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ASSET PURCHASE AGREEMENT
DATED
DECEMBER 29, 1999
BETWEEN
XXX.XXX, INC.
AND
KPT PROPERTIES, L.P.
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ASSET PURCHASE AGREEMENT
AGREEMENT dated as of December 29, 1999, between KPT Properties, L.P.,
a Delaware limited partnership ("Seller"), and xxx.xxx, Inc., a Maryland
corporation (the "Buyer").
WITNESSETH:
WHEREAS, Seller conducts a business selling apparel and other
merchandise online (the "Business");
WHEREAS, Buyer desires to purchase substantially all of the assets of
the Business from Seller, and Seller desires to sell substantially all of the
assets of the Business to Buyer, upon the terms and subject to the conditions
hereinafter set forth;
NOW THEREFORE, in consideration of the foregoing and the agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchase and Sale.
Upon the terms and subject to the conditions of this
Agreement, the Buyer agrees to purchase from Seller and Seller agrees to sell,
transfer, assign and deliver, or cause to be sold, transferred, assigned and
delivered, to the Buyer at the Closing, free and clear of any and all Liens (as
defined below), all of the assets set forth below (the "Purchased Assets"):
a. All rights under the contracts, agreements, leases,
commitments, sales and purchase orders and other instruments
relating to the Business, including without limitation the
items listed on Schedule 1.1(a) (collectively, the
"Contracts").
b. All transferable business licenses, permits or other
governmental authorizations relating to the Business,
including without limitation the items listed on Schedule
1.1(b).
c. All accounts, notes and other receivables relating to the
Business.
d. All of Seller's rights, claims, credits, causes of action or
rights of set-off against third parties relating to the
Purchased Assets, including, without limitation, unliquidated
rights under manufacturers' and vendors warranties.
e. All books, records, files and papers, whether in hard copy or
computer
format, used in the Business, including, without
limitation, sales and promotional literature, manuals and
data, sales and purchase correspondence, lists of present and
former suppliers and lists of present and former customers.
f. All computer software programs and data used in connection
with the Business.
g. All raw materials, work-in-process, finished goods, supplies
and other inventories of the Business.
h. All personal property and interests therein listed on Schedule
1.1(h).
i. A six-month exclusive, non-assignable, royalty-free license of
all patents, copyrights, trademarks, servicemarks, service
names, technology, trade secrets, inventions, proprietary
data, formulae, research and development data, computer
software programs and other intangible property (excluding the
name "Konover") and any applications for the same, used
primarily in the Business, including without limitation the
items listed on Schedule 1.1(i).
j. All rights to the web site maintained to conduct the Business.
k. All prepaid expenses to the extent relating to the operation
of the Business.
l. All goodwill associated with the Business or the Purchased
Assets, together with the right to represent to third parties
that Buyer is the successor to the Business.
As used herein, "Lien" shall mean any conditional sale agreement, default of
title, easement, encroachment, encumbrance, hypothecation, infringement, lien,
mortgage, pledge, reservation, restriction, security interest, title retention
or other security arrangement, or any adverse right or interest, charge, or
claim of any nature whatsoever of, on, or with respect to any property or
property interest.
1.2 Purchase Price. The purchase price (the "Purchase Price") for the
Purchased Assets sold hereunder shall be (i) 95,000 shares of non-voting stock
(the "Shares") which represent 95% of the capital stock of the Buyer, and (ii) a
promissory note in the amount of $3,311,664 in the form of Exhibit A hereto (the
"Note"). The Company shall convey the Shares free and clear of any and all
Liens, except for restrictions on resale pursuant to applicable state and
federal securities laws.
1.3 Assumption of Liabilities. Upon the terms and subject to the
conditions of this Agreement, Buyer agrees, effective as of the date hereof, to
assume all liabilities and obligations of Seller arising under the Contracts
(other than (i) obligations for the payment of money, which are retained by the
Seller and (ii) liabilities or obligations attributable to any failure by Seller
to comply with the terms thereof (the "Assumed Liabilities").
1.4 Excluded Liabilities. Notwithstanding any other writing to the
contrary, Buyer is assuming only the Assumed Liabilities and is not assuming any
other liability or obligation of Seller (or any predecessor owner of all or part
of its business and assets) of
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whatever nature whether presently in existence or arising hereafter. All such
other liabilities and obligations shall be retained by and remain obligations
and liabilities of Seller.
