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Exhibit 10.17
AGREEMENT OF PURCHASE AND SALE OF ASSETS
This AGREEMENT OF PURCHASE AND SALE OF ASSETS is made and entered into
as of the _____ day of March, 1996, by and between Xxxx Xxxxxx, doing business
under the names T-Co Carpet Cleaning and T-Co Heating Systems, having his
principal office at 3629 Conflans, Xxxxxx, Xxxxx 00000 ("Seller"), and Venturi
Technologies, Inc., a Texas corporation, having its principal office at 000 Xxxx
0000 Xxxxx, Xxxx, Xxxx 00000 ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller owns and operates a carpet cleaning business and a
businesses [sic] engaged in designing and manufacturing heaters used in carpet
cleaning equipment, which business [sic] are located in the Dallas, Texas area;
WHEREAS, Purchaser desires to purchase from Seller, and Seller desires
to sell to Purchaser the Seller's Assets, as hereinafter defined, connected with
the businesses described above in exchange for Purchaser's common stock upon the
terms and conditions described in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereby agree as follows:
1. Purchase and Sale of Business. Subject to and upon the terms and
conditions set forth in this Agreement, Seller will sell, transfer, convey,
assign and deliver to Purchaser, and Purchaser will purchase, at the Closing
hereunder, all of the business assets, properties, goodwill and rights of Seller
as a going concern, of every nature, kind and description, tangible and
intangible, wheresoever located and whether or not carried or reflected on the
books and records of Seller (hereinafter sometimes collectively called "Seller's
Assets"), including, without limitation, (i) the right to use Seller's business
names and all variations thereof, including any fictitious or assumed names
under which Seller is doing business, (ii) the assets referred to in the form of
Xxxx of Sale and Assignment attached hereto as Exhibit "A", (iii) the assets
reflected on the Balance Sheet referred to in Section 5.4 hereof, with only such
dispositions of such assets reflected on the Balance Sheet as shall have
occurred in the ordinary course of Seller's business between the date thereof
and the Closing and which are permitted by the terms hereof, and (iv) all
patents, patent applications, patent licenses, trademarks, trademark
registrations, and applications therefor, service marks, service names, trade
names, copyrights and copyright registrations, and applications therefor, wholly
or partially owned or held by Seller or used in the operation of Seller's
business. Seller's Assets shall be conveyed free and clear of all liabilities,
obligations, liens and encumbrances excepting only those liabilities and
obligations which are expressly to be assumed by Purchaser hereunder and those
liens and encumbrances securing the same which are specifically disclosed herein
or expressly permitted by the terms hereof.
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2. Payment for Seller's Assets.
2.1 Stock for Seller's Assets. In consideration of the sale, transfer,
conveyance, assignment and delivery of the Seller's Assets by Seller to
Purchaser, and in reliance upon the representations and warranties made herein
by Seller and Shareholders, Purchaser will, at the closing, in full payment for
Seller's Assets, issue to Seller, and deliver to Seller certificates
representing, one hundred thousand (100,000) shares of Purchaser's no par value
common stock (the "Shares"), which certificates representing the Shares shall be
in the form of the stock certificate attached hereto as Exhibit "B".
2.2 Restricted Stock. The Shares to be issued to Seller pursuant to
this Agreement have not been registered with the Securities and Exchange
Commission, nor have the Shares been registered or qualified under the
securities laws of any state. The Seller acknowledges that the Shares are
subject to the following restriction which will be noted as a legend in
substantially the following form on the face of the certificates representing
the Shares:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR QUALIFIED
UNDER THE SECURITIES LAWS OF ANY STATE (THE "LAW"). SUCH SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND NEITHER SAID SHARES NOR ANY
INTEREST THEREIN MAY BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER THE ACT AND
QUALIFICATION UNDER THE LAW OR AN OPINION OF COUNSEL SATISFACTORY TO
THE CORPORATION THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT
REQUIRED AS TO SAID SALE OR OFFER.
In order to establish exemptions from registration under both Federal and state
corporate securities laws, the Seller hereby makes the following representations
to the Purchaser. Seller represents that it is acquiring the Shares for its own
account, for investment, and not with a view to or for resale in connection with
any distribution thereof. The Seller further represents that it has such
knowledge and experience in business and financial matters that it is capable of
evaluating the merits and risks of obtaining stock in the Purchaser. The Seller
understands the speculative nature of the Purchaser's stock and represents that
Seller has adequate net worth and means to provide for its current needs and to
sustain a complete loss of its investment and that the Seller has no need of
liquidity of its investment. The Seller understands that at present no public
market exists, and that a public market may never exist, for the Shares and that
the Purchaser is under no obligation to provide a market for the Shares.
2.3 Restriction on Resale. Seller hereby covenants and agrees not to
sell or offer to sell all or any part of the Shares from the Closing Date until
the earlier of two years from the Closing Date or the first date on which the
Purchaser sells its stock to the public by means of an underwritten
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public offering. The certificates representing the Shares shall contain, for so
long as the restriction set forth in this Section remains in effect, a legend in
substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER, INCLUDING AN AGREEMENT BETWEEN THE COMPANY
AND THE ORIGINAL HOLDER OF THE SHARES REPRESENTED BY THIS CERTIFICATE
THAT THE SHARES MAY NOT BE OFFERED OR SOLD FROM THE DATE OF ISSUANCE OF
THE SHARES UNTIL THE EARLIER TO OCCUR OF TWO YEARS FROM SUCH DATE OR
THE DATE UPON WHICH THE COMPANY FIRST OFFERS ITS SHARES TO THE PUBLIC
IN AN UNDERWRITTEN PUBLIC OFFERING.
2.4 Right of Rescission. Purchaser or Seller may rescind and cancel
this Agreement and the transactions provided for in this Agreement by personally
serving upon the other party written notice of rescission no sooner than sixty
(60) days after the Closing Date and no later than ninety (90) days after the
Closing Date. Upon such a rescission and cancellation, each party shall
cooperate in good faith to return the parties as close as reasonably possible to
their respective positions prior to the Closing. Specifically, Seller shall
deliver to Purchaser for cancellation the original stock certificate or
certificates representing the Shares, duly endorsed by Seller, and Seller shall
assume all of those liabilities assumed by Purchaser in the Liabilities
Undertaking attached hereto as Exhibit "C," and Purchaser shall return to Seller
the Seller's Assets or their net value. All rights, duties and obligations of
the parties under any NonCompetition or Non-Disclosure agreements shall survive
a rescission or cancellation of this Agreement.
