ASSET PURCHASE AGREEMENT
THIS
PURCHASE AGREEMENT (this
"Agreement") is made and entered into as of this 10th day of March, 2006, by
and
between Select Video, Inc., a Delaware corporation "Seller"), and WPP
Acquisition, Inc., a Minnesota corporation ("Buyer"). Seller and Buyer are
referred to herein collectively as the "Parties."
WHEREAS,
Seller
wishes to sell to Buyer, and Buyer wishes to buy from Seller, the assets of
Seller used in the operation of Winners Pot Poker (the "Business") in exchange
for a certain number of shares of the common stock in Buyer and other agreed
upon consideration, pursuant to the terms and conditions of this Agreement;
and
WHEREAS,
Buyer
desires to purchase, and Seller desires to sell, the assets of Seller through
the aforementioned sale of stock; and
WHEREAS,
after
the sale and purchase of the Business, the Parties intend to use their best
efforts to merge Buyer with a publicly traded company for the purpose of
establishing and enhancing the marketable value of the surviving
company.
NOW,
THEREFORE, in
consideration of these premises and the respective representations, warranties,
covenants, and agreements set forth in this Agreement, the Parties agree as
follows:
ARTICLE
I
PURCHASE AND SALE OF ASSETS
Section
1.1 Assets
To Be Acquired. Subject
to the terms and conditions and in reliance upon the representations,
warranties, covenants, and agreements herein, Seller agrees to sell, assign,
transfer and deliver to Buyer, and Buyer agrees to purchase, acquire and accept
from
Seller,
all of Seller's the right, title and interest in and to those certain assets,
properties, rights, and contracts used in the Business, wherever located,
tangible and intangible, including without limitation the assets described
in
Sections 1.1.1 through 1.1.8 below (the "Assets"). The Assets include, without
limitation, the following:
1.1.1
Inventory. All inventories,
parts, accessories, materials, supplies, repair and replacement parts, and
spare
parts related to the Business (the "Inventory"), including without limitation
the Inventory listed on Schedule
1.1.1 and
updated as of the Closing Date;
1.1.2 Machinery
and Equipment. All of
the
machinery, equipment, vehicles, tools, furniture, fixtures, office equipment,
computers, software, supplies and other tangible assets related to the Business
(the "Machinery and Equipment"), including without limitation the Machinery
and
Equipment listed on Schedule
1.1.2;
1.1.3 Know-How.
All trade
secrets, know-how, technical information, methods, specifications, designs,
inventions, and other operational, logistical, maintenance and technical data
and information, and all documents, manuals, records, tapes, discs, records,
computer programs, reports and other media relating thereto, and all other
intangible assets related to the Business (the "Know-How");
1.1.4 Trademarks
and Copyrights. All right,
title, interest and goodwill in and to all trademarks, patents, trade names,
service marks, domain names, copyrights and logos used in connection with the
Business including without limitation those set forth on Schedule
1.1.4 (the
"Trademarks and Copyrights");
1.1.5 Contracts. All
of
the right, title and interest of Seller in and to the contracts, purchase orders
and dealer described on Schedule
1.1.5 (the
"Scheduled Contracts") and all other contract rights, claims, causes of action,
refunds, credits, rights of recovery and set-off, security interests, licenses,
permits, software licenses, consents, authorizations, and approvals related
to
the Scheduled Contracts;
1.1.6
Warranties and Other Rights. All rights
under or pursuant to all warranties, representations, guarantees and service
contracts with suppliers, manufacturers and contractors in connection with
the
Assets;
1.1.7 Promotional
Materials. All
brochures, non-personal artwork and other promotional and printed materials,
trade show materials (including displays), videos, advertising and/or marketing
materials; and
1.1.8 Other
Assets. Any
and
all other rights and assets owned by Seller and/or used by Seller in the
operation of the Business including, without limitation, all customer and
supplier lists, prepaid expenses, customer down payments, deposits,
manufacturer's incentives and bonuses, holdbacks, rebates, purchase and sale
records, financial and other books and records, Seller's name, telephone
numbers, trade association memberships, and goodwill as well as any other assets
set forth on Schedule
1.1.8.
