AGREEMENT
by and among
XXXXXXXXXXXXXXXXX.XXX, INC.
as the "Buyer",
NAPLES REALTY SERVICES, INC.
as "NRSI", and
NAPLES REALTY REFERRAL COMPANY
as "NRRC"
(both collectively the "Company")
Dated: May 2, 2000
AGREEMENT
This Agreement ("Agreement") dated as of May 2, 2000, is by and among
NAPLES REALTY SERVICES, INC., a Florida corporation ("NRSI"), NAPLES
REALTY REFERRAL COMPANY, a Florida corporation ("NRRC") (both
collectively the "Company"), and XXXXXXXXXXXXXXXXX.XXX, INC., a Florida
corporation (the "Buyer") each corporation acting pursuant to a
resolution of its board of directors adopted or to be adopted by a vote
of a majority of its directors pursuant to the authority given by and in
accordance with provisions of Florida Statutes.
RECITALS
A. Pursuant to the terms of this Agreement, the Buyer will be offering
to acquire from the shareholders of NRSI and NRRC (the "Shareholders")
all of their shares of stock in the Company.
B. The parties wish to provide for the terms and conditions upon which
Buyer will acquire NRSI and NRRC shares from the Shareholders
C. The Boards of Directors of Buyer and the Company have approved the
transfer of the Shareholders' shares to Buyer pursuant to the terms of
this Agreement.
D. The Buyer and the Company desire to make certain representations,
warranties, covenants, and agreements in connection with the transactions
contemplated by this Agreement.
AGREEMENT
In consideration of the mutual covenants and promises contained herein
and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
ACQUISITION OF STOCK
1.1 On the basis of the representations and warranties and subject to
the terms and conditions set forth in this Agreement, at the Closing, the
Company shall recommend to the Shareholders to transfer to Buyer, and
that Buyer shall acquire from Shareholders, all of the issued and
outstanding shares of stock of NRSI and NRRC (collectively the "shares of
the Company") subject to the terms and conditions set forth herein.
1. 2 Consideration. The consideration paid by Buyer for each of the 19
outstanding shares of the Company shall be (i) cash in the amount of
Eight Thousand and No/100 Dollars ($8,000); and (ii) 25,000 shares of
Buyer Stock (the "Consideration").
1.2.2 Stock Consideration. The Buyer shall deliver to each Shareholder
a share certificate representing 25,000 shares of common voting stock of
the Buyer. Each share certificate shall bear the following legends:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, THE FLORIDA SECURITIES AND
INVESTOR PROTECTION ACT OR ANY OTHER SIMILAR SECURITIES STATUTE. THIS
CERTIFICATE MAY ONLY BE TRANSFERRED UPON REGISTRATION OF THE SHARES OR IN
AN EXEMPT TRANSACTION UNDER THE FOREGOING STATUTES AND APPLICABLE
REGULATIONS ADOPTED THEREUNDER.THIS STOCK CERTIFICATE AND THE SHARES OF
STOCK REPRESENTED BY IT ARE SUBJECT TO CANCELLATION AND FORFEITURE AS SET
FORTH IN THAT CERTAIN AGREEMENT BY AND AMONG XXXXXXXXXXXXXXXXX.XXX, INC.
AS THE "BUYER", NAPLES REALTY SERVICES, INC. NAPLES REALTY REFERRAL
COMPANY AND THE SHAREHOLDERS OF EACH DATED AS OF MAY 2, 2000, A COPY OF
WHICH IS RECORDED IN THE MINUTE BOOK OF CORPORATION, PLACING RESTRICTIONS
ON THE ALIENATION OF SAID STOCK. A COPY OF THE AGREEMENT WILL BE
FURNISHED TO ANY SHAREHOLDER UPON REQUEST AND WITHOUT CHARGE.
ARTICLE 2
CLOSING
2.1 Closing. Upon the terms and subject to the conditions set forth
herein, the closing of the transactions contemplated herein (the
"Closing") shall be held at 10:00 o'clock A.M., Eastern time, at the
offices of Porter, Wright, Xxxxxx & Xxxxxx, Naples, Florida, on a date
which is mutually acceptable to the parties but not later than May 5,
2000 ("Closing Date"), unless the parties hereto otherwise agree.
2.2 Deliveries at Closing.
2.2.1 Consents. The Company shall deliver all third party consents
required for the acquisition of the Shares by Buyer. as contemplated by
this Agreement.
2.2.2 Other Closing Transactions. At the Closing, each of the parties
shall take such other actions required hereby to be performed by it prior
to or on the Closing Date, including, without limitation, satisfying the
conditions set forth in Articles 6 and 7.
2.3 Exchange of Certificates and Payment of Consideration.
2.3.1 Company Stock Certificates. Within seven (7) days after the
Closing Date, each Shareholder shall deliver to Xxxx Xxxxxxxxx, as escrow
agent, certificates evidencing their issued and outstanding shares of the
Company stock (the "Certificates"), duly endorsed in blank for transfer
or accompanied by stock powers duly executed in blank and a duly executed
Shareholder Tender Agreement in substantially the form set forth in
Schedule 2.3.1.
2.3.2 Consideration into Escrow. At Closing, the Buyer shall deliver
to Xxxx Xxxxxxxxx as Escrow Agent cashier's checks payable to each
Shareholder and stock certificates for Buyer Stock issued in the name of
each Shareholder. The Escrow shall be governed by those standard terms
and conditions governing real estate agreements in Xxxxxxx County.
2.3.3 Breaking of Escrow. Upon receipt of a majority or more of the
issued and outstanding shares of the Company and accompanying stock
powers and Shareholder Tender Agreements, the escrow agent is authorized
to break escrow and begin releasing the Consideration to the Shareholders
who have tendered their Shares and the Company Stock to the Buyer.
Should a majority of the issued and outstanding shares of the Company not
have been tendered within seven (7) days after the Closing Date, the
Escrow Agent shall return all Shares of the Company tendered to the
shareholder tendering those shares and shall return the Buyer Stock and
cash consideration to Buyer.
2.3.4 Lost, Stolen, or Destroyed Certificates. In the event any
Certificate shall have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming such Certificate to be
lost, stolen or destroyed and subject to such other conditions as the
Buyer may impose,
2.4 Opinion of Counsel. At Closing, the Company shall deliver or
cause to be delivered to Buyer an opinion (in form and content
satisfactory to Buyer), of Porter, Wright, Xxxxxx & Xxxxxx, LLP, counsel
for the Company, dated the Closing Date, to the following effect:
2.4.1 NRSI and NRRC are duly organized, validly existing and in good
standing under the laws of the State of Florida and have full corporate
power and authority to conduct business as it is presently being
conducted and to own and lease its properties and assets.
2.4.2 NRSI's authorized capital consists of 19 common shares of which
19 common shares are outstanding. NRRC's authorized capital consists of
19 common shares or which 19 common shares are outstanding. The shares
are fully paid and non-assessable.
2.4.3 To the best of its knowledge without independent investigation,
there are no agreements or other documents, except as identified,
pursuant to which the Company may be required to authorize or issue
additional securities.
2.4.4 To the best of its knowledge without independent investigation,
there are no preemptive rights outstanding as to either NRSI or NRRC.
2.4.5 The Company has the corporate power to conduct its business and
to execute and deliver the Agreement and to perform its obligations under
the Agreement and to the best of its knowledge without independent
investigation, the Company has taken all corporate action necessary to
execute and deliver this Agreement, to consummate the transactions
contemplated hereby and to perform its obligations hereunder, and no
other proceedings on the part of the Company are necessary to authorize
this Agreement and the transactions contemplated hereby. This Agreement
has been duly executed and delivered by the Company.
2.4.6 That the execution and delivery of the Agreement, performance
by the Company of its obligations thereunder and the exercise of The
Company of the rights created by the Loan Documents do not (a) violate
the Company's Articles of Incorporation or Bylaws; (b) to the best of its
knowledge without independent investigation, constitute a breach under an
agreement or instrument to which the Company is a party or by which it or
its assets are bound, or result in the creation of a mortgage, security
interest or other encumbrance upon the assets of the Company, except as
set forth in the Agreement; or (c) to the best of its knowledge without
independent investigation, violate a judgment, decree or order of any
court or administrative tribunal, which judgment, decree or order is
binding on the Company or its assets.
