EXHIBIT 10.21
ASSET ACQUISITION AGREEMENT
This Asset Acquisition Agreement is entered into as of the ___ day of
March, 2004, by and among XRG, INC., a Delaware corporation ("XRG"), HIGHWAY
TRANSPORT, INC., a Alabama corporation ("HTI"), XXXXX X. XXXXX, an individual
residing in Escambia County, Alabama ("Xx. Xxxxx") and J. XXXXXX XXXXX, an
individual residing in Escambia County, Alabama ("Xx. Xxxxx"). XRG, HTI, and Xx.
Xxxxx and Xx. Xxxxx are referred to herein individually as "Party" and
collectively as "Parties." This Agreement contemplates a transaction in which
XRG will acquire certain assets of HTI in consideration of HTI and/or Xx. Xxxxx
and Xx. Xxxxx receiving shares of common stock of XRG.
Now, therefore, in consideration of the respective representations,
promises, warranties and covenants of the Parties set forth herein, the Parties,
intending to be legally bound, agree as follows.
1. DEFINITIONS.
"Closing" has the meaning set forth in Section 2(g) below.
"Closing Date" has the meaning set forth in Section 2(g) below.
"Disclosure Schedule" has the meaning set forth in Section 3 below.
"Intellectual Property" means (a) all trademarks, service marks, trade
dress, logos, trade names, and company names, together with all translations,
adaptations, derivations, and combinations thereof and including all goodwill
associated therewith, and all applications, registrations, and renewals in
connection therewith, (b) all copyrightable works, all copyrights, and all
applications, registrations, and renewals in connection therewith, (c) all trade
secrets and confidential business information (including ideas, research and
development, know-how, customer and supplier lists, pricing and cost
information, and business and marketing plans and proposals), (d) all other
proprietary rights, and (e) all copies and tangible embodiments thereof (in
whatever form or medium).
"Liability" or "Liabilities" or "liability" or "liabilities" means any
liability (whether known or unknown, whether asserted or unasserted, whether
absolute or contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due), including any liability for
taxes.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof).
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"Purchased Assets" means all right, title, and interest in and to (a)
the furniture, fixtures, equipment, vehicles, computers and other items listed
in Exhibit A; (b) all HTI shipper contacts and owner-operator contacts and
accounts, and any written agreements and contracts that are listed in Exhibit B
and all rights thereunder; (c) all claims, deposits, prepayments, refunds,
causes of action, rights of recovery, rights of set off, and rights of
recoupment (including any such item relating to the payment of taxes) associated
with the Purchased Assets; (d) all of HTI's operating authorities, franchises,
approvals, permits, licenses, leases, registrations, certificates, variances,
and similar rights obtained from governments and governmental agencies; (e) all
of the customer and supplier lists, creative materials, advertising, promotional
materials, studies, reports, business plans and marketing plans of HTI ; (f) all
of HTI's Intellectual Property; and (g) all goodwill associated with the
foregoing; provided, however, that the Purchased Assets SHALL NOT INCLUDE (i)
the corporate charter, taxpayer and other identification numbers, seals, minute
books, stock transfer books, blank stock certificates, and other documents
relating to the organization, maintenance, and existence of HTI as a
corporation, (ii) any of the rights of HTI under this Agreement (or under any
side agreement between HTI on the one hand and XRG on the other hand entered
into on or after the date of this Agreement), (iii) HTI's cash and accounts
receivable, or (iv) any liabilities other than the liabilities listed in Exhibit
C.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest.
2. BASIC TRANSACTION.
(a) Purchase of Assets. Subject to the terms and conditions of this
Agreement, XRG (or a wholly-owned subsidiary of XRG) shall purchase from HTI,
and HTI shall sell, transfer, convey, and deliver to XRG (or to such subsidiary
of XRG), all of the Purchased Assets at the Closing for the consideration
specified below in this Section 2.
