ASSET CONTRIBUTION AGREEMENT AND ASSIGNMENT
THIS ASSET CONTRIBUTION AGREEMENT AND ASSIGNMENT ("Agreement") is made
and entered into this 10th day of May, 2000 by Xxxxxx Xxxx ("Shareholder") in
favor of xxxxxxxxxxxx.xxx, Inc., a Delaware corporation (the "Company").
RECITALS:
WHEREAS, Shareholder is the owner of the entire right, title and
interest in and to the domain name "xxx.xxxxxxxxxxxxxxxxxxx.xxx" and certain
computer and related hardware, hardware configurations, operations systems and
related software, proprietary and other software algorithms, and other data and
facilities assembled by Shareholder for purposes of developing, operating and
maintaining a currently existing site on the World Wide Web using the foregoing
domain name (such site is referred to hereinafter as the "Web Site"); and
WHEREAS, Shareholder desires to become a shareholder in the Company by
transferring to the Company full right, title and interest in and to all of the
personal property of every kind or nature used in connection with the operation
of the Web Site (the "Assets"), including, without limitation, the personal
property that is more fully described in ARTICLE ONE below and on Schedules
1.1(a), 1.1(b) and 1.1(c) hereto, free and clear of any security interest, lien,
mortgage, encumbrance, claim, or limitation or restriction on the transfer
thereof, except as set forth on Schedule 2.5 hereto; and
WHEREAS, in consideration of his transfer of the Assets to the Company,
the Company is willing to issue to Shareholder 1,000,000 shares of the Company's
common stock, $.01 par value per share (the "Common Stock"); and
WHEREAS, the Company and Shareholder desire to memorialize in writing
the terms, provisions and conditions of the transfer of the Assets and the
Company's issuance of the Common Stock as aforesaid and certain other matters
relating thereto;
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises, covenants,
agreements, representations and warranties set forth hereinafter, $10.00 and
other good and valuable consideration (the receipt, adequacy and sufficiency of
which each of the Company and Shareholder hereby acknowledges) and subject to
the terms, provisions and conditions hereof, each of the Company and Shareholder
hereby agrees as follows:
ARTICLE ONE
CONTRIBUTION OF ASSETS AND
ISSUANCE OF COMMON STOCK
1.1 Contribution of Assets. In consideration of the issuance of Common
Stock to Shareholder pursuant to Section 1.2 below, Shareholder does hereby
assign, transfer, convey and contribute to the capital of the Company (without
any further act or deed except as otherwise indicated herein), full right, title
and interest in and to the Assets, and the Company does hereby acquire and
receive full right, title and interest in and to the Assets, free and clear of
any security interest, lien, mortgage, encumbrance, claim, or limitation or
restriction on the transfer thereof, except as set forth on Schedule 2.5 hereto.
The Company hereby acknowledges receipt of the possession of the Assets. The
Assets consist of all privileges, rights, claims, causes of action, interests,
properties, options and assets associated with the Web Site of every kind and
description and wherever located which are used or intended for use in
connection with, or which are necessary to the continued conduct of, the
operations and business of the Web Site as presently being conducted, including,
without limitation, all of the following:
(a) Any and all names, logos, slogans, colors, common law
rights, state registrations, federal registrations, whether owned or
not, on primary or secondary registrations, in the United States and
worldwide, of, for, or relating to the Web Site; together with all
copyright powers, rights, and benefits relating to the foregoing,
including, but not limited to, the right to produce, sell, modify,
distribute, license, and copy in full or in part those items described
above; all related trademarks, trade names, service marks, logos,
marketing concepts, and trade dress of the foregoing; all rights,
including copyright and other intellectual property rights, in the
foregoing and in all advertising, instructional, or technical
documents, whether printed or computerized, relating to the foregoing;
legal title and ownership or assignment of any and all Internet
properties, including, but not limited to, domain names, domain
addresses, unique URL's, and service agreements relating to the
foregoing, including, without limitation, the domain names
"xxx.xxxxxxxxxxxxxxxxxxx.xxx" and "xxxxxxxxxxxx.xxx"; any and all
inventions, conceptions, improvements, enhancements, derivatives, or
modifications to any of the foregoing made by Shareholder or his agents
hereafter; all rights to enforce and/or recover, for infringement or
other legal claims, past, present, or future, against any third party,
and any and all rights to apply for, acquire, or retain the benefit of
