EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
by and among
TOP GROUP CORPORATION
and/or its designees
and
H. XXXXXX XXXXX
and
QUIXIT, INC.
Dated December ___, 2002
TABLE OF CONTENTS
ARTICLE I The Consideration...................................................1
ARTICLE II Closing and Conveyance of Shares...................................1
ARTICLE III Representations, Warranties and Covenants of Seller and
QXIT as to QXIT...................................................2
ARTICLE IV Termination of Representation and Warranties and Certain
Agreements; Indemnification........................................5
ARTICLE V Procedure For Closing...............................................8
ARTICLE VI Conditions Precedent to the Consummation of the Purchase...........8
ARTICLE VII Termination and Abandonment.......................................9
ARTICLE VIII Continuing Representations and Warranties and Covenants.........10
ARTICLE IX Miscellaneous.....................................................10
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement"), dated as of December ___,
2002, among, H. Xxxxxx Xxxxx, ("Seller"), and Quixit, Inc. ("QXIT"), and TOP
Group Corporation and/or its designees (collectively, "Buyer").
W I T N E S S E T H:
A. WHEREAS, QXIT is a corporation duly organized under the laws of
the State of Colorado;
B. WHEREAS, Seller owns 4,500,000 shares of common stock, no par
value ("Common Stock"), of QXIT;
C. WHEREAS, Buyer wishes to purchase an aggregate of 4,400,000
shares of Common Stock (collectively, the "Purchase Shares"), and Seller desires
to sell the Purchase Shares to Buyer free and clear of liens and encumbrances;
D. WHEREAS, prior to the transaction Buyer is not an affiliate of
QXIT; and
E. WHEREAS, QXIT is joining in this Agreement to provide certain
warranties and representations, related to the purchase of 4,400,000 shares of
Common Stock of QXIT.
NOW, THEREFORE, it is agreed among the parties hereto as follows:
ARTICLE I
---------
The Consideration
1.1 Subject to the conditions set forth herein, Seller shall sell to Buyer,
and Buyer shall purchase from Seller, an aggregate of 4,400,000 shares of Common
Stock of QXIT. Subject to Section 3.13 hereof, the purchase price for the
Purchase Shares to be paid by Buyer to Seller is $200,000.00 (the
"Consideration"), of which $25,000.00 is herewith paid to Seller through its
escrow agent, Business Financial Systems Inc. (the "Escrow Agent"), and is
deemed non-refundable consideration for this Agreement. The balance of the
purchase price of $175,000.00 shall be paid at Closing (as hereinafter defined).
In addition, at closing Buyer shall pay $100,000.00 as additional capital, which
shall be used to pay legal, accounting, transfer agent, consulting, and
miscellaneous costs associated with the transaction.
ARTICLE II
----------
Closing and Conveyance of Shares
2.1 The Purchase Shares shall be conveyed by Seller to Buyer with duly
executed stock powers by depositing with Escrow Agent for delivery to Buyer,
upon receipt of the Consideration by Seller, and satisfaction of i) the
conditions precedent in Article VI, and ii) the procedures in Article V.
2.2 The closing of the purchase and sale of the Purchase Shares
hereunder (the "Closing") hereunder shall be completed by delivery to Seller,
through Escrow Agent, of the requisite closing documents, cash consideration and
share certificates on or before December 20, 2002 at 5:00 p.m. PST (the "Closing
Date") subject to satisfaction of the terms and conditions set forth herein. The
Consideration may be delivered by Federal Express or wire transfers, and any
closing documents may be delivered by facsimile, Federal Express or other
appropriate means.
ARTICLE III
-----------
Representations, Warranties and Covenants of Seller
and QXIT as to QXIT
Seller and QXIT, each hereby represents, warrants and covenants to
Buyer as follows:
3.1 QXIT is a corporation duly organized, validly existing and in good
standing under the laws of the State of Colorado, and has the corporate power
and authority to own or lease its properties and to carry on its business as it
is now being conducted. The Articles of Incorporation and Bylaws, as amended, of
QXIT, which will be delivered to Buyer on or prior to the date hereof, are
complete and accurate, and the minute books of QXIT, copies of which have also
been delivered to Buyer on or prior to the date hereof, contain a record, which
is complete and accurate in all material respects, of all meetings and all
corporate actions of the shareholders and Board of Directors of QXIT.
