Exhibit 10.1
SHARE PURCHASE AND MEMBERSHIP PURCHASE AGREEMENT
by and between
XXXXXXX XXXXXXXX, AS SOLE SHARE HOLDER OF XXXXXXXX DESIGN SERVICE, INC.,
and
XXXXXXX XXXXXXXX, AS SOLE MEMBER OF XXXXXXXX RENTALS, L.L.C.,
as Seller,
and
INCODE TECHNOLOGIES CORPORATION,
and
INSEQ STEEL CORPORATION,
collectively, as Purchaser,
Dated as of April 4, 2005
V.4.1.05
SHARE PURCHASE AND MEMBERSHIP AGREEMENT
THIS AGREEMENT is made as of the 4th day of April, 2005
AMONG:
INCODE TECHNOLOGIES CORPORATION, a company formed pursuant to the
laws of the State of Nevada and having an office for business
located at 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxxxxx, Xxx
Xxxxxx 00000 (referred to herein individually as "Incode" or the
"Purchaser")
AND:
INSEQ STEEL CORPORATION, a company formed pursuant to the laws of
the State of Delaware and having an office for business located
at 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxxxxx, Xxx Xxxxxx
00000 (referred to herein individually as "INSEQ")
AND:
XXXXXXX XXXXXXXX, AS SOLE SHARE HOLDER OF XXXXXXXX DESIGN
SERVICE, INC., a company formed pursuant to the laws of the State
of Ohio, and having an office for business located at 000
Xxxxxxxxxxx Xxxxx, X.X. Xxx 000, Xxxxxxxxx, Xxxx 00000 (referred
to herein as "Xxxxxxxx as the "Seller")
AND:
XXXXXXX XXXXXXXX, AS SOLE MEMBER OF XXXXXXXX RENTALS, L.L.C.., a
limited liability company formed pursuant to the laws of the
State of Ohio, and having an office for business located at 000
Xxxxxxxxxxx Xxxxx, X.X. Xxx 000, Xxxxxxxxx, Xxxx 00000 (referred
to herein as "Xxxxxxxx " as the "Seller")
WHEREAS:
A. Incode was formed to acquire, develop and commercialize innovative
subscription-based eBusinesses and plans to build a successful
portfolio of diversified eBusinesses with integrated on- and off-line
operations, including, as relevant here, an online steel products
distribution portal;
B. INSEQ is a wholly owned subsidiary of Incode that was formed to acquire
and consolidate a number of compatible steel and other metal products
companies;
X. XXXXXXXX DESIGN SERVICE, INC. is engaged in the business of designing,
fabricating, distributing and maintaining steel and other metal
products (the "Business") incidental to which it has certain assets
including but not limited to the following:
(a) Accounts receivable, inventories, prepaid expenses and other
miscellaneous assets;
(b) Certain equipment and vehicles;
(c) Certain computer equipment and fixtures, furniture and the
like;
(d) Certain telephone and facsimile numbers; and,
D. The Purchaser desires to purchase and acquire and XXXXXXX XXXXXXXX, AS
SOLE SHARE HOLDER OF XXXXXXXX DESIGN SERVICE, INC. desires to sell,
convey, assign and transfer, or cause to be sold, conveyed, assigned
and transferred, to the Purchaser, all of the Seller's shares of
XXXXXXXX DESIGN SERVICE, INC., and the Board of Directors of Purchaser
deem it advisable that XXXXXXXX DESIGN SERVICE, INC. become a wholly-
owned subsidiary of INSEQ (the "Acquisition") pursuant to this
Agreement.
X. XXXXXXXX RENTALS, L.L.C. is engaged in the business of owning
commercial rental real estate.
F. The Purchaser desires to purchase and acquire and XXXXXXX XXXXXXXX, AS
SOLE MEMBER OF XXXXXXXX RENTALS, L.L.C. desires to sell, convey, assign
and transfer, or cause to be sold, conveyed, assigned and transferred,
to the Purchaser, all of the Seller's Membership interest in and to
XXXXXXXX RENTALS, L.L.C. and the Board of Directors of Purchaser and
deem it advisable that XXXXXXXX RENTALS, L.L.C. become a wholly-owned
subsidiary of INSEQ (the "Acquisition") pursuant to this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the premises
and the mutual covenants, agreements, representations and warranties
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree
as follows:
ARTICLE I
DEFINITIONS
As used herein, the terms below shall have the following meanings:
(a) "Acquisition" means the Acquisition, at the Closing, of Seller's
shares of XXXXXXXX DESIGN SERVICE, INC., and Seller's Membership interest in
and to XXXXXXXX RENTALS, L.L.C. by Purchaser pursuant to this Agreement;
(b) "Acquisition Shares" means 100%, or 50 shares, of XXXXXXXX
DESIGN SERVICE INC.'S issued and outstanding capital stock, and 100%, or one
membership unit, of Xxxxxxxx Rentals L.L.C., to be transferred to Purchaser
at Closing pursuant to the terms of this Agreement;
(c) "Agreement" means this share purchase and membership agreement
between Purchaser and Seller;
(d) "Closing" means the completion, on the Closing Date, of the
transactions contemplated hereby in accordance with Article 3 hereof;
(e) "Closing Date" means the day on which all conditions precedent
to the completion of the transaction as contemplated hereby have been satisfied
or waived;
(f) "Seller Accounts Payable and Liabilities" means all accounts
payable and liabilities of XXXXXXXX DESIGN SERVICE, INC., and XXXXXXXX
RENTALS, L.L.C., due and owing or otherwise constituting a binding obligation
of XXXXXXXX DESIGN SERVICE, INC., and XXXXXXXX RENTALS, L.L.C. (other than a
XXXXXXXX DESIGN SERVICE, INC., and/or a XXXXXXXX RENTALS, L.L.C.'S Material
Contract) as of March 31, 2005 (as attached hereto in Schedule 1(f));
(g) "Seller Accounts Receivable" means all accounts receivable and
other debts owing to XXXXXXXX DESIGN SERVICE, INC., and XXXXXXXX RENTALS,
L.L.C., as of March 31, 2005 (as attached hereto in Schedule 1(g));
(h) "Seller Assets" means all the property and assets of XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. of every kind and
description wheresoever situated including, without limitation, XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Equipment, XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Inventory, XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Material Contracts,
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Accounts
Receivable, XXXXXXXX DESIGN SERVICE, INC., and XXXXXXXX RENTALS, L.L.C.'S
Cash, XXXXXXXX DESIGN SERVICE, INC., and XXXXXXXX RENTALS, L.L.C.'S
Intangible Assets and XXXXXXXX DESIGN SERVICE, INC., and XXXXXXXX RENTALS,
L.L.C.'S Goodwill, and all credit cards, charge cards and banking cards
issued to XXXXXXXX DESIGN SERVICE, INC., and XXXXXXXX RENTALS, L.L.C.;
(i) "Seller Business" means all aspects of the business conducted by
XXXXXXXX DESIGN SERVICE, INC., and XXXXXXXX RENTALS, L.L.C.;
(j) "Seller Cash" means all cash on hand or on deposit to the credit
of XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. on March 31,
2005;
(k) "Seller Debt to Related Parties" means debts owed by Seller to
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. or to any family
member thereof, or to any director or officer of XXXXXXXX DESIGN SERVICE,
INC. and\or XXXXXXXX RENTALS, L.L.C.;
(l) "Seller Equipment" means all machinery, equipment, furniture,
and furnishings used in the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C.'S Business (as attached hereto in Schedule 1(l));
(m) "Seller Financial Statements" means, collectively, the unaudited
consolidated financial statements of XXXXXXXX DESIGN SERVICE, INC. and
XXXXXXXX RENTALS, L.L.C. for the two fiscal years ended December 31, 2004,
and 2003, and the unaudited consolidated financial statements of XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. for the three month period
ended March 31, 2005 (as attached hereto in Schedule 1(m));
(n) "Seller Goodwill" means the goodwill of the XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business together with the
exclusive right of Purchaser to represent itself as carrying on the XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business in succession of
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. subject to the
terms hereof, and the right to use any words indicating that the XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business is so carried on
including the right to use the name "XXXXXXXX DESIGN SERVICE, INC. and
XXXXXXXX RENTALS, L.L.C." or "XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C." or any variation thereof as part of the name of or in
connection with the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C.'S Business or any part thereof carried on or to be carried on by
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C., the right to all
corporate, operating and trade names associated with the XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business, or any variations of
such names as part of or in connection with the XXXXXXXX DESIGN SERVICE, INC.
