ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") dated
as of July 29, 1994, by and between Xxxxxxxx Convertibles, Inc.,
a Delaware corporation (the "Buyer"), and Xxxxxx X. Xxxxxxxxx
(the "Seller").
RECITALS
A. The Seller, among other things, is engaged in the business of
providing financial and accounting services to the Buyer (the "Business")
and is the owner of all of the issued and outstanding shares of capital stock
of JISCO Holding Corp. ("JISCO"), the tenant under a lease dated July 18,
1991, as amended (the "Lease") affecting 6,997 square feet of gross rentable
area at 000-000 Xxxxxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000 (the "Leased
Premises").
B. In connection with the termination of Seller's provision of
services to the Buyer, the Seller desires to sell to the Buyer, and the Buyer
desires to purchase from the Seller, the JISCO stock and certain of the assets
of the Seller which are used in the Business and located at the Leased
Premises upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and covenants which are to be made and performed
by the respective parties, it is hereby agreed as follows:
ARTICLE I - - SALE AND PURCHASE OF ASSETS
AND ASSUMPTION OF LIABILITIES
Section 1.1 The Purchase and Sale. Upon the terms and subject to all of the
conditions set forth herein, on the Closing Date (as defined in Section 3.1),
the Seller agrees to sell to the Buyer, free and clear of all liens,
restrictions, security interests, claims, charges, or encumbrances whatsoever
("Encumbrance"), (a) all of the issued and outstanding capital stock of JISCO
(the "JISCO Stock"), (b) all of the right, title and interest in and to all
property and assets owned by the Seller and used in the Business and located
at the Leased Premises which are listed on Schedule 1.1 hereto (the
"Property"), (c) all right, title and interest of the Seller under contracts,
leases and other agreements which are listed on Schedule 1.2 hereto (the
"Contracts") and (d) all corporate records and books of account of JISCO and
including, without limiting the generality of the
foregoing, minute books, share register books, share certificate books and
corporate seals, and all books and records, correspondence and files of or
relating to the business of the Buyer, Purchased Assets (hereinafter defined)
and/or the employees as to which the Buyer has agreed to offer employment
pursuant to Section 4.2 hereof (collectively, the "Records"; and JISCO Stock,
the Property, the Contracts and the Records are referred to herein
collectively as the "Purchased Assets"), and the Buyer agrees to purchase the
Purchased Assets from the Seller. The Purchased Assets shall not include (a)
cash, cash equivalents and accounts receivable of the Seller as of the date
hereof and the Closing Date, (b) the personal property owned by Seller and
located at the Leased Premises listed on Schedule 1.3 hereto and (c) any
records of the Seller not relating to the Buyer, including, without
limitation, records relating to Xxxx Enterprises, Inc. and any of its
subsidiaries or affiliates (other than the Buyer) and any records relating to
clients of the Seller (other than the Buyer).
To the extent that any Contract is not assignable to the Buyer, the
Seller shall use its reasonable efforts to provide the Buyer with all of the
benefits of such Contract. To the extent that any Contract described above is
not assignable to the Buyer without the consent of a third party, which
consent has not been obtained as of the Closing Date, if the Closing occurs
prior to obtaining of such consent, then (x) such Contract shall not be
assigned to the Buyer until the consent has been obtained; (y) the Seller
shall use its best efforts to obtain the consent; and (z) until the consent is
obtained the Seller shall do all things reasonably necessary and cooperate
with Buyer to provide the Buyer with all of the benefits of any such Contract.
In obtaining any such consent the Seller will not agree to modification or
amendment to any Contract or otherwise obligate the Buyer to pay any
additional sums of money thereunder without obtaining the Buyer's prior
written consent.
Section 1.2 Assumption of Liabilities. Subject to the conditions herein set
forth, upon the transfer of the Purchased Assets on the Closing Date, the
Buyer shall assume all liabilities and obligations of the Seller which are
listed on Schedule 1.3 hereto arising on or after September 1, 1994 under each
Contract assigned to the Buyer pursuant to this Agreement, or to which the
Buyer otherwise specifically consents in writing (the "Assumed Liabilities") .
Except as specifically set forth herein, the Buyer has not, and shall not be
deemed to have, assumed any other obligations or liabilities of the Seller
whatsoever of any kind or nature, whether accrued, absolute, contingent or
otherwise, and the Seller shall be solely responsible for and fully and
promptly pay and discharge any and all such obligations or liabilities when
due.
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ARTICLE II -- PURCHASE PRICE
Section 2.1 Purchase Price. The aggregate purchase price to
be paid by the Buyer to the Seller for the Purchased Assets, and
the rights and benefits conferred hereunder, shall be $256,488.22
(the "Purchase Price").
Section 2.2 Payment. On or before July 31, 1994, the Buyer shall, by wire
transfer or bank check of immediately available funds, prepay the Purchase
Price to the Seller.
ARTICLE III -- CLOSING
Section 3.1 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall be held at 10:00 a.m. on September 1, 1994,
or on such other date as may be agreed upon by the parties hereto (the
"Closing Date"), at the offices of Xxxxxxxxx, Xxxxxxx & Xxxxx, L.L.P., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as may be
agreed upon by the parties hereto.
Section 3.2 Deliveries by the Seller. At the Closing, the Seller shall deliver
the following items to the Buyer:
(a) The share certificates representing the JISCO Stock duly endorsed for
transfer to the Buyer, with all applicable tax stamps attached.
(b) The resignation in writing of all directors and officers of JISCO,
effective as of the Closing Date.
