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Exhibit 10.1
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of the Effective Date (as hereinafter defined) by and among NEWCO,
INC., a Florida corporation ("Purchaser"), and AMERICAN MARKETING CORPORATION
OF SOUTH FLORIDA, a Florida corporation ("Seller"), and FIRST CAPITAL
XXXXXXXXX.xxx, INC., a Nevada corporation (the "Parent").
RECITALS:
WHEREAS, Seller owns and conducts a marketing business (the
"Business") located at 0000 Xxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxx; and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, certain of the assets of the Business, including, but not
limited to furniture, fixtures, equipment, leases, licenses, contracts,
records, documents, customer lists, other proprietary and intellectual
property, including without limitation, telephone numbers, trademarks, and
trade names, leases and other contracts that may be owned jointly by Seller and
South Equity Mortgage Corporation, and other property relating to the Business,
all more specifically identified on Schedule "A" attached hereto; and
WHEREAS, in connection with the Business, Seller has accrued various
liabilities, including, but not limited to certain federal payroll tax
liability of Seller, accounts payable to MCI WorldCom, payroll for American for
the period ending June 30, 1999, and other trade payables specifically listed
on Schedule "B" attached hereto (the "Liabilities");
WHEREAS, in connection with the purchase of the Assets, Purchaser
desires to assume the Liabilities of the Seller to a limited extent.
TERMS AND CONDITIONS:
In consideration of the foregoing premises and the representations,
warranties, covenants, and agreements contained herein, the parties, intending
to be legally bound, agree as follows:
1. Agreement to Purchase and Sell. Seller hereby agrees to sell,
convey, transfer, assign, and deliver to Purchaser, and Purchaser agrees to
purchase and take, at the Closing (as such term is defined in Section 3
hereof), the assets and properties of the Business as more specifically
described in Schedule "A" attached hereto and incorporated herein by reference,
including, but not limited to furniture, fixtures, equipment, leases, licenses,
contracts, records, documents, customer lists, other proprietary and
intellectual property, and other property relating to the Business (the
"Assets"), pursuant to the terms and conditions of this Agreement. In
connection with the purchase and sale, Purchaser shall not assume any
liabilities or obligations of Seller whatsoever.
2. Purchase Price.
2.1 Purchase Price. As consideration for the agreements
and covenants of Seller hereunder, Purchaser agrees to pay the following:
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(a) At the Closing, Purchaser shall cause to be
issued to Seller 82,500 shares of the common stock of the Parent; and
(b) At the Closing, Purchaser shall pay the sum
of One Hundred Thousand and No/100 Dollars ($100,000.00) into escrow
(the "Escrowed Funds") with Xxxxxxx Xxxxxxxxx, Esquire (the "Escrow
Agent").
2.2 Payment of Purchase Price.
(a) Delivery of Certificates. At the closing,
Purchaser shall cause to be delivered to Seller a certificate
representing the shares issued as the Purchase Price and issued in the
name of Seller as the owner.
(b) Cash Payment to Escrow Agent. At the
closing, Purchaser shall pay the amount stated in Section 2.1(b)
hereof to the Escrow Agent in cash or other readily available funds.
2.3 Escrowed Funds. As soon as practicable after the
closing of the transactions contemplated herein, the Escrow Agent shall break
escrow and shall pay the Escrowed Funds in satisfaction of the Liabilities.
2.4 Allocation of Purchase Price. The parties agree that
the Purchase Price shall be allocated among the Assets as set forth on Schedule
"C" attached hereto and incorporated herein by reference. Seller and Purchaser
each covenant to the other that it shall report such allocations as set forth
on Schedule "C" on all federal income tax returns on which such allocations are
required to be reported.
2.5 Ad Valorem Taxes. Any ad valorem tangible personal
property taxes with respect to the Assets shall be prorated as of the Closing
date based on the 1999 tax bills using the maximum discount set forth on such
tax bills.
3. Closing.
3.1 Time and Place. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take place on or before
the 30th day of June, 1999 (unless extended by mutual agreement of the parties)
at the offices of the Purchaser, or at such other time and place as Purchaser
and Seller may mutually agree.