any patentable subject matter derived from or relating to the foregoing
(the items and matters described in this Section 1.1(a) include, but
are not limited to, all of those items and matters listed and described
on the attached Schedule 1.1(a)); and
(b) All federal, state and local permits, authorizations,
certificates, approvals, registrations, variances, exemptions,
franchises, rights of other kind and character which are required by
law with respect to the operations and business of the Web Site as it
is now being conducted, including, but not limited to, all of those
listed and described on the attached Schedule 1.1(b); and
(c) All agreements, contracts, understandings, plans,
obligations, commitments and other documents which are material to
and/or utilized by Shareholder in the operations and business of the
Web Site, including, but not limited to, all of those listed and
described on the attached Schedule 1.1(c); and
(d) All books, records, papers and instruments of whatever
nature and wherever located which (i) relate to and/or are utilized in
the operations or business of the Web Site, or (ii) are required or
necessary in order for the Company to conduct the operations and
business of the Web Site hereafter in the manner in which it is
presently being conducted, including, without limitation, accounting
and financial records, maintenance and production records, operations
and management reports, personnel and labor relations records, customer
lists, sales records and other customer data relating to the operations
and business of the Web Site; and
(e) All other or additional privileges, rights, claims, causes
of action, interests, properties, options and assets associated with
the Web Site of every kind and description and wherever located which
are used or intended for use in connection with, or which are necessary
to the continued conduct of, the operations and business of the Web
Site as presently being conducted.
1.2 Issuance of Stock. In consideration of the contribution of the
Assets to the Company, the Company issued to Shareholder on the date hereof, and
Shareholder received on the date hereof, 1,000,000 shares of the Common Stock.
Shareholder hereby acknowledges receipt of stock certificates representing the
aforementioned number of shares of Common Stock.
1.3 Assumed Liabilities. The Company hereby agrees to assume and be
obligated to pay, perform or discharge only those liabilities that are expressly
set forth on Schedule 1.3 hereto (referred to hereinafter as the "Assumed
Liabilities"). The Company assumes no obligations, liabilities and debts other
than the Assumed Liabilities. Shareholder agrees to pay or perform timely any
and all obligations, liabilities and debts of Shareholder other than for the
Assumed Liabilities.
1.4 Consents. Shareholder shall use his best efforts to assist in
obtaining any third party consents necessary to contribute the Assets to the
Company. To the extent that any of the Assets are not assignable without the
consent of another party and such consent has not been obtained on or prior to
the date hereof, such Assets shall not be assigned or attempted to be assigned
if such assignment or attempted assignment would constitute a breach thereof.
While Shareholder is trying to procure all necessary consents, Shareholder and
the Company shall cooperate in any reasonable arrangements designed to provide
to the Company the benefits of any such Assets, including enforcement at the
cost and for the account of the Company of any and all rights of Shareholder
against the other party thereto arising out of a cancellation or breach by such
other party or otherwise.
ARTICLE TWO
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
OF SHAREHOLDER
Shareholder hereby represents, warrants and agrees to and with the
Company that (except as expressly set forth on a disclosure schedule attached
hereto and signed by the Company):
2.1 Capacity to Enter into Agreement. Shareholder has full right, power
and authority to execute and deliver this Agreement and all other agreements,
documents and instruments to be executed in connection herewith and perform his
obligations hereunder and thereunder. When this Agreement and all other
agreements, documents and instruments to be executed by Shareholder in
connection herewith are executed by Shareholder and delivered to the Company,
this Agreement and such other agreements, documents and instruments will vest in
the Company full right, title and interest in and to the Assets, free and clear
of any and all encumbrances, security interests, liens, charges, claims,
restrictions or limitations, whatsoever, by any person of any kind, including
those on the transfer thereof, whether known or unknown, and will constitute the
valid and binding agreements of Shareholder enforceable against Shareholder in
accordance with their respective terms.
