ASSET PURCHASE AGREEMENT AMONG FINDEX.COM, INC., ORG PROFESSIONAL, LLC, ROBERT BORSARI, AND JOSEPH KOLINGER FEBRUARY 25, 2008
AMONG
XXXXXX.XXX,
INC.,
ORG
PROFESSIONAL, LLC,
XXXXXX
XXXXXXX,
AND
XXXXXX
XXXXXXXX
________
FEBRUARY
25, 2008
TABLE OF
CONTENTS
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Page
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1.
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DEFINITIONS…………………………………………………………………………………...........................................................................................................................................................................
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1
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2.
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BASIC
TRANSACTION……………………………………………………………………….........................................................................................................................................................................
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4
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(a) Purchase
and Sale of
Assets…………………………………..........................................................................................................................................................................................................
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(b) Acquired
Assets………………………………………………………………………......................................................................................................................................................................
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(c) Liabilities………………………………………………………………………………........................................................................................................................................................................
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(d) Assigned
Contracts…………………………………………………………………….....................................................................................................................................................................
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(e) Purchase
Price………………………………………………………………………….......................................................................................................................................................................
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(f) The
Closing……………………………………………………………………………........................................................................................................................................................................
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(g) Deliveries
at the
Closing……………………………………………………………….....................................................................................................................................................................
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3.
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REPRESENTATIONS
AND WARRANTIES OF THE
SELLER……………………………........................................................................................................................................................................
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7
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(a) Organization
of
Seller………………………………………………………………….......................................................................................................................................................................
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7
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(b) Authorization
of
Transaction………………………………………………………….....................................................................................................................................................................
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7
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(c) Noncontravention……………………………………………………………………........................................................................................................................................................................
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(d) Brokers’
Fees………………………………………………………………………….......................................................................................................................................................................
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(e) Title
to Acquired
Assets……………………………………………………………….....................................................................................................................................................................
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(f) Software………………………………………………………………………………..........................................................................................................................................................................
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(g) Online
Properties……………………………………………………………………….....................................................................................................................................................................
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(h) Inventories……………………………………………………………………………........................................................................................................................................................................
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(i) Proprietary
Rights…………………………………………………………………….........................................................................................................................................................................
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8
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(j) Non-Infringement……………………………………………………………………..........................................................................................................................................................................
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(k) Legal
Compliance…………………………………………………………………….........................................................................................................................................................................
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(l) Contracts………………………………………………………………………………........................................................................................................................................................................
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(m) Litigation………………………………………………………………………………......................................................................................................................................................................
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(n) Product
Warranty………………………………………………………………………....................................................................................................................................................................
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(o) Product
Liability……………………………………………………………………….......................................................................................................................................................................
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(p) Customer
Base…………………………………………………………………………......................................................................................................................................................................
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(q) Accounts
Receivable…………………………………………………………………......................................................................................................................................................................
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(r) Investment
in Purchaser Common
Stock………………………………………………..................................................................................................................................................................
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(s) Disclosure…………………………………………………………………………….........................................................................................................................................................................
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4.
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REPRESENTATIONS
AND WARRANTIES OF THE SELLER
PRINCIPALS…………….......................................................................................................................................................................
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5.
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REPRESENTATIONS
AND WARRANTIES OF THE
PURCHASER………………………......................................................................................................................................................................
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(a) Organization
of
Purchaser……………………………………………………………......................................................................................................................................................................
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(b) Authorization
of
Transaction…………………………………………………………....................................................................................................................................................................
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(c) Noncontravention…………………………………………………………………….......................................................................................................................................................................
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(d) Purchaser
Common
Stock……………………………………………………………......................................................................................................................................................................
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(e) Brokers’
Fees…………………………………………………………………………........................................................................................................................................................................
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6.
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POST-CLOSING
COVENANTS……………………………………………………………….........................................................................................................................................................................
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(a) Restrictive
Covenants………………………………………………………………….....................................................................................................................................................................
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(b) Sale,
Transfer, Assignment of Purchaser Common
Stock…………………………….................................................................................................................................................................
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(c) Purchase
Price Allocation
Schedule………………………………………………….....................................................................................................................................................................
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(d) Further
Assurances……………………………………………………………………....................................................................................................................................................................
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7.
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OTHER
AGREEMENTS………………………………………………………………………..........................................................................................................................................................................
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(a) Independent
Sales
Agreement…………………………………………………………...................................................................................................................................................................
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8.
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INDEMNIFICATION…………………………………………………………………………...........................................................................................................................................................................
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(a) Indemnification
by
Seller……………………………………………………………….....................................................................................................................................................................
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(b) Indemnification
by Seller
Principals…………………………………………………......................................................................................................................................................................
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(c) Indemnification
by
Purchaser…………………………………………………………....................................................................................................................................................................
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(d) Notice
of
Claim……………………………………………………………………….........................................................................................................................................................................
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(e) Defense………………………………………………………………………………..........................................................................................................................................................................
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(f) Time
for
Claims………………………………………………………………………..........................................................................................................................................................................
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(g) Reduction
by Insurance
Proceeds……………………………………………………....................................................................................................................................................................
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(h) Offset
Against Purchase Money
Note……………………………………………….....................................................................................................................................................................
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9.
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MISCELLANEOUS……………………………………………………………………………..........................................................................................................................................................................
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(a) Press
Releases and Public
Announcements……………………………………………................................................................................................................................................................
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(b) No
Third-Party
Beneficiaries…………………………………………………………......................................................................................................................................................................
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(c) Entire
Agreement………………………………………………………………………......................................................................................................................................................................
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(d) Succession
and
Assignment……………………………………………………………..................................................................................................................................................................
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(e) Counterparts…………………………………………………………………………….....................................................................................................................................................................
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(f) Headings………………………………………………………………………………........................................................................................................................................................................
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(g) Notices………………………………………………………………………………….......................................................................................................................................................................
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(h) Governing
Law……………………………………………………………………….........................................................................................................................................................................
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(i) Amendments
and
Waivers……………………………………………………………......................................................................................................................................................................
