EXHIBIT 10.2
TAX FREE EXCHANGE OF ASSETS FOR STOCK
TAX FREE EXCHANGE OF ASSETS FOR STOCK ("this Agreement"),
dated as of August 18, 2009 by and among My Complete Care, Inc. ("Seller"), a
Florida corporation, and NexxNow, Inc. a New York corporation ("Buyer").
RECITALS:
WHEREAS, Seller desires to convey to Buyer, and Buyer desires
to acquire from Seller, in accordance with the provisions of this Agreement, all
or substantially all of the assets of Seller with the exception of certain
assets (the "Excepted Assets") in exchange for 2,000,000 shares of the stock of
Buyer; and,
WHEREAS, subsequent to the exchange of assets for stock, the
shareholders of the Seller will agree to dissolve the Seller, and distribute the
stock, the Excepted Assets, and the Excepted Liabilities to the shareholders of
the Seller in a liquidating distribution which qualifies for a tax free
distribution as to the stock and long term capital gains tax treatment for the
Excepted Assets;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements herein contained, the parties hereto
agree as follows:
ARTICLE I
EXCHANGE OF ASSETS FOR STOCK
SECTION 1.1 ASSETS TO BE EXCHANGED. On the terms and subject
to the conditions of this Agreement including, without limitation, the
provisions of Sections 4.10 and 4.11, on the Closing Date, Seller shall sell,
assign, transfer, convey and deliver to Buyer, and Buyer shall acquire from
Seller, all of Seller's right, title and interest in and to the following assets
of Seller free and clear of all Liens, except Permitted Liens (all such assets,
other than the Excluded Assets, being the "Assets"):
(a) All brands, trade names, trademarks, service marks and
pending applications,( being the "Brands"), and all logos and trade dress, and
any right to recover for infringement including past infringement;
(b) the goodwill relating to the Brands;
(c) All patents listed (the "Patents"), and any right to
recover for infringement including past infringement;
(d) all research and marketing studies owned by Seller which
are associated with the Brands and with Seller's product development efforts as
related to the Brands;
(e) all formula specifications, trade secrets, technical
information, manuals, material specifications, quality assurance and control
procedures, material and safety procedure specifications, and documentation, in
each case for all products sold or which Seller plans to sell under the Brands
(such products, the "Products"), includingbany improvements or line extensions
of the Products, or which are in research and development for sale under the
Brands, and any patent applications relating thereto, and any right to recover
for infringement including past infringement;
(f) all rights of Seller to television, radio and print
advertisements and copy (including all physical embodiments thereof) associated
with the Brands and Products;
(g) all rights of Seller in and to copyrights associated
primarily with the Brands, distribution, production, and advertising sales
services (the "Services") offered by the Seller and any right to recover for
infringement including past infringement;
(h) all rights of Seller (including rights of refund and
offset, deposits, rights to sums of money due, claims, causes of action and
options) relating or pertaining to any contract or contract right;
(i) all customer lists, supplier lists, accounts, invoices,
credit records and performance records associated with the Products or the
Services, described more particularly;
(j) those accounts receivable of Seller and other rights of
Seller to payment for the Products and Services), including, without limitation,
rights to payment that are not evidenced by instruments, whether or not they
have been written off or reserved against as a bad debt or doubtful account in
any financial statement, together with all instruments representing any of the
foregoing, and all rights, title, security and guaranties in favor of Seller
with respect to any of the foregoing (the "Accounts");
(k) all Permits used by Seller in connection with the Products
and Services;
(l) all insurance proceeds and insurance claims of Seller
relating or pertaining to the Assets and, to the extent transferable, the
benefit of and the right to enforce the covenants and warranties, if any, that
Seller is entitled to enforce with respect to all or any part of the Assets
against Seller's predecessors in title to the Assetsl
(m) all tax refunds, credits and/or proceeds thereof; and
(n) trade secrets, know-how, proprietary information, and
other intellectual property used and useful in television broadcasting in all
forms and in all media, whether now known or hereinafter discovered.
SECTION 1.2 ASSUMPTION OF LIABILITIES. On the terms and
subject to the conditions set forth in this Agreement, Buyer shall assume, and
agree to pay, perform and discharge when due:
(a) all of the debts, liabilities and obligations of Seller to
third parties under the Scheduled Contracts that are specifically set forth on
Schedule 1.3 hereto and that are not due prior to Closing, or if no contractual
due date is provided for, are not more than ten (10) days past invoice date at
Closing;
(b) all of the other debts listed on Schedule 1.4 attached
hereto.
(The liabilities listed in clauses (a) and (b) of this Section
1.3 are collectively, the Assumed Liabilities").
SAVE AND EXCEPT, all of the Excepted Assets, described as the
assets directly or indirectly connected to or with contract rights, thereof,
including, but not limited to, accounts, deposits, contract rights, and/or
proceeds therefrom.
SECTION 1.3 EXCLUDED LIABILITIES. Seller's shareholders shall retain,
and be responsible for paying, performing and discharging when due, and Buyer
shall not assume or have any responsibility for:
(a) any federal, state or local franchise, income or other
taxes or fees of any nature whatsoever attributable to the Assets for periods
ending on or prior to the Closing and any penalty (or similar amount) thereon;
(b) any and all products liability lawsuits commenced by third
parties or other products liability claims relating to any of the Products
manufactured prior to Closing, other than Products that constitute Inventory
under Section 1.1(j) and all products liability claims listed on Schedule 2.10
with respect to the Products (such lawsuits and claims, collectively, the
"Products Liability Claims");
(c) any accounts due and payable to third parties by Seller as
of the Closing Date whether or not arising from or primarily related to the
operations of the Assets and including amounts due to third parties as of the
Closing Date under the Scheduled Contracts;
(d) Any obligation or liability of Seller arising out of the
Assumed Liabilities, which are payable or performable prior to Closing; and
(e) any other liability of Seller other than the Assumed
Liabilities.
SECTION 1.4 PURCHASE PRICE. The aggregate purchase price
payable by Buyer shall be two million (2,000,000 shares) of restricted common
voting stock of the Buyer, non-assessable, and free and clear of any liens,
claims, or encumbrances (the "Purchase Price"). On the Closing Date, Buyer will
pay the Purchase Price.
SECTION 1.5 ALLOCATION OF PURCHASE PRICE. The purchase price
shall be allocated based on the requirements of compliance with the Internal
Revenue Code.
SECTION 1.6 PRORATION OF TAXES. With respect to any ad valorem
tax imposed on a periodic basis that relates to a period straddling the Closing
Date, such tax shall be prorated to the Closing Date, and the portion allocable
to the period prior to the Closing Date shall be promptly paid or reimbursed by
Seller, and the portion allocable to the period after the Closing Date shall be
promptly paid or reimbursed by Buyer.
