Exhibit 10.1
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (this "Agreement") dated as of July
29, 1999, between XxxxxXxXxxXxx.xxx, Inc., a Delaware corporation
("Buyer") and Xxxxxx'x Printing Plus, Inc., a Florida corporation
("Seller") and Xxxx Xxxxxx ("Xxxx"), Xxxx Xxxxxx ("Xxxx"), and
Carnie Xxxxxx Xxxxxx ("Xxxxxx") (collectively "Principals").
RECITALS:
A. Seller owns and operates a printing business d/b/a
"Xxxxxx'x Printing Plus" ("Business"); and
B. Seller wishes to sell to Buyer and Buyer wishes to buy
from Seller certain of Seller's assets used primarily in, or
relating primarily to, the Business under the terms and conditions
set forth herein; and
C. The Principals are the officers, directors and/or
shareholders of the Seller, and agree to be bound by this
Agreement;
NOW THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms have the
following meanings:
1.1 "Assets" means all of Seller's right, title and interest
in the following assets:
a) All film, flats, files, work-papers and work product
relating to all customers and accounts for the Business;
b) the Marks;
c) all of Seller's rights and interests in the Material
Contracts;
d) copies of the sales, billing and other pertinent
records;
e) all of Seller's telephone and fax numbers used
exclusively in connection with the Business;
f) all goodwill associated with the Business; and
g) all of the items listed on Schedule 1.1 attached
hereto.
1.2 "Assumed Liabilities" means all of the liabilities of
Seller set forth on Schedule 1.2 attached hereto.
1.3 "Bankruptcy" means (a) an adjudication of bankruptcy
under the U.S. Bankruptcy Reform Act of 1978, as amended, or any
successor statute, (b) the specified Person stops payment of, is
deemed unable or otherwise admits inability to pay its debts or
becomes or is deemed to be insolvent, (c) an assignment for the
benefit of creditors, (d) the filing of a voluntary petition in
bankruptcy or reorganization or the passing of a resolution for
voluntary liquidation, reconstruction or winding up (other than for
the purpose of a solvent merger or reorganization), or (e) the
failure to vacate the appointment of a receiver, trustee,
provisional liquidator or administrative receiver for any part or
all of the assets or property of a party within 60 days from the
date of such appointment.
1.4 "Sales, billing and other pertinent records" means all
correspondence, computer programs, software developments, trade
secrets, customer lists, supplier lists, marketing materials,
billing and collection records and all other records of Seller
which primarily relate to the Assets being sold.
1.5 "Business" has the meaning set forth in the Recitals.
1.6 "Business Day' means any day that is not a Saturday or a
Sunday and on which banks are open for the conduct of normal
banking business in the city of Miami, Florida.
1.7 "Concurrent Transactions" means the collective reference
to the transactions contemplated by this Agreement, the
transactions contemplated by the Exhibits hereto and the
transactions described or referred to in Article V hereof.
1.8 "Employee Benefit Plan" means any: (a) non-qualified
deferred compensation or retirement plan which is an Employee
Pension Benefit Plan; (b) qualified deferred contribution
retirement plan or arrangement which is an Employee Pension Benefit
Plan; (c) qualified benefit retirement plan or arrangement which is
an Employee Pension Benefit Plan; or (d) Employee Welfare Benefit
Plan.
1.9 "Employee Pension Benefit Plan" shall have the meaning
set forth in Section 3(2) of ERISA.
1.10 "Employee Welfare Benefit Plan" shall have the
meaning set forth in Section 3(1) of ERISA.
1.11 "Encumbrance" means any security interest, pledge,
mortgage, lien (including, without limitation, environmental and
Tax liens), charge, encumbrance, adverse claim, option,
preferential arrangement or restriction of any kinds, including,
without limitation, any restriction on the use, voting, transfer,
receipt of income or other exercise of any attributes of ownership.
1.12 "Environmental Laws" means any foreign, federal,
state or local statute, code, ordinance, rule, regulation, permit,
consent, approval, license, judgment, order, writ, judicial
decision, common law rule, decree, agency interpretation,
injunction or other authorization or requirement whenever
promulgated, issued, or modified, including the requirement to
register underground storage tanks, relating to:
a) emissions, discharges, spills, releases or
threatened releases of pollutants, contaminants, Hazardous
Substances (as hereinafter defined), materials containing Hazardous
Substances, or hazardous or toxic materials or wastes into ambient
air, surface water, groundwater, watercourses, publicly or
privately owned treatment works, drains, sewer systems, wetlands,
septic systems or onto land;
b) the use, treatment, storage, disposal, handling,
manufacturing, transportation, or shipment of Hazardous Substances,
materials containing Hazardous Substances or Hazardous and/or toxic
wastes, material, products or by-products (or of equipment or
apparatus containing Hazardous Substances) as defined in or
regulated under the following statutes and their implementing
regulations: the Hazardous Materials Transportation Act, 49 U.S.C.
Sec. 1801 et seq., the Resource Conservation and Recovery Act, 42
U.S.C. Sec. 6901 et seq., the Comprehensive Environmental Response,
Compensation and Liability Act, as amended by the Superfund
Amendments and Reauthorization Act, 42 U.S.C. Sec. 9601 et seq.,
and/or the Toxic Substances Control Act, 15 U.S.C. Sec. 2601 et seq.,
each as amended from time to time; or
c) otherwise relating to pollution or the protection of
human health or the environment.
1.13 "ERISA" means the Employee Retirement Income
Security Act of 1974, as amended.
1.14 "Excluded Liabilities" means all of Seller's
liabilities other than the Assumed Liabilities.
1.15 "Governmental Authority" means any federal, state or
local, or foreign government, governmental, regulatory or
administrative authority (or subdivision thereof) and any agency or
commission or any court, tribunal or judicial or arbitral body that
has jurisdiction over the Business, the Seller or the Assets.
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1.16 "Governmental Order" means any order, writ,
judgment, injunction, decree, stipulation, determination or award
entered by or with any Governmental Authority.
1.17 "Law" means any federal, state, local or foreign
statute, law, ordinance, regulation, rule, code, order, other
requirement or rule of law issued by any Governmental Authority.
1.18 "Marks" means all trademarks, service marks and
trade names of Seller, including without limitation, "Xxxxxx'x
Printing Plus."
1.19 "Material Contract" means any contracts entered into
by the Seller and listed on Schedule 1.19 attached hereto.
1.20 "Person" means any individual, partnership, firm,
corporation, limited liability company, joint venture, association,
trust, unincorporated organization or other entity, as well as any
syndicate or group that would be deemed to be a person under
Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended.
1.21 "Purchase Price" means One Hundred Seventy Five
Thousand Dollars and No Cents ($175,000.00).
1.22 "Tax" or "Taxes" means any and all taxes, stamp
duties, fees, levies, duties, tariffs, imposts, and other charges
of any kind (together with any and all interest, penalties,
additions to tax and additional amounts imposed with respect
thereto) imposed by any Governmental Authority or taxing authority,
including, without limitation: taxes or other charges on or with
respect to income, franchises, windfall or other profits, gross
receipts, property, sales, use, capital stock, payroll, employment,
social security, workers' compensation, unemployment compensation,
or net worth; taxes or other charges in the nature of excise,
withholding, ad valorem, stamp, transfer, value added, or gains
taxes; license, registration and documentation fees; and customs
duties, tariffs, and similar charges.
1.23 "Stock" means Buyer's Rule 144 common stock,
currently trading as NLNX -OTC:BB, subject to the restrictions,
representations and confirmations contained herein. With respect
to the Stock, the Seller(s) shall be referred to as "Shareholder."