1.5 Closing. The closing (the "Closing") of the purchase and sale of
the Purchased Assets and the assumption of the Assumed Liabilities hereunder
shall take place at the offices of Xxxxxx & Bird, LLP in Raleigh, North Carolina
on the date hereof. At the Closing,
(a) Buyer shall deliver the Note to Seller.
(b) Seller and Buyer shall enter into an Assignment and
Assumption Agreement substantially in the form attached hereto as Exhibit B
contemporaneously with the execution of this Agreement. Seller hereby covenants
that it will deliver to Buyer such endorsements, consents, assignments and other
good and sufficient instruments of conveyance and assignment as Buyer shall deem
reasonably necessary or appropriate to vest in Buyer all right, title and
interest in, to and under the Purchased Assets.
(c) Buyer shall issue 5,000 shares of voting common stock,
which shall represent 5% of the equity of Buyer, to Employee Investors, LLC in
exchange for:
(i) $50,000 in cash;
(ii) a promissory note in the form set forth on Exhibit
C hereto; and
(iii) a guaranty in the form set forth on Exhibit D
hereto.
ARTICLE II
GRANT OF PREEMPTIVE RIGHTS
2.1 Grant of Preemptive Rights. So long as Seller remains a
shareholder, the Company shall not issue any additional shares of capital stock
(the "New Shares"), to any Person, except pursuant to an offering registered
under the Securities Act of 1933, as amended, for sale to the public, unless the
Company shall first have made an offer to sell that percentage of the New Shares
as determined below to Seller for the purchase price and on the terms
hereinafter set forth. The offer shall be in writing and shall specify the terms
of the offering of the New Shares in which the Company proposes to engage,
including the purchase price and payment terms. Seller shall be entitled to
purchase, upon the terms of the proposed offering, up to Seller's pro rata share
(equal to the percentage of the Buyer's capital stock owned by Seller
immediately prior to the proposed offering), as applicable (at its election and
with rounding to avoid fractional shares) of the New Shares proposed to be
issued by the Buyer. Seller shall have thirty (30) days after receiving the
offer from the Company in which to accept the Buyer's offer
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under this Section 2.1, by delivering to the Buyer a written notice of such
acceptance. Any of the New Shares offered to Seller but not purchased by Seller
may be issued by the Company, together with the other New Shares, to any Person.
Nothwithstanding the foregoing, the Seller's preemptive rights shall be to
purchase capital stock with identical rights as those issuable in the proposed
offering except that they shall be non-voting.
ARTICLE III
GENERAL PROVISIONS
3.1 Assignment; Binding Effect. This Agreement shall not be assignable
by any of the parties hereto without the written consent of the other parties
3.2 No Benefit to Others. The representations, warranties, covenants,
and agreements contained in this Agreement are for the sole benefit of the
parties hereto and they shall not be construed as conferring any rights on any
other persons.
3.3 Headings, Gender, and "Person". All section headings contained in
this Agreement are for convenience of reference only, do not form a part of this
Agreement and shall not affect in any way the meaning or interpretation of this
Agreement. Words used herein, regardless of the number and gender specifically
used, shall be deemed and construed to include any other number, singular or
plural, and any other gender, masculine, feminine, or neuter, as the context
requires. Any reference to a "person" herein shall include a natural person or
any legal, commercial or governmental entity, such as, but not limited to, a
corporation, general partnership, joint venture, limited partnership, limited
liability company, trust, business association, group acting in concert, or any
person acting in a representative capacity.
3.4 Counterparts. This Agreement may be executed in two (2) or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one counterpart has been signed by each party and
delivered to the other party hereto.
3.5 Integration of Agreement. This Agreement supersedes all prior
agreements, oral and written, between the parties hereto with respect to the
subject matter hereof. Neither this Agreement, nor any provision hereof, may be
changed, waived, discharged, supplemented, or terminated orally, but only by an
agreement in writing signed by the party against which the enforcement of such
change, waiver, discharge, or termination is sought.
3.6 Time of Essence. Time is of the essence in this Agreement.
3.7 Governing Law. This Agreement shall be construed under the laws of
the State of North Carolina, United States of America.