(b) Purchase Consideration. As full and complete consideration for the
purchase of the Purchased Assets, XRG (or a wholly-owned subsidiary of XRG)
shall assume the liabilities of HTI as of the Closing Date as set forth in
section 2(c) below.
(c) Assumption of Liabilities. XRG (or a wholly-owned subsidiary of
XRG) shall assume the liabilities listed in Exhibit C as of the Closing Date. If
at any time after the Closing, the purchased transportation equipment is either
sold or traded, any equity (equity is defined as the excess of the selling price
over the debt attached to the equipment) realized on the transaction will be
paid to the "Parties" in the form of XRG common shares valued at market on the
date of the sale of the equipment.
(d) Lease of facility. At the Closing, XRG shall execute and deliver to
HTI a 24- month lease for the facility (terminal and trailer parking lot)
currently used in the operation of HTI's business. The lease shall be payable in
twenty-four monthly installments of $1,750.00 lease payment to be made to HTI,
with the first payment being due at the Closing, and subsequent payments due on
the first day of each month thereafter.
(e) Issuance of XRG Stock. At Closing and subject to compliance with
all applicable securities laws and regulations, XRG will issue to Xx. Xxxxx and
Xx. Xxxxx 350,000 shares of XRG common stock ("XRGC Shares").
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(f) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of XRG, 0000 X.
Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 on _______________, 2004, or on
such other date as agreed to by the Parties following the satisfaction or waiver
of all pre-closing conditions to the obligations of the Parties to consummate
the transactions contemplated hereby ("Closing Date").
(g) Deliveries at the Closing. At the Closing (i) HTI will deliver to
XRG the various certificates, instruments, and documents referred to in Section
6(a) below; (ii) XRG will deliver to HTI the various certificates, instruments,
and documents referred to in Section 6(b) below; (iii) HTI will execute and
deliver to XRG a Xxxx of Sale in the form attached hereto as Exhibit D, an
Assignment of Contracts in the form attached hereto as Exhibit E and such other
instruments of sale, transfer, conveyance, and assignment as XRG and its counsel
reasonably may request; (iv) XRG will execute and deliver to HTI such
instruments of assumption as HTI and its counsel reasonably may request; (v) XRG
will deliver to Xx. Xxxxx and Xx. Xxxxx certificates for the stock specified in
Section 2(e) above; and (vi) HTI will deliver to XRG keys to all locks on the
business premises or for any items of the Purchased Assets requiring keys and
the codes and passwords to all security and password systems on the business
premises or for any items of the Purchased Assets.
3. REPRESENTATIONS AND WARRANTIES OF HTI AND XX. XXXXX AND XX. XXXXX.
HTI and Xx. Xxxxx and Xx. Xxxxx, jointly and severally, represent and warrant to
XRG that the statements contained in this Section 3 are correct and complete as
of the date of this Agreement and will be correct and complete as of the Closing
Date except as set forth in the disclosure schedule accompanying this Agreement
(the "Disclosure Schedule"). The Disclosure Schedule will be arranged in
paragraphs corresponding to the lettered and numbered paragraphs contained in
this Section 3.
(a) Organization of HTI. HTI is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Alabama.
(b) Authorization of Transaction. HTI has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. Without limiting the
generality of the foregoing, the board of directors of HTI and HTI's
stockholders have duly authorized the execution, delivery, and performance of
this Agreement by HTI. This Agreement constitutes the valid and legally binding
obligation of HTI and Xx. Xxxxx and Xx. Xxxxx, enforceable in accordance with
its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which HTI or Xx. Xxxxx and Xx. Xxxxx is/are subject or any provision of
the charter or bylaws of HTI, or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which HTI or Xx. Xxxxx and Xx. Xxxxx is/are a party or by which it or he is
bound or to which any of its or his assets are subject (or result in the
imposition of any Security Interest upon any of its or his assets). HTI and Mr.
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Xxxxx and Xx. Xxxxx do not need to give notice to, make any filing with, or
obtain any authorization, consent, or approval of any governmental agency or any
other Person in order for the Parties to consummate the transactions
contemplated by this Agreement.