ARTICLE II
PURCHASE AND SALE
2.1 Closing. The closing of the purchase and sale of the
Assets and the Concurrent Transactions (as defined in Section 5.1)
(the "Closing") shall take place at the offices of Xxxxxx &
Xxxxxxxxx, LLP, 0000 Xxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxxx, Xxxxxxx
00000, on or before ___________________, 1999 at 9:30. a.m. The
Closing Date may only be changed by written mutual agreement of the
parties.
2.2 Purchase and Sale of Assets. Subject to fulfillment of
the conditions precedent, and based upon the representations and
warranties, set forth herein, Buyer shall, at Closing, purchase
from Seller, and Seller shall sell to Buyer, the Assets free and
clear of any and all Encumbrances except as scheduled in 1.2
attached hereto. In consideration of and in full payment for the
Assets, Buyer shall, at Closing, pay to Seller the Purchase Price
as follows: (a) the sum of Twenty Five Thousand Dollars
($25,000.00) payable to Seller in the form of a Bank Check,
Cashier's Check or attorney's trust account check, at Closing; and
(b) delivery of the number of shares of Stock having a value equal
to $150,000.00. For the purposes of this Section 2.2, the number
of shares of Stock shall be determined by taking the average
publicly traded share price for the Stock for the three (3)
business trading days prior to the Closing Date and dividing
$150,000.00 by this average share price for the Stock price. Thus,
for example, if the average share price is $2.00/share, then Buyer
shall transfer to Seller 75,000 shares of the Stock at closing
(i.e., 150,000 + 2.00 = 75,000 shares). If, at the close of
trading on the 548th day following the Closing Date, the value of
the Stock delivered to Seller does not have a value of at least
$150,000.00 (the value to be determined by multiplying the publicly
traded share Price at the close of that trading day by the number
of shares delivered to Seller at the Closing), Buyer shall deliver
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to Seller, at its sole option and discretion, either (a) additional
shares of Stock in an amount which, at the share price at the close
of trading that day, will, when combined with the shares of Stock
delivered to Seller at Closing, provide Seller with a total number
of shares of Stock having a total value of $150,000 as of the 548th
day after the Closing Date; or (b) cash in an amount necessary to
make up the difference between the value of the Stock on the 548th
day after the Closing Date (as determined in accordance with the
foregoing method) and $150,000.00. If Buyer elects to deliver
additional Stock in accordance with 2.2(a), the delivery shall be
made on or before the 578th day after the Closing Date and any stock
delivered will be free of any Rule 144 Restriction. If Buyer
elects to deliver cash in accordance with 2.2(b), the delivery may
be made in 12 equal monthly installments (without interest), the
first payment of cash to be mailed to Seller on or before the 578th
day after the Closing Date.
2.3 Non-Competition and Non-Solicitation Agreement. Subject
to fulfillment of the conditions precedent, and based upon the
representations and warranties, set forth herein, Buyer shall, at
Closing, pay to Seller the sum of Forty Thousand Dollars
($40,000.00) in return for the Seller and the Principals executing
and delivering the Non-Competition and Non-Solicitation Agreement
attached hereto as Exhibit 5.1(b), which sum shall be paid to
Seller as follows: (a) Twenty Five Thousand Dollars ($25,000)
payable to Seller in the form of a Bank Check, Cashier's Check or
attorney's trust account check and (b) the execution of a
promissory note (the "Note") in favor of the Seller in the
principal amount of Fifteen Thousand Dollars ($15,000.00), in the
form of Exhibit 2.3, attached hereto.
2.4 Assumed Liabilities. Subject to fulfillment of the
conditions precedent, and based upon the representations and
warranties set forth herein, at Closing the Buyer shall assume all
of the Assumed Liabilities. The Buyer shall not assume or have any
responsibility regarding the Excluded Liabilities, and Seller shall
retain all liability regarding the Excluded Liabilities.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF SELLER
As of the date hereof and as of the Closing Date, Seller
hereby represents and warrants to Buyer as follows:
3.1 Organization, Qualification, Etc. of Seller. Seller is
a duly organized and validly existing corporation under the Laws of
the State of Florida and has all necessary corporate power and
authority to own, operate or lease the properties and assets now
owned, operated or leased by it and to carry on its business as it
has been, and is currently and is anticipated to be conducted.
Seller is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which the properties owned or
leased by it or the operation of its business makes such licensing
or qualification necessary, except where the failure to be so
licensed, qualified or in good standing does not have, or could not
reasonably be expected to have, a material adverse effect. All
material corporate actions taken by Seller have been duly
authorized and Seller has not taken any action that in any respect
conflicts with, constitutes a default under or results in a
violation of any provision of its Articles of Incorporation or
Bylaws (collectively, the "Articles of Incorporation"). True and
correct copies of Seller's (a) Articles of Incorporation, as
amended and restated through the date hereof and (b) resolutions of
the members and the Board of Directors adopted prior to the date
hereof heretofore have been delivered to Buyer and all of such
resolutions remain in full force and effect in the form delivered
to Buyer.
3.2 Capitalization of Seller. Schedule 3.2 accurately sets
forth the names of the holders of all of the outstanding capital
stock of Seller and the number of shares owned by each such
stockholder. Each outstanding share of capital stock of Seller has
been duly and validly authorized and issued and is fully paid and
owned, beneficially and of record, by the stockholder(s) listed on
Schedule 3.2.
3.3 Title to the Assets. Seller has good title to or, in the
case of leased or subleased Assets, valid and subsisting leasehold
interests in, all the Assets, free and clear of all Encumbrances or
default except for those liabilities as scheduled in 1.2 attached
hereto.
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3.4 Authority of Seller. Seller has all necessary power and
authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by Seller and (assuming due authorization, execution and
delivery by Buyer) constitutes the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with
its terms, except as such enforcement may be subject to: (a)
Bankruptcy or other similar laws now or hereafter in effect
relating to creditors' rights generally; and (b) general principles
of equity (regardless of whether such enforcement is considered in
a proceeding in equity or at law).
3.5 No Conflict. Assuming the obtaining of all the consents
and approvals referred to in Section 3.6, the execution, delivery
and performance of this Agreement by Seller and the consummation of
the transactions contemplated hereby do not and will not: (a)
conflict with or violate any Law or Governmental Order applicable
to Seller, which violation or conflict would, individually or in
the aggregate, have a material adverse effect on Seller, the
Business or on the transactions contemplated hereby (including the
Concurrent Transactions); or (b) conflict with, result in any
breach of, constitute a default (or an event which with the giving
of notice or lapse of time, or both, would become a default) under,
require any consent under, pr give to others any rights of
termination, amendment, acceleration, suspension, revocation or
cancellation of, or result in the creation of any Encumbrance on
any of the assets properties of Seller or the Business pursuant to,
any note, bond, mortgage or indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument, agreement
or arrangement to which Seller is a party or by which any of such
assets or properties is bound or affected which conflict or
violation would, individually or in the aggregate, have a material
adverse effect on the ability of Seller to consummate the
transactions contemplated hereby or in the Business.
3.6 Consents and Approvals. Except as set forth on Schedule
3.6, the execution, delivery and performance of this Agreement by
Seller do not and will not require any consent, approval,
authorization or other order of, action by, filing with or
notification to any Governmental Authority or any third party.
3.7 Financial Information. All balance sheets, profit and
loss accounts and all other financial information of Seller which
have been or hereafter shall be furnished by or on behalf of the
Seller to Buyer for the purposes of or in connection with this
Agreement or any transaction contemplated hereby give a true and
fair view of the state of affairs of Seller as of the dates thereof
and the results of its operations for the periods then ended,
subject to year-end adjustments consisting only of normal recurring
accruals.
