at Closing, pay Seller the
purchase price (the "Purchase Price") as follows: (i) pay Seller $1.00 in cash
by certified check or wire transfer; and (ii) Buyer shall assume and pay the
liabilities of Seller up to a maximum amount of $60,000 (the "Assumed
Liabilities").
(b) ASSUMED LIABILITIES. Seller agrees that Buyer assumes no
liabilities of Seller, whether accrued, absolute, contingent, matured, not
matured, known, unknown, or otherwise, except only for (a) the Assumed
Liabilities, and (b) any executory obligations of Seller's continued performance
arising in the ordinary course of business under any contracts that become
performable or payable on or after the Closing Date.
1.3 INSTRUMENTS OF CONVEYANCE AND TRANSFER.
(a) INSTRUMENTS OF CONVEYANCE AND TRANSFER. At the Closing, the
Seller shall deliver to the Buyer a Xxxx of Sale and Assignment, and Seller
shall also deliver such other instruments of assignment, conveyance and
transfer, as shall be necessary to vest in the Buyer good title to the Purchased
Assets in accordance herewith including but not limited to appropriate releases
or waivers from secured parties of Seller. Simultaneously therewith, the Seller
shall take all steps as may be required to transfer to the Buyer actual
possession and exclusive control of the Purchased Assets.
(b) FURTHER ASSURANCES. The Seller further agrees that, from and
after the Closing, it will execute and deliver to the Buyer such additional
instruments and documents and take such further action as the Buyer may
reasonably request in order to more fully vest, record and/or perfect the
Buyer's title to, or interest in, the Purchased Assets.
1.4 SELLER'S EMPLOYEES. Buyer will hire Seller's employees.
ARTICLE 2
CLOSING
The transactions contemplated hereby shall take place at a closing (the
"CLOSING") at the offices of Seller at 4:00 p.m., Eastern Standard Time, on the
15th day of February, 2005, unless another date or place is agreed to in writing
by the Seller and the Buyer. The Closing may be effected by delivery of the
closing documents by facsimile, followed by delivery of originals by overnight
courier and of the cash portion of the Purchase Price and any other sums payable
at Closing by wire transfer. The date on which the Closing actually occurs is
referred to herein as the "CLOSING DATE".
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Buyer as follows:
3.1 ORGANIZATION; GOOD STANDING; QUALIFICATIONS. The Seller is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Michigan.
3.2 AUTHORITY; CONSENT. The Seller has full power and authority to carry
on the Business as now conducted, to execute and deliver this Agreement and the
other agreements, documents and instruments contemplated hereby, to consummate
the transactions contemplated hereby and thereby and to perform its obligations
hereunder and thereunder. The execution and delivery by the Seller of this
Agreement and the other agreements, documents and instruments contemplated
hereby, the consummation by the Seller of the transactions contemplated hereby
and thereby and the performance by the Seller of its obligations hereunder and
thereunder: (i) have been duly and validly authorized by all necessary company
action, including, without limitation, all necessary member action; and (ii) do
not and will not, (A) conflict with or violate any of the provisions of the
articles of organization or operating agreement, each as amended, of the Seller,
(B) violate any law, ordinance, rule or regulation or any judgment, order, writ,
injunction or decree or similar command of any court, administrative or
governmental agency or other body applicable to the Seller, the Purchased Assets
or the Business, (C) violate or conflict with the terms of, or result in the
acceleration of, any indebtedness or obligation of the Seller, or violate or
conflict with or result in a breach of, or constitute a default under any
material instrument, agreement or indenture or any mortgage, deed of trust or
similar contract to which the Seller is a party or by which the Seller, or any
of the Purchased Assets or the Business are bound or affected, except for that
indebtedness or obligations as to which Seller must obtain consent before
Closing, (D) result in the creation or imposition of any Encumbrance upon any of
the Purchased Assets, or (E) require the consent, authorization or approval of,
or notice to, or filing or registration with, any governmental body or
authority, or any other third party.
3.3 ABSENCE OF CERTAIN CHANGES. Since December 31, 2004, the Seller has
operated the Business in the ordinary course, consistent with past practices,
and there has not been incurred, nor has there occurred: (a) any material
damage, destruction or loss (whether or not covered by insurance) adversely
affecting the Purchased Assets (b) any sale, transfer, pledge or other
disposition of any tangible or intangible assets which, as of December 31, 2004,
would have been a part of the Purchased Assets (c) any termination, amendment,
cancellation or waiver of any Material Contract (as defined herein) or any
termination, amendment, cancellation or waiver of any rights or claims of the
Seller under any Material Contract (except in each case in the ordinary course
of business and consistent with past practices); (d) any other change in the
condition (financial or otherwise), business operations, assets, earnings,
business or prospects of the Business which has, or could reasonably be expected
to have, a material adverse effect on the
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Purchased Assets, or (e) any agreement, whether in writing or otherwise, by the
Seller to take or do any of the actions enumerated in this Section, except for
agreements related to and consistent with the transaction contemplated by this
Agreement.
3.4 MATERIAL CONTRACTS.
(a) LIST OF MATERIAL CONTRACTS. Copies of all contracts, agreements,
understandings or arrangements, written or oral, which relate to the Purchased
Assets (collectively, the "MATERIAL CONTRACTS") including but not limited to
special pricing, special price lists, rebate agreements, discount agreements and
any pricing or terms different from list, published or standard prices and have
been furnished to the Buyer.
