EXHIBIT 10.2
FILE
PURCHASE AND SALE AGREEMENT
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This Purchase and Sale Agreement (the "Agreement") is entered into as of January
1, 2004, by and among Xxxxxxxx Homes Corporation, a Colorado corporation (the
"Buyer"); and Diversity Mortgage Group, LLC, an entity ("DMG"), Seller"). Buyer
and Seller are referred to collectively herein as the "Parties."
WITNESSETH:
A. The Parties have entered into this Agreement dated of even date herewith
wherein Buyer will purchase from Seller all of the membership interest and
personal goodwill of Seller.
B. This Agreement contemplates a transaction in which Buyer will purchase
from Seller, and Seller will sell to Buyer, all of its membership interests and
personal in return for the consideration described herein.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows:
1. Purchase and Sale of Membership Interest and Goodwill.
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(a) Conveyance of Membership Interest and Goodwill. Seller hereby
transfers, sells, assigns and conveys all of its personal membership interest
and goodwill relating to Seller to Buyer, for the consideration specified in
Section 1(b) of this Agreement.
(b) Purchase Price. The purchase price for DMG shall be paid by Buyer to
Seller concurrently with the execution of this Agreement in the form of 100,000
shares of the Buyers common stock, such common stock shall be subject restricted
and subject to all restrictions of the Securities Act of 1933, including Rule
144 and shall be vested equally over the term of this contract in the amount of
25,000 shares per quarter.
2. Representations and Warranties.
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(a) Representations and Warranties of the Seller. Seller represents and
warrants to the Buyer that the statements contained in this Section 2(a) are
correct and complete as of the date of this Agreement.
(i) Authorization of Transaction. Seller has full power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and legally binding
obligation of Seller, enforceable in accordance with its terms and
conditions. The Seller need not give any notice to, make any filing with,
or obtain any authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions contemplated by
this Agreement.
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(ii) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby,
will (A) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Seller is subject
or, or (B) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to
which the Seller is a party or by which Seller is bound or to which any of
the Seller's assets are subject.
(iii) Brokers' Fees. Seller has no liability or obligation to pay any fees
or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Buyer could
become liable or obligated.
(b) Representations and Warranties of the Buyer. Buyer represents and
warrants to Seller that the statements contained in this Section 2(b) are
correct and complete as of the date of this Agreement.
(i) Organization of the Buyer. Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of the jurisdiction
of its incorporation.
(ii) Authorization of Transaction. The Buyer has full power and authority
to execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and legally binding
obligation of Buyer, enforceable in accordance with its terms and
conditions. Buyer need not give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions contemplated by
this Agreement.
(iii) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby,
will (A) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Buyer is subject or
any provision of its charter or bylaws or (B) conflict with, result in a
breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which the Buyer is a party or by which
it is bound or to which any of its assets is subject.
(iv) Brokers' Fees. Buyer has no liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which Seller could become
liable or obligated.
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3. Covenants of the Parties. The Parties agree as follows with respect to
the period following the closing of the transactions contemplated by this
Agreement (the "Closing").
(a) General. In case at any time after the Closing any further action is
necessary to carry out the purposes of this Agreement, each of the Parties will
take such further action (including the execution and delivery of such further
instruments and documents) as any other Party may reasonably request, all at the
sole cost and expense of the requesting Party.
(b) Covenant Not to Compete. Seller hereby covenants and agrees to support
the Business and the Company and, furthermore, that for a period of one(1) year
from and after the date hereof, Seller will not (i) compete with the Buyer in
any way, or (ii) engage directly or indirectly in any business that the Company
conducts as of the date hereof, within a five(5) mile radius of the Buyers
principal place of business at 0000 X. Xxxxxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX
00000; provided, however, that no owner of less than 1% of the outstanding stock
of any publicly traded corporation shall be deemed to engage solely by reason
thereof in any of its businesses. If the final judgment of a court of competent
jurisdiction declares that any term or provision of this Section 3(b) is invalid
or unenforceable, the Parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
(c) Employment. DMG shall cause Xxxxxxxxxxx X. Xxxxxx to enter into the
Employment Agreement with Company in the form attached as Exhibit A hereto.
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4. Operating Definitions and Guidance.
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(a) Loan originations. Loan originations shall be defined as any mortgage
or construction loan initiated on or after the Effective Date, further specified
as follows.