and XXXXXXXX RENTALS, L.L.C.'S Business, all telephone listings and telephone
advertising contracts, all lists of customers, books and records and other
information relating to the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C.'S Business, all necessary licenses and authorizations and any
other rights used in connection with the XXXXXXXX DESIGN SERVICE, INC. and
XXXXXXXX RENTALS, L.L.C.'S Business;
(o) "Seller Insurance Policies" means the public liability insurance
and insurance against loss or damage to the XXXXXXXX DESIGN SERVICE, INC. and
XXXXXXXX RENTALS, L.L.C.'S Assets and the XXXXXXXX DESIGN SERVICE, INC. and
XXXXXXXX RENTALS, L.L.C.'S Business as described in Schedule 1(o) hereto;
(p) "Seller Intangible Assets" means all of the intangible assets of
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C., including,
without limitation, XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C.'S Goodwill, all trademarks, logos, copyrights, designs, and other
intellectual and industrial property of XXXXXXXX DESIGN SERVICE, INC. and
XXXXXXXX RENTALS, L.L.C. (as attached hereto in Schedule 1(p));
(q) "Seller Inventory" means all inventory and supplies of the
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business as of
the Closing Date (as attached hereto in Schedule 1(q));
(r) "Seller Material Contracts" means the burden and benefit of and
the right, title and interest of XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C. in, to and under all trade and non-trade contracts,
engagements or commitments, whether written or oral, to which XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. are entitled in connection with
the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business
whereunder XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. is
obligated to pay or entitled to receive the sum of $10,000 or more including,
without limitation, any pension plans, profit sharing plans, bonus plans,
loan agreements, security agreements, indemnities and guarantees, any
agreements with employees, lessees, licensees, managers, accountants,
suppliers, agents, distributors, officers, directors, attorneys or others
which cannot be terminated without liability on not more than one month's
notice, each as set forth on Schedule 1(r));
(s) "Seller Real Property" means a complete list of (i) all real
property and interests in real property owned in fee by XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. (individually, a "XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Owned Property" and
collectively, the "XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C.'S Owned Properties"), and (ii) all real property and interests in real
property leased by XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.
as lessee or lessor, set forth on Schedule 1(s);
(t) "Seller Related Party Debts" means the debts owed by XXXXXXX
XXXXXXXX or by any family member thereof, or by any affiliate, director or
officer of XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. or
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. to XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.; and
(u) "Seller Shares" means all of the issued and outstanding shares
of XXXXXXXX DESIGN SERVICE, INC.'S equity stock.
Any other terms defined within the text of this Agreement will have the
meanings so ascribed to them.
Section 1.2 Captions and Section Numbers
The headings and section references in this Agreement are for convenience of
reference only and do not form a part of this Agreement and are not intended
to interpret, define or limit the scope, extent or intent of this Agreement
or any provision thereof.
Section 1.3 Section References and Schedules
Any reference to a particular "Article", "section", "paragraph", "clause" or
other subdivision is to the particular Article, section, clause or other
subdivision of this Agreement and any reference to a Schedule by letter will
mean the appropriate Schedule attached to this Agreement and by such
reference the appropriate Schedule is incorporated into and made part of this
Agreement.
Section 1.4 Severability of Clauses
If any part of this Agreement is declared or held to be invalid for any
reason, such invalidity will not affect the validity of the remainder which
will continue in full force and effect and be construed as if this Agreement
had been executed without the invalid portion, and it is hereby declared the
intention of the parties that this Agreement would have been executed without
reference to any portion which may, for any reason, be hereafter declared or
held to be invalid.
ARTICLE II
THE ACQUISITION
Section 2.1 Purchase and Sale of Stock
Seller hereby agrees to sell to Purchaser the Acquisition Shares of XXXXXXXX
DESIGN SERVICE, INC. and his Membership interest in XXXXXXXX RENTALS, L.L.C.
in exchange for the Purchase Price hereunder on the Closing Date and to
transfer to Purchaser on the Closing Date a 100% undivided interest in and to
the Acquisition Shares and Membership Interest free from all liens,
mortgages, charges, pledges, encumbrances or other burdens with all rights
now or thereafter attached thereto.
Section 2.2 Purchase Price
In consideration for the Acquisition Shares of XXXXXXXX DESIGN SERVICE, INC.
and the Membership Interest of Seller in XXXXXXXX RENTALS, L.L.C.'S, the
Purchaser shall: (a) pay to the Seller at the Closing of the Acquisition the
sum of FOUR HUNDRED THOUSAND DOLLARS ($400,000) in cash by wire transfer of
immediately available funds; and (b) issue to XXXXXXXX DESIGN SERVICE, INC.
and XXXXXXX XXXXXXXX a convertible term note, with a term of thirty-six
months, in the principal amount of ONE MILLION FIVE HUNDRED THOUSAND DOLLARS
($1,500,000) and bearing interest at prime plus one, the proceeds of which
are to be applied to the pay off of Xxxxxxxx'x existing debt and the
elimination of Xxxxxxx Xxxxxxxx'x various personal guarantees.
ARTICLE III
THE CLOSING
Section 3.1 Closing
The consummation of the transactions contemplated by this Agreement (the
"Closing") shall take place on or about April 15, 2005 at (i) the offices of
Purchaser's attorney or, (ii) if requested by the Purchaser at least two (2)
business days prior to the Closing, at the Purchaser's place of business (the
date of the Closing being herein referred to as the "Closing Date").
Section 3.2 Deliveries at Closing
(a) At the Closing, the Seller shall deliver to the Purchaser:
(i) duly executed instruments or other evidence sufficient
to transfer to Purchaser the Acquisition Shares and Membership Interest;
(ii) the Acquisition Shares and Membership Interest free and
clear of all mortgages, liens, charges, pledges, security interests,
encumbrances or other claims whatsoever;
(iii) an employment agreement, substantially in the form of
Exhibit A attached hereto, duly executed by XXXXXXX XXXXXXXX;
(iv) all opinions, certificates and other instruments and
documents required by the terms of this Agreement to be delivered by Seller
at or prior to Closing or otherwise required in connection with the
Acquisition.
(b) At the Closing, the Purchaser shall deliver to the Seller:
(i) the cash portion of the Purchase Price by wire transfer in
immediately available funds paid in accordance with the Purchase Price
provisions hereof;
(ii) the convertible term note issued to XXXXXXXX DESIGN
SERVICE, INC. in accordance with the Purchase Price provisions hereof
attached hereto as Exhibit I; and,
(iii) all documents required to be delivered by Purchaser to
Seller at or prior to the Closing Date in connection with this Agreement.