Section
1.2 Excluded
Liabilities. Buyer
shall not and does not assume or become liable for any obligations, liabilities
or indebtedness of Seller, whether due or to become due, asserted or unasserted,
accrued or unaccrued, liquidated or unliquidated, contingent, executory or
otherwise, howsoever or whenever arising. Seller shall retain all such
obligations, liabilities, and indebtedness (the "Excluded Liabilities"),
including without limitation the following:
1.2.1
Any
liabilities, obligations, penalties or damages arising under the Scheduled
Contracts in connection with any conduct, events, breach or default occurring
on
or before the Closing Date, including, without limitation, any claims relating
to a breach by Seller under any Scheduled Contracts or Scheduled
Leases;
1.2.2
Any
accounts payable and/or other liabilities of Seller accrued on or before the
Closing Date;
1.2.3 Any
assessments, claims or liabilities (including interest and/or penalties) for
Taxes relating to or assessed against the Assets, the Business or the sales,
income, property or business of the Seller for periods ending on or before
the
Closing Date and/or resulting from the sale or transfer of the
Assets;
1.2.4 Any
claim, cause of action, damages, fine, penalty, assessment and/or interest
("Claims") arising out of any act, omission or occurrence in connection with
the
operation of the Business or the ownership of the Assets on or before the
Closing Date, including, without limitation, any product liability or other
claim for personal injury or for property damage, any claim for violation of
employee welfare and safety laws or employment discrimination, and/or any claim
for infringement relating to Seller's use of any intellectual property, and
specifically excluding any Claim relating to or arising out of breach of
warranty;
1.2.5 Any
liabilities to any current or former employee of Seller, whether or not hired
by
Buyer, relating to any period ending on or before the Closing Date, including
any liabilities to any such employees for employee benefits, wages, bonuses,
payroll taxes and/or retirement plan contributions; or
1.2.6 Any
violation by Seller of any federal, state or local laws relating to the Assets
or the Business on or prior to the Closing Date, including, without limitation,
costs of investigation, remediation and cleanup, fines and
sanctions.
ARTICLE
II CLOSING
Section
2.1 Closing. The
Closing of the sale and purchase of the Assets and the consummation of the
other
transactions contemplated herein (the "Closing") shall take place on or about
March 31, 2006, or such other date as agreed by the Parties (the "Closing
Date").
ARTICLE
III PURCHASE PRICE
Section
3.1 Purchase
Price. In
consideration for the Assets and related covenants, Buyer will provide to
Seller:
3.1.1 3,022,991
shares of the common stock in Buyer, which constitutes a number equivalent
to
one share of Buyer's common stock (the "WPP Shares") for every two shares of
Seller's common stock (the "Select Video Shares"), and shall transfer to Seller
stock certificates representing the WPP Shares endorsed in blank or accompanied
by duly executed assignment documents and free and clear of any mortgage,
pledge, lien, encumbrance, charge or security interest or restriction of any
kind (other than restrictions imposed under securities and insurance laws)
in
the minute books and stock transfer books of Buyer; and
3.1.2 an
amount
equal to five percent (5%) of all gross proceeds of the Business and other
similar games, if any, which amount shall accrue on a quarterly basis and shall
be paid within thirty (30) days of the end of each quarter; and
Section
3.2 Transfer
of Title. At
the
Closing, title to all of the Assets and risk of loss shall pass to Buyer. From
and after Closing, Seller shall cooperate with Buyer and execute, deliver and
record such instruments of title and other documents reasonably requested by
Buyer to more fully perfect Buyer's right, title and interest in the
Assets.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF SELLER
Seller
makes the following representations and warranties to Buyer:
Section
4.1 Organization
and Qualification. Seller
is
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and has the requisite power and authority to own, use,
operate or lease the Assets as Seller is now conducting its business, operations
and affairs. Seller is duly qualified or licensed as a foreign corporation
to do
business, and is in good standing, in each jurisdiction where the character
of
its assets or the nature of its activities makes qualification or license
necessary.
Section
4.2 Authorization. Seller
has all requisite power and authority to enter into and perform this Agreement
and to consummate the transactions contemplated hereby. The execution, delivery,
consummation and performance of this Agreement and the other agreements
contemplated hereby have been duly authorized and approved by all necessary
actions of Seller. This Agreement is, and the other agreements referenced herein
when executed will be, valid and binding obligations of Seller enforceable
against Seller in accordance with their terms.