3.8 Litigation. Except as set forth on Schedule 3.8, there
are no actions, disputes or claims (other than proceedings filed
but not yet served on Seller) being brought or threatened by or
against Seller (or any of Seller's directors, officers, employees
or agents), or affecting any of the Assets which, if adversely
determined, could reasonably be expected to have a material adverse
effect. Neither Seller nor the Assets are subject to any Law or
Governmental Order which has or could reasonably be expected to
have a material adverse effect.
3.9 Conduct of Business in the Ordinary Course. Seller has
conducted the Business only in the ordinary course and consistent
with past practice.
3.10 Compliance with Laws. Seller has conducted and
continues to conduct its business in all material respects in
accordance with all Laws and all Governmental Orders entered by or
with any Governmental Authorities, and Seller is in compliance with
all such Laws or Governmental Orders.
3.11 Environmental Compliance. Seller and the Real
Property (as hereinafter defined) are, and at all times have been,
in compliance with all applicable Environmental Laws.
3.12 Contracts. Each Material Contract: (i) is valid and
binding on the respective parties thereto and is in full force and
effect and (ii) upon consummation of the transactions contemplated
hereby shall continue in full force and effect without penalty or
other adverse consequence. Seller is not and to Seller's
knowledge, no other party to any Material Contract is, in breach of
or default under any Material Contract, which breach of default
would have a material adverse effect on the Seller or the Business.
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3.13 Intellectual Property. Seller has full ownership
of, and the right to use, the Marks, and to the best of Seller's
knowledge, no third party is infringing the Marks.
3.14 Employment Matters.
a) Payroll. Schedule 3.14(a) attached hereto correctly
sets forth: (a) the name of each person and "Employee" employed by
Seller in the Business; (b) each Employee's salary rate and
contractual bonus, as well as the amount of any pension or profit
sharing plan contributions; and (c) the terms of any health
insurance plan provided to Employees. Seller has paid all
Employee's wages owed to the such Employees up to and including the
Closing Date.
b) Employee Benefits. Seller does not maintain
Employee Benefit Plans for Employees.
c) Collective Bargaining Agreements. None of the
Employees are subject to any collective bargaining or union
agreement.
3.15 Real Property. The particulars of the real property
set forth on Schedule 3.15 attached hereto (the "Real Property")
are true and correct in all respects. The Real Property comprises
all the real property used or occupied by Seller in connection with
the Business. There is no violation of any Law (including, without
limitation, any building, planning, zoning law or environmental
law) or any covenants, stipulations or conditions relating to any
of the Real Property and Seller is in peaceful and undisturbed
possession of the Real Property. There are no contractual or legal
restrictions that preclude or restrict in any material manner the
ability to use any of the Real Property in the manner in which they
are currently being used and the Real Property has all rights and
casements reasonably necessary for their use and enjoyment for the
purposes of the Business. Seller is not leasing or subleasing and
has not leased or sublet any parcel or any portion of any parcel
Real Property to any other Person, nor has Seller assigned its
interest under any lease or sublease for any leased Real Property
to any third party. There are no outstanding material disputes
with any Person relating to the Real Property or its use and no
notices have been given or received by Seller which would adversely
affect the use and enjoyment of the Real Property. Seller is
occupying leased premises for the conduct of its business on a
month to month basis. Buyer will not assume the lease.
3.16 Taxes.
a) Except as disclosed on Schedule 3.16: (i) all
returns and reports in respect of all Taxes required to be filed
with respect to Seller or the Business have been timely filed; (ii)
all Taxes required to be shown on such returns and reports or
otherwise due have been timely paid; (iii) all such returns and
reports are true, correct and complete; (iv) no adjustment relating
to such returns has been proposed by any tax authority and no basis
exists for any such adjustment; (v) there are no pending or
threatened actions or proceedings for the assessment or collection
of Taxes against Seller; (vi) there are no Encumbrances on any
Assets; (vii) Seller has not been at any time a member of any
partnership or joint venture or the holder of a beneficial interest
in any trust for any period for which the statute of limitations
for any Tax has not expired; and (viii) all Taxes required to be
withheld, collected or deposited, as the case may be, and, to the
extent required, have been paid to the relevant taxing authority.
b) Except as disclosed on Schedule 3.16: (i) there are
no outstanding waivers or agreements extending the statute of
limitations for any period with respect to any Tax to which Seller
may be subject; (ii) there are no proposed reassessments of any
property owned by Seller or other proposals that could increase the
amount of any Tax to which Seller would be subject; and (iii) no
power of attorney that is currently in force has been granted with
respect to any matter relating to Taxes that could affect Seller.
3.17 Brokers. Except as disclosed in Schedule 3.17, no
broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with the
transactions contemplated by this Agreement or the Concurrent
Transactions based upon an arrangement made by or on behalf of the
Seller.
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3.18 Full Disclosure. No representation or warranty with
respect to Seller contained in this Agreement and no written
statement contained in any financial or operating data or
certificate furnished to Buyer pursuant to this Agreement, or in
connection with the transactions contemplated by this Agreement
(including the Concurrent Transactions), contains any untrue
statement of a material fact, or omits to state a material fact
necessary to make the statements contained herein or therein not
misleading.
3.19 With respect to the Stock, Shareholder confirms
that:
i) it is qualified to hold the Stock;
ii) it is Familiar with Rule 144 of the
Securities Act of 1933, as amended from time to time (the
"Securities Act"), and understands the resale limitations imposed
under the Securities Act;
iii) it understands that it must bear the
economic risk of its investment in Buyer for an indefinite period
of time since the Stock has not been registered for sale under the
Securities Act and, therefore, cannot be sold or otherwise
transferred unless subsequently registered under the Securities Act
or applicable state blue sky laws or an exemption from such
registration is available;
iv) it understands that no federal or state
agency has passed upon the Stock or made any finding or
determination as to the fairness of this investment;
v) it has carefully reviewed and understands the
risks of, and other considerations relating to an investment in
Buyer. It has been furnished any materials relating to Buyer and
the Stock he has requested and has been afforded the opportunity to
ask questions and receive answers concerning the terms and
conditions of the Stock and to obtain any additional information
that Buyer possesses or can acquire without unreasonable effort or
expense that is necessary to verify the accuracy of any
representations or information provided to it;
vi) representatives of Buyer have answered all
inquiries that it has made of them concerning Buyer, or any other
matters relating to the formation and operation of Buyer and the
offering and sale of the Stock. Shareholder is not receiving the
Stock as a result of or subsequent to any advertisement, articles,
notice or other communication published in any newspaper, magazine
or similar media or broadcast over television or radio or presented
at any seminar or meeting;
vii) it has relied only upon information
furnished or made available to it by Buyer and no oral
representations or warranties have been made to it;
viii) it understands that any underwriter in an
initial public offering of Buyer's securities may request that it
not sell any of Buyer's common stock without such Underwriter's
prior written consent for a period not to exceed 12 months from the
effective date of such public offering or during the 18 month
"lockup period", whichever shall first expire;
ix) it understands and agrees that certain
restrictions and limitations are applicable to the resale and any
other transfer it may make of the Stock. Legends in substantially
the following form will be placed on each certificate representing
the Stock, and any securities issued in replacement or exchange
therefore, as well as legends which may be required by applicable
state securities law:
THE SHARES REPRESENTED BY THE CERTIFICATE HAVE
NOT BEEN RECISTERED UNDER THE SECURITIES ACT
OF 1933 OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. THE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD, ASSIGNED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR LAWS
OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED, AND IN NO EVENT, PRIOR TO THE
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PASSAGE OF EIGHTEEN MONTHS FROM THE DATE THAT
THE SHARES ARE ISSUED TO SHAREHOLDER.
