Exhibit 4.6
ASSET PURCHASE AGREEMENT
THIS AGREEMENT made as of the 21st day of September, 2001
BETWEEN:
XXXXX XXXXX HOLDINGS, INC., a corporation incorporated under the
laws of Florida and a subsidiary of X-Xxxxxxx.xxx, Inc.,
(hereinafter referred to as the "Purchaser")
AND:
TECH ENGINE, INC.,
a corporation incorporated under the laws of the State of New York
(hereinafter referred to as the "Vendor")
WHEREAS:
A. The Vendor carries on the business of online career site hosting and
recruitment advertising aggregation, (the "Business");
B. The Vendor wishes to sell and assign to the Purchaser, and the
Purchaser wishes to purchase from the Vendor certain of the assets,
and to assume certain of the liabilities, of the Business on the
terms and subject to the conditions hereinafter contained.
NOW THEREFORE in consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration paid by each of the parties
hereto to each of the other parties hereto (the receipt and sufficiency of which
are hereby acknowledged), it is agreed among the parties hereto as follows:
1. INTERPRETATION
1.1. SCHEDULES. The Schedules that are attached to this
Agreement are incorporated in this Agreement by reference
and are deemed to be part hereof.
1.2. CURRENCY. Unless otherwise indicated, all dollar amounts
referred to in this Agreement are in lawful money of the
United States of America.
1.3. CHOICE OF LAW AND ATTORNMENT. This Agreement shall be
governed by and construed and enforced in accordance with
the laws of the State of New York.
1.4. TIME OF ESSENCE. Time shall be of the essence of the
agreement.
2. PURCHASE AND SALE
2.1. PURCHASED ASSETS. On the terms and subject to the
fulfillment of the conditions, the Vendor hereby agrees to
sell, transfer and assign to the Purchaser, and the
Purchaser hereby agrees to purchase and accept from the
Vendor as of the 21st day of September, 2001 (the "Closing
Date"), the assets, rights and interests of the Vendor
listed in Schedule 2.1, as attached hereto (the "Purchased
Assets").
2.2. EXCLUDED LIABILITIES AND INDEMNITY. With the exception of
the liabilities and obligations specified in Schedule 2.3
(collectively, the "Assumed Liabilities"), the Purchaser
will not assume and will not be liable for, all
obligations, commitments and liabilities of and claims
against the Vendor (whether absolute, accrued or
contingent) relating to the Purchased Assets.
2.3. PURCHASE PRICE. As consideration for the assets, the
Purchaser agrees on the Closing Date to i) pay $31,923 to
the Vendor, and ii) to assume the Assumed Liabilities.
2.4. ALLOCATION OF PURCHASE PRICE. The purchase price shall be
allocated among the Purchased Assets in the manner
provided by Schedule 2.5 attached hereto. The Vendor and
the Purchaser shall file their respective tax returns
prepared in accordance with such allocation.
2.5. PAYMENT OF TAXES. The Purchaser shall be liable for and
shall pay all applicable federal and state sales taxes,
excise taxes and all other taxes (other than income taxes
of the Vendor), duties and other like charges properly
payable on and in connection with the conveyance and
transfer of the Purchased Assets to the Purchaser. The
Vendor will do and cause to be done such things as are
reasonably requested to enable the Purchaser to comply
with such obligation in an efficient manner.
3. REPRESENTATIONS AND WARRANTIES
3.1. REPRESENTATIONS AND WARRANTIES BY THE VENDOR. The Vendor
hereby represents and warrants to the Purchaser as
follows, and confirms that the Purchaser is relying upon
the accuracy of each of such representations and
warranties in connection with the purchase of the
Purchased Assets and the completion of the other
transactions hereunder:
3.1.1. Corporate Authority and Binding Obligation. The
Vendor has good right, full corporate power and
absolute authority to enter into this Agreement
and to sell, assign and transfer the Purchased
Assets to the Purchaser in the manner
contemplated herein and to perform all of the
Vendor's obligations under this Agreement.
Except with respect to those consents
identified on Schedule 3.1.2 which are not
obtained by the Closing, the Vendor and its
shareholders and board of directors have taken
all necessary or desirable actions, steps and
corporate and other proceedings to approve or
authorize, validly and effectively, the
entering into of, and the execution, delivery
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and performance of, this Agreement and the sale
and transfer of the Purchased Assets by the
Vendor to the Purchaser. This Agreement is a
legal, valid and binding obligation of the
Vendor, enforceable against it in accordance
with its terms.
3.1.2. Contractual and Regulatory Approvals. Except as
set forth on Schedule 3.1.2, the Vendor is not
under any obligation, contractual or otherwise,
to request or obtain the consent of any person
in order to consumate the transaction
contemplated hereby, and except as set forth on
Schedule 3.1.2, no permits, licences,
certifications, authorizations or approvals of,
or notifications to, any federal, state,
municipal or local government or governmental
agency, board, commission or authority are
required to be obtained by the Vendor in order
to consumate the transaction contemplated
hereby.