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3.8 Partial Invalidity. Whenever possible, each provision hereof shall
be interpreted in such manner as to be effective and valid under applicable law,
but in case any one or more of the provisions contained herein shall, for any
reason, be held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other
provisions of this Agreement, and this Agreement shall be construed as if such
invalid, illegal, or unenforceable provision or provisions had never been
contained herein unless the deletion of such provision or provisions would
result in such a material change as to cause completion of the transactions
contemplated hereby to be unreasonable.
[Signatures begin on the following page.]
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be executed
on its behalf by its duly authorized officer, all effective as of the day and
year first above written.
SELLER:
KPT PROPERTIES, L.P.
By: KONOVER PROPERTY TRUST, INC.,
its general partner
By: _____________________________
Name: X. Xxxxxxx Xxxxxx
Title: Chief Executive Officer
BUYER:
XXX.XXX, INC.
By: ______________________________________
Name: X. Xxxxxxx Xxxxxx
Title: Chief Executive Officer
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SCHEDULE 1.1(a)
CONTRACTS
(i) TC2
(ii) NeoMedia
(iii) Xxx Xxxxxxxxxx
(iv) BeechTree Consulting
(v) Interpath
(vi) Xxxx Xxxxxxxx Xxxx USA
(vii) PaymenTech
(viii) ClientLogic
(ix) Manufacturers
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SCHEDULE 1.1(b)
LICENSES AND PERMITS
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SCHEDULE 1.1(h)
PERSONAL PROPERTY
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SCHEDULE 1.1(i)
INTELLECTUAL PROPERTY
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EXHIBIT A
PROMISSORY NOTE
$3,311,664 December 29, 1999
For value received, xxx.xxx, Inc., a Maryland corporation (together
with its permitted successors and assigns, herein called "Borrower"), promises
to pay to the order of KPT Properties, L.P., a Delaware limited partnership
(herein, together with its successors and assigns who become holders of this
Note, "Lender"), at 00000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx, Xxxxx Xxxxxxxx
00000, Wake County, or at such other place as may be designated by Lender, upon
demand, the maximum principal amount of three million three hundred eleven
thousand six hundred sixty-four dollars ($3,311,664) (or such lesser principal
amount as may be outstanding hereunder) (the "Loan Balance").
Borrower may prepay the Loan Balance in whole or in part at any time,
without premium or penalty. Payment shall be made by Borrower in lawful money of
the United States of America in immediately available funds for the credit of
Borrower on the date that such payment or payments are due.
Borrower shall pay to Lender simple interest only, in arrears, at a
rate of nine percent (9%) per year, in quarterly installments commencing on
March 31, 2000 and continuing regularly thereafter on the last day of each
successive quarter until and including December 31, 2000 (the "Loan Maturity
Date"), at which time all principal and accrued interest shall be due and
payable in full.
If any attorney is engaged by Lender because of any default under this
Note or to enforce or defend any provision of this Note, then Borrower shall pay
upon demand reasonable attorneys' fees and all costs so incurred by Lender.
No waiver of any breach, default or failure of condition under the
terms of this Note shall be implied from any failure of Lender to take, or any
delay by Lender in taking, action with respect to any such breach, default or
failure of condition or from any previous waiver of any similar or unrelated
breach, default or failure of condition. A waiver of any term of this Note must
be made in writing and shall be limited to the express written terms of such
waiver.
Borrower waives presentment, demand, notice of dishonor, notice of
default or delinquency, notice of acceleration, notice of protest and
nonpayment, notice of costs, expenses and losses and interest thereon, and late
charges and diligence in taking any action to collect any amount owing under
this Note.
This Note shall be construed and enforced in accordance with the laws
of the State of North Carolina, the domicile of Lender. Time is of the essence
with respect to every provision hereof.
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THIS PROMISSORY NOTE REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
BORROWER:
XXX.XXX, INC.,
a Maryland corporation
By: _________________________
X. Xxxxxxx Xxxxxx
President
LENDER:
KPT PROPERTIES, L.P.,
a Delaware limited partnership
By: Konover Property Trust, Inc.,
a Maryland corporation
By: _________________________
X. Xxxxxxx Xxxxxx
President
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EXHIBIT B
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of December 29, 1999,
between KPT Properties, L.P., a Delaware limited partnership ("Seller"), and
xxx.xxx, Inc., a Maryland corporation ("Buyer").