(c) Executed documents of transfer and assignment required to transfer
Seller's right, title and interest to the Purchased Assets (other than the
JISCO Stock) to the Buyer, consisting of a Xxxx of Sale, Assignment and
Assumption Agreement substantially in the form attached hereto as Exhibit 3.2
and such other deeds, bills of sale, assignments or other instruments of
conveyance and transfer necessary or appropriate to vest legal, good and
marketable title in and to the Purchased Assets, free and clear of all
Encumbrances;
(d) The Records, Contracts and Purchased Assets; and
(e) All other previously undelivered items required to be delivered by
the Seller to the Buyer at or prior to the Closing pursuant to this Agreement
or otherwise required in connection herewith unless waived in writing by the
Buyer.
Section 3.3 Deliveries by the Buyer. At or prior to the Closing, the Buyer
shall deliver the following items to the Seller:
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(a) the Purchase Price as required under Section 2.2;
(b) executed documents reasonably requested by the Seller providing for
the assumption of the Assumed Liabilities in accordance with Section 1.2 of
this Agreement, including without limitation, the Xxxx of Sale, Assignment and
Assumption Agreement substantially in the form attached hereto as Exhibit 3.2;
and
(c) all other previously undelivered items required to be delivered by
the Buyer at or prior to the Closing pursuant to this Agreement or otherwise
required in connection herewith unless waived in writing by the Seller.
ARTICLE IV -- ADDITIONAL AGREEMENTS
Section 4.1 Expenses. Except as otherwise stated herein, the Buyer and the
Seller will pay their own expenses incident to the preparation and carrying
out of this Agreement and the expenses and fees involved in the preparation
and delivery of all documents required to be delivered by or on behalf of it
hereunder.
Section 4.2 Employees. (a) Commencing on August 29, 1994, the Buyer shall
offer to employ, and will employ if such offer of employment is accepted, the
persons listed on Schedule 4.2 hereto (the "Employees") on the same terms,
conditions and benefits by which such Employees were employed by Seller
immediately prior to such date, and otherwise in accordance with the policies
of Buyer with respect to its employees of similar status generally. The Seller
shall reimburse Buyer for the wages of all such Employees (including all
social security, unemployment and disability insurance, payroll taxes and
other amounts incurred or paid by Buyer) for the period of August 29, 1994
through August 31, 1994. Such reimbursement shall be made by Seller to Buyer
on or about September 9, 1994. Prior to November 30, 1994, Buyer shall not
terminate the employment of any such Employee without cause. For the purposes
of this Agreement, the term "cause" shall mean (i) willfully and materially
refusing or failing to carry out specific directions of the Buyer or its
officers, directors or supervisors, or willfully refusing or failing to
perform a material part of his or her duties, including by reason of repeated
unexcused absence from work; (ii) wilful engaging by the Employee in conduct
which is materially or repeatedly injurious to the Buyer, monetarily or
otherwise; (iii) willfully acting fraudulently or dishonestly in his relations
with the Buyer; (iv) committing larceny, embezzlement, conversion or any act
involving the misappropriation of funds in the course of his or her
employment; or (v) conviction of any crime involving an act of moral
turpitude. No act or failure to act on the Employee's part shall be deemed
"willful" unless done, or omitted to be done, by him not in good faith and
without a reasonable belief that his or her action or omission was in the best
interest of the Buyer.
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(b) Seller shall continue to provide health insurance to the Employees
through February 28, 1995 pursuant to the terms and conditions by which such
Employees were provided such insurance on August 28, 1994. Buyer shall
reimburse Seller for the full premium of such insurance for each such Employee
(or other payment made to such Employee in lieu of insurance premiums) (i)
with respect to the Chubb major medical coverage, on a monthly basis on the
5th day of each calendar month for the period from the 7th day of the current
calendar month through the 6th day of the following calendar month, commencing
September 5, 1994 and (ii) with respect to Blue Cross/Blue Shield
hospitalization coverage, on a quarterly basis on the 5th day of September and
December 1994 for the three month periods of September 1, 1994 through
November 30, 1994 and December 1, 1994 through February 28, 1995,
respectively; which premium as of the date hereof is $3,618.12 per month and
$3032.25 per quarter, respectively. The September reimbursement for the
insurance premiums of Employees shall also include reimbursement for insurance
coverage for the Employees for the period from September 1, 1994 through
September 6, 1994. The Employees shall be subject to any co-payment which may
be charged to Buyer's employees generally. On March 1, 1995, Seller shall no
longer be required to provide health insurance to any such Employee who is
then employed by Buyer.
(c) Buyer shall provide xxxxxxx'x compensation and disability insurance
to the Employees commencing on September 1, 1994.
(d) Commencing on September 1, 1994, Seller shall reimburse Buyer on a
weekly basis for services performed for Seller by any Employee, based on time
records kept by such Employee and submitted to Buyer. The Seller agrees that
its use of the Employees shall be conducted in a manner so as to not
unreasonably interfere with the duties being performed by the Employees for
the Buyer. Such reimbursement shall consist of the pro rata portion of the
salary of such Employee for the time spent working on Seller's behalf plus
payroll taxes on such salary as well as the pro rata portion of xxxxxxx'x
compensation and disability insurance, health insurance and other benefits.
All reimbursements hereunder shall be paid within seven (7) days after the end
of the week in which such services were performed.
(e) Any amounts payable by Seller to Buyer hereunder may, in Buyer's
discretion, be offset and credited against amounts otherwise payable by Buyer
to Seller hereunder.