3.1.3. Status and Governmental Licences.
3.1.3.1. The Vendor is a corporation duly
incorporated, validly existing and
in good standing in all respects
under the laws of its jurisdiction
of incorporation. The Vendor has all
necessary corporate power to own,
lease and operate its assets,
properties and business and to carry
on its business as it is now being
conducted and is in good standing in
every jurisdiction in which the
nature of its business or the
location of its properties requires
such qualification or licensing.
3.1.3.2. The Vendor holds all necessary
licenses, registrations and
qualifications in each jurisdiction
in which,
(i) it owns any of the
Purchased Assets, or
(ii) the nature of the
Purchased Assets or any
part thereof, makes such
qualification necessary
or desirable to enable
the Purchased Assets to
be owned and operated.
The Vendor is in compliance with all
terms and conditions of the licenses,
registrations and qualifications.
There are no proceedings in progress,
pending or, to the best of the
knowledge of the Vendor, threatened,
which could result in the revocation,
cancellation or suspension of any of
the licenses, registrations or
qualifications.
3.1.4. Compliance with Constating Documents,
Agreements and Laws. The execution, delivery
and performance of this Agreement and each of
the other agreements contemplated or referred
to herein by the Vendor, and the completion of
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the transactions contemplated hereby, will not
constitute or result in a violation, breach or
default, or cause the acceleration of any
obligations under:
3.1.4.1. any term or provision of any of the
articles, by-laws or other
constituent documents of the Vendor,
or
3.1.4.2. the terms of any indenture,
agreement (written or oral),
instrument or understanding or other
obligation or restriction to which
the Vendor is a party or by which it
is bound except with respect to
those consents identified on
Schedule 3.1.2 which are not
obtained by the Closing , or
3.1.4.3. any term or provision of any
licenses or any order of any court,
governmental authority or regulatory
body or any law or regulation
applicable to the Vendor.
3.1.4.4. Absence of Undisclosed Liabilities.
Other than the Assumed Liabilities,
there are no liabilities (contingent
or otherwise) of the Vendor of any
kind whatsoever in respect of which
the Purchaser may become liable on
or after the consummation of the
transactions contemplated by this
Agreement.
3.1.5. Litigation. There are no actions, suits or
proceedings, judicial or administrative
(whether or not purportedly on behalf of the
Vendor) pending or, to the best of the
knowledge of the Vendor, threatened, by or
against or affecting the Vendor which relate to
the Purchased Assets, at law or in equity, or
before or by any court or any federal, state,
municipal or other governmental department,
commission, board, bureau, agency or
instrumentality, domestic or foreign.
3.1.6. Title to Assets. The Vendor is the owner of and
has good and marketable title to all of the
Purchased Assets.
3.1.7. Works Orders and Deficiencies. There are no
outstanding work orders, non-compliance orders,
deficiency notices or other such notices
relative to the Purchased Assets which have
been issued by any regulatory authority, police
or fire department, sanitation, environment,
labor, health or other governmental authorities
or agencies. There are no matters under
discussion with any such department or
authority relating to work orders,
non-compliance orders, deficiency notices or
other such notices. None of the Purchased
Assets are being operated, in a manner that is
in contravention in any material respect of any
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statute, regulation, rule, code, standard or
policy.
3.1.8. Intellectual Property.
3.1.8.1. Schedule 3.1.8 attached hereto
lists:
(i) all patents, patent
applications and
registrations, trade
marks, trade xxxx
applications and
registrations,
copyrights, copyright
applications and
registrations, trade
names and industrial
designs, domestic or
foreign, owned or used by
the Vendor relating to
the Purchased Assets,
(ii) all trade secrets,
know-how, inventions and
other intellectual
property owned or used by
the Vendor relating to
the Purchased Assets,
(iii) all domain names, URLs,
source code, object code,
management tools,
database content, contact
information, support
software and resumes
related to the Web Sites,
and
(iv) all computer systems and
application software,
including without
limitation all
documentation relating
thereto and the latest
revisions of all related
object and source codes
therefore, owned or used
by the Vendor relating to
the Purchased Assets,
(all of the foregoing being
collectively called the
"Intellectual Property").
3.1.8.2. The Vendor has good and valid title
to all of the Intellectual Property,
free and clear of any and all liens
and encumbrances, except in the case
of any Intellectual Property
licensed to the Vendor and Permitted
Liens. Complete and correct copies
of all agreements whereby any rights
in any of the Intellectual Property
have been granted or licensed to or
from the Vendor have been provided
to the Purchaser. No royalty or
other fee is required to be paid by
the Vendor to any other person in
respect of the use of any of the
Intellectual Property except as
provided in such agreements
delivered to the Purchaser. The
Vendor has protected its rights in
the Intellectual Property. The
Vendor has the exclusive right to
use all of the Intellectual Property
which is owned by the Vendor and has
not granted any licence or other
rights to any other person in
respect of such Intellectual
Property. Complete and correct
copies of all agreements whereby any
rights in any of the Intellectual
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Property have been granted or
licensed by the Vendor to any other
person have been provided to the
Purchaser. The Vendor is entitled to
assign all of its rights and
interest in and to the Intellectual
Property to the Purchaser.