Section 3.3 Post-Closing Matters
Forthwith after the Closing, the parties, as the case may be, agree to use
all their best efforts to:
(a) issue a news release reporting the Closing;
(b) file a Form 8K with the Securities and Exchange Commission
disclosing the terms of this Agreement within 4 days of the Closing and, not
more than 60 days following the filing of the Form 8K, file and amended Form
8K which includes the financial statements of XXXXXXXX DESIGN SERVICE, INC.
and XXXXXXXX RENTALS, L.L.C. as well as pro forma financial information of
Purchaser and XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. as
required by Item 310 of Regulation SB as promulgated by the Securities and
Exchange Commission.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Seller hereby represents and warrant in all material respects to Purchaser,
with the intent that it will rely thereon in entering into this Agreement and
in approving and completing the transactions contemplated hereby, that:
Section 4.1 Company Status and Capacity
(a) Formation. XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C. are companies duly formed and validly subsisting under the laws of the
State of Ohio;
(b) Carrying on Business. XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C. are duly authorized to carry on such business, in good
standing in Ohio and such other jurisdictions where the nature of its
business requires it to be so authorized (such certificates of authority and
good standing are included herewith in Exhibit J), except where the failure
to be so authorized would not have a Material Adverse Effect. The nature of
the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business
does not require XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.
to register or otherwise be qualified to carry on business in any other
jurisdictions;
(c) Legal Capacity. XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C. have the legal power, capacity and authority to own XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Assets, to carry on the
Business of XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. have the legal
capacity to carry on its business and operations. Seller has the legal power,
capacity and authority to enter into and complete this Agreement;
(d) Subsidiaries. Neither XXXXXXXX DESIGN SERVICE INC. nor XXXXXXXX
RENTALS, L.L.C. has any Subsidiaries.
Section 4.2 XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. -
Capitalization
(a) Authorized Capital. The authorized capital of XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS L.L.C. consists of 50 shares of capital
stock and one membership unit, respectively;
(b) Ownership of XXXXXXXX DESIGN SERVICE, INC. Shares and XXXXXXXX
RENTALS, L.L.C. Membership. The issued and outstanding share capital of
XXXXXXXX DESIGN SERVICE, INC. will on Closing consist of 50 shares of capital
stock (being the Seller Shares) which shares on Closing shall be validly
issued and outstanding as fully paid and non-assessable shares. The interest
of Seller in XXXXXXXX RENTALS L.L.C. will consist of one membership unit,
respectively (being the Seller's Membership Interest), which Membership
Interest on Closing shall be a valid fully paid and non-assessable
Membership. Seller will be at Closing the registered and beneficial owner of
the XXXXXXXX DESIGN SERVICE, INC. Shares. The Seller Shares will on Closing
be free and clear of any and all liens, charges, pledges, encumbrances,
restrictions on transfer and adverse claims whatsoever. Seller will be at
Closing the registered and beneficial owner of the only Membership Interest
in XXXXXXXX RENTALS L.L.C. The Seller's Membership Interest will on Closing
be free and clear of any and all liens, charges, pledges, encumbrances,
restrictions on transfer and adverse claims whatsoever;
(c) No Option, Warrant or Other Right. No person, firm or corpor-
ation has any agreement, option, warrant, preemptive right or any other right
capable of becoming an agreement, option, warrant or right for the
acquisition of Seller Shares held by Seller or for the purchase, subscription
or issuance of any of the unissued shares in the capital of Seller. No
person, firm or corporation has any agreement, option, warrant, preemptive
right or any other right capable of becoming an agreement, option, warrant or
right for the acquisition of Seller's Membership Interest;
(d) No Restrictions. There are no restrictions on the transfer, sale
or other disposition of Seller Shares or Membership Interest contained in the
charter documents of XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C. or under any agreement;
Section 4.3 XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. -
Records and Financial Statements
(a) Charter Documents. The charter documents of XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. have not been altered since its
formation date, except as filed in the record books of XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.;
(b) Minute Books. The minute books of XXXXXXXX DESIGN SERVICE, INC.
and XXXXXXXX RENTALS, L.L.C. are complete and each of the minutes contained
therein accurately reflect the actions that were taken at a duly called and
held meeting or by consent without a meeting. All actions by XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. which require director or
shareholder approval are reflected on the corporate minute books of XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. Neither XXXXXXXX DESIGN
SERVICE, INC. and/or XXXXXXXX RENTALS, L.L.C. are in violation or breach of,
or in default with respect to, any term of its Certificate of Incorporation
(or other charter documents) or by-laws.
(c) XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S
Financial Statements. The XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C.'S Financial Statements will present fairly, in all material respects,
the assets and liabilities (whether accrued, absolute, contingent or
otherwise) of XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. as
of the date thereof, and the sales and earnings of the XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business during the periods
covered thereby, in all material respects, and have been prepared in
substantial accordance with generally accepted accounting principles
consistently applied;
(d) XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S
Accounts Payable and Liabilities. There are no material liabilities,
contingent or otherwise, of XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C. which will not be reflected in the XXXXXXXX DESIGN SERVICE,
INC. and XXXXXXXX RENTALS, L.L.C.'S Financial Statements, except those
incurred in the ordinary course of business since the date of the XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Financial Statements, and
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. have not
guaranteed or agreed to guarantee any debt, liability or other obligation of
any person, firm or corporation;
(e) XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S
Accounts Receivable. All the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C.'S Accounts Receivable result from bona fide business
transactions and services actually rendered without, to the knowledge and
belief of XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C., any
claim by the obligor for set-off or counterclaim;
(f) No Debt to Related Parties. Except as disclosed in the XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Financial Statements,
Seller is not and on Closing will not be, indebted to XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C., nor to any director or officer of
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. or XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. except accounts payable on account
of bona fide business transactions of XXXXXXXX DESIGN SERVICE, INC. and
XXXXXXXX RENTALS, L.L.C. incurred in normal course of XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business, including employment
agreements with XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.,
none of which are more than 60 days in arrears;
(g) No Related Party Debt to XXXXXXXX DESIGN SERVICE, INC. and
XXXXXXXX RENTALS, L.L.C.. Except as set forth in the XXXXXXXX DESIGN SERVICE,
INC. and XXXXXXXX RENTALS, L.L.C.'S Financial Statements, no XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. Shareholder or Member nor any
director or officer of XXXXXXXX DESIGN SERVICE, INC. and/or XXXXXXXX RENTALS,
L.L.C. is now indebted to or under any financial obligation to XXXXXXXX
DESIGN SERVICE, INC. and/or XXXXXXXX RENTALS, L.L.C. on any account
whatsoever, except for advances on account of travel and other expenses;
(h) No Dividends. No dividends or other distributions on any shares
in the capital of XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.
have been made, declared or authorized since the date of the XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Financial Statements;
(i) No Payments. No payments of any kind have been made or
authorized since the date of the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C.'S Financial Statements to or on behalf of XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. or to or on behalf of officers,
directors, shareholders or employees of XXXXXXXX DESIGN SERVICE, INC. and
XXXXXXXX RENTALS, L.L.C. or under any management agreements with XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C., except payments made in
the ordinary course of business and at the regular rates of salary or other
remuneration payable to them;
(j) No Pension Plans. There are no pension, profit sharing, group
insurance or similar plans or other deferred compensation plans affecting
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C., except as set
forth in the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S
Financial Statements;
(k) No Adverse Events. Since the date of the XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Financial Statements:
(i) there has not been any material adverse change in the
consolidated financial position or condition of XXXXXXXX DESIGN SERVICE, INC.
