AGREEMENT FOR PURCHASE
AND SALE OF ASSETS
BY AND AMONG
FUTURETRAK INTERNATIONAL, INC.
AND
SATELLITE TECHNOLOGY, INC.
TABLE OF CONTENTS
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ARTICLE PAGE
------- ----
I
Sale and Purchase of Assets and Purchase Price.............................. 1
1.01 Transfer of Assets.......................................... 1
1.02 Excluded Assets............................................. 1
1.03 Purchase Price and Method of Payment........................ 1
1.04 Retained Liabilities........................................ 2
1.05 No General Assumption of Liabilities........................ 2
II
Closing Date and Deliveries at Closing...................................... 2
2.01 Closing Date................................................ 2
2.02 Deliveries by Seller........................................ 2
2.03 Possession by Purchaser..................................... 3
2.04 Further Assurance........................................... 3
2.05 Deliveries by Purchaser..................................... 3
2.06 Further Assurances of Purchaser............................. 3
III
Representations and Warranties of Seller.................................... 3
3.01 Due Organization............................................ 3
3.02 Power and Authority......................................... 4
3.03 Contracts................................................... 4
3.04 Intellectual Property....................................... 4
3.05 Litigation.................................................. 4
3.06 Legal Compliance............................................ 4
3.07 Approvals................................................... 5
3.08 Taxes....................................................... 5
3.09 Restrictions................................................ 5
3.10 Conditions Affecting........................................ 5
3.11 Brokers..................................................... 5
3.12 Accuracy.................................................... 5
IV
Purchaser's Representations and Warranties.................................. 6
4.01 Due Organization............................................ 6
4.02 Power and Authority......................................... 6
4.03 Accuracy.................................................... 6
4.04 Approvals................................................... 6
ARTICLE PAGE
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4.05 Brokers..................................................... 6
VI
Indemnification............................................................. 7
5.01 Indemnification Obligation.................................. 7
5.02 Indemnification Notice...................................... 7
5.03 Indemnification Payment and Limitations..................... 7
VII
Pre-Closing and Post-Closing Covenants...................................... 8
6.01 Examinations; Due Diligence................................. 8
6.02 Update Information.......................................... 9
6.03 Purchaser's Covenants....................................... 9
6.04 Retained Liabilities........................................ 9
6.05 Disputes Involving Assumed Liabilities...................... 9
6.06 Access to Records........................................... 9
6.07 Set-Off Rights.............................................. 9
Conditions Precedent to Purchaser's Obligations............................. 9
7.01 No Termination.............................................. 9
7.02 Representations True and Correct............................ 10
7.03 Compliance with Covenants................................... 10
7.04 No Adverse Proceedings...................................... 10
7.05 Proceedings Satisfactory.................................... 10
7.06 No Material Adverse Changes................................. 10
7.07 Certificate................................................. 10
7.08 Documents................................................... 10
7.09 Due Diligence............................................... 10
VIII
Conditions Precedent to Seller's Obligations................................ 10
8.01 No Termination.............................................. 1O
8.02 Representations True and Correct............................ 10
8.03 Compliance with Covenants .................................. 10
8.04 No Adverse Proceedings...................................... 10
8.05 Purchaser's Certificate..................................... 11
8.06 Proceedings Satisfactory.................................... 11
8.07 Documents................................................... 11
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ARTICLE PAGE
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IX
Termination............................................................ 11
X
Confidentiality and Publicity............................................... 11
10.01 Confidentiality............................................. 11
10.02 Publicity................................................... 11
XI
Miscellaneous
11.01 Transaction Costs........................................... 12
11.02 Amendments.................................................. 12
11.03 Assignments................................................. 12
11.04 Further Assurances.......................................... 12
11.05 Binding Effect.............................................. 12
11.06 Headings.................................................... 12
11.07 Notices..................................................... 12
11.08 Severability................................................ 13
11.09 Waivers..................................................... 13
11.10 Pronouns.................................................... 13
11.11 Third Parties............................................... 13
11.12 Enforcement Costs........................................... 13
11.13 Remedies Cumulative......................................... 13
11.14 Counterparts................................................ 13
11.15 Governing Law............................................... 14
11.16 Preparation of Agreement.................................... 14
11.17 Survival.................................................... 14
11.18 Inducement to Transaction................................... 14
11.19 Knowledge................................................... 14
11.20 Entire Agreement............................................ 14
EXHIBITS
Exhibit "A" Transferred Assets
Exhibit "B" Form Promissory Note
Exhibit "C" Form Xxxx of Sale
Exhibit "D" Xxxxx X. Xxxx Non Competition Agreement
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AGREEMENT FOR PURCHASE AND SALE
OF ASSETS
THIS AGREEMENT FOR PURCHASE AND SALE OF ASSETS (this "Agreement") is
made and entered into as of this 5th day of January, 1999, by and among
SATELLITE TECHNOLOGY, INC., a Florida corporation (hereinafter referred to as
the "Seller"), and FUTURETRAK INTERNATIONAL, INC., Florida corporation
(hereinafter referred to as "Purchaser").
WHEREAS, Purchaser desires to purchase from Seller, and Seller
desires to sell to Purchaser, all of the Assets (as hereinafter defined); and
WHEREAS, as a material inducement to Purchaser to purchase the
Assets, Seller desires to make certain representations and warranties and agrees
to be bound by certain covenants and obligations as hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, the parties hereby agree as follows:
ARTICLE I
---------
Sale and Purchase o Assets and Purchase Price
---------------------------------------------
1.01 Transfer of Assets. Subject to the terms and conditions set
forth in this Agreement, Seller agrees to sell, convey, transfer, assign and
deliver to Purchaser, and Purchaser agrees to purchase from Seller, on the
Closing Date (as hereinafter defined) all of the assets and properties owned by
Seller and more particularly described in Exhibit attached hereto and made a
part hereof (the assets being transferred hereunder are collectively referred to
as the "Assets").