3.1.8.3. Except as provided in agreements
delivered to the Purchaser, there
are no restrictions on the ability
of the Vendor or any successor to or
assignee from the Vendor to use and
exploit all rights in the
Intellectual Property. All
statements contained in all
applications for registration of the
Intellectual Property were true and
correct as of the date of this
Agreement of such applications. Each
of trade marks and trade names
included in the Intellectual
Property is in use.
3.1.8.4. To the knowledge of the Vendor, the
use of the Purchased Assets and the
use of the Intellectual Property
does not infringe or otherwise
encroach upon, and the Vendor has
not received any notice, complaint,
threat or claim alleging
infringement of, any patent, trade
xxxx, trade name, copyright,
industrial design, trade secret or
other Intellectual Property or
propriety right of any other person.
3.1.9. Partnerships or Joint Ventures. Except with
respect to contracts identified on Schedule
3.1.12, the Vendor is not, in relation to the
Purchased Assets, a partner or participant in
any partnership, joint venture, profit-sharing
arrangement or other association of any kind
and is not party to any agreement under which
the Vendor agrees to carry on any part of the
Business in such manner or by which the Vendor
agrees to share any revenue or profit of the
Business with any other person.
3.1.10. Customers. The Vendor has previously delivered
to the Purchaser a true and complete list of
all customers of the Business as of the date of
this Agreement. The Vendor is the sole and
exclusive owner of, and has the unrestricted
right to use, such customer list. Neither the
customer list nor any information relating to
the customers of the Business have, within
three years prior to the date of this
Agreement, been made available to any person
other than the Purchaser. To the Vendor's
knowledge, no such customer has threatened to
cease to be a customer of the Business where
such cessation would be material to the
condition of the Purchased Assets.
3.1.11. Licenses, Agency and Distributorship
Agreements. Except as set forth on Schedule
3.1.11, there are no agreements to which the
Vendor is a party or by which it is bound under
which the right to manufacture, use or market
any product, service, technology, information,
data, computer hardware or software or other
property used in or produced or sold in
relation to the Purchased Assets has been
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granted, licensed or otherwise provided to the
Vendor or by the Vendor to any other person, or
under which the Vendor has been appointed or
any person has been appointed by the Vendor as
an agent, distributor, licensee or franchisee
for any of the foregoing.
3.1.12. Outstanding Agreements. The Vendor is not a
party to or bound by any outstanding or
executor agreement, contract or commitment,
whether written or oral, relating to the
Purchased Assets, except for any contract or
agreement described on Schedule 3.1.12.
3.1.13. Good Standing of Agreements. Except with
respect to those consents identified on
Schedule 3.1.2 which are not obtained by the
Closing, the Vendor is not in default or breach
in any material respect of any of its
obligations under any one or more contracts,
agreements (written or oral), commitments,
indentures or other instruments to which it is
a party or by which it is bound relating to the
Purchased Assets, and there exists no state of
facts which, after notice or lapse of time or
both, would constitute such a default or
breach. All such contracts, agreements,
commitments, indentures and other instruments
are now in good standing and in full force and
effect without amendment thereto, except as
indicated on Schedule 3.1.12, the Vendor is
entitled to all benefits there under and, to
the best of the knowledge of the Vendor, the
other parties to such contracts, agreements,
commitments, indentures and other instruments
are not in default or breach of any of their
obligations there under. Except as indicated on
Schedule 3.1.13, there are no contracts,
agreements, commitments, indentures or other
instruments relating to the Purchased Assets
under which the Vendor's rights or the
performance of its obligations are dependent on
or supported by the guarantee of or any
security provided by any other person.
3.1.14. Compliance with Laws. In relation to the
Purchased Assets, the Vendor is not in
violation in any material respect of any
federal, state or other law, regulation or
order of any government or governmental or
regulatory authority, domestic or foreign.
3.1.15. Disclosure. No representation or warranty
contained in this Section 3.1, contains or will
contain any untrue statement of a material
fact, or omits or will omit to state any
material fact which is necessary in order to
make the statements contained therein not
misleading.
3.2. REPRESENTATIONS AND WARRANTIES BY THE PURCHASER. The
Purchaser hereby represents and warrants to the Vendor as
follows, and confirms that the Vendor is relying on the
accuracy of each of such representations and warranties in
connection with the sale of the Purchased Assets and the
completion of the other transactions hereunder:
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3.2.1. Corporate Authority and Binding Obligation. The
Purchaser is a corporation duly incorporated
and validly subsisting in all respects under
the laws of its jurisdiction of incorporation.
The Purchaser has good right, full corporate
power and absolute authority to enter into this
Agreement and to purchase the Purchased Assets
from the Vendor in the manner contemplated
herein and to perform all of the Purchaser's
obligations under this Agreement. The Purchaser
and its shareholders and board of directors
have taken all necessary or desirable actions,
steps and corporate and other proceedings to
approve or authorize, validly and effectively,
the entering into of, and the execution,
delivery and performance of, this Agreement and
the purchase of the Purchased Assets by the
Purchaser from the Vendor. This Agreement is a
legal, valid and binding obligation of the
Purchaser, enforceable against it in accordance
with its terms.
