AGREEMENT FOR THE PURCHASE AND SALE OF PERSONAL GOODWILL
Exhibit 10.3
This AGREEMENT FOR THE PURCHASE AND SALE OF PERSONAL GOODWILL (this “Agreement”) is entered
into as of the 15th day of September, 2006 (the “Signing Date”), to be effective as of July 1, 2006
(the “Effective Date”), between Trade Source International, Inc., a Delaware corporation
(“Purchaser”) and Xxxxxx X. Xxxxxx, Xx. (“Seller”).
RECITALS
WHEREAS, Purchaser and Home Impressions, Inc. (“HI”) were parties to that Operating Agreement
of Prime/Home Impressions, LLC (the “LLC”), dated as of January 1, 1998 (the “LLC Agreement”).
Pursuant to the LLC Agreement, Purchaser and HI each owned 50% of the membership interests in the
LLC.
WHEREAS, prior to the date hereof, HI transferred all of its interest in the LLC to MARKETING
IMPRESSIONS, INC., a Georgia corporation (“MI”);
WHEREAS, contemporaneously with this Agreement, Purchaser is acquiring all of the outstanding
capital stock in MI pursuant to that certain Stock Purchase Agreement, to be effective as of the
Effective Date, between Purchaser and Xxxxxx X. Xxxxxx (the “Stock Purchase Agreement”),
WHEREAS, following its purchase of all the outstanding capital stock in MI, Purchaser will
directly and/or indirectly control the LLC and the business conducted by MI, including without
limitation the business conducted by the LLC;
WHEREAS, the Seller has independently developed and owns close personal and ongoing business
relationships, in connection with the business conducted by MI, including without limitation the
business conducted by the LLC, through his personal ability, personality, reputation, skill and
integrity, and other information relating thereto (collectively, the “Personal Goodwill”), which
Seller desires to sell to Purchaser as hereinafter provided; and
WHEREAS, Purchaser desires to acquire all of the Personal Goodwill, as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. Assignment of Goodwill. In exchange for the consideration set forth in Section
2.03(f) of the Stock Purchase Agreement, Seller hereby sells, assigns, transfers, conveys and
delivers to Purchaser, all of Seller’s right, title and interest in the Personal Goodwill.
2. Representations and Warranties of Seller. Seller represents and warrants to
Purchaser as follows:
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2.1 Personal Goodwill. All of the Personal Goodwill owned by Seller is free
and clear of all liens, encumbrances, claims, options, security interests, calls and
commitments of any kind, and the sale and assignment of the Personal Goodwill to Purchaser
hereunder will transfer to Purchaser all of Seller’s title thereto, free and clear of all
liens, encumbrances, claims, options, security interests and commitments of any kind.
2.2 Approval and Authorization. Seller has full legal rights, power, capacity
and authority to enter into this Agreement and to sell, assign and transfer all of his
right, title and interest in the Personal Goodwill to Purchaser, and this Agreement is a
legal, valid and binding obligation of Seller, enforceable against Seller in accordance with
its respective terms.
2.3 No Conflicts. The execution and delivery of this Agreement by Seller does
not, and the consummation by Seller of the transactions contemplated hereby does not and
will not, violate or conflict with, or result (with the giving of notice or the lapse of
time or both) in the violation of, or constitute a default under any provision of, or result
in the acceleration or termination of, or entitle any party to accelerate or terminate
(whether after giving of notice or lapse of time or both), any obligation or benefit under,
or result in the creation or imposition of any lien, pledge, security interest or other
encumbrance upon the Personal Goodwill pursuant to any material contract, law, ordinance,
regulation, order, arbitration award, judgment or decree to which Seller is a party, or by
which Seller or his assets (including the Personal Goodwill) are bound and does not and will
not violate or conflict with any other material restriction of any kind or character to
which Seller is subject or by which any of Seller’s assets (including the Personal Goodwill)
may be bound.
3. Representations and Warranties of Purchaser. Purchaser represents and warrants as
follows:
3.1 Existence and Good Standing. Purchaser has been duly organized and validly
exists in good standing as a corporation under the laws of the State of Delaware.