2.5 Consent to Dilution. Seller acknowledges that Purchaser intends to
acquire additional businesses and assets by issuing shares of its common stock,
and that Purchaser may otherwise issue shares of its common stock in the future.
Seller acknowledges that such issuances of common stock by Purchaser will have
the effect of diluting Seller's proportionate ownership of Purchaser, and Seller
specifically consents to the issuance of common stock to other parties and to
the dilution it may cause in Seller's proportionate ownership in Purchaser to
the extent such stock issuances are deemed by the board of directors of
Purchaser to be in the best interests of Purchaser.
2.6 Liabilities Undertaking. In addition to the foregoing, Purchaser
will execute and deliver to Seller at the Closing a Liabilities Undertaking in
the form of Exhibit "C" attached hereto, pursuant to which Purchaser shall
assume and undertake to pay or otherwise discharge those liabilities or
obligations set forth therein.
3. Closing. The Closing shall take place at 10:00 a.m., local time, on
the 28th day of March, 1996, at the offices of Purchaser or such other time and
place as the parties may agree upon. The day on which the Closing actually takes
place is herein sometimes referred to as the Closing Date. In the event either
of the parties is entitled not to close on the scheduled date because a
condition to the Closing set forth in Section 13 or 14 hereof has not been met
(or waived by the party or parties entitled to waive it), such party may
postpone the Closing from time to time, by giving at
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least five days prior notice to the other party, until the condition has been
met (which all parties will use their best efforts to cause to happen), but in
no event to a date later than April 30, 1996.
4. Seller's Obligations at Closing; Further Assurances.
4.1 At the Closing, Seller will deliver to Purchaser:
4.1.1 a cashier's or certified check drawn by Seller to the
order of Purchaser in the aggregate amount of all of Seller's cash on
hand and in banks less an amount equal to all uncleared checks which
have been drawn by Seller prior to the Closing in payment of
liabilities of Seller which are assumed by Purchaser hereunder (and
Seller agrees to retain in such banks an amount equal to such uncleared
checks until such checks are cleared) or, at Purchaser's option, an
assignment of all of Seller's bank accounts in form and substance
satisfactory to Purchaser;
4.1.2 a Xxxx of Sale and Assignment duly executed by Seller in
the form of Exhibit "A" attached hereto;
4.1.3 such other good and sufficient instruments of
conveyance, assignment and transfer, in form and substance satisfactory
to Purchaser and Purchaser's counsel, as shall be effective to vest in
Purchaser good and marketable title to Seller's Assets;
4.1.4 all contracts, files and other data and documents
pertaining to Seller's Assets; and
4.1.5 all documents required to be delivered to Purchaser
under the provisions of this Agreement.
4.2 At any time and from time to time after the Closing, at
Purchaser's request and without further consideration, Seller will execute and
deliver such other instruments of sale, transfer, conveyance, assignment and
confirmation and take such action as Purchaser may reasonably deem necessary or
desirable in order to more effectively transfer, convey and assign to Purchaser,
and to confirm Purchaser's title to, all of Seller's Assets, to put Purchaser in
actual possession and operating control thereof and to assist Purchaser in
exercising all rights with respect thereto. After the Closing, at reasonable
times and on reasonable notice, Seller shall have access to the books and
records pertaining to its operations.
4.3 Seller agrees that Purchaser shall have the right and
authority to collect for its own account all receivables and other items which
shall be transferred to Purchaser as provided herein and to endorse with the
name of Seller any checks received on account of any such receivables or other
items. Seller agrees that it will promptly transfer and deliver to Purchaser any
cash or other property which Seller may receive in respect of such receivables
or other items.
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4.4 Seller shall pay any and all income taxes payable as a result
of this transaction, and shall indemnify and hold harmless Purchaser from and
against any income tax liability that may result from this transaction.
4.5 Seller and Purchaser have agreed to the allocation of the
purchase price herein among the Seller's Assets as set forth in Schedule 4.5. In
accordance with the provisions of Section 1060 of the Internal Revenue Code of
1986, as amended, Seller and Purchaser shall file an asset allocation statement
on Internal Revenue Service Form 8594 for the tax year in which the Closing
occurs. Upon such filing, Seller and Purchaser shall provide each other with a
copy of such form as filed by each of them.
5. Representations and Warranties by Seller. Seller represents
and warrants to Purchaser as follows:
5.1 Organization, Standing and Qualification. Seller is an
individual transacting business as a sole proprietorship under the business
names "T-Co Carpet Cleaning" and "T-Co Heating Systems" and various versions
thereof. Seller is not a corporation or a partnership. Seller has all requisite
power and authority and is entitled to carry on its business as now being
conducted and to own, lease or operate its properties as and in the places where
such business is now conducted and to own, lease or operate its properties as
and in the places where such business in now conducted and such properties are
now owned, leased or operated; and Seller is duly authorized to do business in
the states in which the nature of the activities conducted by it or the
character of the properties owned, leased or operated by it require such
qualification, licensing or domestication.
5.2 Subsidiaries. Seller has no subsidiary or parent corporations
except those that may be listed on Schedule 5.2. Seller has no interest, direct
or indirect, and has no commitment to purchase any interest, direct or indirect,
in any other corporation or in any partnership, joint venture or other business
enterprise or entity other than as set forth on Schedule 5.2.
5.3 Execution, Delivery and Performance of Agreement; Authority.
Neither the execution, delivery nor performance of this Agreement by Seller
will, with or without the giving of notice or the passage of time, or both,
conflict with, result in a default, right to accelerate or loss of rights under,
or result in the creation of any lien, charge or encumbrance pursuant to, any
provision of any franchise, mortgage, deed of trust, lease, license, agreement,
understanding, law, rule or regulation or any order, judgment or decree to which
Seller is a party or by which Seller may be bound or affected. Seller has the
full power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby.
5.4 Financial Statements. Seller has delivered to Purchaser copies
of the following financial statements prepared by Seller, (herein collectively
called the "Financial Statements"), all of which are complete and correct, have
been prepared from the books and records of Seller in accordance with generally
accepted accounting principles, consistently applied and maintained
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throughout the periods indicated and fairly present the financial condition of
Seller as at their respective dates and the results of its operations for the
periods covered thereby:
5.4.1 an unaudited balance sheet of Seller (the "Balance
Sheet") as at __________, 19______, (the "Balance Sheet Date") and
Seller's unaudited statement of earnings and source and application of
funds for the _______ week period then ended.