3.2.2. Contractual and Regulatory Approvals. The
Purchaser is not under any obligation,
contractual or otherwise to request or obtain
the consent of any person, and no permits,
licenses, certifications, authorizations or
approvals of, or notifications to, any federal,
state, municipal or local government or
governmental agency, board, commission or
authority are required to be obtained by the
Purchaser in connection with the execution,
delivery or performance by the Purchaser of
this Agreement or the completion of any of the
transactions contemplated herein. Complete and
correct copies of any agreements under which
the Purchaser is obligated to request or obtain
any such consent have been provided to the
Vendor.
3.2.3. Compliance with Constituent Documents,
Agreements and Laws. The execution, delivery
and performance of this Agreement and each of
the other agreements contemplated or referred
to herein by the Purchaser, and the completion
of the transactions contemplated hereby, will
not constitute or result in a violation or
breach of or default under:
3.2.3.1. any term or provision of any of the
articles, by-laws or other
constating documents of the
Purchaser,
3.2.3.2. the terms of any indenture,
agreement (written or oral),
instrument or understanding or other
obligation or restriction to which
the Purchaser is a party or by which
it is bound, or
3.2.3.3. any term or provision of any
licenses, registrations or
qualification of the Purchaser or
any order of any court, governmental
authority or regulatory body or any
applicable law or regulation of any
jurisdiction.
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4. SURVIVAL AND LIMITATIONS OF REPRESENTATIONS AND WARRANTIES
4.1. SURVIVAL OF WARRANTIES BY THE VENDOR. The representations
and warranties made by the Vendor and contained in this
Agreement, or contained in any document or certificate
given in order to carry out the transactions contemplated
hereby, will survive the closing of the purchase of the
Purchased Assets provided for herein and shall continue in
full force and effect for the benefit of the Purchaser,
provided that no Warranty Claim ("Warranty Claim" means a
claim for indemnity pursuant to Article 8 hereof) made by
either the Purchaser or the Vendor based on or with
respect to the inaccuracy or non-performance or
non-fulfillment or breach of any representation or
warranty made by the other party contained in this
Agreement or contained in any document or certificate
given in order to carry out the transactions contemplated
herein.) may be made or brought by the Purchaser after the
date which is two years following the Closing Date.
4.2. SURVIVAL OF WARRANTIES BY PURCHASER. The representations
and warranties made by the Purchaser and contained in this
Agreement or contained in any document or certificate
given in order to carry out the transactions contemplated
hereby will survive the closing of the purchase and sale
of the Purchased Assets provided for herein and,
notwithstanding such closing or any investigation made by
or on behalf of the Vendor or any other person or any
knowledge of the Vendor or any other person, shall
continue in full force and effect for the benefit of the
Vendor; provided that no Warranty Claim may be made or
brought by the Vendor after the date which is two years
following the Closing Date.
4.3. LIMITATIONS ON WARRANTY CLAIMS.
4.3.1. The Purchaser shall not be entitled to make a
Warranty Claim if the Purchaser has been
advised in writing or otherwise has actual
knowledge prior to the Closing Date of the
inaccuracy, non-performance, non-fulfillment or
breach, which is the basis for such Warranty
Claim and the Purchaser completes the
transactions hereunder notwithstanding such
inaccuracy, non-performance, non-fulfillment or
breach.
4.3.2. The amount of any Losses that may be claimed by
the Purchaser pursuant to a Warranty Claim
shall be calculated to be the cost or loss to
the Purchaser after giving effect to any
insurance proceeds available to the Purchaser
in relation to the matter which is the subject
of the Warranty Claim.
4.3.3. Notwithstanding any other provisions of this
Agreement or of any agreement, certificate or
other document made in order to carry out the
transactions contemplated hereby, the maximum
aggregate liability of the Vendor together in
respect of all Warranty Claims by the
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Purchaser, whether pursuant to Article 8 hereof
or otherwise, will be limited to the Purchase
Price.
4.3.4. The Vendor will not assert any Warranty Claim
by the Purchaser until the aggregate Losses
incurred by the Vendor with respect to all
Warranty Claims exceeds $25,000.
5. COVENANTS
5.1. COVENANTS BY THE VENDOR. The Vendor covenants to the
Purchaser that it will do or cause to be done the
following:
5.1.1. Investigation of Business and Examination of
Documents. During the period from and including
the date of this Agreement to and including the
Closing Date (the "Interim Period"), the
Vendor, during normal business hours and upon
reasonable prior notice will provide access to
and will permit the Purchaser, through its
representatives, to make such investigation of,
the operations, properties, assets and records
of the Business and of its financial and legal
condition as the Purchaser deems necessary or
advisable to familiarize itself with such
operations, properties, assets, records and
other matters. Without limiting the generality
of the foregoing, during the Interim Period the
Vendor will permit, during normal business
hours and upon reasonable prior notice, the
Purchaser and its representatives to have
access to the premises used in connection with
the Business and will produce for inspection
and provide copies to the Purchaser of any and
all documents in the possession of the Vendor
relating to the Business, provided however that
such investigations and inspections shall not
unreasonably disrupt the personnel and
operations of the Business.
5.1.2. Exclusivity. During the Interim Period, the
Vendor agrees that it will not enter into
discussions with any third parties with regards
to a sale of assets, merger, acquisition,
partnership or joint venture without prior
written consent of the Purchaser.