Section
4.3 No
Breach or Violation; Conflicts. Neither
the execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, (i) will violate any provision of any law,
rule, regulation, judgment, injunction, determination, award or order of any
governmental authority, (ii) will violate, conflict with, constitute a default
under or result in any breach of the terms of the Seller's articles of
incorporation or bylaws, or other governing documents, or any contract,
commitment, agreement, understanding or arrangement of any kind; or (iii) will
result in the creation or imposition of any Lien (as defined in Section 10.1.1)
with respect to the Assets.
Section
4.4 Title
and Condition of Assets.
4.4.1 Title. Seller
has good, valid and marketable title to all of the Assets not leased by Seller.
At Closing, Seller will convey to Buyer good, valid and marketable title to
each
of the Assets (except those leased by Seller): The title to each Asset is,
and
at Closing will be, free and clear of all Liens.
4.4.2 Sufficiency;
Condition. The
Assets constitute all of the assets and rights used in the conduct of the
Business as presently and as historically conducted. Each
tangible Asset is free from defects (patent and latent), has been maintained
in
accordance with normal industry practice, is in good operating condition and
repair (normal wear and tear excepted), and is suitable for the purposes for
which it presently is used.
4.4.3 Inventories.
All
Inventory is in merchantable condition, suitable for use or sale in the ordinary
course of the Business and has been maintained at a level suitable for operation
of the Business as it has historically been conducted.
4.4.4 Equipment.
The
Equipment and Machinery has been properly maintained and there exists no
condition that interferes with the economic value or usefulness of any such
item.
Section
4.5 Intellectual
Property.
4.5.1 In
General. Paragraph
1.1.3 and Schedule
1.1.4 contain
an accurate list of the Know-How and the Trademarks and Copyrights of Seller
(collectively, "Seller's Intellectual Property"). Seller does not use in the
Business any patent, trademark, copyright, trade secret or other intellectual
property rights other than Seller's Intellectual Property. Seller owns, free
and
clear of all Liens, all right, title and interest in and to Seller's
Intellectual Property. The Business as presently conducted does not conflict
with, infringe upon or violate the proprietary or other rights of any third
party.
4.5.2 Employees.
To the
best
of Seller's knowledge, no employee of Seller or the Business has any agreement
with any third party that restricts or limits the scope or type of work in
which
such employee may be engaged or requires such employee to transfer, assign
or
disclose to any third party any intellectual property that he or she develops
or
with which he or she becomes familiar during his or her employment or other
involvement with Seller or the Business.
Section
4.6 Contractual
and Other Obligations. Schedule
1.1.5 includes
a description of all material contracts, agreements, licenses, arrangements
and
other documents, other than the Scheduled Leases, used in the Business and
by
which any of the Business, the Assets or the Seller are bound. Neither Seller
nor any third party is in default under any such contract, no claim of default
has been made and no event has occurred that might constitute a default.
Originals or complete copies of all of the Scheduled Contracts have been
provided to Buyer.
Section
4.7 Litigation;
Disputes. Except
as
set forth on Schedule
4.7,
there are no claims, disputes, actions, suits, investigations or proceedings
pending or threatened against. Seller, the Business or the Assets, and there
is
no basis for any such claim, dispute, action, suit, investigation or proceeding.
Seller is not in default of any judgment, order, injunction or
decree.
Section
4.8 Permits,
Compliance with Applicable Law. Schedule
4.8 sets
forth all approvals, authorizations, consents, licenses, orders and permits
necessary to the ownership, use or operation of the Assets or the Business.
Seller is in material compliance with all statutes, ordinances, regulations,
orders, and decrees applicable to Seller, the Business and the Assets.
Seller
has no
knowledge of any basis for assertion of any violation of the foregoing. Seller
has not received any notification of any asserted failure to comply with any
of
the foregoing.
Section
4.9 Taxes. Seller
has filed on a timely basis all federal, state, local and other tax returns,
reports and declarations required to be filed and has paid when due all
Taxes
(including, but not limited to, income, sales, use, unemployment, withholding,
social security and workers' compensation taxes and estimated income tax
payments, penalties and fines) due or owed pursuant to any assessment. All
returns, reports and declarations filed on behalf of Seller are true, complete
and correct in all material respects. No deficiency in payment of any Taxes
has
been asserted by any taxing authority and no written inquiries have been
received by Seller with respect to possible claims for taxes or assessments.
All
of Seller's Taxes attributable to income, operations or properties accruing
up
to and including the Closing Date have been or will be paid when due regardless
of whether such Taxes are due and payable as of the Closing.