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(j) Severability…………………………………………………………………………….........................................................................................................................................................................
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(k) Expenses………………………………………………………………………………........................................................................................................................................................................
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(l) Construction……………………………………………………………………………......................................................................................................................................................................
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(m) Incorporation
of Exhibits and
Schedules………………………………………………................................................................................................................................................................
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(n) Arbitration……………………………………………………………………………........................................................................................................................................................................
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Exhibit A
– Form of Assignment of Intellectual Property
Exhibit B
– Form of General Assignment, Xxxx of Sale and Assumption of Liabilities
Agreement
Exhibit C
– Form of Purchase Money Note
Exhibit D
– Form of Independent Sales Agreement
Exhibit E
– Product Warranties
Schedule
2(b)(i) – Description of Software
Schedule
2(b)(viii) – Assigned Contracts
Purchase
Price Allocation Schedule
Disclosure
Schedule
ii
This Asset Purchase Agreement (together
with all Schedules and Exhibits hereto, this “Agreement”), dated as
of the 25th day of
February, 2008, by and among Xxxxxx.xxx, Inc., a Nevada corporation (the “Purchaser”), ORG
Professional, LLC, a California limited liability company (the “Seller”), Xxxxxx
Xxxxxxx, an individual and one of the two principals of Seller (“Borsari”), and Xxxxxx
Xxxxxxxx, an individual and the other of the two principals of Seller (“Kolinger”)(Borsari
and Kolinger are referred to jointly hereinafter as the “Seller Principals”,
Purchaser and Seller are referred to hereinafter individually as a “Primary Party” or
jointly as the “Primary Parties”, and
Purchaser, Seller, Borsari and Kolinger are referred to hereinafter individually
as a “Party” or
collectively as the “Parties”)
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1.
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Definitions. As
used throughout this Agreement, the following terms shall have the
correspondingly ascribed meanings:
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“Accounts Receivable”
has the meaning set forth in Section 2(b)(vii) of
this Agreement.
“Acquired Assets” has
the meaning set forth in Section 2(b) of this
Agreement.
“Agreement” has the
meaning set forth in the preamble of this Agreement.
“Assigned Contracts”
has the meaning set forth in Section 2(b)(viii) of
this Agreement.
“Assumed Liabilities”
has the meaning set forth in Section 2(c)(i) of
this Agreement.
“Basis” means any past
or present fact, situation, circumstance, status, condition, activity, practice,
plan, occurrence, event, incident, action, failure to act, or transaction that
forms or should form the basis for any specified consequence.
“Borsari” has the
meaning set forth in the preamble of this Agreement.
“Borsari Certificate”
has the meaning set forth in Section 2(e)(iii) of
this Agreement.
“Business Line” means
the business of Seller related to developing and licensing business and
administrative forms software titles under the name FormTool, including FormTool
Professional, FormTool Deluxe, FormTool Standard, FormTool Filler and FormTool
Reader.
“Cash Consideration”
has the meaning set forth in Section 2(e)(i) of this Agreement.
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“Closing” has the
meaning set forth in Section 2(f) of this
Agreement.
“Closing Date” has the
meaning set forth in Section 2(f) of this
Agreement.
“Code” means the
Internal Revenue Code of 1986, as amended.
“Disclosure Schedule”
has the meaning set forth in Section 3 of this
Agreement.
“Distribution
Agreement” has the meaning set forth in Section 2(d)(i) of
this Agreement.
“Governmental
Authority” means any federal, state, local, municipal, foreign, or other
government, or any governmental or quasi-governmental authority of any nature
(including any governmental agency, branch, department, official, or entity and
any court or other tribunal).
“Indemnified Party”
has the meaning set forth in Section 8(c) of this
Agreement.
“Indemnity Obligor”
has the meaning set forth in Section 8(c) of this
Agreement.
“Independent Sales
Agreement” has the meaning set forth in Section 7(a) of this
Agreement.
“Inventories” has the
meaning set forth in Section 2(b)(iii) of
this Agreement.
“Knowledge” means
actual knowledge after reasonable investigation.
“Kolinger” has the
meaning set forth in the preamble of this Agreement.
“Kolinger Certificate”
has the meaning set forth in Section 2(e)(iii) of
this Agreement.
“Liability/Liabilities”
means any direct or indirect, primary or secondary, liability, indebtedness,
obligation, penalty, cost or expense (including costs of investigation,
collection and defense), claim, deficiency, guaranty or endorsement of or by any
Person of any type, whether known or unknown, accrued or unaccrued, absolute or
contingent, liquidated or unliquidated, matured or unmatured, or otherwise, and
whether due or to become due.
“Lien” means any lien,
mortgage, pledge, security interest, option, right of first refusal, charge,
claim or encumbrance or other restrictions of any kind or nature, except for (a)
liens for Taxes not yet due and payable and (b) liens for assessments and other
governmental charges or of landlords, carriers, warehouseman, mechanics and
material men incurred in the Ordinary Course of Business, in each case for sums
not yet due and payable or due but not delinquent.
“Loss/Losses” has the
meaning set forth in Section 8(a) of this
Agreement.
“Material Adverse
Effect” means, with respect to any Person, any state of facts,
development, event, circumstance, condition, occurrence or effect that,
individually or taken collectively with all other preceding facts, developments,
events, circumstances, conditions, occurrences or effects (a) is materially
adverse to the condition (financial or otherwise), business, operations or
results of such Person, or (b) impairs the ability of such Person to perform its
obligations under this Agreement.
2
“Non-Compete
Period” has the meaning set forth in Section 6(a)(ii) of
this Agreement.
“Online Properties”
has the meaning set forth in Section 2(b)(ii) of
this Agreement.
“Ordinary Course of
Business” means the ordinary course of business consistent with past
custom and practice (including with respect to quantity and
frequency).
“Party” has the
meaning set forth in the preamble of this Agreement.
“Person” means a
natural person or any legal, commercial or Governmental Authority, including any
corporation, general partnership, joint venture, limited partnership, limited
liability company, trust, business association, group acting in concert, or any
person acting in a representative capacity.