SECTION 1.7 PURCHASE PRICE ADJUSTMENT. NOT REQUIRED.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller, jointly and severally, represents and warrants to
Buyer as follows:
SECTION 2.1 ORGANIZATION AND QUALIFICATION. Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida, with all requisite corporate power and authority to
own, operate and lease its properties and to carry on its business as presently
conducted.
SECTION 2.2 AUTHORIZATION. Seller has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Seller, the performance by Seller of its obligations hereunder, and the
consummation by Seller of the transactions contemplated hereby, have been duly
authorized by the Board of Directors and stockholder of Seller. No other
corporate action on the part of Seller is necessary to authorize the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Seller and constitutes a valid and binding obligation of Seller,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
SECTION 2.3 NO VIOLATION. The execution and delivery of this
Agreement by Seller, the performance by Seller of its respective obligations
hereunder, and the consummation by Seller of the transactions contemplated
hereby do not (a) violate, conflict with or result in any breach of any
provision of the Certificate of Incorporation or Bylaws of Seller, (b) violate,
conflict with or result in a violation or breach of, or constitute a default
(with or without due notice or lapse of time or both) under the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
agreement or other instrument or obligation to which Seller is a party or by
which it or any of its assets is bound, (c) violate any statute, rule,
regulation, order, writ, judgment, injunction or decree of any court or
Governmental Authority by which the Seller or its assets are bound, or (d)
result in the creation of any Lien upon the properties or assets of Seller,
except, in the case of clauses (b), (c) and (d), for such violations, breaches
or defaults as are not, individually or in the aggregate, reasonably likely to
have a Material Adverse Effect.
SECTION 2.4 GOVERNMENT CONSENTS AND APPROVALS. No filing or
registration with, no notice to and no permit, authorization, consent or
approval of any Person or Governmental Authority is necessary for the
consummation by Seller of the transactions contemplated by this Agreement other
than (a) consents and approvals of or filings or registrations with the
Antitrust Division of the United States Department of Justice (the "DOJ")
pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended
(the "HSR Act"), if required (b) those already obtained and (c) consents,
regulations, approvals, authorizations, permits, filings or notifications which
are listed in Schedule 2.4 hereto.
SECTION 2.5 TITLE TO ASSETS. (a) Seller owns and has valid
title to each of the Assets, free and clear
of all Liens other than Permitted Liens, except for the Assets described in
Schedule 2.5, as to which Seller [either (i) owns and has valid title to such
property, free and clear of all Liens other than Liens set forth on Schedule 2.5
that shall be released at Closing and Permitted Liens, or (ii)] has adequate,
enforceable and transferable long-term licenses or other rights to use (without
payment) certain Intellectual Property.
(b) On the Closing Date, each of the Assets shall be
operational and all Liens set forth on Schedule 2.5 shall have been released.
SECTION 2.6 INTELLECTUAL PROPERTY. Except as set forth in
Schedule 2.6 the Seller owns or, if expressly stated on Schedule 2.6, has
validly licensed, all patents, patent rights, trademarks, trademark rights,
trade names, trade name rights, service marks, service xxxx rights, copyrights
and other proprietary intellectual property rights (collectively, "Intellectual
Property"), which are part of the Assets. Except as set forth Schedule 2.6, no
Claims are pending or, to the knowledge of the Seller, threatened that the
Seller or any third party is infringing or otherwise adversely affecting the
rights of any person with regard to the Intellectual Property. To the knowledge
of the Seller, no person is infringing the rights of the Seller with respect to
any of the Intellectual Property.
SECTION 2.7 FINANCIAL STATEMENTS. Schedule 2.6 sets forth the
un-audited pro-forma statements of earnings before taxes of the Assets for the
year ended December 31, 2008 and for the nine months ended September 30, 2009
(such statements, including the related notes thereto, the "Financial
Statements"). The Financial Statements are complete and correct in all material
respects and present fairly the results of operations of the Assets for the
periods indicated.
SECTION 2.8 TAXES. All Taxes that are due and payable by
Seller, other than those presently payable without penalty or interest, have
been timely paid, and Seller has timely filed (and, through and after the
Closing Date, will timely file) all Tax reports and returns required by law to
be filed by it. There are no Tax liens upon any properties or assets of Seller
nor has notice been given of any event which could lead to any such lien. All
monies required for the payment of Taxes not yet due and payable with respect to
the operations of Seller through and including the Closing Date have been
approved, reserved against and entered upon the books and the Seller Financial
Statements. All monies required to be withheld by Seller from employees, if any,
independent contractors, or others or collected from customers for income taxes,
social security and unemployment insurance taxes and sales, excise and use
taxes, and the portion of any such taxes to be paid by Seller to governmental
agencies or set aside in accounts for such purpose have been approved, reserved
against and entered upon the books and the Seller Financial Statements.
Consummation of the transactions will not result in any tax obligations on the
Assets, except as set forth in Schedule 2.8.
SECTION 2.9 SCHEDULED CONTRACTS. (a) The Scheduled Contracts:
(i) do not require payment by any party thereto of more than $10,000; (ii) are
terminable by Seller upon ninety (90) days' notice or less and without the
payment of any material penalty or material termination fee; and (iii) have been
entered into in the ordinary course of business.
(b) Schedule 2.9(c) hereto sets forth a true and correct list
of all contracts of Seller that are material to the Assets (the "Scheduled
Contracts"). Buyer has been provided with true and correct copies of all
Scheduled Contracts(or in the case of oral agreements, complete written
descriptions), and each such Scheduled Contract is in full force and effect
constitute legal, valid and binding obligations of the respective parties
thereto and are enforceable in accordance with their respective terms. Seller
has not committed any breach or default thereunder, nor to Seller's or Parent's
knowledge has any third party to such contracts committed any breach or default
thereunder, in each case, which is reasonably likely to have a Material Adverse
Effect. All such Scheduled Contracts are in the name of Seller and will be
validly assigned to Buyer at the time of the Closing.
(c) As used in this Section 2.9, the word "contract" means and
includes every written agreement of any kind which is legally enforceable by or
against Seller.
SECTION 2.10 LITIGATION. (a) Schedule 2.10 sets forth a list of all lawsuits or
claims pending, or which, to Seller's or Parent's knowledge, are threatened,
against Seller relating to or affecting any of the Assets and which:
(i) involve a Products Liability Claim;
(ii) involve a claim (other than a Products Liability Claim)
against Seller of, or which involve an unspecified amount which is reasonably
likely to result in a liability of, more than $100,000;
(iii) seek injunctive relief, or
(iv) seek any legal restraint on or prohibition against the
transactions contemplated by this Agreement.