Section
4.10 Insurance. Seller
has maintained, at all times since Business operations commenced, standard
liability insurance for a business of its type. Schedule
4.10
sets
forth all policies of insurance relating to the Business as of the date of
this
Agreement.
Section
4.11 Assets
of Seller.
The
Assets constitute all of the assets of the Seller used in the operation of
the
Business as it has been operated prior to the date hereof.
Section
4.12 Suppliers. Schedule
4.12 contains
an accurate list of all suppliers with whom Seller has done business in the
past
twelve (12) months.
Seller is in good standing with all such suppliers. Seller has no notice that
the acquisition of the Business by the Buyer will materially or adversely affect
the relationships of the Buyer with any such suppliers.
Section
4.13 Disclosures. No
statement, representation or warranty made by Seller in this Agreement, in
any
Exhibit or Schedule delivered hereunder, or in any certificate, statement,
list,
schedule, report or other document furnished or to be furnished to Buyer
contains any untrue statement of material fact, or fails to state a material
fact necessary to make the statements contained herein or therein not
misleading.
ARTICLE
V REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer
makes the following representations and warranties to Seller:
Section
5.1 Organization. Buyer
is
a corporation duly organized, validly existing and in good standing under the
laws of Minnesota and has the requisite power and authority to own, operate
or
lease the assets that Buyer requires to carry on its businesses in all material
respects as such is now being conducted.
Section
5.2 Authorization. Buyer
has
all requisite power and authority to enter into and perform this Agreement
and
to consummate the transactions contemplated hereby. The execution, delivery,
consummation and performance of this Agreement and the other agreements
contemplated hereby have been duly authorized and approved by all necessary
actions of Buyer.
This
Agreement is, and the other agreements referenced herein when executed will
be,
valid and binding obligations of Buyer enforceable against Buyer in accordance
with their terms.
Section
5.3 No
Breach or Violation; Conflicts. Neither
the execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, (i) will violate any provision of any law,
rule, regulation, writ, judgment, injunction, decree, determination, award
or
other order of any governmental authority, (ii) will violate, conflict with,
constitute a default under or result in any breach of the terms of Buyer's
articles of organization, operating agreement, or any contract, commitment,
agreement, understanding or arrangement of any kind to which Buyer is a party
or
by which Buyer is bound.
ARTICLE
VI COVENANTS
Section
6.1 Tax
Matters.
6.1.1 Seller
Obligations. Seller
acknowledges its legal obligations to pay Taxes relating to all items of income,
loss, gain, deduction and credit attributable to or relating to the Business
or
ownership of the Assets up to and including the Closing Date.
6.1.2 Buyer
Obligations. Buyer
acknowledges its legal obligations to pay Taxes relating to all items of income,
loss, gain, deduction and credit attributable to or relating to the Business
or
ownership of the Assets after the Closing Date.
6.1.3 Tax
on Transaction. Seller
shall reimburse Buyer for, be liable for, and shall hold Buyer harmless from,
any and all Taxes, assessments, transfer, recording and other fees, charges
or
penalties required to be paid with respect to the sale, transfer and purchase
of
the Assets under this Agreement. Seller shall promptly file when due any and
all
returns with respect to such Taxes, assessments, fees, charges or
penalties.
Section
6.2 Further
Assurances. Seller
and Buyer shall each use their best efforts to take all actions necessary,
proper, or deemed by them advisable, to promptly fulfill their obligations
hereunder and to consummate the transactions contemplated by this
Agreement.
After
the
Closing, both parties will execute
and deliver such documents as the other may reasonably request to more
effectively consummate the transactions contemplated by this
Agreement.
ARTICLE
VII CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
Section
7.1 Conditions. The
obligations of Buyer to consummate the Closing shall be subject to the
fulfillment, to its reasonable satisfaction, on or prior to the Closing Date,
of
the following conditions precedent:
7.1.1 Representations
and Warranties. All representations
and warranties of Seller contained in this Agreement and in all certificates,
schedules and other documents delivered by Seller shall be true, complete and
accurate as of the date when made and as of the Closing Date with the same
force
and effect as though such representations and warranties had been made on and
as
of the Closing Date.
7.1.2 No
Material Adverse Change. During
the period from the date hereof to the Closing Date, Seller shall not have
sustained any material loss or damage to the Assets, nor shall there have been
any material adverse change in the Assets or Business.