2.4.7 Except as specified, to the best of its knowledge without
independent investigation, no notice, report, filing or registration
with, or authorization, consent or approval of, or permit from, any
Federal, Florida or local governmental authority is required to be made
or obtained by the Company in connection with the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby.
2.4.8 Except as listed, to the best of its knowledge without
independent investigation, there is no writ, injunction, judgment or
decree outstanding or claim, suit, litigation, proceeding, labor dispute,
administrative action, arbitrable action or investigation pending or
threatened or anticipated against, relating to or affecting the Company
or the assets or the operation of the business of either the Company as
currently operated and as proposed to be operated; any employee plan or
any trust or other funding instrument, fiduciary or administrator thereof
or; the transactions contemplated by this Agreement, before or by any
federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, any of
which could reasonably be expected to result in the payment or a judgment
in excess of $10,000 or could reasonably be expected to have a material
adverse effect;
2.4.9 To the best of its knowledge, and without independent
investigation other than an interview of lawyers handling matters on
behalf of the Company, the Company and the conduct of the business of the
Company are in compliance with all applicable laws, regulations or
judgments, decisions or orders entered by any federal, state, local, or
foreign court relating to the assets or the Company.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
The Company and Xxxx Xxxxxxxxx, individually ("Xxxxxxxxx") hereby
represent and warrant to the Buyer that the following representations and
warranties are, as of the date hereof, and will be, as of the Closing
Date, true and correct:
3.1 Organization; Capitalization.
3.1.1 The Company is duly organized, validly existing and in good
standing under the laws of the State of Florida and have full corporate
power and authority to conduct business as it is presently being
conducted and to own and lease its properties and assets.
3.1.2 The capitalization of the Company as of the date hereof and as
of the Closing (including the identity of each Shareholder and the number
of shares held by each) is set forth in Schedule 3.1.2. All of the
Company's outstanding shares of capital stock are duly authorized,
validly issued, fully paid, non-assessable and free of preemptive rights.
Except as set forth in Schedule 3.1.2.1, there are no outstanding
subscriptions, calls, commitments, warrants or options for the purchase
of shares of any capital stock or other securities of the Company or any
securities convertible into or exchangeable for shares of capital stock
or other securities issued by the Company, or any other commitments of
any kind for the issuance of additional shares of capital stock or other
securities issued by the Company. At the time of delivery to the Buyer,
the capital stock of the Company will be free and clear of all
encumbrances and shall be duly authorized, validly issued, fully paid and
non-assessable.
3.1.3 The Company has had one subsidiary-One Source Real Estate
Services Center, Inc.-but such subsidiary is no longer in existence. The
Company neither owns nor holds the right to acquire (directly or
indirectly) shares of capital stock in any other corporation firm,
partnership, limited liability company, joint venture, trust, or other
entity. The Company however does own the Service Xxxx "One Source Real
Estate Services Center" in the State of Florida and has registered said
xxxx with the U.S. Patent Office and is currently awaiting the award of
such registration in the United States.
3.2 Authorization. To the best of Xxxxxxxxx'x knowledge, the Company
as all necessary corporate power and authority and has taken all
corporate action necessary to execute and deliver this Agreement, to
consummate the transactions contemplated hereby and to perform its
obligations hereunder, and no other proceedings on the part of the
Company are necessary to authorize this Agreement and the transactions
contemplated hereby. To the best of Xxxxxxxxx'x knowledge, this
Agreement has been duly executed and delivered by the Company and is a
legal, valid and binding obligation of the Company, enforceable against
it them in accordance with its terms, except as may be limited by (i)
bankruptcy, insolvency, moratorium, reorganization and other similar laws
affecting creditors' rights generally and (ii) the general principles of
equity, regardless of whether asserted in a proceeding in equity or at
law.
3.3 Consents and Approvals. To the best of Xxxxxxxxx'x knowledge,
other than as provided in Schedule 3.3, no notice to, declaration, filing
or registration with, or authorization, consent or approval of, or permit
from, any domestic or foreign governmental or regulatory body or
authority, or any other person or entity, is required to be made or
obtained by the Company in connection with the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby.
3.4 Facilities. Schedule 3.4 contains (i) a complete and accurate list
of all real property owned by the Company ("Owned Real Property") and
(ii) complete and accurate list of all facilities leased by the Company
(the "Facility Leases").
3.4.1 Owned Real Property. The Company has no Owned Real Property.
3.4.2 Leases or Other Agreements. Except for Facility Leases listed in
Schedule 3.4, there are no leases, subleases, licenses, occupancy
agreements, options, rights, concessions or other agreements or
arrangements, written or oral, granting to any person the right to
purchase, use or occupy any Facility, or any real property of the
Company. With respect to each Facility Lease, the Company has
unencumbered interests in the leasehold estate (other than subleases
described in Schedule 3.4) and, except as set forth in Schedule 3.4.1,
has in all material respects performed all the obligations required to be
performed by it through the date hereof with.
3.5 Contracts; No Defaults. To the best of Xxxxxxxxx'x knowledge,
Schedule 3.5 contains a true and complete schedule of all material
chattel mortgages, conditional sales agreements, promissory notes, loan
agreements, leases, guarantees, indemnity agreements, hold harmless
agreements, reimbursement agreements, collective bargaining agreements,
consulting agreements, patent license agreements, computer license
agreements, computer service agreements, pension or profit sharing plans,
retirement or bonus plans, group insurance plans, employee benefit plans,
agreements with banks or other financial institutions, compensating
balance agreements with banks or other financial institutions (whether
written or not), purchase and sale commitments, non-compete agreements,
supply contracts and contracts with suppliers, or any other material
contract to which the Company is a party. For the purpose of this
Section, a material contract is defined to be any contract of a kind
specifically enumerated in the preceding sentence and any contract,
whether in writing or oral, except contracts involving commitments of
less than Five Thousand Dollars ($5,000). True and complete copies of all
material contracts, together with all amendments and supplements thereto,
will be made available to Buyer, its attorneys and agents in the offices
of the Company prior to the Closing Date.
To the best of the Xxxxxxxxx'x knowledge and except as listed in Schedule
3.5, the Company is not a party to, or bound by, any Contract of any kind
to be performed after the Closing Date (i) pursuant to which it is
obligated to expend more than $5,000 in any twelve-month period and that
is not subject to cancellation on not more than 30 days' notice by the
Company without penalty or increased cost or (ii) with any personnel or
affiliates of the Company. There is no default by any party to any such
Contract, which default could have a material adverse effect on the
Company or its operations.
3.6 No Conflict or Violation. To the best of the Xxxxxxxxx'x knowledge
and except as set forth in Schedule 3.6, neither the execution, delivery
and performance of this Agreement nor the consummation of the
transactions contemplated hereby will result in
(a) a violation of or a conflict with any provision of the
Organizational Documents of the Company,
(b)a breach of, or a default under, or the creation of any right of
any party to accelerate, terminate or cancel, any note, obligation, loan
agreement, security agreement, lease, contract, permit, license,
authorization or concession to which the Company is a party or by which
any of the assets are bound,
(c) a violation by the Company of any law, statute, rule, regulation,
ordinance, code, order, judgment, writ, injunction, decree or award
applicable to the Company, or
(d) an imposition of any material lien, encumbrance, restriction or
charge on the Company or any of the assets.
To the best of Xxxxxxxxx'x knowledge, except as set forth in Schedule
3.6, no consent, approval or authorization of, or declaration, filing or
registration with, any governmental or regulatory authority, or any other
person or entity, is required to be made or obtained by the Company in
connection with the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby.
3.7 Financial Statements. To the best of Xxxxxxxxx'x knowledge, the
financial statements are in conformity with the books and records of the
Company and fairly and accurately present, in all material respects, in
accordance with generally accepted accounting principles applied on a
consistent basis, the assets, liabilities (including all reserves) and
financial position of the Company as of the respective dates thereof and
the results of operations and changes in cash flows for the periods then
ended. The financial statements of the Company have been examined by the
auditor of the Company whose unqualified report thereon is included with
such financial statements.
3.8 No Undisclosed Liabilities. To the best of their knowledge and except
as set forth in Schedule 3.8, the Company has no liabilities or
obligations (absolute, accrued, contingent or otherwise) except (i)
liabilities that are reflected and reserved against on the balance sheet
that have not been paid or discharged since the date thereof and (ii)
liabilities incurred by the Company since the balance sheet date in the
ordinary course of business consistent with past practice and in
accordance with this Agreement (none of which relates to any breach of
contract, breach of warranty, tort, infringement or violation of law or
arose out of any complaint, action, suit or proceeding except those which
individually or in the aggregate could not have a material adverse
effect).