2.2 Conflicts. The execution, delivery, and consummation of the
transactions contemplated by this Agreement will not (a) violate, conflict with
or result in the breach or termination of, or otherwise give any other
contracting party the right to terminate, or constitute a default (by way of
substitution, novation or otherwise) under the terms of, any contract to which
Shareholder is a party or by which Shareholder is bound or by which any of the
Assets is bound or affected, (b) violate any judgment against, or binding upon,
Shareholder or the Assets, or (c) result in the creation of any lien, charge or
encumbrance upon any Assets pursuant to the terms of any such contract.
2.3 Consents. No consent from, or other approval of, any governmental
entity or any other person, which has not been obtained, is necessary in
connection with the execution, delivery, or performance of this Agreement by
Shareholder.
2.4 Financial Information. [TO COME]
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2.5 Assets. Shareholder has good and indefeasible title to all of the
Assets, free and clear of all mortgages, liens, pledges, charges, or
encumbrances of any nature whatsoever, except (a) liens and encumbrances
expressly disclosed in Schedule 2.5, and (b) liens for current taxes not yet due
and payable.
2.6 Contracts. Schedule 1.1(c) contains a true, correct and complete
list of all contracts, agreements, commitments and leases relating to the Web
Site, whether or not made in the ordinary course of business, that either (a)
involve or may involve aggregate payments by or to Shareholder exceeding $5,000
per year; (b) are not by their terms terminable by Shareholder without premium
or penalty within 60 or fewer days notice, or (c) otherwise materially adversely
affect or, to the knowledge of Shareholder, might materially adversely affect
the financial condition, property, assets, liabilities (accrued, absolute,
contingent, or otherwise), income or business of the Web Site. Except as set
forth on Schedule 2.6 hereto,
(a) All leases, contracts, agreements, arrangement or commitments
relating to the Web Site are in good standing, valid,
and effective; and
(b) There is not, under any such lease, contract, agreement,
arrangement or commitment, any existing or prospective default
or event of default by Shareholder or event which with notice
or lapse of time, or both would constitute a default and in
respect to which Shareholder has not taken adequate steps to
prevent a default from occurring; and, to the knowledge of
Shareholder, no other party to any such lease, contract,
agreement, arrangement or commitment, is in default or breach
thereof nor has any event occurred which with notice or lapse
of time would constitute a breach or default of any of such
lease, contract, agreement, arrangement or commitment.
2.7 Permits. Schedule 1.1(b) contains a true, correct and
complete list of all licenses, permits and authorizations
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relating to the Web Site. Except as set forth on Schedule 2.7 hereto,
(a) Shareholder holds all licenses, permits and authorizations
required to carry on the business of the Web Site, and
all such licenses, permits and authorizations are in good
standing;
(b) Shareholder is in full compliance with and not in default or
violation with respect to any term or provision of any
of its licenses, permits and authorizations;
(c) No notice of pending, threatened, or possible violation or
investigation in connection with, or loss of, any license,
permit, or authorization relating to the Web Site, has been
received by Shareholder;
(d) Shareholder has no knowledge that the issuance of such a
notice is being considered or of any facts or circumstances
which form the basis for the issuance of such a notice; and
(e) No license, permit, or authorization of relating to the Web
Site is affected by the transactions provided for herein or
contemplated hereby.
2.8 Intellectual Property.
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(a) "Proprietary Rights" shall mean all of the following items
owned by or licensed to Shareholder for the Web Site, and
any and all corresponding rights that, prior to the date
hereof, may be secured by Shareholder throughout the world:
(i) patents, patent applications, patent disclosures and
inventions (whether or not patentable and whether or not
reduced to practice) and any reissue, continuation,
continuation-in-part, division, revision, extension or
reexamination thereof; (ii) trademarks, service marks, trade
dress, logos, trade names and corporate names together
with all goodwill associated therewith, copyrights
registered or unregistered and copyrightable works and mask
works; (iii) all registrations, applications and renewals
for any of the foregoing; (iv) trade secrets and
confidential information (including, without limitation,
ideas, formulae, compositions, know-how, manufacturing and
production processes and techniques, research and development
information, drawings, specifications, designs, plans,
proposals, technical data, financial, business and
marketing plans, and customer and supplier lists and related
information); (v) computer software and software systems
(including, without limitation, data, databases and related
documentation); (vi) Internet properties, including, but not
limited to, domain names, addresses, unique URL's and
service agreements; (vii) other proprietary rights; (viii)
licenses or other agreements to or from third parties
regarding the foregoing; and (ix) all copies and tangible
embodiments of the foregoing (in whatever form or medium),
in each case including, without limitation, the items set
forth on Schedule 1.1(a).