“Primary Party” has the meaning
set forth in the preamble of this Agreement.
“Proprietary Rights”
has the meaning set forth in Section 2(b)(iv) of
this Agreement.
“Purchase Money Note”
has the meaning set forth in Section 2(e)(ii) of
this Agreement.
“Purchase Price” has
the meaning set forth in Section 2(e) of this
Agreement.
“Purchaser” has the
meaning set forth in the preamble of this Agreement.
“Purchaser Common
Stock” has the meaning set forth in Section 2(e)(iii) of this
Agreement.
“Retained Liabilities”
has the meaning set forth in Section 2(c)(ii) of
this Agreement.
“Seller” has the
meaning set forth in the preamble of this Agreement.
“Seller Principals”
has the meaning set forth in the preamble of this Agreement.
“Software” has the
meaning set forth in Section 2(b)(i) of
this Agreement.
“Taxes” means any
federal, state, county, local, foreign or other tax, charge, imposition or other
levy (including interest or penalties thereon) including income taxes, estimated
taxes, excise taxes, sales taxes, use taxes, gross receipts taxes, franchise
taxes, taxes on earnings and profits, employment and payroll related taxes,
property taxes, real property transfer taxes, Federal Insurance Acquisitions Act
taxes, any taxes or fees related to unclaimed property, taxes on value added and
import duties, whether or not measured in whole or in part by net income,
imposed by the United States or any political subdivision thereof or by any
jurisdiction other than the United States or any political subdivision
thereof.
“Third Party Intellectual
Property Rights” has the meaning set forth in Section 3(j) of this
Agreement.
3
“Transaction
Documents” means each of this Agreement, the Assignment of Intellectual
Property, the General Assignment, Xxxx of Sale and Assumption of Liabilities
Agreement, the Purchase Money Note, the Independent Sales Agreement, and each
other document, instrument, and certificate delivered in connection
therewith.
2. Basic
Transaction.
(a) Purchase and Sale of
Assets. On and subject to the terms and conditions of this Agreement, at
the Closing, Purchaser agrees to purchase from Seller, and Seller agrees to
sell, transfer, convey, and deliver to Purchaser, all of the Acquired Assets for
the consideration specified below in this Section
2.
(b) Acquired Assets. The
“Acquired
Assets” shall consist of the following assets, properties and contractual
rights of Seller:
(i) Software. All
of Seller’s copyright rights in and to the computer software and programs listed
in Schedule
2(b)(i) attached hereto (including object and source code, in machine
readable and listing form), and all documentation (including internal
documentation, documentation made available to customers, and training
materials), flowcharts, source code notes, software tools, compilers, test
routines and information related thereto, in whatever form, and all revisions,
modifications, upgrades, updates, enhancements, release levels and versions of
the foregoing (collectively, the “Software”), including
all rights to produce, create, market and sell derivative works and
modifications of the Software.
(ii) Online
Properties. The Internet websites maintained by Seller for the
Business Line, the homepage for which is located at xxx.xxxxxxxx.xxx, and
all content, design concepts, code (php, html, css, javascript and sql), text,
graphics, images, data, video, audio (including music used in time relation with
text, images, or video), URLs, navigational elements, links, pointers,
technology and software related thereto, including any modifications, upgrades,
updates, enhancements and related information or documentation (collectively,
the “Online
Properties”).
(iii) Inventories. All
inventories related to the Business Line as of the Closing Date, including all
expendables and consumables and all advertising material, marketing material,
copy, camera-ready art, trade show booth set-ups, displays and other materials
and supplies to be used or consumed in connection with the operation of the
Business Line (collectively, the “Inventories”).
(iv) Proprietary
Rights. All patents, patent applications, copyrights, trade
secrets, ideas, know-how, domain names, metatags, trademarks, service marks,
trade names, and other proprietary rights based, in whole or in part, or
included in, covering or related to the Business Line or any portion thereof
(collectively, the “Proprietary Rights”),
including all of Seller’s copyright rights and other Proprietary Rights in and
to the Software and the Online Properties.
(v) Trade
Names. The name “FormTool” and all variations or derivatives
thereof, including all trademarks, service marks, trade names or logos, together
with any goodwill associated therewith.
(vi) Records. All
designs, drawings, procedures (including design, manufacturing, test and
maintenance procedures), records, specifications, technical data, inventory
records, customer and supplier lists and records (including all prospective
customer and leads lists), pricing and cost information, and business and
marketing plans and proposals, in whatever form, related to, useful, utilizable
or necessary in connection with the operation of the Business Line.
4
(vii) Accounts
Receivable. All billed and unbilled notes receivable, accounts
receivable and other receivables or rights to payments due to Seller in
connection with the Business Line existing in good faith as of the Closing Date
(collectively, the “Accounts
Receivable”), including those Accounts Receivable set forth on Schedule
3(q).
(viii) Assigned
Contracts. Subject to Section 2(d) hereof, all of the rights
of Seller arising after the Closing Date under the distribution agreements,
license agreements, and other agreements set forth on Schedule 2(b)(viii)
hereto (collectively, the “Assigned
Contracts”).
(ix) Other. All
other assets of Seller exclusively used in or related to the Business
Line.
(c) Liabilities.
(i) Assumed
Liabilities. Purchaser shall assume and pay or perform when
due all obligations of Seller arising after the Closing Date under the Assigned
Contracts (collectively, the “Assumed
Liabilities”), which obligations arise in accordance with the terms of
such Assigned Contracts after the Closing Date, except to the extent any such
obligations relate to a default thereunder by Seller, or an event which with
notice or lapse of time or both would constitute a default thereunder by Seller,
occurring on or prior to the Closing Date.