(d) Brokers' Fees. HTI and Xx. Xxxxx and Xx. Xxxxx have no liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which XRG could
become liable or obligated.
(e) Title to Assets. HTI has good and marketable title to the Purchased
Assets, free and clear of any Security Interest or restriction on transfer, and
has the full, unrestricted right to sell and transfer the Purchased Assets to
XRG except as noted on the Disclosure Statement.
(f) Legal Compliance. HTI has complied with all applicable laws
(including rules, regulations, codes, plans, injunctions, judgments, orders,
decrees, rulings, and charges thereunder) of federal, state, local, and foreign
governments (and all agencies thereof), and no action, suit, proceeding,
hearing, investigation, charge, complaint, claim, demand, or notice has been
filed or commenced against HTI alleging any failure so to comply.
(g) Disclosure. The representations and warranties contained in this
Section 3 do not contain any untrue statement of a fact or omit to state any
material fact necessary in order to make the statements and information
contained in this Section 3 not misleading.
4. REPRESENTATIONS AND WARRANTIES OF XRG. XRG represents and warrants
to HTI that the statements contained in this Section 4 are correct and complete
as of the date of this Agreement and will be correct and complete as of the
Closing Date.
(a) Organization of XRG. XRG is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware.
(b) Authorization of Transaction. XRG has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation of XRG,
enforceable in accordance with its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which XRG is subject or any provision of its
charter or bylaws or (ii) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
XRG is a party or by which it is bound or to which any of its assets is subject.
XRG does not need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in
order for the Parties to consummate the transactions contemplated by this
Agreement.
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(d) Brokers Fees. XRG has no liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which HTI could become liable or obligated.
(e) SEC Reports. XRG has filed all required reports, schedules, forms,
statements, and other documents with the Securities and Exchange Commission (the
"SEC"). In particular, but without limitation of the generality of the
foregoing, XRG has filed with the SEC, and has heretofore made available to Xx.
Xxxxx and Xx. Xxxxx, true and complete copies of XRG's most recent annual report
on Form 10-KSB, most recent quarterly report on Form 10-QSB, most recent Form
8-K, and most recent proxy statement, if any. These reports, at the time filed,
(a) did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and (b) complied in all material respects with the applicable
requirements of the Securities Act of 1933 and the Securities Exchange Act of
1934, as applicable, and the applicable rules and regulations of the SEC
thereunder. No independent auditors' report included with the audited financial
statements of XRG included in the SEC reports referenced above (the "Audited
Financial Statements") has been revoked or qualified in any manner since its
date. XRG has not, since March 31, 2003, made any material change in the
accounting practices or policies applied in the preparation of the Audited
Financial Statements. The books and records of XRG have been, and are being,
maintained in all material respects in accordance with GAAP.
5. PRE-CLOSING COVENANTS. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing.
(a) General. Each of the Parties will use its reasonable best efforts
to take all action and to do all things necessary in order to consummate and
make effective the transactions contemplated by this Agreement.
(b) Operation of Business. HTI will not engage in any practice, take
any action, or enter into any transaction outside the Ordinary Course of
Business.
(c) Preservation of Business. HTI will maintain and continue to promote
its business, its business operations, and its business relationships, and will
maintain its property, including its present operations, physical facilities,
working conditions, and relationships with its suppliers, customers, independent
contractors and employees.
(d) Full Access, Cooperation and Authorization. HTI will permit
representatives of XRG to have full access at all reasonable times, and in a
manner so as not to interfere with the normal business operations of HTI, to all
premises, properties, personnel, books, records (including tax records),
contracts, and documents of or pertaining to HTI. HTI and its officers and
employees will cooperate with XRG and facilitate XRG's due diligence
investigation of HTI. HTI's execution of this Agreement constitutes
authorization to HTI's accountants, attorneys, bankers, lenders and other
professional advisors and consultants to meet with representatives of XRG and
disclose to XRG any and all information in their possession regarding HTI.