(b) The Seller is not a party or subject to any judgment, order, injunction or
decree of any Governmental Authority.
SECTION 2.11 Permits. (a) Seller has all franchises, permits, licenses, waivers,
authorizations and approvals ("Permits") from Governmental Authorities,
including environmental Permits, which are required for Seller to own, sell and
operate the Assets.
(b) There are no material defects in the Permits pertaining to
the ownership, sale or operation of the Assets, and no procedure is pending or,
to Seller's or Parent's knowledge, threatened to revoke or limit any such
Permit.
(c) Following the Closing Date, neither Seller nor Parent will
undertake, directly or indirectly, any challenges to the Permits relating to the
ownership, sale or operation of the Assets.
SECTION 2.12 COMPLIANCE WITH LAWS. The Assets are owned and
operated by Seller in compliance with all applicable Laws, and neither Seller
nor Parent has received any written notice of violation of any Law from any
Governmental Authority relating to any of the Assets or the ownership or
operation thereof.
SECTION 2.13 EMPLOYEES. (a) Schedule 2.13(a) sets forth a list
of all employees of Seller whose primary responsibility is the research,
development, marketing, promotion, production, operation, distribution or sale
of the Products or provision of the Services (the "Designated Employees").
(b) None of the Designated Employees are represented by any
labor organization.
(c) Except as set forth in Schedule 2.13(c), there are no
pending or threatened labor organizing activities, election petitions or
proceedings, unfair labor practice complaints, slowdowns, or work stoppages
known to Seller, involving any Designated Employee.
(d) Seller has complied with all laws, rules and regulations
which relate to wages, hours, discrimination and employment and collective
bargaining, and is not liable for any arrears of wages or any taxes or penalties
for failure to so comply with any of the foregoing in connection with its
employment of the Designated Employees.
SECTION 2.14 EMPLOYEE BENEFIT PLANS. Schedule 2.14 sets forth
a true and complete list of each "employee benefit plan" (within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), each written employment, severance, retention, termination,
consulting or retirement contract, and each bonus or other incentive
compensation, stock purchase, stock option, stock award or other equity-based
compensation (other than any governmental program) maintained by Seller with
respect to the Designated Employees (collectively, "Employee Benefit Plans").
True, correct and complete copies of the Employee Benefit Plans or summary plan
descriptions of such Employee Benefit Plans have been provided to Buyer by
Seller. All employee benefits required to be paid to the Designated Employees
under any Employee Benefit Plans are fully funded and in material compliance
with applicable Law.
SECTION 2.15 INVENTORY. NOT APPLICABLE
SECTION 2.16 CUSTOMERS AND SUPPLIERS. Schedule 2.16 sets forth
a list of names and addresses of all customers and all suppliers accounting for
$10,000 or more of Seller's sales or purchases during the 2009 fiscal year.
There exists no actual termination or cancellation of the business relationship
of Seller with any customer or group of customers or with any supplier or group
of suppliers listed in Schedule 2.16, with respect to which Seller has received
written notice of termination or cancellation as the case maybe. To Seller's
knowledge, no such termination or cancellation has been threatened.
SECTION 2.17 BROKERS' FEES AND COMMISSIONS. NOT APPLICABLE.
SECTION 2.18 ENVIRONMENTAL MATTERS. Except as set forth in
Schedule 2.18 hereto, no notice, citation, summons or order has been issued, no
complaint has been filed, no penalty has been assessed and no investigation or
review is pending or threatened by any Governmental Authority with respect to
(i) any alleged violation, in the conduct of Seller's business, of any
environmental statute, ordinance, rule, regulation or order of any Governmental
Authority; (ii) any alleged failure to have any environmental permit,
certificate, license, approval, registration or authorization required in
connection with the conduct of Seller's business; or, (iii) any generation,
treatment, storage, recycling, transportation or disposal of any hazardous or
toxic substance or waste (including petroleum products and radioactive
materials) generated or used in connection with the conduct of Seller's
business. To the knowledge of Seller, Seller has complied with and is in
compliance with all Environmental Requirements. To the knowledge of Seller,
Seller has not stored, disposed of, arranged for or permitted the disposal of,
transported, handled or released any substance, including, without limitation,
any hazardous substance, pollutant, contaminant or waste, or owned or operated
any facility or property, so as to give rise to liabilities of Seller pursuant
to the Environmental Requirements, including, without limitation, any liability
of response costs, corrective action, natural resources damages, personal
injury, property damage or attorneys fees. To the knowledge of Seller, Seller
has taken no action relating to the past or present facilities, properties or
operations of Seller that will prevent, hinder or limit continued compliance
with the Environmental Requirements, give rise to any investigatory, remedial or
corrective obligations pursuant to the Environmental Requirements, or give rise
to any other liabilities pursuant to the Environmental Requirements, including
any Environmental Requirements relating to onsite or offsite releases or
threatened releases of hazardous or otherwise regulated materials, substances or
wastes, personal injury, property damages or natural resources damage. Seller
has not, either expressly or by operation of law, assumed or undertaken any
liability or corrective or remedial obligations of any other person relating to
Environmental Requirements.
SECTION 2.19 ACCOUNTS. Schedule 2.19 hereto contains a
complete and accurate list of all Seller's Accounts as of the date hereof,
showing the name of each account debtor and the amount due from each by invoice
number and date. All of such Accounts have arisen in the ordinary course of
business for goods sold or services rendered consistent with past practices.
Except as set forth on Schedule 2.19 hereto, to the knowledge of Seller there is
no event or condition with respect to a specific customer that will cause such
Accounts to not be collected in full in due course without resort to litigation
and such Accounts will not be subject to counterclaim or setoff.
SECTION 2.20 INSURANCE. All the insurance policies maintained
by Seller that relate or pertain to the Assets are in full force and effect, all
insurance premiums have been timely paid to date, and no such policy will be
cancelled by Seller prior to Closing. A description of each of such insurance
policies (including, without limitation, insurance providing benefits for
employees) is attached to Schedule 2.20 hereto. Such insurance policies provide
adequate coverage, less deductibles, against the risks involved in the business
and operation of the Assets.