(b) PERFORMANCE, DEFAULTS, ENFORCEABILITY. The Seller has in all
material respects performed all of its obligations required to be performed by
it to the date hereof, and is not in default or alleged to be in default in any
material respect, under any Material Contract, and there exists no event,
condition or occurrence which, after notice or lapse of time or both, would
constitute such a default. To the knowledge of the Seller, no other party to any
Material Contract is in default in any respect of any of its obligations
thereunder. Each of the Material Contracts is valid and in full force and effect
and enforceable against the parties thereto in accordance with their respective
terms, and the transfer and assignment to the Buyer of all of the Material
Contracts, will not (i) require the consent of any party thereto or (ii)
constitute an event permitting termination thereof.
3.5 TITLE TO PURCHASED ASSETS AND RELATED MATTERS. The Seller has good
and valid title to all of the Purchased Assets, free and clear of all
Encumbrances. The Purchased Assets (including, without limitation, the Material
Contracts) include all files, documents, information and rights (tangible and
intangible, and all licenses and other agreements) which have been utilized by
the Seller in carrying on the Business in the ordinary course, including but not
limited to copyrights and trademarks. The Purchased Assets (i) are in the
exclusive possession and control of the Seller and after Closing no person or
entity other than the Buyer will be entitled to possession or ownership of any
portion of the Purchased Assets; and (ii) do not include any contracts for
future services, prepaid items or deferred charges the full value or benefit of
which will not be usable by or transferable to the Buyer.
3.6 APPROVALS, PERMITS AND AUTHORIZATIONS. There are no governmental
licenses, permits, other authorizations, filings and registrations that are
necessary for the Seller to own the Purchased Assets and or for Seller to
operate the Business as presently conducted.
3.7 COMPLIANCE WITH LAWS. The Seller has conducted the operations of the
Business in compliance with, and all of the Purchased Assets comply with (i) all
applicable laws, rules, regulations and codes (including, without limitation,
any laws, rules, regulations and codes relating to anticompetitive practices and
contracts) and (ii) all applicable orders, rules, writs, judgments, injunctions,
decrees and ordinances. Seller
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has not received any notification, relating to the Business or the Purchased
Assets, of any asserted present or past failure by it, to comply with such laws,
rules or regulations, or such orders, rules, writs, judgments, injunctions,
decrees or ordinances.
3.8 INSURANCE AND CLAIMS. With respect to each insurance policy of
Seller: (A) Seller has paid all premiums to the date hereof; (B) the
consummation of the transactions contemplated hereby will not in any respect
conflict with, result in a breach of, or constitute a default under the policy;
(C) neither Seller nor, to the Knowledge of Seller, any other party to the
policy is in material breach or default (including with respect to the payment
of premiums or the giving of notices), and to the Knowledge of Seller, no event
has occurred which, with notice or the lapse of time, would reasonably be
expected to constitute such a material breach or default, or permit termination,
material modification, or acceleration, under the policy; and (D) neither Seller
nor, to the Knowledge of Seller, any other party to the policy has repudiated
any material provision thereof. Seller has been covered since 1998 by insurance
in scope and amount customary and reasonable for the business in which it has
engaged during the aforementioned period.
3.9 TAXES. All federal, state and local tax returns and reports required
as of the date hereof to be filed by the Seller relating to the Business for
taxable periods ending prior to the date hereof have been duly and timely filed
by the Seller with the appropriate governmental agencies, and all such returns
and reports are true, correct and complete. All federal, state and local income,
profits, franchise, sales, use, occupation, property, excise, payroll,
withholding, employment, estimated and other taxes of any nature, including
interest, penalties and other additions to such taxes ("TAXES"), payable by, or
due from, the Seller relating to the Business for all periods arising on or
prior to the Closing Date have been fully paid or adequately reserved for by the
Seller.
3.10 LITIGATION. There are no actions, suits, claims, investigations or
legal or administrative or arbitration proceedings pending, or to the Seller's
knowledge, threatened or probable of assertion, against the Seller either with
respect to the Purchased Assets or the Business. The Seller knows of no basis
for the institution of any such suit or proceeding. The Seller is not now under
any judgment, order, writ, injunction, decree, award or other similar command of
any court, administrative agency or other governmental authority applicable to
the Business or any of the Purchased Assets.
3.11 POWERS OF ATTORNEY. There are no persons, firms, associates,
corporations, business organizations or other entities holding general or
special powers of attorney from the Seller with respect to the Business or any
of the Purchased Assets.
3.12 SELLER'S BROKER'S AND FINDER'S FEES. Seller has not incurred any
liability to any broker, finder or agent or any other person or entity for any
fees or commissions with respect to the transactions contemplated by this
Agreement, and the Seller hereby agrees to assume all liability to any such
broker, finder or agent or any other person or entity claiming any such fee or
commission. Seller shall indemnify and hold Buyer
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harmless, including reasonable attorney's fees, from any and all claims made for
commissions or finder's fees that have been induced or incurred by Seller.
3.13 EMPLOYEE RELATIONS AND BENEFITS. With respect to Seller's employees,
Seller is not a party to or bound by any collective bargaining agreement, nor
has it experienced any strikes, material grievances, claims of unfair labor
practices, or other collective bargaining disputes. To the Knowledge of Seller,
there is not any organizational effort presently being made or threatened by or
on behalf of any labor union with respect to employees of Seller.
3.14 PATENTS; TRADEMARKS; TRADE NAMES; COPYRIGHTS; LICENSES, ETC. All
intellectual property associated or a part of the Purchased Assets and all
goodwill associated therewith has been duly transferred from Seller to Buyer as
a part of the Purchased Assets.
3.15 NO UNDISCLOSED LIABILITIES. The Seller does not have any material
liabilities or obligations of any nature, known or unknown, fixed or contingent,
matured or unmatured, in connection with the operation of the Business or the
Purchased Assets other that those incurred in the ordinary course of business.