Section 4.3 Occupancy. (a) Through February 28, 1995, the Seller and the
persons listed on Schedule 4.3 hereto (or any replacement thereof) shall have
the right to continue to jointly occupy that portion of the Leased Premises
currently occupied by the Seller (except as otherwise provided for herein),
maintain keys and have access to such premises and be permitted to utilize the
Purchased Assets notwithstanding the transfer of title
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pursuant to this Agreement. The Seller agrees that its occupancy of the Leased
Premises and use of the Purchased Assets shall be conducted in a manner so as
to not unreasonably interfere with the Buyer's occupancy of the Leased
Premises and use of the Purchased Assets. The Seller shall not remove any
Records or other files or documents from the Leased Premises relating to the
Buyer, the Leased Premises, the Purchased Assets or JISCO. Notwithstanding
this continued occupancy, Seller and his employees shall not be responsible to
Buyer for rent or utilities (excluding telephone, which telephone costs shall
be calculated by the telephone computer for extensions used by the Seller and
the persons listed on Schedule 4.3 hereto or any replacements thereof) . In
the event that the office space currently under construction by Buyer is not
complete on February 28, 1995, Seller and the persons listed on Schedule 4.3
hereto shall continue to have all rights of occupancy and use set forth in
this Section 4.3 until such construction is complete.
(b) After August 1, 1994 and until February 28, 1995 (or such later date
as provided for in the last sentence of clause (a) above), Seller shall have
the right to occupy the office previously used by Xx Xxxxxxx.
(c) At any time on or prior to the Closing Date, the Seller shall have
the right to change the name of JISCO to such other name as shall be
reasonably acceptable to the Buyer.
(d) The Seller covenants that, from and after the date hereof and until
the Closing Date, except as otherwise consented to in writing by the Buyer,
the Seller shall conduct the business of JISCO in the ordinary course and
consistent with prior practice and shall maintain, keep and preserve all of
the Purchased Assets in good condition and repair and maintain insurance
thereon in accordance with present practice. The Seller shall give the Buyer
prompt written notice of any material change in or addition to any of the
information contained in the representations and warranties made by the Seller
in this Agreement or other notice or event affecting any of the Purchased
Assets which occurs after the date hereof and prior to the Closing Date.
Without limiting the generality of the foregoing: (i) Seller will not, without
Buyer's prior written approval, change the certificate of incorporation or
by-laws of JISCO or merge or consolidate or obligate JISCO to do so with or
into any other entity; and (ii) Seller will not, without Buyer's prior written
approval, enter into, or permit JISCO to enter into, any contract, agreement,
commitment or other understanding or arrangement which could have the effect
of binding the Buyer or otherwise create any obligation or liability on the
Buyer.
Section 4.4 Transition. (a) Effective August 31, 1994, the
Buyer is terminating the services of Seller and his company. The
Seller hereby agrees to assist and cooperate with the Buyer and
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its Chief Financial Officer before and after September 1, 1994 for the purpose
of effecting an orderly transition of the Records and accounting services and
functions previously performed by Seller and his company to the Buyer and its
accounting staff.
(b) The termination of the Seller's services by the
Buyer pursuant to clause (a) above shall not apply to Xxxxxxxx
Chicago, L.P., Southeastern Florida Holding Co., Inc., Xxxxxxxx
X.X. XX, Xxxxxxxx L.P. III, Xxxxxxxx X.X. XX, Xxxxxxxx L.P. V,
Xxxxxxxx L.P. VI, Xxxxxxxx L.P. VII and Xxxxxxxx L.P. VIII,
unless Buyer or the appropriate entity shall send a notice to
Seller that the services of Seller will no longer be required,
which notice shall be sent at least fourteen (14) days prior to
the date of termination.
Section 4.5 Notice to Employees. Within one (1) week following the execution
of this Agreement, Seller agrees to notify all of its employees of the
transfer of the accounting services and functions currently performed by the
Seller to the Buyer and that from and after August 29, 1994 the Employees
shall be offered positions with the Buyer and, if the Employees accept
employment with the Buyer, they will become employees of the Buyer under the
supervision of the Buyer and its Chief Financial Officer.
Section 4.6 Indemnification. (a) The Seller shall indemnify and hold harmless
the Buyer and JISCO and their respective affiliates, successors and assigns,
from and against any losses, damages, expenses or liabilities, including,
without limitation, reasonable attorneys' fees, which may be sustained,
suffered or incurred by the Buyer or JISCO, or their affiliates, successors
and assigns, arising from or in connection with (i) the breach of any Seller's
covenants, representations, warranties, agreements, obligations or
undertakings hereunder and (ii) any claim, cost expense, liability or
obligation incurred with respect to the liabilities or obligations of the
Seller not expressly assumed by the Buyer in accordance with this Agreement.
(b) The Buyer shall indemnify and hold harmless the Seller, and his
successors and assigns, from and against any losses, damages, expenses or
liabilities, including, without limitation, reasonable attorneys' fees, which
may be sustained, suffered or incurred by the Seller, or his successors and
assigns, arising from or in connection with (i) the breach of any Buyer's
covenants, representations, warranties, agreements, obligations or
undertakings hereunder, (ii) any claim, cost expense, liability or obligation
incurred with respect to the Assumed Liabilities and (iii) any claim or action
brought against the Seller as a result of the termination of an Employee by
the Buyer during the period from September 1, 1994 through November 30, 1994.
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ARTICLE V -- REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Buyer, and the Buyer in
agreeing to consummate the transactions contemplated by this Agreement has
relied upon such representations and warranties, that:
Section 5.1 Title to the Purchased Assets. The Seller has good, valid and
marketable title to all of the Purchased Assets, free and clear of all
Encumbrances, except for assets which are currently being leased or financed
and which are set forth on Schedule 5.5 hereto. The Seller has, except for
such leased or financed assets which are set forth on Schedule 5.5 hereto, and
on the Closing Date will have, complete and unrestricted power and the
unqualified right to sell, assign, transfer, convey and deliver to the Buyer,
and will transfer and convey to the Buyer at the Closing, and the Buyer will
acquire at the Closing, good, valid and marketable title to the Purchased
Assets free and clear of any Encumbrance whatsoever. The Purchased Assets are
in good operating condition and repair.