SECTION 2.21 CHANGES SINCE DECEMBER 31, 2008 COMPANY FINANCIAL
STATEMENTS. Except as listed or described on Schedule 2.21 hereto, since
December 31, 2008 there has not been: (a) any Material Adverse Effect in the
financial condition, results of operations, business, business organization or
personnel of Seller, or in the relationships of Seller with vendors, suppliers,
advertisers, customers, or others; (b) any controversy or unsettled grievance
pending or threatened between Seller and any employee of Seller or a collective
bargaining organization representing or seeking to represent any such employee,
or any negotiation or execution by Seller of any collective bargaining agreement
with respect to its employees; (c) any material amendment of any Scheduled
Contract; or (d) any agreement by, or commitment of, Seller to do any of the
foregoing.
SECTION 2.22 INTERNATIONAL SALES. Schedule 2.22 hereto
contains a complete and accurate list of all companies, entities, businesses,
whether subsidiaries of Seller or otherwise, that are currently involved in the
selling of Assets outside of the United States.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
SECTION 3.1 ORGANIZATION AND QUALIFICATION. Buyer is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, with all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
businesses as now being conducted.
SECTION 3.2 Authorization. Buyer has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. No other corporate proceeding on the part of
Buyer is necessary to authorize the execution and delivery of this Agreement or
to consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Buyer and constitutes a valid and binding
obligation of Buyer, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
SECTION 3.3 NO VIOLATION. Neither the execution and delivery
of this Agreement by Buyer, the performance by Buyer of its obligations
hereunder nor the consummation by Buyer of the transactions contemplated hereby
will (a) violate, conflict with or result in any breach of any provision of the
Certificate of Incorporation or Bylaws (or similar organizational document) of
Buyer, (b) violate, conflict with or result in a violation or breach of, or
constitute a default (with or without due notice or lapse of time or both) under
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, agreement or other instrument or obligation to which Buyer is a party
or by which it or any of its assets is bound, (c) violate any statute, rule,
regulation, order, writ, judgment, injunction or decree of any court or
Governmental Authority by which Buyer or its assets is bound, or (d) result in
the creation of any Lien upon the properties or assets of Buyer, except, in the
case of clauses (b), (c) and (d), for such violations, breaches or defaults as
are not, individually or in the aggregate, reasonably likely to have a Material
Adverse Effect.
SECTION 3.4 CONSENTS AND APPROVALS. No filing or registration
with, no notice to and no permit, authorization, consent or approval of any
Person or Governmental Authority is necessary for the consummation by Buyer of
the transactions contemplated by this Agreement other than (a) consents and
approvals of or filings or registrations with the DOJ pursuant to the HSR Act if
required, and (b) consents, regulations, approvals, authorizations, permits,
filings or notifications which, in the aggregate, are not reasonably likely to
have a Material Adverse Effect.
SECTION 3.5 FEASIBILITY. (a) Buyer has the intent and
capability (including the necessary managerial, operational, technical and
financial capability) of competing effectively in the television broadcast
business. Following the Closing Date, Buyer intends to use the Assets as part of
a viable, ongoing broadcast television business.
SECTION 3.6 BROKERS' FEES AND COMMISSIONS. neither Buyer nor
any of its subsidiaries, directors, officers, employees or agents has employed
any investment banker, broker or finder in connection with the transactions
contemplated hereby.
ARTICLE IV
COVENANTS
SECTION 4.1 CONDUCT OF BUSINESS OF SELLER PRIOR TO THE
CLOSING. During the period from the date of this Agreement to the Closing,
Seller shall take all steps necessary to maintain and operate the Assets in
compliance with laws and regulations. Further, during the period from the date
of this Agreement to the Closing, Seller shall carry on its business in
connection with the Assets in the usual, regular and ordinary course, in
substantially the same manner as heretofore conducted and, to the extent
consistent therewith, use all reasonable efforts to preserve intact its goodwill
and on-going business, keep available the services of the Designated Employees
and preserve its relationships with customers, suppliers, licensors, licensees,
distributors and others having business dealings with it.
SECTION 4.2 ACCESS TO INFORMATION. Between the date of this
Agreement and the Closing Date, upon reasonable notice and at reasonable times
without significant disruption to the businesses of Seller, Seller will give
Buyer and its authorized representatives reasonable access to all offices and
other physical facilities related to the Assets, and to all books and records of
the Assets as Buyer may reasonably require, and will cause its officers to
furnish Buyer such financial and operating data and other information with
respect to the Assets, including any and all environmental and other documents
and information related to Permits, and any and all financial, sales, marketing,
operational information with respect to the Assets, as Buyer may from time to
time reasonably request. No investigations by the Buyer or its representatives
shall reduce or otherwise effect the obligation or liability of Seller with
respect to any representations, warranties, covenants or agreements made herein
or in an exhibit, schedule or certificate, instrument, agreement or document
executed or delivered in connection with this Agreement.
SECTION 4.3 ACCESS TO EMPLOYEES. Between the date of this
Agreement and the Closing Date, upon reasonable notice and at reasonable times,
Seller will provide Buyer such information with respect to, and access to, (i)
the Designated Employees and (ii) all other employees of Seller involved in the
research, production, operation, development, marketing and sale of the Assets,
in each case, as Buyer shall reasonably request to enable Buyer to make offers
of employment to such employees. With respect to the Designated Employees only,
Seller shall not otherwise interfere with any negotiations between Buyer and
such Designated Employees with respect to such offers of employment, and Buyer
shall be entitled to employ each of the Designated Employees subject to
consummation of the transactions contemplated by this Agreement. Nothing herein
shall be construed as an obligation on the part Buyer to employ the Designated
Employees or any other employee of Seller. If hired, Buyer shall be under no
responsibility to provide Designated Employees or any other employee of Seller
with the same benefits as provided by Seller, and shall not be required to
assume any of the current employment contracts of the Designated Employees.
SECTION 4.4 BEST EFFORTS; FURTHER ASSURANCES. Subject to the
terms and conditions herein provided, each of the parties hereto agrees to use
their best efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all things necessary, proper and advisable under applicable
Laws to consummate and make effective as expeditiously as possible and in any
event on or prior to the August 30, 2009 the sale of the Assets contemplated by
this Agreement. If at any time after the Closing any further action is necessary
or desirable to carry out the purposes of this Agreement, including, without
limitation, the execution of additional instruments, the parties to this
Agreement shall take all such necessary action.