3.16 BUSINESS GENERALLY. The Seller is not aware of the existence of any
conditions, including, without limitation, any actual or potential competitive
factors in the markets in which the Seller participates, which have not been
disclosed to the Buyer and which could reasonably be expected to have a material
adverse effect on the Purchased Assets and the continued sale by the Buyer of
the products and services formerly sold or provided by the Business, other than
general business and economic conditions affecting the industry and markets in
which the Company participates.
3.17 ENVIRONMENTAL AND REGULATORY MATTERS. No lawsuits, claims, civil
actions, criminal actions, administrative proceedings, investigations or
enforcement or other actions are pending or threatened under any Environmental
Law with respect to the Seller, the Purchased Assets, or the Business. No
environmental lien has attached or, to the best of Seller's knowledge, is
threatened to be attached to the Purchased Assets. The Seller has not received
any written or oral order, notice, complaint, request for information, claim,
demand or other communication from any government authority or other person,
whether based in contract, tort, implied or express warranty, strict liability,
or any other common law theory, or any criminal or civil statute, arising from
or with respect to the Purchased Assets or the Business. For the purpose of this
Section 3.19, the following terms shall have the following meaning: (i)
"ENVIRONMENTAL LAW" means all present and future federal, state and local laws,
statutes, regulations, rules, ordinances and common law, and all judgments,
decrees, orders, agreements, or permits, issued, promulgated, approved or
entered thereunder by any government authority relating to pollution, Hazardous
Materials, worker safety or protection of human health or the environment and
(ii) "HAZARDOUS MATERIALS" means any waste, pollutant, chemical, hazardous
material, hazardous substance, toxic substance, hazardous waste, special waste,
solid waste, petroleum or petroleum-derived substance or waste (regardless of
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specific gravity), or any constituent or decomposition product of any such
pollutant, material, substance or waste, including, but not limited to, any
hazardous substance or constituent contained within any waste and any other
pollutant, material, substance or waste regulated under or as defined by any
Environment Law.
3.18 MISSTATEMENTS AND OMISSIONS. No representation or warranty made by
the Seller in this Agreement, and no statement contained in any certificate or
document furnished or to be furnished by the Seller pursuant hereto, contains or
will contain any untrue statement of a material fact or omits or will omit to
state a material fact necessary in order to make such representation or warranty
or such statement not misleading.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to the Seller as follows:
4.1 ORGANIZATION AND GOOD STANDING. The Buyer is a corporation, validly
existing and in good standing under the laws of the State of Michigan. The Buyer
is qualified as a foreign corporation and in good standing in the jurisdictions
where the nature of the Company's business and its assets require such
qualification, except where failure to so qualify would not have a material and
adverse effect on the operations of the Buyer.
4.2 AUTHORITY; CONSENTS. The Buyer has full corporate power and
authority to execute and deliver the Agreement and the other agreements and
documents and instruments contemplated hereby, to consummate the transactions
contemplated hereby and thereby and to perform its obligations hereunder and
thereunder. The execution and delivery by the Buyer of this Agreement and the
other agreements, documents and instruments contemplated hereby, the
consummation by the Buyer of the transactions contemplated hereby and thereby
and the performance by the Buyer of its obligations hereunder and thereunder:
(i) have been duly and validly authorized by all necessary corporate action on
their part; and (ii) do not and will not, (A) conflict with or violate any of
the provisions of the Articles of Incorporation or By-laws of the Buyer, (B)
violate any law, ordinance, rule or regulation or any judgment, order, writ,
injunction or decree or similar command of any court administrative or
governmental agency or other body applicable to the Buyer or any of its assets,
or (C) violate or conflict with the terms of, or result in the acceleration of,
any indebtedness or obligation of the Buyer under, or violate or conflict with
or result in a breach by the Buyer of, or constitute a default under, any
material instrument, agreement or indenture or any mortgage, deed of trust or
similar contract to which the Buyer is a party or by which the Buyer or any of
its assets may be otherwise bound or affected; or (D) require the consent,
authorization or approval of, or notice to, or filing or registration with, any
governmental body or authority, or any other third party.
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4.3 BUYER'S BROKER'S AND FINDER'S FEES. The Buyer has not incurred any
liability to any broker, finder or agent or any other person or entity for any
fees or commissions with respect to the transactions contemplated by this
Agreement and the Buyer hereby agrees to assume all liability to any such
broker, finder or agent or any other person or entity claiming any such fee or
commission. Buyer shall indemnify and hold Seller harmless, including reasonable
attorney's fees, from any and all claims made for commissions or finder's fees
that have been induced or incurred by Buyer.
4.4 LITIGATION. There are no actions, suits, claims, investigations or
legal or administrative or arbitration proceedings pending or, to the Buyer's
knowledge, threatened or probable of assertion, against the Buyer before any
court, governmental or administrative agency or other body relating to this
Agreement and/or the transactions contemplated hereby. The Buyer is not now
under any judgment, order, writ, injunction, decree or other similar command of
any court, administrative agency or other governmental agency which relate to
this Agreement and/or the transactions contemplated hereby.
4.5 MISSTATEMENTS OR OMISSIONS. No representation or warranty made by
the Buyer in this Agreement, and no statement contained in any certificate or
document furnished or to be furnished by the Buyer to the Seller pursuant
hereto, contains or will contain an untrue statement of a material fact or omits
or will omit to state a material fact necessary in order to make such
representation or warranty or such statement not misleading.