5.1.3. Transfer of Purchased Assets. At or before the
Closing Date, the Vendor will cause all
necessary steps and corporate proceedings to be
taken in order to permit the Purchased Assets
to be duly and regularly transferred to the
Purchaser.
5.1.4. Forms of Conveyance. On the Closing Date, the
Vendor will deliver to the Purchaser good and
marketable title to and exclusive possession of
the Purchased Assets, free and clear of any and
all mortgages, charges, pledges, security
interests, liens, encumbrances, actions,
claims, demands and equities of any nature
whatsoever, other than Permitted Liens, or
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howsoever arising and any rights or privileges
capable of becoming any of the foregoing. On
the Closing Date, the Vendor will execute and
deliver to the Purchaser one or more forms of
general conveyance, or bills of sale, deeds,
transfers and other documents reasonably
requested by the Purchaser in respect of the
assignment, conveyance, transfer and delivery
of the Purchased Assets to the Purchaser in
form which is remittable and acceptable to the
Purchaser. As used in this Agreement,
"Permitted Liens" shall mean, collectively, (i)
mechanics', materialmen's, carriers',
workmen's, warehousemen's, repairmen's,
landlords or other like liens securing
obligations that are not delinquent, (ii) liens
for taxes and other governmental charges which
are not yet due or payable, (iii) purchase
money liens securing the purchase price of the
related property described on Schedule 5.1.4
and (iv) those liens and encumbrances described
on Schedule 5.1.4
5.2. COVENANTS BY THE PURCHASER. The Purchaser covenants to the
Vendor that it will do or cause to be done the following:
5.2.1. Confidentiality. Prior to and including the
Closing Date and, if the transaction
contemplated hereby is not completed, at all
times after the Closing Date, the Purchaser
will keep confidential all information obtained
by it relating to the Business, except such
information which:
5.2.1.1. prior to the date of this Agreement
was already in the possession of the
Purchaser, as demonstrated by
written records,
5.2.1.2. is generally available to the
public, other than as a result of a
disclosure by the Purchaser, or
5.2.1.3. is made available to the Purchaser
on a non-confidential basis from a
source other than the Vendor or its
representatives.
The Purchaser further agrees that such
information will be disclosed only to those of
its employees and representatives of its advisors
who need to know such information for the
purposes of evaluating and implementing the
transaction contemplated hereby. Notwithstanding
the foregoing provisions of this paragraph, the
obligation to maintain the confidentiality of
such information will not apply to the extent
that disclosure of such information is required
in connection with governmental or other
applicable filings relating to the transactions
hereunder, provided that, in such case, unless
the Vendor otherwise agrees, the Purchaser will,
if possible, request confidentiality in respect
of such governmental or other filings. If the
transactions contemplated hereby are not
consummated for any reason, the Purchaser will
return forthwith, without retaining any copies,
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all information and documents obtained from the
Vendor.
6. CONDITIONS
6.1. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER.
Notwithstanding anything herein contained, the obligation
of the Purchaser to complete the transactions provided for
herein will be subject to the fulfillment of the following
conditions by the Vendor at or prior to the Closing Date
(any or all of which may be waived by the Purchaser).
6.1.1. Accuracy of Representations and Warranties and
Performance of Covenants. The representations
and warranties of the Vendor contained in this
Agreement shall be true and accurate in all
material respects on the date and at the
Closing Date with the same force and effect as
though such representations and warranties had
been made as of the Closing Date (regardless of
the date as of which the information in this
Agreement or in any Schedule or other document
made pursuant hereto is given). In addition,
the Vendor shall have complied with all
covenants and agreements herein agreed to be
performed or caused to be performed by it at or
prior to the Closing Date. In addition, the
Vendor shall have delivered to the Purchaser a
certificate in the form of Schedule 6.1.1
attached hereto confirming that the facts with
respect to each of such representations and
warranties by the Vendor are as set out herein
at the Closing Date and that the Vendor has
performed all covenants required to be
performed by it hereunder.
6.1.2. Material Adverse Changes. During the Interim
Period there will have been no change in the
condition of the Purchased Assets, howsoever
arising, except changes which have occurred in
the ordinary course of the Business and which,
individually or in the aggregate, have not
affected and may not affect the condition of
the Purchased Assets in any material adverse
respect. Without limiting the generality of the
foregoing, during the Interim Period no damage
to or destruction of any material part of the
Purchased Assets shall have occurred, whether
or not covered by insurance.
6.1.3. No Restraining Proceedings. No order, decision
or ruling of any court, tribunal or regulatory
authority having jurisdiction shall have been
made, and no action or proceeding shall be
pending or threatened which, in the opinion of
counsel to the Purchaser, is likely to result
in an order, decision or ruling, to disallow,
enjoin, prohibit or impose any limitations or
conditions on the purchase and sale of the
Purchased Assets contemplated hereby or the
right of the Purchaser to own the Purchased
Assets.
6.1.4. Consents. All consents required to be obtained
in order to carry out the transactions
contemplated hereby in compliance with all laws
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and agreements binding on the parties hereto
shall have been obtained.