(ii) Retained
Liabilities. Except for the Assumed Liabilities, Purchaser
shall not assume and Seller shall retain all liabilities or obligations directly
or indirectly arising out of or related to the Acquired Assets or the operation
of the Business Line on or prior to the Closing Date, whether such liabilities
or obligations are known or unknown, disclosed or undisclosed, matured or
unmatured, accrued, absolute or contingent (collectively, the “Retained
Liabilities”), including (A) liabilities and obligations for Taxes of any
kind, including Taxes related to or arising solely from the transfers
contemplated hereby (which transfer or sales taxes shall be the sole
responsibility of Seller); (B) liabilities and obligations for damage or injury
to person or property; (C) liabilities and obligations for or otherwise arising
out of sales of the Software or services related thereto or grants of licenses
by Seller on or prior to the Closing Date; and (D) liabilities and obligations
for payables incurred or otherwise related to the Acquired Assets or the
operation of the Business Line on or prior to the Closing
Date. Without limiting the foregoing, Purchaser shall not assume or
become liable for any obligations or liabilities of Seller not specifically
described in Section
2(c)(i) above and specifically included in the Assumed Liabilities.
Notwithstanding anything herein to the contrary, Seller shall pay or perform all
Retained Liabilities no later than when they become due and payable or are to be
performed.
(d) Assigned
Contracts.
(i) The
Primary Parties acknowledge that the Software is currently being distributed by
Seller pursuant to the terms of a certain distribution agreement between Seller
and a certain third party (the “Distribution
Agreement”), and that the Primary parties will effect an assignment of
such Distribution Agreement in accordance with its terms.
(ii) Notwithstanding
anything herein to the contrary, the transfer of the Assigned Contracts shall be
by assignment only, and nothing in this Agreement shall be construed as an
attempt to agree to assign any rights thereunder or under any other Acquired
Asset that by law or agreement is not assignable without the consent of the
other party or parties thereto or of any Governmental Authority, as the case may
be, unless such consent shall be given. If and to the extent the assignment of
any Assigned Contract requires the consent of another Person, then: (A) such
Assigned Contract shall not be deemed assigned and shall constitute an assumed
liability of Purchaser until such consent is obtained; (B) the Primary Parties
shall use commercially reasonable efforts and shall cooperate with each other in
seeking such consent or entering into reasonable arrangements, designed to
provide Purchaser the benefits thereunder; and (C) Purchaser shall be obligated
to perform and discharge the obligations of Seller arising after the Closing
Date under any such Assigned Contract only after such consent is
obtained.
5
(e) Purchase
Price. In consideration of the sale, transfer, conveyance,
assignment and delivery of the Acquired Assets, and in reliance upon the
representations and warranties made herein by Seller, Purchaser shall pay to
Seller the sum of two hundred and forty thousand and 00/100 dollars
($240,000.00) (the “Purchase
Price”). The Purchase Price shall be payable by Purchaser to
Seller at Closing as follows:
(i) One
hundred thousand and 00/100 dollars ($100,000.00) in the form of cash by wire
transfer or delivery of other immediately available funds (the “Cash
Consideration”);
(ii) One
hundred thousand and 00/100 dollars ($100,000.00) in the form of a twenty-four
(24) month unsecured self-amortizing promissory note which shall be inclusive of
interest calculated at the rate of fifteen (15%) percent per annum and be
payable monthly in advance, such note to be substantially in the form attached
hereto as Exhibit C (the “Purchase Money
Note”); and
(iii) Forty
thousand and 00/100 dollars ($40,000.00) in the form of one million (1,000,000)
restricted shares of the common stock of Purchaser, par value $0.001 per share
(the “Purchaser Common
Stock”) issued in, and registered on the books of Purchaser’s transfer
agent in, the name of Seller Principals, as designees, in the following share
amounts:
Borsari
…………… 475,000
(the “Borsari
Certificate”)
Kolinger
…………. 525,000 (the
“Kolinger
Certificate”)
(f) The Closing. The closing of
the transactions contemplated by this Agreement (the “Closing”) shall take
place simultaneously with the execution and delivery of this Agreement at
the offices of Seller and Purchaser with deliveries by fax or wire
transfer. The hour and date of the Closing are referred to herein as
the “Closing
Date”. The parties agree and intend that the Closing shall be
effective as of 11:59 p.m. C.S.T. on the Closing Date.
(g) Deliveries at the
Closing. At or before the Closing:
(i) Seller
shall deliver to Purchaser the following:
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§
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A
duly executed original of the Assignment of Intellectual
Property;
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§
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A
duly executed original of the General Assignment, Xxxx of Sale and
Assumption of Liabilities
Agreement;
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§
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A
duly executed original of the Independent Sales Agreement;
and
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§
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Such
other certificates, instruments, and documents as may be reasonably agreed
to by the Primary Parties in order to confer upon Purchaser the benefits
of this Agreement.
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6
(ii) Purchaser
shall deliver to Seller the following:
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§
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The
Cash Consideration;
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§
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The
duly executed original of the Purchase Money
Note;
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§
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A
duly executed original of the General Assignment, Xxxx of Sale and
Assumption of Liabilities
Agreement;
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and
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§
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A
duly executed original of the Independent Sales
Agreement.
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(iii) Purchaser
shall deliver to Borsari the Borsari Certificate.
(iv) Purchaser
shall deliver to Kolinger the Kolinger Certificate.
3. Representations and
Warranties of the Seller. Seller represents and warrants to
Purchaser that the statements contained in this Section 3 are correct
and complete as of the Closing Date, except as specifically set forth in the
disclosure schedules accompanying this Agreement and initialed by the Primary
Parties (each a “Schedule” and
collectively, the “Disclosure
Schedule”). The Disclosure Schedule is arranged in pages
corresponding to the lettered and numbered paragraphs contained in this
Agreement.
(a) Organization of
Seller. Seller is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of California
and has full power and authority to carry on its current business and to own,
use and sell its assets and properties, including the Acquired
Assets. Seller is duly qualified to do business and is in good
standing under the laws of each state or other jurisdiction in which the conduct
of the Business Line requires such qualification, except where the failure to be
so qualified is not reasonably anticipated to have a Material Adverse
Effect.