ARTICLE 5
PRE-CLOSING COVENANTS OF THE SELLER
The Seller, to the extent set forth below, hereby covenants and agrees
that from and after the date hereof until the Closing:
5.1 PROVIDE ACCESS TO INFORMATION; COOPERATION WITH BUYER. The Seller
shall afford to the Buyer, its attorneys, accountants, and such other
representatives of the Buyer as the Buyer shall designate to the Seller, free
and full access at all reasonable times, and upon reasonable prior notice, to
the Purchased Assets and the properties, books and records of the Seller
relating to the Business in order that the Buyer may have full opportunity to
make such investigation as it shall reasonably desire of the Purchased Assets
and the operations of the Business. In addition, the Seller shall provide to the
Buyer and its representatives such additional information in respect of the
Purchased Assets and the operations of the Business as the Buyer shall from time
to time reasonably request.
5.2 OPERATION OF BUSINESS OF THE SELLER. At all times before the
Closing, the Seller shall (a) operate the Business substantially as presently
operated and only in the ordinary course and consistent with past operations,
(b) use its reasonable best efforts to
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preserve intact the Business' present relationships with customers, (c) cause
the Business to comply in all respects with all applicable laws, rules and
regulations, and (d) maintain the books and records of account in respect of the
Business and its customers in the usual, regular and ordinary manner.
5.3 OTHER CHANGES. The Seller shall not, without the prior written
consent of the Buyer enter in to any contract, agreement, undertaking or
commitment which cannot be assigned to the Buyer or a permitted assignee of the
Buyer, or take, cause, agree to take or cause, or permit to occur any of the
actions or events set forth in Section 3.3 of this Agreement.
5.4 ADDITIONAL INFORMATION. The Seller shall furnish to the Buyer such
additional information with respect to any matters or events arising or
discovered subsequent to the date hereof which, if existing or known on the date
hereof, would have rendered any representation or warranty made by the Seller or
any information contained herein or in other information supplied in connection
herewith then inaccurate or incomplete. The receipt of such additional
information by the Buyer shall not operate as a waiver by the Buyer of the
obligations of the Seller to satisfy the conditions to Closing set forth in
Section 7.1 hereof.
5.5 CLOSING CONDITIONS.
(a) SELLER'S BEST EFFORTS. The Seller shall use all reasonable best
efforts to satisfy promptly the conditions to Closing set forth in Article 7
hereof required herein to be satisfied by the Seller.
(b) COOPERATION. Seller hereby agrees, at the request of at any time
both on or after the Closing Date, that Seller will execute and deliver, or
cause to be executed and delivered, such bills of sale, certificates, documents
and agreements as may reasonably be requested by Buyer in order to implement the
transactions contemplated by this Agreement, and to evidence and confirm the
transfer to Buyer of the Purchased Assets and the assumption by Buyer of the
Assumed Liabilities.
(c) PUBLICITY OR DISCLOSURE. Except to the extent necessary to
properly inform customers and employees of Seller, no public announcement or
other publicity relating to the transactions contemplated by this Agreement,
including, for example, the Purchase Price and form of the transaction, shall be
made by any of the parties, either before or after the Closing, except with the
prior agreement of the other parties.
(d) CONFIDENTIALITY. Seller shall, and shall cause its affiliates,
directors, officers, employees, and agents to, take all reasonable and
appropriate steps to keep confidential all information obtained or furnished to
any of them with respect to Buyer and its business, operations, customer lists
and financial condition and with respect to the Purchased Assets sold hereunder;
provided, however, that any such information may be disclosed by Seller to the
extent required by law, as determined in a written
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opinion of counsel to Seller (which counsel may be an employee of Seller). In
the event such disclosure is required, Seller shall provide Buyer written notice
of the information to be disclosed, together with a copy of the written opinion
referred to in the immediately preceding sentence, as far in advance of such
disclosure as is practicable. At Buyer's request, Seller will use its best
efforts to obtain assurances that confidential treatment will be afforded to
such information and will disclose only such information as is necessary to
comply with its legal obligations as advised in such written opinion. Seller
acknowledges that Buyer may suffer irreparable harm as a result of a breach of
this Section and that, therefore, Buyer will be entitled to injunctive and other
appropriate equitable relief in addition to damages as a result of a breach or
imminent breach of this Section. Seller's obligations under this Section shall
survive both the terminations of this Agreement and the Closing.
ARTICLE 6
PRE-CLOSING COVENANTS OF THE BUYER
The Buyer hereby covenants and agrees that, from and after the date hereof
until the Closing:
6.1 CLOSING CONDITIONS.
(a) BUYER'S BEST EFFORTS. The Buyer shall use all reasonable best
efforts to satisfy promptly the conditions to Closing set forth in Article 8
hereof required herein to be satisfied by the Buyer.
(b) COOPERATION. Buyer hereby agrees, at the request of Seller at
any time both on or after the Closing Date, that Buyer will execute and deliver,
or cause to be executed and delivered, such bills of sale, certificates,
documents and agreements as may reasonably be requested by Seller in order to
implement the transactions contemplated by this Agreement, and to evidence and
confirm the transfer to Buyer of the Purchased Assets and the assumption by
Buyer of the Assumed Liabilities.
(c) PUBLICITY OR DISCLOSURE. Except to the extent necessary to
properly inform customers and employees of Seller, no public announcement or
other publicity relating to the transactions contemplated by this Agreement,
including, for example, the Purchase Price and form of the transaction, shall be
made by any of the parties, either before or after the Closing, except with the
prior agreement of the other parties.
(d) CONFIDENTIALITY. Buyer shall, and shall cause its affiliates,
directors, officers, employees, and agents to, take all reasonable and
appropriate steps to keep confidential all information obtained or furnished to
any of them with respect to Seller and its business, operations, and financial
condition; provided, however, that any such information may be disclosed by
Buyer to the extent required by law, as determined in a written opinion of
counsel to Buyer (which counsel may be an employee of Buyer).