Section 5.2 Valid and Binding Agreement. This Agreement has been duly and
validly executed and delivered by the Seller and constitutes a valid and
binding agreement of the Seller, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization or similar laws relating to
creditors' rights generally.
Section 5.3 No Violation, Etc. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby nor
compliance by the Seller with any of the provisions hereof will (i) violate or
conflict with the Certificate of Incorporation of JISCO or any statute, code,
ordinance, rule, regulation, judgment, order, writ, decree or injunction
applicable to JISCO or Seller or (ii) violate, or conflict with, or result in
a breach of any provision of, or constitute a default (or any event that, with
or without due notice or lapse of time, or both, would constitute a default)
under, or result in the termination of, accelerate the performance required
by, or result in the creation of any lien, security interest, charge or other
encumbrance upon any of the properties or assets of the Seller or JISCO under
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument or
obligation of the Seller.
Section 5.4 Consents and Approvals. Except as set forth on Schedule 5.4, no
material permit, consent, approval or authorization of, or declaration, filing
or registration with, any governmental authority is necessary in connection
with the execution and delivery by the Seller of this Agreement or the
consummation by any of it of the transactions contemplated hereby and
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no consent of any third party is required to consummate any of the
transactions contemplated hereby. The sale of the JISCO Stock to the Buyer
pursuant to this Agreement does not constitute an assignment of the lease for
the Leased Premises or require the consent of the landlord of the Leased
Premises or any other party.
Section 5.5 Leases and Other Loans. Except as set forth in Schedule 5.5
hereto, none of the Purchased Assets are subject to any leases or other
security interests. Seller shall acquire title to all leased assets and repay
all loans secured by Purchased Assets before the Closing Date.
Section 5.6 Broker's or Finder's Fees. No agent, broker, investment banker,
person or firm acting on behalf of the Seller or under the authority of the
Seller is or will be entitled to any broker's or finder's fee or any other
commission or similar fee directly or indirectly from any of the parties
hereto in connection with any of the transactions contemplated hereby.
Section 5.7 Litigation. There is no action, proceeding or investigation
pending or threatened against the Seller, and Seller is not aware of any basis
for any such action, proceeding or investigation, which could result in a
liability which would have a material adverse effect on the Purchased Assets,
JISCO or the ability of the Seller to consummate the transactions contemplated
hereunder.
Section 5.8 JISCO. (a) JISCO is duly organized, validly existing and in good
standing under the laws of the State of New York and has the power to own,
lease or operate its properties and to carry on its business as now being
conducted. The authorized capital stock of Company consists of 200 shares of
common stock, no par value, all of which are issued and outstanding. JISCO has
no subsidiaries. The Seller shall furnish to the Buyer on or before the
Closing Date true and complete copies of the certificate of incorporation and
by-laws of JISCO, and all amendments thereto. As of the date hereof JISCO has
not, and on the Closing Date JISCO will have not, adopted by-laws. All issued
shares of capital stock of JISCO are duly authorized, validly issued and
fully-paid and non-assessable. No options, warrants or other rights for the
purchase of any of the capital stock of JISCO or any security convertible into
such stock are authorized and outstanding. The Seller is the registered holder
and beneficial owner of the JISCO stock, free and clear of all Encumbrances.
(b) JISCO has no liabilities, whether absolute, accrued, contingent or
otherwise, except for the Lease and as disclosed in writing by the Seller to
the Buyer. All federal, state, local and foreign income, excise, property,
sales, and other taxes, assessments, governmental charges, penalties, interest
and fines
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due and payable by JISCO and by any other person, firm or corporation which
will or may be liabilities of JISCO, for all periods ending on or before the
Closing Date, have been paid in full. JISCO has filed, or will file prior to
the Closing Date, all federal, state, local and foreign income, excise,
property, sales, withholding, social security, information returns, and other
tax returns, reports and related information ("Returns") required to have been
filed by them, and no extension of the time for filing a Return will be in
effect on the Closing Date. The Returns that have been filed have been
accurately prepared and have been duly and timely filed. There are no actions,
suits, proceedings, investigations or claims now threatened or pending against
JISCO in respect of taxes, governmental charges or assessments, or any matter
under discussion with any governmental authority relating to taxes,
governmental charges or assessments asserted by any such authority.
Section 5.9 Operation. JISCO has not conducted any active business or other
operation at any time during its existence. Its sole function, at all times,
has been as the lessee in respect of the Leased Premises.
Section 5.10 Contracts. All of the Contracts and the Lease are valid and
binding, enforceable in accordance with their respective terms, and are in
full force and effect. Except as set forth in this Agreement, there is not
under any Contract (a) any existing default by the Seller, or JISCO under the
Lease for the Leased Premises, or any event which, after notice or lapse of
time, or both, would constitute a default by Seller or JISCO or result in a
right to accelerate by any other person or a loss of any rights of the Seller
or JISCO and (b) to the best of Seller's knowledge, any default by any other
person, or any event which, after notice or lapse of time, or both, would
constitute a default by any such person or result in a right to accelerate by
the Seller or a loss of any rights of any such person. True and complete
copies of all Contracts and the Lease (together with any and all amendments
thereto) have been delivered to the Buyer.
