AGREEMENT FOR PURCHASE AND SALE
OF ASSETS
between
AFFILIATED MARKETING SERVICES, INC.
("Seller")
and
AMS ACQUISITION CORP.
("Purchaser")
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
This Agreement for Purchase and Sale of Assets (this
"Agreement") is entered into as of this 8th day of July, 1998 by and
among Affiliated Marketing Services, Inc., a California corporation
("Seller"), AMS Acquisition Corp., a Nevada corporation
("Purchaser"), and Xxxx Xxxxxxxx, an individual ("Hentschl", and
each of Seller, Purchaser, and Hentschl shall be referred to as a
"Party" and collectively as the "Parties").
WHEREAS, Seller owns and operates several different
publishing and advertising business divisions (the "Divisions"),
including but not limited to Entertainer and Lifestyle Magazine
("Entertainer"), Smart Shoppers' Savings Guide ("Smart Shopper"),
and Escondido Recreation Activities & Community Newsletter
("Escondido Newsletter"). Seller's principal place of business is
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000.
Seller owns equipment, inventories, contract rights with
advertisers, leasehold interests, permits and miscellaneous assets
used in connection with the operation of its business;
WHEREAS, Purchaser desires to acquire all the assets used or
useful, or intended to be used, in the operation of Seller's
business, and Seller desires to sell such assets to Purchaser.
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
Section 1. Assets Purchased.
1.1 Assets Purchased. Seller agrees to sell, transfer,
convey and assign to Purchaser and Purchaser agrees to purchase from
Seller, subject to the terms and conditions set forth in this
Agreement, all of Seller's rights, title and interest in and to the
assets of the operation of the Divisions (the "Business"), including
without limitation all of the accounts receivable of the Business
and those assets set forth on Schedule 1.1 hereto ("Assets"), other
than those assets expressly excluded in paragraph 2 hereof. The
parties hereto acknowledge that such Assets constitute all of the
assets necessary for the operation of the Business.
1.2 Liabilities Assumed. Purchaser accepts
responsibility for and shall assume all liabilities relating to the
Business set forth in Schedule 1.2 attached hereto, including but
not limited to the accounts payable and note obligations (including
that certain Promissory Note dated March 20, 1997 between Seller and
Xxxxx Xxxxxxxx which is assigned to Purchaser pursuant to this
Agreement) set forth therein. The Purchaser does not accept
responsibility for or assume any contingent liabilities or any other
liabilities of the Business not set forth on Schedule 1.2. Seller
represents and covenants that any and all liabilities of the
Business not assumed by Purchaser shall be paid in full within 15
days of the Closing Date from the proceeds hereof, with the
exception of $31,230.79 in payroll tax liabilities not assumed by
Purchaser which shall be paid by Seller.
Section 2. Excluded Assets. Assets excluded from this sale and
purchase are those set forth on Schedule 2 attached hereto.
Section 3. Purchase Price for Assets. The purchase price for
the Assets shall be FIVE HUNDRED NINETY EIGHT THOUSAND TWO HUNDRED
THIRTY DOLLARS AND NO/100 ($598,230), which shall be paid by the
Purchaser as follows:
3.1 A total of $100,000 shall be paid by Purchaser to
Seller at the Closing Date.
3.2 A total of $100,000 shall be paid by Purchaser to
Seller no later than ninety (90) days following the Closing Date.
In the event that Purchaser defaults on the payment described in
this Section 3.2, defined as not delivering payment within ten (10)
days of date payment is due, then Seller shall have the benefits of
that certain First Company Security Agreement attached hereto as
Exhibit A.
3.3 On the Closing Date, Purchaser shall deliver to
Seller a secured promissory note (the "Note Consideration") in the
amount of Three Hundred Ninety Eight Thousand Two Hundred Thirty
($398,230), bearing interest at the rate of seven percent (7%) per
annum and secured by the assets of Purchaser. A copy of the Note
Consideration is attached hereto as Exhibit B.
3.4 Effective as of the Closing Date, Purchaser shall
assume the obligations of Seller under that certain Promissory Note
dated March 20, 1997 between Seller and Xxxxx Xxxxxxxx (the
"Xxxxxxxx Note"), a copy of which has been attached hereto as
Exhibit C. Within five (5) business days of the Closing Date,
Purchaser shall provide notice to Xxxxx Xxxxxxxx of the assumption
hereof.