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In the event such disclosure is required, Buyer shall provide Seller written
notice of the information to be disclosed, together with a copy of the written
opinion referred to in the immediately preceding sentence, as far in advance of
such disclosure as is practicable. At Seller's request, Buyer will use its best
efforts to obtain assurances that confidential treatment will be afforded to
such information and will disclose only such information as is necessary to
comply with its legal obligations as advised in such written opinion. Buyer
acknowledges that Seller may suffer irreparable harm as a result of a breach of
this Section and that, therefore, Seller will be entitled to injunctive and
other appropriate equitable relief in addition to damages as a result of a
breach or imminent breach of this Section. Buyer's obligations under this
Section shall survive both the terminations of this Agreement and the Closing.
ARTICLE 7
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER
The obligations of the Buyer under this Agreement at the Closing and the
consummation by the Buyer of the transactions contemplated hereby are subject to
the satisfaction or fulfillment by the Seller, prior to or at the Closing, of
each of the following conditions, unless waived in writing by the Buyer:
7.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by the Seller in this Agreement shall be true and correct in all material
respects at and as of the date of this Agreement and at and as of the Closing
Date as though such representations and warranties were made at and as of such
times.
7.2 PERFORMANCE OF OBLIGATIONS OF THE SELLER. Seller shall have
performed and complied with all of its covenants, agreements, obligations and
restrictions pursuant to this Agreement required to be performed or complied
with by it prior to or at the Closing.
7.3 SUPPORTING DOCUMENTS. The Buyer shall have received from the Seller
signed originals of:
(a) the Xxxx of Sale and Assignment;
(b) copies of all authorizations, consents, approvals, notices,
filings and registrations referred to in Section 3.2 hereof, including, but not
limited to, the consent of any secured creditor of seller to the transaction and
transfers contemplated hereby and the waiver by such secured creditor of any and
all claims to and security interest in the Purchased Assets; and
(c) such additional supporting documents and other information as
the Buyer, its lenders and/or legal counsel may reasonably request.
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7.4 XXXX OF SALE, ETC. The Buyer shall have received from the Seller a
duly executed xxxx of Sale and all necessary assignments, documents and
instruments to effect the transfers, conveyances and assignments to the Buyer
referred to in Article 1 hereof, and the Seller shall have taken such action as
shall be necessary to put the Buyer in actual possession and exclusive control
of each of the Purchased Assets.
7.5 BOOKS AND RECORDS. The Buyer shall have received copies of all books
and records of, or pertaining to, the Business and the Purchased Assets.
7.6 CONSENTS. The Buyer shall have received duly executed copies of all
consents, authorizations, approvals, notices, registrations and filings which
are required for the Seller to consummate the transactions contemplated hereby.
7.7 NO LITIGATION. No action, suit or other proceeding shall be pending
or threatened before any court, tribunal or governmental authority seeking or
threatening to restrain or prohibit the consummation of the transactions
contemplated by this Agreement, or seeking to obtain damages in respect thereof,
or involving a claim that consummation thereof would result in a violation of
any law, rule, decree or regulation of any governmental authority having
appropriate jurisdiction, and no order, decree or ruling of any governmental
authority or court shall have been entered challenging the legality, validity or
propriety of this Agreement or the transactions contemplated hereby or
prohibiting, restraining or otherwise preventing the consummation of the
transactions contemplated hereby.
7.8 NO MATERIAL ADVERSE CHANGE OR UNDISCLOSED LIABILITY. There shall
have been no material adverse change or development in the business, prospects,
properties, earnings, results of operations or financial condition of the Seller
or the Business or any of the Purchased Assets.
7.9 APPROVAL OF LEGAL MATTERS. The form of all instruments, certificates
and documents to be executed and delivered by the Seller to the Buyer pursuant
to this Agreement and all legal matters in respect of the transactions as herein
contemplated shall be reasonably satisfactory to the Buyer and its counsel, none
of whose approval shall be unreasonably withheld or delayed.
7.10 DUE DILIGENCE INVESTIGATION. Buyer shall have completed its
investigation and review of the Business, the Seller, and the Purchased Assets,
and be satisfied with the results thereof.
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ARTICLE 8
CONDITIONS PRECEDENT TO OBLIGATIONS OF
THE SELLER
The obligations of the Seller under this Agreement at the Closing and the
consummation by the Seller of the transactions contemplated hereby are subject
to the satisfaction or fulfillment by the Buyer, prior to or at the Closing, of
each of the following conditions, unless waived in writing by the Seller:
8.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by the Buyer in this Agreement shall be true and correct in all material
respects at and as of the date of this Agreement and at and as of the Closing
Date as though such representations and warranties were made at and as of such
times.
8.2 PERFORMANCE OF OBLIGATIONS OF THE BUYER. The Buyer shall have
performed and complied with all its covenants, agreements, obligations and
restrictions pursuant to this Agreement required to be performed or complied
with prior to or at the Closing.
8.3 PAYMENT OF CASH PORTION OF PURCHASE PRICE. The Buyer shall have
tendered to the Seller payment of the cash portion of the Purchase Price.
8.4 SUPPORTING DOCUMENTS. The Seller shall have received from the Buyer
signed originals such supporting documents and other information as the Buyer,
its lenders and/or legal counsel may reasonably request.