Section 5.11 Employees. Schedule 4.2 hereto contains a complete and accurate
listing of all of the employees of the Seller who work on financial matters
for the Buyer, their respective salaries and benefits. Each of the Employees
while employed by the Seller is and will continue through the Closing Date to
be an employee at will of Seller, and there are no agreements or
understandings, written or oral, between the Seller and any of the Employees
as to their employment or otherwise. As of the Closing Date, none of the
Employees are or will be owed any accrued vacation, severance, back pay or
other compensation or benefits. This representation shall not affect the
agreement between the Buyer and the Seller set forth in Section 4.2 hereof.
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Section 5.12 Disclaimer. EXCEPT AS SET FORTH IN THIS ARTICLE V
SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED.
ARTICLE VI -- REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller, and the Seller in
agreeing to consummate the transactions contemplated by this Agreement has
relied upon such representations and warranties, that:
Section 6.1 Organization, Standing and Power. The Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware and has the requisite power and authority (corporate and other) to
own, lease and operate its properties, to carry on its business as now being
conducted and to enter into this Agreement and consummate the transactions
contemplated hereby.
Section 6.2 Valid and Binding Agreements. All necessary action on the part of
the Buyer has been taken to authorize the execution and delivery of this
Agreement, the performance of its obligations hereunder and consummation of
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Buyer and constitutes a valid and binding
agreement of the Buyer, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization or similar laws or equitable principles
relating to creditors' rights generally.
Section 6.3 No Violation. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby nor compliance
with any of the provisions hereof will (i) violate or conflict with the
Certificate of Incorporation of the Buyer or any statute, code, ordinance,
rule, regulation, judgment, order, writ, decree or injunction applicable to
the Buyer, or (ii) violate or conflict with, or result in a breach of any of
the provisions of, or constitute a default (or any event which, with or
without due notice or lapse of time, or both, would constitute a default)
under, or result in the termination of, or accelerate the performance required
by, or result in the creation of any lien, security interest, charge or other
encumbrance upon the stock or any of the properties or assets of the Buyer
under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument of the
Buyer.
Section 6.4 Consents and Approvals. No permit, consent, approval or
authorization of, or declaration, filing or registration with, any
governmental authority is necessary to be obtained by Buyer in connection with
the execution and delivery of this
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Agreement by the Buyer or the consummation by the Buyer of the transactions
contemplated hereby and no consent of any third party is required to be
obtained by Buyer to consummate any of the transactions contemplated hereby.
Section 6.5 Broker's or Finder's Fees. No agent, broker, investment banker,
person or firm acting on behalf of the Buyer or under the authority of the
Buyer is or will be entitled to any broker's or finder's fee or any other
commission or similar fee directly or indirectly from any of the parties
hereto in connection with any of the transactions contemplated hereby.
ARTICLE VII -- CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BUYER
All obligations of the Buyer that are to be discharged under this
Agreement are subject to the Seller's fulfillment, at Closing or effective as
of the Closing Date or any of the dates specified herein, of each of the
following conditions (unless expressly waived in writing by the Buyer at any
time at or prior to the Closing) and the Seller shall be use best efforts to
cause each of such conditions to be satisfied:
Section 7.1 Representations and Warranties. On the Closing Date, the
representations and warranties of the Seller set forth in Article V or
elsewhere in this Agreement shall be true and correct in all material respects
as of the date of this Agreement and as of the Closing Date as though such
representations and warranties had been made on and as of the Closing Date and
the Buyer shall have received at the Closing a certificate, dated the Closing
Date, signed by the Seller to such effect.
Section 7.2 Covenants, Agreements and Conditions. The Seller shall have
performed and complied with all covenants, agreements and conditions contained
in this Agreement required to be performed by it on or prior to the Closing
Date, and the Buyer shall have received at the Closing a certificate, dated
the Closing Date, signed by the Seller to such effect.
Section 7.3 Consents and Approval. All consents to be obtained in connection
with the transactions contemplated by this Agreement by the Seller and all
documents incident thereto shall be reasonably satisfactory in form and
substance to the Buyer and its counsel, each of whom shall have received all
such originals or certified or other copies of such documents as either may
reasonably request.
Section 7.4 Proceedings. No action or proceeding shall be pending or
threatened to restrain or prevent the consummation of the transactions
contemplated hereby.
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Section 7.5 Deliveries. The Seller shall have delivered to the Buyer the items
referred to in Section 3.2 or otherwise in this Agreement.
ARTICLE VIII -- CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER
All obligations of the Seller that are to be discharged under this
Agreement at the Closing are subject to the Buyer's fulfillment at the Closing
or effective as of the Closing Date or other dates specified in this Agreement
of each of the following conditions (unless expressly waived in writing by the
Seller at any time at or prior to the Closing) and the Buyer shall use its
reasonable efforts to cause each of such conditions to be satisfied:
Section 8.1 Representations and Warranties. On the Closing Date, the
representations and warranties of the Buyer set forth in Article VI of this
Agreement shall be true and correct in all material respects as of the date of
this Agreement and as of the Closing Date as though such representations and
warranties had been made on and as of the Closing Date, and the Seller shall
have received at the Closing a certificate, dated the Closing Date, signed by
the President or Vice President of the Buyer to such effect.
Section 8.2 Covenants, Agreements and Conditions. The Buyer shall have
performed and complied with all covenants, agreements and conditions contained
in this Agreement required to be performed by it on or prior to the Closing
Date, and the Seller shall have received at the Closing a certificate, dated
the Closing Date, signed by the President or a Vice President of the Buyer to
such effect.
Section 8.3 Consents and Approval. All consents to be obtained in connection
with the transactions contemplated by this Agreement and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Seller and their counsel, Xxxxxxxxx, Xxxxxxx & Xxxxx, L.L.P., each of whom
shall have received all such originals or certified or other copies of such
documents as either may reasonably request.
