ASSET PURCHASE AND SALE AGREEMENT
THIS ASSET PURCHASE AND SALE AGREEMENT (hereinafter referred to as the
"Agreement") is made and entered into effective as of the 25th day of June,
1999, by and between Art Exchange, Inc., a Colorado corporation (hereinafter
referred to as the "Buyer"), 0000 Xxxxx Xxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000, and
Museum Auctions, Ltd., a Colorado corporation (hereinafter referred to as the
"Seller"), 0000 Xxxxx Xxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000.
RECITALS:
A. WHEREAS, the Seller, a privately-held Colorado corporation, conducts
business, primarily, in the marketing and sale via auction of consigned
originals and reproductions of fine art, antiques and collectibles.
B. WHEREAS, the Seller desires to sell, assign, transfer, convey and
deliver to the Buyer, and the Buyer desires to purchase, acquire and receive
from the Seller, certain assets of the Seller in exchange therefor of the
consideration described in Article IV below, on the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
promises, covenants, agreements, representations and warranties set forth
hereinafter, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
PURCHASE AND SALE
-----------------
Subject to the terms and conditions set forth in this Agreement, the Seller
hereby agrees to sell, assign, transfer, convey and deliver to the Buyer, and
the Buyer hereby agrees to purchase, acquire and receive from the Seller, on the
Closing Date, as defined in Article XII hereof, good, marketable and
indefeasible title to certain of the Seller's assets, as described in Article II
hereof, free and clear of all security interests, liens, pledges, restrictions,
charges and encumbrances whatsoever, except as provided in Article II.
ARTICLE II
ASSETS
------
A. The assets to be sold, assigned, transferred, conveyed and delivered
to the Buyer shall include the following:
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1. The name "Museum Auctions" (to be available subsequent to the
change of the Seller's name on or prior to the Closing Date).
2. The Seller's "auction" customer mailing list in the form of
Exhibit A attached hereto and incorporated herein by this reference; which
list includes some or all of the names on the "gallery" customer mailing
list which will continue to be utilized by the Seller and/or affiliates of
the Seller.
3. The non-exclusive right to conduct live auctions of originals and
reproductions of fine art, antiques and collectibles marketed and sold by
the Seller on consignment; for the provision of which services the Seller
agrees to pay the Buyer auction sales commissions, as provided in Article
XIX hereof, in the amount of twenty-five percent (25%) of the aggregate
sales price of all such consigned goods sold via auction conducted by the
Buyer from time-to-time from and after the Closing Date.
These assets (hereinafter, collectively, referred to as the "Assets") shall be
sold, assigned, transferred, conveyed and delivered to the Buyer on the Closing
Date.
B. Other than as stated herein, all other properties and assets of the
Seller shall be retained by the Seller and shall not be sold, assigned or
transferred to the Buyer. Such properties and assets shall be held by the Seller
and be available for distribution to the Seller's shareholders, and may be used
by the Seller to satisfy its obligations and liabilities to the extent thereof.
ARTICLE III
RELATIONSHIP OF THE PARTIES
---------------------------
Notwithstanding anything to the contrary contained in this Agreement, it is
understood and agreed that the Seller and its affiliates are, directly or
indirectly, engaged in certain businesses or activities including, but not
limited to, the marketing and sale via auction of originals and reproductions of
fine art, antiques and collectibles consigned to the Seller, and no portion of
such other related and unrelated businesses, or their respective assets, are
being sold or transferred to the Buyer pursuant to this Agreement. This
Agreement shall be ineffective as to such other related and unrelated businesses
and shall not apply in any way to the operations, properties or assets of the
Seller or any affiliate of the Seller as they relate to such related and
unrelated businesses. Further, the Buyer is only purchasing the Assets for
purposes of conducting the Buyer's ongoing business activities and is not
continuing or assuming the business of the Seller or assuming any liability or
liabilities of the Seller arising from or in connection with the Seller's
business, nor commencing a merger or other consolidation with the Seller. This
Agreement is one of purchase and sale of the Assets only, and does not and shall
not be deemed to create a partnership, joint venture or other agency
relationship between the parties, or result in a merger, de facto merger or any
other type of combination of the Seller with or into the Buyer. Notwithstanding
the foregoing, the Seller agrees that all auctions conducted from and after the
Closing Date through the Buyer shall be conducted in accordance with the
provisions of Article XVIII hereof.