3.2 The authorized capital stock of QXIT consists of 100,000,000 shares of
Common Stock. There are 5,000,000 shares of Common Stock of QXIT issued and
outstanding. All such shares of capital stock of QXIT are validly issued, fully
paid, non-assessable and free of preemptive rights. QXIT has no outstanding
options, warrants or other rights to purchase, or subscribe to, or other
securities convertible into or exchangeable for, any shares of capital stock of
QXIT, or contracts or arrangements of any kind relating to the issuance, sale or
transfer of any capital stock or other equity securities of QXIT. All of the
outstanding shares of capital stock of QXIT have been offered, issued, sold and
delivered in compliance with applicable federal and state securities laws, and
none of such securities were, at the time of issuance, subject to preemptive
rights. None of such issued and outstanding shares is the subject of any voting
trust agreement relating to the voting thereof or restricting in any way the
sale or transfer thereof.
3.3 Seller owns the Purchase Shares being sold pursuant to this Agreement,
free and clear of any lien, pledge, security interest or other encumbrance, and,
upon payment for the Purchase Shares as provided in this Agreement, the Buyer
will acquire good and valid title to the Purchase Shares, free and clear of any
lien, pledge, security interest or other encumbrance. None of the Purchase
Shares is the subject of any voting trust agreement or other agreement relating
to the voting thereof or restricting in any way the sale or transfer thereof
except for this Agreement. Each Seller has full right and authority to transfer
such Purchase Shares pursuant to the terms of this Agreement.
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3.4 QXIT does not own nor has it owned, in the last five (5) years, any
outstanding shares of capital stock or other equity interests of any
partnership, joint venture, trust, corporation, limited liability company or
other entity and there are no obligations of QXIT to repurchase, redeem or
otherwise acquire any capital stock or equity interest of another entity.
3.5 This Agreement has been duly authorized, validly executed and delivered
on behalf of Seller and QXIT and is a valid and binding agreement and obligation
of QXIT and Seller enforceable against the parties in accordance with its terms,
subject to limitations on enforcement by general principles of equity and by
bankruptcy or other laws affecting the enforcement of creditors' rights
generally, and Seller and QXIT have complete and unrestricted power to enter
into and, upon the appropriate approvals as required by law, to consummate the
transactions contemplated by this Agreement.
3.6 Neither the making of nor the compliance with the terms and provisions
of this Agreement and consummation of the transactions contemplated herein by
Seller or QXIT will conflict with or result in a breach or violation of the
Articles of Incorporation or Bylaws of QXIT, or of any material provisions of
any indenture, mortgage, deed of trust or other material agreement or instrument
to which QXIT or Seller is a party, or of any material provision of any law,
statute, rule, regulation or any existing applicable decree, judgment or order
by any court, federal or state regulatory body, administrative agency or other
governmental body having jurisdiction over QXIT or Seller, or any of its
material properties or assets, or will result in the creation or imposition of
any material lien, charge or encumbrance upon any material property or assets of
QXIT pursuant to the terms of any agreement or instrument to which QXIT is a
party or by which QXIT may be bound or to which any of QXIT property is subject,
and no event has occurred with which lapse of time or action by a third party
could result in a material breach or violation of or default by QXIT or Seller.
3.7 There is no claim, legal action, arbitration, governmental
investigation or other legal or administrative proceeding, nor any order, decree
or judgment in progress, pending or in effect, or to the best knowledge of the
Seller threatened, against or relating to QXIT or affecting any of its assets,
properties, business or capital stock. There is no continuing order, injunction
or decree of any court, arbitrator or governmental authority to which QXIT is a
party or by which QXIT or its assets, properties, business or capital stock are
bound.
3.8 QXIT has accurately prepared and timely filed all federal, state and
other tax returns required by law, domestic and foreign, to be filed by it, has
paid all taxes shown to be due and all additional assessments, and adequate
provisions have been and are reflected in the QXIT Financial Statements (as
hereinafter defined) for all current taxes and other charges to which QXIT is
subject and which are not currently due and payable. None of the Federal income
tax returns of QXIT have been audited by the Internal Revenue Service or other
foreign governmental tax agency. QXIT has no knowledge of any additional
assessments, adjustments or contingent tax liability (whether federal or state)
pending or threatened against QXIT for any period, nor of any basis for any such
assessment, adjustment or contingency. No deficiency or proposed adjustment in
respect of taxes has been proposed, asserted or assessed by any taxing authority
against QXIT. There are no liens for taxes (other than current taxes not yet due
and payable) on the assets of QXIT. QXIT has not consented to extend the time in
which any tax may be assessed or collected by any taxing authority. There is no
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action, suit, taxing authority proceeding, or audit with respect to any tax now
in progress, pending, or, to the knowledge of QXIT, threatened against or with
respect to QXIT. QXIT is not a party to or bound by any tax sharing or
allocation agreement and has no current or potential contractual obligation to
indemnify any other person with respect to taxes.