WITNESSETH:
WHEREAS, Buyer and Seller have concurrently herewith consummated the
purchase by Buyer of the Purchased Assets pursuant to the terms and conditions
of the Asset Purchase Agreement dated December 29, 1999 between Buyer and
Seller, (the "Asset Purchase Agreement"; terms defined in the Asset Purchase
Agreement and not otherwise define herein being used herein as therein defined);
WHEREAS, pursuant to the Asset Purchase Agreement, Buyer has agreed to
assume certain liabilities and obligations of Seller with respect to the
Purchased Assets and the Business;
NOW, THEREFORE, in consideration of the sale of the Purchased Assets
and in accordance with the terms of the Asset Purchase Agreement, Buyer and
Seller agree as follows:
1. (a) Seller does hereby sell, transfer, assign and deliver
to Buyer all of the right, title and interest of Seller in, to and under
the Purchased Assets; provided that no sale, transfer, assignment or
delivery shall be made of any or any material portion of any of the
Contracts if an attempted sale, assignment, transfer or delivery, without
the consent of a third party, would constitute a breach or other
contravention thereof or in any way adversely affect the rights of Buyer or
Seller thereunder; and provided further that the right, title and interest
of Seller in all patents, copyrights, trademarks, servicemarks, service
names, technology, trade secrets, inventions, proprietary data, formulae,
research and development data, computer software programs and other
intangible property and any applications for the same shall be limited to a
six-month exclusive, non-assignable, royalty-free license.
.
(b) Buyer does hereby accept all right, title and interest of
Seller in, to and under all of the Purchased Assets (except as aforesaid)
and Buyer assumes and agrees to pay, perform and discharge promptly and
fully when due all of the Assumed Liabilities and to perform all of the
obligations of Seller to be performed under the Contracts.
2. This Agreement shall be construed in accordance with and governed by
the law of the State of North Carolina.
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3. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
KPT PROPERTIES, L.P.
By: KONOVER PROPERTY TRUST, INC.,
its General Partner
By:_______________________________
Name: X. Xxxxxxx Xxxxxx
Title: Chief Executive Officer
XXX.XXX, INC.
By:_______________________________
Name: X. Xxxxxxx Xxxxxx
Title: Chief Executive Officer
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EXHIBIT C
PROMISSORY NOTE
December 29, 1999
For value received, Employee Investors, LLC, a North Carolina limited
liability company (together with its permitted successors and assigns, herein
called "Borrower"), promises to pay to the order of xxx.xxx, Inc., a Maryland
corporation (herein, together with its successors and assigns who become holders
of this Note, "Lender"), at 00000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx, Xxxxx
Xxxxxxxx 00000, Wake County, or at such other place as may be designated by
Lender, upon demand, the maximum principal amount, which shall be the product of
.05 of the appraised fair market value of the equity of xxx.xxx, Inc. as of
December 31, 1999 (all as set forth in the Asset Purchase Agreement between
Lender and KPT Properties, L.P. dated December 30, 1999) less fifty thousand and
two hundred dollars ($50,200) (or such lesser principal amount as may be
outstanding hereunder) (the "Loan Balance").
Borrower may prepay the Loan Balance in whole or in part at any time,
without premium or penalty. Payment shall be made by Borrower in lawful money of
the United States of America in immediately available funds for the credit of
Borrower on the date that such payment or payments are due.
Borrower shall pay to Lender no interest, and no payment shall be due
until 30 days after the date of the appraisal referred to above, at which time
all principal shall be due and payable in full.
No waiver of any breach, default or failure of condition under the
terms of this Note shall be implied from any failure of Lender to take, or any
delay by Lender in taking, action with respect to any such breach, default or
failure of condition or from any previous waiver of any similar or unrelated
breach, default or failure of condition. A waiver of any term of this Note must
be made in writing and shall be limited to the express written terms of such
waiver.
Borrower waives presentment, demand, notice of dishonor, notice of
default or delinquency, notice of acceleration, notice of protest and
nonpayment, notice of costs, expenses and losses and interest thereon, and late
charges and diligence in taking any action to collect any amount owing under
this Note.
This Note shall be construed and enforced in accordance with the laws
of the State of North Carolina, the domicile of Lender. Time is of the essence
with respect to every provision hereof.