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ARTICLE IV
PURCHASE PRICE
--------------
The total purchase price for the Assets shall be $100.00 payable by the
Buyer to the Seller on the Closing Date. The Seller and the Buyer agree that
this Agreement is indivisible and may not be fractionalized even though separate
considerations may be stated for the Assets.
ARTICLE V
TAXES AND ASSESSMENTS
---------------------
The Seller shall be responsible for and pay all taxes and assessments in
connection with the Assets for the period prior to the Closing Date. The Buyer
shall be responsible for and pay all taxes and assessments in connection with
the Assets for the period on and after the Closing Date.
ARTICLE VI
NO ASSUMPTION OF LIABILITIES
----------------------------
The Buyer shall assume no debts, liabilities or obligations of the Seller
arising with respect to periods prior to or subsequent to the Closing Date.
Anything herein to the contrary notwithstanding, the Seller hereby agrees to
retain and discharge, and to indemnify and hold the Buyer harmless from and
against, any and all debts, liabilities and obligations of the Seller, whenever
arising.
ARTICLE VII
THE SELLER'S REPRESENTATIONS
----------------------------
The Seller hereby represents, warrants, covenants and agrees that:
A. The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado and is duly qualified to
transact business as a corporation in the State of Colorado. The Seller has all
requisite corporate power and authority to own and operate its properties and to
carry on its business as now and where being conducted. The Seller is qualified
to transact business as a foreign entity in all states in which the nature of
its business or the character or ownership of its properties make such
licensing, registration or qualification necessary.
B. The execution and delivery of this Agreement by the Seller have been
duly and validly authorized and approved by all necessary action of the Seller.
The Seller has full corporate power and authority and the legal right to enter
into this Agreement and to consummate the transactions contemplated herein. This
Agreement is a valid and binding obligation of the Seller, enforceable against
the Seller in accordance with its terms.
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C. On the Closing Date, the Seller shall have full legal power, right and
authority to sell and convey to the Buyer legal and beneficial title to the
Assets and the Seller's sale to the Buyer shall transfer good, marketable and
indefeasible title thereto, free and clear of all security interests, liens,
pledges, charges and encumbrances except for liens for taxes and other
governmental charges not yet due and payable.
D. The Seller has all licenses, permits, operating authorizations and
other agreements and approvals from governmental authorities necessary to own
and operate the Seller's business lawfully and in the manner in which it is now
operated by the Seller. The Seller has not received notice of any violation of
or default under, and is in substantial compliance in all material respects
with, each such license, permit, operating authorization or approval from
governmental authorities.
E. The Seller's business has been operated in substantial compliance with
all applicable local, state and Federal laws.
F. The execution, delivery and performance of this Agreement by the
Seller will not violate any provisions of law and will not, with or without the
giving of notice or the passage of time, conflict with or result in any breach
of any of the terms or conditions of, or constitute a default under, any
mortgage, agreement or other instrument to which the Seller is a party or by
which the Seller or the Assets are bound. The execution, delivery and
performance of this Agreement will not result in the creation of any security
interest, lien, pledge, charge or encumbrance upon the Assets or the Seller.
G. There is no outstanding judgment against the Seller and there is no
litigation, arbitration, proceeding or investigation pending, or, to the
Seller's knowledge, threatened against the Seller relating to or affecting the
Assets, the Seller's business operations or affairs, the Seller or the
transactions contemplated by this Agreement, or which questions the validity of
any action taken or to be taken pursuant to or in connection with the provisions
of this Agreement. The Seller warrants and represents that there is no
litigation matter or arbitration claim or demand for money damages which exists
or may exist as of the Closing Date. There are no proceedings pending to which
the Seller is a party or, to the Seller's knowledge, are threatened, nor any
demands by any governmental agency or other party, to terminate, modify or
materially and adversely change the terms and conditions of the Seller's rights
with respect to the Assets.