3.5 Effective as of the Closing Date, Purchaser shall
enter into a three (3) year employment contract with Xxxx Xxxxxxxx
("Hentschl"), a copy of which is attached hereto as Exhibit D,
whereby Hentschl will be appointed President of Purchaser at an
annual salary equal to Eighty Four Thousand Dollars ($84,000) per
year, a bonus equal to two percent (2%) of the gross revenues of
Purchaser, and an automobile allowance not to exceed Four Hundred
Fifty Dollars ($450) per month.
Section 4. Adjustments. All revenues and expenses not otherwise
assigned or assumed in accordance with Sections 1.1, 1.2, and 1.3
herein (including but not limited to utilities, personal property
taxes, rents, real property taxes, wages, vacation pay, payroll
taxes, and fringe benefits of employees of Seller) from the
operation of the Business shall be prorated as of 5:00 p.m. as of
the Closing Date. All Business revenues relating to the period from
and after the Closing shall be the responsibility and property of
Purchaser upon the execution of this Agreement. Revenues and
expenses from the operation of the Business relating to the period
after the Closing shall be the property and liabilities,
respectively, of Purchaser.
Section 5. Seller's Representations and Warranties. Seller
represents and warrants to Purchaser as of the date hereof and as of
the Closing Date as follows:
5.1 Authority. Seller has full right, title, authority
and capacity to execute and perform this Agreement and to consummate
all of the transactions contemplated herein.
5.2 Business Location and Leases. There are no defaults
or events with respect to the location of the Business that, with
notice or lapse of time, or both, will constitute any manner of
default or obligation of Seller as to any real or personal property
leases. All of the leases referenced in this Agreement are valid
and in full force, and there are no defaults or events that, with
notice or lapse of time, or both, would constitute a default
thereunder.
5.3 Brokers and Finders. Seller has not employed
any broker or finder in connection with the transactions
contemplated by this Agreement, or taken action that would give rise
to a valid claim against any party for a brokerage commission,
finder's fee, or other like payment.
5.4 Transfer Not Subject to Encumbrances or
Third-Party Approval. Except as may be described in Schedule 5.4 of
this Agreement, the execution and delivery of this Agreement by
Seller and the consummation of the contemplated transactions, will
not result in the creation or imposition of any valid lien, charge,
or encumbrance on any of the Assets, and will not require the
authorization, consent, or approval of any third party, including
any governmental subdivision or regulatory agency.
5.5 Inventory. The inventory existing for Seller as of
the Closing will be set forth in Schedule 5.5 of this Agreement (the
"Inventory"). The Inventory consists of office supplies and other
items of a quality and quantity usable in the ordinary course of
business for Seller. All items included in the Inventory as of the
Closing will be transferred to Purchaser and shall be valued at
Seller's cost and shall include prepaid expenses. No items included
in the Inventory have been pledged as collateral or held by Seller
on consignment from others.
5.6 Title to Assets. To the best of its knowledge except
as otherwise provided in Schedule 5.4 of this Agreement, Seller has
good and marketable title to all of the Assets, whether personal,
mixed, tangible or intangible. The Assets are owned by Seller free
and clear of all mortgages, liens, pledges, charges, encumbrances,
equities, claims, easements, rights of way, covenants, conditions,
or restrictions, except as may have otherwise been previously
disclosed herein. Seller has received no notice from any
governmental agency or any third party that it occupies the location
of the Business in violation of any law, ordinance, regulation or
decree.
5.7 Insurance. Seller has maintained and now maintains
adequate insurance protection against all liabilities, claims, risks
against which it is customary to insure. Existing insurance
policies held by Seller concerning the business of Seller will be
maintained in good standing up to and including the Closing.
5.8 Compliance with Laws; Structural Condition, Hazardous
Waste and Toxics. To the best of its knowledge and with no
notice(s) received, Seller has complied in all material respects
with and has not been cited for any violation of federal, state or
local environmental protection laws and/or regulations relating to
the Business or location of the Business, and no material capital
expenditures will be required for compliance with any federal, state
or local laws or regulations now in force or in effect relating to
the protection of the environment. Seller knows of no facts or
circumstances leading it to believe that any hazardous or toxic
substances may in any way be located or associated with any of the
Business or Business Locations.
5.9 Litigation. Except as set forth in Schedule 5.9 of
this Agreement, there is no suit, action, arbitration or legal,
administrative or other proceeding, or governmental investigation
pending or, to the best of Seller's knowledge, threatened against or
in any was affecting the Business. Seller is not in default with
respect to any order, writ, injunction, or decree of any federal,
state, local or foreign court, department, agency or instrumentality.