7.1.3 Obtaining
of Consents and Approvals. Seller
shall have obtained and provided to Buyer such authorizations and consents
as
are required to consummate the transactions contemplated hereby.
7.1.4 Performance
by Seller. Seller
shall have performed and complied in all material respects with all agreements,
covenants, obligations and conditions required by this Agreement to be performed
or complied with by Seller on or before the Closing.
7.1.5
UCC
Termination. Seller
shall have delivered to Buyer Uniform Commercial Code lien terminations
signifying the release of any Liens on the Assets.
7.1.6 Deliveries
to Buyer. The execution
and delivery to the Buyer by the Seller of the following, all dated as of the
Closing Date:
7.1.6.1
a
Xxxx of Sale and Assignment with respect to the Assets;
7.1.6.2
a
Consent to the use of the name, "Winners Pot Poker";
7.1.6.3 such
other conveyances, instruments of title, trademark assignments, consents, and
other assignments and documents as may be, in the reasonable opinion of the
Buyer, necessary or proper to transfer to Buyer ownership of the Assets and
rights being acquired by Buyer hereunder;
7.1.6.4 resolutions
of the board of directors and shareholders of Seller authorizing the execution
and delivery of this Agreement and the performance by Seller of the obligations
hereunder; and
7.1.6.5 such
other documents, as may be reasonably requested by Buyer to effectuate the
transactions contemplated by this Agreement.
ARTICLE
VIII CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
Section
8.1 Conditions. The
obligations of Seller to consummate the Closing shall be subject to the
fulfillment, to their reasonable satisfaction, as of the Closing Date, of all
of
the following conditions precedent:
8.1.1 Representations
and Warranties. The
representations and warranties of the Buyer contained in this Agreement shall
be
true and correct on and as of the Closing Date with the same force and effect
as
though such representations and warranties had been made on and as of the
Closing Date.
8.1.2 Performance
by Buyer. Buyer
shall have performed and complied in all material respects with all agreements,
covenants, obligations and conditions required by this Agreement to be performed
or complied with by Buyer on or before the Closing.
8.1.3 Deliveries
to Seller. The
execution and delivery to the Seller by the Buyer of the following, all dated
as
of the Closing Date:
8.1.3.1 shares
of
the common stock in Buyer, a number equivalent to one share of the WPP Shares
for every two shares of the Select Video Shares, as set forth in Section
3.1;
8.1.3.2 resolutions
of the board of directors of Buyer duly authorizing the execution and delivery
of this Agreement and the performance by Buyer of its obligations hereunder;
and
8.1.3.3 such
other documents as may be reasonably requested by Seller to effectuate the
transactions contemplated by this Agreement.
ARTICLE
IX INDEMNIFICATION
Section
9.1 Survival
of Certain Provisions.
9.1.1
Survival of Representations and Warranties. All representations
and warranties contained herein or in the Schedules or ancillary documents
shall
not be deemed to be waived or otherwise affected by any prior knowledge of,
or
any investigation made by or on behalf of, any party hereto. Each
and
every such representation and warranty shall survive Closing.
9.1.2 Covenants
and Indemnification Provisions. Each
covenant provision and each indemnification provision contained herein shall
survive Closing and remain in full force and effect in accordance with its
terms.
Section
9.2 General
Indemnity.
9.2.1
Indemnification By Seller. Seller
shall indemnify and hold Buyer harmless from and against all losses, damages,
liabilities, claims, demands, judgments, settlements, costs and expenses of
any
nature whatsoever (including the costs, expenses and attorneys' and others
fees
in connection therewith) ("Losses") resulting from or due to, directly or
indirectly: (i) any inaccuracy or misrepresentation in, or breach of, any
representation or warranty of Seller; (ii) any breach or nonfulfillment of
any
covenant of Seller contained in this Agreement, the Schedules, the Exhibits
or
documents delivered hereunder; (iii) any and all Excluded Liabilities or
Employment Obligations; and (iv) the use, ownership or operation of the Assets
and the conduct of the Business prior to the Closing.
9.2.2 Indemnification
By Buyer. After
the
Closing Date, Buyer shall indemnify and hold Seller harmless from and against
any and all Losses resulting from or due to, directly or indirectly: (i) any
inaccuracy or misrepresentation in, or breach of, any representation or warranty
of Buyer; (ii) any breach or nonfulfillment of any covenant of Buyer contained
in this Agreement, the Schedules, the Exhibits or documents delivered hereunder;
(iii) any and all Assumed Liabilities; and (iv) except as otherwise provided
herein, the use, ownership or operation of the Assets and the conduct of the
Business after the Closing.