H. The Seller is not a party to any employment agreement, collective
bargaining agreement, pension, profit sharing, retirement, deferred compensation
or bonus or stock purchase plan relating to the Seller's employees for which the
Buyer shall have any obligation or liability. There are no disputes or
controversies pending or, to the Seller's knowledge, threatened with or by any
employees of the Seller which would materially and adversely affect any of the
Assets. The Seller does not have in effect, or have any obligation to establish
or contribute to, any plan, fund or program covered by the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), for which the Buyer shall
have any obligation or liability.
I. The Seller has paid all taxes, assessments, governmental charges and
penalties due and payable by it, and there are no suits, actions, claims,
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investigations, inquiries or proceedings pending or, to the Seller's knowledge,
threatened against the Seller in respect of any taxes, assessments, governmental
charges or penalties.
J. The Seller has good and marketable title to all of its properties and
assets, real and personal, except as since sold or otherwise disposed of in the
ordinary course of business, and the Seller's properties and assets are subject
to no mortgage, pledge, lien or encumbrance with respect to which no default
exists as of the date hereof and as of the Closing. The Seller will have
continuing business after this transaction, and shall make adequate provision
for payment of any liabilities of the Seller arising prior to or after the
Closing Date.
K. No representation or warranty by the Seller, or any statement or
certificate furnished by the Seller to the Buyer pursuant hereto or in
connection with the transactions contemplated hereby, contains or will contain
any untrue statement of a material fact or omits or will omit to state a
material fact necessary to make the statements contained therein not misleading.
The Seller acknowledges that the Buyer is relying upon the above
representations, warranties and agreements in entering into this Agreement and
proceeding to Closing.
ARTICLE VIII
THE BUYER'S REPRESENTATIONS
---------------------------
The Buyer hereby represents, warrants, covenants and agrees that:
A. The Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado and is duly qualified to
transact business as a corporation in the State of Colorado. The Buyer has all
requisite corporate power and authority to own and operate its properties and to
carry on its business as now and where being conducted. The Buyer is qualified
to transact business as a foreign entity in all states in which the nature of
its business or the character or ownership of its properties make such
licensing, registration or qualification necessary.
B. The execution and delivery of this Agreement by the Buyer have been
duly and validly authorized and approved by all necessary action of the Buyer.
The Buyer has full corporate power and authority and the legal right to enter
into this Agreement and to consummate the transactions contemplated hereby. This
Agreement is a valid and binding obligation of the Buyer, enforceable against
the Buyer in accordance with its terms.
C. The Buyer has all licenses, permits, operating authorizations and
other agreements and approvals from governmental authorities necessary to own
and operate the Buyer's business lawfully and in the manner in which it is now
operated by the Buyer. The Buyer has not received notice of any violation of or
default under, and is in substantial compliance in all material respects with,
each such license, permit, operating authorization or approval from governmental
authorities.
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D. The Buyer's business has been operated in substantial compliance with
all applicable local, state and Federal laws.
E. The execution, delivery and performance of this Agreement by the Buyer
will not violate any provisions of law and will not, with or without the giving
of notice or the passage of time, conflict with or result in any breach of any
of the terms or conditions of, or constitute a default under, any mortgage,
agreement or other instrument to which the Buyer is a party or by which the
Buyer is bound.
F. There is no outstanding judgment against the Buyer and there is no
litigation, arbitration, proceeding or investigation pending, or, to the Buyer's
knowledge, threatened against the Buyer or relating to or affecting the Buyer's
business operations or affairs, the Buyer or the transactions contemplated by
this Agreement, or which questions the validity of any action taken or to be
taken pursuant to or in connection with the provisions of this Agreement. The
Buyer warrants and represents that there is no litigation matter or arbitration
claim or demand for money damages which exists or may exist as of the Closing
Date.
G. The Buyer is not in default under any employment agreement, collective
bargaining agreement, pension, profit sharing, retirement, deferred compensation
or bonus or stock purchase plan relating to the Buyer's employees. The Buyer
does not have in effect, or have any obligation to establish or contribute to,
any plan, fund or program covered by ERISA, for which the Buyer shall have any
obligation or liability. There are no disputes or controversies pending or, to
the Buyer's knowledge, threatened with or by any employees of the Buyer which
would materially and adversely affect the Buyer's business.