At Closing, the Assets shall be conveyed to Purchaser free and clear of
all liens, pledges, security interests, charges, claims, restrictions,
mortgages, and encumbrances of any nature.
1.02 Excluded Assets. Shall be all the assets not specifically listed
in Section 1.01 or Exhibit A.
1.03 Purchase Price and Method of Payment. On the Closing Date,
Purchaser shall pay Seller for the Assets as follows: (i) Purchaser shall issue
200,000 shares of Purchaser's common stock to Seller (the "Shares"), and (ii)
execute a promissory note in the original principal amount of $160,347 (the
"Note") in the form attached hereto as Exhibit (collectively, "Purchase Price").
The Shares shall consist of 100,000 restricted shares and 100,000 freely trading
shares of Purchaser.
1.04 Retained Liabilities. All liabilities or obligations of Seller
which are not specifically designated as Assumed Liabilities hereunder shall
collectively be referred to as the "Retained Liabilities.
1.05 No General Assumption of Liabilities. Except as specifically set
forth above, Purchaser shall not assume, pay or discharge any debts,
obligations, contracts, loans commitments, undertakings or liabilities of
Seller, whether fixed, unliquidated, contingent or otherwise, of any nature
whatsoever arising before or after the Closing or in connection with any of the
Assets or the Seller's business including, without limitation, (i) federal,
state, local or other taxes of any kind other than personal property taxes
related to the Assets; (ii) wages, salaries, benefits, bonuses or compensation
of any kind payable to any of the employees, officers, agents or independent
contractors of Seller, as the case may be; (iii) any claim against Seller,
regardless of the manner in which asserted or the nature of the claim. ~ or
cause of action alleged including, without limitation, professional negligence,
negligence, product liability, breach of contract, intentional tort or injury to
person or property arising from or related to the Seller's business, Seller, its
employees, independent contractors, agents, officers, directors or shareholders,
as the case may be; (iv) any liabilities or obligations of Seller to trade
creditors attributable to the Seller's business existing as of the date of this
Agreement or arising between the date of this Agreement and the Closing Date; or
(v) any liability or obligation of Seller arising or incurred in connection with
the negotiation, preparation and execution of this Agreement and the
transactions contemplated hereby and the fees and expenses of counsel,
accountants and other experts retained by Seller, all of which shall be
considered Retained Liabilities for the purposes of this Agreement. Seller shall
retain and discharge all Retained Liabilities, and shall indemnify, defend and
hold Purchaser harmless against any costs or expenses in connection with the
Retained Liabilities pursuant to Section 5.01(a).
ARTICLE II
----------
Closing Date and Deliveries at Closing
--------------------------------------
2.01 Closing Date. Subject to the provisions of this Agreement, the
closing of the transactions contemplated by this Agreement (the "Closing") shall
be held at the offices of Gunster, Yoakley, ValdesFauli & Xxxxxxx, P.A., Broward
Financial Centre, Suite 1400, 000 Xxxx Xxxxxxx Xxxxxxxxx, at 10:00 A.M., local
time, on January 5, 1999, or on such other date and at such other place as may
be mutually agreed upon by the parties.
2.02 Deliveries by Seller. In addition to and without limiting any
other provision of this Agreement, Seller agrees to deliver, or cause to be
delivered, to Purchaser at or prior to the Closing the following:
(a) The certificate referred to in Section 7.08 hereof
(b) A xxxx of sale and such other deeds, certificates of
title, assignments, assurances and other instruments and documents as Purchaser
may reasonably request in order to effect the sale, conveyance, transfer and
assignment of the Assets to Purchaser, including without limitation the
conveyance documents set forth in Exhibit "C" attached hereto and made a part
hereof;
(c) A non-competition agreement executed by Xxxxx X. Xxxx, in
the form attached hereto as Exhibit "D" and made a part hereof, effective as of
the Closing Date;
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(d) A certified copy of resolutions of the Board of Directors
of Seller authorizing the execution and delivery of this Agreement and the
transactions contemplated herein; and
(e) Such other documents, instruments or certificates as
shall be reasonably requested by Purchaser or its counsel.
2.03 Possession by Purchaser. Simultaneously with the consummation of
the transfer of the Assets, Seller will put Purchaser into full possession and
enjoyment of all Assets to be conveyed and transferred by this Agreement.
2.04 Further Assurance. Seller at any time on or after the Closing Date
will execute, acknowledge and deliver at Seller's expense any further
assignments, conveyances and other assurances, documents and instruments of
transfer reasonably requested by Purchaser, and will take any other action
consistent with the terms of this Agreement that may reasonably be requested by
Purchaser for the purpose of assigning, transferring, granting, conveying and
confirming to Purchaser, or reducing to possession, any or all of the Assets.
2.05 Deliveries by Purchaser. In addition to, and without limiting any
other provisions of this Agreement, Purchaser agrees to deliver at the Closing
on the Closing Date:
(a) The Purchase Price as described in Section 1.03 hereto
(b) A certified copy of resolutions adopted by the Board of
Directors of Purchaser authorizing the execution and delivery of this Agreement
and the transactions contemplated herein;
(c) The certificate referred to in Section 8.05 hereof;
(d) Executed UCC-l financing statements securing the full
amount of the Note and providing Seller with a security interest in all of
Purchaser's marketable space scanner inventory.
(e) Such other documents, instruments or certificates as
shall be reasonably requested by Seller or its counsel.
2.06 Further Assurances of Purchaser. Purchaser shall at any time on or
after the Closing Date cooperate with Seller by furnishing any additional
information, executing and delivering any additional documents and/or
instruments and doing any and all such other things as may be reasonably
required by Seller or its counsel to consummate or otherwise implement the
transactions contemplated by this Agreement.