Section 8.4 Proceedings. No action or proceeding shall be pending or
threatened to restrain or prevent the consummation of the transactions
contemplated hereby.
Section 8.5 Deliveries. The Buyer shall have delivered to the Seller the items
referred to in Section 3.3 or otherwise in this Agreement.
ARTICLE IX - - POST CLOSING MATTERS
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Section 9.1 Further Assurances. Each party hereto shall cooperate with the
other, and execute and deliver, or cause to be executed and delivered, all
such other instruments, including instruments of conveyance, assignment and
transfer, and take all such other actions as may be reasonably requested by
the other party hereto from time to time, consistent with the terms of this
Agreement, to effectuate the purposes and provisions of this Agreement.
Section 9.2 Prorating of Expenses. After the Closing Date, any bills or
requests for payment received by either the Seller or the Buyer in connection
with the Leased Premises, the Business, the Purchased Assets or JISCO which
reflect in whole or part liabilities retained or assumed, respectively, by the
Seller on the one hand, or the Buyer on the other (excluding any federal,
state, or local income taxes), shall be allocated between the Seller and the
Buyer on the basis of the amount of time covered by such xxxx or request that
the liabilities were the responsibility of the Seller or by the Buyer, or as
otherwise appropriate under the terms of this Agreement; provided, however,
that, unless the failure to pay could adversely affect a party or its rights,
neither party shall pay such xxxx or request for payment without the prior
consent of the other party, not to be unreasonably withheld or delayed.
ARTICLE X -- MISCELLANEOUS
Section 10.1 Survival of Representations, Warranties and Agreements. All
representations and warranties of the Buyer and the Seller contained in
Articles V and VI herein and in any certificate executed and delivered by any
of them in connection with this Agreement, shall terminate and expire one (1)
year after the Closing Date. All agreements of the parties contemplating
performance after the Closing Date shall survive the Closing Date until the
expiration of the applicable statute of limitations for any claim relating
thereto.
Section 10.2 Notices. All notices, requests, consents and other communications
hereunder shall be in writing and may be delivered personally (including by
courier) or by first-class registered or certified mail, postage prepaid, or
by recognized overnight delivery service or by telecopy, addressed to the
following addresses or to other such addresses as may be furnished in writing
by one party to the others:
(a) if to the Seller:
Xxxxxx X. Xxxxxxxxx
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
-14-
with a copy to:
Xxxxxxxxx, Xxxxxxx & Xxxxx, L.L.P.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
(b) if to the Buyer:
Xxxxxxxx Convertibles, Inc.
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxxxxx Xxxxxx
Aronsohn & Xxxxxx
1290 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
Telecopy: (000) 000-0000
Service of any such notice or other communication so made by mail
shall be deemed complete on the day of actual delivery thereof as shown by the
addressee's registry or certification receipt.
Section 10.3 Risk of Loss. Legal title, equitable title and risk of loss with
respect to the Purchased Assets shall not pass to the Buyer until the
Purchased Assets are transferred to the Buyer on the Closing Date.
Section 10.4 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to such
jurisdiction's conflicts of laws principles. The parties agree that venue for
any suit, action, proceeding or litigation arising out of or in relation to
this Agreement shall be in any federal or state court in the State of New York
having subject matter jurisdiction.
Section 10.5 Modification; Waiver. This Agreement shall not be altered or
otherwise amended except pursuant to an instrument in writing signed by the
Buyer and the Seller. Any party may waive any misrepresentation by any other
party, or any breach of warranty by, or failure to perform any covenant,
obligation or agreement of, any other party, provided that mere inaction or
failure to exercise any right, remedy or option under this Agreement, or
delaying in exercising the same, will not operate as nor
-15-
shall be construed as a waiver, and no waiver will be effective unless set
forth in writing and only to the extent specifically stated therein.
Section 10.6 Entire Agreement. This Agreement, the schedules and exhibits
hereto and any other agreements or certificates delivered pursuant hereto
constitute the entire agreement of the parties hereto with respect to the
matters contemplated hereby and supersede all previous written or oral
negotiations, commitments, representations and agreements. Notwithstanding
the foregoing, or anything contained herein to the contrary, the parties
hereto agree that nothing contained herein shall be construed to modify or
waive any rights of the Seller or the Buyer under any other contract,
arrangement, agreement or understanding, oral or written, between the Seller
and the Buyer (or any of the Buyer's affiliates) which is not specifically
referred to herein and the Seller and the Buyer hereby reserve any and all
rights which he or it may have with regard to any such agreement, arrangement
or understanding, or with respect to any other claims they may have as to each
other or third parties, including, without limitation, that certain letter
Agreement dated June 25, 1991 and the fact that Seller is designated as the
accountant for Xxxxxxxx L.P. III, Xxxxxxxx X.X. XX, Xxxxxxxx L.P. V, Xxxxxxxx
L.P. VI, Xxxxxxxx L.P. VII and Xxxxxxxx L.P. VIII pursuant to their respective
partnership agreements.
Section 10.7 Assignment; Successors and Assigns. This Agreement may not be
assigned by the Seller or the Buyer without the prior written consent of the
other party. Subject to Section 11.1, all covenants, representations,
warranties and agreements of the parties contained herein shall be binding
upon and inure to the benefit of their respective successors and assigns.
Section 10.8 Public Announcements. Except as provided for herein, no written
public announcement of the transactions contemplated hereby prior to the
Closing or of the terms hereof at any time shall be made by any party without
the prior written consent of the other party, not to be unreasonably withheld
or delayed, except to the extent as may be required by law in the opinion of
counsel to the Buyer or counsel to the Seller, or as the Buyer may determine
reasonably necessary and appropriate in response to inquiries.