H. The Buyer has paid all taxes, assessments, governmental charges and
penalties due and payable by it, and there are no suits, actions, claims,
investigations, inquiries or proceedings pending or, to the Buyer's knowledge,
threatened against the Buyer in respect of any taxes, assessments, governmental
charges or penalties.
I. The Buyer hasgood and marketable title to all of its properties and
assets, real and personal, except as since sold or otherwise disposed of in the
ordinary course of business, and the Buyer's properties and assets are subject
to no mortgage, pledge, lien or encumbrance with respect to which no default
exists as of the date hereof and as of the Closing.
J. No representation or warranty by the Buyer, or any statement or
certificate furnished by the Buyer to the Seller pursuant hereto or in
connection with the transactions contemplated hereby, contains or will contain
any untrue statement of a material fact or omits or will omit to state a
material fact necessary to make the statements contained therein not misleading.
The Buyer acknowledges that the Seller is relying upon the above
representations, warranties and agreements in entering into this Agreement and
proceeding to Closing.
ARTICLE IX
THE SELLER'S AND THE BUYER'S AFFIRMATIVE COVENANTS
--------------------------------------------------
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A. The Seller covenants and agrees that from and after the execution and
delivery of this Agreement to and including the Closing Date:
1. The Seller shall give the Buyer and its representatives access
during normal business hours to the properties comprising the Assets and to
the relevant books and records of the Seller concerning the Assets, and
furnish the Buyer with such relevant information concerning the Assets as
the Buyer may reasonably request. The Buyer agrees not to disturb the
normal operations of the Seller and further agrees that any and all
information received from the Seller shall be treated as confidential.
2. The Seller shall conduct its business only in the ordinary course
and shall use its reasonable efforts to preserve intact its assets,
properties and business, including, but not limited to, maintaining in
effect the casualty and liability insurance on the Assets heretofore in
force and complying with applicable Federal, state and local laws, rules
and regulations and pertinent provisions of all contracts, licenses and
other agreements to which it is a party or is otherwise bound. The Seller
shall make adequate provision for payment of its liabilities arising prior
to or after the Closing Date for which liabilities the Buyer shall have no
responsibility or liability.
3. The Assets shall not be sold, transferred, conveyed or otherwise
disposed of without the prior written consent of the Buyer.
B. Each party hereto will keep confidential any financial or other
confidential information obtained from the other party in connection with the
transactions contemplated by this Agreement except for such disclosure as may be
necessary in the consummation hereof, including any necessary disclosure by the
Buyer to its investors or lenders. In the event the Agreement is terminated and
purchase and sale contemplated hereby abandoned, each party will return to the
other party all documents, work papers and other written material obtained by it
in connection with this transaction.
ARTICLE X
CONDITIONS PRECEDENT TO THE BUYER'S OBLIGATIONS TO CLOSE
--------------------------------------------------------
The obligations of the Buyer under this Agreement with respect to the
purchase and sale of the Assets shall be subject to the fulfillment on or prior
to the Closing Date of each of the following conditions:
A. All of the representations and warranties by the Seller contained in
this Agreement shall be true and correct in all material respects at and as of
the Closing Date and shall survive the Closing Date for a period of six (6)
months. The Seller shall have complied with and performed in all material
respects all of the agreements, covenants and conditions required by this
Agreement to be performed or complied with by it on or prior to the Closing
Date. The Buyer shall have been furnished with a certificate of the President or
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any Vice President of the Seller, dated the Closing Date, certifying to the
fulfillment of the foregoing conditions.
B. The Seller shall have delivered a copy, certified by the Secretary of
Seller, of the resolution adopted by the Board of Directors of the Seller and
authorizing the execution, delivery and performance of this Agreement on behalf
of the Seller and the consummation of the transactions contemplated hereby.
C. There shall not have been instituted by any creditor of the Seller or
other third party any suit or proceedings to restrain or invalidate this
transaction or seeking damages from or to impose obligations upon the Buyer
which, in the Buyer's judgment, reasonably exercised, would involve expense or
lapse of time that would be materially adverse to the Buyer's interest.