(b) Schedule 1.1(a) sets forth a complete and correct list of: (i)
all patented or registered Proprietary Rights and all pending
patent applications or other applications for registration of
Proprietary rights owned, filed or used by Shareholder, (ii)
all trade names and unregistered trademarks used by
Shareholder, (iii) all unregistered copyrights, mask works,
and computer software owned or used by Shareholder, and (iv)
all licenses or similar agreements or arrangements to which
Shareholder is a party either as licensee or licensor for the
Proprietary Rights.
(c) Except as set forth in Schedule 1.1(a), (i) Shareholder owns
and possesses all right, title and interest in and to,
or has a valid and enforceable right to use, each of the
Proprietary Rights free and clear of all liens, and no
claim by any third party contesting the validity,
enforceability, use or ownership of any of the Proprietary
Rights has been made, is currently outstanding or to
Shareholder's knowledge is threatened, (ii) the Proprietary
Rights
comprise all proprietary rights necessary for the operation
of the business of the Web Site as currently conducted,
and as currently proposed to be conducted, (iii) the loss or
expiration of any Proprietary Right or related group of
Proprietary Rights has not and would not result in a material
adverse affect on the business of the Web Site, and no
such loss or expiration is threatened or pending, (iv)
Shareholder has not received any notices of, nor is
Shareholder aware of any facts which indicate a likelihood of,
any infringement or misappropriation by, or conflict
with, any third party with respect to any Proprietary Right
including, without limitation, any demand or request
that Shareholder license rights from a third party, (v)
Shareholder has not infringed, misappropriated or otherwise
conflicted with any proprietary rights of any third parties
and Shareholders are not aware of any infringement,
misappropriation or conflict which shall occur as a result
of the continued operation of the business of the Web
Site as currently conducted or as currently proposed to be
conducted, and (vi) the Proprietary Rights owned or
licensed to Shareholder have not been infringed,
misappropriated or conflicted by any third party. In
addition, Shareholder has and is passing on to Company all
rights to use the names and trademarks "wallstreetinterview.
com" and "xxxxxxxxxxxx.xxx" for use in connection with the
business of the Web Site. In addition, Shareholder represents
that the Company may use the content currently and
previously featured on the Web Site as a guide for further
use and the Company can copy the format of such content.
(d) All of the Proprietary Rights are or shall be owned by, or
licensed to, Shareholder immediately prior to the consummation
of the transactions provided for herein. The transactions
contemplated by this Agreement shall have no adverse effect on
Shareholder's right, title and interest in and to any of the
Proprietary Rights. Shareholder has not disclosed any of his
trade secrets or confidential information pertaining to the
Web Site and existing at the date of this Agreement to any
third party other than pursuant to a written confidentiality
agreement. Shareholder has taken all other commercially
reasonable actions to maintain and protect the Proprietary
Rights.
(e) As of the date hereof, Purchaser is entitled to all income,
royalties, damages and payments relating to any of the
Proprietary Rights due or payable to Shareholder as of the
date hereof or at any time hereafter, including, without
limitation, damages and payments for past, present or future
infringements or misappropriations of any Proprietary Rights,
and the right to xxx and recover for past infringements or
misappropriations of any Proprietary Rights.
2.9 Litigation. There is no pending suit, action, or legal,
administrative, arbitration, or other proceeding or governmental investigation
to which Shareholder is a party or which adversely affects or might adversely
affect the business of the Web Site. Shareholder is not subject to any judgment,
order, writ, injunction, decree, or award applicable to the business of the Web
Site of any court or other governmental instrumentality or arbitrator. There is
no action, suit, proceeding, or claim pending or, to the knowledge of
Shareholder, threatened against Shareholder by persons not a party to this
Agreement wherein an unfavorable decision, ruling, or finding would render
unlawful or otherwise adversely affect the consummation of the transactions
contemplated by this Agreement.
