ASSET PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") made and entered into as of January 14,
2000, by and among XXXXXXXXXXXXX.XXX, INC., a Delaware corporation having a
principal place of business at 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 ("Seller"), and XXXXXXXX.XXX, INC., a Florida corporation
having a principal place of business at 0000 X. Xxxxxxxx Xxxx Xxxx, Xxxxx 000,
Xxxx Xxxxx, Xxxxxxx 00000 ("Buyer").
W I T N E S S E T H :
WHEREAS, Seller owns and operates an unincorporated business under the
name "Xxxxxxxx.xxx" (the "Business"); and
WHEREAS, the parties desire that Buyer purchase all of the assets of
Seller used or useful in the operation of the Business as described herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties, intending to be legally bound, agree as follows:
1. PROPERTY AND LIABILITIES.
1.1 Assets to be Conveyed. Seller hereby agrees to sell,
assign, transfer, convey and deliver to Buyer the following (the "Assets"):
(a) All the fixed and tangible personal property used
in the operation of the Business, which is described in Exhibit "1.1(a)"
attached hereto and made a part hereof.
(b) The contracts and other agreements, if any,
listed or described in Exhibit "1.1(b)," attached hereto and made a part hereof
(the "Contracts").
(c) All of Seller's right, title and interest in and
to the names "Travlang" and "Xxxxxxxx.xxx" and all other tradenames,
servicemarks, logos, copyrights and similar materials or rights used to identify
or promote the Business (the "Promotional Rights"). Immediately after closing,
Seller shall discontinue all use of the Promotional Rights, including without
limitation the names "Travlang" and "Xxxxxxxx.xxx" and all similar names and
abbreviations thereof.
(d) All of Seller's right, title and interest in the
goodwill and other intangible property used in the operation of the Business,
including, but not limited to, all magnetic media, electronic data processing
files, systems and programs, telephone number or numbers, patents, trade
secrets, know-how, domain names, sales and operating plans, customer and supply
lists, and non-competition covenants.
(e) All Seller's right, title and interest in any
licenses, permits and authorizations issued by any federal, state or local
regulatory agencies that are used in the operation of the Business to the extent
the same are transferrable.
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(f) All business records of Seller used in the
operation of the Business and not relating solely to Seller's internal affairs,
in whatever medium they may be stored (the "Business Records"), subject to
Seller's right, after closing, to have access thereto and make copies thereof
pursuant to Article 11 hereof. The Business Records shall include, without
limitation, all books of account, customer lists, supplier lists, employee
personal files, business studies, consultants' reports, budgets and financial
reports and projections.
(g) All of Seller's right, title and interest in
property used in the operation of the Business not otherwise included in
subparagraphs (a) through (h) above shall be included property and shall be
conveyed or transferred by Seller to Buyer; provided, however, that the
following shall be excluded property (the "Excluded Property") and shall not be
conveyed to Buyer:
(1) Such books and records as pertain solely
to the organization, existence and capitalization of Seller;
(2) Seller's cash and cash equivalents on
hand or in banks, certificates of deposit, money market funds, securities and
similar type investments as of the closing date (hereinafter defined);
(3) Except to the extent otherwise noted
herein, all employee pension benefit and profit-sharing plans, all trusts
established thereunder and all assets thereof;
(4) Seller's personal computers on which the
Business' financial and other business data reside.
1.2 Liabilities to be Assumed. On the closing date
(hereinafter defined), Buyer shall assume only those liabilities of Seller
specifically set forth in Exhibit "1.2" hereto (the "Liabilities").
1.3 Collection of Accounts Receivable. Commencing on the
Closing Date, Buyer shall use its best efforts to collect those accounts
receivable of Seller set forth in Exhibit 1.3 hereto. Upon receipt and clearance
of payment of any of Seller's accounts received by Buyer, Buyer shall forthwith
forward to Seller such account payments. Buyer shall provide Seller monthly at
the end of each month commencing February 1, 2000, and ending May 1, 2000, a
statement of the dollar amount and source of all of Seller's accounts received
by Buyer in such reporting month.
2. CLOSING DATE AND INSPECTION PERIOD.
2.1 The closing of this Agreement (the "Closing") shall occur
on or before January 14, 2000, at 10:00 A.M. (the "Closing Date") in the offices
of Buyer or at such other location as mutually agreed to by Buyer and Seller.