3.9 Accounts Receivable. To the best of the Xxxxxxxxx'x knowledge, the
accounts receivable of the Company reflected on the balance sheets, and
all accounts receivable of the Company arising since the balance sheets
date, represent bona fide claims against debtors for sales made, services
performed or other charges arising on or before the date hereof, and all
the goods delivered and services performed that gave rise to said
accounts were delivered or performed in accordance with the applicable
orders, contracts or customer requirements. The Company is not aware of
any material uncollectible accounts receivable reflected on the balance
sheet. Schedule 3.9 contains a true and correct listing of all aged
accounts receivable.
3.10 Litigation. To the best of Xxxxxxxxx'x knowledge and except as set
forth in Schedule 3.10:
(a) there is no charge, complaint, action, order, writ, injunction,
judgment or decree outstanding or claim, suit, litigation, proceeding,
labor dispute, administrative action, arbitrable action or investigation
(collectively, "Actions") pending or, to the knowledge of the Company,
threatened or anticipated against, relating to or affecting
(i) the Company or the assets or the operation of the business of
either the Company as currently operated and as proposed to be operated,
(ii) any employee plan or any trust or other funding instrument,
fiduciary or administrator thereof or
(iii) the transactions contemplated by this Agreement; or
(iv) any employee or agent of the Company for matters relating to
the conduct of the Company's business and affairs or any matters claimed
to have been within the agent or employee's scope of employment or duty
for which the Company might be held responsible.
(v) before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, any of which could reasonably be expected to result
in the payment or a judgment in excess of $10,000 or could reasonably be
expected to have a material adverse effect on the Company;
(b) the Company is not in default with respect to any judgment,
order, writ, injunction or decree of any court or governmental agency,
and there are no unsatisfied judgments against the Company or the
business of the Company;
(c) there is not a reasonable likelihood of an adverse determination
of any pending actions that could, individually or in the aggregate,
reasonably be expected to result in the payment of a judgment in excess
of $10,000 or have a material adverse effect; and
(d) except as set forth in Schedule 3.10, each action pending or, to
the knowledge of the Company, threatened or that the Company has a
reasonable basis to expect or anticipate (whether or not disclosed in
Schedule 3.10), is covered by insurance of reputable and solvent
insurance companies and is in full force and effect, and, except as set
forth in Schedule 3.10, the Company has not received any notice or, to
the knowledge of the Company or any Shareholder, threat of cancellation,
limitation or noncoverage.
(e) Schedule 3.10 contains a complete list of all judgments, orders,
writs, injunctions and/or decrees affecting or binding upon the Company
and of each and every pending or threatened or anticipated complaint,
action, suit, litigation, proceeding, labor dispute, administrative
action, arbitrable action or investigation against the Company or its
assets.
3.11 Taxes. The Company has or will have filed all federal, state, and
local tax returns (including without limitation all income, corporation,
franchise, sales, use, occupation, property, excise, ad valorem,
employment, and other taxes) that are required to be filed by it on or
prior to the Closing Date (taking into account applicable extensions),
all taxes shown as owing by the Company on all such tax returns have been
fully paid or properly accrued on the Company's financial statements
other than such taxes as are being contested in good faith, and to the
best of Xxxxxxxxx'x knowledge, all such tax returns are true and correct
in all material respects and accurately reflect all liability for taxes
of the Company for the periods covered thereby. There has been no
termination of the Company's status as an S-Corporation under applicable
IRS rules, nor the occurrence of any event or action which would have
caused the Company to cease to be an S-Corporation or to have its status
as such terminated.
3.12 Employee Benefit Plans. The Company has no employee welfare plan,
pension plan and multi-employer plan (nor any related trust agreements)
3.13 No Brokers. The Company does not and will not have any obligation
to pay any finder's fee, brokerage commission or similar payment in
connection with the transactions contemplated hereby.
3.14 No Other agreements to Sell the Assets or Capital Stock of the
Company. The Company does not have any legal obligation, absolute or
contingent, to any other person to sell or effect a sale of the capital
stock of the Company (except as set forth in Schedule 3.1) or to effect
any merger, consolidation or the reorganization of the Company or to
enter into any agreement or cause the entering into of an agreement with
respect thereto, other than as set forth herein.
3.15 Books and Records. The Company has made and kept (and given the
Buyer access to) books and records and accounts, which, in reasonable
detail, accurately and fairly reflect the activities of the Company.
3.16 Leased Equipment and Assets. To the best of Xxxxxxxxx'x knowledge,
there are no assets used in the business of the Company which are leased
from or owned by any other person or entity, except as set forth in
Schedule 3.17 and except as set forth on Schedule 3.17, the Company has
in all material respects performed all of the obligations required to be
performed by it through the date hereof.
3.17 Absence of Certain Changes. To the best of Xxxxxxxxx'x knowledge,
except as set forth on Schedule 3.18, from the date of the last financial
statement delivered to Buyer, through the Closing Date, there will not
have been: (i) any uninsured loss by reason of fire, flood, accident or
other calamity; (ii) any redemption, purchase or other acquisition by the
Company of any of its shares; (iii) any sale or issuance of any
debentures, stocks, bonds, or other securities of the Company, or rights
therein, or rights to acquire any of the same; (iv) any increase in the
rate of compensation payable or to become payable to any of the Company's
employees; (v) any materially adverse change in the financial condition,
assets, liabilities or business of the Company taken as a whole; (vi) any
dividends paid with respect to the Company's shares; (vii) any
distribution of cash or assets, or sale of any assets, directly or
indirectly to or for the benefit of the Shareholders or any officer or
employee; (vii) any sale or transfer of the Company's assets except as
authorized herein or in the ordinary course of business; (ix) any
transfer of any asset, other than in the ordinary course of business, to
any affiliate corporation, partnership, joint venture or other business
entities related to or affiliated with the Company or any Shareholder;
(ix) any contract, acquisition, purchase or sale, other than a contract
in the ordinary course of business; (xii) any newly incurred debt,
absolute or contingent, except for liabilities incurred in the ordinary
course of business. For purposes of this Agreement, a material adverse
change shall include, but not be limited to, cancellation (or notice or
attempt to cancel) by a supplier or customer, or modification thereof, of
any material business relationship with the Company, or cancellation or
termination (including notice of termination) of more than five agent
agreements.
3.18 Compensation Contracts, Indebtedness to Certain Affiliates. To the
best of Xxxxxxxxx'x knowledge, except as described in Schedule 3.19, the
Company is not a party to or in any manner obligated upon any written or
oral management, employment or other contract or contracts providing for
the employment or retention of executive, managerial, supervisory or
other services or which provide for any special bonus or profit sharing
arrangements or incentive payments for administrative or supervisory
directors, officers or employees.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to the Company as follows:
4.1 organization of Buyer. The Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the state of
Florida.
4.2 Authorization. The Buyer has all necessary corporate power and
authority and has taken all corporate action necessary to execute and
deliver this Agreement, to consummate the transactions contemplated
hereby and to perform its obligations hereunder, and no other proceedings
on the part of the Buyer are necessary to authorize this Agreement and
the transactions contemplated hereby other than approval of this
Agreement by Buyer's board of directors. This Agreement has been duly
executed and delivered by the Buyer and is a legal, valid and binding
obligation of the Buyer enforceable against it in accordance with its
terms, except as may be limited by (i) bankruptcy, insolvency,
moratorium, reorganization and other similar laws affecting creditors'
rights generally and (ii) the general principles of equity, regardless of
whether asserted in a proceeding in equity or at law.
4.3 No Conflict or Violation. To the best of Buyer's knowledge, neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will result in (a) a violation of or a
conflict with any provision of the Certificate or Articles of
Incorporation or bylaws of the Buyer,(b) a breach of, or a default under,
any term or provision of any contract, agreement, indebtedness, lease,
commitment, license, franchise, permit, authorization or concession to
which the Buyer is a party, which breach or default could reasonably be
expected to have a material adverse effect on the business or financial
condition of the Buyer or its ability to consummate the transactions
contemplated hereby or (c) a violation by the Buyer of any statute, rule,
regulation, ordinance, code, order, judgment, writ, injunction, decree or
award, which violation could reasonably be expected to have a material
adverse effect on the business or financial condition of the Buyer, or
its ability to consummate the transactions contemplated hereby.