and XXXXXXXX RENTALS, L.L.C., their liabilities or the XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Assets or any damage, loss or
other change in circumstances materially affecting XXXXXXXX DESIGN SERVICE,
INC. and XXXXXXXX RENTALS, L.L.C., the XXXXXXXX DESIGN SERVICE, INC. and
XXXXXXXX RENTALS, L.L.C.'S Business or the XXXXXXXX DESIGN SERVICE, INC. and
XXXXXXXX RENTALS, L.L.C.'S Assets or XXXXXXXX DESIGN SERVICE, INC. and
XXXXXXXX RENTALS, L.L.C.'S right to carry on the XXXXXXXX DESIGN SERVICE,
INC. and XXXXXXXX RENTALS, L.L.C.'S Business, other than changes in the
ordinary course of business,
(ii) there has not been any damage, destruction, loss or
other event (whether or not covered by insurance) materially and adversely
affecting XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C., the
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business or the
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Assets,
(iii) there has not been any material increase in the
compensation payable or to become payable by XXXXXXXX DESIGN SERVICE, INC.
and/or XXXXXXXX RENTALS, L.L.C. to Seller, to any director, officer, or
agent of XXXXXXXX DESIGN SERVICE, INC. and/or XXXXXXXX RENTALS, L.L.C. or any
bonus or payment made to or with any of them;
(iv) the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C.'S Business has been and continues to be carried on in the ordinary
course,
(v) XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C. has not waived or surrendered any right of material value,
(vi) XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C. has not discharged or satisfied or paid any lien or encumbrance or
obligation or liability other than current liabilities in the ordinary course of
business.
Section 4.4 XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. -
Income Tax Matters
(a) Tax Returns. All tax returns and reports of XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. required by law to be filed have
been filed and are true, complete and correct, and any taxes payable in
accordance with any return filed by XXXXXXXX DESIGN SERVICE, INC. and
XXXXXXXX RENTALS, L.L.C. or in accordance with any notice of assessment or
reassessment issued by any taxing authority have been so paid;
(b) Current Taxes. Adequate provisions have been made for taxes
payable for the current period for which tax returns are not yet required to
be filed and there are no agreements, waivers, or other arrangements
providing for an extension of time with respect to the filing of any tax
return by, or payment of, any tax, governmental charge or deficiency by
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. Seller is not
aware of any contingent tax liabilities or any grounds which would prompt a
reassessment including aggressive treatment of income and expenses in filing
earlier tax returns;
Section 4.5 XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. -
Applicable Laws and Legal Matters
(a) Licenses. XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C. hold all licenses and permits as may be requisite for carrying on the
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business in the
manner in which it has heretofore been carried on, which licenses and permits
have been maintained and continue to be in good standing except where the
failure to obtain or maintain such licenses or permits would not have a
material adverse effect on the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C.'S Business;
(b) Applicable Laws. XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C. have not been charged with or received notice of breach of
any laws, ordinances, statutes, regulations, by-laws, orders or decrees to
which they are subject or which applies to them the violation of which would
have a material adverse effect on the XXXXXXXX DESIGN SERVICE, INC. and
XXXXXXXX RENTALS, L.L.C.'S Business, and, to the knowledge of Seller,
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. is not in breach
of any laws, ordinances, statutes, regulations, by-laws, orders or decrees
the contravention of which would result in a material adverse impact on the
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business;
(c) Pending or Threatened Litigation. There is no material
litigation or administrative or governmental proceeding pending or threatened
against or relating to XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C., the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S
Business, or any of the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C.'S Assets, nor does Seller have any knowledge of any deliberate act or
omission of XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. that
would form any material basis for any such action or proceeding;
(d) No Bankruptcy. XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C. have not made any voluntary assignment or proposal under
applicable laws relating to insolvency and bankruptcy and no bankruptcy
petition has been filed or presented against XXXXXXXX DESIGN SERVICE, INC.
and/or XXXXXXXX RENTALS, L.L.C. and no order has been made or a resolution
passed for the winding-up, dissolution or liquidation of XXXXXXXX DESIGN
SERVICE, INC. and/or XXXXXXXX RENTALS, L.L.C.;
(e) Labor Matters. XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C. are not party to any collective agreement relating to the
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business with
any labor union or other association of employees and no part of the XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business has been
certified as a unit appropriate for collective bargaining or, to the
knowledge of Seller, has made any attempt in that regard;
(f) Finder's Fees. Seller is not party to any agreement which
provides for the payment of finder's fees, brokerage fees, commissions or
other fees or amounts which are or may become payable to any third party in
connection with the execution and delivery of this Agreement and the
transactions contemplated herein;
Section 4.6 Execution and Performance of Agreement
(a) Authorization and Enforceability. The Seller has the sole legal
right to execute and deliver this Agreement, and to complete the transactions
contemplated hereby and no consent of any other party or parties is necessary
to complete said transactions;
(b) No Violation or Breach. The execution and performance of this
Agreement will not
(i) violate the charter documents of XXXXXXXX DESIGN
SERVICE, INC. and/or XXXXXXXX RENTALS, L.L.C. or result in any breach of, or
default under, any loan agreement, mortgage, deed of trust, or any other
agreement to which XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.
is a party,
(ii) give any person any right to terminate or cancel any
agreement including, without limitation, XXXXXXXX DESIGN SERVICE, INC. and
XXXXXXXX RENTALS, L.L.C.'S Material Contracts, or any right or rights enjoyed
by XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.,
(iii) result in any alteration of XXXXXXXX DESIGN SERVICE,
INC.and XXXXXXXX RENTALS, L.L.C.'S obligations under any agreement to which
XXXXXXXX DESIGN SERVICE, INC. and/or XXXXXXXX RENTALS, L.L.C. is a party
including, without limitation, the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C.'S Material Contracts,
(iv) result in the creation or imposition of any lien,
encumbrance or restriction of any nature whatsoever in favor of a third party
upon or against the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C.'S Assets,
(v) result in the imposition of any tax liability to
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. relating to XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Assets, the Seller Shares
or Membership Interest, or
(vi) violate any court order or decree to which either
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. is subject;
Section 4.7 XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S
Assets - Ownership and Condition
(a) Business Assets. The XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C.'S Assets, comprise all of the property and assets of the
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business, and
neither XXXXXXXX DESIGN SERVICE, INC. and/or XXXXXXXX RENTALS, L.L.C. nor any
other person, firm or corporation owns any assets used by XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. in operating the XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business, whether under a lease,
rental agreement or other arrangement except as disclosed to Purchaser;
(b) Title. XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C. are the legal and beneficial owner of the XXXXXXXX DESIGN SERVICE, INC.
and XXXXXXXX RENTALS, L.L.C.'S Assets, free and clear of all mortgages, liens,
charges, pledges, security interests, encumbrances or other claims
whatsoever, except a debt to the Fort Xxxxxxxx State Bank which debt shall be
cancelled at Closing;
(c) No Option. No person, firm or corporation has any agreement or
option or a right capable of becoming an agreement for the purchase of any of
the XXXXXXXX DESIGN SERVICE, INC. and/or XXXXXXXX RENTALS, L.L.C.'S Assets;
(d) XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S
Material Contracts. The XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C.'S Material Contracts listed in Schedule 1(r) constitute all of the
material contracts of XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C.;
(e) No Default. There has not been any default in any material
obligation of XXXXXXXX DESIGN SERVICE, INC. and/or XXXXXXXX RENTALS, L.L.C.