3.2 Closing Documents.
(a) At or before the Closing, Seller shall
tender to Purchaser the following duly executed documents (the
"Seller's Documents"):
(i) a complete list of the Assets and
Liabilities acceptable to Purchaser and Purchaser's counsel;
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(ii) a Xxxx of Sale and Assignment (in
form reasonably satisfactory to counsel for Purchaser) to
transfer title of the Assets from Seller to Purchaser;
(iii) one or more assignments as
required for the transfer of Seller's rights under any and
all leases, licenses, or other contracts included in the
Assets;
(iv) one or more assignments as
required for the transfer of the rights of South Equity
Mortgage Corporation under any and all leases, licenses, or
other contracts included in the Assets;
(v) a Registration Rights Agreement,
in form and substance as set forth in Exhibit "A" hereto;
(vi) An Employment Agreement between
Purchaser and Xxxxxx Xxxxxxxx, in form and substance as set
forth in Exhibit "B" hereto;
(vii) An Agreement among Xxxxxxx Xxxxxx,
Xxxxxx Xxxxxxxx, South Equity Mortgage Corp., Xxxxxx X.
Xxxxxx, Trustee, Parent, and Purchaser, in form and substance
as set forth in Exhibit "C" hereto; and
(viii) A certificate executed by a duly
authorized officer of Seller regarding certain
representations, warranties, and covenants made herein by
Seller and such other certificates and documentation as
Purchaser may reasonably request to effect the transactions
contemplated herein.
(b) At or before the Closing, Purchaser shall
tender to Seller the following duly executed documents (the
"Purchaser's Documents"):
(i) Certificates representing the
shares of common stock in the Purchaser that constitute the
Purchase Price, with the appropriate legends and
endorsements;
(ii) The Registration Rights Agreement
between Purchaser and Seller;
(iii) The Employment Agreement between
Purchaser and Xxxxxx Xxxxxxxx;
(iv) The Agreement described in
Section 3.2(a)(vii) above; and
(v) Such other certificates and
documentation as Seller may reasonably request to effect the
transactions contemplated herein.
3.3 Further Assurances. At and after the Closing, and
without further consideration, Seller shall execute and deliver to Purchaser
such further agreements, documents, and instruments as Purchaser may request
that are reasonably necessary to fully transfer and assign to Purchaser any and
all of the Assets and otherwise fully realize the benefit of the transaction
contemplated herein, and for aiding, assisting, collecting, and reducing to
possession any and all of the Assets and exercising all rights with respect to
the Assets.
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3.4 Proration of Certain Expenses at Closing. The
parties agree that, to the extent applicable, all items traditionally prorated
in transactions similar to those contemplated herein are to be adjusted and
allowed for on the date of Closing, with Seller responsible for items on or
before the date of Closing and Purchaser responsible for items after the date
of Closing. To the extent of such property being transferred hereunder,
personal and intangible property taxes and assessments are to be prorated on a
basis of calendar year 1999, unless any tax or assessment for that year is
unascertainable on the date of Closing, in which case that prospective tax or
assessment is to be prorated based on the amount paid for calendar year 1998.
4. Representations, Warranties and Covenants of Seller. Seller
hereby represents, warrants, and covenants to Purchaser as follows:
4.1 Organization. Seller is a corporation duly
organized, validly existing, and in good standing under the laws of the State
of Florida and is duly qualified to conduct its business and affairs in every
jurisdiction where the nature of its operations and/or its ownership of
property and assets requires such qualifications. Seller has full power and
authority to own its properties and to conduct its business as presently
conducted in all such jurisdictions.
4.2 Authority. Seller has all requisite power and
authority to execute and deliver this Agreement and all other Seller's
Documents and to perform its obligations hereunder and thereunder. The
execution, delivery, and performance by Seller of this Agreement and the other
Seller's Documents has been duly authorized by all necessary action, corporate
and otherwise, and this Agreement has been duly executed and delivered and is,
and the other Seller's Documents will be, when executed and delivered by
Seller, the legal, valid, and binding obligations of Seller enforceable against
it in accordance with their respective terms, except to the extent that the
same may be limited by insolvency, bankruptcy, reorganization, moratorium, or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity, and such Seller's Documents are sufficient to
transfer to and vest in Purchaser good and marketable title to the Assets, free
and clear of all liabilities, obligations, liens, claims, security interests,
charges, encumbrances, contingencies, equities, and other adverse claims of any
kind.
4.3 Title. The Assets are owned solely by Seller, and
Seller has, and is assigning and transferring to Purchaser as of the date of
Closing, good and marketable title to the Assets, free and clear of any and all
liabilities, obligations, liens, claims, security interests, charges,
encumbrances, contingencies, equities and other adverse claims of any kind.
4.4 Condition of Assets. The Assets being transferred
hereunder are in good working condition (normal wear and tear excepted). Seller
hereby expressly disclaims all other warranties (express or implied) and makes
no other warranties of any nature whatsoever regarding the Assets.