3.9 QXIT does not own or lease any real property, or material assets and
properties, whether real or personal, tangible or intangible, except for cash
and cash equivalents set forth in the QXIT Financial Statements. No oral or
written notification of a release of any hazardous material in connection with
the operation of QXIT's business has been filed by or on behalf of QXIT, and no
site or facility now or previously owned, operated, or leased by QXIT is listed
or proposed for listing on the "National Priorities List" under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA"), or any similar state or local list of sites requiring
investigation or clean-up.
3.10 QXIT has delivered to Buyer audited financial statements dated
December 31, 2001 and unaudited financial statements for the period ended
September 30, 2002. All such statements (herein referred to as "QXIT Financial
Statements") are complete and correct in all material respects and, together
with the notes to these financial statements, present fairly the financial
position and results of operations of QXIT for the periods indicated. All QXIT
Financial Statements have been prepared in accordance with generally accepted
accounting principles, consistently applied. The September 30, 2002 Form 10QSB
has been completed and filed on XXXXX.
3.11 QXIT represents and warrants that all outstanding indebtedness of
QXIT, including that shown on the QXIT Financial Statements, if any, will be the
sole responsibility of Seller and shall be paid by Seller at the Closing, except
that certain accounting, audit, transfer agent, legal and consulting fees, as
set forth in Schedule 3.11 attached hereto, shall be paid by QXIT at Closing
from $100,000.00 in additional cash capital (which amount shall be deducted from
the Consideration payable by Buyer hereunder) which Buyer shall contribute to
QXIT and which shall be disbursed pursuant to such Schedule at Closing.
3.12 Since the date of the QXIT Financial Statements, there have not been
any material adverse changes in the business or condition, financial or
otherwise, of QXIT. QXIT does not have any liabilities, commitments or
obligations, secured or unsecured (whether accrued, absolute, contingent or
otherwise), except as set forth on Schedule 3.11 attached hereto.
3.13 QXIT is not a party to or bound by any commitment, agreement or other
instrument. Neither QXIT nor, to the best knowledge of QXIT, any other party
thereto, is in default in any material respect under any material lease,
contract, mortgage, promissory note or other commitment or arrangement to which
QXIT is a party or by which QXIT is bound.
3.14 The representations and warranties of the QXIT shall be true and
correct as of the date hereof and as of the Closing Date.
3.15 QXIT has no employee benefit plan in effect at this time. QXIT is not
a party to or bound by any contract or understanding (whether written or oral)
with respect to the employment of any officers, employees, directors or
consultants, and the consummation of the transactions contemplated by this
Agreement will not (either alone or upon the occurrence of any additional acts
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or events) result in any payment (whether of severance pay or otherwise)
becoming due from QXIT to any of its officers, employees, directors or
consultants.
3.16 No representation or warranty by QXIT or the Seller in this Agreement,
or any certificate delivered pursuant hereto contains any untrue statement of a
material fact or omits to state any material fact necessary to make such
representation or warranty not misleading.
3.17 Buyer has received copies of Form 10SB as filed with the Securities
and Exchange Commission ("SEC"), which includes audited financial statements for
the year ended December 31, 2000, and each of its other reports to shareholders
filed with the SEC through the period ended September 30, 2002. QXIT is a
registered company under the Securities Exchange Act of 1934, as amended (the
"Securities Exchange Act").
3.18 QXIT has duly filed all reports required to be filed by it under the
Securities Exchange Act. No such reports, or any reports sent to the
shareholders of QXIT generally, contained any untrue statement of material fact
or omitted to state any material fact required to be stated therein or necessary
to make the statements in such reports, in light of the circumstances under
which they were made, not misleading.
3.19 Buyer has not received any general solicitation or general advertising
regarding the shares of Seller's Common Stock.
3.20 Except as set forth in Schedule 3.11, neither QXIT nor any of its
directors or officers has employed any broker or finder or incurred any
liability for any broker's or finder's fees or commissions in connection with
any of the transactions contemplated by this Agreement. There are no fees (other
than time charges billed at usual and customary rates) payable to any
consultants, including lawyers and accountants, in connection with this
transaction or the termination of services of such consultants by QXIT.