4.4 Consents and Approvals. Except as set forth on Schedule 4.4, no
notice to, declaration, filing or registration with, or authorization,
consent or approval of, or permit from, any domestic or foreign
governmental or regulatory body or authority, or any other person or
entity, is required to be made or obtained by the Buyer. in connection
with the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
4.5 No Brokers. The Buyer does not and will not have any obligation to
pay any finder's fee, brokerage commission or similar payment in
connection with the transactions contemplated hereby.
ARTICLE 5
COVENANTS OF THE COMPANY AND THE BUYER
The Company and the Buyer covenant and agree with each other as follows:
5.1 Further Assurances. Upon the terms and subject to the conditions
contained herein, the parties agree, both before and after the Closing,
(i) to use all reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective the transactions contemplated
by this Agreement, including, without limitation, all actions necessary
to satisfy the conditions to Closing set forth in Articles 6 and 7
hereof, (ii) to execute any documents, instruments or conveyances of any
kind which may be reasonably necessary or advisable to carry out any of
the transactions contemplated hereunder, and (iii) to cooperate with each
other in connection with the foregoing.
5.2 Conduct of Business. From the date hereof through the Closing,
except as contemplated by this Agreement, or as consented to by the Buyer
in writing, (1) the Company shall be operated in the ordinary course and
in accordance with past practice and will not take any action
inconsistent with this Agreement or with the consummation of the Closing
and (2) the Company shall not purchase or sell any of its stock.
5.3 Records. The Company shall have prepared and made available (or, in
the case of a portion of a period ending on the Closing Date, will
prepare and make available before the Closing) to the Buyer all of the
Company's books and working papers that clearly demonstrate the income
and activities of the Company for any period or any portion of a period
ending on or prior to the Closing Date.
5.4 Access of the Buyer. The Company shall allow the Buyer, its counsel,
accountants, and other representatives, during regular business hours to
make such inspection of the assets and to inspect and make copies of
contracts, books and records or other information requested by the Buyer
and related to the operation of the business of the Company, including
historical financial information concerning the business of the Company.
The Company shall furnish to the Buyer promptly upon request (i) all such
additional documents and information with respect to the affairs of the
Company relating to its business or (ii) access to personnel and to the
Company's accountants and counsel as the Buyer or its counsel or
accountants may from time to time reasonably request and shall instruct
such personnel, accountants and counsel to cooperate with the Buyer, and
to provide such information as the Buyer and such representatives may
request, in all cases only to the extent the foregoing relate to the
subject matter of this Agreement.
5.5 Financial Statements. The Company shall provide the Buyer with an
unaudited balance sheet and the related statements of income,
stockholders' equity and cash flows for each calendar month between the
date of this Agreement and the Closing Date within 30 days after the end
of each month. Such financial statements shall (i) be in accordance with
the books and records of the Company and (ii) present fairly, as of the
respective dates thereof or the periods covered thereby, as applicable,
the financial position, stockholders' equity, cash flows and results of
operations of the Company.
5.6 Notification of Certain Matters. Between the date of this Agreement
and the Closing, the Company, as applicable, shall give prompt notice to
the Buyer of (i) the occurrence, or failure to occur, of any event which
occurrence or failure would be likely to cause any representation or
warranty contained in this Agreement to be untrue or inaccurate in any
material respect any time from the date hereof to the Closing Date and
(ii) any material failure of the Company or any affiliate, officer,
director, employee, or agent of the Company to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder. Such disclosure shall be deemed to cure any breach of a
representation, warranty, covenant or agreement or to satisfy any
condition. During the same period, the Company shall promptly notify the
Buyer of the occurrence of any breach of the Company of any covenant in
this Article 5 or of the occurrence of any event that may make the
satisfaction of the conditions in Article 7 impossible or unlikely, and
Buyer shall promptly notify the Company of the occurrence of any such
breach or event that comes to their attention. Should any such fact or
condition require any change in any disclosure schedule if the disclosure
schedule were dated the date of the occurrence or discovery of any such
fact or condition, the Company will promptly deliver to the Buyer a
supplement to the disclosure schedule specifying such change. Such
delivery shall be deemed to cure any breach of a representation,
warranty, covenant or agreement or to satisfy any condition.
5.7 Landlord Consents. If required by a lease, the Company shall obtain
a consent for each such lease prior to the Closing Date. The Company
shall send requests for the consents in such manner as required by each
lease and shall promptly thereafter provide the Buyer with copies of such
requests along with proof of mailing. The Buyer shall permit the Company
to provide any landlord, at such landlord's written request, with the
Buyer's financial statements, provided the landlord covenants in writing
to keep the information in such financial statements confidential.
5.8 Estimated Closing Balance Sheet. At least five days prior to the
Closing Date, the Company shall prepare the estimated closing balance
sheet and shall deliver it to the Buyer. The estimated closing balance
sheet shall be prepared in conformity with the books and records and
shall fairly and accurately present, in all material respects, estimates
of the assets, liabilities and stockholders' equity of the Company as of
the Closing Date.
ARTICLE 6
CONDITIONS PRECEDENT TO THE COMPANY'S OBLIGATIONS
The obligations of the Company to consummate the transactions provided
for hereby are subject to the satisfaction, on or prior to the Closing
Date, of each of the following conditions, any of which may be waived by
the Company:
6.1 Representations, Warranties and Covenants. All representations and
warranties of the Buyer contained in this Agreement shall be true and
correct in all material respects (except with respect to representations
and warranties which are qualified as to materiality or material adverse
effect, which representations and warranties shall be true and correct)
as of the date of this Agreement and as of the Closing Date as though
made on the Closing Date, and the Buyer shall have performed all
agreements and covenants required hereby to be performed by it prior to
or at the Closing Date.
6.2 No Injunction. No injunction or restraining order shall be in effect
prohibiting the transactions contemplated hereby.
6.3 Corporate Documents. The Company shall have received from the Buyer
resolutions adopted by the Board of Directors of the Buyer approving this
Agreement and the transactions contemplated hereby, certified by the
Buyer's corporate secretary.
6.4 Employment Agreements. At the Closing, the Buyer shall have entered
into Employment Agreements with Xxxx Xxxxxxxxx, Xxx Xxxxx, and Xxxx X.
Xxxx, on terms acceptable to Buyer and the respective employee.
ARTICLE 7
CONDITIONS PRECEDENTS TO THE BUYER'S OBLIGATION
The obligations of the Buyer to consummate any of the transactions
provided for hereby are subject to the satisfaction, on or prior to the
Closing Date, of each of the following conditions, each of which may be
waived by the Buyer:
7.1 Representations, Warranties and Covenants. All representations and
warranties of each of the Company or Xxxxxxxxx contained in this
Agreement shall be true and correct in all material respects (except with
respect to representations and warranties which are qualified as to
materiality or material adverse effect, which representations and
warranties shall be true and correct) as of the date of this Agreement
and as of the Closing Date as though made on the Closing Date, and the
Company shall have performed all agreements and covenants required hereby
to be performed by any of them prior to or at the Closing Date.
7.2 Consents; Regulatory Compliance and Approval. All permits, consents,
approvals and waivers from governmental authorities and other parties
necessary to the consummation of the transactions contemplated hereby and
for the operation of the Company by the Buyer (including, without
limitation, all required third party consents) shall have been obtained.
The Buyer shall be reasonably satisfied that all approvals required under
any Regulations to carry out the transactions contemplated by this
Agreement shall have been obtained and that the parties shall have
complied with all Regulations applicable to the acquisition contemplated
hereby.
7.3 No Injunction. No Injunction or restraining order shall be in effect
prohibiting the transactions contemplated hereby.
7.4 Financial statements. The Company's unaudited financial statements
are not materially different than the certified audit of Xxxxx Xxxxxxxx
LLP.
7.5 Employment Agreements. At the Closing, the Buyer shall have entered
into Employment Agreements with Xxxx Xxxxxxxxx, Xxx Xxxxx, and Xxxx X.
Xxxx, on terms acceptable to Buyer and the respective employee.
7.6 Due Diligence. Buyer shall have completed its due diligence review
of the Company's business affairs, financial affairs, contracts,
liabilities, obligations, regulatory matters and other matters usually
considered in the acquisition of a company of this type and found them
acceptable to Buyer in its sole and absolute discretion. All such due
diligence review shall have been completed on or before May 2, 2000.