SECTION 4.5 CONSENTS AND APPROVALS. The parties hereto each
will cooperate with one another and use all reasonable efforts to prepare all
necessary documentation (including, without limitation, furnishing all
information required under the HSR Act if required), to effect promptly all
necessary filings and to obtain all necessary permits, consents approvals,
orders and authorizations of, or any exemptions by, all third parties and
Governmental Authorities necessary to consummate the transactions contemplated
by this Agreement. Each party will keep the other parties apprised of the status
of any inquiries made of such party by the DOJ or any other Governmental
Authority or members of their respective staffs with respect to this Agreement
or the transactions contemplated hereby. The parties shall obtain shareholder
and director approvals of the agreement for a tax-free exchange transaction in a
form of corporate resolutions mutually agreeable, and Seller shall file the
articles of dissolution with the Secretary of State of Florida, with the
distribution of the Assets and the Excepted Assets to the shareholders of the
Seller.
SECTION 4.6 PUBLIC ANNOUNCEMENTS. The parties hereto will
consult with each other and will mutually agree (the agreement of each party not
to be unreasonably withheld) upon the content and timing of any press release or
other public statements with respect to the transactions contemplated by this
Agreement and shall not issue any such press release or make any such public
statement prior to such consultation and agreement, except as may be required by
applicable Law or by obligations pursuant to any listing agreement with any
securities exchange or any stock exchange regulations; provided, however, that a
party which is required to issue a press release or make a public statement
pursuant to applicable Law, a listing agreement with any securities exchange or
a stock exchange regulation, will give reasonable prior notice to the other
parties of thecontent and timing thereof.
SECTION 4.7 DISCLOSURE SUPPLEMENTS. From time to time prior to
the Closing, Seller will supplement or amend the Schedules to this Agreement
with respect to any matter which, if existing or occurring at or prior to the
date of this Agreement, would have been required to be set forth or described in
Schedule or which is necessary to correct any information in such Schedules
which has been rendered inaccurate by an event occurring after the date hereof.
No such disclosure made pursuant to this Section shall be considered to
constitute or give rise to a waiver by Buyer of any condition set forth herein.
SECTION 4.8 NO IMPLIED REPRESENTATIONS OR WARRANTIES. Seller
and Buyer each hereby acknowledge and agree that the other is not making any
representation or warranty whatsoever, express or implied, except those
representations and warranties explicitly set forth in this Agreement or in the
Schedules hereto or in any certificate contemplated hereby and delivered in
connection herewith. SECTION 4.9 Confidentiality. Buyer acknowledges that the
confidential information being provided to it in connection with the sale and
purchase of the Assets contemplated by this Agreement is subject to the terms of
a confidentiality agreement between Buyer and Parent (the "Confidentiality
Agreement"), the terms of which are incorporated herein by reference. Effective
upon, and only upon, the Closing, the Confidentiality Agreement shall terminate
with respect to the manner in which Buyer is obligated to treat confidential
information relating to the Assets; provided that Buyer acknowledges that any
and all other confidential information provided to it by Seller, and it's
representatives concerning Seller's operations other than the Assets shall
remain subject to the terms and conditions of the Confidentiality Agreement
after the Closing Date. Further, effective upon Closing, Seller shall assume the
obligations of Buyer under the Confidentiality Agreement with respect to
confidential information relating to the Assets that were, prior to Closing, the
obligations of Buyer, with the result that following Closing, Seller shall have
the same obligations and Buyer shall have the same rights with respect to the
confidential information relating to the Assets as if Buyer had been the party
whose confidential information was protected under the Confidentiality
Agreement.
SECTION 4.10 FORBEARANCES BY SELLER. Seller covenants that
except as contemplated by this Agreement, Seller shall not, after the date
hereof and prior to the Closing Date, without the prior written consent of
Buyer:
(a) sell any Assets not in the ordinary course of business;
(b) encumber any of the Assets;
(c) enter into any employment, independent contractor
agreement or similar arrangement with any Designated Employee;
(d) take any action, or fail to take any action, the result of
which can reasonably be expected to be a termination of or
default under any Scheduled Contracts or Permits;
(e) amend, modify or terminate, or agree to amend, modify or
terminate any Scheduled Contracts; (f) fail to maintain the
confidential treatment of or otherwise fail to preserve any of
its proprietary rights; or (g) enter into any agreement to do
any of the things described in clauses (a) through (f) above.
SECTION 4.11 APPROVAL OF THIRD PARTIES. As soon as practicable
after the execution of this Agreement, Seller will use its best efforts to
obtain all necessary approvals and consents of all third parties required for
the valid assignment of the Scheduled Contracts or otherwise required on the
part of Seller for the consummation of the transactions (the "Third Party
Consents"). Buyer will reasonably cooperate with Seller in securing any
necessary consents from, or in making any filings with or giving any notice to
any third parties necessary for Seller to comply with this Section 4.11.
Notwithstanding any other provision of this Agreement, to the extent that the
assignment by Seller of any Scheduled Contracts or Permits to be assigned
hereunder shall require the consent or approval of another party thereto, the
consummation of the transactions shall not constitute an assignment or attempt
at an assignment thereof if such assignment or attempted assignment would
constitute a breach thereof. If any Third Party Consent with respect to any one
or more Scheduled Contracts or Permits is not obtained at or prior to Closing,
each party hereto agrees to take whatever action may be necessary to provide
Buyer with the benefits of such Scheduled Contracts and Permits, subject to the
assumption by Buyer of Seller's obligations thereunder. The Seller shall obtain
shareholder and director approvals of the tax free exchange of assets for stock
in a form mutually agreeable, and file the articles of dissolution of Seller
with the distribution of the Assets and the Excepted Assets to the shareholders
of the Seller.
SECTION 4.12 Seller shall give prompt written notice to Buyer
and Buyer shall give prompt notice to Seller of:
(a) any representation or warranty made by it contained in
this Agreement which has become untrue or inaccurate; or
(b) the failure by it to comply with or satisfy in any
material respect any covenant, condition or agreement be complied with or
satisfied by it under this Agreement; provided, however, that such notification
shall not excuse or otherwise effect the representations, warranties, covenants
or agreements of the parties or the conditions to the obligations of the parties
under this Agreement.
SECTION 4.13 EXCLUSIVITY. From and after the date hereof, to
and including the Closing Date, neither Seller nor any stockholders, officers,
directors, employees or agents of either shall directly or indirectly solicit,
initiate or engage in or continue (including without limitation, furnishing any
information concerning the Assets) discussions, inquiries or proposals, or enter
into any negotiations for the purpose or with the intention of leading to any
proposal, concerning the acquisition or purchase by any other party of the
Assets or any part thereof, except in the latter case, in the ordinary course of
business of Seller.