5.4.2 unaudited balance sheets of Seller and unaudited
statements of earnings and source and application of funds for the
prior two years.
Such statements of earnings do not contain any items of special or nonrecurring
income or any other income not earned in the ordinary course of business except
as expressly specified therein, and such interim financial statements include
all adjustments, which consist only of normal recurring accruals, necessary for
such fair presentation.
5.5 Absence of Undisclosed Liabilities. Except as and to the
extent reflected or reserved against on the face of the Balance Sheet (excluding
any notes thereto), as of the Balance Sheet Date Seller had no debts,
liabilities or obligations (whether absolute, accrued, contingent or otherwise)
of any nature whatsoever, including, without limitation, any foreign or domestic
tax liabilities or deferred tax liabilities incurred in respect of or measured
by Seller's income, or its period prior to the close of business on the Balance
Sheet Date or any other debts, liabilities or obligations relating to or arising
out of any act, omission, transaction, circumstance, sale of goods or services,
state of facts or other condition which occurred or existed on or before the
Balance Sheet Date, whether or not then known, due or payable. None of the
Seller's employees is now, or will by the passage of time hereafter become,
entitled to receive any vacation time, vacation pay or severance pay
attributable to services rendered prior to the Balance Sheet Date except as
disclosed on the face of the Balance Sheet (excluding any notes thereto).
5.6 Taxes. All taxes, including, without limitation, income,
property, sales, use, franchise, value added, employees' income withholding and
social security taxes, imposed by the United States or by any foreign country or
by any state, municipality, subdivision or instrumentality of the United States
or of any foreign country, or by any other taxing authority, which are due or
payable by Seller, and all interest and penalties thereon, whether disputed or
not, have been paid in full, all tax returns required to be filed in connection
therewith have been accurately prepared and duly and timely filed and all
deposits required by law to be made by Seller with respect to employees'
withholding taxes have been duly made. Seller has not been delinquent in the
payment of any foreign or domestic tax, assessment or governmental charge or
deposit and has no tax difficulty or claim outstanding, proposed or assessed
against it, and there is no basis for any such deficiency or claim. Seller's
federal income tax returns have been filed with and accepted by the Internal
Revenue Service for all of its fiscal years through the year ended 1995, there
is not now in force any extension of time with respect to the date on which any
tax return was or is due to be filed by or with respect to Seller, or any waiver
or agreement by it for the extension of time for the assessment of any tax.
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5.7 Absence of Changes or Events. Except as may be set forth in
Schedule 5.7 attached hereto, since the Balance Sheet Date Seller has conducted
its business only in the ordinary course and has not:
5.7.1 incurred any obligation or liability, absolute, accrued,
contingent or otherwise, whether due or to become due, except current
liabilities for trade or business obligations incurred in connection
with the purchase of goods or services in the ordinary course of
business and consistent with its prior practice, none of which
liabilities, in any case or in the aggregate, materially and adversely
affects the business, liabilities or financial condition of Seller;
5.7.2 discharged or satisfied any lien, charge or encumbrance
other than those then required to be discharged or satisfied, or paid
any obligation or liability, absolute, accrued, contingent or
otherwise, whether due or to become due, other than current liabilities
shown on the Balance Sheet and current liabilities incurred since the
Balance Sheet Date in the ordinary course of business and consistent
with its prior practice;
5.7.3 mortgaged, pledged or subjected to lien, charge,
security interest or any other encumbrance or restriction any of its
property, business or assets, tangible or intangible;
5.7.4 sold, transferred, leased to others or otherwise
disposed of any of its assets, except for inventory sold in the
ordinary course of business, or canceled or compromised any debt or
claim, or waived or released any right of substantial value;
5.7.5 received any notice of termination of any contract,
lease or other agreement or suffered any damage, destruction or loss
(whether or not covered by insurance) which, in any case or in the
aggregate, has had a materially adverse effect on the assets,
operations or prospects of Seller;
5.7.6 encountered any labor union organizing activity, had any
actual or threatened employee strikes, work stoppages, slow-downs or
lock-outs, or had any material change in its relations with its
employees, agents, customers or suppliers;
5.7.7 transferred or granted any rights under, or entered into
any settlement regarding the breach or infringement of, any United
States or foreign license, patent, copyright, trademark, trade name,
invention or similar rights, or modified any existing rights with
respect thereto;
5.7.8 made any change in the rate of compensation, commission,
bonus or other direct or indirect remuneration payable, or paid or
agreed or orally promised to pay, conditionally or otherwise, any
bonus, extra compensation, pension or severance or vacation pay, to any
employee, salesman, distributor or agent of Seller;
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5.7.9 acquired any capital stock or other securities of any
corporation or any interest in any business enterprise, or otherwise
made any loan or advance to or investment in any person, firm or
corporation;
5.7.10 made any capital expenditures or capital additions or
betterments in excess of an aggregate of $1,000.00;
5.7.11 changed its banking or safe deposit arrangements;
5.7.12 instituted, settled or agreed to settle any litigation,
action or proceeding before any court or governmental body relating to
Seller or Seller's Assets;
5.7.13 failed to replenish its inventories and supplies in a
normal and customary manner consistent with its prior practice and
prudent business practices prevailing in the industry, or made any
purchase commitment in excess of the normal, ordinary and usual
requirements of its business or at any price in excess of the then
current market price or upon terms and conditions more onerous than
those usual and customary in the industry, or made any change in its
selling, pricing, advertising or personnel practices inconsistent with
its prior practice and prudent business practices prevailing in the
industry;
5.7.14 suffered any change, event or condition which, in any
case or in the aggregate, has had or may have a materially adverse
effect on Seller's condition (financial or otherwise), properties,
assets, liabilities, operations or prospects, including, without
limitation, any change in Seller's revenues, costs, backlog or
relations with its employees, agents, customers or suppliers; or
5.7.15 entered into any transaction, contract or commitment
other than in the ordinary course of business or paid or agreed to pay
any legal, accounting, brokerage, finder's fee, taxes or other expenses
in connection with, or incurred any severance pay obligations by reason
of, this Agreement or the transactions contemplated hereby.