THE HOLDER OF THESE SECURITIES HAS ALSO AGREED
THAT IF THE COMPANY SELLS ITS SECURITIIS IN AN
INITIAL PUBLIC OFFERING, THE SECURITIES
REPRESENTED BY THIS CERTIFICATE CANNOT BE SOLD
FOR UP TO 12 MONTHS AFTER SUCH PUBLIC OFFERING
WITHOUT THE CONSENT OF THE MANAGING
UNDERWRITER.
x) It is agreed that the Stock is subject to a
restriction prohibiting its sale by Seller for a period of eighteen
months ("Lockup Period"). It is agreed that at the expiration of
the 18 month Lockup Period, Buyer will assist Seller, at no cost,
expense or delay to Seller, in exchanging Seller's 144 common
shares into common shares free of restrictions imposed by Rule 144
so that Seller may trade or sell his shares on the public market
then existing for the shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
As of the date hereof and as of the Closing Date, Buyer hereby
represents and warrants to Seller as follows:
4.1 Organization, Qualification, Etc. of Buyer. Buyer is a
duly registered, incorporated and validly existing corporation
under the Laws of Delaware.
4.2 Authority of Buyer. Buyer has all necessary corporate
power and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement
by Buyer, the performance by Buyer of its obligations hereunder and
the consummation by Buyer of the transactions contemplated hereby
have been duly authorized by all requisite corporate action on the
part of the Buyer. This Agreement has been duly executed and
delivered by Buyer and (assuming due authorization, execution and
delivery by Seller) constitutes the legal, valid and binding
obligation of Buyer, enforceable against Buyer in accordance with
its terms, except as such enforcement may be subject to (a)
Bankruptcy or other similar laws now or hereafter in effect
relating to creditors' rights generally and (b) general principles
of equity (regardless of whether such enforcement is considered in
a proceeding in equity or at law).
4.3 No Conflict. Assuming the obtaining of all the consents
and approvals referred to in Section 4.4, the execution, delivery
and performance of this Agreement by Buyer and the consummation of
the transactions contemplated hereby do not and will not (a)
violate, conflict with or result in the breach of any provision of
Buyer's Articles of Incorporation or Bylaws (collectively, the
"Articles of Incorporation"), (b) conflict with or violate any Law
or Governmental Order applicable to Buyer, which violation or
conflict could, individually or in the aggregate, have a material
adverse effect on Buyer, or (c) conflict with, or result in any
breach of, constitute a default (or event which with the giving of
notice or lapse or time, or both, would become a default) under,
require any consent under, or give to others any rights of
termination, amendment, acceleration, suspension, revocation, or
cancellation of, or result in the creation of any Encumbrance on
any of the assets or properties of Buyer pursuant to, any note,
bond, mortgage or indenture, contract, agreement, lease, sublease,
license, permit, franchise or other instrument, agreement or
arrangement to which Buyer is a party or by which any of such
assets or properties are bound or affected which could reasonably
be expected to have a material adverse effect on the ability of
Buyer to consummate the transactions contemplated hereby.
4.4 Consents and Approvals. Except as disclosed on Schedule
4.4, the execution, delivery and performance of this Agreement by
Buyer do not and will not require any consent, approval,
authorization or other order of, action by, filing with, or
notification to, any Governmental Authority or any third party.
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4.5 Litigation. No claims or proceedings are pending or, to
the knowledge of Buyer, threatened by or against Buyer (or, to
Buyer's knowledge, any of its directors, officers, employees or
agents) which, if adversely determined, could reasonably be
expected to have a material adverse effect or could reasonably be
expected to affect the legality, validity or enforceability of this
Agreement or the consummation of the transactions contemplated
hereby, including without limitation the Concurrent Transactions.
4.6 Full Disclosure. No representation or warranty of Buyer
contained in this Agreement and no written statement contained in
any financial or operating data or certificate furnished or to be
furnished to Seller pursuant to this Agreement, or in connection
with the transactions contemplated by this Agreement (including the
Concurrent Transactions), 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 herein or
therein not misleading.
ARTICLE V
CONCURRENT TRANSACTIONS; DELIVERIES; CONDITIONS
5.1 Concurrent Transactions. The parties hereto acknowledge
that each of the parties hereto has relied upon the accuracy,
validity and effectiveness of such other parties' representations,
warranties and agreements in entering into this Agreement and that,
concurrently with the Closing:
a) Buyer shall deliver the Stock in accordance with
Section 2.2.
b) Seller and the Principals shall execute and deliver
to Buyer the Non-Competition and Non-Solicitation Agreement, a copy
of which is attached hereto as Exhibit 5.1(b), in accordance with
Section 2.2.
5.2 Deliveries by Seller. On or prior to the Closing, Seller
shall execute or cause to be executed and deliver or cause to be
delivered to Buyer the following documents, certificates and
agreements:
a) Xxxx of Sale. A Xxxx of' Sale, in the form of
Exhibit 5.2 attached hereto, executed by Seller;
b) Resolutions of Seller. A true and complete copy,
certified by the Secretary of Seller, of the resolutions duly and
validly adopted by the stockholders and board of directors of
Seller evidencing its authorization of the execution and delivery
of this Agreement and the consummation of the transactions
contemplated hereby;
c) Incumbency Certificate of Seller. A certificate of
the Secretary of Seller certifying the names of the officers of
Seller authorized to sign this Agreement and the other documents to
be delivered hereunder on behalf of Seller;
5.3 Conditions Precedent to the Parties' Obligations to
Close. The obligations of each of Seller and Buyer hereunder to
consummate the transactions contemplated hereby are subject to the
satisfaction or, in each parties' sole discretion, waiver on or
before the Closing of each of the following conditions.
a) Deliveries. Receipt by the appropriate parties of
the items enumerated in Sections 5.1 and 5.2 hereof.
b) No Adverse Change. Since May 4, 1999 (the date of
the Letter of Intent between the parties), there shall have been no
material adverse effect on the Business, the Assets, or the
financial condition or prospects of the Seller.
c) No Proceeding or Litigation. No action, proceeding
or litigation shall have been commenced or threatened by any
Governmental Authority seeking to restrain or materially alter the
transaction contemplated hereby which, in the reasonable good faith
determination of Seller or Buyer, is likely to render it impossible
9
or unlawful, or otherwise render inadvisable the parties' intent,
to consummate the transactions contemplated hereby or any of the
Concurrent Transactions.
5.4 Transition of Business.
a) Advisory Services. For a period (the "Transition
Period") of up to 30 days following the Closing, the Principals
shall provide the Company with the following consulting and
advisory services pertaining to the Business:
i) management and operation of the Business,
including without limitation, the sale of services and servicing of
customer accounts; and
ii) introductions to customers and suppliers.
The Principals shall devote only such time as is reasonably
required to accomplish the foregoing.
ARTICLE VI
INDEMNIFICATION
6.1 Survival. All representations and warranties contained
herein and made in writing by or on behalf of the parties hereto in
connection with the transactions contemplated hereby shall survive
the execution and delivery of this Agreement and the Closing,
without limitation as to time.
6.2 Buyer's Right to Indemnification. Subject to the
provisions of this Article VI and in addition to any other rights
and remedies available to Buyer under applicable law, Seller, shall
indemnify and hold harmless Buyer or any of its officers,
directors, shareholders, employees, agents, representatives,
attorneys, successors, predecessors and assigns from and against
any and all losses, obligations, liabilities, damages, claims,
deficiencies, costs and expenses (including, but not limited to,
the amount of any settlement entered into pursuant hereto and all
reasonable legal and other expenses incurred in connection with the
investigation, prosecution or defense of any matter) (collectively
"Claims"), which may be asserted against or sustained or incurred
by Buyer in connection with, arising out of, or relating to: (i)
any breach of any, or any false, incorrect or misleading,
representation or warranty that is made by Seller herein or in any
Exhibit, Schedule, certificate or other document delivered to Buyer
by Seller with respect to Seller in connection with this Agreement.