(b) Authorization of
Transaction. Seller has full power and authority to execute
and deliver this Agreement and to perform its obligations hereunder. Without
limiting the generality of the foregoing, the managing members or other duly
governing body of Seller and, to the extent required by applicable law or
Seller’s limited liability company operating agreement, Seller’s members have
duly authorized the execution, delivery, and performance of this Agreement by
Seller. This Agreement constitutes the valid and legally binding obligation of
Seller, enforceable in accordance with its terms and conditions.
(c) Noncontravention. Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any Governmental Authority to which Seller is subject or any
provision of the charter or bylaws of Seller or (ii) except as set forth on
Schedule 3(c),
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 or consent under any agreement, contract,
lease, license, instrument, or other arrangement to which Seller is a party or
by which it is bound or to which any of its assets is subject (or result in the
imposition of any Lien upon any of its assets). Except as set forth
on Schedule
3(c), Seller does not need to give any notice to, make any filing with,
or obtain any authorization, consent, or approval of any Governmental Authority
in order for the Parties to consummate the transactions contemplated by this
Agreement.
7
(d) 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 Purchaser could become liable or
obligated.
(e) Title to Acquired
Assets. Except as set forth on Schedule 3(e), Seller
has good and valid title to all of the Acquired Assets; owns the Acquired Assets
free and clear of any and all Liens; and is conveying good and valid title to
the Acquired Assets to Purchaser free and clear of any and all Liens. No portion
of the Acquired Assets is subject to any outstanding injunction, judgment,
order, decree, ruling or charge, and no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand is pending or, to the
Knowledge of Seller, is threatened which challenges the legality, validity,
enforceability, use, or ownership of any portion of the Acquired
Assets. Except as set forth on Schedule 3(e), all of
the tangible Acquired Assets being acquired by Purchaser on the Closing Date are
in the possession and control of Seller. Seller is the sole and
exclusive owner of the Acquired Assets, and has the sole and exclusive right to
use, license, sublicense, assign or sell the Acquired Assets without liability
to, or consent of, any Person. Except pursuant to this Agreement,
Seller is not a party to any contract or obligation whereby an absolute or
contingent right to purchase, obtain or acquire any rights in any of the
Acquired Assets has been granted to any Person.
(f) Software. Except
as set forth on Schedule 3(f), there
are no known, material errors, malfunctions or defects in the
Software. Seller is not aware of any unauthorized use of the Software
or any portion thereof by any Person. All modifications, improvements
and other derivative works to or from the Software created by or on behalf of
Seller have been created solely by employees or contractors of Seller who are
under an obligation to assign all right, title and interest therein to
Seller. Except for licenses granted in the Ordinary Course of
Business to purchasers or licensees of the Software, no rights or licenses,
express or implied, have been granted to any Person under, in or to the Software
or any portion thereof.
(g) Online
Properties. There are no known, material errors, malfunctions
or defects in the Online Properties. Seller is not aware of any unauthorized use
of the Online Properties or any portion thereof by any Person. All
modifications, improvements and other derivative works to or from the Online
Properties created by or on behalf of Seller have been created solely by
employees of Seller who are under an obligation to assign all right, title and
interest therein to Seller. Except for licenses granted in the
Ordinary Course of Business to end users of the Online Properties, no rights or
licenses, express or implied, have been granted to any Person under, in or to
the Online Properties or any portion thereof.
(h) Inventories. Schedule 3(h)
contains a complete and correct list of all Inventories as of the Closing Date.
The Inventories consist of materials and supplies, manufactured and purchased
parts, goods in process, and finished goods, all of which are of a quality and
quantity usable or salable in the Ordinary Course of Business of Seller, are
currently used by Seller in the Ordinary Course of Business, and are
merchantable and fit for the purpose for which such items were procured or
manufactured.
(i) Proprietary
Rights. Schedule 3(i)
contains a complete and correct list of all trade names, domain names,
trademarks, service marks, service names, logos, brand names, registered
copyrights and patents, and to the extent applicable any registrations and
applications therefor, used by Seller in connection with or otherwise included
in, covering or related to the Business Line. Seller has delivered to
Purchaser complete and correct copies of all such trademarks, service marks,
patents, and related registrations and applications and has made available to
Purchaser complete and correct copies of all other written documentation
evidencing ownership and prosecution (if applicable) of each such item. The
Proprietary Rights are in full force and effect and there are no Liens,
proceedings or causes of action that in any way affect the validity or
enforceability of such Proprietary Rights. Except for licenses granted in the
Ordinary Course of Business to purchasers, licensees or end users of the
Software and Online Properties, no rights or licenses, express or implied, have
been granted to any Person under, in or to the Proprietary Rights or any portion
thereof.
8
(j) Non-Infringement. The
Acquired Assets, in whole or in part, do not violate or infringe any patents,
copyrights, trademarks, service marks, trade names, trade dress, rights of
privacy or publicity, moral rights, rights of attribution or integrity or any
other intellectual property or proprietary rights of any Person (collectively,
“Third Party
Intellectual Property Rights”). Seller has not interfered with, infringed
upon, misappropriated, or otherwise come into conflict with any Third Party
Intellectual Property Rights, and none of Seller or its officers, directors,
shareholders or employees has ever received any charge, complaint, claim,
demand, or notice alleging any such interference, infringement,
misappropriation, or violation (including any claim that Seller must license or
refrain from using any Third Party Intellectual Property Rights). To
the Knowledge of Seller, no third party has interfered with, infringed upon,
misappropriated, or otherwise come into conflict with the Acquired Assets or any
portion thereof.
(k) Legal
Compliance. Except as would not, individually or in the
aggregate, have a Material Adverse Effect on Seller, Seller has complied with
all applicable laws (including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings, and charges thereunder) of Governmental
Authorities, and no action, suit, proceeding, hearing, investigation, charge,
complaint, claim, demand, or notice has been filed or commenced against Seller
alleging any failure so to comply.
