ASSET PURCHASE AGREEMENT
Exhibit 10.18
Execution Copy
ASSET PURCHASE
AGREEMENT (this “Agreement”) dated December 30, 2010, by and between Grand
Canyon Education, Inc., a Delaware corporation (“Buyer”), and Mind Streams,
L.L.C., an Arizona
limited liability company (“Seller”).
RECITALS:
A. Seller is
engaged in, among other things, the business of identifying potential students
for enrollment in on-line post-secondary education programs (the “Business”).
B. Buyer and
Seller are parties to a certain Collaboration Agreement, dated July 11, 2005 (as
supplemented by Project One and Project Two) (the
“Collaboration Agreement”).
C. Buyer
desires to purchase from Seller and Seller desires to sell to Buyer certain assets of
Seller used in the Business, and Buyer and Seller desire to acknowledge the termination of the
Collaboration Agreement and settlement of amounts due thereunder.
NOW, THEREFORE,
in consideration of the foregoing and the respective representations,
warranties, covenants, agreements and conditions hereinafter set forth, and intending to be legally
bound hereby, the parties hereto agree as follows.
1. PURCHASE AND SALE OF
ASSETS.
1.1 Assets to be
Transferred. Subject to the terms and provisions of this Agreement,
Seller agrees to sell, assign, transfer and deliver to Buyer, and Buyer agrees to purchase from
Seller, at the Closing (as defined below), all legal and beneficial right, title and interest of
Seller in and to those assets of Seller that are used in the Business and that are listed on
Schedule 1.1 attached hereto (collectively, the “Purchased Assets”),
in each case free and
clear of any and all Liens.
1.2 Excluded
Assets. Anything in Section 1.1 above to the contrary notwithstanding,
Seller is not selling, assigning, transferring or delivering to Buyer, and Buyer is not purchasing,
any other assets of Seller, including, without limitation, those that are specifically listed on
Schedule 1.2 attached hereto (collectively, the “Excluded Assets”),
all of which shall be
retained by Seller and shall not constitute Purchased Assets.
1.3 No Assumption of
Liabilities. Buyer shall not assume or be bound by, and Seller
shall retain, pay and discharge when due, all liabilities or obligations of Seller of any kind or
nature, known or unknown, accrued, absolute, contingent or otherwise, whatsoever (all such
liabilities and obligations of Seller referred to herein as the “Excluded
Liabilities”), which
Excluded Liabilities shall include, without limitation, any liabilities or obligations of Seller:
(a) incurred
in connection with this Agreement and the transactions provided for
herein, including, without limitation, counsel, banking and accountant’s fees and expenses,
and expenses pertaining to the performance by Seller of its obligations hereunder;
(b) relating to or
arising out of the Excluded Assets;
(c) in
respect of Taxes of Seller and its Affiliates (whether relating to periods
before or after the transactions contemplated in this Agreement or incurred by Seller or its
Affiliates in connection with this Agreement and the transactions provided for herein),
including any transfer Taxes, duties and other governmental charges applicable to the
transfer of the Purchased Assets in connection with this Agreement;
(d) relating
to past or present employees or independent contractors of Seller,
including, without limitation, any amounts in respect of compensation, severance, stay
bonuses or paid time off; and
(e) in
connection with or relating to any actions, suits, claims, proceedings, demands,
assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses
(whether or not arising out of third-party claims), including, without limitation, interest,
penalties, attorneys’ and accountants’ fees and all amounts paid in investigation, defense
or settlement of any of the foregoing, which liabilities or obligations arise out of or
relate to (i) the use or ownership of the Purchased Assets or the operation of the Business
prior to the Closing Date, (ii) any actions taken by Seller or any member of Seller or any
of their respective related persons or Affiliates on or prior to the Closing Date, or (iii)
any continuing business or other activities of Seller, its members, or any of their
respective related persons or Affiliates following the Closing Date.
1.4 Access to
Information. Seller will provide Buyer with all information relating to
or otherwise constituting Purchased Assets in Seller’s databases in a format in which it currently
exists.