6.3 Seller's Right to Indemnification. Subject to the
provisions of this Article VI and in addition to any other rights
and remedies that may be available to Seller under applicable law,
Buyer shall indemnify and hold harmless Seller or any of its
officers, directors, shareholders, employees, successors,
predecessors and assigns from and against Claims which may be
asserted against or sustained or incurred by Seller in connection
with, arising out of, or relating to: (i) any breach of any, or any
false, incorrect or misleading, representation or warranty that is
made by Buyer herein or in any Exhibit, Schedule, certificate or
other document delivered to Seller by or on behalf of Buyer in
connection with this Agreement or (ii) any breach of any agreements
and covenants made by Buyer herein or in any Exhibit, Schedule,
certificate or other document delivered to Seller by or on behalf
of Buyer in connection with this Agreement.
10
6.4 Procedure for Claims.
a) Notice of Claim. Promptly, but in any event within
30 days after obtaining knowledge of any claim or demand which may
give rise to, or could reasonably give rise to, a claim for
indemnification hereunder (any such claim an "Indemnification
Claim"), the party or parties entitled to indemnification hereunder
(the "Indemnified Party") shall give written notice to the party or
parties subject to indemnification obligations therefor (the
"Indemnifying Party") of such Indemnification Claim (a "Notice of
Claim"). A Notice of Claim shall be given with respect to ail
Indemnification Claims. However, the failure to timely give a
Notice of Claim to the indemnifying Party shall not relieve the
Indemnifying Part from any liability that it may have to the
Indemnified Party hereunder to the extent that the Indemnifying
Party is not prejudiced by such failure. The Notice of Claim shall
set forth the amount (or a reasonable estimate) of the loss, damage
or expense suffered, or which may be suffered, by the Indemnified
Party as a result of such Indemnification Claim and a brief
description of the facts giving rise to such Indemnification Claim.
The Indemnified Party shall furnish to the Indemnifying Party such
information (in reasonable detail) as the Indemnified Party may
have with respect to such Indemnification Claim (including copies
of any summons, complaint or other pleading which may have been
served on it and any written claim, demand, invoice, billing or
other document evidencing or asserting the same).
b) Third Party Claims.
i) If the claim or demand set forth in the Notice
of Claim is a claim or demand asserted by a third party (a "Third
Party Claim"), the Indemnifying Party shall have 15 days (or such
shorter period if an answer or other response or filing with
respect to the pleadings served by the third party is required
prior to the 15th day) after the date of receipt by the Indemnifying
Party of the Notice of Claim (the "Notice Date") to notify the
Indemnified Party in writing of the election by the Indemnifying
Party to defend the Third Party Claim on behalf of the Indemnified
Party.
ii) If the Indemnifying Party elects to defend
a Third Party Claim on behalf of the Indemnified Party, the
Indemnified party shall make available to the Indemnifying Party
and its agents and representatives all records and other materials
in its possession which are reasonably required in the defense of
the Third Party Claim and the Indemnifying Party shall pay any
expenses payable in connection with the defense of the Third Party
Claim as they are incurred (whether incurred by the Indemnified
Party or Indemnifying Party).
iii) In no event may the Indemnifying Party
settle or compromise any Third Party Claim without the Indemnified
Party's consent, which shall not be unreasonably withheld.
iv) If the Indemnifying Party elects to defend
a Third Party Claim, the Indemnified Party shall have the right to
participate in the defense of the Third Party Claim, at the
Indemnified Party's expense (and without the right to
indemnification for such expense under this Agreement). However,
the reasonable fees and expenses of counsel retained by the
Indemnified Party shall be at the expense of the Indemnifying Party
if (a) the use of the counsel chosen by the Indemnifying Party to
represent the Indemnified Party would present such counsel with a
conflict of interest; (b) the parties to such proceeding include
both the Indemnified Party and the Indemnifying Party and there may
be legal defenses available to the Indemnified Party which are
different from or additional to those available to the Indemnifying
Party; (c) within 10 days after being advised by the Indemnifying
Party of the identity of counsel to be retained to represent the
Indemnified Party, the Indemnified Party shall have objected to the
retention of such counsel for valid reasons (which shall be stated
in a written notice to Indemnifying Party), and the Indemnifying
Party shall not have retained different counsel reasonably
satisfactory to the Indemnified Party; or (d) the Indemnifying
Party shall authorize the Indemnified Party to retain separate
counsel at the expense of the Indemnifying Party.
v) If the Indemnifying Party does not elect to
defend a Third Party Claim, or does not defend a Third Party Claim
in good faith, the Indemnified Party shall have the right, in
addition to any other right or remedy it may have hereunder, at the
sole and exclusive expense of the Indemnifying Party, to defend
such Third Party Claim.
11
vi) To the extent that an Indemnified Party
recovers on a Third Party Claim, the amount of such recovery (after
deduction of all costs and expenses incurred in connection with
such Third Party Claim) shall reduce, dollar-for-dollar, the
indemnification obligation otherwise owing by the Indemnifying
Party.
c) Cooperation in Defense. The Indemnified Party shall
cooperate with the Indemnifying Party in the defense of a Third
Party Claim. Subject to the foregoing, (i) the Indemnified Party
shall not have any obligation to participate in the defense of or
to defend any Third Party Claim and (ii) the Indemnified Party's
defense of or is participation in the defense of any Third Party
Claim shall not in any way diminish or lessen its right to
indemnification as provided in this Agreement.
ARTICLE VII
GENERAL PROVISIONS
7.1 Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation,
fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
7.2 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be
given or made (and shall be deemed to have been duly given or made)
upon the earliest to occur of (a) receipt, if made by personal
service, (b) three days after dispatch, if made by reputable
overnight courier service, (c) upon the delivering party's receipt
of a written confirmation of a transmission made by cable, by
telecopy, by telegram, or telex or (d) seven days after being
mailed by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be
specified in a notice given in accordance with this Section 7.2):
(a) if to Buyer: Print xXxxXxx.xxx, Inc.
0000 XX 00xx Xxxxxx
Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxxxxx
with a copy to: Xxxx X. Xxxxxxxxx, Esq.
Xxxxxx & Xxxxxxxxx LLP
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to Seller: Xxxx Xxxxxx
000 XX 00 Xxxxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
12
with a copy to: Xxxxxxxx Xxxxxx, Esq.
c/x Xxxxxx & Segaul, P.A.
0000 X Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
7.3 Interpretation. The descriptive headings contained in
this Agreement are for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
Each party has had the opportunity to review and participate in the
drafting of this Agreement and no term or provision of this
Agreement shall be construed narrowly or strictly against the party
that was responsible for the drafting of this Agreement or such
term or provision.
7.4 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any
Law or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially
adverse to any party.
7.5 Entire Agreement. Except as otherwise identified herein,
this Agreement, including all of the Exhibits and Schedules
attached hereto which are incorporated herein by this reference,
and the agreements effecting the Concurrent Transactions constitute
the entire agreement of the parties hereto with respect to the
subject matter hereof, and thereof and supersede all prior
agreements and undertakings, both written and oral, between Seller
and Buyer with respect to the subject matter hereof and thereof.
7.6 Assignment. This Agreement and the rights and duties
hereunder may not be assigned or assumed by operation of law or
otherwise (other than an assignment by Buyer to an Affiliate of
Buyer) without the express prior written consent of the other
parties, as applicable), but Buyer remains liable on the note, and
Buyer must retain its corporate existence until the note is paid in
full.