D. There shall not have been suffered (after the date hereof) any
casualty or loss, whether or not covered by insurance, which materially and
adversely affects the Assets; provided that if the Buyer elects to waive such
condition to its obligations under this Agreement, the provisions of Article XV
hereof shall be applicable to the insurance proceeds and other rights against
third parties, if any, resulting from such casualty or loss.
ARTICLE XI
CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATION TO CLOSE
--------------------------------------------------------
The obligations of the Seller under this Agreement with respect to the
purchase and sale of the Assets shall be subject to the fulfillment on or prior
to the Closing Date of each of the following conditions:
A. All of the representations and warranties by the Buyer contained in
this Agreement shall be true and correct in all material respects at and as of
the Closing Date and shall survive the Closing Date for a period of six (6)
months. The Buyer shall have complied with and performed in all material
respects all of the agreements, covenants and conditions required by this
Agreement to be performed or complied with by it on or prior to the Closing
Date. The Seller shall have been furnished with a certificate of the President
or any Vice President of the Buyer, dated the Closing Date, certifying to the
fulfillment of the foregoing conditions.
B. The Buyer shall have delivered a copy, certified by the Secretary of
the Buyer, of the resolution adopted by the Board of Directors of the Buyer and
authorizing the execution, delivery and performance of this Agreement on behalf
of the Buyer and the consummation of the transactions contemplated hereby.
C. The Buyer shall have delivered the purchase price in accordance with
Article IV hereof.
D. There shall not have occurred any material adverse change in the
operations, assets, liabilities, business, results of operation, condition
(financial or otherwise) or prospects of the Buyer, or any event or circumstance
which materially and adversely affects or may affect the operation, assets,
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liabilities, business, results of operations, condition (financial or otherwise)
or prospects of the Buyer.
ARTICLE XII
CLOSING
-------
The closing hereunder (hereinafter referred to as the "Closing") shall be
held in the offices of the Seller, 0000 Xxxxx Xxxxxx Xxxx, Xxxxxx, Xxxxxxxx
00000, on March 19, 1999 (hereinafter referred to as the "Closing Date"), or on
such other date and at such other place as the parties hereto shall mutually
agree. At the Closing, all cash, checks, customer mailing lists, bills of sale,
assignments, certificates of title and other instruments and documents referred
to or contemplated by this Agreement shall be exchanged by the parties hereto.
A. At the Closing, the Buyer shall receive from the Seller the following:
1. A xxxx of sale and/or assignments or certificates of title for
the Assets as described in Article II, section A;
2. Documentary evidence (such as Articles of Amendment to the
Articles of Incorporation of the Seller changing the Seller's name with the
date stamp of the Secretary of State affixed thereto indicating the filing
thereof) satisfactory to counsel to the Buyer indicating that the name
"Museum Auctions" is available to the Buyer;
3. Copies of the Seller's "auction" customer mailing list as in
effect on the Closing Date;
4. Agreement for Auction Sales Commissions as provided in Article
XVIII hereof;
5. The Certificate of the Seller's President certifying to the
matters set forth in Article X, section A, hereof; and
6. Resolution of the Board of Directors of the Seller as described
in Article X, section B.
B. At the Closing, the Seller shall receive from the Buyer the following:
1. Cash or check as provided in Article IV;
2. The Certificate of the Buyer's President certifying to the
matters set forth in Article XI, section A, hereof; and
3. Resolution of the Board of Directors of the Buyer as described in
Article XI, section B, hereof.
C. The Seller and the Buyer shall provide the other with such other
documents as, in the reasonable judgement of either of them or their respective
counsels, may be material to the Closing of the transactions contemplated by
this Agreement.
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ARTICLE XIII
TERMINATION RIGHTS
------------------
This Agreement may be terminated by either the Buyer or the Seller, if the
terminating party is not then in breach of any material provision of this
Agreement, upon written notice to the other party, upon the occurrence of any of
the following:
A. If, on the Closing Date, any of the conditions precedent to the
obligations of the parties set forth in this Agreement have not been materially
satisfied by the responsible party or waived in writing by the other party for
whose benefit the condition is imposed.