The Closing Date may be extended only by the mutual written consent of the
parties.
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2.2 Commencing upon the date of execution of this Agreement and
continuing until the Closing Date (the "Investigation Period"), the Buyer may,
in Buyer's sole discretion, review all books and records relating to the
Business and the Assets, including but not limited to all accounting records and
support documents, all governmental licenses, all inventory, customer lists,
material contracts, the premises at which the Business is located, and all
documents relating to the management, operation, maintenance or ownership or use
of the Assets and the Business. Buyer and its agents shall have the right to
make copies of such books, documents and records and to conduct such review as
Buyer deems appropriate.
3. PURCHASE PRICE AND METHOD OF PAYMENT.
3.1 Purchase Price. The purchase price of the Assets (the
"Purchase Price") shall be (i) Two Hundred Fifty Thousand Dollars ($250,000)
payable as provided in this Agreement (ii) Buyer's delivery to Seller at Closing
a certificate, duly legended in conformity with applicable securities law
requirements, for 250,000 shares of restricted common stock of iiGroup, Inc., a
Delaware corporation which is the parent company of Buyer; and (iii) Buyer's
agreement, which shall be self-executing without further documentation at
Closing, that for a period of one year from Closing no company other than Seller
shall advertise or be promoted as a gourmet food products provider on Buyer's
Xxxxxxxx.xxx website.
3.2 Payment of the Cash Portion of the Purchase Price. Seller
hereby confirms that prior to the date of this Agreement Buyer has deposited
with Seller Forty Thousand Dollars ($40,000) as a payment against the cash
portion of the Purchase Price. The balance of the cash portion, being Two
Hundred Ten Thousand Dollars ($210,000), shall be paid as follows:
(i) $50,000 shall be paid in cash at Closing;
(ii) $100,000 shall be paid on or before February 15,
2000; and
(iii) $60,000 shall be paid by Buyer's assumption of the
Liabilities at Closing.
The payment of $100,000 set forth in subparagraph (ii) shall
be evidenced by the Buyer's unsecured promissory note in the form of Exhibit 3.2
hereto (the "Note").
3.3 Consulting Agreement. Buyer shall assume Seller's
consulting agreement with Xxxxxxx X. Xxxxxx in the form of Exhibit 3.3 hereto
("Consulting Agreement").
4. APPORTIONMENT OF INCOME AND EXPENSES.
In the event this transaction is ultimately closed on the
Closing Date or another date mutually agreeable to Seller and Buyer, Seller
shall be entitled to all income earned by Seller from the operation of the
Business until 11:59 p.m. on the day immediately preceding the Closing
regardless of whether it was received prior to Closing. Upon Closing, Buyer
shall be entitled to all income earned from the operation of the Business after
11:59 p.m. on the day immediately preceding the Closing regardless of when such
sum is received. In the event this transaction does not close, no such
apportionment of income shall occur.
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5. EMPLOYEES.
Seller shall be responsible for the payment of all
compensation due to Seller's employees through 11:59 p.m. on the day immediately
preceding Closing, including without limitation all sales commissions,
profit-sharing and the like arising from the operation of the Business.
6. NONCOMPETITION COVENANT.
Except as otherwise provided herein, Seller covenants and
agrees that for a period of two (2) years after the Closing, it shall not, for
its account or as agent, consultant or employee, or as a shareholder (except as
a passive shareholder in a New York Stock Exchange or NASDAQ company) of any
corporation or a member of any partnership, (i) engage in, invest in, or
otherwise be connected with any business competitive with the Business, directly
or indirectly, in any jurisdiction in which Seller does business from
time-to-time; (ii) take any action to finance or provide any other material
assistance to any person or entity engaged in such competition against Buyer;
(iii) without Buyer's prior written consent, offer employment to or solicit an
offer of employment from any employee of Buyer, or attempt to influence any
employee of Buyer to terminate his or her employment with Buyer; or (iv)
encourage or entice any customer or independent contractor of the Buyer to cease
doing business with the Buyer. Seller acknowledges that compliance with the
provision of this paragraph is of material importance to Buyer and that in the
event of any breach of the foregoing provisions Buyer could not be reasonably or
adequately compensated by monetary damages. Therefore, Seller agrees that Buyer
shall be entitled to injunctive or other equitable relief in the event of a
breach or threatened breach of this paragraph by Seller, in addition to, and not
in lien of, any other relief to which Buyer may be entitled.