(l) Contracts. Schedule 3(l)
contains a complete and correct list of all written or oral contracts,
agreements or commitments that in any way relate to the Acquired
Assets. Seller has delivered to Purchaser a correct and complete copy
of each written agreement listed in Schedule 3(l),
together with a written summary setting forth the terms and conditions of each
oral agreement referred to in Schedule
3(l). With respect to each such agreement: (i) the agreement
is legal, valid, binding, enforceable, and in full force and effect; (ii) the
agreement will continue to be legal, valid, binding, enforceable, and in full
force and effect on identical terms following the consummation of the
transactions contemplated hereby; (iii) no party is in breach or default, and no
event has occurred which with notice or lapse of time would constitute a breach
or default, or permit termination, modification, or acceleration, under the
agreement; and (iv) no party has repudiated any provision of the
agreement.
(m) Litigation. Schedule 3(m) sets
forth each instance in which Seller (i) is subject to any outstanding
injunction, judgment, order, decree, ruling, or charge or (ii) is a party, or to
the Knowledge of Seller is threatened to be made a party, to any action, suit,
proceeding, hearing, or investigation of, in, or before any court or
quasi-judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator. None of the actions, suits, proceedings,
hearings, and investigations set forth in Schedule 3(m) could
result in any Material Adverse Effect on Seller or any of the Acquired
Assets.
(n) Product
Warranty. Each product manufactured, sold, licensed, leased,
or delivered by Seller has been in conformity with all applicable contractual
commitments and all express and implied warranties, and Seller has no Liability
(and there is no Basis for any present or future action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand against it giving
rise to any Liability) for replacement or repair thereof or other damages in
connection therewith. No product manufactured, sold, licensed, leased, or
delivered by Seller is subject to any guaranty, warranty, or other indemnity
beyond the applicable standard terms and conditions of sale or
license. Exhibit E includes
correct and complete copies of the standard terms and conditions of sale,
license, lease, maintenance and support agreements relating to the Software or
the Online Properties (containing applicable guaranty, warranty, and indemnity
provisions). The Software and the Online Properties have been
licensed for use by third parties only in accordance with such standard terms
and conditions.
9
(o) Product
Liability. Seller has no Liability (and there is no Basis for
any present or future action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand against it giving rise to any Liability) arising out
of any injury to individuals or property as a result of the ownership,
possession, or use of the Software or the Online Properties.
(p) Customer
Base. There are at least forty thousand (40,000) entities and
other customers that, in the aggregate, are current or prior version FormTool
users. Schedule 3(p)
contains a complete and accurate list of all such FormTool users as of the
Closing Date.
(q) Accounts
Receivable. All Accounts Receivable represent valid
obligations arising from sales actually made or services actually performed by
Seller in the Ordinary Course of Business. Such Accounts Receivable
are or will be as of the Closing Date current and collectible consistent with
past practice. There is no contest, claim, defense or right of
setoff, other than returns in the Ordinary Course of Business of Seller,
relating to the amount or validity of any Accounts Receivable. Schedule 3(q)
contains a complete and accurate list of all Accounts Receivable as of the
Closing Date, which list sets forth the name and address of each customer and
the amount and aging of each Account Receivable.
(r) Investment in Purchaser
Common Stock. With an understanding that the Purchaser is
relying upon the accuracy and completeness of the representations contained
herein in complying with its obligations under applicable federal and state
securities laws, the Seller hereby acknowledges and represents as
follows:
(i) Seller
Principals, in their capacity as management of Seller, (i) have reviewed certain
of the Purchaser’s most recent public filings, including its annual report on
Form 10-KSB for the year ended December 31, 2006 and all subsequent quarterly
and current reports on Form 10-QSB and 8-K respectively, and understand the
contents thereof, (ii) have received copies of all documents and any other
information requested from the Purchaser and have had an opportunity to ask
questions of and receive answers from the management of the Purchaser regarding
the Purchaser and to obtain any additional information desired or has elected to
waive such opportunity, (iii) confirm that they are fully informed regarding the
current financial condition of the Purchaser, the administration of its business
affairs and its prospects for the future, and that the Purchaser makes no
assurance whatsoever concerning the present and prospective value of the
Purchaser Common Stock.
(ii) Seller
Principals, in their capacity as management of Seller, realize that an
investment in the Purchaser Common Stock is highly speculative and involves a
high degree of risk.
(iii) Seller
Principals, in their capacity as management of Seller, have such knowledge and
experience in financial and business matters that he is capable of evaluating
the merits and risks of an investment in the Purchaser Common
Stock.
(iv) Although
the certificates reflecting the Purchaser Common Stock are to be issued in the
names of Borsari and Kolinger, individually, as designees of Seller, the
Purchaser Common Stock is being purchased by the Seller for investment
purposes and not as nominee for, or for the beneficial interest of, or with the
intention to transfer or distribute to, any other Person.
10
(s) Disclosure. The
representations and warranties contained in this Section 3 do not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements and information contained in this
Section 3 not
misleading.
4. Representations and
Warranties of the Seller Principals. Seller Principals,
severally but not jointly, represent and warrant to Purchaser that they
understand and acknowledge that (a) the Purchaser Common Stock has not been
registered under the Securities Act of 1933, as amended, or any applicable state
securities laws, and therefore may not be sold, transferred, assigned or
otherwise disposed of unless such disposition is subsequently registered under
such laws or exemptions from such registrations are available, and (b) a legend
in the following or similar form will be placed on the certificate(s) evidencing
the shares of Purchaser Common Stock referencing such restrictions on
transferability:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR ANY OTHER SECURITIES
LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF, OR OFFERED FOR TRANSFER, SALE OR OTHER DISPOSITION IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE
ACT, AND ANY OTHER APPLICABLE SECURITIES LAWS, OR THE AVAILABILITY OF AN
EXEMPTION FROM REGISTRATION UNDER THE ACT AND ANY OTHER APPLICABLE SECURITIES
LAWS.
5. Representations and
Warranties of the Purchaser. Purchaser represents and warrants
to Seller that the statements contained in this Section 5 are correct
and complete as of the Closing Date.
(a) Organization of
Purchaser. Purchaser is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Nevada and has full power
and authority to carry on its current business and to own, use and sell its
assets and properties.