Should the due diligence reviews not have been completed by the targeted
Closing Date, the transactions may be closed in escrow pending completion
of the due diligence reviews.
7.7 Tender of a Majority of Shares. The Shareholders shall have within
the time frames set forth in Article 2, tendered no less than a majority
of the issued and outstanding shares of the Company.
ARTICLE 8
CONDITIONS SUBSEQUENT TO THE COMPANY'S OBLIGATIONS
8.1 Condition Subsequent. On or before April 28, 2001, Buyer shall have
raised the sum of $2 million, whether through a private placement or
initial public offering, and caused at least $1 million of these moneys
to be contributed to the capital of the Company. (the "Condition
Subsequent") Any advances made by the Buyer to the Company prior to April
28, 2001 shall be treated as loans bearing interest at the rate of 9% per
annum until converted to capital of the Company in order to satisfy the
Condition Subsequent.
8.2 Adjustment For Stock Price. Should the Condition Subsequent be met
through the sale of shares of Buyer's voting common stock of the same
class held by the Shareholders at an effective price of less than $3.00
per share, each Shareholders shall be issued additional shares as of
April 28, 2001, as may be necessary to cause the total value of the Buyer
stock held by each Shareholder as a result of this transaction to be
$75,000.00. For example, if the Condition Subsequent is met by selling
shares at $1.00 per share, then each Shareholder would be entitled to an
additional 50,000 shares of Buyer Stock; if at $2.00 per share, then each
Shareholder would be entitled to an additional 25,000 shares.
8.3 Failure of Conditions Subsequent. Should the Buyer be unsuccessful in
meeting the Condition Subsequent, then and in such event, the Company
shall provide written notice of that failure to all tendering
Shareholders. The majority of the tendering Shareholders may, within 35
days of the mailing of the Company's notice, notify the Company in
writing of their intention to reverse this transaction:
(a) Within 30 days of receipt of the Shareholders' notification:
(i) Buyer shall deposit all of the issued and outstanding shares of
the Company with Xxxxxx right Xxxxxx & Xxxxxx, LLP as Escrow Agent,
accompanied by duly executed stock powers endorsed in blank.
(ii) The Shareholders collectively shall deliver to Escrow Agent the
sum of One Hundred Fifty Two Thousand and 00/100 Dollars ($152,000.00)
plus interest from the Closing Date to the date 30 days after
notification at the rate of nine percent (9%) per annum. All cash
amounts received by Escrow Agent shall be held in an interest bearing
account for the benefit of the party ultimately receiving such funds
until distribution. In the event that any individual Shareholder of the
Company does not tender his or her pro-rata share to Escrow Agent as
contemplated in Section 8.3(a)(ii) above, within 15 days of written
notification by the President of the Company given by certified mail
return receipt requested, then the President. shall have the right to
substitute any other person (including the Company) in the place and
stead of such Shareholder so long as such substitute shall deliver the
appropriate amount to the Escrow Agent. Neither Buyer, the Company nor
their respective officers, directors or Shareholders shall have any
liability to any Shareholder as a result of substituting another person
in their place it being the intent of the parties hereto that neither the
Company nor the tendering Shareholders shall have any claim against the
Company, the Buyer, or their respective officers or directors for causing
such substitution. The Shareholders collectively shall have delivered to
Escrow Agent all of the shares of Buyer Stock issued to them pursuant to
this Agreement, each accompanied by a duly executed stock power endorsed
in blank. Should any Shareholder fail to deliver his Shares of Buyer
prior to the breaking of Escrow hereunder, the shares issued to that
Shareholder shall upon breaking of the Escrow herein, be cancelled on the
books of the Buyer and all rights thereunder forfeited and shall
constitute treasury shares of the Buyer, without further action by any
person. Neither Buyer, the Company nor their respective officers,
directors or Shareholders have any liability to any Shareholder as a
result of the cancellation of shares pursuant to this Section and the
Company and other Shareholders shall indemnify and hold Buyer harmless
from and against any claims by the other Shareholders as a result of
actions taken under this section, including reasonable attorneys fees and
fees on appeal. Upon breaking of escrow, the President of the Company
shall deliver to Buyer an affidavit, in form reasonably acceptable to
Buyer, attesting to the notification given to the Shareholder, any
follow-up contacts with that Shareholder and the Shareholder's failure to
have contributed his pro-rata share or delivered his stock as the case
may be.(b) Within 30 days following completion of deposits into the
escrow, the Escrow Agent shall distribute those items as follows:
(i) The cash, and any accrued interest thereon, shall be delivered to
Buyer.
(ii) The stock in Buyer and the duly executed assignments for such
stock shall be turned over to Buyer.
(iii) The Stock in the Company shall be issued pro-rata to each of
the tendering Shareholders or their substitute(s) pursuant to subsection
8.3(a)(ii) as the case may be.
(c) If within 30 days of the notification, the Shareholders have not
delivered to the Escrow Agent the full amount required under Section
8.3(a)(ii) and at least a majority of the shares of stock in Buyer under
Section 8.3(a)(iii), then, and in such event, the notification shall be
deemed withdrawn and the Condition Subsequent deemed satisfied.
8.4 Puts of Shareholders. In the event that Buyer satisfies the
Condition Subsequent, then for a period of 30 days after the Company has
notified the Shareholder that the Condition Subsequent has been
satisfied, a Shareholder shall have the right, (but not the obligation)
to sell to Buyer, and Buyer must purchase if such right is exercised, no
more than 10,000 shares of Buyer's Stock issued to the Shareholder of the
Company as a result of the Agreement set forth herein. Such right to
purchase shall be at the fixed price of $1.00 per share.
ARTICLE 9
FURTHER COVENANTS OF BUYER
9.1 Board of Directors of The Company. Between the Closing Date and April
28, 2001, the Board of Directors of the Company shall consist of Xxxx
Xxxxxxxxx, two persons appointed by Buyer, and two persons designated by
Xxxx Xxxxxxxxx. During such period, no board member shall be removed
unless for cause which shall include only misfeasance or malfeasance in
office. Until one year after the Condition Subsequent has been satisfied
and a board selected by Buyer has been appointed, it shall take a 4/5
vote of the Board of Directors to take or approve any of the following
actions and no officer shall have authority to undertake any such actions
without Board approval.
(a) Granting any options or sale of any stock.
(b) Capital calls.
(c) Sale of substantial assets
(d) Declaration of any dividends other than those set forth in Section
9.3
(e) Employment of any officer or employee or consultant or service
provider for amounts in excess of $5,000 in any one year. The foregoing
shall not apply to the employment of any real estate agents under the
Company's normal plans and the payment of their sales commissions nor to
any of the Employment Agreements approved by Buyer as part of this
transaction. The Employment Agreement between Xxxx Xxxxxxxxx and the
Company is attached hereto as Exhibit 9.2
(f) Making of any loans
(g) Borrowing any moneys or the pledging of any assets of the Company
(h) Acquiring any assets other than in the ordinary course of business
with a cost in excess of $5,000.
(i) Setting salaries, bonuses, raises or modifying or adding any benefits
or perquisites of employment or service on the Board of Directors.
(j) Employment of any officer, agent, consultant or service provider, who
has a pre-existing familial or other relationship with any member of the
Board of Directors.
(k) Adopting or modifying the Articles of Incorporation or Bylaws other
than those modifications and amendments to the bylaws adopted
contemporaneously with the execution of this Agreement..
(l) Entering into any contract calling for payments or an obligation of
over $10,000 per year.
(m) Any material change in the ordinary course of business, business
plan, direction or manner of doing business of the Company all other
matters shall require approval only by a majority of the directors,
unless otherwise required by Florida law. During such period, the bylaws
shall be modified to include these prohibitions.
9.2 Limitation on Dividends of the Company. Between the Closing Date and
one year after the Condition Subsequent has been satisfied, the Board of
Directors of the Company. shall cause it to pay dividends to Buyer in an
amount equal to nine percent (9%) per annum of any amount of cash
contributed to the capital of the Company. by Buyer between the Closing
Date and one year after the Condition Subsequent has been satisfied.