7. CLOSING.
7.1 Seller's Performance. Prior to or on the Closing Date of
this Agreement, Seller shall deliver to Buyer:
(a) Third-Party Consents. Except as otherwise
provided herein, all third-party consents, assignments or approvals otherwise
required for Buyer's assumption of any contracts, leases and agreements as are
binding on Seller pursuant to the present terms of such contracts, leases and
agreements. This provision shall not require Seller to undertake any
extraordinary measures to secure any required third-party consents, assignments
or approvals and shall not require Seller to pay for or to undertake any
extraordinary measures or to institute litigation against any third-party
failing to give such required consent, assignment or approval; however, if
Seller fails to deliver any material covenant, assignment or approval required
by this Paragraph 7.1(a), Buyer shall have the absolute right to terminate this
Agreement.
(b) A xxxx of sale in the form of Exhibit 7.1(b)
attached hereto.
7.2 Buyer's Performance. Prior to or at Closing Buyer shall
deliver to Seller:
(a) Assumption Agreements. Such assumption agreements
and other instruments and documents as are reasonably required to make, confirm
and evidence Buyer's assumption of and obligation to pay, perform and discharge
the obligations of Seller assumed hereby or to be performed after the closing.
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(b) Purchase Price. The cash payment to be made at
Closing and to be paid as provided in Paragraph 3 above and the delivery of all
other documents or instruments necessary or appropriate for the consummation of
this transaction. After closing, the parties shall execute such other
instruments and documents and perform such other acts as may be necessary or
appropriate for the full implementation and consummation of this Agreement.
(c) Assumption of Consulting Agreement. Buyer shall
assume the Consulting Agreement.
8. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
Seller hereby represents, warrants and covenants as of the
date of execution of this Agreement and as of the Closing Date, as follows:
8.1 Existence and Power. Seller has full power and authority
to carry on the Business as now being conducted and to enter into and to perform
this Agreement.
8.2 Binding Agreement. The execution, delivery and performance
of this Agreement by Seller have been duly authorized by all necessary action.
This Agreement has been duly executed and delivered to Buyer and constitutes a
legal, valid and binding agreement of Seller, enforceable in accordance with its
terms.
8.3 Effect of Agreement. The execution, delivery and
performance of this Agreement by Seller and the consummation of the transactions
contemplated hereby will not, with or without the giving of notice and the lapse
of time, or both, (a) violate any provision of law, statute, rule or regulation
to which the Seller is subject; (b) violate any judgment, order, writ or decree
of any court applicable to the Seller; (c) have any effect on any of the
permits, licenses, orders or approvals referred to in Paragraph 8.5 hereof or
the ability of Buyer to make use of such permits, licenses, orders or approvals;
or (d) result in the breach of or conflict with any term, covenant, condition or
provision of, result in the modification or termination of, constitute a default
under, or result in the creation or imposition of any lien, security interest,
charge or encumbrance upon any of the properties or assets of the Seller
pursuant to commitments, contracts or other agreements or instruments to which
the Seller is a party or by which any of his respective Assets is or may be
bound or affected.
8.4 No Violation. The execution, delivery and performance of
this Agreement by Seller and the consummation of the transaction contemplated
hereby will not, with or without the giving of notice or the lapse of time or
both, violate, contravene, or conflict with or result in a material breach of or
constitute a default or accelerate the performance required under (i) any writ,
order, judgment or decree of any court, arbitrator or governmental agency
applicable to Seller; (ii) any law, rule or regulation applicable to Seller or
to the operation of the Business; or (iii) any mortgage, deed of trust, lien,
lease, restriction or other contract or agreement to which Seller is a party or
by which any of the Assets is bound.
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8.5 Compliance with Applicable Laws. To the best of Seller's
knowledge, (i) Seller is not in default in any material respect under any
executive, legislative, judicial, administrative or private (such as
arbitration) ruling, order, writ, injunction or decree; and (ii) no material
permits, licenses or approvals of any governmental or administrative authorities
are required for Seller to own, lease and operate its properties and to carry on
the Business substantially as presently conducted except as set forth in Exhibit
"8.4" hereto.
8.6 Government and Other Consents. No consents, authorization
or approval of, or exemption by, any governmental or public body or authority is
required in connection with the execution, delivery and performance by the
Seller of this Agreement or any of the instruments or agreements herein referred
to, or the taking of any action herein contemplated.