2.10 Compliance with Law. Shareholder is not in violation of, or in
default with respect to, or in alleged violation of or alleged default with
respect to, any applicable law, rule, regulation, permit, or any writ or decree
of any court or any governmental commission, board, bureau, agency, or
instrumentality, including without limitation, any laws, ordinances, rules,
regulations, permits, or orders relating to the business of the Web Site, or the
business operations and practices, health and safety, and employment practices
with respect to the Web Site. Shareholder is not delinquent with respect to any
report required to be filed with any governmental commission, board, bureau,
agency, or instrumentality, or with any trade association or certification
organization that has in the past certified or endorsed the business of the Web
Site. Shareholder is not delinquent with respect to any reports required by
private covenants or agreements with respect to the Web Site.
2.11 Successor Liability. The Company will have no successor
liability for any liability of Shareholder (relating to any
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taxes or otherwise) as a result of the Company's acquisition of the Assets.
2.12 Finder's Fees; Certain Expenses. All negotiations relative to this
Agreement and the transactions contemplated hereby have been carried on by
Shareholder, and his counsel directly with the Company and its counsel, without
the intervention of any other person as the result of any act of any of them,
and as far as is known to Shareholder, without the intervention of any other
person in such manner as to give rise to any valid claim against any of the
parties hereto for a brokerage commission, finder's fee, or any similar payment.
2.13 Transactions with Affiliated Parties. There are no transactions
currently engaged in between Shareholder and any party affiliated with
Shareholder relating to the business of the Web Site. Except for the ownership
of non-controlling interests in securities of corporations the shares of which
are publicly traded, Shareholder has no investment or ownership interest,
directly, indirectly, or beneficially, in any competitor or potential
competitor, major supplier, or customer of the business of the Web Site.
2.14 Untrue Statements. This Agreement, the schedules and exhibits
hereto, and all other documents and information furnished by any Shareholder or
his representatives pursuant hereto or in connection herewith do not include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements made herein and therein not misleading or otherwise.
ARTICLE THREE
REPRESENTATIONS, WARRANTIES, AND AGREEMENTS
OF THE COMPANY
The Company hereby represents, warrants, and agrees to and with
Shareholder, that:
3.1 Organization and Standing of the Company. The Company is a
corporation duly organized, validly existing, and in good standing under the
laws of the state of Delaware.
3.2 Capacity to Enter into Agreement. The Company has full right, power
and authority to execute and deliver this Agreement and all other agreements,
documents and instruments to be executed in connection herewith and perform such
its or his obligations hereunder and thereunder. The execution and delivery by
the Company of this Agreement and all other agreements, documents and
instruments to be executed by the Company in connection herewith have been
authorized by all necessary corporate action by the Company. When this Agreement
and all other agreements, documents and instruments to be executed by the
Company in connection herewith are executed by the Company and delivered to the
Company, this Agreement and such other agreements, documents and instruments
will constitute the valid and binding agreements of the Company or enforceable
against the Company in accordance with their respective terms.
3.3 Conflicts. The execution, delivery, and consummation of the
transactions contemplated by this Agreement will not (a) violate, conflict with
or result in the breach or termination of, or otherwise give any other
contracting party the right to terminate, or constitute a default (by way of
substitution, novation or otherwise) under the terms of, any contract to which
the Company is a party or by which the Company is bound or by which any of the
assets of the Company is bound or affected, (b) violate any judgment against, or
binding upon, the Company or upon the assets of the Company, (c) result in the
creation of any lien, charge or encumbrance upon any assets of the Company
pursuant to the terms of any such contract, or (d) violate any provision in the
charter documents, bylaws or any other agreement affecting the governance and
control of the Company.
3.4 Consents. No consent from, or other approval of, any governmental
entity or any other person, which has not been obtained, is necessary in
connection with the execution, delivery, or performance of this Agreement by the
Company.