ARTICLE III
-----------
3
Representations and Warranties of Seller
----------------------------------------
Seller represents and warrants to Purchaser (which warranties and
representations shall survive the Closing to the extent set forth in Section
11.17 hereof regardless of what examinations, inspections, audits and other
investigations Purchaser has heretofore made or may hereafter make, with respect
to such warranties and representations), as follows:
3.01 Due Organization. Seller is a duly organized and validly existing
corporation under the laws of the State of_______ and Seller has the full power
and lawful authority to own its properties and to transact the business in which
it is currently engaged. Seller is not, nor is it required to be, qualified to
transact business as a foreign entity in any jurisdiction.
3.02 Power and Authority.
--------------------
(a) Seller has full corporate power to enter into this
Agreement and to carry out its obligations hereunder. The execution and delivery
of this Agreement and the other agreements, documents and instruments required
to be delivered by Seller pursuant to this Agreement (the "Seller Documents")
and the consummation of the transactions contemplated hereby and thereby have
been duly and validly authorized by Seller's Board of Directors. No other acts
or proceedings on the part of Seller will be necessary to authorize the
performance of this Agreement or the Seller Documents by Seller or the
transactions contemplated hereby and thereby. This Agreement constitutes, and
the Seller Documents will constitute, a valid and legally binding obligations of
Seller enforceable against it in accordance with their respective terms, except
as limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws of general application relating to creditors' rights or by
the application of equitable principles when equitable remedies are sought.
(b) Neither the execution and delivery of this Agreement or
the Seller Documents, nor the consummation of the transactions contemplated
hereby or thereby, nor compliance by Seller with any of the provisions hereof,
will:
(i) violate, or conflict with, or result in a breach of
any provisions of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or result in the
actual or possible termination of, or accelerate the performance required by, or
result in the creation of any lien, security interest, charge or encumbrance
upon any of the properties or assets of Seller; under any of the terms,
conditions or provisions of the Articles of Incorporation or Bylaws of Seller;
or any note, bond, mortgage, indenture, deed of trust, contracts, permits,
license, agreement, lease or other instrument or obligation to which Seller is a
party, or by which Seller or any of the Business or Assets, may be bound or
affected; or
(ii) violate any order, judgment, writ, injunction,
decree, or any law, statute, rule, ordinance or regulation, applicable to Seller
or any of the Assets.
3.03 Contracts. Seller is not party to, nor are any Assets owned by it
bound by or subject to, any other contract which (i) has a monetary value of$
100 or more, either individually or in the aggregate with the same party, or
(ii) affects the Assets. All such Contracts that are Assets are valid, binding
and enforceable on and against Seller, and against the other parties thereto, in
accordance with their terms
4
except as limited by applicable bankruptcy, insolvency, reorganization.
Moratorium or other laws of general application relating to creditors' rights or
by the application of equitable principles when equitable remedies are sought.
Neither Seller nor any other person, firm, corporation or entity, is in breach
of, or default under, any Contract in any respect which would result in damages
in excess of $10,000, and no event or action has occurred, is pending, or is
threatened, which after the giving of notice, or the lapse of time, or
otherwise, would constitute or result in a breach or default in any respect by
Seller or any other person, firm, corporation or entity, under any Contract.
Seller has not received notice that any party to any of the Contracts intends to
cancel, suspend or terminate any of the Contracts or to exercise or not
exercise any options under any of the Contracts.
3.04 Intellectual Property. To the best of Seller's knowledge, there is
not now and has not been during the past six (6) years any infringement, misuse
or misappropriation by Seller of any valid patent, trademark, trade name,
software, service xxxx, copyright or trade secret (collectively, the
"Intellectual Property") which relates to the Assets and which is owned by any
third party, and there is not now any existing or, to the knowledge of Seller,
threatened claim against Seller of infringement, misuse or misappropriation of
any Intellectual Property.
3.05 Litigation. There are no actions, investigations, reviews, suits
or proceedings pending or threatened, including, without limitation, actions,
investigations, reviews, suits or proceedings relating to product, service or
personal injury liability claims or reimbursement claims, against or affecting
the Assets, at law or in equity, or before or by any federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign; Seller has no knowledge of any state of
facts or contemplated event relating to the Assets which may reasonably be
expected to give rise to any such claim, action, review, suit, proceeding or
investigation; and Seller is not operating under, or subject to, or in default
with respect to, any order, writ, injunction or decree of any court or
governmental agency or body, domestic or foreign.
3.06 Legal Compliance. Seller is not conducting or carrying on its
business or affairs in violation in any material respect of any applicable
foreign, federal, state or local law, statute, ordinance, rule, regulation or
court or administrative order or process.
3.07 Approvals. No permits, approvals, consents, satisfaction of
waiting periods, or waivers thereof of agencies of any jurisdiction or
governmental body, or of any other person whatsoever, are necessary to allow
Seller to consummate the transactions contemplated in this Agreement in
compliance with, and not in breach of, all applicable laws, rules, regulations,
orders or governmental or other agency directives, or the provisions of any
contract or obligation binding upon Seller.