5.10 Effect of Agreement. The transactions contemplated
by this Agreement will not result in or constitute in any manner any
of the following: (a) A default or an event that, with notice or
lapse of time or both, would be a default, breach or violation of
any lease, license, promissory note, conditional sales contract,
commitment, indenture, mortgage, deed of trust, or other agreement,
instrument or arrangement to which Seller is a party, or by which
any of the property of Seller is bound; (b) An event that would
permit any party to terminate any agreement or to accelerate the
maturity of any indebtedness or other obligation of Seller, except
as may have otherwise been previously disclosed to Purchaser, in
writing; (c) The creation or imposition of any lien, charge or
encumbrance on any of the assets of Seller except as herein
provided; or (d) The violation of any law, judgment, order or decree
affecting the business or properties of Seller.
5.11 Utilities and Access. To the best of Seller's
knowledge, all utility services necessary and sufficient for the
full use, occupancy, operation and disposition of the Business are
available and in full operating condition. The Business has full
and open access to a dedicated public right of way without further
condition or cost to Purchaser.
5.12 Full Disclosure. None of the representations and/or
warranties made by Seller or its principals made in any certificate,
document or memorandum furnished or to be furnished by any of them
in connection with this Agreement, or on their behalf, to the best
of their knowledge, contains or will contain any untrue statement of
a material fact, or omit any material fact, the omission of which
would in any way be misleading or damaging to Purchaser in
connection with this transaction upon the execution of this Agreement.
5.13 Preservation of Business. Seller has used its best
efforts to preserve its respective business organizations intact, up
to and including the date of this Agreement, and to preserve all
existing relationships with suppliers, customers and others having
business relationships with Seller or Purchaser and/or the Business.
5.14 Conduct of Business in Normal Course. Seller has
carried on the Business and activities of the Business diligently
and in substantially the same manner as it has previously been
carried out, and has not made or instituted any unusual or unlawful
methods of inventory levels, purchase, maintenance sale, lease,
management, accounting or operation that varies from those methods
previously used with respect to the operation of the Business and
has not made or agreed to make any contractual obligations under
which the Business might be directly or indirectly affected.
5.15 Licenses and Permits. Seller possesses all
certificates, licenses, permits, contracts, consents, approvals and
governmental and regulatory authorizations (the "Permits") necessary
for Seller's operation of the business in the manner presently
operated. The Permits are in full force and
effect, there has not occurred any event which is pending or threatened
which would cause permit revocation or suspension, or otherwise adversely
effect the maintenance of the Permits. No suspension or revocation of any
such Permits are pending or threatened, there is no action, investigation
or proceeding looking to or contemplating the revocation or
suspension of the Permits and there is no violation of any Permit
laws governing the issuance of the Permits in a way which would have
a material adverse effect on the operation of the Business. To the
extent permitted by law, for a period of one year after the closing
of the transactions contemplated under the terms of this Agreement,
Seller agrees and covenants to allow Purchaser to have use of, and
obtain the advantage of, the Permits by means of a power of attorney
or otherwise, unless and until Purchaser is able to obtain Permits
in its name or on its behalf for purposes of the continued operation
of the Business.
5.16 Existing Agreements. Without the consent of the
Purchaser or unless provided otherwise herein, the Seller has not
modified, amended, canceled or terminated any existing contracts or
agreements, or agreed to do any of those acts, as such contracts or
agreements may in any way relate to the Business.
5.17 Sales and Use Tax on Prior Sales. Seller agrees to
furnish to Purchaser prior to the date of this Agreement, with
clearance certificates that Purchaser may reasonably request as
evidence that all sales and use tax liabilities of Seller, accruing
before the date of Closing, have been fully satisfied or provided
for.
5.18 Non-Competition Covenants. Seller, together with any
and all shareholders, directors, officers, partners, owners or other
affiliates of Seller, jointly and severally, agree, warrant and
covenant that they shall not compete directly or indirectly with the
Purchaser, in the business presently conducted by the Business
existing at the time of this Agreement for a five (5) year period of
time following the Closing. The Seller shall hold all data and
information obtained with respect to the Business in the same degree
of confidence as the Business maintains such data and information.