B. If the Closing does not occur on or before July 19, 1999.
(i) Upon termination, if neither party hereto is in breach of any material
provision of this Agreement, the parties hereto shall have no further liability
to each other, (ii) if the Seller shall be in breach of any material provision
of this Agreement, the Buyer shall be entitled to such rights and remedies
provided in this Agreement or in any agreement executed in connection with this
Agreement or at law or in equity, or (iii) if the Buyer shall be in breach of
any material provision of this Agreement, the Seller shall be entitled to such
rights and remedies provided in this Agreement or in any agreement executed in
connection with this Agreement or at law or in equity.
ARTICLE XIV
BROKERAGE
---------
Each party hereto represents and warrants to the other party that it has
not incurred any obligations or liabilities, contingent or otherwise, for
brokerage or finder's fees or agent's commissions or other like payment in
connection with this Agreement or the transactions contemplated hereby for which
either party will have any liability. Each party hereto agrees to indemnify and
hold the other party hereto harmless against and in respect of any breach by it
of the provisions of this Article XIV.
ARTICLE XV
CASUALTY LOSSES
---------------
In addition to any other remedy the Buyer may have hereunder, in the event
that there shall have been suffered between the date hereof and the Closing Date
any casualty or loss relating to the Assets which does not materially and
adversely affect the business of the Seller, then at the Closing all claims to
insurance proceeds or other rights of the Seller against third parties arising
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from such casualty or loss shall (to the extent assignable) be separately
assigned by the Seller to the Buyer, for its own account and benefit, in the
name of the Seller.
ARTICLE XVI
INDEMNITY
---------
A. Notwithstanding the Closing, the Seller agrees to indemnify and to
hold the Buyer harmless from and against and in respect of any losses incurred
by the Buyer and from:
1. All actual or purported liabilities and obligations of the
Seller, and all claims and demands made in respect thereof whether or not
known or asserted at or prior to the Closing Date relating to, or arising
from, ownership, operation or control of the Assets at or prior to Closing,
the conduct of the business of the Seller or any other state of facts which
existed at or prior to the Closing Date;
2. Any damage or deficiency resulting from any misrepresentations,
breach of warranty or non-fulfillment of any agreement or covenant on the
part of the Seller under this Agreement, or from any misrepresentation in
or omission from any exhibit or other instrument furnished or to be
furnished to the Buyer hereunder; and
3. Any claims made by creditors or customers of the Seller relating
to the ownership or operation of the Seller's business not expressly
assumed hereunder.
B. Notwithstanding the indemnities provided in Article XVI, section A,
the Buyer shall be responsible for and pay all costs and expenses incurred by
the Buyer attendant to efforts to dismiss or remove it from any action, claim or
controversy prior to any trial or hearing on the matter, whether by motion to
dismiss, motion for summary judgment or other similar motion, on the basis that
the Buyer is not a successor in liability to the claims against or debts of the
Seller. The Seller's indemnity as provided in Article XVI, section A, shall be
for any costs or expenses beyond such motion to remove the Buyer from such
action and for the amount of any judgment or award rendered against the Buyer.
Such indemnity shall be paid directly by the Seller.
C. In the event that the Buyer does not succeed in being dismissed from
an action as provided in Article XVI, section B, the Buyer shall appoint a two
person litigation committee to oversee the conduct of any hearing or trial on
the matter. Such committee shall consist of two members of the Buyer's Board of
Directors. Decisions concerning any such action, including settlement of the
claim or controversy, shall be made by the litigation committee. If no decision
can be reached, the members will agree to designate a third party to make such
decision.
D. Notwithstanding the Closing, the Buyer agrees to indemnify and to hold
the Seller harmless from and against and in respect of any losses incurred by
the Seller from any damage or deficiency resulting from any misrepresentation,
breach of warranty or non-fulfillment of any agreement or covenant on the part
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of the Buyer under this Agreement, or from any misrepresentation in or omission
from any exhibit or other instrument furnished or to be furnished to the Seller
hereunder.