8.5 NO LITIGATION. No action, suit or other proceeding shall be pending
or threatened before any court, tribunal or governmental authority seeking or
threatening to restrain or prohibit the consummation of the transactions
contemplated by this Agreement, or seeking to obtain damages in respect thereof,
or involving a claim that consummation thereof would result in a violation of
any law, rule, decree or regulation of any governmental authority having
appropriate jurisdiction, and no order, decree or ruling of any governmental
authority or court shall have been entered challenging the legality, validity or
propriety of this Agreement or the transactions contemplated hereby or
prohibiting, restraining or otherwise preventing the consummation of the
transactions contemplated hereby.
ARTICLE 9
TRANSFER TAXES
9.1 CERTAIN TAXES AND FEES. All sales, transfer, documentary, stamp,
recording and other similar taxes and/or fees and Taxes which may be due or
payable in
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connection with the sale of the Purchased Assets pursuant hereto shall be borne
by the Seller.
ARTICLE 10
SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION
10.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All statements contained
in any schedule or certificate delivered hereunder or in connection herewith by
or on behalf of any of the parties pursuant to this Agreement shall be deemed
representations and warranties by the respective parties hereunder unless
otherwise expressly provided herein. The representations and warranties of the
Seller on the one hand and the Buyer on the other hand contained in this
Agreement, including those contained in any certificate delivered hereunder or
in connection herewith, shall survive for a period of Five (5) years after the
Closing. The Seller's indemnification of Buyer in connection with any tax
liability or fraud shall survive for a period of time set forth for the statute
of limitations under the applicable law.
10.2 AGREEMENT TO INDEMNIFY BY THE SELLER. Subject to the terms and
conditions of Section 10.5 hereof, the Seller hereby agrees to indemnify and
save the Buyer, its affiliates, and its shareholders, officers, directors,
employees, successors and assigns (each, a "BUYER INDEMNITEE") harmless from and
against, for and in respect of, any and all demands, judgments, injuries,
penalties fines, damages, losses, obligations, liabilities, claims, actions or
causes of action, encumbrances, cost, expenses (including, without limitation,
reasonable attorneys= fees, consultants= fees and expert witness fees),
suffered, sustained, incurred or required to be paid by any Buyer Indemnitee
(collectively, "BUYER'S DAMAGES") arising out of, based upon, in connection with
or as a result of:
(a) the untruth, inaccuracy or breach of any representation and
warranty of the Seller contained in or made pursuant to this Agreement,
including in any certificate delivered hereunder or in connection herewith; or
(b) the breach or nonfulfillment of any covenant or agreement of the
Seller contained in this Agreement or in any other agreement, document or
instrument delivered hereunder or pursuant hereto; or
(c) the assertion against any Buyer Indemnitee or any of the
Purchased Assets of any obligation arising out of or based upon any liability of
Seller, other than the Assumed Liabilities; or
(d) all claims of creditors asserted by reason of the parties
non-compliance with any applicable bulk sale laws; or
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(e) any and all UCC financing statements that have not been released
prior to or at Closing, and Seller hereby represents and warrants that it shall
take all steps necessary to, and shall, obtain such releases within 30 days
after Closing.
10.3 AGREEMENT TO INDEMNIFY BY THE BUYER. Subject to the terms and
conditions of Section 10.5 hereof, the Buyer hereby agrees to indemnify and save
the Seller and its affiliates and its respective shareholders, members,
officers, directors, employees, successors and assigns (each, a "SELLER
INDEMNITEE") harmless from and against, for and in respect of, any and all
demands, judgments, injuries, penalties, damages, losses, obligations,
liabilities, claims actions or causes of action, encumbrances, costs and
expenses (including, without limitation, reasonable attorneys' fees and expert
witness fees) suffered, sustained, incurred or required to be paid by any Seller
Indemnitee arising out of, based upon, in connection with or as a result of:
(a) the untruth, inaccuracy or breach of any representation and
warranty of the Buyer contained in this Agreement or in any other agreement,
document or instrument delivered hereunder or pursuant hereto; or
(b) the breach of nonfulfillment of any covenant or agreement of the
Buyer contained in this Agreement or in any other agreement, document or
instrument delivered hereunder or pursuant hereto;
(c) the assertion against Seller or any Seller Indemnitee of any of
the Assumed Liabilities; or
(d) the assertion against Seller of any liability arising out of
Buyer's use of the Purchased Assets after the Closing.
10.4 INDEMNIFICATION LIMITS. The Buyer Indemnitees shall not be entitled
to any indemnification under this Article 10 unless and until the claim or
claims by the Buyer Indemnitees for any and all claims, liabilities,
obligations, losses, cost, expenses, penalties, fines and damages to be
indemnified by the Seller Indemnitees pursuant to this Article 10 exceed an
aggregate of $1,000.00, but shall thereafter be entitled to indemnification for
the full amount of any such claim or claims, including the first $1,000.00 of
such claim or claims. Notwithstanding the provisions of Section 10.3 above, with
respect to breaches of all representations and warranties of the Seller
contained herein, the Buyer shall not be entitled to any indemnification
pursuant to Section 10.3 in excess of the Purchase Price in the aggregate;
provided, however, that the limitations contained in this Section 10.4 shall not
apply in the case of fraud on the part of the Seller or the intentional breach
of any representation or warranty of the Seller contained herein.
10.5 PROCEDURES REGARDING THIRD PARTY CLAIMS. The procedures to be
followed by the Buyer and the Seller with respect to indemnification hereunder
regarding claims by third persons shall be as follows.
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(a) Promptly after receipt by any Buyer Indemnitee or Seller
Indemnitee, as the case may be, of notice of the commencement of any action or
proceeding (including, without limitation, any notice relating to a tax audit)
or the assertion of any claim by a third person, which the person receiving such
notice has reason to believe may result in a claim by it for indemnity pursuant
to this Agreement, such person (the "INDEMNIFIED PARTY") shall give notice of
such action, proceeding or claim to the party against whom indemnification
pursuant hereto is sought (the "INDEMNIFYING PARTY"), setting forth in
reasonable detail the nature of such action or claim, including copies of any
written correspondence from such third person to such Indemnified Party.