3.08 Taxes.
(a) All federal, state, local and foreign tax returns,
reports, statements and other similar filings required to have been filed by
Seller (the "Tax Returns") with respect to any federal, state, local or foreign
taxes, assessments, interest, penalties, deficiencies, fees and other
governmental charges or impositions (including without limitation all income
tax, unemployment compensation, social security, payroll, sales and use, excise,
privilege, property, ad valorem, franchise license, school and any other tax or
similar governmental charge or imposition under laws of the United States of any
state or
5
municipal or political subdivision thereof Or any foreign country or political
subdivision thereof) (the "Taxes"), have been filed with the appropriate
governmental agencies in all jurisdictions in which such Tax Returns are
required to be filed, and all such Tax Returns properly reflect the liabilities
of Seller for Taxes for the periods, property or events covered thereby. All
Taxes, including those without limitation which are called for by the Tax
Returns, or heretofore or hereafter claimed to be due by any taxing authority
from Seller has been properly accrued or paid. Seller has made all deposits
required by law to be made with respect to employees' withholding and other
employment taxes, including without limitation the portion of such deposits
relating to Taxes imposed upon Seller. Since the Balance Sheet Date, Seller has
not incurred any liability with respect to any Taxes except in the ordinary and
regular course of business.
(b) Seller agrees to indemnify Purchaser for any undisclosed
sales tax liabilities payable by Seller and accrued prior to the Closing Date
and paid by Purchaser subsequent to the Closing Date.
(c) No waiver by Seller of the statute of limitations with
respect to any Taxes is in effect. None of the Tax Returns of Seller has been or
are being audited by the Internal Revenue Service or any other regulatory
authority. There are no present or potential disputes as to Taxes payable by
Seller that could themselves have or result in any adverse effect on the Assets.
3.09 Restrictions. Seller is not a party to any indenture, agreement,
contract, commitment, lease, plan, license, permit, authorization or other
instrument, document or understanding, oral or written, or subject to any
charter or other corporate restriction or any judgment, order, writ, injunction,
decree or award which affects or restricts or may in the future affect or
restrict, the business, operations, assets, properties, prospects or condition
(financial or otherwise) of the Assets after consummation of the transactions
contemplated hereby.
3.10 Brokers. Neither this Agreement nor the sale and purchase of the
Assets or any other transaction contemplated hereby was induced by or procured
through any person, firm, corporation or other entity acting on behalf of, or
representing Seller as a broker, finder, investment banker, financial advisor or
in any similar capacity.
3.11 Accuracy. All certificates, documents and instruments furnished by
Seller or its employees in connection with this Agreement, or any other
transaction contemplated by this Agreement, are or will be true and complete in
all respects, and neither this Agreement nor any other certificate, document or
instrument furnished by Seller or its employees in connection with this
Agreement, or any other transaction contemplated by this Agreement, contains or
will contain any untrue statement of a material fact or omits or will omit to
state a material fact necessary in order to make the statements included herein
or therein not misleading in light of the circumstances under which they were
made.
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ARTICLE IV
----------
Purchaser's Representations and Warranties
------------------------------------------
Purchaser hereby represents and warrants to Seller (which warranties
and representations shall survive the Closing to the extent set forth in Section
11.1 7 hereof regardless of what examinations, inspections, audits and other
investigations Seller has heretofore made or may hereafter make, with respect to
such warranties and representations) as follows:
4.01 flue Organization. Purchaser is a duly organized and validly
existing corporation in good standing under the laws of the State of Florida and
has the power and lawful authority to own its properties and to transact the
business in which it is currently engaged.
4.02 Power and Authority.
--------------------
(a) Purchaser has full power to enter into this Agreement and
to carry out its obligations thereunder. The execution and delivery of this
Agreement and the consummation of the transactions contemplated thereby,
including the execution and delivery of the Note, have been duly and validly
authorized by its Board of Directors. No other acts or proceedings on the part
of Purchaser will b necessary to authorize this Agreement or the transactions
contemplated thereby, and this Agreement and the Note when executed at Closing
shall constitute valid and legally binding obligations of Purchaser, enforceable
against Purchaser in accordance with their respective terms, except as limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other laws
of general application relating to creditors' rights or by the application of
equitable principles when equitable remedies are sought.
(b) Neither the execution and delivery of this Agreement or
the Note, nor the consummation of the transactions contemplated thereby, nor
compliance by Purchaser with any of the provisions thereof, will:
(i) violate, or conflict with, or result in a breach of
any provisions of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, any of the terms,
conditions or provisions of the Articles of Incorporation or By-laws of
Purchaser, or any note, bond, mortgage, indenture, deed of trust, license,
agreement or other instrument or obligation to which it or any subsidiary is a
party, or by which they or any of their properties or assets may be bound or
affected; or
(ii) violate any order, writ, injunction or decree, or
any statute, rule or regulation applicable to Purchaser or any of its properties
or assets.
4.03 Accuracy. All certificates, documents and instruments furnished by
Purchaser or any of its directors, officers, employees or shareholders in
connection with this Agreement, or any other transaction contemplated by this
Agreement, are true and complete, and neither this Agreement, nor any
certificate, document or instrument furnished by Purchaser or any of its
directors, officers, employees or shareholders in connection with this
Agreement, or any other transaction contemplated by this Agreement, contains any
untrue statement of a material fact or omits to state a material fact necessary
7
in order to make the statements included herein or therein not misleading in
light of the circumstances under which they were made.
4.04 Approvals. No permits, approvals, consents, satisfaction of
waiting periods, or waivers thereof of agencies of any jurisdiction or
governmental body, or of any other person whatsoever, related exclusively to
Purchaser are necessary to allow Purchaser to consummate the transactions
contemplated in this Agreement in compliance with, and not in breach of, all
applicable laws, rules, regulations, orders or governmental or other agency
directives, or the provisions of any contract binding upon Purchaser.
4.05 Brokers. Neither this Agreement nor the sale and purchase of the
Assets or any other transaction contemplated hereby was induced by or procured
through any person, firm, corporation or other entity acting on behalf of, or
representing Purchaser as a broker, finder, investment banker, financial advisor
or in any similar capacity.