(e) Notice of Developments. Each Party will give prompt written notice
to the other Party of any material adverse development causing a breach of any
of its own representations
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and warranties in Section 3 and Section 4 above. No disclosure by any Party
pursuant to this Section 5(e), however, shall be deemed to amend or supplement
the Disclosure Schedule or to prevent or cure any misrepresentation, breach of
warranty, or breach of covenant.
(f) Exclusivity. HTI will revoke any current listing of its business
for sale. HTI will not (i) solicit, initiate, or encourage the submission of any
proposal or offer from any Person relating to the acquisition of any of the
stock or assets of HTI being purchased by XRG or (including any acquisition
structured as a merger, consolidation, or share exchange) or (ii) participate in
any discussions or negotiations regarding, furnish any information with respect
to, assist or participate in, or facilitate in any other manner any effort or
attempt by any Person to do or seek the foregoing. HTI will notify XRG
immediately if any Person makes any proposal, offer, inquiry, or contact with
respect to the foregoing.
6. CONDITIONS TO OBLIGATION TO CLOSE.
(a) Conditions to Obligation of XRG. The obligation of XRG to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions at or prior to Closing:
(i) the representations and warranties set forth in Section 3
above shall be true and correct in all material respects at and as of
the Closing Date;
(ii) HTI and Xx. Xxxxx and Xx. Xxxxx shall have performed and
complied with all of their covenants hereunder in all material respects
through the Closing;
(iii) HTI shall have procured any required third party
consents;
(iv) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency
of any federal, state, local, or foreign jurisdiction or before any
arbitrator wherein an unfavorable injunction, judgment, order, decree,
ruling, or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, (C) affect adversely the right of XRG to own the
Purchased Assets;
(v) XRG shall have obtained on terms and conditions reasonably
satisfactory to it all of the financing it needs in order to consummate
the transactions contemplated hereby;
(vi) all actions to be taken by HTI and Xx. Xxxxx and Xx.
Xxxxx in connection with consummation of the transactions contemplated
hereby and all certificates, opinions, instruments, and other documents
required to effect the transactions contemplated hereby will be
reasonably satisfactory in form and substance to XRG; and
(vii) all of the following shall have been accomplished to the
reasonable satisfaction of XRG:
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(A) execution by the Parties of a lease agreement
covering the terminal and trailer parking lot;
(B) delivery of executed title certificates to titled
assets to be acquired by XRG;
(C) completion to XRG's satisfaction of its due
diligence review;
(D) execution of a employment agreements by Xx. Xxxxx
and Xx. Xxxxx for which he will not compete with XRG for a
three year period following the sale; and
XRG may waive any condition specified in this Section 6(a) if it
executes a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of HTI and Xx. Xxxxx and Xx. Xxxxx . The
obligation of HTI and Xx. Xxxxx and Xx. Xxxxx to consummate the transactions to
be performed by them in connection with the Closing is subject to satisfaction
of the following conditions:
(i) the representations and warranties set forth in Section 4
above shall be true and correct in all material respects at and as of
the Closing Date;
(ii) XRG shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iii) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency
of any federal, state, local, or foreign jurisdiction or before any
arbitrator wherein an unfavorable injunction, judgment, order, decree,
ruling, or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement or (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation (and no such injunction, judgment, order, decree, ruling,
or charge shall be in effect); and
(iv) all actions to be taken by XRG in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to HTI and Xx. Xxxxx and Xx. Xxxxx.
HTI and Xx. Xxxxx and Xx. Xxxxx may waive any condition specified in
this Section 6(b) if it or they execute a writing so stating at or prior to the
Closing.
7. INVESTMENT REPRESENTATIONS.
(a) The XRGC Shares to be received by Xx. Xxxxx and Xx. Xxxxx
pursuant to this Agreement will be held by Xx. Xxxxx and Xx. Xxxxx for his own
account for the purpose of investment and not with a present view for sale in
connection with any distribution thereof.