(b) Authorization of
Transaction. Purchaser has full power and authority (including
full corporate power and authority) to execute and deliver this Agreement and to
perform its obligations hereunder. Without limiting the generality of the
foregoing, the Board of Directors of Purchaser has duly authorized the
execution, delivery, and performance of this Agreement by Purchaser. This
Agreement constitutes the valid and legally binding obligation of Purchaser,
enforceable in accordance with its terms and conditions.
(c) Noncontravention.
Neither the execution and the delivery of this Agreement, nor the consummation
of the transactions contemplated hereby, will (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any Governmental Authority to which Purchaser is subject
or any provision of its charter or bylaws or (ii) 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 Purchaser is a party or by which it is bound or to which
any of its assets is subject. Purchaser does not need to give any notice to,
make any filing with, or obtain any authorization, consent, or approval of any
Governmental Authority in order for the Primary Parties to consummate the
transactions contemplated by this Agreement.
(d) Purchaser Common
Stock. Upon issuance, the Purchaser Common Shares shall be
fully paid and non-assessable.
11
(e) Brokers’
Fees. Purchaser 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.
6. Post-Closing
Covenants.
(a) Restrictive
Covenants.
(i) Except
as provided in the Independent Sales Agreement, or as may be necessary to
fulfill its obligations thereunder, from and after the Closing, Seller shall cease
utilizing the name “FormTool”, or any variations or derivatives thereof, in
connection with any of its continuing business operations or
initiatives.
(ii) Each
of Seller and Seller Principals agree that, for a period of five (5) years
following the date hereof (the “Non-Compete Period”),
they shall not directly or indirectly, either individually or with others,
engage or have any interest, as an owner, employee, representative, agent,
consultant or otherwise, in any business which is similar to the Business
Line. These covenants shall be deemed separate covenants for each and
every state, country and any other governmental entity covered by the
non-compete obligation and in the event the covenant for one or more such
jurisdictions is determined to be unenforceable the remaining covenants shall
continue to be effective.
(iii) Each
of Seller and Seller Principals agree that, during the Non-Compete Period, they
shall not solicit nor employ any Person who is employed by the Purchaser during
the Non-Compete Period.
(iv) Each
of Seller and Seller Principals agree that, during the Non-Compete Period, they
shall not solicit the Purchaser’s customers on their own behalf or on behalf of
any other business or Person in competition with the Purchaser.
(b) Sale, Transfer, Assignment
of Purchaser Common Stock. Seller Principals agree to refrain
from selling, transferring, assigning, conveying or otherwise disposing of any
of the Purchaser Common Stock unless such disposition is registered under the
Securities Act of 1933, as amended, or any applicable state securities laws or
exemptions from such registrations are available.
(c) Purchase Price Allocation
Schedule. For purposes of any federal or state tax reporting
associated with the transactions contemplated by this Agreement, Purchaser and
Seller agree that the Purchase Price shall be allocated among the Acquired
Assets in accordance with the purchase price allocation schedule annexed hereto
and made a part hereof (the “Purchase Price Allocation
Schedule”). Said allocation is intended by Purchaser and Seller to comply
with Section 1060 of the Code and any Treasury Regulations issued thereunder,
and Purchaser and Seller shall file Form 8594 with their respective federal
income tax returns in a manner consistent with said allocation.
(d) Further
Assurances. If, at any time following the Closing Date,
Purchaser shall consider or be advised that any deeds, bills of sale,
assignments or assurances or any other acts or things are necessary, desirable
or proper (i) to vest, perfect or confirm, of record or otherwise, in Purchaser
its right, title and interest in, to or under any of the Acquired Assets, or
(ii) otherwise to carry out the purposes of this Agreement, Seller shall execute
and deliver all such deeds, bills of sale, assignments and assurances and shall
do all such other acts and things as may be necessary, desirable or proper to
vest, perfect or confirm Purchaser’s right, title and interest in, to and under
any of the Acquired Assets and otherwise to carry out the purposes of this
Agreement.
12
7. Other
Agreements. At the Closing, Seller and Purchaser shall enter
into the following additional agreement:
(a) An
agreement pursuant to which Seller shall, for an initial term of five (5) years,
provide certain marketing and sales services to Purchaser on a commission basis,
a form of which agreement is attached hereto as Exhibit D (the “Independent Sales
Agreement”).
8. Indemnification.
(a) Indemnification by
Seller. Up to an amount equal to the Purchase Price, Seller
shall indemnify, defend and hold harmless Purchaser and its officers and
directors from, against, and with respect to any and all losses, damages,
claims, obligations, liabilities, costs and expenses (including, without
limitation, reasonable attorneys’ fees and costs and expenses incurred in
investigating, preparing, defending against or prosecuting any litigation,
claim, proceeding or demand) of any kind or character (each a “Loss” and
collectively, the “Losses”) arising out
of or in connection with any of the following:
(i) Any
material breach of any of the representations or warranties of Seller or Seller
Principals contained in this Agreement;
(ii) Any
material failure by Seller or Seller Principals to perform or observe any
covenant, agreement or condition to be performed or observed by them pursuant to
this Agreement;
(iii) Any
and all Retained Liabilities or other liabilities and obligations of Seller,
except for the Assumed Liabilities; or
(iv) Seller’s
ownership and operation of the Acquired Assets and the Business Line on or prior
to the Closing Date, including any and all claims for products, service or
professional liability against Seller arising out of sales of the Software or
services related thereto or grants of licenses by Seller on or prior to the
Closing Date.
(b) Indemnification by Seller
Principals. Seller Principals shall indemnify, defend and hold
harmless Purchaser and its officers and directors from, against, and with
respect to any and all Losses arising out of or in connection with any material
failure by Seller Principals to perform or observe any covenant, agreement or
condition to be performed or observed by them pursuant to this
Agreement.