ARTICLE V
---------
Indemnification
---------------
5.01 Indemnification Obligation.
(a) Seller shall indemnify and hold harmless Purchaser, its
successors and assigns, against and in respect of any and all direct or indirect
damages, claims, losses, liabilities and reasonable expenses (including, without
limitation, legal, accounting, and other expenses) suffered by Purchaser, or its
successors and assigns, which may arise out of or be in respect of: (i) any
breach or violation of this Agreement by Seller, (ii) any falsity, inaccuracy or
misrepresentation in or breach of any of the representations, warranties or
covenants made in this Agreement, or in any certificate, document or instrument
delivered at or prior to the Closing by or on behalf of Seller, (iii) any
action, event, condition, omission or failure to act of or by Seller, its
officers, directors, employees or agents, as the case may be, prior to the
Closing Date, (iv) any tax obligations imposed on Purchaser attributable to the
revenues or income of Seller earned prior to the Closing Date, (v) any of the
Retained Liabilities.
(b) Purchaser shall indemnify and hold harmless Seller, its
successors and assigns, against and in respect of any and all direct or indirect
damages, claims, losses, liabilities and reasonable expenses (including, without
limitation, legal, accounting, and other expenses) suffered by Seller, or its
successors and assigns, which may arise out of or be in respect of: (i) any
breach or violation of this Agreement by Purchaser or (ii) any falsity,
inaccuracy or misrepresentation in or breach of any of the representations,
warranties or covenants made in this Agreement or in any certificate, document
or instrument delivered at or prior to the Closing by or on behalf of Purchaser.
(c) The indemnification obligations of both Purchaser and
Seller under this Section 5.01 shall be capped at $160,347.
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5.02 Indemnification Notice
----------------------
(a) Upon obtaining knowledge thereof, the indemnified party
shall promptly notify the indemnifying party, in writing, of any facts or
circumstances which may give rise to a right of indemnification under Section
5.01 hereof ("Notice of Claim"). The Notice of Claim shall specify the nature
and details of such facts and circumstances (including any amount claimed) which
may give rise to such right of indemnification. The indemnifying party shall not
be obligated to indemnify an indemnified party for the increased amount of any
claim or other matter which would otherwise have been payable to the extent such
increase results from a failure to reasonably and promptly provide a Notice of
Claim.
(b) If the claim or demand set forth in the Notice of Claim
relates to a claim or demand asserted by a third party (a "Third Party Claim"),
the indemnifying party shall have the right to employ counsel acceptable to the
indemnified party to defend any such claim or demand, and the indemnified party
shall have the right to participate in the defense of any such Third Party
Claim. The indemnifying party shall notify the indemnified party, in writing,
within fifteen (15) days after the Date of the Notice of Claim (as hereinafter
defined), of their decision to defend in good faith any Third Party Claim. So
long as the indemnifying party is defending in good faith any such Third Party
Claim, the indemnified party shall not settle or compromise such Third Party
Claim. The indemnified party shall make available to the indemnifying party or
its representatives all records and other materials reasonably required by them
for their use in contesting any Third Party Claim and shall cooperate with the
indemnifying party in connection therewith. If the indemnifying party does not
so elect to defend any such Third Party Claim, the indemnified party shall have
no obligation to do so.
(c) As soon as is reasonably practicable after the Date of
the Notice of Claim (as hereinafter defined), the indemnified party and the
indemnifying party shall endeavor to agree upon the amount, if any, to which the
indemnified party is entitled under this Article V. In the event the
indemnifying party, on the one hand, and the indemnified party are unable to
reach agreement upon the right of the indemnified party to indemnification
hereunder, or upon the amount of any such indemnification hereunder, either the
indemnified party or the indemnifying party may submit such dispute to any court
of competent jurisdiction for resolution.
5.03 Indemnification Payment and Limitations.
----------------------------------------
(a) Within thirty (30) days after either the indemnifying
party and the indemnified party reach agreement on the amount of any
indemnification obligation of the indemnifying party or any such indemnification
obligation is determined by a court of competent jurisdiction (in either case,
the "Indemnification Amount"), all in accordance with Section 5.02(c), the
indemnified party shall demand payment of the Indemnification Amount from the
indemnifying party, who shall pay such amount due in cash within thirty (30)
days of the indemnified party's demand therefor. With respect to any
Indemnification Amount or portion thereof not paid by the indemnifying party
within such thirty (30) day period, the indemnified party may, at its option,
from time to time, in addition to any other remedies or rights it may have with
respect to the collection thereof, offset the amount of any Indemnification
Amount due the indemnified party from the indemnifying party against any other
agreements with the indemnifying party, including, without limitation, the Note.
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(b) The term Date of the Notice of Claim" as used herein
shall mean the date the notice is deemed delivered pursuant to Section 11 .07
hereof.
ARTICLE VI
----------
Pre-Closing and Post-Closing Covenants
--------------------------------------
6.01 Examinations: Due Diligence. From and after the date hereof, and
until the Closing Date, Seller shall, unless Purchaser shall otherwise agree in
writing:
(a) promptly furnish or cause to be furnished, at its sole
cost and expense, to Purchaser and its representatives originals or copies of
all documents, records, data and information concerning the Assets that may be
reasonably requested;
(b) permit Purchaser to consult with the accountants for
Seller, and said accountants are hereby authorized to disclose all information
in their possession to Purchaser with respect to the Assets;
(c) with the prior approval of Seller, which shall not be
unreasonably withheld, permit Purchaser and its representatives and agents to
discuss the proposed sale of the Assets with the employees, suppliers, and/or
other representatives of Seller;
(d) carry on the Seller's business in the ordinary course;
(e) refrain from doing, or causing to be done, anything which
would cause the representations and warranties set forth in Article III hereof
from being true, complete and accurate in all respects on the Closing Date as if
made on such date;
(f) continue to insure the Assets owned by Seller in
accordance with the prior practice;
(g) refrain from doing any act or omitting to do any act, or
permitting any act or omission to act, which will cause a breach of any
contract, commitment or obligation of Seller related to the Assets;
(h) refrain from soliciting or encouraging (by way of
furnishing information, or otherwise) any inquiries or proposals for the
acquisition of the Assets;
(i) promptly notify Purchaser in writing of any action,
written investigation, claim, action, suit or proceeding, which is commenced
against, by or relating to the Assets, or this Agreement before any court or
governmental department, commission, board, bureau, agency or instrumentality;
(j) refrain from doing any act or omitting to do any act, or
permitting any act or omission to act, which will cause any of the Assets to be
depleted other than in the ordinary course of business: and
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(k) use its best efforts to cause all of the conditions to
the obligations of Seller or Purchaser under this Agreement to be satisfied on
or prior to the Closing Date.