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(b) Xx. Xxxxx and Xx. Xxxxx'x financial position is such that
he can afford to bear the economic risk of holding the XRGC Shares he receives
pursuant to this Agreement for an indefinite period of time, and Xx. Xxxxx and
Xx. Xxxxx can afford to suffer the complete loss of his investment in the XRGC
Shares.
(c) Xx. Xxxxx and Xx. Xxxxx has been provided an opportunity
to ask questions of, and has received answers satisfactory to Xx. Xxxxx and Xx.
Xxxxx from, XRG and its representatives regarding the business and affairs of
XRG and such other information as he desired in order to evaluate an investment
in the XRGC Shares.
(d) Xx. Xxxxx and Xx. Xxxxx understands that the XRGC Shares
comprising the consideration to be received by him pursuant to this Agreement
have not been registered under the federal securities laws or applicable state
securities laws in reliance upon specific exemptions from registration
thereunder. Xx. Xxxxx and Xx. Xxxxx agrees that the XRGC Shares to be received
by him pursuant to this Agreement may not be sold, offered for sale, exchanged,
transferred, pledged or otherwise disposed of except pursuant to a registration
statement under the Securities Act of 1933 or pursuant to an exemption from the
registration requirements of the Securities Act of 1933 and in compliance with
state securities laws, and the certificates for the XRGC Shares will bear a
legend to such effect. Upon registration, if any, there can be no assurance that
a public market for the XRGC Shares will exist or that trading of such shares
can commence, or if commenced can be maintained. As a result, a holder of XRGC
Shares may find it difficult to dispose of, or to obtain accurate quotations as
to the price of, the shares. In addition, XRG securities may be subject to
"xxxxx stock" rules that impose sales practice and market making requirements on
broker-dealers who sell and/or make a market in such securities. This could
affect the ability or willingness of broker-dealers to sell and/or make a market
in XRG securities and the ability of holders of XRG securities to sell their
stock in the secondary market.
(e) Xx. Xxxxx and Xx. Xxxxx is not a foreign person subject to
withholding under Section 1445 of the Code and the regulations promulgated
thereunder.
8. TERMINATION.
(a) Termination of Agreement. This Agreement may be terminated as
provided below:
(i) XRG, HTI and Xx. Xxxxx and Xx. Xxxxx may terminate this
Agreement by mutual written consent at any time prior to the Closing;
(ii) XRG may terminate this Agreement by giving written notice
to HTI and Xx. Xxxxx and Xx. Xxxxx if XRG is not reasonably satisfied
with the results of its continuing due diligence review regarding HTI;
or
(iii) XRG may terminate this Agreement by giving written
notice to HTI and Xx. Xxxxx and Xx. Xxxxx at any time prior to the
Closing (A) in the event HTI or Xx. Xxxxx and Xx. Xxxxx have breached
any material representation, warranty, or covenant contained in this
Agreement in any material respect, XRG has notified HTI or Xx. Xxxxx
and Xx. Xxxxx, as applicable, of the breach, and the breach has
continued without cure
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for a period of thirty (30) days after the notice of breach, or (B) if
the Closing shall not have occurred on or before May 1, 2004, by reason
of the failure of any condition precedent under Section 6(a) hereof
(unless the failure results primarily from XRG itself breaching any
representation, warranty, or covenant contained in this Agreement).
(b) Effect of Termination. If any Party terminates this Agreement
pursuant to Section 7(a) above, all rights and obligations of the Parties
hereunder shall terminate without any liability of any Party to any other Party
(except for any liability of any Party then in breach).
9. MISCELLANEOUS.
(a) Survival of Representations and Warranties. All of the
representations and warranties of the Parties contained in this Agreement shall
survive the Closing hereunder.
(b) Press Releases and Public Announcements. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement prior to the Closing without the prior written approval of the
other Party.