Section 10.9 Severability. The provisions of this Agreement are severable, and
in the event that any one or more provisions are deemed illegal or
unenforceable, the remaining provisions shall remain in full force and effect.
Section 10.10 No Third-Party Beneficiary. This Agreement is intended and
agreed to be solely for the benefit of the parties hereto, and no third party
shall accrue any benefit, claim or
-16-
right of any kind whatsoever pursuant to, under, by or through
this Agreement.
Section 10.11 Execution in Counterpart. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
XXXXXXXX CONVERTIBLES, INC.
BY: /s/ Xxxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
XXXXXX X. XXXXXXXXX
-17-
ATTACHMENTS TO PURCHASE AGREEMENT
Schedule 1.1 Property
Schedule 1.2 Contracts, Leases and Agreements
Schedule 1.3 Exempt Personal Property
Exhibit 3.2 Xxxx of Sale, Assignment and
Assumption Agreement
Schedule 4.2 Employees
Schedule 4.3 Seller's Employees
Schedule 5.4 Consents and Approvals
Schedule 5.5 Leases and Other Loans
Schedule 1.1
PROPERTY
Computer System .. Accessories
Telephone System .. Alarm
Desks
File Cabinets
Chairs
Job Costs, Electrician and Upgrades
Storage Shelving
Tax Office
Sound System
Kitchen
Custom Shelving, Wall Shelving
Window Treatments
Bookcases, Light Fixtures
Xerox
Prepaid Tax Service 1995
Security Deposit on Lease
Shredder
Adding Machines, staples, hole punches,
desk accessories, pencil sharpeners,
and storeroom full of supplies (approx.)
All of the furniture and fixtures from the following
rooms which is not set forth on Schedule 1.3:
Executive Office 1st
Executive Office 2nd
Small Conference Room
Administrator' s Office
Schedule 1.2
CONTRACTS, LEASES AND AGREEMENTS
Contract for Computer Maintenance with Adept
Network Technologies
Contract for Telephone Maintenance with PSR Technology Inc.
Contract for Burglar and Fire Alarm SAB Burglar &
Fire Alarms Inc.
Schedule 1.3
EXEMPT PERSONAL PROPERTY
Personal desks pictures
4 wall pictures in Xxxxx Xxxxxxxxx'x office
2 wall pictures in Xxxxx Xxxxxxxxx'x office
2 wall pictures in Xxxxxxxx Xxxxxxxxx'x office
1 Triplex picture in main conference room
11 wall pictures in Xxxxxx Xxxxxxxxx'x office
9 wall pictures in Xxxxx Xxxxxxxxx'x office
1 wall picture in secondary conference room
5 wall pictures in the office extension
Some mementos
Antique lamp
Rollabout file
Personal filing cabinets
Steelmaster organizer filing cabinets
Personal microfilm machine and camera viewer
Software on 1040 Solutions Program
Tax books
6 digital computers and printers (DEC) used
for clients other than Buyer and 7 digital computers and
printers currently in storage
All of Philip's furniture (easily identified)
All Xxxxxx X. Xxxxxxxxx stationery and signs
Personal plants received as presents
EXHIBIT 3.2
XXXX OF SALE, ASSIGNMENT
AND
ASSUMPTION AGREEMENT
--------------------
KNOW ALL PERSONS BY THESE PRESENTS, that XXXXXX X. XXXXXXXXX (the
"Seller"), pursuant to that certain Asset Purchase Agreement (the "Asset
Purchase Agreement') dated as of July 29, 1994, by and among the hereinafter
named Buyer and the Seller, and for good and valuable consideration, the
receipt of which is hereby acknowledged, hereby sells, assigns, transfers,
sets over, conveys and delivers unto XXXXXXX CONVERITBLES, INC., a
Delaware corporation (the "Buyer"), effective as of 12:01 a.. on the date
hereof, (a) all of the issued and outstanding capital stock (the "JISCO
Stock") of JISCO Holding Corp. ("JISCO"), (b) all of the right, title and
interest in and to all property and assets owned by the Seller and used in the
Business and located at the Leased Premises which are listed on Exhibit A
hereto (the "Property"), (C) all right, title and interest of the Seller under
contracts, leases and other agreements which are listed On Exhibit B hereto
(the "Contracts") and (d) all corporate records and books of account of JISCO
and including, without limiting the generality of the foregoing, minute books,
share register books, share certificate books and corporate seals, and all
books and records, correspondence and files of or relating to the business of
the Buyer, Purchased Assets (hereinafter defined) and/or the
employee(collectively, the "Records"); and JISCO Stock, the Property, the
Contracts, and the Records are referred to herein collectively as the
"Purchased Assets").
PROVIDED HOWEVER, that the Purchased Assets shall not include and the
Seller shall retain all of his right, title and interest in and to all of the
following:
(a) cash, cash equivalents and accounts receivable of the Seller as of
the date hereof and the Closing Date;
(b) the personal property owned by the Seller and located at the Leased
Premises listed on Exhibit C hereto; and
(c) any records of the Seller not relating to the Buyer, including,
without limitation, records relating to Xxxx Enterprises, Inc. and any of its
subsidiaries or affiliates (other than the Buyer) and any records relating to
clients of the Seller (other than the Buyer).
TO HAVE AND TO HOLD, the entire right, title and interest of the Seller
in and to the Purchased Assets hereby sold, transferred, conveyed an
assigned to the Buyer, its successors and assigns, to and for its and their
own use and benefit forever.