6.02 Update lnformation. Prior to Closing, Seller shall promptly
disclose to Purchaser any information contained in its representations and
warranties, which, because of an event occurring after the date hereof or
thereof, is incomplete or is no longer correct in any respect as of all times
after the date hereof until the Closing Date.
6.03 Purchaser's Covenants. Prior to Closing, Purchaser will not take
any action which would result in a breach in any material respect of any of its
representations and warranties hereunder. Furthermore, Purchaser shall cooperate
with Seller and use diligent efforts to cause all of the conditions to the
obligations of Purchaser under this Agreement to be satisfied on or prior to the
Closing Date.
6.04 Retained Liabilities. Subsequent to the Closing Date, Seller shall
he responsible for, and timely discharge, all the Retained Liabilities.
6.05 Disputes Involving Assumed Liabilities. From and after the Closing
Date, Purchaser shall have complete control over the payment, settlement or
other disposition of, or any dispute involving, any of the Assumed Liabilities
and Purchaser shall have the right to conduct and control all negotiations and
proceedings with respect thereto. Seller shall notify Purchaser immediately of
any claim made with respect to any such Assumed Liability and shall not, except
with the prior written consent of Purchaser, make any payment of, or settle or
offer to settle, or consent to any compromise with respect to, any such Assumed
Liability. Seller shall, at Purchaser's expense, cooperate with Purchaser in any
manner reasonably requested by Purchaser in connection with any negotiations or
proceedings involving any such Assumed Liability.
6.06 Access to Records. At all times after the Closing Date, upon the
request of either party, the other party shall make available any records,
documents and data with respect to the Assets or Assumed Liabilities which are
in such party's' possession and which relate to the period prior to the Closing
Date. Each party shall preserve until the second anniversary of the Closing Date
all records relating to any of the Assets, or Assumed Liabilities prior to the
Closing Date.
6.07 Set-Off Rights. Purchaser shall have the right to set-off against
any sums payable under the Note for any claims for indemnification under Article
V hereof.
ARTICLE VII
-----------
Conditions Precedent to Purchaser's Obligations
-----------------------------------------------
The obligation of Purchaser to consummate the transactions contemplated
hereby shall be subject to the fulfillment, on or prior to the Closing Date, of
the following conditions:
7.01 No Termination. This Agreement shall not have been terminated
pursuant to Article IX hereof.
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7.02 Representations True and Correct. The representations and
warranties of Seller contained in this Agreement shall be true and correct in
all respects on and as of the Closing Date with the same force and effect as if
made on and as of the Closing Date.
7.03 Compliance with Covenants. Seller shall have performed and
complied in all material respects with all covenants, agreements and conditions
required by this Agreement to be performed or complied with by them prior to or
at the Closing Date.
7.04 Adverse Proceedings. On the Closing Date, no action or proceeding
shall be pending by any public authority or private individual or entity before
any court or administrative body to restrain, enjoin or otherwise prevent the
consummation of this Agreement or the transactions contemplated hereby or to
recover any damages or obtain other relief as a result of the transactions
proposed hereby.
7.05 Proceedings Satisfactory. All proceedings to be taken in
connection with the consummation of the transactions contemplated by this
Agreement and all documents incident thereto, shall be reasonably satisfactory
in form and substance to Purchaser and its counsel, and Purchaser and its
counsel shall have received copies of such documents as Purchaser and its
counsel may reasonably request in connection therewith including, but not
limited to, the documents to be delivered by Seller to Purchaser pursuant to
Section 2.02 hereof.
7.06 No Material Adverse Changes. Between the date of this Agreement
and the Closing Date, there shall have been no material adverse change in (i)
the Assets or (ii) the Assumed Liabilities of the Seller..
7.07 Certificate. At the Closing on the Closing Date, Seller shall have
delivered to Purchaser a certificate to the effect that the conditions set forth
in Sections 7.02, 7.03 and 7.06 have been satisfied.
7.08 Documents. Purchaser shall have received each of the certificates,
documents, agreements, opinions and instruments referenced in Section 2.02
hereof, in form and substance reasonably satisfactory to Purchaser and its
counsel.
7.09 Due Diligence. Purchaser shall have completed its due diligence
investigation of the Assets, and is satisfied, in its sole and absolute
discretion, with its findings.
ARTICLE VIII
------------
Conditions Precedent to Seller's Obligations
--------------------------------------------
The obligation of Seller to consummate the transactions contemplated
hereby shall be subject to the fulfillment, on or prior to the Closing Date, of
the following conditions:
8.01 No Termination. This Agreement shall not have been terminated
pursuant to Article IX hereof.
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8.02 Representations True and Correct. The representations and
warranties of Purchaser contained in this Agreement shall be true and correct in
all material respects on and as of the Closing Date with the same force and
effect as if made on and as of the Closing Date.
8.03 Compliance with Covenants. Purchaser shall have performed and
complied in all material respects with all covenants, agreements and conditions
required by this Agreement to be performed or complied with by it prior to or at
the Closing Date.