8.7 Title to Properties; Absence of Liens and Encumbrances,
Etc. The Seller has good title to all properties and assets free and clear of
all mortgages, claims, liens, charges and encumbrances except as (i) referred to
in Exhibit "8.7" to this Agreement, and (ii) such imperfections of title, if
any, which do not materially detract from the value, or interfere with the use,
of the properties of the Seller or otherwise materially impair its business
operations. No default or event of default exists and no event which with notice
or lapse of time (or both) would constitute a default has occurred and is
continuing under the terms or provisions, express or implied, of any of such
leases, agreements or other instruments or under the terms or provisions of any
agreement to which any of such properties is subject. The Seller has not
received notice of violation of any applicable law, ordinance, regulation, order
or requirement relating to its operations or its owned or leased properties.
8.8 Condition of Equipment. The equipment owned, operated, or
leased by the Seller are in good condition and repair and suitable for the uses
for which intended. All such equipment is in conformity with all applicable
laws, ordinances, regulations, orders, and other requirements relating thereto
currently in effect or scheduled to come into effect.
8.9 Contracts. The contracts listed or described in Exhibit
"8.9" include all the contracts to which Seller is a party or by which Seller is
bound and which have a material effect on Seller's revenues or expenses. To the
best of Seller's knowledge, except as set forth in Exhibit 8.9.1 hereto: (i)
each contract is in full force and effect and is unimpaired by any acts or
omissions of Seller or Seller's officers, directors, employees or agents; (ii)
there has not occurred as to any contract any material default by Seller or any
event which, with the lapse of time or otherwise will become a material default
of Seller; and (iii) there has not occurred as to any contract any material
default by the other parties thereto or any event which, with the lapse of time
or the election of any person other than Seller, will become a default under
such contract. Except as set forth in Exhibit 8.9.1 hereto, neither the Seller,
nor to the knowledge of the Seller any other party, is in arrears in respect of
the performance or satisfaction of the terms or conditions on its part to be
performed or satisfied under any of the contractual commitments and no waiver or
indulgence has been granted by any of the parties thereto. Seller has no
knowledge of any loss or expected loss of any business relationship of the
Seller, whether with a customer, supplier, or significant employee. There are no
existing laws, regulations or decrees nor, to the knowledge of the Seller, any
proposed laws, regulations or decrees which adversely affect or might adversely
affect the rights of the Seller under any of its existing contracts by reason of
the present ownership by the Business or by reason of the proposed sale of the
Assets by the Seller to the Buyer as contemplated by this Agreement.
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8.10 Compliance with Labor Laws. To the best of Seller's
knowledge, Seller is in compliance with all applicable laws, rules and
regulations relating to the employment of labor, including those relating to
wages, hours, equal employment opportunity, collective bargaining, pension and
welfare benefit plans, and the payment of Social Security and similar taxes, and
is not liable for any arrears of wages or any tax penalties for failure to
comply with any of the foregoing.
8.11 Litigation. To the best of Seller's knowledge, there is
no litigation, action, suit, investigation or other proceeding pending or
threatened that may give rise to any claim against any of the Assets, or which
may adversely affect the Business to be acquired by the Buyer hereunder, or
which may adversely affect Seller's ability to perform in accordance with the
terms of this Agreement, and Seller is not aware of any facts that could
reasonably result in any such proceeding.
8.12 Liabilities. The financial information contained in
Exhibit "8.12" delivered by Seller to Buyer prior to the execution of this
Agreement (the "Financial Statements") fairly represents the financial condition
and results of operations of the Business at the time and for the dates the
Financial Statements were prepared and contains a complete, correct and accurate
list of all assets and liabilities of Seller as of the date noted in such
financial information.
8.13 Tax Matters. The Seller has: (i) prepared and filed with
the appropriate governmental agencies, and all foreign countries and political
subdivisions thereof, if applicable, all tax returns required to be filed; (ii)
paid all taxes shown on such tax returns to be payable or which have become due
pursuant to any assessment, deficiency, notice, 30-day letter or similar notice
received by it; and (iii) paid all withholding, FICA and other federal, state
and local tax payments required to be paid. Any provisions for income taxes
payable in the financial statements are sufficient for all accrued and unpaid
domestic and foreign taxes, whether or not disputed and for all periods to and
including the date of the Financial Statements. The Seller has not executed or
filed with the Internal Revenue Service or any other taxing authority any
agreement extending the period for assessment or collection of any income taxes
nor is it a party to any pending action or proceeding by any governmental
authority for assessment or collection of taxes, and no claim for assessment or
collection of taxes has been, or with reasonable cause could be, asserted
against it.