SECTION 4.14 MAINTENANCE OF RECORDS. Buyer and Seller will
keep and maintain for a period of three (3) years from the Closing Date all
material documents and records relating to the Assets. Upon request the parties
shall make such documents and records available to the requesting party or its
designated representatives for inspection and copying, at the requesting party's
expense, during regular business hours in order to permit the requesting party
to (a) prepare for, dispute or respond to any claim, law suit or proceeding,
including without limitation, audits in connection with tax returns, and (b)
comply with Laws applicable to Buyer or Seller or any of their affiliates;
provided, however, that any such inspection pursuant to this Section 4.14 shall
be conducted insuch a manner so as not to unreasonably interfere with the normal
conduct of the business of the party responding to the request.
SECTION 4.15 NO SOLICITATION OR HIRING. Seller covenant and
agree that for a period of twelve months following the date of this Agreement,
they will not directly or indirectly on their own behalf or on behalf of any
third party, employ or engage as a consultant or in any other capacity, any
employee of Buyer without Buyer's consent, excepting the management consultant
agreement.
ARTICLE V
CLOSING CONDITIONS
SECTION 5.1 Conditions to Each Party's Obligations Under this
Agreement. The respective obligations of each party under this Agreement shall
be subject to the fulfillment at or prior to the Closing of the following
conditions:
(a) any waiting period, if any, applicable to the consummation
of the transactions contemplated hereby under the HSR Act shall have expired or
been terminated; and
(b) no injunction, restraining order or other ruling or order
issued by any court of competent jurisdiction or Governmental Authority or other
legal restraint or prohibition preventing the consummation of the transactions
contemplated hereby shall be in effect.
SECTION 5.2 CONDITIONS TO THE OBLIGATIONS OF BUYER UNDER THIS
AGREEMENT. The obligations of Buyer under this Agreement shall be further
subject to the satisfaction, at or prior to the Closing, of the following
conditions:
(a) each of the obligations of Seller required to be performed
by Seller at or prior to the Closing pursuant to this Agreement shall have been
duly performed and complied with in all material respects;
(b) the representations and warranties of Seller contained in
this Agreement which are not qualified with respect to materiality shall be true
and correct, and the representations and warranties of Seller which are
qualified with respect to materiality shall be true and correct in all material
respects, in each case as of the date of this Agreement and as of the Closing as
though made at and as of the Closing (except as to any representation or
warranty which specifically relates to an earlier date, which shall be true and
correct as of such earlier date);
(c) any and all permits, consents, waivers, clearances,
approvals and authorizations of all third parties and Governmental Authorities
which are necessary in connection with the consummation of the transactions
contemplated hereby shall have been obtained, other than items which, if not
obtained, would not have a Material Adverse Effect;
(d) Seller shall have executed and delivered an affidavit, in
a form reasonably satisfactory to Buyer, stating, under penalties of perjury,
Seller's United States taxpayer identification number and that Seller is not a
foreign person within the meaning of Section 1445 of the Code;
(e) There shall have occurred no Material Adverse Effect
(whether or not covered by insurance) in the Assets or business of Seller
relating to the Assets since [Jan 30, 2009];
(f) Any and all amendments or supplements to the Disclosure
Schedules shall be acceptable in form and substance to Buyer, in its absolute
discretion; and
(g) Sellers shall provide an agreement,
SECTION 5.3 CONDITIONS TO THE OBLIGATIONS OF SELLER UNDER THIS
AGREEMENT. The obligations of Seller under this Agreement shall be further
subject to the satisfaction, at or prior to the Closing, of the following
conditions:
(a) each of the obligations of Buyer required to be performed
by it at or prior to the Closing pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects;
(b) the representations and warranties of Buyer contained in
this Agreement which are not qualified with respect to materiality shall be true
and correct, and the representations and warranties of Buyer which are qualified
with respect to materiality shall be true and correct in all material respects,
in each case as of the date of this Agreement and as of the Closing as though
made at and as of the Closing (except as to any representation or warranty which
specifically relates to an earlier date, which shall be true and correct as of
such earlier date);
(c) Seller shall have received a certificate signed by a duly
authorized officer of Buyer certifying as to compliance with Sections 5.3 (a)
and (b); and
(d) any and all permits, consents, waivers, clearances,
approvals and authorizations of all Governmental Authorities which are necessary
in connection with the consummation of the transactions contemplated hereby
shall have been obtained, other than items which, if not obtained, would not
have a Material Adverse Effect.
SECTION 5.4 CASUALTY LOSS. All risk of loss arising out of fire and casualty to
the Assets prior to the Closing Date shall be that of Seller. If, prior to
Closing, any of the Assets are damaged or destroyed by fire or other casualty,
so as to constitute a Material Adverse Effect, Buyer may either terminate this
Agreement by written notice to Seller or proceed to close the transactions made
the subject of this Agreement. If Buyer elects to close despite such damage or
destruction, Buyer at its option may either (a) elect to reduce the Purchase
Price by an amount equal to the diminishment of the value of the damaged Assets,
or (b) pay the Purchase Price upon assignment by Seller of Seller's right, title
and interest in and to all insurance proceeds resulting or to result from said
damage or destruction.
ARTICLE VI
CLOSING
SECTION 6.1 CLOSING. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of Seller or at such other time and place and on such other date as Buyer and
Seller shall agree (the "Closing Date"). Buyer shall, at its option, have the
right to extend the Closing Date by not more than thirty (30) days by giving
written notice thereof to Seller at least three (3) business days prior to the
Closing Date. If Buyer exercises its option hereunder to extend the Closing
Date, the term "Closing Date" as used herein shall mean and refer to such
Closing Date as extended. At the Closing:
(a) Seller shall deliver or cause to be delivered to Buyer the
following:
(i) the certificate described in Section 5.2(c);
(ii) properly executed bills of sale, certificates of
title or other instruments of conveyance of title, in form
reasonably acceptable to Buyer, sufficient to pass title to the
Assets to Buyer, free and clear of all liens; and
(iii) the affidavit described in Section 5.2(e).
(iv) resolutions of requisite majorities of
shareholders and directors approving the Tax Free Exchange of Stock for
Assets and the transaction.
(b) Buyer shall deliver or cause to be delivered to
Seller the following:
(i) the certificate described in Section 5.3(c);
(ii) evidence of payment of the Purchase Price (less
the Holdback Amount) by wire transfer of immediately available funds, to an
account designated by Seller;
(iii) a counterpart signature page to the
Transitional Manufacturing Agreement contemplated by Section 4.10; and
(iv) a counterpart signature page to the License
Agreement contemplated by Section 4.11.