For a period of five (5) years from and after Closing, the Seller
shall not directly or indirectly induce or solicit, or directly or
indirectly aid or assist any other Person to induce or solicit,
current employees, salesmen, agents, consultants, distributors,
representatives, advisors, customers or suppliers of the Business to
terminate their employment or business relations with the Business,
nor for a period of five (5) years from and after Closing shall the
Sellers employ any employees, salesmen or agents of the Purchaser
without written permission of the Purchaser. Nothing contained in
this paragraph shall prevent the Seller from purchasing less than
one percent (1%) of the issued and outstanding common stock of a
corporation which conducts such business if such stock is traded
upon the floor of the New York Stock Exchange or the American Stock
Exchange. In the event of a breach or threatened breach of this
Section, Purchaser shall be entitled to an injunction restraining
such breach; but nothing herein shall be construed as prohibiting
Purchaser from pursuing any other remedy available to Purchaser as a
result of such breach or threatened breach.
Section 6. Representations of Purchaser. Purchaser
represents and warrants as of the date hereof and as of the Closing
Date as follows:
6.1 Corporate Existence. Purchaser is a corporation duly
organized, validly existing, and in good standing under the laws of
the State of Nevada. Purchaser has all requisite corporate power,
shareholder approval and authority to enter into this Agreement and
perform its obligations hereunder.
6.2 Authorization. The execution, delivery, and
performance of this Agreement have been duly authorized and approved
by the board of directors, and this Agreement constitutes a valid
and binding Agreement of Purchaser in accordance with its terms.
6.3 Brokers and Finders. Purchaser has not employed any
broker or finder in connection with the transaction contemplated by
this Agreement and has taken no action that would give rise to a
valid claim against any party for a brokerage commission, finder's
fee, or other like payment.
6.4 Accuracy of Representations and Warranties. None of
the representations or warranties of Purchaser contain or will
contain any untrue statement of a material fact or omit or will omit
or misstate a material fact necessary in order to make the
statements contained herein not misleading.
Section 7. Covenants of Seller.
7.1 Seller's Operation of Business Prior to Closing.
Seller agrees that between the date of this Agreement and the
Closing Date, Seller will:
7.1.1 Continue to operate the business that is the subject
of this Agreement in the usual and ordinary course and in conformity
in all material respects with all applicable laws, ordinances,
regulations, rules, or orders, and will its best efforts to preserve
its business organization and preserve the continued operation of
its business with its customers, suppliers, and others having
business relations with Seller.
7.1.2 Not assign, sell, lease, or otherwise transfer or
dispose of any of the assets used in the performance of its
business, whether now owned or hereafter acquired, except in the
normal and ordinary course of business and in connection with its
normal operation.
7.1.3 Maintain its assets other than inventories in their
present condition, reasonable wear and tear and ordinary usage
excepted, and maintain the inventories at levels normally maintained.
7.2 Access to Premises and Information. At reasonable
times during normal business hours prior to the Closing Date, Seller
will provide Purchaser and its representatives with reasonable
access to the assets, titles, contracts, and records of Seller and
furnish such additional information concerning Seller's business as
Purchaser from time to time may reasonably request. Seller will
provide copies of any and all documents, contracts, and other
materials reasonably requested by Purchaser to complete its due
diligence investigation of Seller.
7.3 Employee Matters. Prior to the Closing Date, Seller
will not, without Purchaser's prior written consent, enter into any
material agreement with its employees, increase the rate of
compensation or bonus payable to or to become payable to any
employee, or effect any changes in
the management, personnel policies, or employee benefits, except
in accordance with existing employment practices.
7.4 Conditions and Best Efforts. Seller will use its
best efforts to effectuate the transactions contemplated by this
Agreement and to fulfill all the conditions of the obligations of
Seller under this Agreement, and will do all acts and things as may
be required to carry out its obligations under this Agreement and to
consummate and complete this Agreement.
Section 8. Covenants of Purchaser.
8.1 Conditions and Best Efforts. Purchaser will use its
best efforts to effectuate the transactions contemplated by this
Agreement and to fulfill all the conditions of Purchaser's
obligations under this Agreement, and shall do all acts and things
as may be required to carry out Purchaser's obligations and to
consummate this Agreement.
8.2 Confidential Information. If for any reason the sale
of Assets is not closed, Purchaser hereto agrees to preserve the
secrecy of any and all information received from Seller in the
course of investigating, negotiating, and performing the
transactions contemplated by this Agreement, which shall be deemed
trade secrets of Seller. Said trade secrets include, but are not
limited to, prepared information packages; background information,
financials, related documents, intermediaries, employees, suppliers,
customers, contracts and financial considerations. Purchaser agrees
to preserve and protect the secrecy and confidentiality of such
information and shall disclose same to no third party without the
express written permission from Seller. This prohibition shall be
enforced from the date of this agreement and for a period of five
years thereafter.