8.14 Operations Prior to Closing. Between the date of this
Agreement and the Closing:
(a) Seller will operate the Business in the usual,
regular and ordinary manner; and, to the extent consistent with such operation,
has used and will use his best efforts to (i) preserve Seller's present business
organization intact; (ii) keep available the services of Seller's employees; and
(iii) preserve Seller's business relationship with customers, suppliers and
others having business dealings with it.
(b) Seller will advise Buyer of any material changes
in its financial condition or the results of its operations.
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8.15 No Brokers or Commissions. Seller has not engaged any
brokers, finder or similar individuals in connection with this transaction.
Seller hereby agrees to indemnify, defend and hold harmless Buyer on account of
any commissions, fees, expense, or other compensation due to any other broker
which Seller has employed, or which claims to have been employed, in connection
with the sale of the Business to the Buyer.
8.18 Agreements, Plans, Arrangements. Except as set forth in
Exhibit "8.9," or on any other Exhibit hereto, the Seller is not a party to, nor
are any of its respective properties and assets bound or affected by, any
(a) agreements for the purchase or sale of goods,
materials, supplies, machinery or capital assets in excess of $5,000 in any one
case or in excess of $10,000 in the aggregate;
(b) agreement with any labor union;
(c) agreement with any distributor, dealer, sales
agent or representative;
(d) agreement with any manufacturer or supplier with
respect to discounts or allowances;
(e) agreement guaranteeing, indemnifying or otherwise
becoming liable for the obligations or liabilities of another;
(f) except as set forth in Exhibit 8.18(f), agreement
granting any person a lien, security interest or mortgage on any property or
asset of the Seller, including, without limitation, any loan agreement, any
factoring agreement or agreement for the assignment of accounts receivable or
inventory;
(g) advertising agreement with a newspaper, magazine
or radio or television station;
(h) agreement which restricts it from doing business
anywhere in the world;
(i) agreement, statute or regulation giving any party
the right to renegotiate or require a reduction in prices or the repayment of
any amount previously paid; or
(j) other agreement affecting the Seller or the
Business except written contracts for the purchase or sale of goods or services
made in the usual and ordinary course of business terminable without liability
to the Seller upon notice to the other party thereto of not more than thirty
(30) days and not otherwise referred to above.
8.19 Purchase or Sale Obligations. All unfilled purchases and
sales orders and other commitments for purchases and sales made by the Seller
were made in the usual and ordinary course of its business at the then current
market prices. None of such orders or commitments call for deliveries thereunder
beyond a period of ninety (90) days from the Closing.
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8.20 Books and Records. The books of account and other
financial and corporate records of the Seller are in all material respects
complete and correct, are maintained in accordance with good business practices,
and are accurately reflected in the Financial Statements.
8.21 No Material Misrepresentations or Omissions. The
representations of Seller in this Agreement and the Exhibits hereto, including
without limitation the Financial Statements, do not now, nor shall they at
Closing, contain any untrue statement of a material fact, nor do this Agreement
and the Exhibits hereto now omit, nor will they omit at Closing, to state any
material fact, necessary to make the representations of Seller not misleading.
9. BUYER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Buyer hereby
represents, warrants and covenants as of the date of execution of this Agreement
and as of Closing as follows:
9.1 Existence and Power. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida, with full power under its Articles of Incorporation and Bylaws to enter
into and to perform this Agreement.
9.2 Binding Agreement. This Agreement has been duly executed
and delivered to Seller and constitutes the legal, valid and binding agreement
of Buyer enforceable in accordance with its terms.
9.3 No Violation. The execution, delivery and performance of
this Agreement by Buyer and the consummation of the transaction contemplated
hereby will not, with or without the giving of notice or the lapse of time or
both, violate, contravene or conflict with or result in a breach of or
constitute a default under (i) any writ, order, judgment or decree of any court
arbitrator or governmental agency applicable to Buyer; (ii) Buyer's Articles of
Incorporation or Bylaws; (iii) any contract, lease or other agreement to which
Buyer is a party or by which Buyer is bound; or (iv) to the best of Buyer's
knowledge, any law, rule or regulation applicable to Buyer.