The Buyer hereby assumes and agrees to pay and discharge, when due all
liabilities and obligations of the Seller which are listed on Exhibit B hereto
arising on or after September 1, 1994 under each Contract assigned to the
8uyer pursuant to this Agreement, or to which the Buyer otherwise specifically
consents in writing (the "Assumed Liabilities"). Except as specifically
2
Set forth herein, the Buyer has not, and shall not be deemed to have,
assumed any other obligations or liabilities of the Seller whatsoever of any
kind or nature, whether accrued, absolute, contingent or otherwise, and the
Seller shall be solely responsible for and fully and promptly pay and
discharge any and all such obligations or liabilities when due.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the
same instrument.
Capitalized terms not defined herein shall have the meanings given such
terms in the Asset Purchase Agreement.
This Agreement shall be effective on the date hereof and shall be binding
upon and inure to the benefit of the parties hereto and to their respective
successors and assigns.
3
IN WITNESS WHEREOF, the Buyer and the Seller have each caused this Xxxx of
Sale, Assignment and Assumption Agreement to be duly executed on this 1st day
of September, 1994.
SELLER:
-------------------------------------------
XXXXXX X. XXXXXXXXX
BUYER:
XXXXXXXX CONVERTIBLES, INC.
By:
--------------------------------------
Name:
Title:
4
EXHIBIT A
---------
Purchased Assets
Computer System . . Accessories
Telephone System . . Alarm
Desks
File Cabinets
Chairs
Job Costs, Electrician and Upgrades
Storage Shelving
Tax office
Sound System
Kitchen
Custom Shelving, Wall Shelving
Window Treatments
Bookcases, Light Fixtures
Xerox
Prepaid Tax Service 1995
Security Deposit on Lease
Shredder
Adding machines, staples, hole punches,
desk accessories, pencil sharpeners,
and storeroom full of supplies
(approx.)
All of the furniture and fixtures from
the following rooms which is not set
forth on Exhibit C:
Executive Office 1st
Executive Office 2nd
Small Conference Room
Administrator's Office
5
EXHIBIT B
---------
Assigned Agreements
Contract for Computer Maintenance with Adept
Network Technologies
Contract for Telephone Maintenance With PSR Technology Inc.
Contract for Burglar and Fire Alarm with SAB Burglar &
Fire Alarms Inc.
6
EXHIBIT 3
---------
Exempt Personal Property
Personal desk pictures
4 wall pictures in Xxxxx Xxxxxxxxx'x office
2 wall pictures in Xxxxx Xxxxxxxxx'x office
2 wall pictures in Xxxxxxxx Xxxxxxxxx'x office
1 Triplex picture in main conference room
11 wall pictures in Xxxxxx Si1verman's office
9 wall pictures in Xxxxx Xxxxxxxxx'x office
1 wall picture in secondary conference room
5 wall pictures in the office extension
Some mementos
Antique lamp
Rollabout file
Personal filing cabinets
Steelmaster organizer filing cabinets
Personal microfilm machine and camera viewer
Software on 1040 Solutions Program
Tax books
6 digital computers and printers (DEC) used for clients other
than Buyer and 7 digital computers and printers currently in
storage
All of Philip's furniture (easily identified)
All Xxxxxx X. Xxxxxxxxx stationery and signs
Personal plants received as presents
7
Schedule 4.2
Employees
Yearly
Salary
as of 7/29/94 Benefits
------------- --------
Xxxxxx Xxxx $ 30,000
Xxxx Xxxxx Xxxxxxxx 22,100
Xxxx Baricevio 22,620
Xxxxxxxx Xxxxxxxxxxxxxx Z3,000
Xxxxxxx Xxxxxxxxxx 22,100
E1izabeth Tellona * 314.00 pr hr.
Xxxxx Xxxx * 7.O0 pr hr
Xxxxxxxx Xxxxxxxx 23,4OO
Xxxxx Xxxxxx 24,500
Xxxxxx Xxxxxxx * 7.00 pr br.
Xxxxx Xxxxxxx 32,000
Dona1d Xxxxxxx * 7.00 pr hr.
Xxxxxxxx Xxxxxxxxx * 7.00 pr hr.
Xxxxxx Xxxxxx 26,000
Xxxxxx Xxxxxxxx 33,O0O
Xxxxxxxx Xxxxxxx 40,000
Xxxxx XxXxxxxxx 25,0OO
Xxxxx Xxxxxxx 43,000
Xxxxx Xxx 70,000 CPE courses req
by law.
Annual renewal of
all prof.
licenses
Xxxxx Xxxxxx 33,000 Education Courses
limited to $2,OOO
per year.
Xxxx Xxxx 45,000
Xxxx Xxxxxxx 26,000
Xxxxxx Xxxxxxxxxx 75,000
Xxxxxxxx Xxxxx 30,000
Schedule 4.3
SELLER'S EMPLOYEES
Xxxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxx
Xxxx Xxxxxx
Xxxx Xx Xxxxxx
Xxxxx Reppazo
Xxxxx Xx
Xxxxxx Xxxxxxxx
Xxxxxxxx Xxxxxxx
Xxxxx Xxxxxxxx
Xxxxxx Gigan
Xxxxxxxx Xxxxxxx
Schedule 5.4
CONSENTS AND APPROVALS
Contract for Computer Maintenance with Adept Network
Technologies
Contract for Telephone Maintenance with PST Technology Inc.
Contract for Burglar and Fire Alarm SAB Burglar &
Fire Alarms Inc.
Schedule 5.5
LEASES AND OTHER LOANS
ATT Capital (phone system)
WASCO Funding (equipment)
Chase Manhattan (equipment)
Xerox Corp. (equipment)