or any other party to be performed under any of XXXXXXXX DESIGN SERVICE, INC.
and XXXXXXXX RENTALS, L.L.C.'S Material Contracts, each of which is in good
standing and in full force and effect and unamended (except as disclosed in
Schedule 4.7(e)), and XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C. are not aware of any default in the obligations of any other party to
any of the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S
Material Contracts;
(f) XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S
Insurance Policies. XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C. maintain the public liability insurance and insurance against loss or
damage to the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S
Assets and the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S
Business as described in Schedule 1(o) hereto;
(g) XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S
Real Property. Schedule 1(s) sets forth a complete list of (i) all real
property and interests in real property owned in fee by XXXXXXXX DESIGN SERVICE,
INC. and XXXXXXXX RENTALS, L.L.C. (individually, a "XXXXXXXX DESIGN SERVICE,
INC. and XXXXXXXX RENTALS, L.L.C.'S Owned Property" and collectively, the
"XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Owned
Properties"), and (ii) all real property and interests in real property
leased by XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. as
lessee or lessor (individually, a "XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C.'S Real Property Lease" and collectively the "XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Real Property Leases";
collectively with the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C.'S Owned Properties, the "XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C.'S Property"). XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C. have good and marketable fee title to all XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Owned Property, free and clear
of all Liens, except Liens set forth on Schedule 1(s). The XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Property constitute all
interests in real property currently used or currently held for use in
connection with the business of XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C. which are necessary for the continued operation of the
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business.
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. have valid and
enforceable leasehold interest under each of the XXXXXXXX DESIGN SERVICE,
INC. and XXXXXXXX RENTALS, L.L.C.'S Real Property Leases, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and similar
laws affecting creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity), and XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. have not received any
written notice of any default or event that with notice or lapse of time, or
both, would constitute a default by the XXXXXXXX DESIGN SERVICE, INC. and/or
XXXXXXXX RENTALS, L.L.C. under any of the XXXXXXXX DESIGN SERVICE, INC. and
XXXXXXXX RENTALS, L.L.C.'S Real Property Leases. All of the XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Property, buildings, fixtures
and improvements thereon owned or leased by XXXXXXXX DESIGN SERVICE, INC.
and/or XXXXXXXX RENTALS, L.L.C. are in good operating condition and repair
(subject to normal wear and tear).
(h) Environmental Matters. The operations of XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. are in compliance with all applicable
environmental laws. XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C. have obtained all permits required under all applicable environmental
laws necessary to operate their business. XXXXXXXX DESIGN SERVICE, INC. and
XXXXXXXX RENTALS, L.L.C. are not the subject of any outstanding written order
or agreement with any governmental authority or person respecting
environmental laws or any remedial action relating to environmental laws.
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. have not received
any written communication alleging that XXXXXXXX DESIGN SERVICE, INC. and/or
XXXXXXXX RENTALS, L.L.C. may be in violation of any environmental law. There
is not located at any of the properties of XXXXXXXX DESIGN SERVICE, INC.
and/or XXXXXXXX RENTALS, L.L.C. any underground storage tanks or hazardous
materials, except as used in the ordinary course of business.
(i) No Compensation on Termination. There are no agreements,
commitments or understandings relating to severance pay or separation
allowances on termination of employment of any employee of XXXXXXXX DESIGN
SERVICE, INC. and/or XXXXXXXX RENTALS, L.L.C. XXXXXXXX DESIGN SERVICE, INC.
and XXXXXXXX RENTALS, L.L.C. are not obliged to pay benefits or share profits
with any employee after termination of employment except as required by law;
Section 4.8 XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S
Assets - XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C.'S Equipment
The XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Equipment
has been maintained in a manner consistent with that of a reasonably prudent
owner and such equipment is in good working condition;
Section 4.9 XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S
Assets - Infringement
Seller does not have any knowledge of any infringement by XXXXXXXX DESIGN
SERVICE, INC. and/or XXXXXXXX RENTALS, L.L.C. of any patent, trademark,
copyright or trade secret;
Section 4.10 The Business of XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C.
Since the date of the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C.'S Financial Statements, the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C.'S Business has been carried on in the ordinary course and
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. have not entered
into any material agreement or commitment except in the ordinary course; and
Section 4.11 No Misrepresentation
No representation or warranty of Seller in regards to XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. contained in this Agreement or in
any schedule hereto or in any certificate or other instrument furnished by
Seller on behalf of XXXXXXXX DESIGN SERVICE, INC. and/or XXXXXXXX RENTALS,
L.L.C. to Purchaser pursuant to the terms hereof, contain any untrue
statement of a material fact or omits to state a material fact necessary to
make the statements contained herein or therein not misleading.
Section 4.12 Non-Merger and Survival
The representations and warranties of Seller regarding XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. contained herein will be true at
and as of Closing in all material respects as though such representations and
warranties were made as of such time. Notwithstanding the completion of the
transactions contemplated hereby, the waiver of any condition contained
herein (unless such waiver expressly releases a party from any such
representation or warranty) or any investigation made by Purchaser, the
representations and warranties of XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C. by Seller shall survive the Closing.
Section 4.13 Indemnity
Seller agrees to indemnify and save harmless Purchaser from and against any
and all claims, demands, actions, suits, proceedings, assessments, judgments,
damages, costs, losses and expenses, including any payment made in good faith
in settlement of any claim (subject to the right of Seller to defend any such
claim), resulting from the breach by him of any representation or warranty
with regard to XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.made
under this Agreement or from any misrepresentation in or omission from any
certificate or other instrument furnished or to be furnished by Seller to
Purchaser hereunder.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Purchaser represents and warrants that as of the date hereof and as of the
Closing Date, the following representations shall be true and correct and in
full force and effect:
Section 5.1 Organization and Good Standing
Incode and INSEQ are corporations duly organized, validly existing and in
good standing under the laws of the State of Nevada and Massachusetts,
respectively, and have the corporate power and authority to operate and to
carry on its business as now being conducted. Purchaser is duly qualified to
do business and is in good standing as a foreign corporation in each
jurisdiction where qualification as a foreign corporation or otherwise is
required to conduct the Business.
Section 5.2 Authority, Approvals and Consents
Purchaser has the corporate power and authority to enter into this Agreement
and to perform their obligations hereunder. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized and validly approved by the
Board of Directors of Purchaser and by their respective stockholders and no
other corporate or other proceedings on the part of Purchaser are necessary
to authorize and approve this Agreement and the transactions contemplated
hereby. Purchaser hereby expressly represents that they have fully and
properly complied with all aspects of applicable Nevada and Massachusetts, as
relevant, corporate law in entering into this Agreement and for consummating
the transactions contemplated hereunder. This Agreement has been duly
executed and delivered by, and constitutes a valid and binding obligation of
Purchaser , enforceable against Purchaser in accordance with its terms.
Section 5.3 Consents and Approvals
No consent, approval, or authorization of, or declaration, filing, or
registration with, any Governmental Entity will be required to be made or
obtained by Purchaser in connection with the execution, delivery, and
performance of this Agreement and the consummation of the transactions
contemplated hereby.
Section 5.4 Binding Nature
This Agreement shall be, when duly executed and delivered, a legally binding
obligation of the Seller enforceable in accordance with its terms.
Section 5.5 Non-Merger and Survival
The representations and warranties of Purchaser contained herein will be true
at and as of Closing in all material respects as though such representations
and warranties were made as of such time. Notwithstanding the completion of
the transactions contemplated hereby, the waiver of any condition contained
herein (unless such waiver expressly releases a party from any such
representation or warranty) or any investigation made by Seller, the
representations and warranties of Purchaser shall survive the Closing.