Section
9.3 Defense
of Third Party Claims.
9.3.1 Notice.
No
right
to indemnification shall be available to a party otherwise entitled to
indemnification (an "Indemnified Party") with respect to a claim from any person
not a party to this Agreement unless the Indemnified Party, promptly upon
becoming aware of facts giving rise to said claim, gives to the party or parties
obligated under Section 9.2
to
indemnify (the "Indemnitor") a written notice (a "Claim Notice") describing
in
reasonable detail the facts giving rise to the claim for indemnification and
enclosing a copy of any papers served,. The failure to notify the Indemnitor
under this Subsection 9.3.1 shall
not
relieve the Indemnitor of any liability that it may have to the Indemnified
Party under this Article IX unless such failure to notify results in the waiver
of any affirmative defenses to any third party claims, whereupon such liability
of the Indemnitor to the Indemnified Party under this Article IX shall be
reduced only to the extent the Indemnitor must pay any such third party claim
by
reason of the waiver of an affirmative defense.
9.3.2 Defense
of Claims. Upon
receipt by the Indemnitor of a Claim Notice, the Indemnitor may participate
in,
and at the request of the Indemnified Party shall assume, the administration
and
defense of the claim described therein. The
Indemnified Party shall have the right to approve the Indemnitor's selection
of
counsel with respect to any such claim, such approval not to be withheld
unreasonably. The fees and expenses of the Indemnitor's counsel as well as
the
fees and expenses of the Indemnified Party shall be borne by the
Indemnitor.
9.3.3
Settlement. Any
Indemnified Party shall give written notice to the Indemnitor of any proposed
settlement of any claim. The Indemnitor shall have the right, in its sole
discretion, to settle any claim for which indemnification has been sought.
Notwithstanding the foregoing, however, in the case where Buyer is the
Indemnified Party, Seller shall have no right to settle any such claim by
agreeing to, or committing to agree on behalf of the Indemnified Party, any
encumbrance, lien or pledge of the Assets or any restriction on the use of
the
Assets or operation of the Business. An Indemnified Party may refuse to accept
a
settlement proposed by the Indemnitor, but in such event (other than a proposed
settlement described in the foregoing sentence) the Indemnitor shall not be
obligated to pay more than the amount for which the Indemnitor was able to
settle the claim (and any other Losses associated with such settlement), and
the
Indemnified Party shall be responsible for all Losses greater than such amount.
Except following the refusal by an Indemnified Party to accept a settlement
proposed by the Indemnitor under the condition set forth in the preceding
sentence, no Indemnified Party may settle a claim for which indemnification
has
been sought hereunder.
9.3.4
Cooperation.
Any
Indemnified Party shall make available to any Indemnitor and its attorneys
and
accountants all books, records and documents relating to any claim hereunder.
The parties shall give each other reasonable assistance in the defense of any
claim brought by persons not party to this Agreement.
ARTICLE
X MISCELLANEOUS
Section
10.1 Definitions. The
following terms used in this Agreement have the meanings assigned to them
below:
10.1.1
"Lien" means any mortgage, pledge, assignment, encumbrance; claim, charge,
easement, transfer or other restriction, lien (statutory or otherwise) or
security interest of any kind or nature whatsoever.
10.1.2
"Person" means an individual, corporation, limited liability company,
partnership, joint venture, association, trust, governmental authority, or
any
other entity of whatever nature.
10.1.3
"Taxes" means all taxes, charges, fees, levies, or other assessments, including
income, gross receipts, excise, property, sales, transfer, license, payroll,
and
franchise taxes, any taxes required by law to be withheld, and any taxes payable
as a result of the consummation of the transactions contemplated by this
Agreement, and shall include any interest, penalties, or additions to tax
attributable to such assessments.
Section
10.2 Expenses. Except
as
otherwise provided in this Agreement, each of the respective parties to this
Agreement shall pay their own costs and expenses (including all legal,
accounting, broker, and finder fees) relating to the transactions contemplated
by this Agreement.
Section
10.3 Amendment. This
Agreement may not be amended or modified except by a writing duly executed
by
Seller and Buyer.
Section
10.4 Entire
Agreement. This
Agreement, the Schedules, and the Exhibits contain all of the terms, conditions
and representations and warranties agreed upon by the parties relating to the
subject matter of this Agreement and supersede all prior agreements,
negotiations, correspondence, undertakings and communications of the parties,
oral or written.