1.5 Termination of
Agreement; Release. Buyer and Seller acknowledge that the
Collaboration Agreement terminates by its terms effective December 30, 2010. In connection with
such termination, Buyer and Seller hereby agree as follows:
(a) Buyer
and Seller hereby affirm the termination of the Collaboration Agreement in
accordance with its terms, effective December 30, 2010. Except as provided in this Agreement with
respect to the Payment Obligation (as defined below), those provisions of the Collaboration
Agreement that expressly survive the termination thereof shall continue to survive as set forth
therein.
(b) The
Closing Cash Payment paid by Buyer to Seller in accordance with Section 2.1(a) of this
Agreement includes and constitutes full and final payment of all amounts
due by Buyer to Seller under the Collaboration Agreement upon and as of the termination
thereof (the “Payment Obligation”).
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(c) Seller,
for itself and on behalf of its successors and assigns, does hereby (i)
acknowledge complete and full satisfaction by Buyer of the Payment Obligation, and (ii) fully,
finally, and forever releases and discharges Buyer of and from any and all claims, causes of
action, damages, demands, liabilities, obligations, costs, expenses, and compensation of every kind
or nature whatsoever, past, present, or future, at law or in equity, whether known or unknown,
contingent or otherwise, that Seller had, has, or may have had at any time in the past and through
and including the Closing Date, against the Buyer that relate to or arise out of the Payment
Obligation (collectively, the “Causes of Action”).
(d) Seller
represents, warrants, covenants, and agrees that it (i) has not and will not assign
any Causes of Action or possible Causes of Action against Buyer, (ii) fully intends to release all
Causes of Action against Buyer, including, without limitation, unknown and contingent Causes of
Action (other than those specifically reserved above), (iii) has consulted with counsel with
respect to the matters covered hereby and has been fully apprised of the consequences hereof, and
(iv) will not institute any litigation, lawsuit, claim, or action against Buyer with respect to any
released Causes of Action
(e) Anything
in this Section 1.5 to the contrary notwithstanding, Seller is not releasing
Buyer from, and Buyer shall remain fully obligated with respect to, Buyer’s obligation to make the
Subsequent Payment described in Section 2.1(b) below.
2. CONSIDERATION.
2.1 Consideration. In consideration for the Purchased Assets, and in respect of the
Payment Obligation, Buyer shall pay to Seller (a) an aggregate amount in cash equal to $8,500,000,
such amount to be paid by Buyer to Seller at the Closing (the “Closing Cash Payment”),
and (b)
amounts earned and payable to Seller, but not yet paid, under the Collaboration Agreement related
to Net Revenue (as such term is defined in the Collaboration Agreement) actually received by Buyer
on or prior to February 28, 2011 (the “End Date”) in respect of courses started
on or before
October 31, 2010, such amounts to be paid by Buyer to Seller no later than 15 days following the
End Date (the “Subsequent Payments”).
2.2 Payment of
Consideration. Each of the Closing Cash Payment and the Subsequent
Payments shall be paid by Buyer to Seller by wire transfer of immediately available funds, to an
account designated in writing by Seller.
2.3 Allocation of
Consideration to Purchased Assets. Within 180 days following the
Closing Date, Buyer will deliver to Seller an allocation of the consideration paid to Seller
hereunder in respect of the Purchased Assets. Seller and Buyer will follow and use such allocation
in all Tax returns, filings or other related reports made by them to any governmental agencies. To
the extent that disclosures of this allocation are required to be made by the parties to the
Internal Revenue Service (“IRS”) under the provisions of Section 1060 of the
Internal Revenue Code
of 1986, as amended (the “Code”) or any regulations thereunder, Buyer and Seller
will disclose such
reports to the other prior to filing with the IRS.
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3. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller makes the following representations and warranties to Buyer, each of which is true and
correct and shall survive the Closing of the transactions provided for herein.
3.1 Organization and Power. Seller is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Arizona. Seller has all
requisite power and authority to own, operate and lease its properties, to carry on its business as
and where such is now being conducted, to enter into this Agreement and the other documents and
instruments to be executed and delivered by Seller pursuant hereto and to carry out the
transactions contemplated hereby and thereby.