Section 5.6 Indemnity
Purchaser agrees to indemnify and save harmless Seller from and against any
and all claims, demands, actions, suits, proceedings, assessments, judgments,
damages, costs, losses and expenses, including any payment made in good faith
in settlement of any claim (subject to the right of Purchaser to defend any
such claim), resulting from the breach by it of any representation or
warranty made under this Agreement or from any misrepresentation in or
omission from any certificate or other instrument furnished or to be
furnished by Purchaser to Seller hereunder.
ARTICLE VI
COVENANTS
Section 6.1 Conduct of Business by the XXXXXXXX DESIGN SERVICE, INC.
and XXXXXXXX RENTALS, L.L.C. Pending the Closing
Seller as sole shareholder and President of XXXXXXXX DESIGN SERVICE, INC. and
as sole Member of XXXXXXXX RENTALS, L.L.C. hereby covenants, represents and
warrants to the Purchaser that pending completion of the Closing unless
otherwise agreed to in writing by the Purchaser:
(a) XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. shall
not engage in any sale, enter into any transaction, contract or commitment,
incur liability or obligation or make any disbursement not in the ordinary
course of the Business, including, without limitation, the payment, of any
kind and in any amount, to the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C.'S shareholders (or their affiliates), and the declaration
and/or payment of any dividends, purchase, redemption or other distributions
with respect to the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS,
L.L.C.'S capital stock;
(b) XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. shall
carry and continue in force through the Closing, all existing insurance
coverages including without limitation to theft, liability and other
insurance as set forth in Schedule 6.1(b). For any loss occurring between the
date of this Agreement and the Closing Date, the parties rights and
liabilities thereunder shall be determined as follows:
(i) Casualty Prior to Closing. The risk of any loss,
destruction or other damage, other than ordinary wear and tear, between the
date of execution hereof and the completion of the Closing, shall be solely
that of the Seller. If before the completion of the Closing, any of the
XXXXXXXX DESIGN SERVICE, INC. and/or XXXXXXXX RENTALS, L.L.C.'S machinery or
equipment is damaged by fire, casualty or any other cause: (A) if the
replacement or repair cost is $10,000 or more, the Purchaser may either: (x)
terminate this Agreement without liability or (y) complete the Closing
hereunder in which event the Purchaser shall be entitled to a credit to the
insurance proceeds arising with respect to such damage, and (B) if such
replacement or repair cost, as the case may be, is less than $10,000, the
Purchaser shall be obligated to complete the Closing hereunder and shall be
entitled to the insurance proceeds arising with respect to such damage.
(c) XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. shall
not amend, modify or terminate any agreement related to the Business to which
it is a party except in the ordinary course of business;
(d) XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. shall
use its best efforts to preserve the Business and maintain all of its
equipment and records in good order and keeping the same available for the
Purchaser and further to preserve for the Purchaser the goodwill of
suppliers, customers and others having business relationships with the
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.; and,
(e) XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. shall
give the Purchaser prompt notice of all events prior to Closing which may
materially relate to any term of this Agreement.
Section 6.2 Access and Information
The Seller shall afford to the Purchaser and to the Purchaser's financial
advisors, legal counsel, accountants, consultants, financing sources and
other authorized representatives reasonable access during normal business
hours throughout the period prior to the Closing Date to the books, records,
properties and personnel of the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX
RENTALS, L.L.C. relating to the Business and, during such period, shall
furnish reasonably promptly to the Purchaser such information as the
Purchaser reasonably may request. All such information disclosed to the
Purchaser shall remain subject to the Confidentiality Agreement. Without
limitation of the other provisions of this Section 6.2, the XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. shall permit the Purchaser or its
consultant, in accordance with a mutually acceptable confidentiality
agreement entered into by the Purchaser, the XXXXXXXX DESIGN SERVICE, INC.
and XXXXXXXX RENTALS, L.L.C. and, if relevant, the Purchaser's consultant, to
migrate any data concerning the Business which the Purchaser shall deem
appropriate onto a server maintained by the Purchaser or its consultant but
using the Purchaser's software programs. It is the Purchaser's intent that if
the Closing shall occur, the Purchaser shall have immediate access to such
migrated data in order to operate the Business and comply with the
Purchaser's reporting obligations for the combined operations of the
Purchaser and the Business under applicable securities laws. If the Closing
shall not occur, such consultant shall destroy all of such migrated data in
compliance with such confidentiality agreement.
Section 6.3 Additional Matters
Subject to the terms and conditions herein provided, each of the parties
hereto agrees to use all reasonable best efforts to take, or cause to be
taken, all action and to do, or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations to consummate and
make effective the transactions contemplated by this Agreement.
Section 6.4 Additional Financial Information
On or prior to the Closing Date, the Purchaser shall have received from the
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Financial
Statements. The XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.
will provide the Purchaser with monthly Financial Statements and income
statements for the Business as prepared in the ordinary course and consistent
with past practice by the finance and accounting staff of the Business for
each month after December 2004 until the Closing for which the XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. has closed the accounting
books of the Business, which statements shall be delivered within forty-five
(45) days after each such closing.
Section 6.5 Indemnification
The Parties shall indemnify each other as set forth below:
(i) Seller shall indemnify and hold harmless
Purchaser and each of its affiliates or other related entities from and
against any and all losses, damages, liabilities and claims (including legal
fees and costs) arising out of, based upon or resulting from any inaccuracy as
of the date hereof or as of the Closing Date of any representation or warranty
of Seller, which are contained in or made pursuant to this Agreement or any
breach by Seller of any obligations contained in or made pursuant to this
Agreement.
(ii) Purchaser shall indemnify and hold harmless
Seller from any and all losses, damages, liabilities and claims arising out of,
based upon or resulting from any inaccuracy as of the date hereof or as of
the Closing Date of any representation or warranty of Purchaser which is
contained in or made pursuant to this Agreement or any breach by Purchaser of
any of its obligations contained in or made pursuant to this Agreement.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 Conditions Precedent in Favor of the Seller.
The obligation of Seller to effect the transactions contemplated by this
Agreement shall be subject to the satisfaction or waiver at or prior to the
Closing Date of the following additional conditions:
(a) the Purchaser shall have performed in all material respects its
obligations under this Agreement required to be performed by the Purchaser at
or prior to the Closing Date; and,
(b) each of the representations and warranties of the Purchaser
contained in this Agreement shall be true and correct as of the Closing Date
as if made at and as of such date, except where the failure of such
representation and warranty to be true and correct would not have a material
adverse effect on the Purchaser or the transactions contemplated by this
Agreement.
The conditions precedent set out in this section are inserted for the
exclusive benefit of Seller and any such condition may be waived in whole or
in part by Seller at or prior to the Closing by delivering to Purchaser a
written waiver to that effect signed by Seller. In the event that the
conditions precedent set out in this section are not satisfied on or before
the Closing, Seller shall be released from all obligations under this
Agreement.