ARTICLE 10
ACTIONS BY THE COMPANY AND THE BUYER
AFTER THE CLOSING
10.1 Books and Records. The Company and the Buyer agree that each will
cooperate with and make available to the other party, during normal
business hours, all books and records, information and personnel (without
substantial disruption of employment) retained and remaining in existence
after the Closing Date that are related to the business of the Company
and that are necessary or useful in connection with any tax inquiry,
audit, investigation or dispute, any litigation or investigation or any
other matter requiring any such books and records, information or
personnel for any reasonable business purpose. The party requesting any
such books and records, information or personnel shall bear all of the
out-of-pocket costs and expenses (including, without limitation,
attorneys' fees, but excluding reimbursement for salaries and employee
benefits) reasonably incurred in connection with providing such books and
records, information or personnel.
10.2 Survival of Representations, Etc. All of the representations and
warranties made by each party in this Agreement or in any attachment,
exhibit, disclosure schedule, certificate, document or list attached to
this Agreement shall survive the Closing. Each party hereto shall be
entitled to rely upon the representations and warranties of the other
party set forth in this Agreement. The termination of the
representations and warranties provided herein shall not affect the
rights of a party in respect of any claim made by such party in a writing
received by the other party prior to the expiration of the applicable
survival period provided herein.
10.3 Arbitration. It is understood and greed among the parties hereto
that any and all claims for breach of warranties, representations and
covenants or any other claims arising out of this Agreement shall be
resolved by arbitration in accordance with Chapter 682, Florida Statutes
(1999), The Florida Arbitration Code. The parties shall jointly appoint a
single arbitrator. In the event they fail to do so, the arbitrator shall
be appointed by the Circuit Court. No party nor the arbitrator shall
disclose the existence, content, or results of any arbitration hereunder
without the prior written consent of all parties; provided, however, that
such prior written consent shall not be required when an obligation to
disclose arises under applicable laws or governmental regulations or
pursuant to a subpoena or other legal process. Except as provided
herein, the Florida Arbitration Act shall govern the interpretation,
enforcement and all proceedings pursuant to this Section. The arbitrator
shall apply the substantive law (and the law of remedies, if applicable)
of the state of Florida, or federal law, or both, as applicable. The
arbitrators are without jurisdiction to apply any different substantive
law. The arbitrator shall have the authority to entertain a motion to
dismiss and/or a motion for summary judgment by any party and shall apply
the standards governing such motions under the Florida Rules of Civil
Procedure. The arbitrator shall render an award and a written, reasoned
opinion in support thereof. Such award may include reasonable attorneys'
fees to the prevailing party. Judgment upon the award may be entered in
any court having jurisdiction thereof. Any proceedings held by the
arbitrator shall be held within the city of Naples, Florida, or at such
other location mutually acceptable to the parties hereto.
10.3.1 Additional Remedies. Adherence to this dispute resolution
process shall not limit the parties' right to obtain any provisional
remedy, including, without limitation, injunctive or similar relief, from
any court of competent jurisdiction as may be necessary to protect their
rights and interests. Notwithstanding the foregoing sentence, this
dispute resolution procedure is intended to be the exclusive method of
resolving any claims arising out of or relating to this Agreement.
10.3.2 Continuation of Performance. Unless otherwise agreed in
writing, the Buyer and the Company shall continue to perform their
respective obligations under this Agreement during any arbitration or
court proceeding.
10.4 Defense of Claims. If a claim for Damages (a "Claim") is to be made
by a party entitled to recovery against the breaching party, the party
making such claim shall give written notice (a "Claim Notice") to the
breaching party as soon as practicable after the party entitled to a
claim becomes aware of any fact, condition or event which may give rise
to Damages. If any lawsuit or enforcement action is filed against any
party entitled to the benefit of a claim, written notice thereof shall be
given to the breaching party as promptly as practicable (and in any event
within 15 calendar days after the service of the citation or summons).
The failure of any party to give timely notice hereunder shall not affect
rights to a Claim hereunder, except to the extent that the breaching
party demonstrates actual prejudice caused by such failure. After such
notice, the party against which such Claim has been asserted will (upon
delivering notice to such effect to the breaching party) have the right
to undertake, at the breaching party's cost and expense, the defense,
compromise or settlement of such Claim on behalf of and for the account
and risk of the breaching party, provided that the breaching party shall
have the opportunity to advise and comment on the Claim. The party
making the Claim will keep the breaching party reasonably informed of the
progress of any such defense, compromise or settlement. The breaching
party shall be liable for any settlement of any action effected pursuant
to and in accordance with this Section 10.4 and for any final judgment
(subject to any right of appeal), and the breaching party agrees to
indemnify and hold harmless a claiming party from and against any Damages
by reason of such settlement or judgment. "Damages" shall mean any and
all actual and demonstrative losses for monies paid and shall not include
lost profits and other losses resulting from any shutdown or curtailment
of operations of the Company. "Damages" shall also include reasonable
attorneys' fees incurred by the claimant in connection with such breach
including pre-litigation and litigation and appellate attorneys' fees.
10.5 Brokers and Finders. Each of the Buyer and the Shareholders shall
indemnify, hold harmless and defend the other party from the payment of
any and all broker's and finder's expenses, commissions, fees or other
forms of compensation which may be due or payable from or by the
breaching party (and in the case of the Shareholders, if due or payable
from or by the Company), or may have been earned by any third party
acting on behalf of the breaching party in connection with the
negotiation and execution hereof and the consummation of the transactions
contemplated hereby.
ARTICLE 11
MISCELLANEOUS
11.1 Termination.
11.1.1 Termination. This Agreement may be terminated at any time
prior to Closing:
(i) By mutual written consent of the Buyer and the Company;
(ii) By the Buyer or the Company if the Closing shall not have
occurred on or before May 30, 2000 or if its due diligence examination is
not satisfactory in its sole and absolute discretion;
(iii) By the Buyer if there is a material breach of any
representation or warranty set forth in Article 3 hereof or any material
covenant or agreement to be complied with or performed by the Company
pursuant to the terms of this Agreement or the failure of a condition set
forth in Article 7 to be satisfied (and such condition is not waived in
writing by the Buyer) on or prior to the Closing Date, or the occurrence
of any event that results or could reasonably be expected to result in
the failure of a condition set forth in Article 7 to be satisfied on or
prior to the Closing Date; provided, however, that the Buyer may not
terminate this Agreement prior to the Closing if the Company has not had
an adequate opportunity to cure such failure; or
(iv) By the Company if there is a material breach of any
representation or warranty set forth in Article 4 hereof or of any
material covenant or agreement to be complied with or performed by the
Buyer pursuant to the terms of this Agreement or the failure of a
condition set forth in Article 6 to be satisfied (and such condition is
not waived in writing by the Company) on or prior to the Closing Date, or
the occurrence of any event which results or could reasonably be expected
to result in the failure of a condition set forth in Article 6 to be
satisfied on or prior to the Closing Date; provided, however, that the
Company may not terminate this Agreement prior to the Closing Date if the
Buyer has not had an adequate opportunity to cure such failure.
11.1.2 In Event of Termination. In the event of termination of this
Agreement:
(i) each party will redeliver all documents, work papers and other
material of any other party relating to the transactions contemplated
hereby, whether so obtained before or after the execution hereof, to the
party furnishing the same;
(ii) no confidential information received by any party with respect
to the business of any other party or its Affiliates shall be disclosed
to any third party, unless required by law; and
(iii) In the event that this Agreement shall be terminated pursuant
to Section 11.1.1(i) hereof, all obligations of the parties hereto under
this Agreement shall terminate and there shall be no liability of any
party hereto to any other party and each party hereto shall bear its own
expenses incurred in connection with the negotiation, preparation,
execution and performance of this Agreement. The termination of this
Agreement except pursuant to Section 11.1.1(i) shall not affect the right
of any party to bring an action for breach of this Agreement.
11.2 Assignment. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by any party without the prior
written consent of the other parties; except that the Buyer may, without
such consent, assign all of such rights to any lender as collateral
security and assign all such rights and obligations to a wholly-owned
subsidiary (or a partnership controlled by the Buyer) or subsidiaries of
the Buyer or to a successor in interest to the Buyer which shall assume
all obligations and liabilities of the Buyer under this Agreement;
provided, however, that no such assignment shall release Buyer from its
obligations hereunder. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, and no other person shall
have any right, benefit or obligation under this Agreement.
11.3 Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in
writing and shall be deemed to have been duly given when received if
personally delivered; when transmitted if transmitted by telecopy,
electronic or digital transmission method; the day after it is sent, if
sent for next day delivery to a domestic address by recognized overnight
delivery service; and upon receipt, if sent by certified or registered
mail, return receipt requested. In each case notice shall be sent to:
If to the Buyer, addressed to: Xxxxxxx X. Xxxx
0000 Xxxxxxx Xxx Xxxx., Xxxx 000
Xxxxxx, XX 00000
With copies to: Xxxx X. Xxxxx, Esq.