(c) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(d) Entire Agreement. This Agreement (including the documents referred
to herein) constitutes the entire agreement between the Parties and supersedes
any prior understandings, agreements, letters of intent, or representations by
or between the Parties, written or oral, to the extent they relate in any way to
the subject matter hereof.
(e) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other Party or Parties; provided, however, that XRG may (i) assign any or
all of its rights and interests hereunder to one or more of its affiliates and
(ii) designate one or more of its affiliates to perform its obligations
hereunder (in any or all of which cases XRG nonetheless shall remain responsible
for the performance of all of its obligations hereunder).
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then three
business days after) it is sent by
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registered or certified mail, return receipt requested, postage prepaid, and
addressed to the intended recipient as set forth below:
If to HTI:
If to Xx. Xxxxx and Xx. Xxxxx:
If to XRG:
XRG, Inc.
0000 X. Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxx, XX 00000
ATTN: Xxxxx X. Xxxxxxx
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Parties
notice in the manner herein set forth.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Alabama without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Alabama or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Alabama
(j) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Parties. No waiver by any Party of any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
(k) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
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(l) Expenses. Each of XRG, HTI, and Xx. Xxxxx and Xx. Xxxxx will bear
its or his own costs and expenses (including legal fees and expenses) incurred
in connection with this Agreement and the transactions contemplated hereby.
(m) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise.
Nothing in the Disclosure Schedule shall be deemed adequate to disclose an
exception to a representation or warranty made herein unless the Disclosure
Schedule identifies the exception with reasonable particularity and describes
the relevant facts in reasonable detail. Without limiting the generality of the
foregoing, the mere listing (or inclusion of a copy) of a document or other item
shall not be deemed adequate to disclose an exception to a representation or
warranty made herein (unless the representation or warranty has to do with the
existence of the document or other item itself). The Parties intend that each
representation, warranty, and covenant contained herein shall have independent
significance.
(n) Incorporation of Exhibits. The Exhibits identified in this
Agreement are incorporated herein by reference and made a part hereof.
(o) Specific Performance. Each of the Parties acknowledges and agrees
that the other Party would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the Parties agrees that
the other Party shall be entitled to an injunction to prevent any breach of the
provisions of this Agreement and to enforce specifically this Agreement and the
terms and provisions hereof in any action instituted in any court of the State
of Florida located in Hillsborough County, Florida, in addition to any other
remedy to which it may be entitled, at law or in equity.
(p) Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of the courts of the State of Florida, with venue in Hillsborough
County, Florida, or Alabama in any action or proceeding arising out of or
relating to this Agreement and agrees that all claims in respect of the action
or proceeding may be heard and determined in any such court. Each party also
agrees not to bring any action or proceeding arising out of or relating to this
Agreement in any other court. Each of the Parties waives any defense of
inconvenient forum to the maintenance of any action or proceeding so brought and
waives any bond, surety, or other security that might be required of any other
Party with respect thereto. Any Party may make service on the other Party by
sending or delivering a copy of the process to the Party to be served at the
address and in the manner provided for the giving of notices in Section 9(h)
above. Nothing in this Section 9(p), however, shall affect the right of any
Party to serve legal process in any other manner permitted by law or in equity.
Each Party agrees that a final judgment in any action or proceeding so brought
shall be conclusive and may be enforced by suit on the judgment or in any other
manner provided by law or in equity.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
XRG, INC.
By:________________________________________
Title:_____________________________________
HIGHWAY TRANSPORT, INC.
By:________________________________________
Title:_____________________________________
___________________________________________
Xxxxx X. Xxxxx
___________________________________________
J. Xxxxxx Xxxxx
Attachments:
Exhibit A: Furniture, Fixtures, Equipment, etc.
Exhibit B: Acquired Accounts and Agreements
Exhibit C: Assumed Liabilities
Exhibit D: Xxxx of Sale
Exhibit E: Assignment of Contracts
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