(b) The Indemnifying Party shall be entitled, at its own expense, to
participate in the defense of such action, proceeding or claim, and, if (i) the
action, proceeding or claim involved seeks (and continues to seek) solely
monetary damages, (ii) the Indemnifying Party confirms, in writing, its
obligations hereunder to indemnify and hold harmless the Indemnified Party with
respect to such damages in their entirety pursuant to Sections 10.2 or 10.3
hereof, as the case may be, and (iii) the Indemnifying Party shall have made
provision which, in the reasonable judgment of the Indemnified Party, is
adequate to satisfy any adverse judgment as a result of its indemnification
obligation with respect to such action, proceeding or claim then the
Indemnifying Party shall be entitled to assume and control such defense with
counsel chosen by the Indemnifying Party and approved by the Indemnified Party,
which approval shall not be unreasonably withheld or delayed. The Indemnified
Party shall be entitled to participate therein after such assumption, the costs
of such participation following such assumption to be at its own expense. Upon
assuming such defense, the Indemnifying Party shall have full rights to enter
into any monetary compromise or settlement which is dispositive of the matters
involved; provided, that such settlement is paid in full by the Indemnifying
Party and will not have any direct or indirect continuing material adverse
effect upon the Indemnified Party.
(c) With respect to any action, proceeding or claim as to which (i)
the Indemnifying Party does not have the right to assume the defense or (ii) the
Indemnifying Party shall not have exercised its right to assume the defense, the
Indemnified Party shall assume and control the defense of and contest such
action, proceeding or claim with counsel chosen by it and approved by the
Indemnifying Party, which approval shall not be unreasonably withheld. The
Indemnifying Party shall be entitled to participate in the defense of such
action, the cost of such participation to be at its own expense. The
Indemnifying Party shall be obligated to pay the reasonable attorneys= fees and
expenses of the Indemnified Party to the extent that such fees and expenses
relate to claims as to which indemnification is due under Sections 10.2 or 10.3
hereof, as the case may be. The Indemnified party shall have full rights to
dispose of such action and enter into any monetary compromise or settlement;
provided, however, in the event that the Indemnified Party shall settle or
compromise any claims involved in the action insofar as they relate to, or arise
out of, the same facts as gave rise to any claim for which indemnification is
due under Sections 10.2 or 10.3 hereof, as the case may be, it shall act
reasonably and in good faith in doing so.
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(d) Both the Indemnifying Party and the Indemnified Party shall
cooperate fully with one another in connection with the defense, compromise or
settlement of any such claim, proceeding or action, including, without
limitation, by making available to the other all pertinent information and
witnesses within its control.
10.6 EFFECTIVENESS. The provisions of this Article 10 shall be effective
upon consummation of the Closing, and prior to the Closing, shall have no force
and effect.
ARTICLE 11
TERMINATION AND TERMINATION FEE
11.1 TERMINATION. Notwithstanding any other provision herein contained to
the contrary, this Agreement may be terminated at any time prior to the Closing
Date by written consent of the parties hereto.
11.2 PROCEDURE AND EFFECT OF TERMINATION. Nothing contained in this
Agreement shall prevent any party from seeking any relief at law and in equity
to which it would be entitled in the event of a breach of this Agreement by the
other party.
ARTICLE 12
MISCELLANEOUS PROVISIONS
12.1 ACCESS TO BOOKS AND RECORDS AFTER CLOSING. Each party shall,
following the Closing, give, and shall cause to be given, to the other party and
its authorized representatives such access, during normal business hours and
upon prior notice, to such books and records constituting or relating to the
Purchased Assets as shall be reasonably necessary for such party in connection
with the preparation and filing of the party=s tax returns, and to make extracts
and copies of such books and records.
12.2 NOTICES. All notices, claims, certificates, requests, demands and
other communications hereunder shall be given in writing and shall be delivered
by United States Mail, certified, return receipt requested, personally, by
telecopier or by a nationally recognized overnight courier, postage prepaid, and
shall be deemed to have been duly given when so delivered personally or sent by
telecopier, with receipt confirmed, or one (1) business day after the date of
deposit with such nationally recognized overnight courier. All such notices,
claims, certificates, requests, demands and other communications shall be
addressed to the respective parties at the addresses set forth below or to such
other address as the person to whom notice is to be given may have furnished to
the others in writing in accordance herewith.
If to the Seller to: AN - NAS, LLC
00000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
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Attention: Dr. A. S. Nakadar
If to the Buyer to: Muslim Media Network, Inc.,
00000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Dr. A. S. Nakadar
The Buyer or the Seller may change the address or telecopier number to
which such communications are to be directed by giving written notice to the
others in the manner provided in this Agreement.
12.3 PARTIES IN INTEREST; NO THIRD PARTY BENEFICIARIES.
(a) This Agreement shall be binding upon, inure to the benefit of
and be enforceable by the respective successors and assigns of the parties
hereto.
(b) Nothing in this Agreement, expressed or implied, is intended or
shall be construed to confer upon or give to any employee of the Seller, or any
other person, firm, corporation or legal entity, other than the parties hereto
and their successors and permitted assigns, any rights, remedies or other
benefits under or by reason of this Agreement.
12.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other writings
referred to herein or delivered pursuant hereto contain the entire understanding
of the parties hereto and supersedes all prior agreements and understandings
between the parties hereto with respect to its subject matter. This Agreement
may be amended or modified only by a written instrument duly executed by the
parties hereto.