7.7 Amendment; Waiver. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf
of, each party hereto. Each party to this Agreement may (a) extend
the time for the performance of any of the obligations or other
acts of the other parties, (b) waive any inaccuracies in the
representations and warranties of the other parties contained
herein or in any document delivered by the other party pursuant
hereto or (c) waive compliance with any of the agreements or
conditions of the other parties contained herein. Any such
extension or waiver shall be valid only if set forth in an
instrument in writing signed by all of the other parties to be
bound thereby. Any waiver of any term or condition shall not be
construed as a waiver of any subsequent breach or subsequent waiver
of the same term or condition, or a waiver of any other term or
condition, of this Agreement. The failure of any party to assert
any of its rights hereunder shall not constitute a waiver of any
such rights.
7.8 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Florida
(without regard to its principles regarding conflicts of law).
7.9 Choice of Forum. All actions or proceedings initiated by
any party hereto and arising directly or indirectly out of this
Agreement which are brought to judicial proceedings shall be
litigated in Broward County Circuit Court.
7.10 Counterparts. This Agreement may be executed in one
or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed
to be an original but all of which taken together shall constitute
one and the same agreement.
7.11 Attorneys' Fees. If any legal action or other
proceeding is brought for the enforcement of this Agreement, or
because of an alleged dispute, breach, default or misrepresentation
in connection with any of the provisions of this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys'
fees and other costs incurred in that action or proceeding, in
addition to any other relief which it may be entitled.
13
7.12 Further Action. Each of the parties hereto shall
use all reasonable efforts to take, or cause to be taken, all
appropriate action, do or cause to be done all things reasonably
necessary, proper or advisable under applicable Law, and execute
and deliver such documents and other papers, as may be required to
carry out the provisions of this Agreement and consummate and make
effective the transactions contemplated by this Agreement.
IN WITNESS WHEREOF, Seller, the Principals, and Buyer have
caused this Agreement to be executed as of the date first written
above.
XxxxxXxXxxXxx.xxx, Inc. Xxxxxx'x Printing Plus, Inc.
By:/s/Xxxxxxxx Xxxxxxxxxx By:/s/Xxxx Xxxxxx
Name: Xxxxxxxx Xxxxxxxxxx Name: Xxxx Xxxxxx
Title: C.E.O. Title: President
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx
/s/ Xxxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxxx
14
SCHEDULE 1.1 ADDITIONAL ASSETS
RECEPTION AREA PRODUCTION AREA:
Savin 9210 Copy Machine with Sorter and Cabinet 42" x 3' Drafting Table w/T-square & Light
6 Extension ProStar 816 Electronic Phone System 3 - 5'x 3' Folding Work Tables
12' x 42" Counter with under counter storage 1 - 40"x 20" Metal Desk
3 - 4' x 10' Shelves 6 - 4 Drawer File Cabinets
1 - 4 1/2' x 2' x 4' x2' Display Shelf 1 - 22"xT'x4' 5 Shelf Work Station on Casters
Work Counters 1 - 5 1/2' x 18" 1 - 3' x2' Bulletin Board
1- 4' x 18" 1 - Lectrojog Electric Jogger
6 - 6' x 30" Folding Work Tables
6 - Counter Stools (24") 1 - 8' x 30" Folding Work Table
9' x 2' Window Shutters 1 - AB Dick 360 Chain
Delivery Alcohol System 1 -
Cash Register Color Press
Alarm System 1 - AB Dick 9810 XC 2 Color Press
1 - AB Dick 9870 D 2 Color Press w/Xxxxxxxx
OFFICE & PREP. AREA Dampening System
2 - Computer Work Stations with Returns 1 - Xxxxxxx Daylight Xxxx Xxxxxx
0 - XX XxxxXxx 0x Xxxxxxx 1 - 31' x 30" Cabinet
2 - Computers/Monitors/with keyboard, mouse & 1 - 40' x 30' Table
speakers 10 Storage Shelve Units
1 - NEC Silentwriter LC890 Laser Primer 1 - Itek t218 Plate Maker
2 - Metal Mesh Utility Carts 1 - 19" Triumph Electric Cutter
8' by 2 1/2' Work Counter with shelves 1 - Challenger Electric Drill Press
1 - Metal Desk w/return 1 - OM Profold Folder
w/scoring & perforating wheels
1 - 3 1/2 ' x 2 1/2' Drafting Table with accessory 1 - SALCO Rapid Saddle Stitch Electric Stapler
holder and drafting arm 1 - SMB 2000 Electric Numbering Machine
5 assorted desk lamps 1 - Gather Ease 8 Station Electric Collator
1 - 5' x 2 1/2' Metal Desk w/return 1 - 6 Shelf Rolling Storage Cart
1 - 1 1/2' x3' Typewriter Table 4 - Secretarial Chairs
2 - IBM Selectric Typewriter 1 - Hand Truck
1 - Check Writer 1 - Craftsman Wet Vac
1 - Tape Calculator 1 - Eureka Upright Vacuum Cleaner
1 - Xxxxxxx Wax Machine 1 - AB Dick "Parts Press"
1 - 3 1/2' x 20" Cabinet w/doors 3 - Fire Extinguishers
1 - 27 1/2" x 22 1/2" Cabinet Assorted Tools
1 - 4' x 38" Drafting Board with drafting arm First Aid Case
3 - Drafting Chairs 3 - Wall Clocks
5 - Secretarial Chairs 1 - 3' Wrapping Paper Dispenser
1 - 4' x 30" Computer Table 1 - 4' x 20' Metal Plate Cabinet
1 - Xxxxxx B540 Fax Phone Assorted Tape Dispensers, Staplers, Calculator and
1 - 23" x 29" Cabinet Office Supplies
3 - 4 Drawer File Cabinets
1 - Whirlpool Microwave
1 - Toastmaster Toaster Oven
1 - Danbee Refrigerator
1 Microwave Utility Cart
Dining Table & 4 Chairs
SCHEDULE 1.2 - ASSUMED LIABILITIES
Commercial Lease #0012715-001 with Trinity Capital Corporation
dated 7/15/97
SCHEDULE 1.19 - MATERIAL CONTRACTS
None
EXHIBIT 2.3
$15,000.00 Hollywood, Florida, ____________, 1999
PROMISSORY NOTE
FOR VALUE RECEIVED, XxxxxXxXxxXxx.xxx, Inc. (the "Maker"),
hereby promises to pay to the order of Xxxxxx'x Printing Plus,
Inc., Florida corporation, or its successors or assigns
(collectively the "Payee") the principal amount of Fifteen Thousand
Dollars and 00/100 ($15,000.00) on or before (the "Maturity Date")
and to pay interest on the principal balance hereof at the rate of
seven percent (7%) per annum (the "Interest Rate"). Principal and
interest due under this Note shall be payable in eighteen (18)
equal installments of $ due monthly. Each monthly payment shall be
due on the 20th day of each month and the first payment shall be due
on ___________________, 1999.
If any payment hereunder is not made within seven business
days after it is due, Maker shall pay to Payee a late charge equal
to five percent (5%) of the late payment. This Note may be prepaid
in whole or in part without the consent of the Payee. The entire
unpaid principal and interest of this Note shall become immediately
due and payable, in the event that Maker has, with no fault of
Payee, defaulted in the payment of principal and interest due
hereunder, and has failed to remedy the default within 15 days
after Payee has delivered written notice of the default to Maker.
This Note is being made in connection with that certain Asset
Purchase Agreement (the "Asset Purchase Agreement"), dated 1999,
among Maker and Payee. Capitalized terms not otherwise defined in
this Note shall have the meaning assigned to such terms in the
Asset Purchase Agreement.
No course of dealing between the Maker and the Payee, and no
failure or delay on the part of the Payee in exercising any rights
under this Note shall operate as a waiver of the rights of the
Payee. Furthermore, no single or partial exercise of any right
hereunder shall prevent any other or further exercise of such right
or of any other right. No covenant or other provision of this Note
may be changed or waived, except by a written document signed by
the party consenting to such change or waiver.