3.2 Authority. The execution and delivery of this Agreement and the other documents
and instruments to be executed and delivered by Seller pursuant hereto and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by Seller. No other limited
liability company act or proceeding on the part of Seller or its members is necessary to authorize
this Agreement or the other documents and instruments to be executed and delivered by Seller
pursuant hereto or the consummation of the transactions contemplated hereby and thereby. This
Agreement constitutes, and when executed and delivered, the other documents and instruments to be
executed and delivered by Seller pursuant hereto will constitute, valid binding agreements of
Seller, enforceable in accordance with their respective terms, except as such may be limited by
bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally, and by
general equitable principles.
3.3 No Violation. Neither the execution and delivery of this Agreement or the other
documents and instruments to be executed and delivered by Seller pursuant hereto, nor the
consummation by Seller of the transactions contemplated hereby and thereby (a) violates any law,
regulation or governmental order applicable to Seller, (b) requires any authorization, consent,
approval, exemption or other action by or notice to any government entity, or (c) violates or
conflicts with, or constitutes a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or will result in the termination of, or accelerate the
performance required by, or result in the creation of any Lien upon any of the assets of Seller
under, any term or provision of the articles of organization or operating agreement of Seller or of
any material contract, commitment, understanding, arrangement, agreement or restriction of any kind
or character to which Seller is a party or by which Seller or any of its assets or properties may
be bound or affected.
3.4 No Litigation or Claims. There is no action, suit, litigation, claim,
counterclaim or legal or administrative proceeding or investigation pending or, to Seller’s
knowledge, threatened against Seller in connection with the Business that would impact the
Purchased Assets. Seller is not subject to any order in connection with the Business that would
impact the Purchased Assets.
3.5 Compliance With Laws and Orders. Seller is in compliance, in all material
respects, with all applicable laws and orders in connection with the Business that impact the
Purchased Assets, including, without limitation, those applicable to student recruitment for
higher education and other applicable regulations related to Title IV of the Higher Education
Act of 1965, as amended.
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3.6 Intellectual Property. Seller exclusively owns or possesses adequate rights to
use all of the intellectual property included within the Purchased Assets, free and clear of all
Liens. There are no pending, or, to the knowledge of Seller, threatened claims against Seller or
any of its employees alleging that any of the intellectual property included within the Purchased
Assets is invalid or unenforceable or that any of such intellectual property included within the
Purchased Assets infringes or conflicts with, or otherwise violates, the rights of others
(“Third-Party Rights”). To the knowledge of Seller, no intellectual property included within the
Purchased Assets infringes or conflicts with any Third-Party Rights, and Seller is not aware of any
violation or infringement by a third party of any of the intellectual property included within the
Purchased Assets. Seller has taken reasonable security measures to protect the secrecy,
confidentiality and value of all trade secrets included within the Purchased Assets.
3.7 Title to and Condition of Purchased Assets. Seller has good and marketable title
to all of the Purchased Assets. All of the Purchased Assets are free and clear of restrictions on
or conditions to transfer or assignment, and free and clear of Liens.
3.8 Privacy of Customer Information. Seller has used and currently uses any of the
customer information that it has received or currently receives through its website or otherwise
and that is included in the Purchased Assets in a manner that complies, in all material respects,
with applicable law, and in a manner that complies with Seller’s privacy policy and the privacy
rights of its customers. Seller has collected any customer information through its website or
otherwise that is included in the Purchased Assets in a manner that complies, in all material
respects, with applicable law, and in a manner that does not violate its privacy policy. Seller has
commercially reasonable security measures in place to protect the customer information it receives
through its website or otherwise and that is included in the Purchased Assets and which it stores
in its computer systems from illegal use by third parties or use by third parties in a manner
violative of the rights of privacy of its customers.
3.9 No Brokers or Finders. Seller has not retained, employed or used any broker or
finder in connection with the transactions provided for herein or the negotiation thereof. Seller
shall be responsible for all broker or finder’s fees on account of actions by Seller or its members
or representatives.
4. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer makes the following representations and warranties to Seller, each of which is true and
correct on the date hereof and the Closing Date, and shall survive the Closing of the transactions
provided for herein.
4.1 Organization and Power. Buyer is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Buyer has all requisite corporate
power to enter into this Agreement and the other documents and instruments to be executed and
delivered by Buyer and to carry out the transactions contemplated hereby and thereby.
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4.2 Authority. The execution and delivery of this Agreement and the other documents
and instruments to be executed and delivered by Buyer pursuant hereto and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by the Board of Directors of
Buyer. No other corporate act or proceeding on the part of Buyer or its members is necessary to
authorize this Agreement or the other documents and instruments to be executed and delivered by
Buyer pursuant hereto or the consummation of the transactions contemplated hereby and thereby. This
Agreement constitutes, and when executed and delivered, the other documents and instruments to be
executed and delivered by Buyer pursuant hereto will constitute, valid and binding agreements of
Buyer, enforceable in accordance with their respective terms, except as such may be limited by
bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally, and by
general equitable principles.
4.3 No Brokers or Finders. Buyer has not retained, employed or used any broker or
finder in connection with the transactions provided for herein or the negotiation thereof. Buyer
shall be responsible for all broker or finder’s fees on account of actions by Buyer or its
representatives.
5. EMPLOYEES — EMPLOYEE BENEFITS.
5.1 Election. Buyer and Seller have designated each of the employees engaged in the
Business as Category 1 or Category 2 employees. If an employee is in Category 1, such employee
shall remain an employee of Seller and will not have any association with Buyer. If an employee is
in Category 2, then at the Closing, Buyer agrees to offer employment to such employee on
substantially similar terms and with substantially similar benefits as similarly situated persons
employed by Buyer. If a Category 2 employee accepts such offer of employment, then Seller shall
terminate the employment of such employee and such employee shall become an employee of Buyer.
Seller shall be responsible for any and all termination benefits in connection with its termination
of any Category 1 or Category 2 employees, as well as any related obligations or liabilities
relating to such employees or arising in connection with any such termination. Notwithstanding the
foregoing, Buyer has no obligation to hire any employees of Seller.
5.2 Payroll Tax. Seller agrees to make a clean cut-off of payroll and payroll tax
reporting with respect to the Category 2 employees hired by Buyer, paying over to the federal,
state and city governments those amounts respectively withheld or required to be withheld for
periods ending on or prior to the Closing Date. Seller also agrees to issue, by the date prescribed
by IRS Regulations, Forms W-2 for wages paid through the Closing Date for Category 2 employees
hired by Buyer.
6. OTHER MATTERS.
6.1 Confidential Information. Seller shall not at any time subsequent to the Closing,
except as explicitly requested by Buyer, use for any purpose, disclose to any person, or keep or
make copies of documents, tapes, discs, programs or other information storage media (“records”)
containing, any confidential information concerning the Purchased Assets, all such information
being deemed to be transferred to Buyer hereunder as part of the Purchased Assets. The foregoing
provisions shall not apply to any information which is not a Purchased Asset. If at
any time after Closing, Seller should discover that it is in possession of any records
containing the confidential information of Buyer, then Seller shall immediately turn such records
over to Buyer, which shall upon request make available to Seller any information contained therein
which is not confidential information acquired by Buyer.
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7. INDEMNIFICATION.
7.1 By Seller. Subject to the terms and conditions of this Article 7, Seller hereby
agree to indemnify, defend and hold harmless Buyer, and its directors, officers, employees and
controlled and controlling persons (hereinafter “Buyer’s Affiliates”), from and against all Claims
asserted against, resulting to, imposed upon or incurred by Buyer, Buyer’s Affiliates or the
Purchased Assets, directly or indirectly, by reason of, arising out of or resulting from (a) the
inaccuracy or breach of any representation or warranty of Seller contained in or made pursuant to
this Agreement; (b) the breach of any covenant or agreement of Seller contained in this Agreement;
or (c) the Excluded Liabilities.