6.1.5. Assignment and Waiver of Intellectual Property
Rights. At the Closing Time, the Vendor shall
have delivered to the Purchaser a certificate
of the Vendor in the form of the draft attached
hereto as Schedule 6.1.5, whereby the Vendor
assigns all of its intellectual property rights
in the Purchased Assets.
6.1.6. Further Assurances. The Vendor shall furnish
the Purchaser with such further written
documentation in order to enable the Purchaser
to establish, prove or perfect the Purchaser's
ownership of any of the assets herein conveyed.
6.2. CONDITIONS TO THE OBLIGATIONS OF THE VENDOR.
Notwithstanding anything herein contained, the obligations
of the Vendor to complete the transactions provided for
herein will be subject to the fulfillment of the following
conditions at or prior to the Closing Date (any or all of
which may be waived by the Vendor).
6.2.1. Accuracy of Representations and Warranties and
Performance of Covenants. The representations
and warranties of the Purchaser contained in
this Agreement will be true and accurate in all
material respects on the date and at the
Closing Date with the same force and effect as
though such representations and warranties had
been made as of the Closing Date (regardless of
the date as of which the information in this
Agreement or any such Schedule or other
document made pursuant hereto is given). In
addition, the Purchaser shall have complied
with all covenants and agreements herein agreed
to be performed or caused to be performed by it
at or prior to the Closing Date. In addition,
the Purchaser shall have delivered to the
Vendor a certificate in the form of Schedule
6.3.1 attached hereto confirming that the facts
with respect to each of the representations and
warranties of the Purchaser are as set out
herein at the Closing Date and that the
Purchaser has performed each of the covenants
required to be performed by it hereunder.
6.2.2. No Restraining Proceedings. No order, decision
or ruling of any court, tribunal or regulatory
authority having jurisdiction shall have been
made, and no action or proceeding shall be
pending or threatened which, in the opinion of
the Vendor, is likely to result in an order,
decision or ruling, to disallow, enjoin or
prohibit the purchase and sale of the Purchased
Assets contemplated hereby.
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6.2.3. Consents. All consents required to be obtained
in order to carry out the transactions
contemplated hereby in compliance with all laws
and agreements binding upon the parties hereto
shall have been obtained.
6.3.5. Guarantee. The Purchaser shall have delivered
to the Vendor a Guarantee substantially in the
form of Exhibit B duly executed by
X-Xxxxxxx.xxx, Inc.
7. CLOSING
7.1. CLOSING ARRANGEMENTS. Subject to the terms and conditions,
the transactions contemplated herein shall be closed on
the Closing Date at the offices of Xxxxxx-Xxxxxxxxx, Xxxx
& XxXxxxxxx LLP, 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, XX
X0X 0X0, Xxxxxx or at such other place or places as may be
mutually agreed on by the Vendor and the Purchaser.
7.2. DOCUMENTS TO BE DELIVERED. At or before the Closing Date,
the Vendor shall execute, or cause to be executed, and
shall deliver, or cause to be delivered, to the Purchaser
all documents, instruments and things which are to be
delivered by the Vendor pursuant to the provisions of this
Agreement, and the Purchaser shall execute, or cause to be
executed, and shall deliver, or cause to be delivered, to
the Vendor all cheques or bank drafts and all documents,
instruments and things which the Purchaser is to deliver
or to cause to be delivered pursuant to the provisions of
this Agreement.
8. INDEMNIFICATION AND SET-OFF
8.1. INDEMNITY BY THE VENDOR.
8.1.1. The Vendor hereby agrees to indemnify and save
the Purchaser, its stockholders, directors,
officers and employees (collectively,
"Purchaser Indemnified Party") harmless from
and against any claims, demands, actions,
causes of action, damage, loss, deficiency,
cost, liability and expense, including, without
limitation, reasonable attorneys fees,
(collectively, "Losses"), which may be made or
brought against a Purchaser Indemnified Party
or which a Purchaser Indemnified Party may
suffer or incur as a result of, in respect of
or arising out of:
8.1.1.1. any non-performance or
non-fulfillment of any covenant or
agreement on the part of the Vendor
contained in this Agreement;
8.1.1.2. any misrepresentation, inaccuracy,
incorrectness or breach of any
representation or warranty made by
the Vendor contained in this
Agreement;
14
8.1.1.3. any non-compliance with any federal,
state, local, municipal, foreign,
international or other
administrative order, constitution,
law, ordinance, statute, or treaty
applicable to Vendor in the carrying
out of the transaction contemplated
herein;
8.1.1.4. any claim for a debt, obligation or
liability of the Vendor which is not
specifically assumed by Purchaser
pursuant to this Agreement; and
8.1.1.5. except with respect to Assumed
Liabilities, any suit, action,
proceeding, claim, investigation
pending or threatened against or
affecting the Purchased Assets,
regardless of whether such is
disclosed in a Schedule hereto, that
arises from the conduct of the
Business prior to the Closing Date;
8.1.2. The obligations of indemnification by the
Vendor pursuant to paragraph 8.1.1 of this
section will be:
8.1.2.1. subject to the limitations referred
to in Section 4.1 with respect to
the survival of the representations
and warranties by the Vendor;
8.1.2.2. subject to the limitations referred
to in Section 4.3; and
8.1.2.3. subject to the provisions of Section
8.3.