All notices, requests, claims, demands and other
communications hereunder shall be in accordance with Section 7.2 of
the Asset Purchase Agreement. This Note shall be governed in
accordance with the internal laws of the State of Florida (without
regard to its conflict of laws principles).
XxxxxXxXxxXxx.xxx, Inc.
By:_________________________
Xxxxxxxx Xxxxxxxxxx
President
BEFORE ME, personally appeared, Xxxxxxxx Xxxxxxxxxx, who is
personally known to me or has produced as identification, and who
stated that he has read and executed the foregoing document and
acknowledged that he is fully authorized to do so on behalf of the
Corporation, and that he has executed said instrument freely and
voluntarily on behalf of the Corporation.
Witness my hand and seal this ____ day of _______________, 1999.
___________________________
NOTARY PUBLIC
___________________________
Printed name of notary
My commission expires:
SCHEDULE 3.2 - STOCKHOLDERS
Stockholders
Xxxx Xxxxxx 4500 Shares
Xxxxxx Xxxxxx 500 Shares
Board of Directors
Xxxx Xxxxxx
Xxxx X. Xxxxxx
Xxxxxx Xxxxxx Xxxxxx
Officers of the Corporation
Xxxx Xxxxxx - President
Carnie Xxxxxx Xxxxxx - Secretary, Treasurer
SCHEDULE 3.6 - CONSENT AND APPROVAL BY THIRD PARTIES (SELLER)
None
SCHEDULE 3.8 - PENDING LITIGATION
None
SCHEDULE 3.14(A)- LIST OF EMPLOYEES, COMPENSATION AND BENEFITS
None
SCHEDULE 3.15 - REAL PROPERTY
None.
SCHEDULE 3.16 - TAX RETURNS NOT FILED
None
SCHEDULE 3.17 - BROKERS
Seller engaged Xxxxx Xxxx, c/o Transworld Business Brokers, Inc.,
0000 Xxxx Xxxxxxxxxx Xxxx., Xxx 000, Xxxx Xxxxxxxxxx, XX 00000
("Broker") in connection with the sale to Buyer. Buyer has agreed
to compensate Broker by separate agreement with Broker. Buyer
agrees to indemnify Seller from any claim for brokerage commission
from Broker.
SCHEDULE 4.4 - CONSENT AND APPROVAL BY THIRD PARTIES (BUYER)
None
EXHIBIT 5.1(b)
NON-COMPETITION AND NON-SOLICATION AGREEMENT
NON-COMPETITION AGREEMENT, dated as of , among
PrintOnTheNet.corn, Inc. ("POTN"), Xxxxxx'x Printing Plus, Inc.,
a Florida corporation, ("BPP"), Xxxx Xxxxxx ("Xxxx"), Xxxx Xxxxxx
("Xxxx"), and Xxxxxx Xxxxxx ("Carnie") (collectively "Principals").
RECITALS
A. BPP has sold all or part of its assets to POTN, pursuant
to that certain Asset Purchase Agreement, dated __________________,
among POTN, BPP, and the Principals.
B. POTN wishes to protect its legitimate business interests
and ensure that BPP, and Lynn, Jack, and Carnie do not compete with
POTN and its subsidiaries, including, without limitation,
PrintAmerica Management Company, Inc., and National Lithographers
and Publishers, Inc. (collectively, the "Company") for a certain
period of time, pursuant to the terms and conditions of this
Agreement.
C. The Principals are principals, officers, directors,
shareholders and/or key employees of Seller, and agree that their
execution of this Agreement and agreement to be bound thereby is
supported by valuable consideration paid by POTN to BPP.
NOW THEREFORE, in consideration of $10.00 or other valuable
consideration, the parties agree as follows:
1. Recitals. The above recitals are true and correct and
are incorporated herein by reference.
2. Non-Competition and Non-Solicitation. During the
Restricted Period (as hereinafter defined) and within the
Restricted Area (as hereafter defined), BPP and the Principals,
individually and/or collectively without the written consent of
POTN, shall not, directly, or indirectly, alone or as a partner,
officer, director, employee, consultant, agent, independent
contractor, member or stockholder of any company or business
organization, except BPP and the Principals, individually and/or
collectively, may own any stocks, bonds or securities issued by a
company listed on a national securities exchange, (a) engage in any
business which is directly or indirectly in competition with the
Business; (b) provide goods or services to anyone else that is
directly or indirectly in competition with the Business; (c) shall
not solicit to sell nor sell goods or services to any current or
past customer or competitor of Company and/or BPP; (d) recruit,
solicit, induce, or influence any Company's employees, consultants,
suppliers or existing and prospective customers that were such with
respect to Company at any time prior to or during the Restricted
Period to discontinue, reduce or modify such relationship with
Company; and (e) shall not accept any business from any existing
and prospective customers that were such with respect to Company
and/or BPP at any time prior to or during the Restricted Period.
3. Certain Definitions. For purposes of this Agreement:
"Restricted Period" shall mean the period commencing as of the
date hereof and terminating three (3) years from the date hereof.
"Restricted Area" means all areas in the following counties in
the State of Florida: Miami-Dade County, Broward County, Palm Beach
County, and Monroe County
"Business" shall, notwithstanding anything herein to the
contrary, include all products, services and activities of the
Company, whether now or previously offered at any time by the
Company, which are graphic arts, printing and related goods or
services.
4. Confidential Information. BPP and the Principals
acknowledge and agree that all Confidential Information (as defined
below) known or obtained by them, whether before or after the date
1
hereof, is the property of the Company. Therefore, BPP and the
Principals agree that they will not, at any time, disclose to any
unauthorized persons or use for his own account or for the benefit
of any third party any Confidential Information, whether BPP and
the Principals have such information in their memory or embodied in
writing or other physical form, without POTN's written consent,
unless and to the extent that the Confidential Information is or
becomes generally known to and available for use by the public
other than as a result of BPP's and/or Principals' fault or the
fault of any other person bound by a duty of confidentiality to
POTN may request, all documents, memoranda, notes, plans, records,
reports, and other documentation, models, components, devices, or
computer software, whether embodied in a disk or in other form (and
all copies of all of the foregoing), relating to the businesses,
operations, or affairs of the Company and any other Confidential
Information that BPP and/or the Principals may then possess or have
under their control.
For purposes of this Agreement, "Confidential Information"
shall mean: (i) any and all trade secrets concerning the business
and affairs of the Company, product specifications, data, know-how,
formulae, compositions, processes, designs, sketches, photographs,
graphs, drawings, samples, inventions and ideas, past, current and
planned research and development, current and planned manufacturing
and distribution methods and processes, customer lists, current and
anticipated customer requirements, price lists, market studies,
business plans, computer software and programs (including object
code and source code), computer software and database technologies,
systems, structures and architectures (and related processes,
formulae, compositions, improvements, devices, know-how,
inventions, discoveries, concepts, ideas, designs, methods and
information, and any other information, however documented, of the
Company that is a trade secret under Florida law; (ii) any and all
information concerning the business and affairs of the Company
(which includes historical financial statements, financial
projections and budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds of key
personnel, personnel training and techniques and materials),
however documented; and (iii) any and all notes, analysis,
compilations, studies, summaries, and other material prepared by or
for the Company containing or based, in whole or in part, on any
information included in the foregoing.
5. Enforcement. In the event of an actual or threatened
breach by BPP and/or the Principals of any of the covenants
contained herein, Company or POTN shall be entitled to an
injunction restraining them from the prohibited conduct.