Section
10.5 Notices.
All
notices, requests, demands and other communications made in connection with
this
Agreement shall be in writing and shall be deemed to have been duly given on
the
date of delivery, if delivered by hand or by facsimile (with machine
confirmation) to the persons identified below, or three (3) business days after
mailing if mailed by certified or registered mail, postage prepaid, return
receipt requested, addressed as follows:
|
Buyer:
|
Seller:
|
|
WPP
Acquisition, Inc.
|
Select
Video, Inc.
|
|
000
Xxxx Xxxxxx Xxxx, Xxxxx 000
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0000
Xxxxxxxx Xxxxxx
|
|
Xxxxxxx,
Xxxxxxxxx 00000
|
Xxxxxxxx
Xxxx, Xxx Xxxxxx 00000
|
|
with
a copy to:
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with
a copy to:
|
|
XxXxxxx
Xxxx Xxxxxxxx Carnival
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Mairone,
Biel, Xxxxxxxx & Xxxxxxxx
|
|
Xxxxxxxx
& Xxxx, Chartered
|
0000
Xxxxxxxx Xxxxxx
|
|
000
Xxxxxxxx Xxxx, Xxxxx 0000
|
Xxxxxxxx
Xxxx, Xxx Xxxxxx 00000
|
|
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
|
|
Attn:
Xxxxxxx X. Xxxxxx
|
Attn:
Xxxxxx X. Xxxxxxxx
|
Such
addresses may be changed by means of a notice given in the manner provided
herein.
Section
10.6 Severability. If
any
term, provision, or covenant of this Agreement or the application thereof to
any
circumstance is held invalid or unenforceable, the remainder of this Agreement
shall not be affected and each term, provision, and covenant of this Agreement
shall be valid and enforceable to the fullest extent permitted by
law.
Section
10.7 Cumulative
Remedies. The
remedies herein are cumulative and not exclusive and shall not preclude
assertion by either party of any other rights or the seeking of any other
remedies against the other party.
Section
10.8 Waiver. Waiver
of
any term or condition of this Agreement by any party shall only be effective
if
in writing and shall not be construed as a waiver of any subsequent breach
or
failure of the same term or condition, or a waiver of any other term of this
Agreement.
Section
10.9 Binding
Effect; Assignment. No
party
to this Agreement may assign or delegate all or any portion of its rights,
obligations or liabilities under this Agreement without the prior written
consent of the other parties to this Agreement, which it may withhold in its
absolute discretion; provided however, that Buyer may assign any and all of
its
rights and obligations to one or more entities affiliated with Buyer, or in
connection with an arms-length sale to a third party of any of its rights to
the
Assets, without the prior written consent of Seller. Except as limited in the
preceding sentences, this Agreement shall be binding upon and inure to the
benefit of the parties and their respective heirs, personal representatives,
successors and assigns.
Section
10.10 No
Third Party Beneficiaries. Nothing
in this Agreement shall confer any rights upon any person or entity who is
not a
party to this Agreement.
Section
10.11 Governing
Law; Jurisdiction. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Minnesota. Any action brought relating to this Agreement, the Schedules
and/or the Exhibits may be brought in any county in which Buyer operates or
has
an office in the State of Minnesota.
Section
10.12 Construction. Exhibits
and Schedules referred to are incorporated into and made part of this Agreement.
This Agreement shall not be construed to have been drafted, authored, or written
by any specific party, or specifically to have been written by Buyer. In
interpreting any provision of this Agreement it shall be assumed that this
Agreement was co-drafted by the Parties.
Section
10.13 Attorney's Fees.
In the
event of any action arising out of this Agreement, the prevailing party shall
be
entitled to recover from the other party its costs, expenses and reasonable
attorney's fees incurred in connection with the dispute.
ACCORDINGLY,
this Agreement is effective as of the date and year first above
written.
| SELLER: Select Video, Inc. | BUYER: WPP Acquisition, Inc. |
|
By:
/s/ Xxxx
Xxxxxxx
|
By:
/s/ Xxxxxx X. Xxxxxx,
XX
|
|
Name:
Xxxx Xxxxxxx
|
Name:
Xxxxxx X. Xxxxxx, XX
|
|
Its:
President
|
Its:
Chief Financial Officer
|