5.8 Litigation. Except as may be set forth in Schedule 5.8
attached hereto, there is no claim, legal action, suit, arbitration,
governmental investigation or other legal or administrative proceeding, nor any
order, decree or judgment in progress, pending or in effect, or to the knowledge
of Seller threatened, against or relating to Seller, its employees, its
properties, assets or business or the transactions contemplated by this
Agreement, and Seller does not know or have reason to be aware of any basis for
the same.
5.9 Compliance With Laws and Other Instruments. Except as may be
set forth in Schedule 5.9 annexed hereto, Seller has complied with all existing
laws, rules, regulations, ordinances, orders, judgments and decrees now or
hereafter applicable to its business, properties or operations as presently
conducted. Neither the ownership nor use of Seller's Assets nor the conduct of
its business conflicts with the rights of any other person, firm or corporation
or violates, or with
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or without the giving of notice or the passage of time, or both, will violate,
conflict with or result in a default, right to accelerate or loss of rights
under any lien, encumbrance, mortgage, deed of trust, lease, license, agreement,
understanding, law, ordinance, rule or regulation, or any order, judgment or
decree to which Seller is a party or by which it may be bound or affected.
Seller is not aware of any proposed laws, rules, regulations, ordinances,
orders, judgments, decrees, governmental takings, condemnations or other
proceedings which would be applicable to its business, operations or properties
and which might adversely affect its properties, assets, liabilities, operations
or prospects, either before or after the Closing.
5.10 Title to Properties. Seller has good, marketable and insurable
title to all the properties and assets it owns or uses in its business or
purports to own, including, without limitation, those reflected in its books and
records and in the Balance Sheet (except inventory sold after the Balance Sheet
Date in the ordinary course of business). None of such properties and assets are
subject to any mortgage, pledge, lien, charge, security interest, encumbrance,
restriction, lease, license, easement, liability or adverse claim of any nature
whatsoever, direct or indirect, whether accrued, absolute, contingent or
otherwise, except, (i) as expressly set forth in the Balance Sheet as securing
specific liabilities or as otherwise expressly permitted by the terms hereof or
(ii) those imperfections of title and encumbrances, if any, which (a) are not
substantial in character, amount or extent and do not materially detract from
the value of the properties subject thereto, (b) do not interfere with either
the present and continued use of such property or the conduct of Seller's normal
operations, and (c) have arisen only in the ordinary course of business. All of
the properties and assets owned, leased or used by Seller are in good operating
condition and repair, are suitable for the purposes used, and are adequate and
sufficient for all current operations of Seller.
5.11 Environmental Compliance. Except as may be set forth in Schedule
5.11 attached hereto, Seller's business is being operated in material compliance
with all environmental laws, including all orders, writs, injunctions, decrees,
judgments, rulings, laws, rules and regulations of any court, governmental
authority or arbitrator, and all terms and conditions of the required approvals,
authorizations, permits, licenses, orders and agreements, and are also in
material compliance with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in any environmental law.
5.12 Environmental Notices. Except as may be set forth in Schedule 5.12
attached hereto, Seller is not aware of, nor has it been advised of, any past,
present or future events, conditions, circumstances, activities, practices,
incidents, actions or plans that may interfere with or prevent compliance or
continued compliance with environmental laws or which may give rise to any
common law or legal liability, or which would otherwise form the basis of any
claim, action, demand, suit, proceeding, hearing, study or investigation, and
that is based on or related to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling, or the emission,
discharge, release or threatened release into the environment, of any hazardous
substance.
5.13 Environmental Claims. Except as may be set forth in Schedule 5.13
attached hereto, there is no civil, criminal or administrative action, suit,
demand, claim, hearing, notice or demand
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letter, notice of violation, investigation, allegations, or proceeding pending
or threatened against Seller, of which Seller has received notice, in connection
with Seller's business or the Seller's Assets relating in any way to
environmental laws.
5.14 Environmental Permits. Except as may be set forth in Schedule
5.14, to the best of Seller's knowledge, Seller currently maintains all material
governmental approvals, authorizations, permits, licenses, orders and agreements
required to operate and maintain Seller's business and the Seller's Assets, and
has materially complied with all requirements relating thereto.
5.15 Schedules. Attached hereto as Schedule 5.15 is a separate
schedule containing an accurate and complete list and description of:
5.15.1 All real property owned by Seller or in which Seller
has a leasehold or other interest or which is used by Seller in
connection with the operation of its business, together with a
description of each lease, sublease, license, or any other instrument
under which Seller claims or holds such leasehold or other interest or
right to the use thereof or pursuant to which Seller has assigned,
sublet or granted any rights therein, identifying the parties thereto,
the rental or other payment terms, expiration date and cancellation and
renewal terms thereof.
5.15.2 As of a date no earlier than February 29, 1996, all of
Seller's receivables (which shall include accounts receivable, loans
receivable and any advances), together with detailed information as to
each such listed receivable which has been outstanding for more than 30
days.
5.15.3 All machinery, tools, equipment, motor vehicles,
rolling stock and other tangible personal property (other than
inventory and supplies, owned, leased or used by Seller except for
items having a value of less than $100.00, which do not, in the
aggregate, have a total value of more than $250.00, setting forth with
respect to all such listed property a summary description of all
leases, liens, claims, encumbrances, charges, restrictions, covenants
and conditions relating thereto, identifying the parties thereto, the
rental or other payment terms, expiration date and cancellation and
renewal terms thereof.
5.15.4 All patents, patent applications, patent licenses,
trademarks, trademark registrations, and applications therefor, service
marks, service names, trade names, copyrights and copyright
registrations, and applications therefor, wholly or partially owned or
held by Seller or used in the operation of Seller's business.
5.15.5 All fire, theft, casualty, liability and other
insurance policies insuring Seller, specifying with respect to each
such policy the name of the insurer, the risk insured against, the
limits of coverage, the deductible amount (if any), the premium rate
and the date through which coverage will continue by virtue of premiums
already paid. Except as disclosed in Schedule 5.15, such policies are
with reputable insurers, provide adequate coverage for all normal risks
incident to Seller's assets, properties and business operations and are
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character and amount at least equivalent to that carried by persons
engaged in a business subject to the same or similar perils or hazards.