(i) House loans. House loans shall be defined as any mortgage or
construction loan generated by the Buyer, its subsidiaries, management,
employees or assigns. House loan origination and yield-spread premiums, or
any other commissions or fees, shall be allocated on a 60% to Buyer and 40%
to employee basis.
(ii) External loans. External loans shall be defined as any mortgage or
construction loan generated by an employee of Seller. External loan
origination and yield-spread premiums, or any other commissions or fees,
shall be allocated on a 30% to Buyer and 70% to employee basis.
(b) Loan origination and fees. A minimum fee requirement for all House
Loans and External Loans shall be defined and submitted in writing by Seller
within one hundred eighty days of the Effective Date of this Agreement.
5. Miscellaneous.
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(a) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(b) Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement among the Parties and supersedes any
prior understandings, agreements, or representations by or among the Parties,
written or oral, to the extent they relate in any way to the subject matter
hereof.
(c) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of his
or its rights, interests, or obligations hereunder; provided, however, that the
Buyer may (i) assign any or all of its rights and interests hereunder to one or
more of its Affiliates and (ii) designate one or more of its Affiliates to
perform its obligations hereunder (in any or all of which cases the Buyer
nonetheless shall remain responsible for the performance of all of its
obligations hereunder).
(d) Counterparts; Execution. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument. The Parties shall be
entitled to rely on delivery by facsimile machine of an executed copy of this
Agreement and acceptance of such facsimile signatures shall be equally effective
to create a valid and binding agreement between the Parties in accordance with
the terms hereof.
(e) Headings. The section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
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(f) Notices. All notices, claims; certificates, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered or if sent by nationally recognized overnight
courier, by telecopy, or by registered or certified mail, return receipt
requested and postage prepaid, addressed as follows:
If to Seller: With a copy to:
0000 Xxxxxxxx Xxxxx Xxxxxx Xxxxxxx X. Xxxxx
Parker, Colorado 80134 Attorney at Law
Facsimile: _______________ 0000 X. Xxxxxx Xx.
Xxxxxxxxxx,XX 00000
Facsimile:(000)000-0000
If to Buyer: With a copy to:
Xxxxxxxx Homes Corporation Xxxxxxx & Xxxxx, PC
0000 X. Xxxxxxxx Xxxxx Xxxxxx 0000 Xxxxxxxx
Xxxxx 000-Xxxxx Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx Attn: Xxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Or to such other address as the Party to whom notice is to be given may have
furnished to the other Parties in writing in accordance herewith. Any such
notice or communication shall be deemed to have been received (a) in the case of
personal delivery, on the date of such delivery, (b) in the case of
nationally-recognized overnight courier, on the next business day after the date
when sent, (c) in the case of telecopy transmission, when received, and (d) in
the case of mailing, on the third business day following that on which the piece
of mail containing such communication is posted.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Colorado without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Colorado or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Colorado.
(h) Amendments and Waivers. No amendment of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by Buyer and
Seller. No waiver by any Party of any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
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(i) Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(j) Incorporation of Exhibits. The Exhibits identified in this Agreement
are incorporated herein by reference and made a part hereof.
(k) Specific Performance. Each of the Parties acknowledges and agrees that
the other Parties would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the Parties agrees that an
injunction or injuctions may be appropriate, if warranted by the facts, to
prevent breaches of the provisions of this Agreement and to enforce specifically
this Agreement and the terms and provisions hereof in any action instituted in
any court of the United States or any state thereof having jurisdiction over the
Parties and the matter (subject to the provisions set forth in Section 4(1)
below), in addition to any other remedy to which they may be entitled, at law or
in equity.
(1) Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of any state or federal court sitting in Denver, Colorado, in any
action or proceeding arising out of or relating to this Agreement and agrees
that all claims in respect of the action or proceeding may be heard and
determined in any such court. Each Party also agrees not to bring any action or
proceeding arising out of or relating to this Agreement in any other court. Each
of the Parties waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety, or other
security that might be required of any other Party with respect thereto.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
Attested By: BUYER:
/s/ Xxxxx X. Xxxxxxxx XXXXXXXX HOMES CORPORATION
--------------------- By: /s/ Xxxxxxx X. Xxxx
Xxxxx X. Xxxxxxxx -------------------------
Secretary, Xxxxxxxx Homes Corporation Name: Xxxxxxx X. Xxxx
Title: President & Chief Executive
Officer
SELLER:
Diversity Mortgage Group, LLC.
/s/ Xxxxxxxxxxx Xxxxxx
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Xxxxxxxxxxx Xxxxxx
Title: Managing Member