4.5 No Violation. The execution or delivery of this
Agreement or any of the other Seller's Documents, and the consummation of the
transactions contemplated hereby and thereby, including, without limitation,
the transfer of the Assets to Purchaser, shall not conflict with, or result in
the breach of, any term or provision of, or constitute a default under, or
result in the creation of, any liability, obligation, lien, claim, security
interest, charge, encumbrance, contingency, equity, or other
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adverse claim upon any or all of the Assets pursuant to, or give any third
party the right to accelerate any obligation under, any article provision,
bylaw, agreement, indenture, deed of trust, contract, instrument, order, law,
or regulation to which Seller is a party or by which Seller or any of the
Assets is in any way bound or obligated.
4.6 Governmental Consents. There are no consents,
approvals, orders, or authorizations of, or registrations, qualifications,
designations, declarations, or filings with, any governmental authority
required on the part of Seller in connection with the transactions contemplated
by this Agreement.
4.7 Litigation; Investigations. There are not currently
any pending or, to the knowledge of the Seller, threatened claims, lawsuits,
administrative proceedings or reviews, or investigations by any person or
governmental authority, against Seller or against or relating to any of the
Assets, or to which any of the Assets is subject. Seller is not subject to any
currently existing judgment, finding, ruling, order, writ, injunction, or
decree relating to any of the Assets or the Business or operations of Seller.
4.8 Tax Matters. All federal, state and local taxes (and
all deficiencies, assessments, additions to tax, penalties, and interest) that
have become due and payable by Seller, or which have accrued, or for which
Seller would or will otherwise be liable, for any period on or before the date
of Closing, or as to which a claim is known by Seller to have been threatened
against it, have been paid.
4.9 Employee Benefits. Except as otherwise described on
Schedule "D", there are no employee benefit agreements, plans or other
arrangements, covering any employee, which are presently in effect or will have
been in effect at any time prior to the Closing Date.
4.10 No Other Agreements. Seller has not entered into any
agreement, commitment, or understanding with any other person with respect to
the sale, transfer, lease, or other disposition of all or any portion of the
Assets, except for sales, transfers, or leases in the ordinary course of
Seller's Business and consistent with past practices.
4.11 Seller's Business in Compliance with Law. All
operations of Seller conform to the requirements of all Federal, state and
local laws, rules, regulations, orders, ordinances, and decrees (whether
judicial, administrative, or otherwise) applicable to Seller's Business, and no
claims have been made nor notices (constructive or actual) given, nor does
Seller in good faith believe or have knowledge of facts which may reasonably
indicate that any such claims may be made or investigations instituted, by any
governmental regulatory agency whether Federal, state, or local, that such
operations are not in conformity with any applicable law, rule, order, decree,
or ordinance regulation.
4.12 Permits and Licenses. Seller shall deliver to
Purchaser prior to the date of Closing a list of all licenses, permits, and
other authorizations of governmental authorities used and required by Seller in
the conduct of its Business with the Assets. Seller has not received notice,
nor does it have any reason to believe, that revocation is being considered
with respect to any such permit, license, or authorization. Seller shall
transfer to Purchaser interests in and to all such permits, licenses, and
authorizations as are transferable to Purchaser, and to Seller's knowledge the
consummation of the transactions contemplated by this Agreement will not
terminate or adversely affect any such licenses, permits or authorizations.
Except for such licenses, permits, or authorizations, neither the conduct of
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Seller's Business nor the ownership or use of the Assets requires any license,
permit, or other authorization, written or oral.
4.13 Financial Statements. Seller has provided Purchaser
with Seller's relevant financial statements and information for the six (6)
month period ending as of June 30, 1999, copies of which are set forth on
Schedule "E" attached hereto and incorporated herein by reference
(collectively, the "Financial Statements"). The Financial Statements have been
prepared in accordance and consistent with past practices and procedures of
Seller, and, notwithstanding the fact that such Financial Statements may
contain certain estimates by Seller and may not necessarily be prepared in
accordance with generally accepted accounting or audit principles, Seller
represents and warrants that such estimates are based on actual, historical
data of Seller and thus are not materially different from such actual,
historical data, and that such Financial Statements fairly and accurately
represent the financial condition and operations of the Business as of the
dates thereof. From the date of the Financial Statements up to the date of
Closing, there shall have been no material adverse changes in the operations or
financial condition of the Business.
4.14 Undisclosed Liabilities. Seller neither has nor is
subject to any liability or obligation, including without limitation any
leases, either accrued, absolutely contingent, or otherwise, other than those
appearing on the Financial Statements or otherwise provided to Purchaser in
writing, to which Purchaser might be subjected subsequent to the consummation
of the transactions contemplated by this Agreement, or that might result in the
imposition of a lien on any of the Assets after the date of Closing.