5.15.6 All sales agent or route distributorship agreements or
franchises or agreements providing for the services of an independent
contractor to which Seller is a party or by which it is bound.
5.15.7 All contracts, agreements, commitments or licenses,
whether written or oral, relating to patents, trademarks, trade names,
copyrights, inventions, processes, know-how, formulae or trade secrets
to which Seller is a party or by which it is bound.
5.15.8 All loan agreements, indentures, mortgages, pledges,
conditional sale or title retention agreements, security agreements,
equipment obligations, guaranties, leases or lease purchase agreements
to which Seller is a party or by which it is bound.
5.15.9 All contracts, agreements, commitments or other
understandings or arrangements to which Seller is a party or by which
it or any of its property is bound or affected by excluding (i)
purchase and sales orders and commitments made in the ordinary course
of business involving payments or receipts by Seller of less than
$100.00 in any single case but not more than $250.00 in the aggregate,
(ii) contracts entered into in the ordinary course of business and
involving payments or receipts by Seller of less than $100.00 in the
case of any single contract but not more than $250.00 in the aggregate,
and (iii) contracts entered into in the ordinary course of business
which are terminable by Seller on less than 30 days' notice without any
penalty or consideration and involving payments or receipts by Seller
of less than $100.00 in the case of any single contract but not more
than $250.00 in the aggregate.
5.15.10 All collective bargaining agreements, employment and
consulting agreements, executive compensation plans, bonus plans,
deferred compensation agreements, employee pension plans or retirement
plans, employee stock options or stock purchase plans and group life,
health and accident insurance and other employee benefit plans,
agreements, arrangements or commitments, whether or not legal binding,
including, without limitation, holiday, vacation, Christmas and other
bonus practices, to which Seller is a party or is bound or which relate
to the operation of Seller's business.
5.15.11 The names and current annual salary rates of all
persons (including independent commission agents) whose annual
compensation (direct or indirect) from Seller is currently at the rate
of more than $10,000.00 per annum and showing separately for each such
person the amounts paid or payable as salary, bonus payments and any
indirect compensation for the year ended December 31, 1995; and
5.15.12 The name of each bank in which Seller has an account
or safe deposit box and the names of all persons authorized to draw
thereon or have access thereto; and the
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names of all persons, if any, holding tax or other powers of attorney
from Seller and a summary of the terms thereof.
All of the contracts, agreements, leases, licenses and commitments required to
be listed on Schedule 5.15 (other than those which have been fully performed)
are valid and binding, enforceable in accordance with their respective terms, in
full force and effect, and except as otherwise specified in Schedule 5.15,
validly assignable to Purchaser without the consent of any other party so that,
after the assignment thereof to Purchaser pursuant hereto, Purchaser will be
entitled to the full benefits thereof. Except as disclosed in Schedule 5.15,
none of the payments required to be made under any such contract, agreement,
lease, license or commitment has been prepaid more than 30 days prior to the due
date of such payment thereunder, and there is not thereunder any existing
default, or event which, after notice or lapse of time, or both, would
constitute a default or result in a right to accelerate or loss of rights, and
none of such contracts, agreements, leases, licenses or commitments is, either
when considered singly or in the aggregate with others, unduly burdensome,
onerous or materially adverse to Seller's business, properties, assets, earnings
or prospects or likely, either before or after the Closing, to result in any
material loss or liability. None of Seller's existing or completed contracts is
subject to renegotiation with any governmental body. True and complete copies of
all such contracts, agreements, leases, licenses and other documents listed on
Schedule 5.15 (together with any and all amendments thereto) will be delivered
to Purchaser at Purchaser's request.
5.16 Patents, Etc. Seller owns or possesses the licenses or other
rights to use all copyrights, trademarks, service marks, service names, trade
names, patents, trade secrets and other proprietary rights necessary to conduct
its business as it is presently operated. Seller is not infringing upon or
otherwise acting adversely to any copyrights, trademarks, trademark rights,
service marks, service names, trade names, patents, patent rights, licenses,
trade secrets or other proprietary rights owned by any other person or persons,
and there is no claim or action by any such person pending, or to the knowledge
of Seller threatened, with respect thereto.
5.17 No Guaranties. None of the obligations or liabilities of Seller is
guaranteed by any other person, firm or corporation, nor has Seller guaranteed
the obligations or liabilities of any other person, firm or corporation.
5.18 Inventory. Substantially all items of Seller's inventory and
related supplies (including raw materials, work-in-process and finished goods)
reflected on the Balance Sheet or thereafter acquired (and not subsequently
disposed of in the ordinary course of business) are merchantable, or suitable
and usable for the production or completion of merchantable products, for sale
in the ordinary course of business as standard quality goods at normal xxxx-ups,
substantially all of which items are not obsolete or below standard quality and
as a whole such inventory reflected in the Balance Sheet and the books and
records of Seller is so reflected on the basis of a complete physical count and
is valued at the lower of cost (on a last-in, first-out basis) or market in
accordance with generally accepted accounting principles consistently applied.
Seller's Assets include a sufficient but not an excessive quantity of each type
of such inventory and supplies in order to meet
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the normal requirements of Seller's business and operations for a period of not
less than one nor more than three months.
5.19 Receivables. All receivables of Seller (including accounts
receivable, loans receivable and advances) which are reflected in the Balance
Sheet, and all such receivables which will have arisen since the date thereof,
shall have arisen only from bona fide transactions in the ordinary course of
Seller's business and shall be (or have been) fully collected when due, or in
the case of each account receivable within 90 days after it arose, without
resort to litigation and without offset or counterclaim, in the aggregate face
amounts thereof except to the extent of the normal allowance for doubtful
accounts with respect to accounts receivable computed as a percentage of sales
consistent with Seller's prior practices as reflected on the most recent annual
Financial Statement.
5.20 Records. The books of account of Seller are substantially complete
and correct in all material respects, and there have been no transactions
involving the business of Seller which are required to be set forth therein and
which have not been accurately so set forth.
5.21 Absence of Certain Business Practices. Neither Seller nor any
employee or agent of Seller, nor any other person acting on its behalf, has,
directly or indirectly, within the past five years given or agreed to give any
gift or similar benefit to any customer, supplier, governmental employee or
other person who is or may be in a position to help or hinder the business of
seller (or assist Seller in connection with any actual or proposed transaction)
which (i) might subject Seller to any damage or penalty in any civil, criminal
or governmental litigation or proceeding, (ii) if not given in the past, might
have had an adverse effect on the assets, business or operations of Seller as
reflected in the Financial Statements, or (iii) if not continue in the future,
might adversely affect Seller's assets, business, operation or prospects or
which might subject Seller to suit or penalty in any private or governmental
litigation or proceeding.