7.2 By Buyer. Subject to the terms and conditions of this Article 7, Buyer hereby
agrees to indemnify, defend and hold harmless Seller, and its managers, members, officers,
employees and controlled and controlling persons (hereinafter “Seller’s Affiliates”), from and
against all Claims asserted against, resulting to, imposed upon or incurred by Seller or Seller’s
Affiliates, directly or indirectly, by reason of, arising out of or resulting from (a) the
inaccuracy or breach of any representation or warranty of Buyer contained in or made pursuant to
this Agreement; or (b) the breach of any covenant or other agreement of Buyer contained in this
Agreement.
7.3 Indemnification of Third-Party Claims. The following provisions shall apply to
any Claim subject to indemnification which is (i) a suit, action or arbitration proceeding filed or
instituted by any third party, or (ii) any other form of proceeding or assessment instituted by any
governmental entity:
(a) Notice and Defense. The party or parties to be indemnified (whether one or
more, the “Indemnified Party”) will give the party from whom indemnification is sought (the
“Indemnifying Party”) prompt written notice of any such Claim, and the Indemnifying Party
will undertake the defense thereof by representatives chosen by it. The assumption of
defense shall constitute an admission by the Indemnifying Party of its indemnification
obligation hereunder with respect to such Claim, and its undertaking to pay directly all
costs, expenses, damages, judgments, awards, penalties and assessments incurred in
connection therewith. Failure to give such notice shall not affect the Indemnifying Party’s
duty or obligations under this Article 7, except to the extent the Indemnifying Party is
prejudiced thereby. So long as the Indemnifying Party is defending any such Claim actively
and in good faith, the Indemnified Party shall not settle such Claim. The Indemnified Party
shall make available to the Indemnifying Party or its representatives all records and other
materials required by them and in the possession or under the control of the Indemnified
Party, for the use of the Indemnifying Party and its representatives in defending any such
Claim, and shall in other respects give reasonable cooperation in such defense.
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(b) Failure to Defend. If the Indemnifying Party, within a reasonable time
after notice of any such Claim, fails to defend such Claim actively and in good faith, the
Indemnified Party will (upon further notice) have the right to undertake the defense,
compromise or settlement of such Claim or consent to the entry of a judgment with respect to
such Claim, on behalf of and for the account and risk of the Indemnifying Party, and the
Indemnifying Party shall thereafter have no right to challenge the Indemnified Party’s
defense, compromise, settlement or consent to judgment.
(c) Indemnified Party’s Rights. Anything in this Article 7 to the contrary
notwithstanding, (i) if there is a reasonable probability that a Claim may materially and
adversely affect the Indemnified Party other than as a result of money damages or other
money payments, the Indemnified Party shall have the right to defend, compromise or settle
such Claim, and (ii) the Indemnifying Party shall not, without the written consent of the
Indemnified Party, settle or compromise any Claim or consent to the entry of any judgment
which does not include as an unconditional term thereof the giving by the claimant or the
plaintiff to the Indemnified Party of a release from all liability in respect of such Claim.
7.4 Payment. The Indemnifying Party shall promptly pay the Indemnified Party any
amount due under this Article 7.
7.5 Survival and Cap. Except for Claims arising from fraud, or any willful or knowing
breach or misrepresentation, which Claims may be brought without limitation as to time or amount,
no claim or action shall be brought under this Article 7 for indemnification after the lapse of one
(1) year following the Closing. Further, the maximum obligation of Seller under Section 7.1 and
Buyer under Section 7.2 shall be $250,000.
8. CLOSING.
8.1 Closing. The closing of this transaction (the “Closing”) shall be held at the
offices of DLA Piper LLP (US), 0000 X. Xxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000
concurrent with the execution of this Agreement. Such date and time is referred to in this
Agreement as the “Closing Date.”
8.2 Documents to be Delivered by Seller. At the Closing, Seller shall deliver to
Buyer the following documents, in each case duly executed or otherwise in proper form:
(a) Bills of Sale. Bills of sale and such other instruments of assignment,
transfer, conveyance and endorsement as will be sufficient in the reasonable opinion of
Buyer and its counsel to transfer, assign, convey and deliver to Buyer the Purchased Assets
as contemplated hereby.
