EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
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This ASSET PURCHASE AGREEMENT ("Agreement") is made and entered into as of
the date hereinafter set forth, by and among Onesource Imaging, a California
corporation, ("Onesource"), Xxxxxx X. Xxxxxxx, an individual ("Xxxxxxx"), and
Xxxxxx Xxxxxxx, an individual ("Xxxxxx," and, collectively with Onesource and
Xxxxxxx, "Seller"), on the one hand, and Commerce Planet, Inc., a Utah
corporation ("Buyer") on the other hand.
RECITALS
A. Seller is engaged in the business of graphic design, printing services,
data merge, mailing and finishing (the "Business") in the State of California
with a business location at 000 Xxxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx 00000.
X. Xxxxxxx is the majority shareholder of Onesource. Xxxxxx is the wife of
Xxxxxxx.
C. Buyer desires to purchase from Seller assets related to the Business,
including tangible and intangible personal property, inventory, business name,
goodwill, and other assets of the Business listed in this Agreement.
D. Buyer desires to employ Xxxxxxx upon consummation of the purchase and sale of
the assets of the Seller pursuant to this Agreement.
E. Subject to the terms and conditions contained in this Agreement, Seller
desires to sell to Buyer, and Buyer agrees to purchase from Seller, assets of
Seller related to the Business.
NOW, THEREFORE, in consideration of the mutual covenants, representations, and
warranties contained in this Agreement, the parties agree as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES
1.1. Purchase and Sale of Assets. Seller agrees to sell to Buyer, and Buyer
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agrees to purchase from Seller, at Closing (as defined below), all of Seller's
right, title, and interest in and to the following assets used by Seller in
connection with the operation of the Business (the "Assets"). Buyer shall not
acquire any interest in, the assets of Seller which are not listed on the
attached Schedules to this Agreement.
(a) All tangible personal property, furnishings, fixtures, equipment,
machinery, parts, accessories, inventory, and any other property listed on
Schedule 1 (the "Personal Property");
(b) All contracts, agreements, equipment leases, warranties, and other rights or
agreements, whether written or oral, listed on Schedule 2 (the "Contracts");
(c) All computer and automatic machinery software and programs and all tangible
embodiments thereof and all the user and other documentation with respect to the
same used in the Business, listed on Schedule 3 (the "Software");
(d) All licenses and permits held in connection with the conduct of the Business
that are transferable to Buyer, listed on Schedule 4 ("Licenses and Permits");
(e) All customer mailing lists, customer lists, promotional materials, the
business phone number and the books, files and records of the Business,
excluding account books of original entry and general ledgers; listed on
Schedule 5 ("Customer Lists");
(f) All of Seller's right, title, and interest in and to the trade names, logos,
service marks, trademarks, and licenses, associated with the Business listed on
Schedule 6 (the "Intangible Property");
(g) All of Seller's right, title and interest in the commercial Internet website
with an entry uniform resource locator of xxx.xxxxxxxxx.xxx.
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1.2. Assumption of Liabilities. Buyer hereby assumes and agrees to
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discharge all of Seller's liabilities listed on Schedule 7 (the "Liabilities").
1.3. No Permitted Liens. Seller shall convey title to the Assets to Buyer
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free and clear of all liens, security interests, and encumbrances of any kind or
nature, other than those securing the Liabilities that have been disclosed by
the Seller.
1.4. Risk of Loss. Seller assumes all risk of loss or damage to the Assets prior
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to the Closing. In the event there is any material loss or damage to all or any
portion of the Assets prior to the Closing, Buyer may either terminate this
Agreement pursuant to Article 11, or negotiate with Seller for a proportionate
reduction in the Purchase Price to reflect the loss or damage. For the purposes
of this provision, the term "material loss or damage" shall mean any loss or
damage to the Assets with an aggregate cost of Five hundred Dollars ($500.00).
ARTICLE 2
ASSUMPTION OF CERTAIN LIABILITIES
Except as expressly provided in Schedule 7 of this Agreement, Buyer shall
not assume or become liable for any obligations, commitments, or liabilities of
Seller, whether known or unknown, absolute, contingent, or otherwise, and
whether or not related to the Assets, including, without limitation, any
employment, business, sales, or use tax relating to Seller's operation of the
Business and use and ownership of the Assets prior to the Closing. Seller agrees
to pay, perform and discharge all of the liabilities of the Business which are
not assumed by the Buyer, including all payables of the Business incurred by
Seller at or prior to the Closing.
ARTICLE 3
CONSIDERATION
3.1. Purchase Price. The purchase price to be paid by Buyer to Seller for
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the Assets shall be $54,747.68.
3.2 Value of Liabilities. The total value of the Liabilities assumed by Buyer
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pursuant to this Agreement shall be $54,747.68.
3.3 No Payment. Because the Purchase Price equals the value of the assumed
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Liabilities, Buyer shall not make any payment of funds to Seller.
3.4. Allocation ofPurchase Price. The Purchase Price shall be allocated among
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the Assets as follows:
Assets/Equipment $47,747.68
Intangible Property $ 7,000.00
3.4. Effect of Allocation. The parties agree to abide by the allocation of
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the Purchase Price specified in this Agreement, and agree to report the
transaction as so allocated for income tax purposes.