5.22 Disclosure. No representation or warranty by Seller contained in
this Agreement nor any statement or certificate furnished or to be furnished by
Seller to Purchaser or its representatives in connection herewith or pursuant
hereto contains or will contain any untrue statement of a material fact, or
omits or will omit to state any material fact required to make the statements
herein or therein contained not misleading or necessary in order to provide a
prospective purchaser of the business of the Seller with adequate information as
to Seller and its condition (financial and otherwise), properties, assets,
liabilities, business and prospects, and Seller has disclosed to Purchaser in
writing all material adverse facts known to them relating to the same. The
representations and warranties contained in this Section 5 or elsewhere in this
Agreement or any document delivered pursuant hereto shall not be affected or
deemed waived by reason of the fact that Purchaser and/or its representatives
knew or should have known that any such representation or warranty is or might
be inaccurate in any respect.
5.23 No Conflict. The execution and delivery of this Agreement and the
sale of assets hereunder and performance of this Agreement by Seller will not
conflict with any regulation or
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agreement to which Seller is a party or by which it may be bound. No
authorization by, consent of, or filing with any regulatory body or other
person, not duly obtained or made, is necessary to permit Seller to execute and
perform this Agreement.
6. Representations and Warranties by Purchaser. Purchaser represents
and warrants to Seller as follows:
6.1 Organization. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Texas and has full
corporate power and authority to enter into this Agreement and the related
agreements referred to herein and to carry out the transactions contemplated by
this Agreement and to carry on its business as now being conducted and to own,
lease or operate its properties.
6.2 Authorization and Approval of Agreement. All proceedings or
corporate action required to be taken by Purchaser relating to the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby shall have been taken at or prior to the Closing.
6.3 Execution, Delivery and Performance of Agreement. Neither the
execution, delivery nor performance of this Agreement by Purchaser will, with or
without the giving of notice or the passage of time, or both, conflict with,
result in a default, right to accelerate or loss of rights under, or result in
the creation of any lien, charge or encumbrance pursuant to, any provision of
Purchaser's certificate of incorporation or bylaws or any franchise, mortgage,
deed of trust, lease, license, agreement, understanding, law, ordinance, rule or
regulation or any order, judgment or decree to which Purchaser is a party or by
which it may be bound or affected. Purchaser has full power and authority to
enter into this Agreement and to carry out the transactions contemplated hereby,
all proceedings required to be taken by Purchaser to authorize the execution,
delivery and performance of this Agreement and the agreements relating hereto
have been properly taken and this Agreement constitutes a valid and binding
obligation of Purchaser.
6.4 Litigation. There is no legal action, suit, arbitration,
governmental investigation or other legal or administrative proceeding, nor any
order, decree or judgment in progress, pending or in effect, or to the knowledge
of Purchaser threatened, against or relating to Purchaser in connection with or
relating to the transactions contemplated by this Agreement and Purchaser does
not know or have any reason to be aware of any basis for the same.
7. Conduct of Business Prior to Closing.
7.1 Prior to the Closing, Seller shall conduct its business and affairs
only in the ordinary course and consistent with its prior practice and shall
maintain, keep and preserve its assets and properties in good condition and
repair and maintain insurance thereon in accordance with present practices, and
Seller will use its best efforts (i) to preserve the business and organization
of Seller intact, (ii) to keep available to Purchaser the services of Seller's
present employees, agents and
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independent contractors, (iii) to preserve for the benefit of Purchaser the
goodwill of Seller's suppliers, customers, landlords and others having business
relations with it, and (iv) to cooperate with Purchaser and use reasonable
efforts to assist Purchaser in obtaining the consent of any landlord or other
party to any lease or contract with Seller where the consent of such landlord or
other party may be required by reason of the transactions contemplated hereby.
Without limiting the generality of the foregoing, prior to the Closing Seller
will not without Purchaser's prior written approval enter into any contract,
agreement, commitment or other understanding or arrangement except for those of
the type which would not have to be listed and described under section 5.15.9
above.
7.2 Seller shall give Purchaser prompt written notice of any change in
any of the information contained in the representations and warranties made in
Section 5 or elsewhere in this Agreement or the Schedules referred to herein
which occurs prior to the Closing.
7.3 Seller shall consult with and follow the recommendations of
Purchaser with respect to (i) the cancellation of contracts, agreements,
commitments or other understandings or arrangements to which Seller is a party,
including, without limitation, purchase orders for any item of inventory and
commitments for capital expenditures or improvements, (ii) the commencement in
one or more of Seller's locations of the orderly and gradual discontinuance of
particular items or operations and (iii) purchasing, pricing or selling policy
(including, without limitation, selling merchandise at discounts); provided,
however, that nothing contained in this Section 7.3 shall require Seller to take
or fail to take any action that is likely to give rise to a substantial penalty
or a claim for damages by any third party against Seller, or is likely to result
in losses to Seller, or is otherwise likely to prejudice in any material respect
or unduly interfere with the conduct of Seller's business and operations in the
ordinary course consistent with prior practice, or is likely to result in a
breach by Seller of any of its representations, warranties or covenants
contained in this Agreement (unless any such breach is first waived in writing
by Purchaser).
8. Access to Information and Documents. Upon reasonable notice and
during regular business hours, Seller will give Purchaser and Purchaser's
attorney, accountants and other representatives full access to Seller's
personnel and all properties, documents, contracts, books and records of Seller
and will furnish Purchaser with copies of such documents, and with such
information with respect to the affairs of Seller as Purchaser may from time to
time request, and Purchaser will not improperly disclose the same prior to the
Closing. Any such furnishing of such information to Purchaser or any
investigation by Purchaser shall not affect Purchaser's right to rely on any
representations and warranties made in this Agreement or in connection herewith
or pursuant hereto.
9. Employment Matters.
9.1 It is the intent and desire of Purchaser to maintain personnel
after the Closing Date as close as possible to current levels, and to provide
employment to as many of Seller's current employees as possible. Attached hereto
as Schedule 9.1 is a list of all employees of Seller as of the date of this
Agreement, including the salary or rate of compensation for each such employee.