Section 9. Conditions Precedent to Purchaser's Obligations. The
obligation of Purchaser to purchase the Assets is subject to the
fulfillment, prior to or at the Closing Date, of each of the
following conditions, any one or portion of which may be waived in
writing by Purchaser:
9.1 Representations, Warranties, and Covenants of Seller.
All representations and warranties made in this Agreement by Seller
shall be true as of the Closing Date as fully as though such
representations and warranties had been made on and as of the
Closing Date, and, as of the Closing Date, Seller shall not have
violated or shall have failed to perform in accordance with any
covenant contained in this Agreement.
9.2 Conditions of the Business. There shall have been no
material adverse change in the manner of operation of Seller's
business prior to the Closing Date.
9.3 No Suits or Actions. At the Closing Date no suit,
action, or other proceeding shall have been threatened or instituted
to restrain, enjoin, or otherwise prevent the consummation of this
Agreement or the contemplated transactions.
9.4 Seller's Performance. Seller shall have performed
and complied with all covenants and agreements, and satisfied all
conditions that it is required to otherwise satisfy pursuant to this
Agreement.
9.5 Purchaser's Corporate Approval. The Board of
Directors of Purchaser shall have duly authorized and approved the
execution and delivery of this Agreement and all corporate actions
necessary or proper to fulfill the obligations of Purchaser to be
performed under this Agreement.
9.6 Completion of Due Diligence Review. Purchaser shall
have completed its investigation and review of the books, records,
business, contracts, operations and assets of Seller and shall be
satisfied, in its sole and absolute discretion, with such review.
Section 10. RISK OF LOSS. The risk of loss, damage, or
destruction to any of the equipment, inventory, or other personal
property to be conveyed to Purchaser under this Agreement shall be
borne by Seller to the time of Closing. In the event of such loss,
damage, or destruction, Seller, to the extent reasonable, shall
replace the lost property or repair or cause to repair the damaged
property to its condition prior to the damage. If replacement,
repairs, or restorations are not completed prior to Closing, then
the purchase price shall be adjusted by an amount agreed upon by
Purchaser and Seller that will be required to complete the
replacement, repair, or restoration following Closing. If Purchaser
and Seller are unable to agree, then Purchaser, at its sole option
and notwithstanding any other provision of this Agreement, upon
notice to Seller, may rescind this Agreement and declare it to be of
no further force and effect, in which event there shall be no
Closing of this Agreement and all the terms and provisions of this
Agreement shall be deemed null and void.
Section 11. Indemnification and Survival.
11.1 Survival of Representations and Warranties. All
representations and warranties made in this Agreement shall survive
the Closing of this Agreement, except that any party to whom a
representation or warranty has been made in this Agreement shall be
deemed to have waived any misrepresentation or breach of
representation or warranty of which such party had knowledge prior
to Closing. Any party learning of a misrepresentation or breach of
representation or warranty under this Agreement shall immediately
give written notice thereof to all other parties to this Agreement.
11.2 Seller's Indemnification.
11.2.1 Seller hereby agrees to indemnify and hold
Purchaser, it successors, and assigns harmless from and against:
11.2.2 Any and all claims, liabilities, and obligations of
every kind and description, contingent or otherwise, arising out of
or related to the operation of Seller's business prior to the close
of business on the day before the Closing Date.
11.2.3 Any and all damage resulting from any material
misrepresentation, breach of warranty or covenant, or nonfulfillment
of any agreement on the part of Seller under this Agreement.
11.2.4 Seller understands and agrees that the Installment
Compensation payable hereunder may be offset by Purchaser against
any and all indemnification claims or other claims against Seller in
accordance with the terms of this Agreement provided written notice
and a reasonable opportunity to respond to the claim is provided to
Seller.
Section 12. Closing.
12.1 Time and Place. This Agreement shall be closed on
July 8, 1998 or that date upon which all of the conditions set forth
herein have been satisfied, or at such other time as the parties may
agree in writing at a location to be agreed upon by the parties.
12.2 Bulk Transfers. Within sixty (60) days following the
Closing, Seller shall provide Purchaser with evidence of
satisfaction of any applicable Uniform Bulk Transfers Act. In the
event any creditor of Seller claims the benefit of the Bulk
Transfers Act as against Purchaser or any of the assets being
conveyed to Purchaser under this Agreement, Seller shall immediately
pay or otherwise satisfy such claim or undertake its defense.
Seller shall indemnify and hold Purchaser harmless from and against
any and all loss, expense, or damage resulting from the failure to
comply with the Bulk Transfers Act.