9.4 No Brokers or Commissions. Buyer has engaged no brokers,
finders or similar individuals in connection with this transaction.
10. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION.
10.1 Survival of Representations and Warranties. All of the
representations and warranties of the Seller and the Buyer herein contained
shall survive the Closing for a period of twenty-four (24) months with respect
to any investigation made by or on behalf of either party and with respect to
any breach thereof.
10.2 Buyer's Right to Indemnification. Seller undertakes and
agrees to (a) indemnify, defend and hold harmless Buyer against and in respect
of, and (b) reimburse Buyer upon demand for and against, any and all losses,
costs, liabilities, claims, obligations and expenses, including reasonable
attorneys' fees, incurred or suffered by Buyer arising from (i) the
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operation of the Business or ownership of the Assets prior to Closing; (ii) the
breach, misrepresentation or other violation of any of Seller's covenants,
warranties or representations contained in this Agreement; (iii) all liabilities
of Seller not expressly assumed by Buyer pursuant to this Agreement; (iv) all
liens, charges or encumbrances on any of the Assets which are not expressly
disclosed to Buyer by Seller in this Agreement; and (v) all claims for damages
made by any party to a Contract whose claim for damages is based on the premise
that Seller breached that Contract by assigning same to Buyer. The obligations
under this Paragraph 10.2 shall cease and terminate three years from the Closing
Date and Buyer shall have no right of indemnification unless such claim for
indemnification is made within three years from the Closing Date.
10.3 Seller's Right to Indemnification. Buyer undertakes and
agrees to hold Seller harmless against any and all losses, costs, liabilities,
claims, obligations and expenses, including reasonable attorneys' fees, incurred
or suffered by Seller arising from (i) the operation of the Business after
Closing; (ii) breach, misrepresentation or other violation of any of Buyer's
covenants, warranties and representations contained in this Agreement; (iii) all
liabilities of Buyer and all Liabilities of Seller which are assumed by Buyer;
and (iv) all liabilities of the Business accruing after the Closing Date.
Buyer's obligations under this Paragraph 10.3 shall cease and terminate three
years from the Closing Date and Seller shall have no right of indemnification
unless such claim for indemnification is made within three years from the
Closing Date.
10.4 Procedure. If any claim or proceeding covered by the
foregoing agreements to indemnify and hold harmless shall arise, the party who
seeks indemnification (the "Indemnified Party") shall given written notice
thereof to the other party (the "Indemnitor") promptly (in no event more than
ten (10) days) after it learns of the existence of such claim or proceeding. Any
claim for indemnification hereunder shall be accompanied by evidence
demonstrating the Indemnified Party's right or possible right to
indemnification, including a copy of all supporting documents relevant thereto.
The Indemnitor shall have the right to employ counsel reasonably acceptable to
the Indemnified Party to defend against any such claim or proceeding, or to
compromise, settle or otherwise dispose of the same; provided, however, that no
settlement or compromise shall be effected without the consent of the
Indemnified Party, which consent shall not be unreasonably withheld and provided
further, that in the event the Indemnified Party does not consent to a bona fide
offer of settlement made by a third party and the settlement involves only the
payment of money, then the Indemnitor may, in lieu of payment of such settlement
to such third party, pay such amount to the Indemnified Party. After the payment
to the Indemnified Party, the Indemnitor shall have no further liability with
respect to such claim or proceeding and the Indemnified Party shall assume full
responsibility to defend the same. After notice from the Indemnitor to the
Indemnified Party of its election to assume the defense of such claim or
proceeding, the Indemnitor shall not be liable to the Indemnified Party under
this paragraph for any legal or other expenses subsequently incurred by the
Indemnified Party in connection with the defense thereof; provided, however,
that the Indemnified Party shall have the right to employ counsel to represent
it if, in the Indemnified Party's sole judgment, it is advisable for the
Indemnified Party to be represented by separate counsel, and in that event the
fees and expenses of such separate counsel shall be paid by the Indemnified
Party. The parties will fully cooperate in any such action, making available to
each other books or records for the defense of any such claim or proceeding. If
the Indemnitor fails to acknowledge in writing its obligation to defend against
or settle such claim or proceeding within twenty (20) days after receiving
notice of the claim or proceeding from the Indemnified Party (or such shorter
time specified in the notice as
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the circumstances of the matter may dictate), the Indemnified Party shall be
free to dispose of the matter, at the expense of the Indemnitor (but subject to
the Indemnitor's right subsequently to contest through appropriate proceedings
its obligation to provide indemnification), in any way which the Indemnified
Party deems in its best interest.