3.2 No Default. The execution of this Agreement by Purchaser and the
performance of its obligations hereunder will not violate or result in a breach of, or
constitute a default under any material agreement to which Purchaser is a party or by which
it or its assets are bound.
3.3 Approval and Authorization. The execution and delivery of this Agreement
and the performance of the transactions contemplated herein have been duly and validly
authorized by all necessary action on the part of Purchaser, and this Agreement is a legal,
valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with
its terms.
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4. Additional Agreements and Covenants: Seller shall cooperate with Purchaser after
the Signing Date in connection with all reasonable actions deemed necessary by Purchaser to vest in
Purchaser title to the Personal Goodwill.
5. Survival. The representations, warranties and covenants of the parties contained
in this Agreement shall survive for the period ending two years after the Effective Date.
6. General.
6.1 Execution. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute but one and the same instrument. Execution and delivery of this Agreement by
facsimile or as an attachment to an electronic mail shall constitute a valid and binding
execution and delivery of this Agreement by such party. Such facsimile copies or electronic
mail attachments shall constitute enforceable original documents.
6.2 Brokers. Each party represents and warrants that it employed no broker or
agent in connection with this transaction and shall indemnify the other against all loss,
cost, damage or expense arising out of claims for fees or commissions of brokers or agents
employed or alleged to have been employed by such indemnifying party.
6.3 Notices. Any notice or communication required or permitted hereunder shall
be sufficiently given if sent by facsimile, or first class mail, postage prepaid to:
If to Purchaser:
|
Copy to: | |
Attn: Xxxxxx Xxxxxxxx
|
Xxxxx X. Xxxxxxx | |
000 Xxxxx Xxxxx Xxxx, Xxxxx 000
|
000 Xxxx Xxxxxx, Xxxxx 0000 | |
Xxxxxxx, XX 00000
|
Xxxx Xxxxx, XX 00000 | |
Facsimile: (000) 000-0000
|
Facsimile: 000-000-0000 | |
If to Seller:
|
Copy to: | |
Xxxxxx X. Xxxxxx, Xx.
|
Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.A. | |
000 Xxxxx Xxxxxx XX
|
Attn: Xxxxxx. X. Xxxxx | |
Xxxxxxx, XX 00000
|
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000 | |
Xxxxxxxxx: 000-000-0000
|
Xxxxxxxxx, XX 00000 | |
| Facsimile: 000-000-0000 |
6.4 Applicable Law. This Agreement will be governed by the laws of the State
of Delaware without regard to conflicts of laws principles.
6.5 Captions. The captions in this Agreement are for convenience only and
shall not be considered a part hereof, or affect the construction or interpretation of any
provisions of this Agreement.
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6.6 Construction. Each party acknowledges that such party and its attorneys
have been given an equal opportunity to negotiate the terms and conditions of this Agreement
and that any rule of construction to the effect that ambiguities are to be resolved against
the drafting party or any similar rule operating against the drafter of an agreement shall
not be applicable to the construction or interpretation of this Agreement.
6.7 Entire Agreement. This Agreement shall constitute the entire agreement and
understanding between Seller and Purchaser and supersedes any prior agreement and
understanding, written or oral, relating to the subject matter of this Agreement. Seller
acknowledges that he has (a) had the opportunity to seek the advice of independent counsel,
including independent tax counsel, regarding the consequences of this Agreement; and (b)
received no representations from Purchaser or its counsel regarding the tax consequences of
this Agreement. This Agreement may be modified or amended only by a written instrument
executed by the parties hereto.
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IN WITNESS WHEREOF, the parties have entered into this Agreement for the Purchase and Sale of
Personal Goodwill as of the day and year first above written.
| SELLER: | ||||||
| /s/ Xxxxxx X. Xxxxxx Xx. | ||||||
| Xxxxxx X. Xxxxxx, Xx., individually | ||||||
| PURCHASER: | ||||||
| TRADE SOURCE INTERNATIONAL, INC., | ||||||
| a Delaware corporation | ||||||
| By: | /s/ Xxxxxx Xxxxxxxx
|
|||||
| Name: Xxxxxx Xxxxxxxx | ||||||
| Title: Chief Financial Officer | ||||||
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