Section 13. Miscellaneous Provisions.
13.1 Amendment and Modification. Subject to applicable
law, this Agreement may be amended, modified, or supplemented only
by a written agreement signed by all of the parties hereto.
13.2 Notices. All notices, requests, demands, and other
communications required or permitted hereunder will be in writing
and will be deemed to have been duly given when delivered by hand or
two days after being mailed by certified or registered mail, return
receipt requested, with postage prepaid:
If to Purchaser:
AMS Acquisition Corp.
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx, Chief Executive Officer
Facsimile No.: (000) 000-0000
With a copy to:
The Law Offices of M. Xxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: M. Xxxxxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
or to such other person or address as Purchaser furnish
to Seller pursuant to the above.
If to Seller:
Affiliated Marketing Services, Inc.
00000 Xxxxxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Facsimile No.: ( )
With a copy to:
Xxxxxxxxx Xxxxxxxx Xxxxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
or to such other address as Seller furnish to Purchaser
pursuant to the above.
13.3 Attorney Fees. In the event an
arbitration, suit or action is brought by any party under
this Agreement to enforce any of its terms, or in any
appeal therefrom, it is agreed that the prevailing party
shall be entitled to reasonable attorneys fees to be fixed
by the arbitrator, trial court, and/or appellate court.
13.4 Law Governing. This Agreement shall be
governed by and construed in accordance with the laws of
the State of California.
13.5 Titles and Captions. All section titles or
captions contained in this Agreement are for convenience
only and shall not be deemed part of the context nor
affect the interpretation of this Agreement.
13.6 Pronouns and Plurals. All pronouns and any
variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural as the
identity of the person or persons may require.
13.7 Entire Agreement. This Agreement, along
with its attachments and exhibits, contains the entire
understanding between and among the parties and supersedes
any prior understandings and agreements among them
respecting the subject matter of this Agreement. Any
amendments to this Agreement must be in writing and signed
by the party against whom enforcement of that amendment is
sought.
13.8 Agreement Binding. This Agreement shall be
binding upon the heirs, executors, administrators,
successors and assigns of the parties hereto.
13.9 Presumption. This Agreement or any Section
thereof shall not be construed against any party due to
the fact that said Agreement or any Section thereof was
drafted by said party.
13.10 Further Action. The parties hereto shall
execute and deliver all documents, provide all information
and take or forbear from all such action as may be
necessary or appropriate to achieve the purpose of the
Agreement.
13.11 Counterparts. This Agreement may be
executed in several counterparts and all so executed shall
constitute one Agreement, binding on all the parties
hereto even though all the parties are not signatories to
the original or the same counterpart.
13.12 Parties in Interest. Nothing herein shall
be construed to be to the benefit of any
third party, nor is it intended that any provision shall
be for the benefit of any third party.
13.13 Savings Clause. If any provision of this
Agreement, or the application of such provision to any
person or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of such
provision to persons or circumstances other than those as
to which it is held invalid, shall not be affected thereby.
The parties hereto hereby agree to the foregoing and execute this
Agreement as of the date first above written.
"Seller" "Purchaser"
Affiliated Marketing Services, Inc. AMS Acquisition Corp.
/s/ Xxxx Xxxxxxxx /s/ Xxxxxx Xxxxxxxx
By: Xxxx Xxxxxxxx By: Xxxxxx Xxxxxxxx
Its: President Its: Chief Executive Officer
Attached Schedules and Exhibits:
Schedule 1.1 Assets
Schedule 1.2 Liabilities
Schedule 2 Excluded Assets
Schedule 5.4 Encumbrances or Third-Party Approvals
Schedule 5.5 Inventory
Schedule 5.6 Title to Assets
Schedule 5.9 Litigation
Exhibit A First Company Security Agreement
Exhibit B Promissory Note and Security Agreement
Exhibit C Xxxxxxxx Note
Exhibit D Employment Contract
Schedule 1.1
ASSETS
Schedule 1.2
LIABILITIES
Schedule 2
EXCLUDED ASSETS
Schedule 5.4
ENCUMBRANCES AND THIRD-PARTY APPROVALS
Schedule 5.5
INVENTORY
Schedule 5.9
LITIGATION
Exhibit "A"
FIRST COMPANY SECURITY AGREEMENT
Exhibit "B"
PROMISSORY NOTE AND SECURITY AGREEMENT
Exhibit "C"
XXXXXXXX NOTE
Exhibit "D"
EMPLOYMENT CONTRACT