8.2. Indemnity by the Purchaser.
8.2.1. The Purchaser hereby agrees to indemnify and save
the Vendor, its stockholders, directors,
officers, and employees (collectively, "Vendor
Indemnified Party") harmless from and against any
Losses which may be made or brought against a
Vendor Indemnified Party or which a Vendor
Indemnified Party may suffer or incur as a result
of, in respect of or arising out of:
8.2.1.1. any non-performance or
non-fulfillment of any covenant or
agreement on the part of the
Purchaser contained in this
Agreement;
8.2.1.2. any misrepresentation, inaccuracy,
incorrectness or breach of any
representation or warranty made by
the Purchaser contained in this
Agreement;
15
8.2.1.3. any non-compliance with any federal,
state, local, municipal, foreign,
international or other
administrative order, constitution,
law, ordinance, statute, or treaty
applicable to Purchaser in the
carrying out of the transaction
contemplated herein;
8.2.1.4. any Assumed Liability;
8.2.1.5. the conduct of the Business after
the Closing Date.
8.2.2. The obligations of indemnification by the
Purchaser pursuant to Paragraph 8.2.1 of this
section will be subject to the provisions of
Section 8.3 and shall be the sole and exclusive
remedy of the Vendor for any breach by the
Purchaser of any representation or warranty of
the Purchaser herein. The indemnity obligations
of the Purchaser pursuant to Section 8.2.1
shall include, without limitation,
indemnification of the Vendor's shareholders
with respect to any payments required to be
made by them with respect to any Assuemd
Liability, including, without limitation,
payments made under any guaranties by those
shareholders of the Assumed Liabilities,
regardless of whether any Assumed Liability
shall have been accelerated as a result of the
transactions contemplated by this Agreement.
8.3. INDEMNIFICATION PROCEDURES.
8.3.1. Upon obtaining knowledge of any claim or demand
which has given rise to, or is expected to give
rise to, a claim for indemnification hereunder,
the party seeking indemnification
("Indemnitee") shall give written notice
("Notice of Claim") of such claim or demand to
the indemnifying party ("Indemnitor").
Indemnitee shall furnish to the Indemnitor in
reasonable detail such information as
Indemnitee may have with respect to such
indemnification claim (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 asserting the same). Subject to
the limitations set forth in Section 4.3
hereof, no failure or delay by Indemnitee in
the performance of the foregoing shall reduce
or otherwise affect the obligation of
Indemnitor to indemnify and hold Indemnitee
harmless, except to the extent that such
failure or delay shall have actually adversely
affected Indemnitor's ability to defend
against, settle or satisfy any Liability for
which Indemnitee is entitled to indemnification
hereunder.
8.3.2. If the claim or demand set forth in the Notice
of Claim given by Indemnitee pursuant to
Section 8.3.1 hereof is a claim or demand
asserted by a third party, Indemnitor shall
have 15 days after the date on which Notice of
Claim is given to notify Indemnitee in writing
or its election to defend such third party
16
claim or demand on behalf of the Indemnitee. If
Indemnitor elects to defend such third party
claim or demand, at its' own expense,
Indemnitee shall make available to Indemnitor
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
with, and assist Indemnitor in the defense of,
such third party claim or demand, and so long
as Indemnitor is defending such third party
claim in good faith, Indemnitee shall not pay,
settle or compromise such third party claim or
demand. If Indemnitor elects to defend such
third party claim or demand, Indemnitee shall
have the right to participate in the defense of
such third party claim or demand, at
Indemnitee's own expense. In the event,
however, that Indemnitee reasonably determines
that representation by counsel to Indemnitor of
both Indemnitor and Indemnitee may present such
counsel with a conflict of interest, then such
Indemnitee may employ separate counsel to
represent or defend it in any such action or
proceeding and Indemnitor will pay the fees and
disbursements of such counsel. If Indemnitor
does not elect to defend such third party claim
or demand or does not defend such third party
claim or demand in good faith, Indemnitee shall
have the right, in addition to any other right
or remedy it may have hereunder, at
Indemnitor's expense, to defend such third
party claim or demand; provided, however, that
(a) Indemnitee shall not have any obligation to
participate in the defense of, or defend, any
such third party claim or demand; and (b)
Indemnitee's defense of or its participation in
the defense of any such third party claim or
demand shall not in any way diminish or lessen
the obligations of Indemnitor under the
agreements of indemnification set forth in this
Article 8.
8.3.2. Except for third party claims being defended in
good faith, Indemnitor shall satisfy its
obligations hereunder in respect of a valid
claim for indemnification hereunder in cash
within 30 days after the date on which Notice
of Claim is given.
8A.1 Post Closing Covenants. Purchaser agrees to make monthly payments to
the creditors set forth below in an amount equal to the greater of
the amount then due and owing (whether by acceleration or otherwise)
and the amount set forth below opposite the applicable indebtedness:
Creditor Indebtedness Minimum Payment
-------- ------------ ---------------
Xxxxx Xxxxx Revolving Credit $3,200
($55,331)
Citibank $60,000 $1,500
Wasco Funding Corp. $52,281.28 $4,500
Leaseline $19,025.62 $1,000
17
8A.2 Purchaser agrees to use its reasonable best efforts to refinance the
indebtedness included in the Assumed Liabilities on commercially
reasonable terms as promptly as practicable.