Parish, White, Xxxxxx & Xxxxx, PA
0000 Xxxxxxxx Xx., Xxxxx 0
Xxxxxx, XX 00000
If to the Company: Xxxx Xxxxxxxxx
Naples Realty Services, Inc.
0000 Xxxxxxx Xxxxx X.
Xxxxxx, XX 00000
With copies to: Xxxxxx X. Xxxxxxxx, Esq.
Porter, Wright, Xxxxxx & Xxxxxx LLP
0000 Xxxxxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
or to such other place and with such other copies as any party may
designate as to itself by written notice to the others.
11.4 Choice of Law. This Agreement shall be construed, interpreted and
the rights of the parties determined in accordance with the internal laws
of the State of Florida.
11.5 Entire Agreement, Amendments and Waivers. This Agreement, together
with all exhibits and schedules hereto (including the disclosure
schedules), constitutes the entire agreement among the parties pertaining
to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, of
the parties. This Agreement may not be amended except by an instrument
in writing signed on behalf of each of the parties hereto. No amendment,
supplement, modification or waiver of this Agreement shall be binding
unless executed in writing by the party to be bound thereby. No waiver
of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
11.6 Multiple Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which, together, shall constitute one and the same instrument.
11.7 Expenses. Each party hereto shall pay its own legal, accounting,
out-of-pocket and other expenses incident to this Agreement and to any
action taken by such party in preparation for carrying this Agreement
into effect.
11.8 Invalidity. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to
herein, shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, then to the maximum extent permitted by
law, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement or any other such instrument.
11.9 Titles; Gender. The titles, captions or headings of the Articles
and Sections herein, and the use of a particular gender, are for
convenience of reference only and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement.
11.10 Publicity. Except as required by law, no party hereto shall issue
any press release or make any public statement regarding the transactions
contemplated hereby, without the prior approval of the other parties.
The Buyer or the Company may, at their discretion, issue or make an
appropriate press release or public announcement after the execution and
delivery of this Agreement following consultation with the other parties.
11.11 Burden and Benefit. This Agreement shall be binding upon and shall
inure to the benefit of, the parties hereto and their respective
successors and permitted assigns. There are no third party beneficiaries
of this Agreement.
11.12 Cumulative Remedies. All rights and remedies of either party
hereto are cumulative of each other and of every other right or remedy
such party may otherwise have in equity or at law, and the exercise of
one or more rights or remedies shall not prejudice or impair the
concurrent or subsequent exercise of other rights or remedies.
11.13 WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on their respective behalf, by their respective officers
thereunto duly authorized, all as of the day and year first above
written.
XXXXXXXXXXXXXXXXX.XXX, INC
By: /s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx, Chairman
NAPLES REALTY SERVICES, INC.
By: s/s Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, President
By: /s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, Individually
STATE OF FLORIDA
XXXXXXX COUNTY
Before me the undersigned authority personally appeared Xxxx Xxxxxxxxx,
in his capacity as President of Naples Realty Services, Inc and Naples
Realty Referral Corporation who acknowledged that he executed the
foregoing instrument on behalf of the Corporations and individually. Xx.
Xxxxxxxxx is personally know to me or produced
_______________________________as identification and did not take an
oath.
______________________________
NOTARY PUBLIC
My Commission Expires:
STATE OF FLORIDA
XXXXXXX COUNTY
Before me the undersigned authority personally appeared Xxxxxxx X. Xxxx,
in his capacity as President of Executive Mansions. Com, Inc. who
acknowledged that he executed the foregoing instrument on behalf of the
Corporations. Xx. Xxxx is personally know to me or produced
_______________________________as identification and did not take an
oath.
______________________________
NOTARY PUBLIC
My Commission Expires
Schedule 3.1.2
Capitalization and Identification of Stockholder
Naples Realty Services, Inc.
Capitalization:
Naples Realty Referral Company
Capitalization:
Stockholders of Naples Realty Services, Inc. and Naples Realty Referral
Company
Name
Address
No. of Shares
Class
Xxxx Xxx
000 Xxx Xxxxxx Xxxxx, Xxxxxx, XX 00000
1
A
Xxxxx Xxxxxx
000 Xxxxxx Xxxxx Xxxxx, #000, Xxxxxx, XX 00000
1
A
Xxxxxx Xxxxxxxx
0000 Xxxx Xxxxx Xxx. X, #00, Xxxxxx, XX 00000
1
A
Xxx Xxxxxx
0000 Xxx xx Xxxxxxx, Xxxxxx, XX 00000
1
A
Xxxxxx Xxxxxx
0000 0xx Xxxxxx, XX, Xxxxxx, XX 00000
1
A
Xxxxxx Xxxxxxxx
0000 Xxxx Xxxxx Xxxx. X, #000, Xxxxxx, XX 00000
1
A
Xxxxx Xxx
0000 Xxxxxxx Xxx Xxxx., #000, Xxxxxx, XX 00000
1
A
Xxxxx Xxxxxxx
000 X. Xxxxxx Xxxxx, Xxxxxx Xxxxxxx, XX 00000
1
A
Xxxxxx Xxxxxx
00000 Xxx Xxxxxx Xxx, Xxxxxx Xxxxxxx, XX 00000
1
A
Xxxxxxx Xxxxxx
00000 Xxx Xxxxxx Xxx, Xxxxxx Xxxxxxx, XX 00000
1
A
Xxxxxxx Xxxxx
0000 Xxxxx Xxxxx Xxxx, Xxxxxx, XX 00000
1
A
Xxxx Xxxxxxx
000 Xxxxxxx Xx., #000, Xxxxxx, XX 00000
1
A
Xxxx Xxxxxx-Xxxx
X.X. Xxx 0000, Xxxxxx, XX 00000
1
A
Xxxxx Xxxxxxxx
0000 Xxxx Xxxxx Xxxx. X, Xxxxxx, XX 00000
1
A
Xxxxx Xxxxx
0000 Xxxxx Xxxxx Xxx, Xxxxxx, XX 00000
1
A
L.I. "Buddy" Xxxxx
0000 00xx Xxxxxx XX, Xxxxxx, XX 00000
1
A
Xxxx Xxxxxxxxx
0000 Xxx Xxxxxx, Xxxxxx, XX 00000
1
A
Xxxxx Xxxxxxxx
0000 Xxxxxxxxxx Xx., Xxxxxx, XX 00000
1
A
Xxxxxxx Xxxxxxxx
0000 Xxx Xxxxxx Xx., #0000, Xxxxxx, XX 00000
1
A
TOTAL
19
Schedule 3.1.2.1
Outstanding Options
None
Schedule 3.3
Consents and Approvals Required by the Company: NONE
Schedule 3.4
Owned Real Property and Leased Facilities
Owned Real Property: NONE
Facility Leases
1. Bank of America (lessor) leasing to NRSI (lessee) premises located at
0000 Xxxxxxx Xxxxx Xxxxx, Xxxxxx, Xxxxxxx.
2. NRSI (sublessor) subleasing to CTX Mortgage Company (sublessee)
premises located at 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxxx, Xxxxxxx.
3. NRSI (sublessor) subleasing to Metropolitan Title & Guaranty Company
(sublessee) premises located at 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxxx,
Xxxxxxx.
4. KIVA, Inc. (lessor) leasing to NRSI (lessee) premises located at
00000 Xxxxx Xxxx Xxxx., Xxxxxx Xxxxxxx, Xxxxxxx.
5. NRSI (sublessor) subleasing to CTX Mortgage Company (sublessee)
premises located at 00000 Xxxxx Xxxx Xxxx., Xxxxxx Xxxxxxx, Xxxxxxx.
6. NRSI (sublessor) subleasing to Metropolitan Title & Guaranty Company
(sublessee) premises located at 00000 Xxxxx Xxxx Xxxx., Xxxxxx Xxxxxxx,
Xxxxxxx.
7. NRSI (sublessor) subleasing to Forum Design Group (sublessee)
premises located at 00000 Xxxxx Xxxx Xxxx., Xxxxxx Xxxxxxx, Xxxxxxx.
8. NRSI (sublessor) subleasing to Xxxxx X. Xxxxxxxxx Appraiser, Inc.
(sublessee) premises located at 00000 Xxxxx Xxxx Xxxx., Xxxxxx Xxxxxxx,
Xxxxxxx.