3.5 Litigation. There is no action, suit, proceeding, or claim pending
or, to the knowledge of the Company, threatened against the Company by persons
not a party to this Agreement wherein an unfavorable decision, ruling, or
finding would render unlawful or otherwise adversely affect the consummation of
the transactions contemplated by this Agreement.
3.6 Finder's Fees. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by the Company and its
counsel directly with Shareholder, and his counsel, without the intervention of
any other person as the result of any act by the Company, and so far as is known
to the Company, without the intervention of any other person in such manner as
to give rise to any valid claim against any of the parties hereto for a
brokerage commission, finders' fee, or any similar payment.
ARTICLE FOUR
ADDITIONAL AGREEMENTS
4.1 Further Assurances. Following the date hereof, Shareholder shall
execute and deliver such other documents, and take such other actions, as may be
reasonably requested by the Company to complete the transactions contemplated by
this Agreement and to perfect in the Company title to the Assets. Following the
date hereof, the Company shall execute and deliver such other documents, and
take such other actions, as may be reasonably requested by Shareholder to
complete the transactions contemplated by this Agreement and to perfect in
Shareholder title to the Common Stock to be issued to Shareholder pursuant to
ARTICLE ONE hereof.
4.2 Non-Compete Agreement. In order to induce the Company to enter into
this Agreement, Shareholder agreed to enter into the Non-Compete Agreement
attached hereto as Exhibit 4.2.
4.3 Publicity. The parties hereto shall jointly prepare any press
release or other public announcement relating to this Agreement, except that the
foregoing shall not prevent any party hereto or any affiliate thereof from
issuing any press release required by applicable law.
ARTICLE FIVE
SURVIVAL AND INDEMNITY
5.1 Survival of Representations and Warranties. All of the
representations and warranties made by the parties hereto in this Agreement or
pursuant hereto, shall be continuing and shall survive the closing hereof and
the consummation of the transactions contemplated hereby, notwithstanding any
investigation at any time made by or on behalf of any party hereto.
5.2 Indemnification by Shareholder. Shareholder shall protect,
indemnify and hold harmless the Company, and its stockholders, directors,
officers, employees, agents, affiliates, successors and assigns, from any and
all demands, claims, actions, causes of actions, lawsuits, proceedings,
judgments, losses, damages, injuries, liabilities, obligations, expenses and
costs (including costs of litigation and attorneys' fees), arising from any
breach of any agreement, representation or warranty made by any of him in this
Agreement.
5.3 Indemnification by the Company. The Company shall protect,
indemnify and hold harmless Shareholder, and his agents, affiliates, successors
and assigns, from any and all demands, claims, actions, causes of actions,
lawsuits, proceedings, judgments, losses, damages, injuries, liabilities,
obligations, expenses and costs (including costs of litigation and attorneys'
fees), arising from any breach of any agreement, representation or warranty made
by it in this Agreement.
5.4 Board Committee. In connection with the other transactions provided
for in or contemplated by this Agreement and in order to properly implement the
indemnification obligations provided for in Section 5.2, the Company created a
committee (the "Committee") of its board of directors composed of one person
appointed by Purchaser. The Committee was given full authority on behalf of the
Company to decide whether or not to assert any claims for indemnification under
Section 5.2 and to take all actions and make all decisions on behalf of the
Company in the event the Committee decides to assert any such claims. A copy of
the documentation creating the Committee and appointing its initial member is
attached hereto as Exhibit 5.4.
ARTICLE SIX
MISCELLANEOUS
6.1 Notices. Any notices, requests, demands, or other communications
herein required or permitted to be given shall be in writing and may be
personally served or sent by United States mail and shall be deemed to have been
given if personally served, when served, or if mailed, when deposited in the
mail and shall be deemed to have been received if personally served, when
served, or if mailed at 12:00 noon, Houston, Texas time on the third business
day after deposit in the United States mail with postage pre-paid by certified
or registered mail and properly addressed. As used in this Agreement, the term
"business day" means days other than Saturdays, Sundays, and holidays recognized
by Federal banks. For purposes of this Agreement, the addresses of the parties
hereto shall be the addresses as set forth on the signature pages of this
Agreement until a party subsequently notifies all other parties in writing of a
change of address.