12.5 HEADINGS. The article, section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
12.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, and all such counterparts together shall constitute but one
agreement.
12.7 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, without giving effect to its
principles of conflicts of law.
12.8 KNOWLEDGE. Whenever any representation or warranty of the Seller
contained herein or in any other document executed and delivered in connection
herewith is based upon the knowledge of the Seller, such knowledge shall be
deemed to include the knowledge, if any, of the Sellers officers and directors.
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12.9 ARBITRATION. Subject to the other provisions of this Section 12.9,
any dispute, claim or controversy arising out of or relating to this Agreement,
or the interpretation or breach hereof, shall be resolved as follows, except
that nothing contained in this Section 12.9 shall prevent any party hereto from
seeking any equitable relief to which it would otherwise be entitled from any
court of competent jurisdiction.
(a) Arbitration. Except to the extent that an action for specific
performance or other equitable relief is contemplated or authorized hereunder,
any dispute, controversy or claim arising out of or relating to this Agreement,
or any alleged breach hereof, will be subject to binding arbitration in
accordance with this Section 12.9. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration administered by the American Arbitration Association under the
Commercial Arbitration Rules of the American Arbitration Association, except
that only one mutually acceptable arbitrator shall be required, and judgment on
the award rendered by the arbitrator (the "Panel") may be entered in any court
having jurisdiction thereof. The parties agree that they will utilize their best
efforts to ensure that such arbitration proceeds in a diligent fashion with an
aim of concluding any such dispute within ninety (90) days after initiation.
(b) Costs, Fees and Expenses. The cost of the arbitration shall be
paid by the party that does not substantially prevail on the merits in the
arbitration (as determined by the award of the Panel). The party that
substantially prevails on the merits of the arbitration (as determined by the
Panel) shall be entitled to reasonable attorneys' fees, costs, expenses and
necessary disbursements in addition to any other relief to which such party may
be entitled as determined by the Panel and set forth in the award.
(c) Location of Arbitration. The arbitration shall take place in
Southfield, Michigan.
12.11 WAIVERS. Any party to this Agreement may, by written notice to the
other parties hereto, waive any provision of this Agreement from which such
party is entitled to receive a benefit. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach of such provision or any other provision of this
Agreement.
12.12 SEVERABILITY. In the event that any provision, or part thereof, of
this Agreement shall be held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions, or parts
thereof, shall not in any way be affected or impaired thereby.
12.13 CONSTRUCTION. The language of all provisions of this Agreement shall
be construed according to its fair meaning and not strictly against any party.
12.14 EXPENSES. Except as otherwise set forth herein, each party shall be
responsible for its own legal fees and other costs and expenses incurred in
connection with this Agreement and the
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negotiation and consummation of the transactions contemplated hereby.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the date first stated above.
BUYER:
MUSLIM MEDIA NETWORK, INC., a
Michigan Corporation
By: /s/ Dr. A. S. Nakadar
----------------------------------------
DR. A. S. NAKADAR
Its: PRESIDENT
SELLER:
AN - NAS, LLC, a Michigan limited liability
company
By: /s/ Dr. A. S. Nakadar
------------------------------------
DR. A. S. NAKADAR
Its: MEMBER
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SCHEDULE 1.1 (a)
Purchased Assets
(a) CONTRACTS, ADVERTISER ACCOUNTS AND CUSTOMER ACCOUNTS. All right, title
and interest (but not obligations), in and to all contracts, agreements,
customer accounts and other advertiser-related and customer-related rights,
information and commitments relating to the Business, including any security or
similar deposits relating to those contract or accounts (the "Contracts").
(b) MUSLIM OBSERVER NEWSPAPER. Any and all copyrights and trademarks,
whether registered or unregistered, to any materials published in the Muslim
Observer newspaper, including the name, the "Muslim Observer", all publishing
rights with respect to the Muslim Observer, and any and all other intangible
rights with respect to the Muslim Observer newspaper.
(c) xxx.xxxxxxxxxxxxxx.xxx. Any and all copyrights and trademarks, whether
registered or unregistered, to any materials published on the
xxx.xxxxxxxxxxxxxx.xxx web-site, the domain name, xxx.xxxxxxxxxxxxxx.xxx, all
publishing rights with respect to the xxx.xxxxxxxxxxxxxx.xxx web-site, , and any
and all other intangible rights with respect to the xxx.xxxxxxxxxxxxxx.xxx
web-site.
(d) RECORDS AND FILES. All records, customer lists, prospect lists,
advertiser and customer contact information (including phone and fax numbers),
correspondence and marketing files relating to the past and present advertisers
and customers served by the Business, and all other relevant documents or
information pursuant to which Seller has provided services and/or products to
such customers relating to the Business and other records specifically relating
to the customers of Business (the "Records").
(e) PERMITS AND LICENSES. All permits, licenses, orders, franchises,
authorizations and approvals relating to or maintained as part of the Business'
provision of products and services to customers (the "Permits and Licenses"), to
the extent same may be assigned and/or transferred according to law.
(f) INTANGIBLE PROPERTY RIGHTS. All intangible property rights (including
intellectual property rights and the goodwill associated therewith) of any kind
or character arising from, relating to or concerning the Business including
without limitation, confidentiality obligations and similar obligations,
including all telephone and facsimile telephone numbers ("Intangibles").
(g) OPEN ORDERS. All open orders for goods and services with customers of
the Business (the "Open Orders"), together with related purchase orders,
contracts and subcontracts associated with such Open Orders.
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(h) GOODWILL. All goodwill of the Business as a going concern and all
information and documents related thereto, including the exclusive right to
represent itself as carrying on the Business in succession to Seller
("Goodwill").
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