(b) Certified Resolutions. A certified copy of the resolutions of the manager
and/or members of Seller authorizing and approving this Agreement and the consummation of
the transactions contemplated by this Agreement.
(c) Other Documents. All other documents, instruments or writings required to
be delivered to Buyer at or prior to the Closing pursuant to this Agreement and such other
certificates of authority and documents as Buyer may reasonably request.
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8.3 Documents to be Delivered by Buyer. At the Closing, Buyer shall deliver to Seller
the following, in each case duly executed or otherwise in proper form:
(a) Closing Cash Payment. The Closing Cash Payment, by wire transfer of
immediately available funds.
(b) Certified Resolutions. A certified copy of the resolutions of the board of
directors of Buyer authorizing and approving this Agreement and the consummation of the
transactions contemplated by this Agreement.
(c) Other Documents. All other documents, instruments or writings required to
be delivered to Seller at or prior to the Closing pursuant to this Agreement and such other
certificates of authority and documents as Seller may reasonably request.
9. CERTAIN DEFINITIONS.
9.1 Definitions. For purposes of this Agreement, the following terms shall have the
following meanings:
“Affiliate” of a person or entity means any person or entity which directly or indirectly
controls, is controlled by, or is under common control with such person or entity.
“Claim” means (i) all liabilities; (ii) all losses, deficiencies, actual damages (but not
including consequential or punitive damages), judgments, awards, penalties and settlements; (iii)
all demands, claims, suits, actions, causes of action, proceedings and assessments; and (iv) all
costs and expenses (including, without limitation, interest (including prejudgment interest in any
litigated or arbitrated matter), court costs and fees and reasonable expenses of attorneys and
expert witnesses) of investigating, defending or asserting any of the foregoing or of enforcing
this Agreement.
“Liens” means mortgages, liens, pledges, security interests, charges, encumbrances, claims,
easements, rights of way, covenants, conditions or restrictions or any other adverse claims, rights
or encumbrances of any kind or nature whatsoever.
“Tax” or “Taxes” means any and all federal, state, provincial, local, foreign or other taxes,
including, without limitation, income taxes, estimated taxes, excise taxes, sales taxes,
transaction privilege taxes, use taxes, gross receipts taxes, franchise taxes, employment and
payroll related taxes, withholding taxes, stamp taxes, transfer and property taxes, or other tax of
any kind whatsoever, whether or not measured in whole or in part by net income, including any
interest, penalty, or addition thereto, whether disputed or not.
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10. MISCELLANEOUS.
10.1 Further Assurance. From time to time following the Closing Date, at Buyer’s
request and without further consideration, Seller will execute and deliver to Buyer such
documents, instruments and consents and take such other action as Buyer may reasonably request in
order to effect the transactions contemplated hereby, to discharge the covenants of Seller and to
vest in Buyer good, valid and marketable title to the Purchased Assets.
10.2 Disclosures and Announcements. Both the timing and the content of all disclosure
to third parties and public announcements concerning the transactions provided for in this
Agreement by either Seller or Buyer shall be subject to the approval of Buyer.
10.3 Assignment; Parties in Interest.
(a) Assignment. Except as expressly provided herein, the rights and
obligations of a party hereunder may not be assigned, transferred or encumbered without the
prior written consent of the other party.
(b) Parties in Interest. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by the respective successors and permitted assigns of the
parties hereto. Nothing contained herein shall be deemed to confer upon any other person any
right or remedy under or by reason of this Agreement.
10.4 Law Governing Agreement. This Agreement shall be construed and interpreted
according to the internal laws of the State of Arizona, excluding any choice of law rules that may
direct the application of the laws of another jurisdiction. The parties hereby stipulate that any
action or other legal proceeding arising under or in connection with this Agreement may be
commenced and prosecuted in its entirety in the federal or state courts having jurisdiction in the
State of Arizona, each party hereby submitting to the personal jurisdiction thereof, and the
parties agree not to raise the objection that such courts are not a convenient forum. Process and
pleadings mailed to a party at the address provided in Section 10.6 shall be deemed properly served
and accepted for all purposes.