11. ACCESS TO INFORMATION AND DOCUMENTS AFTER CLOSING.
At Buyer's request, Seller shall permit Buyer to have reasonable
access, after closing, to the books and records included in the Excluded
Property to the extent Buyer has legitimate need therefor, and to make copies of
such materials for Buyer's own and confidential use.
12. GENERAL PROVISIONS.
12.1 Bulk Sales Act. Seller does not believe that the
provisions of any bulk sales or fraudulent conveyance statute are applicable to
the transaction contemplated by this Agreement, and agrees to indemnify and hold
Buyer harmless against any cost or expense as a result of any failure to comply
with any such statute.
12.2 Expenses. Except as otherwise provided herein, each party
shall pay its own expenses incident to the negotiation and preparation of this
Agreement and the transaction contemplated hereby. All documentary stamp taxes
on the Note and the costs of filing or recording any security instrument
pertaining to the Note shall be paid by Buyer. All other recording costs for
bills of sale and other instruments of transfer, and all stamp, sales, use and
transfer taxes shall be paid by Seller.
12.3 Notices. All notices, requests, demands and other
communications pertaining to this Agreement shall be in writing and shall be
deemed duly given when delivered personally with a receipt, when delivered by an
overnight courier service or mailed by certified mail, return receipt requested,
postage prepaid, addressed as follows:
(a) To Seller: XxxxxxxXxxxxx.Xxx, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxxxxxx
With a copy to: Xxxxxxxx X. Xxxxxxx, Xxxxxxx
Xxxxxx, Xxxxxx, 0Xxxxx & Xxxxxxx, LLP
0000 Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
(b) To Buyer: Xxxxxxxx.xxx, Inc.
c/o iiGroup, Inc.
0000 X. Xxxxxxxx Xxxx Xxxx #000
Xxxx Xxxxx, Xxxxxxx 00000
With a copy to: Xxxxxxx Xxxxxx, Esquire
Broad & Xxxxxx
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Page 11 of 14
Either party may change its address for notices by written notice to the other
given pursuant to this paragraph.
12.4 Prior Negotiations. This Agreement supersedes in all
respects all prior and contemporaneous oral and written negotiations,
understandings and agreements between the parties with respect to the subject
matter hereof. All of said prior and contemporaneous negotiations,
understandings and agreements are merged herein and superseded hereby.
12.5 Entire Agreement; Amendment. This Agreement and the
Exhibits to this Agreement set forth the entire understanding between the
parties in connection with the transaction contemplated herein, there being no
terms, conditions, warranties or representations other than those contained
herein, referenced herein or provided for herein. Neither this Agreement nor any
term or provision hereof may be altered or amended in any manner except as an
instrument in writing signed by the party against whom the enforcement of any
such change is sought.
12.6 Exhibits. The Exhibits attached hereto or referred to
herein are a material part of this Agreement, as if set forth in full herein. In
the event any Exhibit is not attached hereto at the time of execution of this
Agreement, Seller shall attach such Exhibit as soon as practicable following the
date of execution of this Agreement.
12.7 Severability. If any term of this Agreement is illegal or
enforceable at law or in equity, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected or
impaired thereby. Any illegal or unenforceable term shall be deemed to be void
and of no force and effect only to the minimum extent necessary to bring such
term within the provisions of any applicable law or laws and such term, as so
modified, and the balance of this Agreement shall then be fully enforceable.
12.8 Survival of Representations and Warranties. Unless
otherwise specifically noted herein, the several representations, warranties and
covenants of the parties contained herein shall survive the closing for a period
of two years from the Closing Date. Thereafter neither party shall have any
liability to the other based upon any of the representations, warranties and
covenants set forth herein.
12.9 Waiver. Unless otherwise specifically agreed in writing
to the contrary: (i) the failure of either party at any time to require
performance by the other of any provision of this Agreement shall not affect
such party's right thereafter to enforce the same, (ii) no waiver by either
party of any default by the other shall be taken or held to be a waiver by such
party of any other preceding or subsequent default, and (iii) no extension of
time granted by either party for the performance of any obligation or act by the
other party shall be deemed to be an extension of time for the performance of
any other obligation or act hereunder.