(c) Indemnification by
Purchaser. Up to an amount equal to the Purchase Price,
Purchaser shall indemnify, defend and hold harmless Seller and its officers and
directors from, against and with respect to any Losses arising out of or in
connection with any of the following:
(i) Any
material breach of any of the representations and warranties of Purchaser
contained in this Agreement;
(ii) Any
material failure by Purchaser to perform or observe, any covenant, agreement or
condition to be performed or observed by it pursuant to this
Agreement;
(iii) All
obligations and liabilities arising after the Closing Date attributable to the
Assumed Liabilities; or
(iv) Purchaser’s
ownership and operation of the Acquired Assets after the Closing Date, including
any and all claims for products, service or professional liability against
Purchaser arising out of sales of the Software or services related thereto or
grants of licenses by Purchaser after the Closing Date.
13
(d) Notice of
Claim. Any Party seeking to be indemnified hereunder (the
“Indemnified
Party”) shall, within thirty (30) days following discovery of the matters
giving rise to a Loss, notify the Party from whom indemnity is sought (the
“Indemnity
Obligor”) in writing of any claim for recovery, specifying in reasonable
detail the nature of the Loss and the amount of the liability estimated to arise
therefrom; provided,
however, that no single claim shall be made hereunder for an amount less
than ten thousand and 00/100ths dollars ($10,000.00). If the Indemnified Party
does not so notify the Indemnity Obligor within said thirty (30) days, such
claim shall be barred, and the Indemnity Obligor shall have no obligation with
respect thereto. The Indemnified Party shall provide to the Indemnity
Obligor as promptly as practicable thereafter all information and documentation
requested by the Indemnity Obligor to verify the claim asserted.
(e) Defense. If
the facts pertaining to a Loss arise out of the claim of any third party, or if
there is any claim against a third party available by virtue of the
circumstances of the Loss, the Indemnity Obligor may, by giving written notice
to the Indemnified Party within thirty (30) days following its receipt of the
notice of such claim, elect to assume the defense or the prosecution thereof,
including the employment of counsel or accountants at its cost and expense;
provided, however, that during the interim the Indemnified Party shall use its
best efforts to take all action (not including settlement) reasonably necessary
to protect against further damage or loss with respect to the
Loss. The Indemnified Party shall have the right to employ counsel
separate from counsel employed by the Indemnity Obligor in any such action and
to participate therein, but the fees and expenses of such counsel shall be at
the Indemnified Party’s own expense. Whether or not the Indemnity
Obligor chooses so to defend or prosecute such claim, all the parties hereto
shall cooperate in the defense or prosecution thereof. In the event of payment
by the Indemnity Obligor to the Indemnified Party in connection with any Loss
arising out of a third party claim, the Indemnity Obligor shall be subrogated to
and shall stand in the place of the Indemnified Party with respect to such
indemnified matter. The Indemnified Party shall cooperate with the
Indemnity Obligor in prosecuting any subrogated claim.
(f) Time for
Claims. All of the representations and warranties of the
Parties contained in this Agreement shall survive the Closing. Except
as otherwise provided herein, action on any claim asserted with respect to the
items enumerated in Section 8(a), Section
8(b), or Section 8(c) must be
commenced within three (3) years after the Closing Date.
(g) Reduction by Insurance
Proceeds. The amount payable by an Indemnity Obligor to an
Indemnified Party with respect to a Loss shall be reduced by the amount of any
insurance proceeds received by the Indemnified Party with respect to the Loss,
and each of the parties hereby agrees to use its best efforts to collect any and
all insurance proceeds to which it may be entitled in respect of any
Loss.
(h) Offset Against Purchase
Money Note. Any amounts that may become payable by Seller to
Purchaser from time to time under this Section 8 shall be subject in whole or in
part to offset against the Purchase Money Note to the extent that such amounts
do not exceed the outstanding obligations remaining thereunder at
such times.
14
9. Miscellaneous.
(a) Press Releases and Public
Announcements. Any Party may
make any public disclosure it believes in good faith is required by applicable
law, in which case the disclosing Party will use its best efforts to advise the
other Parties prior to making the disclosure.
If to Purchaser: Copy to:
Xxxxxx
Xxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxx.xxx,
Inc.
X.X. Xxxxxxxx, PLLC
000 Xxxxx
000xx
Xxxxxx 000
Xxxx 00xx Xxxxxx,
Xxxxx 0000
Xxxxx, XX
00000
Xxx Xxxx, XX 00000
P:
(000)000-0000
P: (000)000-0000
F:
(000)000-0000
F: (000)000-0000
If to Seller:
Xxxxxx
Xxxxxxxx
ORG
Professional,
LLC
00 Xxxxx
Xxxxx Xxx
Xxxxxx,
XX 00000
T: (000)
000-0000
F: (000)
000-0000
If to Borsari:
Xxxxxx
Xxxxxxx
00 Xxxxxx
Xxxxx
Xxxxx
Xxxxxx, XX 00000
T: (000)
000-0000
F: (415)
598-1573fax
If to Kolinger:
Xxxxxx
Xxxxxxxx
00 Xxxxx
Xxxxx Xxx
Xxxxxx,
XX 00000
T: (000)
000-0000
F: (000)
000-0000
15
Any Party
may send any notice, request, demand, claim, or other communication hereunder to
the intended recipient at the address set forth above using any other means
(including personal delivery, expedited courier, messenger service, fax, telex,
ordinary mail, or e-mail), but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any Party may change
the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.
(h) Governing
Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Nebraska without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Nebraska or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Nebraska.
[SIGNATURES
APPEAR ON FOLLWING PAGE]
17
| XXXXXX.XXX, INC. | |||
|
By:
|
/s/ Xxxxxx Xxxxxx | ||
| Name: | Xxxxxx Xxxxxx | ||
| Title: | President & Chief Executive Officer | ||
| ORG PROFESSIONAL, LLC | |||
|
|
By:
|
/s/ Xxxxxx Xxxxxxxx | |
| Name: | Xxxxxx Xxxxxxxx | ||
| Title: | President | ||
|
|
|
/s/ Xxxxxx Xxxxxxx | |
| Xxxxxx Xxxxxxx, personally | |||
|
|
|
/s/ Xxxxxx Xxxxxxxx | |
| Xxxxxx Xxxxxxxx, personally | |||
18