4.15 Conveyance Not Fraudulent. Seller is not insolvent,
and Seller is not engaged, nor is it about to engage, in a business or
transaction for which the property remaining in its hands after the
consummation of the transactions contemplated by this Agreement will be an
unreasonably small amount of capital in relation to its obligations; Seller
does not intend to incur, nor does it believe that it will incur, debts beyond
its ability to pay them as they mature; and Seller is not making the
transactions contemplated by this Agreement with intent to hinder, delay, or
defraud either present or future creditors. The parties hereto recognize that,
although the location of the Assets may not change, upon consummation of the
transactions contemplated by this Agreement possession and control of the
Assets will be transferred and delivered to Purchaser.
4.16 Material Information. All material facts known to
Seller concerning Seller and the Business have been disclosed to Purchaser, and
no representation or warranty made herein by Seller and no statement contained
in any document, schedule, certificate, or other instrument furnished or to be
furnished to Purchaser in connection with the transactions contemplated by this
Agreement, contains or will at any time contain any untrue statement of
material fact or omits or will omit to state a material fact necessary in order
to make any statement or fact contained therein not misleading.
4.17 Complete and Accurate as of Closing. All
representatives and warranties of Seller herein shall be true and correct as of
the date of Closing.
No due diligence or other investigation or knowledge of Purchaser
shall effect or mitigate any representations made under this Section 4 or any
remedies available to Purchaser under this Agreement.
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5. Representations and Warranties of Purchaser. Purchaser
represents and warrants to Seller as follows:
5.1 Organization. Purchaser is a corporation duly
organized, validly existing, and in good standing under the laws of the State
of Florida.
5.2 Authority. Purchaser has all requisite power and
authority to execute and deliver this Agreement and all other Purchaser's
Documents and to perform its obligations hereunder and thereunder. The
execution, delivery, and performance of this Agreement and the other Purchaser
Documents have been duly authorized by all necessary action (corporate or
otherwise) by Purchaser, and this Agreement has been duly executed and
delivered and is, and each of the other Purchaser Documents will be, when
executed and delivered by Purchaser, a legal, valid, and binding agreement of
Purchaser, enforceable against Purchaser in accordance with its respective
terms, except to the extent that the same may be limited by insolvency,
bankruptcy, reorganization, moratorium, or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
5.3 No Violation. Neither the execution nor the delivery
of this Agreement or any of the other Purchaser's Documents, nor the
consummation of the transactions contemplated hereby or thereby will conflict
with, or result in the breach of any term or provision of, or constitute a
default under, any charter provision, bylaw, agreement, indenture, deed of
trust, instrument, order, law, or regulation to which Purchaser is a party or
by which Purchaser or any of its assets or properties is in any way bound or
obligated.
6. Representations and Warranties of Parent.
6.1 Organization. Parent is a corporation duly
organized, validly existing, and in good standing under the laws of the State
of Nevada.
6.2 Authority. Parent has all requisite power and
authority to perform its obligations hereunder. The performance of such
obligations has been duly authorized by all necessary action (corporate or
otherwise) by Parent, and any obligations incurred by Parent shall be
enforceable against Parent in accordance with their respective terms, except to
the extent that the same may be limited by insolvency, bankruptcy,
reorganization, moratorium, or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
6.3 No Violation. Neither the fulfillment by Parent of
its obligations hereunder nor the consummation of the transactions contemplated
hereby will conflict with, or result in the breach of any term or provision of,
or constitute a default under, any charter provision, bylaw, agreement,
indenture, deed of trust, instrument, order, law, or regulation to which Parent
is a party or by which Parent or any of its assets or properties is in any way
bound or obligated.
7. Further Agreements of the Parties. After the date
of Closing, Seller shall, upon the reasonable request of Purchaser, take such
actions, including the execution and delivery of documents, as may be
necessary or convenient to accomplish the transactions contemplated by this
Agreement; and, if Purchaser is required to defend or prosecute a claim by or
against a third party with respect to the Assets or any of Purchaser's rights
or obligations under this Agreement, cooperate in such defense
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or prosecution at Purchaser's request, and furnish such records, information,
and testimony and attend such conferences, trials, and appeals as Purchaser may
reasonably request.
8. Conditions Precedent to Purchaser's Obligations. The
following conditions shall have been fulfilled on or before the date of Closing
as conditions precedent to Purchaser's obligation to consummate the
transactions contemplated by this Agreement:
8.1 Continued Accuracy of Representations and
Warranties. The statements, representations, and warranties of Seller contained
in this Agreement and in any certificate or other Seller's Documents delivered
by or on behalf of Seller pursuant to this Agreement shall continue to be
materially true and correct through the date of Closing as if made on that
date.