12.10 Number and Gender. Whenever the context so requires,
words used in the singular shall be construed to mean or include the plural and
vice versa, and pronouns of any gender shall be construed to mean or include any
other gender or genders.
Page 12 of 14
12.11 Headings and Cross-References. The headings of this
Agreement are included for convenience of reference only, and shall in no way
limit or affect the meaning or interpretation of the specific provisions hereof.
All cross-references to paragraphs herein shall mean the paragraphs of this
Agreement unless otherwise stated or clearly required by the context. All
references to Exhibits herein shall mean the Exhibits to this Agreement which
have been separately initialed by Seller and Buyer. Words such as "herein" and
"hereof" shall be deemed to refer to this Agreement as a whole and not to any
particular provision of this Agreement unless otherwise stated or clearly
required by the context.
12.12 Counsel. Each party has been represented by its own
counsel in connection with the negotiation and preparation of this Agreement
and, consequently, each party hereby waives the application of any rule or law
that would otherwise be applicable in connection with the interpretation of this
Agreement, including, but not limited to, any rule of law to the effect that any
provision of this Agreement shall be interpreted or construed against the party
whose counsel drafted that provision.
12.13 Choice of Laws. This Agreement is to be construed and
governed by the laws of the State of Florida, except for the choice of law rules
utilized in that jurisdiction.
12.14 Arbitration. Any dispute arising under or related to
this Agreement that Seller and Buyer are unable to resolve by themselves shall
be settled by arbitration in West Palm Beach, Florida, by a panel of three
arbitrators. Seller and Buyer shall each designate one disinterested arbitrator,
and the two arbitrators so designated shall select the third arbitrator. The
persons selected as arbitrators need not be professional arbitrators, and
persons such as accountants, appraisers and bankers shall be acceptable. Before
undertaking to resolve the dispute, each arbitrator shall be duly sworn
faithfully and fairly to hear and examine the matters in controversy and to make
a just award according to the best of his or her understanding. The arbitration
hearing shall be conducted in accordance with the rules of the American
Arbitration Association. The written decision of a majority of the arbitrators
shall be final and binding on Seller and Buyer. Costs and expenses of the
arbitration proceeding shall be assessed between Seller and Buyer in a manner to
be decided by a majority of the arbitrators, and the assessment shall be set
forth in the decision and award of the arbitrators. No action at law or suit in
equity based upon any claim arising out of or relating to this Agreement shall
be instituted in any court by Seller or Buyer against the other except an action
to compel arbitration pursuant to this paragraph, an action to enforce the award
of the arbitration panel rendered in accordance with this paragraph, or a suit
for injunction or other equitable relief pursuant to Article 6.
12.15 Successors. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns.
12.16 Third Parties. Nothing in this Agreement, whether
expressed or implied, is intended to (i) confer any rights or remedies on any
person other than Buyer, Seller and their respective successors and assigns,
(ii) relieve or discharge the obligation or liability of any third party, or
(iii) or give any third party any right of subrogation or action against either
Buyer or Seller.
12.17 Counterparts. This Agreement may be signed in
counterparts with the same
Page 13 of 14
effect as if the signature on each counterpart were on the same instrument. Each
of the counterparts, when signed, shall be deemed to be an original, and all of
the signed counterparts together shall be deemed to be one and the same
instrument.
12.18 No Offer. This Agreement has been provided for
examination only and does not constitute an offer. This Agreement shall become
effective only after execution hereof (or counterparts hereof) by both Seller
and Buyer.
IN WITNESS WHEREOF, Seller and Buyer have caused this Agreement to be
executed by their duly authorized officers as of the date and year first above
written.
ATTEST/WITNESS: SELLER:
XXXXXXXXXXXXX.XXX, INC., a
Delaware corporation
/s/ unreadable By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------- -----------------------
Xxxxxx Xxxxxxxxx, President
BUYER:
XXXXXXXX.XXX, INC., a Florida
corporation
/s/ Xxxxx Xxxxx By: /s/ Xxxxx Xxxxxxx
--------------------------------------- ---------------------
Xxxxx Xxxxxxx, President
Page 14 of 14