8.04 No Adverse Proceedings. On the Closing Date, no action or
proceeding shall be pending by any public authority or individual or entity
before any court or administrative body to restrain, enjoin or otherwise prevent
the consummation of this Agreement or the transactions contemplated hereby or to
recover any damages or obtain other relief as a result of the transactions
proposed hereby.
8.05 Purchaser's Certificate. At the Closing on the Closing Date,
Purchaser shall have delivered to Seller a certificate executed by Purchaser to
the effect that the conditions set forth in Sections 8.02, 8.03 and 8.04 have
been satisfied.
8.06 Proceedings Satisfactory. All proceedings to be taken in
connection with the consummation of the transactions contemplated by this
Agreement, and all documents incident thereto, shall be reasonably satisfactory
in form and substance to Seller and its counsel, and its counsel shall have
received copies of such documents as Seller and its counsel may reasonably
request in connection with said transactions, including but not limited to, the
documents to be delivered by Purchaser to Seller pursuant to Section 2.05
hereof.
8.07 Documents. Seller shall have received each of the documents,
agreements, opinions and instruments referenced in Section 2.05 hereof, in form
and substance reasonably satisfactory to Seller and its counsel.
ARTICLE IX
----------
Termination
-----------
This Agreement may be terminated at any time prior to the Closing as
follows, and in no other manner:
(i) by mutual consent of Purchaser and Seller;
(ii) by Purchaser, if at or before the Closing, any conditions set
forth herein for the benefit of Purchaser shall not have been timely met;
(iii) by Seller, if at or before the Closing, any conditions set
forth herein for the benefit of Seller shall not have been timely met;
(iv) by Purchaser, if any representation or warranty made herein
for the benefit of Purchaser or in any certificate or document furnished to
Purchaser pursuant to this Agreement is untrue in any
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material respect or Seller shall have defaulted in any respect in the
performance of any material obligation herein contained; or
(vi) by Seller, if any representation or warranty made herein for
the benefit of Seller or in any certificate or document furnished to Seller
pursuant to this Agreement is untrue in any material respect or Purchaser shall
have defaulted in any respect in the performance of any material obligation
herein contained.
ARTICLE X
---------
Confidentiality and Publicity
-----------------------------
10.01 Confidentiality. Prior to Closing, Purchaser will hold in
confidence all information concerning the business, operations, prospects and
other matters of or relating to Seller and will use or disclose such information
only for the purpose of considering and obtaining financing for the transactions
proposed herein. Prior to Closing, Purchaser further agrees that it will not
otherwise disclose any such information to any third party, except to its
employees, agents, accountants, attorneys, consultants and lenders, except upon
the written consent of Seller, or except as required by law. If the Closing
shall not occur for any reason, Purchaser will return all such information
furnished to it and all copies thereof to the party that furnished such
information. Such obligation of confidentiality shall not extend to any
information which is or has been generally known to others engaged in the same
trade or business as the furnishing party, or that is or shall be public
knowledge through no act or omission of Purchaser or its directors, officers,
employees, professional advisors or other representatives or as required by law
or a final order of a court or other governmental agency or authority of
competent jurisdiction.
10.02 Publicity. Before, during and after the Closing Date (except in
the event this Agreement has been terminated pursuant to Article IX hereof),
Seller hereby agrees that, subject at all times to compliance with the law, any
proposed press release pertaining to the transactions contemplated herein shall
be coordinated solely by Purchaser but in consultation with Seller. Subject to
the foregoing and subject at all times to compliance with the law, the parties
agree to keep confidential and not disclose or communicate, either directly or
indirectly, the terms or conditions of this Agreement, to any third person
(other than professional advisors).
ARTICLE XI
----------
Miscellaneous
-------------
11.01 Transaction Costs.
-----------------
(a) Except as otherwise provided herein, Seller shall pay all
of its costs and expenses (including attorneys' fees and other legal costs and
expenses and accountants' fees and other accounting costs and expenses) incurred
in connection with this Agreement.
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(b) Except as otherwise provided herein. Purchaser shall pay
all of its costs and expenses (including attorneys' fees and other legal costs
and expenses and accountants' fees and other accounting costs and expenses)
incurred in connection with this Agreement.
11.02 Amendments. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by the
party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
11.03 Assignments. No party shall assign his or its rights and/or
obligations hereunder without the prior written consent of each other party to
this Agreement.
11.04 Further Assurances. The parties hereby agree from time to time to
execute and deliver such further and other transfers, assignments and documents
and do all matters and things which may be convenient or necessary to more
effectively and completely carry out the intentions of this Agreement.
11.05 Binding Effect. All of the terms and provisions of this
Agreement, whether so expressed or not, shall be binding upon, inure to the
benefit of, and be enforceable by the parties and their respective
administrators, executors, legal representatives, heirs, successors and
permitted assigns.
11.06 Headings. The headings contained in this Agreement are for
convenience of reference only, are not to be considered a part hereof and shall
not limit or otherwise affect in any way the meaning or interpretation of this
Agreement.
11.07 Notices. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing (including
telegraphic communication) and shall be (as elected by the person giving such
notice) hand delivered by messenger or courier service, telecommunicated, or
mailed (airmail if international) by registered or certified mail (postage
prepaid), return receipt requested, addressed to:
To Purchaser: With a copy to:
FutureTrak International, Inc. Gunster, Yoakley, Xxxxxx-Xxxxx
0000 Xxxx Xxxxxxx Xxxxx Xxxx. & Xxxxxxx, P.A.
Xxxxxxx Xxxxx, XX 00000 Broward Financial Centre, Suite 1400
000 Xxxx Xxxxxxx Xxxxxxxxx
Attention: Chief Operating Officer Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, III
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To Seller: With a copy to:
Satellite Technologies, Inc. Xxxxxxx Xxxxx, P.C.