8.2 Fulfillment of Covenants. Seller shall have
materially performed and satisfied every agreement and condition required by
this Agreement to be performed or satisfied by it on or before the date of
Closing.
8.3 Execution and Delivery of Documents. Every
agreement, document, and other instrument identified in Section 3.2(a) of this
Agreement, and every other agreement, document, or instrument necessary to
accomplish the transactions contemplated by this Agreement and to be executed
and delivered by Seller shall have been so executed and delivered; provided,
however, that the list of Assets, prescribed for delivery by Section 3.2(a)(1)
hereof, shall be deemed delivered if Purchaser prepares and provides a list of
the Assets that is acceptable to Seller within its reasonable discretion.
8.4 No Adverse Changes. From the date hereof to the date
of Closing there shall have been no material adverse changes in, or development
or event that materially adversely affects or that may in the foreseeable
future materially adversely affect, the Assets or the Business.
8.5 Pending Litigation. Neither Seller nor Purchaser
shall be subject to any injunction against the consummation of the transactions
contemplated by this Agreement, and there shall not be pending or have been
threatened any litigation or proceeding by any person, to restrain or prohibit
the consummation of the transactions contemplated by this Agreement, or the
ownership or operation of the Assets by Purchaser.
9. Conditions Precedent to Seller's Obligations. The following
conditions shall have been fulfilled on or before the date of Closing as
conditions precedent to Seller's obligations to consummate the transactions
contemplated by this Agreement:
9.1 Continued Accuracy of Representations and
Warranties. The statements, representations, and warranties of Purchaser
contained in this Agreement and in any certificate or other Purchaser's
Documents delivered by or on behalf of Purchaser pursuant to this Agreement
shall continue to be materially true and correct through the Closing as if made
on that date.
9.2 Fulfillment of Covenants. Purchaser shall have
materially performed and satisfied every agreement and condition required by
this Agreement to be performed or satisfied by it on or before the Closing.
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9.3 Execution and Delivery of Documents. Every
agreement, document, and other instrument identified in Section 3.2(b) of this
Agreement, and every other agreement, document, or instrument necessary to
accomplish the transactions contemplated by this Agreement and to be executed
and delivered by Purchaser shall have been so executed and delivered.
10. Restrictive Covenants. The prohibitions of this Section 10
shall apply to all activities of Seller and the shareholders of Seller, whether
as individuals acting on their own behalf, or as independent contractors,
partners or joint venturers, consultants or as officers, directors,
stockholders, agents, employees or salesmen for any person, firm, partnership,
corporation or other entity; provided, however, that for purposes of this
Section 10, Xxxxxx Xxxxxxxx shall not be considered a shareholder of Seller and
shall not be restricted pursuant to the provisions of this Section 10.
10.1 Non-competition. During the five-year period
immediately following the effective date of this Agreement, Seller and the
shareholders of Seller agree that they shall not directly or indirectly enter
into, engage in, be employed by, or consult with any marketing or telemarketing
business or other activity in competition with Purchaser, or otherwise engage
in the operation of a marketing or telemarketing business.
10.2 Non-solicitation. During the five-year period
immediately following the effective date of this Agreement, Seller and the
shareholders of Seller agree that they shall not, either directly or indirectly
solicit or otherwise communicate with any customers or clients of Purchaser
with the purpose of causing such persons to terminate their business or
professional relationship with Purchaser, nor shall Seller solicit any
contracts to which Purchaser is a party, or otherwise interfere with any
professional or business relationships in which Purchaser is involved during
such five-year period.
10.3 Extension. The period of time during which the
prohibitions upon Seller specified in Sections 10.1 and 10.2 of this Agreement
are in effect shall be extended by any length of time during which Seller is in
breach of said Sections.
10.4 Enforcement. It is agreed by the parties hereto that
if any portion of the restrictive covenants set forth in Sections 10.1 and 10.2
of this Agreement is held to be unreasonable, arbitrary, or against public
policy, then each such covenant shall be considered divisible both as to time
and geographical area, with each month of a specified period being deemed a
separate period of time and each county within each state being deemed a
separate geographical area, it being the intention of the parties that a lesser
period of time or geographical area shall be enforced so long as the same is
not unreasonable, arbitrary or against public policy. The parties to this
Agreement agree that, in the event any court of competent jurisdiction
determines that a specified time period or a specified geographical area is
unreasonable, arbitrary or against public policy, a lesser time period or
geographical area which is determined to be reasonable, non-arbitrary and not
against public policy may be enforced against Seller. The parties hereto agree
that damages at law will be an insufficient remedy to Buyer in the event that
the restrictive covenants of Sections 10.1 and 10.2 of this Agreement are
violated and that, in addition to any remedies or rights that may be available
to Buyer, Buyer also shall be entitled, upon application to a court of
competent jurisdiction, to obtain injunctive relief to enforce the provisions
of this Section 10.