Section 7.2 Conditions Precedent in Favor of the Purchaser
The obligation of the Purchaser to effect the transactions contemplated by
this Agreement shall be subject to the satisfaction or waiver at or prior to
the Closing Date of the following additional conditions:
(a) the Seller shall have performed in all material respects its
obligations under this Agreement required to be performed by the Seller at or
prior to the Closing Date;
(b) each of the representations and warranties of the Seller
contained in this Agreement shall be true and correct as of the Closing Date
as if made at and as of such date;
(c) the Purchaser and Seller shall have entered into a mutually
satisfactory employment agreement (attached hereto as Exhibit A);
(d) the successful completion by the Purchaser of that level of due
diligence the Purchaser deems reasonably required;
(g) the XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S
Assets are fee and clear of all perfected, filed and recorded liens, charges
and encumbrances except those noted in Schedule 2.2.;
(h) Opinion of Seller Counsel. Purchaser shall have been furnished
with the opinion of Xxxxxxx X. Xxxxxxxxxx, Esq., attorney at law, counsel for
Seller dated the Closing Date, in form and substance satisfactory to
Purchaser and Purchasers' counsel, as to the following (i) the good standing
and authority of XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.
to carry on the Business and own the Assets, (ii) that all appropriate
corporate or business entity actions necessary to complete the transactions
contemplated hereunder have been taken, (iii) Seller's proper execution and
delivery of this Agreement, the schedules hereto and any other documents
required or necessary hereunder and the validity and binding legal effect
thereof, (iv) XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S
good and marketable title to the Assets, (v) disclosure of litigation,
proceedings or investigations pending or threatened against XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. or which XXXXXXXX DESIGN SERVICE,
INC. and XXXXXXXX RENTALS, L.L.C.'S counsel is aware, (vi) and that this
Agreement does not violate any other agreement of which XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S counsel is aware, In rendering
the foregoing opinions, such counsel may rely as to factual matters upon
certificates or other documents furnished by officers and directors of
Purchaser and by government officials and upon such other documents and data
as such counsel deems appropriate as a basis for their opinions. Such
counsel may specify the jurisdiction or jurisdictions in which they are
admitted to practice, that they are not admitted to the Bar in any other
jurisdiction or experts in the law of any other jurisdiction and that such
opinions are limited accordingly; and,
(i) the Purchaser shall have received a suitable certification that
there are no material adverse changes in the financial position or condition
of XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. (as compared to
its financial condition as reflected in its December 31, 2004 balance sheet,
statement of operations and statement of cash flows), its liabilities or the
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Assets or any
damage, loss or other change in circumstances materially and adversely
affecting XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C., the
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Business or the
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Assets or
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S right to carry
on the Business, other than changes in the ordinary course of business, none
of which has been materially adverse, or any damage, destruction, loss or
other event, including changes to any laws or statutes applicable to XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. or the Business (whether or
not covered by insurance) materially and adversely affecting XXXXXXXX DESIGN
SERVICE, INC. and XXXXXXXX RENTALS, L.L.C., the Business or the XXXXXXXX
DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S Assets.
The conditions precedent set out in this section are inserted for the
exclusive benefit of Purchaser and any such condition may be waived in whole
or in part by Purchaser at or prior to the Closing by delivering to Seller a
written waiver to that effect signed by Purchaser. In the event that the
conditions precedent set out in this section are not satisfied on or before
the Closing, Purchaser shall be released from all obligations under this
Agreement.
Section 7.3 Nature of Conditions Precedent
The conditions precedent set forth in this Article are conditions of
completion of the transactions contemplated by this Agreement and are not
conditions precedent to the existence of a binding agreement. Each party
acknowledges receipt of the sum of $1.00 and other good and valuable
consideration as separate and distinct consideration for agreeing to the
conditions of precedent in favor of the other party or parties set forth in
this Article.
ARTICLE VIII
TERMINATION, AMENDMENT, AND WAIVER
Section 8.1 Termination Events
This Agreement may be terminated at any time prior to the Closing Date as
follows:
(a) by mutual written agreement of the Purchaser and the Seller;
(b) by the Seller (provided that the Seller is not then in material
breach of any representation, warranty, covenant or other agreement contained
herein for which the Purchaser shall have previously notified the Seller), if
there has been a breach by the Purchaser of any of its representations,
warranties, covenants or agreements contained in this Agreement, or any such
representation and warranty shall have become untrue, and such breach or
condition has not been promptly cured within 30 days following receipt by the
Purchaser of written notice of such breach;
(c) by the Purchaser (provided that the Purchaser is not then in
material breach of any representation, warranty, covenant or other agreement
contained herein for which the Seller shall have previously notified the
Purchaser), if there has been a breach by the Seller of any of its
representations, warranties, covenants or agreements contained in this
Agreement, or any such representation and warranty shall have become untrue,
and such breach or condition has not been promptly cured within 30 days
following receipt by the Seller of written notice of such breach; and,
(d) by the Purchaser (provided that the Purchaser is not then in
material breach of any representation, warranty, covenant or other agreement
contained herein) at or prior to the Closing Date, if the Purchaser is not
satisfied with its due diligence review of the Business.
Section 8.2 Effect of Termination and Abandonment
In the event of termination of this Agreement pursuant to this Article VIII,
written notice thereof shall be given as promptly as practicable to the other
party to this Agreement and this Agreement shall terminate and the
transactions contemplated hereby shall be abandoned, without further action
by any of the parties hereto. If this Agreement is terminated as provided
herein (a) there shall be no liability or obligation on the part of the
Seller, the Purchaser, or their respective officers, directors and
Affiliates, and all obligations of the parties shall terminate, except for
(i) the obligations of the parties pursuant to the Confidentiality Agreement,
and (ii) that a party that is in material breach of its representations,
warranties, covenants, or agreements set forth in this Agreement shall be
liable for damages occasioned by such breach, including without limitation
any expenses, including the reasonable fees and expenses of attorneys,
accountants and other agents, incurred by the other party in connection with
this Agreement and the transactions contemplated hereby; provided, however,
that the Purchaser shall not be deemed to be in material breach of this
Agreement solely by reason of its inability to satisfy one or more of the
conditions set forth in Section 7.2 if the Purchaser is attempting to satisfy
such conditions in good faith.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Expenses
Each of the Parties hereto shall pay its own fees and expenses (including the
fees of any attorneys, accountants, or others engaged by such Party) in
connection with this Agreement and the transactions contemplated hereby
whether or not the transactions contemplated hereby are consummated.
Section 9.2 Paragraph Headings and Language Interpretations
The paragraph headings contained herein are for reference only and shall not
be considered substantive provisions of this Agreement. The use of a singular
or plural form shall include the other form, and the use of a masculine,
feminine or neuter gender shall include the other genders, as applicable.
Section 9.3 Notices
All notices, claims, demands, and other communications hereunder shall be in
writing and shall be deemed given upon (a) confirmation of receipt of a
facsimile transmission, (b) confirmed delivery by a standard overnight
carrier or when delivered by hand, or (c) the expiration of five (5) business
days after the day when mailed by registered or certified mail (postage
prepaid, return receipt requested), addressed to the respective parties at
the following addresses (or such other address for a party as shall be
specified by like notice):
(a) If to the Purchaser, to:
Incode Technologies Corporation
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx Xxxxxxx, President and Chief Financial Officer
with a copy to:
Xxxxx Xxxxxxxx, Esq.
Sonageri & Fallon, PC
000 Xxxxxxxxxx XXXxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
and,
(b) If to the Seller, to:
Xxxxxxxx Design Service, Inc.
000 Xxxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attn: XXXXXXX XXXXXXXX, Chief Executive Officer
with a copy to:
Xxxxxxx Xxxxxxxxxx, Esq.