Schedule 3.4.1
Encumbered Leasehold Interests
NONE
Schedule 3.5
Contracts to be Performed
NONE
Schedule 3.6
Required Consents
NONE
Schedule 3.8
Liabilities or Obligations
1. NRSI indebtedness of approximately $19,000 to Fifth Third Bank for
furniture located in the Bonita Springs, Florida office.
2. Newspaper advertisement contract with The Naples Daily News,
NewsPress, and Xxxxxx Banner.
3. NRSI lease obligation for computers, copy machines, and facsimile
machine.
4. NRSI Promissory Note to Executive Mansions in amount of $45,000.00
for retention of Auditors in connection with Due Diligence requirements
of Buyer.
Schedule 3.10
Litigation
Naples Realty Services, Inc., Xxxx Xxxxxxxxx and Xxxxx Xxxxx x. Xxxxxxx-
Xxxx Realty, Inc., Xxxxx Xxxx and Xxxxxx Xxxxxxx, Case No. 99-2563-CA,
Circuit Court Of The Twentieth Judicial Circuit In And For Xxxxxxx
County, Florida, Civil Division.
Xxxxx Xxxx and Xxxx Xxxx v. Naples Realty Services, Inc. a Florida
Corporation and Xxxxxxx Xxxx, Xx., Case No. 00-0000-XX-00, Xxxxxxx Xxxxx
of the Twentieth Judicial Circuit in and for Xxxxxxx County, Florida.
Civil Division.
Schedule 3.11
Permits, Authorizations, and Approvals
OCCUPATIONAL LICENSES
City of Naples - NRRC 0014305 NRSI 0014294
Xxxxxxx County - NRRC 921502/03604401 NRSI 920696/03604401
Xxx County - NRSI 4600197C-09
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
NRSI - CQ 0275119
NRRC - CQ 0275728
BROKER NRSI - BK0112616
BROKER NRRC - XX0000000
BRANCH OFFICE LICENSES FROM DEPT. OF BUSINESS AND PROFESSIONAL REGULATION
BO 2006771 - BONITA SPRINGS, FL.
BO 2004927 - GOLDEN GATE, FL
Schedule 3.13
Employee Benefit Plans
NONE
Schedule 4.4
Consents and Approvals Required by Buyer and Acquisition
Employment Contract
EXHIBIT A
EMPLOYMENT AGREEMENT
AS A PART OF NRSI POLICIES & PROCEDURES MANUAL
Employment Agreement, between ____________________ (the "Company") and
__________ (the "Employee).
1. The Company employs the Employee on the following terms and
conditions.
2. Term of Employment. Subject to the provisions for termination set
forth below this agreement will begin on ,2000, and
terminate on ,2000, subject to automatic annual renewals.
3. Salary. The Company will pay the Employee a salary of $
per year, for the services of the Employee, payable at regular payroll
periods.
3a. Other Compensation. After three consecutive years of
employment Employee will qualify for inclusion in the company stock
purchase plan.
4. Duties and Position. The Company hires the Employee as
and his/her duties will be as described in most current Policies &
Procedures Manual. The Employee's duties may be reasonably modified at
the Company's direction.
5. Employee to Devote Full Time to Company. The Employee will devote
full time, attention, and energies to the business of the Company, and,
during employment, will not engage in any other business activity,
regardless of whether such activity is pursued for profit, gain, or other
pecuniary advantage. However, the Employee is not prohibited from making
personal investments in any other businesses, so long as those
investments do not require participation in the operation of the
companies in which he/she invests.
6. Confidentiality of Proprietary Information. The Employee agrees
that they will not, during or after the term of his employment, reveal
such information, or any part of it, to any person, firm, corporation, or
association. If the Employee does reveal, or threaten to reveal, this
information, the Company will be entitled to an injunction restraining
the Employee from disclosing same, or from rendering any services to any
entity to whom said information has been or is threatened to be
disclosed. The right to secure an injunction is not exclusive, and the
Company may pursue any other remedies it has against the Employee for a
breach or threatened breach of this condition, including the recovery of
damages from the Employee.
7. Reimbursement of Expenses. The Employee may incur reasonable
expenses for promoting the Company's business, including expenses for
approved entertainment, travel and similar items on behalf of the
Company. The Company will reimburse the Employee for all business
expenses after the Employee presents an itemized account of expenditures.
8. Vacation. The Employee will be entitled to a yearly vacation as
described in Policies and Procedures Manual at full pay. The Employee
will take the yearly vacation over a consecutive period only during the
period between May 1st and November 30th.
9. Sickness/Disability. In addition to the provisions described in the
Policies and Procedures Manual, if the Employee cannot perform his/her
duties because of illness or incapacity for a period of more than four
consecutive weeks, the compensation thereafter will be reduced by 75
percent. The Employee's full compensation will be reinstated when he/she
returns to work and is able to discharge his/her duties. However, if the
Employee is absent from work for any reason other than disability for a
continuous period of over 3 weeks, the Company may terminate the
Employee's employment, and the Company's obligations under this agreement
will cease on that date.
10. Termination of Agreement. In addition to the provisions described
in Policies & Procedures, the Company may terminate this agreement at any
time upon 14 days' written notice to the Employee; if the Company
requests, the Employee will continue to perform his duties and be paid
his regular salary up to the date of termination; in addition, the
Company will pay the Employee on the date of termination a severance
allowance of $500.00 less taxes and social security required to be
withheld. Without cause, the Employee may terminate his employment upon
14 days' written notice to the Company; the Employee will be required to
perform his duties and will be paid his regular salary up to the date of
termination but will not receive a severance allowance. Further, despite
anything to the contrary contained in this agreement, the Company may
terminate the Employee's employment without notice if any of the
following events occur:
a. The sale of substantially all of the Company's assets to a single
purchaser or group of associated purchasers; or
b. The sale, exchange, or other disposition, in one transaction of
the majority of the Company's outstanding corporate shares; or
c. The Company's bona fide decision to terminate its business and
liquidate its assets; or
d. The merger or consolidation of the Company with another company.
e. Other actions or activities as described in current Policies &
Procedures Manual under Termination Provisions.
11. Death Benefit. If the Employee dies during his term of employment,
the Company will pay to the Employee's estate any compensation due him up
to the end of the month in which the Employee dies.
12. Restriction on Post-Employment Competition. For a period of one
(1) year after the end of his agreement, the Employee will not within a
10 mile radius of the Company's present place of business, own, manage,
operate, control, consult o or be employed by any business similar to
that conducted by the Company.
13. Assistance in Litigation. The Employee will, upon reasonable
notice, furnish such information and proper assistance to the Company as
it may reasonably require in connection with any litigation in which it
is, or may become, a party.
14. Effect of Prior Agreements. This agreement supersedes any prior
agreement between the Company or any predecessor of the Company and the
Employee, except that this agreement shall not affect or operate to
reduce any benefit or compensation inuring to the Employee of a kind
elsewhere provided and not expressly provided in this agreement, Any
provision of the Policy & Procedures Manual which is contrary to that
stated herein, the provision of the Policy & Procedures shall prevail.
15. Settlement by Arbitration. Any claim or controversy that arises
out of or relates to this agreement, or the breach of it, will be settled
by Mediation Services offered by the 20th Judicial Court System, Xxxxxxx
County, Florida.
16. Limited Effect of Waiver by Company. If the Company waives a
breach of any provision of this agreement by the Employee, that waiver
will not operate or be construed as a waiver of later breaches by the
Employee.
17. Severability. If, for any reason, any provision of this agreement
is held invalid, the other provisions of this agreement will remain in
effect, insofar as is consistent with law. If this agreement is held
invalid or cannot be enforced, then to the full extent permitted by law
any prior agreement between the Company (or any predecessor thereof ) and
the Employee will be deemed reinstated as if this agreement had not been
executed.
18. Assumption of Agreement by Company's Successors and Assignees.
The Company's rights and obligations under this agreement will inure to
the benefit and be binding upon the Company's successors and assignees.
19. Oral Modifications Not Binding. This instrument is the entire
agreement of the Company of the Employee. Oral changes will have no
effect. It may be altered only by a written agreement signed by the
party against whom enforcement of any waiver, change, modification,
extension, or discharge is sought.
Signed under seal this day of , 2000.
_____________________________ ________________________________
Company Employee