6.2 Counterparts. This Agreement may be executed in any number of
counterparts and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one and the
same instrument.
6.3 Amendments and Waivers. This Agreement may be amended, modified, or
superseded only by written instrument executed by all parties hereto. Any waiver
of the terms, provisions, covenants, representations, warranties, or conditions
hereof shall be made only by a written instrument executed and delivered by the
party waiving compliance. Any waiver granted by a corporate party hereto shall
be effective only if executed and delivered by the chief executive officer,
president, or any vice president of such party. The failure of any party at any
time or times to require performance of any provision hereof shall in no manner
affect the right to enforce the same. No waiver by any party of any condition,
or of the breach of any term, provision, covenant, representation, or warranty
contained in this Agreement in one or more instances shall be deemed to be or
construed as a further or continuing waiver of any such condition or breach or a
waiver of any other condition or the breach of any other term, provision,
covenant, representation, or warranty.
6.4 Time of Essence. Time is of the essence in the performance of
this Agreement.
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6.5 Captions. The captions contained in this Agreement are solely for
convenient reference and shall not be deemed to affect the meaning or
interpretation of any Article, Section, or paragraph hereof.
6.6 Entire Agreement. This Agreement (including the schedules and
exhibits hereto, the Financial Statements, and all supporting agreements
referred to herein, all of which are by this reference fully incorporated into
this agreement) sets forth the entire agreement and understanding of the parties
with respect to the transactions contemplated hereby, and supersedes all prior
agreements, arrangements, and understandings relating to the subject matter
hereof.
6.7 Successors and Assigns. All of the terms, provisions, covenants,
representations, warranties, and conditions of this Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the parties hereto
and their respective heirs, legal representatives, assigns, and successors.
6.8 Knowledge, Gender, and Certain References. A representation or
statement made herein to the knowledge of any corporate party refers to the
knowledge or belief of the companies' directors, officers, and attorneys,
regardless of whether the knowledge of such person was obtained outside of the
course and scope of his corporate employment or duties, and regardless of
whether any such person's interests are adverse to such entity in respect of the
matters as to which his knowledge is attributed. Whenever from the context it
appears appropriate, each term stated in either the singular or the plural shall
include both the singular and the plural, and pronouns stated in the masculine
or the neuter gender shall include the masculine, the feminine and the neuter
gender. The terms "hereof," "herein," or "hereunder" shall refer to this
Agreement as a whole and not to any particular Article, Section, or paragraph
hereof.
6.9 Applicable Law. THIS AGREEMENT SHALL BE GOVERNED EXCLUSIVELY BY ITS
TERMS AND BY THE LOCAL, INTERNAL LAWS OF THE STATE OF DELAWARE. Each party
hereto hereby acknowledges and agrees that he or it has consulted legal counsel
in connection with the negotiation of this Agreement and that he or it has
bargaining power equal to that of the other parties hereto in connection with
the negotiation and execution of this Agreement. Accordingly, the parties hereto
agree that the rule of contract construction that an agreement shall be
construed against the draftsman shall have no application in the construction or
interpretation of this Agreement.
6.10 Severability. If any term, provision, covenant, or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void,
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions shall remain in full force and effect and shall in no way be
affected, impaired, or invalidated.
6.11 Costs, Expenses and Fees. Each party hereto agrees hereby to pay
all costs, expenses, and fees incurred by him or it in connection with the
transactions contemplated hereby, including, without limitation, all attorneys'
and accountants' fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"COMPANY" "SHAREHOLDER"
XXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx Xxxx /s/ Xxxxxx Xxxx
----------------------------------------- ---------------------------
Xxxxxx Xxxx, President Xxxxxx Xxxx, individually
Address:_____________________________ Address:____________________________
------------------------------------ ---------------------------
EXHIBIT 4.2
NON-COMPETE AGREEMENT
EXHIBIT 5.4
COMMITTEE DOCUMENTATION
SCHEDULE 1.1(a)
INTELLECTUAL PROPERTY
SCHEDULE 1.1(b)
PERMITS
SCHEDULE 1.1(c)
CONTRACTS