Notwithstanding the specific provisions of the covenants against
competition set forth herein and the parties' acknowledgement that
the terms and conditions set forth herein are fair and reasonable,
if a court of competent jurisdiction should hold that the duration
and/or scope (geographic or otherwise) of the covenants contained
herein are unreasonable, then, to the extent permitted by law, the
court may prescribe a duration and/or scope (geographic or
otherwise) that is reasonable and the parties agree to accept such
determination, subject to their rights of appeal. Nothing herein
stated shall be construed as ...prohibiting Company or POTN or any
third party from pursuing any other remedies available to it for
such breach or threatened breach, including the recovery of
damages. In any action or proceeding to enforce the provisions of
this Agreement, the prevailing party shall be reimbursed by the
other party for all costs incurred in such action or proceeding
including, without limitation, all court costs and filing fees, and
all reasonable attorneys' fees, incurred either at the trial level
or at the appellate level. The existence of any claim or cause of
action by BPP and/or the Principals against Company or POTN shall
not constitute a defense to the enforcement by Company or POTN of
the foregoing restrictive covenants.
6. Benefit; Assignment. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their
successors, personal representatives, heirs and permitted assigns.
7. Termination. This Agreement may not be terminated by
either party for any reason whatsoever without the prior written
consent of the other party, which consent may be arbitrarily
withheld by the party whose consent is required.
8. Notices. Whenever any notice, payment, or other
communication is required to be given or delivered pursuant to this
Agreement, such notice shall be given in writing and shall be
delivered in person or by certified mail, return receipt requested,
and shall be sufficiently given if personally delivered, or by mail
addressed as follows:
(a) if to POTN: XxxxxXxXxxXxx.xxx, Inc.
0000 XX 00xx Xxxxxx
0
Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxxxxx
with a copy to: Xxxx X. Xxxxxxxxx, Esq.
Xxxxxx & Xxxxxxxxx LLP
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to BPP and
the Principals: Xxxx Xxxxxx
000 XX 00 Xxxxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
with a copy to: Xxxxxxxx Xxxxxx, Esq.
c/x Xxxxxx & Segaul, P.A.
0000 X Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as either party may have by written notice
designated to the other party, given in accordance with this
Paragraph 8.
9. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
10. Headings. Titles or headings in paragraphs contained in
this Agreement are inserted only as a matter of convenience and for
reference and in no way define, limit, extend, or prescribe the
scope of this Agreement or the intent of any provision.
11. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
12. Entire Agreement. This Agreement constitutes the entire
agreement and understanding and supersedes all prior agreements and
understandings, both written and oral, between the parties with
respect to the subject matter hereof.
13. Amendment. This Agreement may not be amended or
modified, except by written agreement of the parties hereto.
14. Waiver. The provisions of this Agreement shall not be
waived, modified or amended, except by a subsequent writing signed
by a duly authorized representative of the party sought to be
bound. Waiver by a party to a breach of any of the terms of this
Agreement by the other party shall not be deemed a waiver of future
compliance herewith, and such terms shall remain in full force and
effect.
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed as of the date first above written.
XxxxxXxXxxXxx.xxx, Inc.
By:_______________________
3
Name:_____________________
Title:____________________
Xxxxxx'x Printing Plus, Inc.
By:_______________________
Name:_____________________
Title:____________________
__________________________
Xxxx Xxxxxx
__________________________
Xxxx Xxxxxx
__________________________
Xxxxxx Xxxxxx
4
SCHEDULE 5.2
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that Xxxxxx'x Printing Plus,
Inc., a Florida corporation, ("Seller"), in consideration of the
sum of $10.00 and other valuable consideration to Seller by
XxxxxXxXxxXxx.xxx, Inc. (the "Buyer"), the receipt whereof is
hereby acknowledged, hereby grants, bargains, sells, transfers and
delivers unto Buyer, all of its right, title and interest in and to
the following listed and identified items:
(a) 1.1 attached;
(b) the Marks and the exclusive right to use the "Xxxxxx'x
Printing Plus" name;
(c) all trade secrets and customer lists;
(d) all original printed material;
(e) all of Seller's telephone and fax numbers used in
connection with the Business (as defined in the parties Asset
Purchase Agreement) ("Business");
(f) all goodwill associated with the Business; and
(g) all product inventory identified in Exhibit B hereto.
Xxxxxx'x Printing Plus, Inc.
By: _________________________________
Name:________________________________
Its: President
SCHEDULE 1.1 ADDITIONAL ASSETS
RECEPTION AREA PRODUCTION AREA:
Savin 9210 Copy Machine with Sorter and Cabinet 42" x 3' Drafting Table w/T-square & Light
6 Extension ProStar 816 Electronic Phone System 3 - 5'x 3' Folding Work Tables
12' x 42" Counter with under counter storage 1 - 40"x 20" Metal Desk
3 - 4' x 10' Shelves 6 - 4 Drawer File Cabinets
1 - 4 1/2' x 2' x 4' x2' Display Shelf 1 - 22"xT'x4' 5 Shelf Work Station on Casters
Work Counters 1 - 5 1/2' x 18" 1 - 3' x2' Bulletin Board
1- 4' x 18" 1 - Lectrojog Electric Jogger
6 - 6' x 30" Folding Work Tables
6 - Counter Stools (24") 1 - 8' x 30" Folding Work Table
9' x 2' Window Shutters 1 - AB Dick 360 Chain
Delivery Alcohol System 1 -
Cash Register Color Press
Alarm System 1 - AB Dick 9810 XC 2 Color Press
1 - AB Dick 9870 D 2 Color Press w/Xxxxxxxx
OFFICE & PREP. AREA Dampening System
2 - Computer Work Stations with Returns 1 - Xxxxxxx Daylight Xxxx Xxxxxx
0 - XX XxxxXxx 0x Xxxxxxx 1 - 31' x 30" Cabinet
2 - Computers/Monitors/with keyboard, mouse & 1 - 40' x 30' Table
speakers 10 Storage Shelve Units
1 - NEC Silentwriter LC890 Laser Primer 1 - Itek t218 Plate Maker
2 - Metal Mesh Utility Carts 1 - 19" Triumph Electric Cutter
8' by 2 1/2' Work Counter with shelves 1 - Challenger Electric Drill Press
1 - Metal Desk w/return 1 - OM Profold Folder
w/scoring & perforating wheels
1 - 3 1/2 ' x 2 1/2' Drafting Table with accessory 1 - SALCO Rapid Saddle Stitch Electric Stapler
holder and drafting arm 1 - SMB 2000 Electric Numbering Machine
5 assorted desk lamps 1 - Gather Ease 8 Station Electric Collator
1 - 5' x 2 1/2' Metal Desk w/return 1 - 6 Shelf Rolling Storage Cart
1 - 1 1/2' x3' Typewriter Table 4 - Secretarial Chairs
2 - IBM Selectric Typewriter 1 - Hand Truck
1 - Check Writer 1 - Craftsman Wet Vac
1 - Tape Calculator 1 - Eureka Upright Vacuum Cleaner
1 - Xxxxxxx Wax Machine 1 - AB Dick "Parts Press"
1 - 3 1/2' x 20" Cabinet w/doors 3 - Fire Extinguishers
1 - 27 1/2" x 22 1/2" Cabinet Assorted Tools
1 - 4' x 38" Drafting Board with drafting arm First Aid Case
3 - Drafting Chairs 3 - Wall Clocks
5 - Secretarial Chairs 1 - 3' Wrapping Paper Dispenser
1 - 4' x 30" Computer Table 1 - 4' x 20' Metal Plate Cabinet
1 - Xxxxxx B540 Fax Phone Assorted Tape Dispensers, Staplers, Calculator and
1 - 23" x 29" Cabinet Office Supplies
3 - 4 Drawer File Cabinets
1 - Whirlpool Microwave
1 - Toastmaster Toaster Oven
1 - Danbee Refrigerator
1 Microwave Utility Cart
Dining Table & 4 Chairs