X.X. Xxx 000
Xxxxxx, Xxxx 00000
Section 9.4 Assignments
This Agreement and all of the provisions hereof shall be binding upon and
inure to the benefit of the Parties hereto and their respective successors
and permitted assigns; provided, however, that neither this Agreement nor any
of the rights, interests, or obligations hereunder may be assigned by any of
the Parties hereto without the prior written consent of the other Party,
except that this Agreement and such rights, interests and obligations may be
assigned by Purchaser to one (1) or more Affiliates. Purchaser agrees that
any such assignment shall not relieve Purchaser of its obligations hereunder.
Section 9.5 Entire Agreement
This Agreement (including the Schedules and any Exhibits hereto) embodies the
entire agreement and understanding of the Parties with respect to the
transactions contemplated hereby and supersedes all prior written or oral
commitments, arrangements, understandings and agreements with respect
thereto. There are no restrictions, agreements, promises, warranties,
covenants or undertakings with respect to the transactions contemplated
hereby other than those expressly sat forth herein.
Section 9.6 Modifications, Amendments and Waivers
At any time prior to the Closing, to the extent permitted by law, (i)
Purchaser and Seller may, by written agreement, modify, amend or supplement
any term or provision of this Agreement and (ii) any term or provision of
this Agreement may be waived in writing by the Party which is entitled to the
benefits thereof.
Section 9.7 Counterparts
This Agreement may be executed in two (2) or more counterparts, all of which
shall be considered one (1) and the same agreement and each of which shall be
deemed an original. Each Party shall receive a fully signed copy of this
Agreement.
Section 9.8 Governing Law
This Agreement shall be governed by the laws of the State of New Jersey and
the United States of America (regardless of the laws that might be applicable
under principles of conflicts of law or international law) as to all matters
including, but not limited to, matters of validity, construction, effect and
performance.
Section 9.9 Accounting Terms
All accounting terms used herein which are not expressly defined in this
Agreement shall have the respective meanings given to them in accordance with
generally accepted accounting principles on the date hereof.
Section 9.10 Severability
If any one (1) or more of provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality or enforceability
of the remaining provisions of this Agreement shall not be affected thereby.
To the extent permitted by applicable law, each party waives any provision
of law which renders any provision of this Agreement invalid, illegal or
unenforceable in any respect.
Section 9.11 Specific Performance
Purchaser and Seller recognize that any breach of the terms this Agreement
may give rise to irreparable harm for which money damages would not be an
adequate remedy, and accordingly agree that any non-breaching party shall be
entitled to enforce the terms of this Agreement by a decree of specific
performance without the necessity of proving the inadequacy as a remedy of
money damages. If specific performance is elected as a remedy hereunder, the
electing Party shall be deemed to have waived any claim for other damages,
except reasonable attorneys fees, costs of suit and expenses related to the
enforcement of specific performance.
Section 9.12 Consent to Jurisdiction
Seller and Purchaser hereby submit and consent to the exclusive venue and
jurisdiction of the Superior Court of the State of New Jersey, County of
Bergen, in respect of the interpretation and enforcement of the provisions of
this Agreement, and hereby waive and agree not to assert as a defense in any
action, suit or proceeding for the interpretation or enforcement of this
Agreement, that it is not subject thereto or that such action, suit or
proceeding may not be brought or is not maintainable in said courts or that
this Agreement may not be enforced in or by said courts or that its property
is exempt or immune from execution, that the suit, action or proceeding is
brought in an inconvenient forum, or that the venue of the suit, action or
proceeding is improper. Seller and Purchaser agree that service of process
may be made in any manner permitted by the laws of the State of New Jersey or
the federal laws of the United States in any such action, suit or proceeding
against Seller or Purchaser with respect to this Agreement, and Seller and
Purchaser hereby irrevocably designate and appoint Xxxxxxx X. Xxxxxxxxxx,
Esq., and Xxxxx Xxxxxxxx, Esq., as their respective authorized agents upon
which process may be served in any such action, suit or proceeding, it being
understood that such appointment and designation shall become effective
without any further action on the part of Seller or Purchaser. Service of
process upon such authorized agent shall be deemed, in every respect,
effective service of process upon Seller or Purchaser and shall remain
effective until Seller or Purchaser shall appoint another agent for service
or process acceptable to the other Party. Seller and Purchaser agree that
final judgment (with all right of appeal having expired or been waived)
against it in any such action, suit or proceeding shall be conclusive and
that the other Party is entitled to enforce such judgment in any other
jurisdiction by suit on the judgment, a certified copy of which shall be
conclusive evidence of the fact and amount of indebtedness arising from such
judgment.
Section 9.13 U.S. Currency
All payments made under this Agreement at any time shall be made in the
lawful currency of the United States of America.
Section 9.14 Transfer Documents
XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C. agrees that the
sale and transfer hereunder of the Shares and Membership Interest shall be
made on the Closing Date, as of the Closing Date, by assignments or other
instruments of transfer as shall be appropriate to vest in Purchaser good,
clear and marketable title to all of the shares of XXXXXXXX DESIGN SERVICE,
INC. and the Membership Interest of Seller in XXXXXXXX RENTALS, L.L.C.
Section 9.16 Allocation of Purchase Price
The Parties shall allocate the Purchase Price as their respective accountants
shall mutually determine and shall execute and file identical IRS Forms 8594,
Asset Acquisition Statement under Section 1060, of the Internal Revenue Code
of 1986, as amended.
Section 9.17 THE PARTIES ACKNOWLEDGE THAT THEY HAVE EACH RECEIVED A COPY
OF THIS AGREEMENT, THAT THEY HAVE READ AND FULLY UNDERSTAND THIS AGREEMENT,
AND THAT THEY HAVE BEEN ADVISED TO SEEK AND HAVE EITHER SOUGHT OR WAIVED
INDEPENDENT LEGAL COUNSEL OF THEIR CHOICE TO AID IN THEIR UNDERSTANDING
HEREOF.
Section 9.18 Binding Effect
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, successors, legal representatives and
assigns.
Section 9.19 Parties in Interest
Nothing in this Agreement, express or implied, is intended to confer upon any
Person not a Party to this Agreement any rights or remedies of any nature
whatsoever under or by reason of this Agreement.
Section 9.20 Furnishing Information; Announcements
Sellers shall not issue any press releases or otherwise make any statement,
public or otherwise, to any third party with respect to the transactions
contemplated hereby without the prior written consent of Purchaser. Any
notification of XXXXXXXX DESIGN SERVICE, INC. and XXXXXXXX RENTALS, L.L.C.'S
employees of the transactions contemplated hereby shall be subject to prior
approval by Purchaser. Any notices or other information to be disseminated
shall be submitted to Purchaser prior to distribution or dissemination.
Section 9.21 Force Majeure
Neither Party hereto shall be liable for failure to perform any obligation
under this Agreement if such failure to perform is caused by the occurrence
of any contingency beyond the reasonable control of such Party, including,
without limitation, fire, flood, strike or other industrial disturbance,
failure of transport, accident, war, riot, insurrection, act of God or order
of governmental agency or act of terrorism. Performance shall be resumed as
soon as is possible after cessation of such cause. However, if such
inability to perform continues for more than Ninety (90) days, the other
Party may terminate this Agreement without penalty and without further
notice.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF the parties have executed this Agreement effective as of
the day and year first above written.
INCODE TECHNOLOGIES CORPORATION
By: /S/ Xxxxx Xxxxxxx
--------------------------------------
XXXXX XXXXXXX
President and Chief Executive Officer
INSEQ STEEL CORPORATION
By: /S/ Xxx Xxxx
--------------------------------------
XXX XXXX
President
By: /S/ Xxxxxxx Xxxxxxxx
--------------------------------------
XXXXXXX XXXXXXXX
Seller