3.21 QXIT has conducted no business whatsoever since December 31, 2000, has
incurred no liabilities except as shown on the QXIT Financial Statements, except
accruals for accounting, legal, and transfer agent fees and fees in conjunction
with this transaction, which accrued fees and fees incurred in conjunction with
this transaction shall be paid at Closing pursuant to Section 3.11 hereof.
ARTICLE IV
----------
Termination of Representation and
Warranties and Certain Agreements; Indemnification
4.1 The respective representations and warranties of the parties hereto
shall survive this Agreement for two (2) years in accordance with, and subject
to, Section 4.5 hereof (except for the representations and warranties set forth
in Section 3.8 hereof, which shall survive for the applicable statute of
limitations) and the continuing covenants shall survive hereafter, pursuant to
their terms.
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4.2 The right to indemnification or payment of Damages (as defined in Section
4.4 hereof) or other remedy based on any representation, warranty, covenant or
obligation of a party hereunder shall not be waived by any investigation
conducted with respect to, or any knowledge acquired (or capable of being
acquired) at any time, whether before or after the execution and delivery of
this Agreement, with respect to the accuracy or inaccuracy of or compliance
with, any such representation, warranty, covenant or obligation.
4.3 The waiver of any condition to a party's obligation to consummate the
transactions contemplated hereunder, where such condition is based on the
accuracy of any representation or warranty, or on the performance of or
compliance with any covenant or obligation, will not affect the right to
indemnification, or payment of Damages, or other remedy based on such
representation, warranty, covenant or obligation.
4.4 Seller and QXIT, jointly and severally (the "Indemnifying Parties"), shall
indemnify and hold harmless Buyer and its respective officers, directors and
affiliates (the "Buyer Indemnified Persons") for, and will pay to the Buyer
Indemnified Persons, the amount of, any loss, liability, claim, damage
(including, without limitation, incidental and consequential damages), cost,
expense (including, without limitation, interest, penalties, costs of
investigation and defense and the reasonable fees and expenses of attorneys and
other professional experts) or diminution of value, whether or not involving a
third-party claim (collectively, "Damages"), directly or indirectly arising
from, attributable to or in connection with:
(a) any representation or warranty made by Seller or QXIT in this
Agreement or any Closing deliveries, that is, or was at the time made,
false or inaccurate, or any breach of, or misrepresentation with
respect to, any such representation or warranty; and
(b) any breach by any of Seller or QXIT of any covenant, agreement
or obligation of QXIT or Seller contained in this Agreement;
(c) any claims or litigation relating to QXIT now pending or
threatened or which may hereafter be brought against Buyer and/or QXIT
or Seller based upon events occurring prior to the date hereof and not
attributable to the acts of Buyer; or
(d) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, losses, liabilities and reasonable legal
and other expenses incident to any of the foregoing.
4.5 Except for the representations and warranties set forth in Section 3.8
hereof, Seller and QXIT shall have no liability for indemnification with respect
to any representation or warranty unless, on or before the second anniversary of
the date hereof, Buyer notifies Seller of a claim specifying the basis thereof
in reasonable detail to the extent then known by Buyer. A claim with respect to
any covenant, agreement or obligation contained in this Agreement, may be made
at any time without any time limitation.
4.6 Promptly after receipt by a Buyer Indemnified Person of written notice
(the "Notice of Claim") of the commencement of any action, suit or proceeding
against it, or written threat thereof, Buyer Indemnified Person will, if a claim
is to be made against the Indemnifying Parties under Section 4.4 hereof, give
notice to the Indemnifying Parties of the commencement of such action, suit or
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proceeding. The Buyer Indemnified Person shall furnish to the Indemnifying
Parties in reasonable detail such information as the Indemnified Person may have
with respect to such indemnification claims (including copies of any summons,
complaint or other pleading which may have been served on it and any written
claim, demand, invoice, billing or other document evidencing or assenting the
same). Subject to the limitations set forth in this Section, no failure or delay
by the Buyer Indemnified Person in the performance of the foregoing shall reduce
or otherwise affect the obligation of the Indemnifying Party to indemnify and
hold the Buyer Indemnified Person harmless except to the extent that such
failure or delay shall have materially and adversely affected the Indemnifying
Party's ability to defend against, settle or satisfy any action, suit or
proceeding the claim for which the Buyer Indemnified Person is entitled to
indemnification hereunder. The foregoing shall not apply to the extent
inconsistent with the provisions of Section 4.8 hereof.