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11. Termination.
11.1 Events of Termination. This Agreement may be
terminated, and the transactions contemplated by it abandoned as to all
parties, as follows:
(a) at any time prior to Closing by written
agreement between the parties;
(b) unilaterally by Purchaser if any condition
set forth in Section 8 of this Agreement has not been satisfied on the
date of Closing;
(c) unilaterally by Seller if any condition set
forth in Section 9 of this Agreement has not been satisfied on the
date of Closing.
11.2 Effect of Termination. Termination of this Agreement
pursuant to Section 11.1 terminates all duties of the parties hereunder and, in
and of itself, creates no liability between the parties. However, this Section
10.2 does not bar the liability of a party for a breach of its duties
hereunder.
12. Indemnification.
12.1 Purchaser's Right to Indemnification. Seller hereby
agrees to indemnify and hold Purchaser harmless from and against any and all
liabilities, obligations, claims, contingencies, damages, costs, charges,
payments, actions and expenses (including, without limitation, all court costs
and reasonable attorneys' fees) that Purchaser may suffer or incur as a result
of, arising from, or relating to, directly or indirectly, (i) the breach or
inaccuracy of any of the representations, warranties, covenants, or agreements
made by Seller herein or pursuant hereto, (ii) any lawsuit, claim, or
proceeding of any nature relating to Seller or the Assets or Business, and
arising out of any act or transaction occurring prior to the Closing or arising
out of any facts or circumstances that existed at or prior to the Closing, and
(iii) any other liabilities or obligations not being expressly assumed by
Purchaser pursuant to this Agreement. If Seller shall be obligated to indemnify
Purchaser in accordance with the foregoing, Purchaser shall have all legal and
equitable rights to enforce the provisions of this Section 12.
12.2 Seller's Right to Indemnification. Purchaser agrees
to indemnify and hold Seller harmless from any and all liabilities,
obligations, claims, contingencies, damages, costs, charges, payments, actions
and expenses (including, without limitation, all court costs and reasonable
attorneys' fees) that Seller may suffer or incur as a result of, arising from,
or relating to, directly or indirectly, (i) the breach or inaccuracy of any of
the representations, warranties, covenants, or agreements made by Purchaser
herein or pursuant hereto, (ii) any lawsuit, claim, or proceeding of any nature
relating to Purchaser or the Assets or Business, and arising out of any act or
transaction occurring from and after the date of Closing or arising out of any
facts or circumstances that arise or occur on or after the date of Closing, and
(iii) any liabilities or obligations being expressly assumed by Purchaser
pursuant to this Agreement. If Purchaser shall be obligated to indemnify Seller
in accordance with the foregoing, Seller shall have all legal and equitable
rights to enforce the provisions of this Section 12.
12.3 Notice. The party seeking indemnification hereunder
("Indemnitee") shall, promptly after notice to it of any claim (notice to
Indemnitee being the filing of any legal action, receipt in writing of any
claim or statement of a potential, contingent or otherwise unasserted claim, or
similar
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form of actual notice) as to which it asserts a right to indemnification,
notify the party from whom indemnification is sought ("Indemnitor") of such
claim. The failure of Indemnitee to give such notification shall not relieve
Indemnitor from any liability that it may have pursuant to this Agreement
unless the failure to give such notice within such time shall have been
prejudicial to it, and in no event shall the failure to give such notification
relieve the Indemnitor from any liability it may have other than pursuant to
this Agreement.
12.4 Third-Party Claims. If any claim for indemnification
by Indemnitee arises out of a claim for monetary damages by a person other than
Indemnitee in which Indemnitor acknowledges its absolute liability to indemnify
Indemnitee under this Section 12, Indemnitor may, by written notice to
Indemnitee, undertake to conduct any proceedings or negotiations in connection
therewith as necessary to defend Indemnitee and take all other steps or
proceedings to settle or defeat any such claims or to employ counsel to contest
any such claims; provided, however, that Indemnitor shall reasonably consider
the advice of Indemnitee as to the defense of such claims, and Indemnitee shall
have the right to participate, at its own expense, in such defense, but control
of such litigation and settlement shall remain exclusively with Indemnitor.