(v) resolutions of requisite majorities of
shareholders and directors approving the Tax Free Exchange of Stock for Assets
and the transaction
ARTICLE VII
TERMINATION AND ABANDONMENT
SECTION 7.1 TERMINATION. This Agreement may be terminated and
the transactions contemplated hereby may be abandoned at any time prior to the
Closing:
(a) by mutual consent of Seller and Buyer;
(b) by either Seller or Buyer: (i) if a court of competent
jurisdiction or Governmental Authority shall have issued an order, decree or
ruling or taken any other action (which order, decree or ruling the parties
hereto shall use their best efforts to lift), in each case permanently
restraining, enjoining or otherwise prohibiting the transactions contemplated by
this Agreement, and such order, decree, ruling or other action shall have become
final and nonappealable; or (ii) if the Closing shall not have occurred on or
before july 31, 2009; provided, however, that the right to terminate this
Agreement shall not be available to any party whose breach of this Agreement has
been the cause of, or resulted in, the failure of the Closing to occur on or
before such date.
SECTION 7.2 PROCEDURE AND EFFECT OF TERMINATION. In the event
of termination and abandonment of the transactions contemplated hereby pursuant
to Section 7.1, written notice thereof shall forthwith be given to the other
parties to this Agreement and this Agreement shall terminate and the
transactions contemplated hereby shall be abandoned, without further action by
any of the parties hereto. If this Agreement is terminated as provided herein,
no party hereto shall have any liability or further obligation to any other
party to this Agreement resulting from such termination except (a) that the
provision of this Section 7.2 and the proviso of Section 7.1(b) shall remain in
full force and effect and (b) no party waives any claim or right against a
breaching party to the extent that such termination results from the breach by a
party hereto of any of its representations, warranties, covenants or agreements
set forth in this Agreement.
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION
SECTION 8.1 INDEMNIFICATION BY SELLER. Seller's shareholders will jointly
indemnify Buyer, its affiliates and each of their respective officers,
directors, employees, stockholders, agents and representatives against, and hold
them harmless from, any loss, liability, claim, damage or expense (including
reasonable legal fees and expenses) suffered or incurred by any such indemnified
party to the extent arising from (i) any breach of any representation or
warranty of Seller and/or Parent which survives the Closing, and (ii) any breach
of any covenant of Seller contained in this Agreement which requires performance
after the Closing Date.
SECTION 8.2 INDEMNIFICATION BY BUYER. Buyer will indemnify Seller, it's
affiliates and each of it's respective officers, directors, employees,
stockholders, agents and representatives against, and hold them harmless from,
any loss, liability, claim, damage or expense (including reasonable legal fees
and expenses) suffered or incurred by any such indemnified party to the extent
arising from (i) any breach of any representation or warranty of Buyer which
survives the Closing, and (ii) any breach of any covenant of Buyer contained in
this Agreement which requires performance after the Closing Date; provided,
however, that Buyer shall not have any liability under clause (i) above unless
the aggregate of all losses, liabilities, costs and expenses relating thereto
for which Buyerwould but for this proviso be liable exceeds on a cumulative
basis an amount equal to $5,000, and provided further, however, that Buyer's
liability under clause (i) above shall in no event exceed $10,000 and under
clause (ii) above shall in no event exceed the Purchase Price.
SECTION 8.3 LIMITATIONS OF LIABILITY; Cooperation. (a) Notwithstanding any
provision herein, none of the parties hereto shall in any event be liable to the
other parties to this Agreement or to such other parties' affiliates, officers,
directors, employees, stockholders, agents or representatives on account of any
indemnity obligation set forth in this Article VIII for any indirect,
consequential, special, incidental or punitive damages (including, but not
limited to, lost profits, loss of use, damage to goodwill or loss of business).
(b) The parties hereto acknowledge and agree that should the
Closing occur, their sole and exclusive remedy with respect to any and all
claims relating to this Agreement, the transactions contemplated hereby, and the
Assets (other than claims of, or causes of action arising from, fraud) shall be
pursuant to the indemnification provisions set forth in this Article VIII . In
furtherance of the foregoing, the parties hereto hereby waive, from and after
the Closing, to the fullest extend permitted under applicable Law, any and all
rights, claims and causes of action (other than claims of, or causes of action
arising from, fraud) which it may have against any of the other parties hereto
and such parties' affiliates arising under or based upon any federal, state,
local or foreign statute, law, ordinance, rule or regulation or otherwise
(except pursuant to the indemnification provisions set forth in this Article
VIII).
(c) The parties shall cooperate with each other with respect
to resolving any claim or liability with respect to which one party is obligated
to indemnify the other party hereunder including by making commercially
reasonable efforts to mitigate or resolve any such claim or liability.
SECTION 8.4 TAX TREATMENT OF PAYMENTS UNDER ARTICLE VIII.
Seller and Buyer mutually agree that unless otherwise required by applicable Law
or a taxing authority, all payments received by an Indemnified Party from an
Indemnifying Party pursuant to the provisions of this Article VIII shall be
treated for tax purposes as an adjustment to the Consideration. Where the
receipt of any such payment is treated for tax purposes in a manner other than
an adjustment to the Consideration, the amount of the payment shall be increased
to take account of any net tax cost actually incurred by the Indemnified Party
in respect thereto. In computing the amount of any such tax cost, the
Indemnified Party shall be deemed to recognize all other items of income, gain,
loss, deduction or credit before recognizing any item arising in respect of a
payment pursuant to this Article VIII.
SECTION 8.5 Termination of Indemnification. The obligations to
indemnify and hold harmless a party hereto (a) pursuant to Sections 8.1(i) or
8.2(i) (I.E. ON ACCOUNTOF A BREACH OF A REPRESENTATION OR WARRANTY), shall
terminate when the applicable representation or warranty terminates pursuant to
Section 10.12 and (b) pursuant to any other clause(s) of Section 8.1 or 8.2
shall not terminate; provided, however, that as to clause (a) of this Section
8.5, such obligation to indemnify and hold harmless shall not terminate with
respect to any item as to which the person to be indemnified or the related
party thereto shall have, before the expiration of the applicable period,
previously made a claim by delivering a notice of such claim (stating in
reasonable detail the basis of such claim to the indemnifying party).
ARTICLE IX
DEFINITIONS
SECTION 9.1 DEFINITIONS. As used in this Agreement, the
following terms have the following meanings:
"affiliate" means a person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
another person.
"Agreement" means this Asset Purchase Agreement, including all Schedules and
exhibits attached to it, as the same may be amended or supplemented from time to
time in accordance with its terms.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Environmental Requirements": All federal, state, foreign and local laws,
statutes, codes, rules, regulations, ordinances, judgments, orders, decrees and
the like of any Governmental Authority, and all obligations concerning public
health and safety, worker health and safety, or pollution or protection of the
environment, including all those relating to the presence, use, production,
generation, handling, transport, treatment, storage, disposal, distribution,
labeling, testing, processing, discharge, release, threatened release, control
or cleanup of any hazardous or otherwise regulated materials, substances or
wastes, chemical substances or mixtures, pesticides, pollutants, contaminants,
toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated
biphenyls, noise or radiation.