Prior
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to the Closing Date, Purchaser will provide to Seller a list of employees to
whom Purchaser does not intend to offer continued employment after the Closing
Date. At the Closing Date all employees listed on Schedule 9.1 who have not been
excluded by Purchaser shall become the employees of Purchaser, and shall
thereupon become subject to Purchaser's employment policies and procedures.
9.2 As of the Closing Date, Xxxx Xxxxxx shall become part of the
executive management team of Purchaser, and his title, duties, compensation and
benefits shall thereafter be set by the Board of Directors of Purchaser in
accordance with Purchaser's executive compensation guidelines, as such
guidelines may be amended and reformulated from time to time. It is intended
that the base salary of Xxxx Xxxxxx shall be commensurate with the base salary
of the most senior management personnel of Purchaser. Xxxx Xxxxxx shall be
entitled to participate fully in all employee benefits and arrangements now in
effect or that may hereafter be established. The level of benefits applicable to
Xxxx Xxxxxx shall be determined the same as the level of benefits are determined
for other senior management personnel of Purchaser.
9.3 Purchaser covenants and agrees that at, or within a reasonable
period of time following, the Closing Date Purchaser shall provide such
training, equipment and support to Seller's employees as is necessary to enable
such employees to utilize and sell Purchaser's technology and methods.
10. Release of Name. At the request of Purchaser, Seller shall execute
and deliver to Purchaser whatever documents or consents are necessary to release
the name "T-Co" and to allow Purchaser to use that name or any variations
thereof.
11. Bulk Sales Compliance. Purchaser hereby waives compliance by Seller
with the provisions of the Bulk Sales Law of any state, and Seller warrants and
agrees to pay and discharge when due all claims of creditors which could be
asserted against Purchaser by reason of such noncompliance to the extent that
such liabilities are not specifically assumed by Purchaser under this Agreement.
Seller hereby indemnifies and agrees to hold Purchaser harmless from, against
and in respect of (and shall on demand reimburse Purchaser for) any loss,
liability, cost or expense, including, without limitation, attorneys' fees,
suffered or incurred by Purchaser by reason of the failure of Seller to pay or
discharge such claims.
12. Non-Competition Agreement. Seller shall execute and deliver to
Purchaser at or prior to the Closing a Non-Competition and Continuity of
Business Dealings Undertaking in the form of Exhibit "D" annexed hereto.
13. Conditions Precedent to Purchaser's Obligations. All obligations of
Purchaser hereunder are subject, at the option of Purchaser, to the fulfillment
of each of the following conditions at or prior to the Closing, and Seller shall
exert its best efforts to cause each such condition to be fulfilled:
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13.1 All representations and warranties of Seller contained herein
or in any document delivered pursuant hereto shall be true and correct in all
material respects when made and shall be deemed to have been made again at and
as of the date of the Closing, and shall then be true and correct in all
material respects except for changes in the ordinary course of business after
the date hereof in conformity with the covenants and agreements contained
herein.
13.2 All covenants, agreements and obligations required by the
terms of this Agreement to be performed by Seller at or before the Closing shall
have been duly and properly performed in all material respects.
13.3 Since the date of this Agreement there shall not have occurred
any material adverse change in the condition (financial or otherwise), business,
properties, assets or prospects of Seller.
13.4 All documents required to be delivered to Purchaser at or
prior to the Closing shall have been so delivered.
13.5 Seller shall have obtained written consents to the transfer or
assignment to Purchaser of all consignment agreements, licenses, leases and
other material contracts of Seller (other than immaterial purchase and sales
orders in the ordinary course of business) where the consent of any other party
to any such contract may, in the opinion of Purchaser's counsel be required for
such assignment or transfer.
14. Conditions Precedent to Seller's Obligations. All obligations
of Seller at the Closing are subject, at the option of Seller, to the
fulfillment of each of the following conditions at or prior to the Closing, and
Purchaser shall exert its best efforts to cause each such condition to be so
fulfilled:
14.1 All representations and warranties of Purchaser contained
herein or in any document delivered pursuant hereto shall be true and correct in
all material respects when made and as of the Closing.
14.2 All obligations required by the terms of this Agreement to be
performed by Purchaser at or before the Closing shall have been duly and
properly performed in all material respects.
15. Indemnification.
15.1 Seller hereby indemnifies and agrees to hold Purchaser
harmless from, against and in respect of (and shall on demand reimburse
Purchaser for):
15.1.1 any and all loss, liability or damage suffered or
incurred by Purchaser by reason of any untrue representation, breach of
warranty or nonfulfillment of any covenant by Seller contained herein
or in any certificate, document or instrument delivered to Purchaser
pursuant hereto or in connection herewith;
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15.1.2 any and all loss, liability or damage suffered or
incurred by Purchaser in respect of or in connection with any
liabilities of Seller not expressly assumed by Purchaser pursuant to
the terms of the Liabilities Undertaking;
15.1.3 any and all debts, liabilities or obligations of
Seller, direct or indirect, fixed, contingent or otherwise, which exist
at or as of the Balance Sheet Date or which arise after the Balance
Sheet Date but which are based upon or arise from any act, omission,
transaction, circumstance, sale of goods or services, state of facts or
other condition which occurred or existed on or before the Balance
Sheet Date, whether or not then known, due or payable, except to the
extent reflected or reserved against on the face of the Balance Sheet
(excluding any notes thereto);
15.1.4 any and all debts, liabilities or obligations of
Seller, direct or indirect, fixed, contingent or otherwise, which exist
at or as of the date of the Closing hereunder or which arise after the
Closing but which are based upon or arise from any act, omission,
transaction, circumstance, sale of goods or services, state of facts or
other condition which occurred or existed on or before the date of the
Closing, whether or not then known, due or payable, except to the
extent (i) reflected or reserved against on the face of the Balance
Sheet (excluding any notes thereto) or incurred after the Balance Sheet
Date in connection with the purchase of goods or services in the
ordinary course of Seller's business and in conformity with the
representations, warranties and covenants contained in this Agreement
(or a Schedule hereto) and (ii) expressly assumed by Purchaser pursuant
to the terms of the Liabilities Undertaking;
15.1.5 the amount of any and all receivables of the Company
which are not collected in accordance with the provisions of this
Agreement;
15.1.6 any and all loss, liability or damage suffered or
incurred by Purchaser by reason of or in connection with any claim for
finder's fee or brokerage or other commission arising by reason of any
services alleged to have been rendered to or at the instance of Seller
with respect to this Agreement or any of the transactions contemplated
hereby;
15.1.7 any and all loss, liability or damage suffered or
incurred by Purchaser by reason of any claim for severance pay accruing
or incurred at any time on or after the date hereof except to the
extent any one or more specific employees are discharged prior to the
Closing hereunder with the prior written consent of Purchaser and such
consent contains the name(s) of such specific employee(s); and
15.1.8 any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs and expenses, including, without
limitation, legal fees and expenses, incident to any of the foregoing
or incurred in investigating or attempting to avoid the same or to
oppose the imposition thereof, or in enforcing this indemnity.