Indemnitee shall provide all reasonable cooperation in connection with any such
defense by Indemnitor. Counsel and auditor fees, filing fees, and court costs
in all proceedings, contests, or lawsuits with respect to any such claim or
asserted liability shall be borne by Indemnitor. If any such claim is made
hereunder and Indemnitor does not elect to undertake the defense thereof by
written notice to Indemnitee, or does not acknowledge in such written notice
its absolute liability to indemnify Indemnitee under this Section 12,
Indemnitee shall be entitled to control such litigation and settlement and
shall be entitled to indemnity with respect thereto pursuant to the terms of
this Section 12, including, without limitation, reasonable attorneys' fees and
costs. To the extent that Indemnitor undertakes the defense of such claim by
written notice to Indemnitee and diligently pursues such defense at its
expense, Indemnitee shall be entitled to indemnification hereunder only to the
extent that such defense is unsuccessful as determined by a final judgment of a
court of competent jurisdiction, or by written acknowledgment of the parties.
13. Miscellaneous.
13.1 Notices. Any notice or election required or
permitted to be given or served by any party hereto upon any other party shall
be in writing and shall be deemed to have been given or served when (i)
personally delivered, or (ii) one (1) day after being deposited with Federal
Express or another nationally recognized overnight delivery service for next
day delivery, or (iii) three (3) days after being deposited in the United
States mail, registered or certified mail, return receipt requested, postage
prepaid, properly addressed to the appropriate address, or (iv) when sent by
telecopier transmission before 5:00 p.m. of the time zone where the recipient
is located and evidenced by a telecopier generated confirmation that the
transmission was received, provided that such notice is followed by notice
delivered in the manner described in (i), (ii) or (iii) above, such notices to
be delivered as follows:
To Purchaser:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
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with copy to: Xxxxxxx Xxxxxx, Esquire
Xxxxxx & Xxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
To Seller:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
To Parent: First Capital Xxxxxxxxx.xxx, Inc.
0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx, President
13.2 Waiver. No course of dealing or any delay or failure
on the part of any party hereto in exercising any right, power, privilege or
remedy hereunder or under any other instrument given in connection with or
pursuant to this Agreement shall impair any such right, power, privilege or
remedy or be construed as a waiver of any breach, default or acquiescence
relating thereto. No single or partial exercise of any such right, power,
privilege or remedy shall be construed as a waiver, or preclude the further
exercise, of any such right, power, privilege or remedy or the exercise of any
other right, power, privilege or remedy. No waiver shall be valid against any
party hereto unless made in writing and signed by the party against whom
enforcement of such waiver is sought and then only to the extent expressly
specified therein.
13.3 Attorneys' Fees and Costs. In the event that
attorneys' fees or other costs are incurred to secure performance of any of the
obligations herein provided for, or to establish damages for the breach thereof
or to obtain any other appropriate relief, whether by way of prosecution or
defense, the prevailing party, whether at trial, on appeal, or in bankruptcy
proceedings, shall be entitled to recover reasonable attorneys' fees and costs
incurred therein, including paralegal costs.
13.4 Survival. The representations, warranties,
covenants, and agreements made by the parties pursuant to this Agreement
(including, without limitation, obligations for indemnification) shall survive
the Closing for a period of three years.
13.5 Expenses. Except as otherwise stated herein, each of
the parties hereto shall, whether or not the transactions contemplated hereby
are consummated, bear its own attorneys', accountants', auditors', or other
fees, costs, and expenses incurred in connection with the negotiation,
execution, and performance of this Agreement or any of the transactions
contemplated hereunder.
13.6 No Brokers. Each party to this Agreement represents
to the other parties that it has not incurred and will not incur any liability
for brokerage fees or agents' commissions in connection with this Agreement and
the transactions contemplated hereby, and agrees that it will indemnify and
hold harmless the other party against any claim for brokerage and finders' fees
or
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agents' commissions in connection with the negotiation or consummation of the
transactions contemplated by this Agreement.
13.7 Counterparts. This Agreement may be executed in one
or more counterparts for the convenience of the parties hereto, all of which
together shall constitute one and the same instrument.
13.8 Assignment. 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, but neither this Agreement
nor any of the rights, interests, or obligations hereunder shall be assigned or
delegated by any of the parties hereto without the prior written consent of the
other parties.
13.9 Entire Agreement. This Agreement contains the entire
understanding of the parties relating to the subject matter contained herein
and supersedes all prior written or oral and all contemporaneous oral
agreements and understandings relating to the subject matter hereof. This
Agreement cannot be modified, amended, or terminated except in writing signed
by the party against whom enforcement is sought.