4.7 If the claim or demand set forth in the Notice of Claim given by a
Buyer Indemnified Person is a claim or demand asserted by a third party, the
Indemnifying Party shall have thirty (30) days after the Date of Notice of Claim
(as hereinafter defined) to notify the Buyer Indemnified Person in writing of
its election to defend such third party claim or demand on behalf of the Buyer
Indemnified Person (the "Notice Period"); provided, however, that the Buyer
Indemnified Person is authorized to file any motion, answer or other pleading
which it deems necessary or appropriate to protect its interests during the
Notice Period. If the Indemnifying Party elects to defend such third party claim
or demand, the Buyer Indemnified Person shall make available to the Indemnifying
Party and its agents and representatives all records and other materials which
are reasonably required in the defense of such third party claim or demand and
shall otherwise cooperate (at the sole cost and expense of the Indemnifying
Party) with, and assist (at the sole cost and expense of the Indemnifying Party)
the Indemnifying Party in the defense of, such third party claim or demand, and
so long as the Indemnifying Party is diligently defending such third party claim
in good faith, the Buyer Indemnified Person shall not pay, settle or compromise
such third party claim or demand. If the Indemnifying Party elects to defend
such third party claim or demand, the Buyer Indemnified Person shall have the
right to control the defense of such third party claim or demand, at the
Indemnified Person's own expense. If the Indemnifying Party does not elect to
defend such third party claim or demand or does not defend such third party
claim or demand in good faith, the Buyer Indemnified Person shall have the
right, in addition to any other right or remedy it may have hereunder at the
Indemnifying Party's expense, to defend such third party claim or demand.
4.8 The term "Date of Notice of Claim" shall mean the date the Notice of
Claim is effective pursuant to Section 4.6 of this Agreement.
4.9 A claim for indemnification for any matter not involving a third party
claim may be asserted by notice to the party from whom indemnification is
sought.
4.10 Any legal action or proceeding with respect to this Agreement or any
matters arising out of or in connection with this Agreement or the transactions
contemplated hereby or the documents executed and delivered in connection
herewith, and any action for enforcement of any judgment in respect thereof may
be brought in the courts of the State of Colorado or the State of New York or of
the United States of America for the District of Colorado or for the Southern
District of New York, and, by execution and delivery of this Agreement, the
parties each hereby accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts and appellate
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courts thereof. The parties irrevocably consent to service of process out of any
of the aforementioned courts in any such action or proceeding in accordance with
the notice provisions set forth in Section 9.5 hereof. The parties each hereby
irrevocably waive any objection that it may now or hereafter have to the laying
of venue of any of the aforesaid actions or proceedings arising out of or in
connection with this Agreement or the transactions contemplated hereby or the
documents execute and delivered in connection herewith brought in the courts
referred to above and hereby further irrevocably waive and agree, to the extent
permitted by applicable law, not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum. Nothing herein shall affect the right of any party hereto to
serve process in any other manner permitted by law.
ARTICLE V
---------
Procedure For Closing
5.1 At the Closing, the purchase and sale shall be consummated after
satisfaction of all conditions precedent set forth in Article VI, by Seller's
Common Stock certificates for the Purchase Shares being delivered, with duly
executed stock powers, for 4,400,000 shares of Common Stock to Escrow Agent and
the delivery of the Consideration for the Purchase Shares to Escrow Agent by
Buyer (which will include delivery of the additional $100,000 for payment of the
fees and costs and expenses as shown on attached Schedule 3.11), and the
delivery of all other items, agreements, stock powers, warranties, and
representations set forth in this Agreement.
5.2 The Escrow Agent is Business Financial Systems, Inc. and the escrow
account is Business Financial Systems, Inc. Escrow Account at First Bank, 0000
Xxxxxxxxx Xxxx., Xxxxx Xxxxx, XX 00000-0000, (000) 000-0000. Wire transfers of
the funds to complete this transaction shall be directed to such escrow account,
and the routing instructions are attached hereto.
ARTICLE VI
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Conditions Precedent to the Consummation of the Purchase
The following are conditions precedent to the consummation of this
Agreement on or before the Closing Date:
6.1 Seller and QXIT shall have performed and complied with all of their
respective obligations hereunder which are to be complied with or performed on
or before the Closing Date.