"Governmental Authority" means any government or governmental or regulatory body
thereof, or political subdivision thereof, whether federal, state, local or
foreign, or any agency, instrumentality or authority thereof, or any court or
arbitrator (public or private).
"Law" means any federal, state, local or foreign law (including common law),
statute, code, ordinance, rule, regulation or other requirement.
"Liens" means all claims, liens, security interests, pledges, leases,
conditional sale contracts, rights of first refusal, options, charges,
liabilities, obligations, agreements, easements, powers of attorney,
limitations, reservations, restrictions and other encumbrances of any kind.
"Material Adverse Effect" means a material adverse effect on the business,
operations, liabilities, properties, assets or financial condition of Seller, or
in the ability of Seller to consummate the sale of the Assets contemplated by
the Agreement; and in the case of Buyer, means a material adverse effect on the
business, operations, liabilities, properties, assets or financial condition of
Buyer or in the ability of Buyer to consummate the purchase of the Assets
contemplated by the Agreement.
"Permitted Liens" means collectively, mechanics', carriers', workmen's
repairmen's or other like liens arising or incurred in the ordinary course of
business; liens for taxes, assessments and other governmental charges which are
not due and payable or which may thereafter be paid without penalty; and other
imperfections of title or encumbrances, if any, none of which liens, title
imperfections or encumbrances would individually or in the aggregate is
reasonably likely to have a Material Adverse Effect. "Person" means an
individual, corporation, partnership, joint venture, association, trust,
unincorporated organization or, as applicable, any other entity.
"Scheduled Contracts" means contracts and agreements with third parties relating
to the sale of promotion and placement of the Products or other products, which
Seller plans to sell under the Brands or which are in research and development
for sale under the Brands, including without limitation supply agreements,
purchase and sale orders, agreements with retailers and licensing agreements.
"Taxes" means any federal, state, local or foreign income, sales, excise, real
or personal property or other taxes, assessments, fees, levies, imposts, duties,
deductions or other charges of any nature whatsoever (including, without
limitation, inherent or implied by an law, role or regulation
SECTION 9.2 SINGULAR/PLURAL. The terms defined in the singular have a comparable
meaning when used in the plural, and vice versa.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 AMENDMENTS AND WAIVERS. (a) This Agreement may be
amended, modified or supplemented only by a written instrument executed by all
of the parties hereto.
(b) The provisions of this Agreement may be waived only by an
instrument in writing executed by the party granting the waiver. The waiver by
any party to this Agreement of a breach of any provision of this Agreement shall
not operate or be construed as a further or continuing waiver of such breach or
as a waiver of any other or subsequent breach. No failure on the part of any
party to exercise, and no delay in exercising, any right, power or remedy under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of such right, power or remedy by such party preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
SECTION 10.2 FURTHER ASSURANCES. If at any time after the
Closing, Buyer reasonably determines that any further conveyances, assignments,
certificates, filings, instruments or documents or any other things are
necessary or desirable to vest, perfect or confirm in Buyer title to any of the
Assets or to otherwise consummate the transactions contemplated by this
Agreement, Seller will, upon request, promptly execute and deliver all such
proper deeds, assignments, certificates, filings, instruments and documents and
do all things reasonably necessary and proper to vest, perfect or confirm title
to such Assets in Buyer and otherwise to carry out the purposes of this
Agreement.
SECTION 10.3 SEVERABILITY. The invalidity or unenforceability
of any provision of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement, which shall remain in
full force and effect.
SECTION 10.4 EXPENSES AND OBLIGATIONS. Except as otherwise
provided elsewhere in this Agreement, each party shall be responsible for its
costs and expenses, including all fees and expenses of attorneys, investment
bankers, lenders, financial advisors and accountants, in connection with the
negotiation, execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby, whether or not such transactions are
consummated.
SECTION 10.5 PARTIES IN INTEREST. This Agreement shall inure
to the benefit of and be binding upon Buyer, Seller, and their respective
successors and permitted assigns. Nothing in this Agreement, expressed or
implied, is intended to confer on any person other than Buyer, Seller, Parent,
and their respective successors and permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
SECTION 10.6 NOTICES. All notices, requests, demands and other
communications which are required or may be given under this Agreement must be
in writing and be addressed to the party to be notified and sent to the address
or facsimile number indicated below. All such notices, requests, demands and
communications will be deemed to have been given: (a) if delivered personally
when delivered, (b) if sent by telecopy or facsimile, upon transmission, (c) if
delivered overnight by a recognized air courier service, with all charges
prepaid, one business day after deposit with the service, and (d) if sent by
registered or certified mail, return receipt requested, with proper postage
prepaid, upon actual receipt.
Notices to Buyer:
NexxNow, Inc.
Notices to Seller:
My Complete Care, Inc.
SECTION 10.7 GOVERNING LAW. This Agreement and the legal
relations between the parties hereto shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be enforced in such state and without regard to the principles thereof
relating to conflicts of law.
SECTION 10.8 COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement. SECTION 10.9
Headings. The article and section headings contained in this Agreement are
solely for the purpose of reference, are not part of the agreement of the
parties and shall not affect in any way the meaning or interpretation of this
Agreement.
SECTION 10.10 ENTIRE AGREEMENT. This Agreement, including the
Schedules and exhibits attached hereto, and the Confidentiality Agreement embody
the entire agreement and understanding of the parties hereto in respect of the
subject matter contained herein or therein. There are no agreements,
representations, warranties or covenants other than those expressly set forth
herein or therein. This Agreement, including the Schedules and exhibits attached
hereto, and the Confidentiality Agreement supersede all prior agreements and
understandings between the parties with respect to such subject matter.
SECTION 10.11 ASSIGNMENT. This Agreement and the rights and
obligations hereunder shall not be assignable or transferable by Buyer, Seller
(including by operation of law in connection with a merger, or sale of
substantially all the assets, of any party hereto) without the prior consent of
the other parties hereto. Any attempted assignment in violation of this Section
10.11 shall be void.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
NexxNow, Inc.
By: /s/XXXX X. XXXXXXXX
_______________________
Name: Xxxx X. Xxxxxxxx
Title: Chairman/CEO
My Complete Care, Inc.
By: /s/ XXXXX XXXXXX
_______________________
Name: Xxxxx Xxxxxx
Title: President