13.10 Schedules and Exhibits. All schedules and exhibits
to this Agreement are incorporated herein by reference and made a part hereof
for all purposes. All references herein to this Agreement shall be deemed to
include all schedules and exhibits hereto or contemplated hereby. The parties
agree that, to the extent any schedules or exhibits specifically referenced or
otherwise provided for or intended under this Agreement are not attached hereto
at the time of execution and delivery by the parties, such schedules or
exhibits shall be prepared and agreed to by the parties and shall be attached
hereto in final form on or before the date of Closing.
13.11 Construction. Any ambiguity in this Agreement shall
not be construed against the drafter but shall be construed in a neutral
manner. Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
portions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
13.12 Governing Law. This Agreement shall be governed by,
and construed and interpreted in accordance with, the substantive laws of the
State of Florida, without giving effect to any conflict of laws rule or
principle that might require the application of the laws of another
jurisdiction.
13.13 Time. The Effective Date of this Agreement shall be
the date the later of Purchaser or Seller executes this Agreement as evidenced
by the date below their respective signatures. Time is hereby made of the
essence of this Agreement and each and every provision hereof. Any reference
herein to time periods of less than six (6) days shall in the computation
thereof exclude Saturdays, Sundays and legal holidays, and any time period
provided for herein which shall end on a Saturday, Sunday or legal holiday
shall extend to 5:00 PM of the next full business day. In computing periods of
time, the date of this Contract shall not be counted.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
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FC HOLDING CORPORATION
By:
-------------------------------------
Its:
-------------------------------------
Date:
-----------------------------
"Purchaser"
AMERICAN MARKETING CORPORATION OF
SOUTH FLORIDA
By:
-------------------------------------
Its:
-------------------------------------
Date:
-----------------------------
"Seller"
FIRST CAPITAL XXXXXXXXX.xxx, INC.
By:
-------------------------------------
Xxxxx Xxxxxxx, President
Date:
-----------------------------
"Parent"
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SCHEDULE "A"
List of Assets
1. AMCAT Dialing Engine (Leased from Rockford Ind.)
2. VGA Monitor for Engine
3. Siemens 000 X Xxxxxx Xxxxx Xxxxxxx Xxxx (Leased from _________________)
4. 2 Network Hubs
5. 1 - 6' Lunch Table
6. 1 - 5' Lunch Table
7. 1 - Kitchen Refrigerator
8. 1 - Microwave oven
9. Assorted Dinning room utensils
10. 1 - Electric punch Time Clock
11. 1 - Computer Time Clock System
12. 50 - Office Chairs
13. 39 - Sound Absorbing TSR Booth w/37" desk tops all wired for Audio and Video and
additional Telephone line
14. 18 - TSR Pentium 133 to 166 Computers w/monitors (Leased from Rockford Ind.)
15. 15 - Sherwood TSR Terminals w/monitors
16. 1 - Pentium II 233 Server w/monitor (Leased from Rockford Ind.)
17. 1 - 70" Executive Desk w/return
18. 1 - High back Executive Chair
19. 2 - Side Chairs
20. 1 - 60" Executive Desk w/return
21. 1 - Black cloth swivel chair
22. 1 - 60" Executive Desk
23. 1 - 50" Metal Supervisor Computer Desk
24. 1 - 48" Wood Computer Desk
25. 1 - Brother MFC Fax
26. 183 Calling Lists approximately value at cost $500.00 ea. = $91,500.00
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SCHEDULE "B"
List of Liabilities
Payroll Liabilities to 6/24/99:
-------------------------------
Advance American Marketing $ 203.00
Federal Unemployment IRS $ 631.68
Federal Withholding IRS $ 4,606.92
Medicare Company IRS $ 3,030.92
Medicare Employee IRS $ 3,030.92
Social Security Company IRS $ 7,408.92
Social Security Employee IRS $ 6,608.92
----------
Sub-total $25,521.28
==========
Lists Paid for by MicroSmart:
Paramount List Co. (See Attachment) $ 6,369.54
Accrued Billed Expenses:
MCI WorldCom $_________
Others (see Attachments) $35,838.99
Leases:
To be attached $_________
Accrued but Unbilled Expenses:
To be determined $_________
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SCHEDULE "C"
Allocation of Purchase Price
[INTENTIONALLY LEFT BLANK]
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SCHEDULE "D"
List of Employee Benefit Plans
Humana Health Plan (HMO) Family Coverage:
Includes Dental and Prescription coverage
$15.00 coinsurance payment for physician office visits
$5.00 coinsurance payment for prescriptions
Cost to company: $774.00 per month.
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SCHEDULE "E"
Financial Statements
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EXHIBIT "A"
Registration Rights Agreement
20
21
EXHIBIT "B"
Employment Agreement
21
22
EXHIBIT "C"
Agreement
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