6.2 No action, suit or proceeding shall have been instituted or shall have
been threatened before any court or other governmental body or by any public
authority to restrain, enjoin or prohibit the transactions contemplated herein,
or which might subject any of the parties hereto or their directors or officers
to any material liability, fine, forfeiture or penalty on the grounds that the
transactions contemplated hereby, the parties hereto, or their directors or
officers have violated any applicable law or regulation or have otherwise acted
improperly in connection with the transactions contemplated hereby, and the
parties hereto have not been advised by counsel that, in the opinion of such
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counsel, such action, suit or proceeding raises substantial questions of law or
fact which could reasonably be decided adversely to any party hereto or its
directors or officers.
6.3 The representations and warranties made by Seller and QXIT in this
Agreement shall be true as though such representations and warranties had been
made or given on and as of the Closing Date, except to the extent that such
representations and warranties may be untrue on and as of the Closing Date
because of changes caused by transactions suggested or approved in writing by
Buyer.
6.4 The total sum of $200,000.00 shall have been deposited in escrow with
the Escrow Agent for the purchase of 4,400,000 shares of Common Stock of QXIT
concurrent with closing hereunder and, in addition, the total sum of $100,000.00
shall have been deposited in escrow with the Escrow Agent for the payment of the
expenses as set forth in Schedule 3.11.
6.5 Buyer hereby agrees, as an inducement to Seller to enter into this
agreement, to the prior adoption of a "poison pill" resolution by the Board of
Directors of QXIT and which shall be a continuing covenant surviving the closing
under this Agreement, providing for a two (2) year period within which no
actions will be taken by QXIT or its shareholders which would reduce the number
of outstanding shares of Common Stock, whether by reverse split, consolidation,
reorganization, merger or otherwise, of QXIT or any successor company (which
shall be known as the "no-reverse covenant"). In the event that the "no-reverse
covenant" is breached, the resolution and this covenant shall provide that it
shall trigger a grant by QXIT of an immediate mandatory dividend to each
shareholder as of October 31, 2002, for each share owned after the reverse
split, consolidation, merger, or reduction of outstanding shares of a number of
shares inversely proportional to the amount of the reverse split, except that
shares subsequently retired to treasury or cancelled of record shall be excluded
from the dividend.
ARTICLE VII
-----------
Termination and Abandonment
7.1 Anything contained in this Agreement to the contrary notwithstanding,
the Agreement may be terminated and abandoned at any time prior to or on the
Closing Date:
(a) By mutual consent of parties;
(b) By Seller or Buyer, if any condition set forth in Article VI
relating to the other party has not been met or has not been waived;
(c) By Seller or Buyer, if any suit, action, or other proceeding
shall be pending or threatened by the federal or a state government
before any court or governmental agency, in which it is sought to
restrain, prohibit, or otherwise affect the consummation of the trans-
actions contemplated hereby;
(d) By Seller or Buyer, if there is discovered any material error,
misstatement or omission in the representations and warranties of
another party; or
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(e) By the Seller, if the Closing does not occur, through no
failure to act by Seller, on January 6, 2002, or if Buyer fails to
deliver the Consideration required herein.
7.2 Any of the terms or conditions of this Agreement may be waived at any
time by the party which is entitled to the benefit thereof, by action taken by
its Board of Directors; provided, however, that such action shall be taken only
if, in the judgment of the Board of Directors taking the action, such waiver
will not have a materially adverse effect on the benefits intended under this
Agreement to the party waiving such term or condition.
ARTICLE VIII
------------
Continuing Representations and Warranties and Covenants
8.1 The respective representations, warranties, and covenants of the
parties hereto and the covenants and agreements of the parties hereto shall
survive after the Closing under this Agreement in accordance with the terms
thereof.
ARTICLE IX
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Miscellaneous
9.1 This Agreement embodies the entire agreement between the parties, and
there have been and are no agreements, representations or warranties among the
parties other than those set forth herein or those provided for herein.
9.2 To facilitate the execution of this Agreement, any number of
counterparts hereof may be executed, and each such counterpart shall be deemed
to be an original instrument, but all such counterparts together shall
constitute but one instrument.
9.3 All parties to this Agreement agree that if it becomes necessary or
desirable to execute further instruments or to make such other assurances as are
deemed necessary, the party requested to do so will use its best efforts to
provide such executed instruments or do all things necessary or proper to carry
out the purpose of this Agreement.