2000 PGA Blvd., Suite 0000 XXX Xxxxx
Xxxxx Xxxx Xxxxx, XX 00000 Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx Attention: Xxxxxxx X. Xxxxxx, Esq.
or to such other address as any party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered (a) on the
date delivered if by personal delivery; (b) on the date of transmission with
confirmed answer back if by telex, telefax or other telegraphic method; and (c)
on the date upon which the return receipt is signed or delivery is refused or
the notice is designated by the postal authorities as not deliverable, as the
case may be, if mailed.
11.08 Severability. If any provision of this Agreement or any other
agreement entered into pursuant hereto is contrary to, prohibited by or deemed
invalid under applicable law or regulation, such provision shall be
inapplicable and deemed omitted to the extent so contrary, prohibited or
invalid, but the remainder hereof shall not be invalidated thereby and shall be
given full force and effect so far as possible. If any provision of this
Agreement may be construed in two or more ways, one of which would render the
provision invalid or otherwise voidable or uninforceable and another of which
would render the provision valid and enforceable, such provision shall have the
meaning which renders it valid and enforceable.
11.09 Waivers. The failure or delay of any party at any time to require
performance by another party of any provision of this Agreement, even if known,
shall not affect the right of such party to require performance of that
provision or to exercise any right, power or remedy hereunder. Any waiver by any
party of any breach of any provision of this Agreement should not be construed
as a waiver of any continuing or succeeding breach of such provision, a waiver
of the provision itself, or a waiver of any right, power or remedy under this
Agreement. No notice to or demand on any party in any case shall, of itself,
entitle such party to any other or further notice or demand in similar or other
circumstances.
11.10 Pronouns. In this Agreement, the use of any gender shall be
deemed to include all genders, and the use of the singular shall include the
plural and vice versa, wherever it appears appropriate from the context.
11.11 Third Parties. Unless expressly stated herein to the contrary,
nothing in this Agreement, whether express or implied, is intended to confer any
rights or remedies under or by reason of this Agreement on any persons other
than the parties hereto and their respective administrators, executors, other
legal representatives, heirs, successors and permitted assigns. Nothing in this
Agreement is intended to relieve or discharge the obligation of liability of any
third persons to any party to this Agreement, nor shall any provision give any
third persons any right of subrogation or action over or against any party to
this Agreement.
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11.12 Enforcement Costs. If any legal action or other proceeding is
brought fur the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any provision of this
Agreement, the successful or prevailing party or panics shall be entitled to
recover reasonable attorneys' fees, sales and use taxes, court costs and all
expenses even if not taxable as court costs (including, without limitation, all
such fees, taxes, costs and expenses incident to arbitration, appellate,
bankruptcy and post-judgment proceedings), incurred in that action or
proceeding, in addition to any other relief to which such party or parties may
be entitled. Attorneys' fees shall include, without limitation, paralegal fees,
investigative fees, administrative costs, sales and use taxes, and all other
charges billed by the attorney to the prevailing party.
11.13 Remedies Cumulative. Except as otherwise expressly provided
herein, no remedy herein conferred upon any party is intended to be exclusive of
any other remedy, and each and every such remedy shall be cumulative and shall
be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or otherwise. No single or partial
exercise by any party of any right, power or remedy hereunder shall preclude any
other or further exercise thereof.
11.14 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Confirmation of execution
by telex or by telecopy or telefax of a facsimile signature page shall be
binding upon any party so confirming.
11.15 Governing Law. This Agreement and all transactions contemplated
by this Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of Florida. The parties hereto acknowledge that the
anticipated performance and execution of this Agreement occurred or shall occur
in Broward County, Florida, and that, therefore, the parties irrevocably and
unconditionally (a) agree that any suit, action or Legal proceeding arising out
of or relating to this Agreement shall be brought in the courts of record of the
State of Florida in Broward County or the court of the United States, Southern
District of Florida; (b) consent to the jurisdiction of each such court in any
suit, action or proceeding; and (c) waive any objection which it may have to the
laying of venue of any such suit, action or proceeding in any of such courts.
11.16 Preparation of Agreement. This Agreement shall not be construed
more strongly against any party regardless of who is responsible for its
preparation. The parties acknowledge each contributed and is equally responsible
for its preparation.
11.17 Survival. All representations, warranties, covenants and
agreements made herein or otherwise made in writing by any pasty pursuant hereto
shall survive the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby for two (2) years from the Closing Date.
11.18 Inducement to Transaction. All representations and warranties
made by any party in this Agreement shall be deemed made for the purpose of
inducing the other party to enter into this Agreement.
17
11.19 Knowledge. When used in this Agreement, the terms "knowledge" or
"known," when used (i) with respect to Seller, shall mean the actual knowledge
of or matters actually known to the officers of Seller, and (ii) with respect to
Purchaser, shall mean the actual knowledge of or matters actually known to the
officers of Purchaser.
11.20 Entire Agreement. This Agreement and the Exhibits hereto
represents the entire understanding and agreement among the parties with respect
to the subject matter hereof, and supersedes all other negotiations,
understandings and representations (if any) made by and among such parties.
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Attest "PURCHASER"
-----------
FUTURETRAK INTERNATIONAL, INC.,
a Florida corporation
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxx ceo
------------------------ ------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxx Xxxxxx phD
------------------------ -----------------------
Its: C.E.O.
------------------------
"SELLER"
--------
SATELLITE TECHNOLOGY, INC.,
a Florida corporation
By: /s/ [ILLEGEBLE] By: /s/ [ILLEGEBLE]
------------------------ ------------------------
Name: [ILLEGEBLE] Name: [ILLEGEBLE]
------------------------ -----------------------
Its: President
------------------------
19