ARTICLE XVII
USE OF NAME
-----------
The Seller agrees to take any and all action deemed by the parties and
their legal counsel to be necessary or appropriate, prior to the Closing Date,
to release all rights to the use of the name "Museum Auctions." Such action
shall include, but not be limited to, the filing by the Seller with the
Secretary of State of Colorado of Articles of Amendment to the Articles of
Incorporation of the Seller causing the name of the Seller to be changed to a
name entirely different from the name "Museum Auctions." Additionally, at the
Closing, the Seller shall deliver to the Buyer an assignment or other instrument
or document which shall be acceptable to both parties and their legal counsel
providing for the transfer to the Buyer of any and all rights to the use of the
name "Museum Auctions."
ARTICLE XVIII
AGREEMENT FOR SALES COMMISSIONS
-------------------------------
At the Closing, the Buyer hereby agrees to execute and deliver to the
Seller, simultaneously with the execution and delivery of this Agreement, that
certain Agreement for Auction Sales Commissions in the form of Exhibit C
attached hereto and incorporated herein by this reference, which provides, among
other things, for the Seller to pay to the Buyer auction sales commissions in
the amount of twenty-five percent (25%) of the aggregate sales price of all
consigned goods marketed and sold by the Seller via live auction conducted by
the Buyer from time-to-time from and after the Closing Date.
ARTICLE XIX
MISCELLANEOUS
-------------
A. From time-to-time after the Closing Date, the Seller s hall, if
requested by the Buyer, make, execute and deliver to the Buyer such additional
bills of sale, assignments and other instruments of transfer as may be necessary
or proper to transfer to the Buyer all of the Seller's right, title and interest
in and to the Assets covered by this Agreement.
B. All notices and other communications required or permitted to be given
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed, registered or certified mail, return receipt requested,
postage prepaid, to the following addresses:
1. If to the Buyer, to:
Art Exchange, Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
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Attn: Xx. Xxxx X. Xxxxxx, President
With a copy to:
Xxxx Xxxxxx, Esq.
0000 Xxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
(b) If to Buyer, to:
Museum Auctions, Ltd.
0000 Xxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx, President
With a copy to:
Xxxx Xxxxxx, Esq.
0000 Xxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Notices delivered personally shall be effective upon delivery. Notices
transmitted by facsimile shall be effective when received. Notices delivered by
registered or certified mail shall be effective on the date set forth on the
receipt of registered or certified mail, or seventy-two hours after mailing,
whichever is earlier.
C. All agreements made and entered into in connection with this
transaction shall be binding upon and inure to the benefit of the parties
hereto, their successors and assigns.
D. The Seller and the Buyer shall each bear its own expenses and costs,
including the fees of any attorney retained by it, incurred in connection with
the preparation of this Agreement and the consummation of the transactions
hereby.
E. Any sales, use, transfer or documentary taxes imposed in connection
with the sale and delivery of the Assets and rights acquired by the Buyer under
this Agreement shall be paid by the Buyer.
F. This Agreement and the exhibits attached hereto contain the entire
agreement among the parties and supersede all prior agreements, understandings
and writings among the parties with respect to the subject matter hereof and
thereof. Each party hereto acknowledges that no representations, inducements,
promises or agreements, verbal or otherwise, have been made by either party, or
anyone acting with authority on behalf of either party, which are not embodied
herein or in an exhibit hereto, and that no other agreement, statement or
promise may be relied upon or shall be valid or binding. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated verbally.
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This Agreement may be amended or any term hereof may be changed, waived,
discharged or terminated by an agreement in writing signed by both parties
hereto.
G. This Agreement may be executed in one or more counterparts, each of
which when so executed shall be an original, but both of which together shall
constitute one agreement.
H. If any provision of this Agreement or the application thereof to any
person or circumstance shall be invalid or unenforceable to any extent, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected thereby and shall be enforced to
the greatest extent permitted by law.
I. This Agreement shall be construed and enforceable in accordance with,
and be governed by, the internal laws of the State of Colorado without regard to
the principles of conflict of law.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
BUYER:
ART EXCHANGE, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------
Xxxx X. Xxxxxx, President
SELLER:
MUSEUM AUCTIONS, LTD.
By: /s/ Xxxx X. Xxxxxx
--------------------------
Xxxx X. Xxxxxx, President
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