9.4 This Agreement may not be amended except by written consent of both
parties.
9.5 Any notices, requests, or other communications required or permitted
hereunder shall be delivered personally or sent by overnight courier service,
prepaid, addressed as follows:
To Seller:
H. Xxxxxx Xxxxx
c/o M. A. Xxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
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To QXIT:
Quixit, Inc.
c/o M.A. Xxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
To Buyer:
TOP Group Corporation
c/o Xx. Xxxxx Xxxx
00 Xxxxxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, Xxx Xxxx 00000
With a copy to:
Xxxxx XxXxxxxx, Esq.
Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx P.C.
Chrysler Center
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
With a copy to:
Escrow Agent: Business Financial Systems, Inc.
0000 Xxxxxxxxx Xxxx.
Xxxxx Xxxxx, Xxxxxxxx 00000-0000
or such other addresses as shall be furnished in writing by any party, and any
such notice or communication shall be deemed to have been given as of the date
received.
9.6 No press release or public statement will be issued relating to the
transactions contemplated by this Agreement without prior approval of Buyer and
Seller. However, QXIT may issue at any time any press release or other public
statement it believes on the advice of its counsel it is obligated to issue to
avoid liability under the law relating to disclosures, but the party issuing
such press release or public statement shall make a reasonable effort to give
the other party prior notice of and opportunity to participate in such release
or statement.
9.7 This Agreement shall be governed by and construed in accordance with
and enforced under the laws of the State of New York applicable to all
agreements made hereunder. Venue and jurisdiction for any legal actions
hereunder shall be, at the option of the party bringing any such action, the
District Court in and for Jefferson County, Colorado or any state or federal
court located in New York County, New York.
9.8 In connection with this Agreement, the parties have appointed Business
Financial Systems, Inc., as the Escrow Agent, which shall be authorized by this
Agreement to do the following:
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(a) Accept the deposit of $25,000.00 from Buyer, upon receipt of a
copy of this Agreement signed by Buyer, Seller and QXIT;
(b) Accept the balance of the purchase price at Closing
($175,000.00) plus $100,000.00 to pay legal, accounting, escrow agent,
transfer agent and consulting fees, costs and expenses upon receipt of
(i) the certificates of QXIT with duly signed and guaranteed stock
powers for 4,400,000 shares of Common Stock from Seller and (ii) a newly
issued certificate for 4,400,000 shares of Common Stock of QXIT issued
in the name of Buyer from QXIT;
(c) Disburse the proceeds received at closing from the escrow as
follows:
(i) $200,000.00 to Seller; and
(ii) $100,000.00 as shown on Schedule 3.11
(d) Transmit by FedEx the stock certificates to Buyer, c/o Xxxxx X.
XxXxxxxx, Esq., Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.,
Chrysler Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000;
(e) In the event of default in delivery of cash or certificates by
a party under this Agreement, any cash or certificates received from the
other party shall be returned to the remitting party three (3) business
days after default;
(f) The Escrow Agent is specifically indemnified and held harmless
hereby for its actions or inactions in following these instructions. In
the event of a dispute involving the escrow instructions or the consider
-ation to be delivered in escrow, the Escrow Agent is authorized to
implead the consideration received into the District Court of Jefferson
County, Colorado upon ten (10) days written notice, and be relieved of
any further escrow duties thereupon. Any and all costs of attorneys'
fees and legal actions of Escrow Agent for any dispute resolution or
impleader action shall be paid in equal shares by the parties to this
Agreement.
9.9 In the event of a breach or default of this Agreement or any of the
continuing covenants hereunder which results in a party or any effected
shareholder who is a beneficiary of a surviving or continuing covenant,
commencing legal action, the prevailing party in such legal action shall be
entitled to an award of all legal fees and costs of the action against the
non-prevailing party.
9.10 The rights and obligations of Buyer under this Agreement may be
assigned, with or without the consent of the other parties hereto, to any other
persons or entities.
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IN WITNESS WHEREOF, the parties have executed this Agreement this
____day of December, 2002.
SELLER: H. XXXXXX XXXXX
By:
-------------------------------------------
Name: H. Xxxxxx Xxxxx
Title:
QUIXIT, INC.
By:
-------------------------------------------
Name:
Title:
BUYER: TOP GROUP CORPORATION
By:
-------------------------------------------
Name:
Title:
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