10.5 Amendment and Modification. Buyer and Seller may amend, modify and supplement
this Agreement in such manner as may be agreed upon by them in writing.
10.6 Notice. All notices, requests, demands and other communications hereunder shall
be given in writing and shall be: (a) personally delivered; (b) sent by telecopier, facsimile
transmission or other electronic means of transmitting written documents; or (c) sent to the
parties at their respective addresses indicated herein by registered or certified U.S. mail, return
receipt requested and postage prepaid, or by private overnight mail courier service. The respective
addresses to be used for all such notices, demands or requests are as follows:
(a) If to Buyer, to:
Xxx Xxxxxx Grand Canyon Education, Inc. 0000 Xxxx Xxxxxxxxx Xxxx Xxxxxxx, Xxxxxxx 00000 Facsimile: (000) 000-0000 |
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or to such other person or address as Buyer shall furnish to Seller in writing.
(b) If to Seller, to:
Xxxx Xxxxxxxxxx Mind Streams, L.L.C. 0000 Xxxxx 00xx Xxxxxx, Xxxxx 000 Xxxxxxx, Xxxxxxx 00000 Facsimile: (602) 906- 6098 |
or to such other person or address as Seller shall furnish to Buyer in writing.
If personally delivered, such communication shall be deemed delivered upon actual receipt; if
electronically transmitted pursuant to this Section, such communication shall be deemed delivered
the next business day after transmission (and sender shall bear the burden of proof of delivery);
if sent by overnight courier pursuant to this Section, such communication shall be deemed delivered
upon receipt; and if sent by U.S. mail pursuant to this Section, such communication shall be deemed
delivered as of the date of delivery indicated on the receipt issued by the relevant postal
service, or, if the addressee fails or refuses to accept delivery, as of the date of such failure
or refusal. Any party to this Agreement may change its address for the purposes of this Agreement
by giving notice thereof in accordance with this Section.
10.7 Expenses. Each of the parties shall bear its own expenses and the expenses of
its counsel and other agents in connection with the transactions contemplated hereby. Seller shall
pay all applicable sales, use and similar transfer taxes relating to the sale of the Purchased
Assets hereunder.
10.8 Entire Agreement. This instrument embodies the entire agreement between the
parties hereto with respect to the transactions contemplated herein, and there have been and are no
agreements, representations or warranties between the parties other than those set forth or
provided for herein.
10.9 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
10.10 Headings. The headings in this Agreement are inserted for convenience only and
shall not constitute a part hereof.
10.11 Singular and Plural in Definition. Where any group or category of items or
matters is defined collectively in the plural number, any item or matter within such definition may
be referred to using such defined term in the singular number.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first
above written.
| GRAND CANYON EDUCATION, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Its: | Chief Financial Officer | |||
| MIND STREAMS, L.L.C. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Its: | Vice President/Chief Financial Officer | |||
Schedule 1.1
Purchased Assets
Purchased Assets
| 1. | Sole and exclusive ownership and use of database of self-developed customer contacts. |
|
| 2. | Know how related to database. |
|
| 3. | Goodwill related to database. |
Schedule 1.2
Excluded Assets
| 1. | University Contracts including: |
| x. | Xxxxx International University |
||
| b. | Western Governor’s University |
||
| c. | National University |
||
| d. | Nova Southeastern University |
||
| x. | Xxx Bridge College |
||
| f. | Northcentral University |
| 2. | School District Contracts including: |
| a. | Los Angeles Unified School District |
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| b. | San Diego Unifies School District |
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| c. | Harlandale Independent School District |
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| x. | Xxxxxxx Independent School District |
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| e. | El Paso Independent School District |
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| f. | Riverside Unified School District |
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| g. | Fort Worth Independent School District |
| 3. | Other Excluded Assets: |
| a. | All billed and unbilled accounts receivable |
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| b. | All cash and bank accounts |
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| c. | All tangible personal property |
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| d. | The business name “Mind Streams” and associated URLs |
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| e. | All other assets of the Business except the Purchased Assets |