9. GENERAL PROVISIONS
9.1. FURTHER ASSURANCES. Each of the Vendor and the Purchaser
hereby covenants and agrees that at any time and from time
to time after the Closing Date it will, on the request of
the others, do, execute, acknowledge and deliver or cause
to be done, executed, acknowledged and delivered all such
further acts, deeds, assignments, transfers, conveyances
and assurances as may be required for the better carrying
out and performance of all the terms of this Agreement.
9.2. NOTICES. Any demand, notice or other communications to be
given in connection with this Agreement shall be given in
writing and may be given by personal delivery or overnight
delivery service or by registered mail, return receipt
requested.
Notices to the Purchaser shall be addressed to:
X-Xxxxxxx.xxx Inc
000 Xxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Attention: Mr. Xxxxxxx Xxxxxxxxx
or at such other address and to the attention of
such other person as the Purchaser may designate
by written notice to the Vendor.
Notices to the Vendor shall be addressed to:
Tech-Engine, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx Xxxxx
or at such other address and to the attention of
such other person as the Vendor may designate by
written notice to the Purchaser.
Any communication given by personal delivery shall be
conclusively deemed to have been given on the day of actual
delivery thereof, if given by registered mail, on the third
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(3rd) business day following the deposit thereof in the
mail, and if by overnight delivery service, the next day.
9.3. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which so executed shall be deemed to
be an original, and such counterparts together shall
constitute but one and the same instrument.
9.4. EXPENSES OF PARTIES. Each of the parties hereto shall bear
all expenses incurred by it in connection with this
Agreement including, without limitation, the charges of
their respective counsel, accountants, financial advisors
and finders.
9.5. BROKERAGE AND FINDER'S FEES. The Vendor agrees to
indemnify the Purchaser and hold it harmless in respect of
any claim for brokerage or other commissions relative to
this Agreement or the transactions contemplated hereby
which is caused by actions of the Vendor. The Purchaser
will indemnify the Vendor and hold it harmless in respect
of any claim for brokerage or other commissions relative
to this Agreement or to the transactions contemplated
hereby which is caused by actions of the Purchaser.
9.6. ANNOUNCEMENTS. No announcement with respect to this
Agreement will be made by any party hereto without the
prior approval of the other party. The foregoing will not
apply to any announcement by any party required in order
to comply with laws pertaining to timely disclosure,
provided that such party consults with the other parties
before making any such announcement.
9.7. ASSIGNMENT. The rights of each party hereunder shall not
be assignable without the written consent of the other
party.
9.8. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on
and enure to the benefit of the parties hereto and their
respective successors and permitted assigns. Nothing
herein, express or implied, is intended to confer on any
person, other than the parties hereto, the shareholders of
the Vendor and their respective successors and assigns,
any rights, remedies, obligations or liabilities under or
by reason of this Agreement.
9.9. ENTIRE AGREEMENT. This Agreement and the Schedules
referred to herein constitute the entire agreement between
the parties hereto and supersede all prior agreements,
representations, warranties, statements, promises,
information, arrangements and understandings, whether oral
or written, express or implied, with respect to the
subject-matter. None of the parties hereto shall be bound
or charged with any oral or written agreements,
representations, warranties, statements, promises,
information, arrangements or understandings not
19
specifically set forth in this Agreement or in the
Schedules, documents and instruments to be delivered on or
before the Closing Date pursuant to this Agreement. The
parties hereto further acknowledge and agree that, in
entering into this Agreement and in delivering the
Schedules, documents and instruments to be delivered on or
before the Closing Date, they have not in any way relied,
and will not in any way rely, on any oral or written
agreements, representations, warranties, statements,
promises, information, arrangements or understandings,
express or implied, not specifically set forth in this
Agreement or in such Schedules, documents or instruments.
9.10. WAIVER. Any party hereto which is entitled to the benefits
of this Agreement may, and has the right to, waive any
term or condition at any time on or prior to the Closing
Time; provided, however, that such waiver shall be
evidenced by written instrument duly executed on behalf of
such party.
9.11. AMENDMENTS. No modification or amendment to this Agreement
may be made unless agreed to by the parties hereto in
writing.
IN WITNESS WHEREOF the parties hereto have duly executed this
Agreement under seal as of the day and year first above written.
XXXXX XXXXX HOLDINGS, INC.
by: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Executive Officer
TECH-ENGINE INC.
by: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: President
20
GUARANTY
The undersigned, severally and not jointly, hereby guarantee the
prompt and full performance by the Vendor of its obligations pursuant to Section
8.1.1; provided, however, that the aggregate liability of the undersigned
pursuant to this guaranty shall not exceed $15,000 per individual.
IN WITNESS WHEREOF, the undersigned have executed this Guaranty as of
the 24th day of September, 2001.
/s/ Xxxxxxx Xxxxx
---------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxxxxx
---------------------------------
Xxxxxxx Xxxxxxxx
21