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15.2 Purchaser hereby agrees to indemnify and hold Seller harmless
from, against and in respect of (and shall on demand reimburse for):
15.2.1 Any and all loss, liability or damage resulting from
any untrue representation, breach of warranty or nonfulfillment of any
covenant or agreement by Purchaser contained herein or in any
certificate, document or instrument delivered to Seller hereunder;
15.2.2 Any and all liabilities or obligations of Seller
specifically assumed by Purchaser pursuant to this Agreement; and
15.2.3 Any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs and expenses, including, without
limitation, legal fees and expenses, incident to anything set forth in
Sections 15.2.1 and 15.2.2 above or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
16. Nature and Survival of Representations and Warranties. All
statements, representations, warranties, indemnities, covenants and agreements
made by each of the parties hereto shall survive the Closing.
17. Notices. Any and all notices or other communications required
or permitted to be given under any of the provisions of this Agreement shall be
in writing and shall be deemed to have been duly given when personally delivered
or mailed by first class registered mail, return receipt requested, addressed to
the parties at the addresses set forth above (or at such other address as any
party may specify by notice to all other parties given as aforesaid).
18. Legal and Other Costs.
18.1 In the event that any party (the "Defaulting Party") defaults
in his or its obligations under this Agreement and, as a result thereof, the
other party (the "Non-Defaulting Party") seeks to legally enforce his or its
rights hereunder against the Defaulting Party, then, in addition to all damages
and other remedies to which the Non-Defaulting Party is entitled by reason of
such default, the Defaulting Party shall promptly pay to the Non-Defaulting
Party an amount equal to all costs and expenses (including reasonable attorneys'
fees) paid or incurred by the Non-Defaulting Party in connection with such
enforcement.
18.2 In the event that the Non-Defaulting Party is entitled to
receive an amount of money by reason of the Defaulting Party's default
hereunder, then, in addition to such amount of money, the defaulting Party shall
promptly pay to the Non-Defaulting Party a sum equal to interest on such amount
of money accruing at the rate of 2% per month (but if such rate is not permitted
under the laws of the state having jurisdiction of such matter, then at the
highest rate which is permitted to be paid under the laws of such state) during
the period between the date such payment should have been made hereunder the
date of the actual payment thereof [sic].
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19. Miscellaneous.
19.1 This writing constitutes the entire agreement of the parties with
respect to the subject matter hereof and may not be modified, amended or
terminated except by a written agreement specifically referring to this
Agreement signed by all of the parties hereto.
19.2 No waiver of any breach or default hereunder shall be considered
valid unless in writing and signed by the party giving such waiver, and no such
waiver shall be deemed a waiver of any subsequent breach of default of the same
of similar nature.
19.3 This Agreement shall be binding upon and inure to the benefit of
each corporate party hereto, its successors and assigns, and each individual
party hereto and his heirs, personal representatives, successors and assigns.
19.4 The paragraph headings contain [sic] herein are for the purposes
of convenience only and are not intended to defined [sic] or limit the contents
of said paragraphs.
19.5 Each party hereto shall cooperate, shall take such further action
and shall execute and deliver such further documents as may be reasonably
requested by any other party in order to carry out the provisions and purposes
of this Agreement.
19.6 Seller will pay all sales, transfer and documentary taxes, if any,
payable in connection with the sale, conveyances, assignments, transfers and
deliveries to be made to Purchaser hereunder.
19.7 This Agreement may be executed in one or more counterparts, all of
which taken together shall be deemed one original.
19.8 This Agreement and all amendments thereof shall be governed by and
construed in accordance with law of the State of Utah (Purchaser's principal
place of business) applicable to contracts made and to be performed therein.
19.9 Any and all information revealed pursuant to this Agreement or
previously in the course of negotiations among the parties, shall be held in
strict confidence and solely for the purpose of facilitating the consummation of
this Agreement in allowing the parties to exercise prudent care with respect
thereto. Should this Agreement not be consummated for any reason, no further use
may be made by any party of any such information so obtained (except to the
extent such information either is or becomes published or is a matter of public
knowledge or was already known prior to the inception of negotiations for this
Agreement) and the parties may be held strictly accountable for any unauthorized
use thereof. Should this Agreement not be consummated for any reason, the
parties shall return all documents (including all copies thereof) received from
any party in connection with this Agreement and/or the transactions contemplated
hereby. If the transactions contemplated by this Agreement are consummated,
neither party will disclose to others any information concerning the business of
Seller or Purchaser or the terms of this Agreement except as approved by the
other
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party, as necessary for the conduct of the Purchaser's or Seller's business, as
required by law or by a court of law or other regulatory or administrative
tribunal, which is ascertainable or obtained from public or published
information, which was received from a third party not known by such person to
be under an obligation to keep such information confidential, or which is or
becomes known to the public (other than through a breach of this Agreement).
19.10 Wherever possible, each provision hereof shall be interpreted in
such manner as to be effective and valid under applicable law, but in case any
one or more of the provisions contained herein shall, for any reason, be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Agreement and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision or provisions had never been contained herein unless the deletion of
such provision or provisions would result in such a material change as to cause
completion of the transactions contemplated hereby to be unreasonable.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly, executed as of the day and year first above written.
SELLER:
/s/ Xxxx Xxxxxx
-----------------------------------
XXXX XXXXXX doing business as T-CO
CARPET CLEANING and T-CO HEATING
SYSTEMS
PURCHASER:
VENTURI TECHNOLOGIES, INC., a Texas
Corporation
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Its: Chairman & CEO
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