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BORROWER:
EMPLOYEE INVESTORS, LLC,
a North Carolina limited liability company
By: _______________________________
X. Xxxxxxx Xxxxxx,
Member and Manager
LENDER:
XXX.XXX, INC.,
a Maryland corporation
By: _________________________
X. Xxxxxxx Xxxxxx
President
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EXHIBIT D
X. Xxxxxxx Xxxxxx
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty") is made as of December 30,
1999 by X. Xxxxxxx Xxxxxx, an individual resident of the State of North
Carolina, ("Guarantor"), in favor of Xxx.xxx, Inc., a Maryland corporation
("Lender"), its successors and assigns.
WHEREAS, Lender and Employee Investors, LLC, a North Carolina limited
liability company ("Borrower"), are entering into concurrently herewith that
certain Promissory Note (herein called, as hereafter modified, supplemented,
extended, or renewed and in effect from time to time, the "Note"), a copy of
which is attached hereto as Exhibit A, which sets forth the terms and conditions
of a loan to Borrower from Lender (the "Loan").
WHEREAS, a condition precedent to Lender's making the Loan to Borrower
is Guarantor's execution and delivery to Lender of this Guaranty.
NOW, THEREFORE, Guarantor hereby guarantees to Lender the prompt and
full payment of the indebtedness and obligations described in the Note
(collectively called the "Guaranteed Obligations"), this Guaranty being upon the
following terms and conditions:
Section 1. Guaranty of Payment. Guarantor hereby unconditionally and
irrevocably guarantees to Lender the punctual payment when due, whether by lapse
of time, by acceleration of maturity, or otherwise, and at all times hereafter,
of all principal, fees, costs, expenses, indemnification indebtedness, and other
sums of money now or hereafter due and owing, or which Borrower is obligated to
pay.
The guaranty of Guarantor as set forth in this Section 1 is a
continuing guaranty of payment and not a guaranty of collection.
Section 2. Primary Liability of Guarantor. Guarantor shall be liable
for the payment of the Guaranteed Obligations as a primary obligor. This
Guaranty shall be effective as a waiver of, and Guarantor hereby expressly
waives, any and all rights to which Guarantor may otherwise have been entitled
under any suretyship laws in effect from time to time in the State of North
Carolina.
In the event of default by Borrower, Guarantor shall, on demand and
without presentment, protest, notice of protest, further notice of nonpayment or
of dishonor or of default or nonperformance, or notice of acceleration or of
intent to accelerate, or any other notice whatsoever, without any notice having
been given to Guarantor previous to such demand of the acceptance by Lender of
this Guaranty, and without any notice having
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been given to Guarantor previous to such demand of the creating or incurring of
such indebtedness, all such notices being hereby waived by Guarantor, pay the
amount due thereon to Lender, and it shall not be necessary for Lender, in order
to enforce such payment by Guarantor, first to institute suit or pursue or
exhaust any rights or remedies against Borrower or others liable on such
indebtedness, or to enforce any rights against any security that shall ever have
been given to secure such indebtedness, or to join Borrower or any others liable
for the payment of the Guaranteed Obligations or any part thereof in any action
to enforce this Guaranty, or to resort to any other means of obtaining payment
of the Guaranteed Obligations.
Suit may be brought or demand may be made against Borrower or against
all parties who have signed this Guaranty or any other guaranty covering all or
any part of the Guaranteed Obligations, or against any one or more of them,
separately or together, without impairing the rights of Lender against any party
hereto.
Section 3. Governing Law; Forum. This Guaranty, and its validity,
enforcement, and interpretation, shall for all purposes be governed by and
construed in accordance with the laws of the State of North Carolina and
applicable United States federal law, and is intended to be performed in
accordance with, and only to the extent permitted by, such laws.
Section 4. Payments. All sums payable under this Guaranty shall be paid
in lawful money of the United States of America that at the time of payment is
legal tender for the payment of public and private debts.
Section 5. Time of Essence. Time shall be of the essence in this
Guaranty with respect to all of Guarantor's obligations hereunder.
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IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty under
seal the day and year first above set forth.
GUARANTOR:
--------------------------------
X. Xxxxxxx Xxxxxx, Individually
(SEAL)
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