ARTICLE 4
CLOSING
4.1. Time and Place of Closing. The closing for the purchase and sale of
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the Assets (the "Closing") shall be held at the offices of Price, Xxxxxx & Parma
LLP, 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxxx, Xxxxxxxxxx on June 1,
2006 at 5:00 o'clock pm local time, or at such other time and place as the
parties may mutually agree in writing, and shall be effective as of the Closing
(the "Closing Date"). At Closing, Seller shall transfer and convey title to the
Assets to Buyer as provided in this Agreement.
4.2. Seller's Closing Obligations. At the Closing, Seller shall execute,
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acknowledge, and deliver, as appropriate, each of the following items:
(a) A duly executed xxxx of sale (the "Xxxx of Sale"), in substantially the
form attached as Exhibit A and incorporated by reference, conveying all of
Seller's right, title, and interest in and to the Personal Property to Buyer.
(b) A duly executed assignment of contracts (the "Assignment of Contracts") in
substantially the form attached as Exhibit B and incorporated by reference,
pursuant to which Seller shall assign to Buyer all of its right, title and
interest in and to, and Buyer shall accept and assume all of Seller's
obligations which accrue and arise after the Closing Date in respect of, the
Contracts.
(c) A duly executed Executive Employment Agreement (the "Employment Agreement")
in substantially the form attached as Exhibit C and incorporated by reference,
pursuant to which Xxxxxxx shall become an employee of Buyer or an affiliate
after the Closing.
(d) All other good and sufficient instruments and documents of conveyance and
transfer as shall be necessary and effective to transfer, convey, and assign to
Buyer at the Closing all of Seller's right, title, and interest in and to the
Assets, free and clear of any liens or encumbrances other than those securing
the liabilities as disclosed by Seller and as required by the terms of this
Agreement.
4.3. Buyer's Closing Obligations. At the Closing, Buyer shall execute,
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acknowledge, and deliver, as appropriate, each of the following items:
(a) Any funds as may be necessary to comply with Buyer's obligations
regarding the payment of prorations, costs, and expenses under this Agreement.
(b) Executed counterparts of any documents required to be signed by Buyer
pursuant to this Agreement, including, but not limited to, the Employment
Agreement.
(c) All other instruments and documents necessary to consummate the transactions
contemplated by this Agreement.
4.4. Expenses of Closing. The expenses of Closing shall be paid as follows:
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(a) Buyer shall pay all sales and use taxes arising out of the transfer of
the Assets, if any.
(b) Except as otherwise expressly provided in this Agreement, all other Closing
fees and costs, including, but not limited to, legal fees, accounting fees,
consulting fees, and other incidental expenses in connection with the
transactions contemplated by this Agreement shall be borne by the party that
incurs the expenses.
4.5. Proration of Expenses. Except as otherwise expressly provided in this
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Agreement, all expenses associated with the Assets being conveyed to Buyer,
including, but not limited to, taxes, rent, insurance premiums, and utility
charges, shall be apportioned ratably between the parties as of the Closing Date
on the basis of a 30-day month. This obligation to make apportionments shall
survive the Closing.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLER
5.1. Seller's Representations and Warranties. Seller makes the following
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representations and warranties to Buyer, each of which is true and correct as of
the date of this Agreement, and will be true and correct as of the Closing Date:
(a) Xxxxxxx and Xxxx Xxxxx ("Xxxxx") are the sole owners of Onesource.
Seller is the sole owner of the Assets.
(b) The execution and delivery of this Agreement and the documents contemplated
hereby and the performance by Seller of its obligations hereunder and thereunder
have been duly and validly authorized by all necessary corporate action. Seller
has full legal power and authority to enter into and perform this Agreement, and
this Agreement constitutes the valid and binding obligation of Seller,
enforceable in accordance with its terms.
(c) The execution and delivery of this Agreement does not conflict with,
violate, or constitute a default under the terms, conditions, or provisions of
any agreement or instrument to which Seller is a party, or any law, judgment, or
order of which Seller is aware, and will not result in the creation of any lien,
security interest, or encumbrance on any of the Assets.
(d) There are no actions, suits, proceedings, or claims now pending, or, to the
best of Seller's knowledge, threatened against Seller or the Assets that would
affect Seller's ability to fulfill Seller's obligations under this Agreement or
that would impair the value of the Assets.
(e) Seller will have at Closing good and marketable title to the Assets free and
clear of all liens, charges, and encumbrances other than those securing the
Liabilities, as disclosed by Seller.
(f) Seller has provided Buyer with true and correct copies of all Contracts. To
Seller's knowledge, all of the Contracts are in full force and effect, have been
duly executed by the parties, and neither Seller nor any other party is in
default under any Contract.
(g) Seller has provided Buyer with true and correct copies of all documents
evidencing Seller's rights in the Intangible Property. To Seller's knowledge,
each agreement, instrument, or license with respect to the Intangible Property
is in full force and effect, and neither Seller nor any other party is in
default under any such agreements.
(h) The Personal Property is in good working condition and repair, reasonable
wear and tear excepted, and is adequate and appropriate for the Business as now
conducted. Any items of Inventory are in good condition, and are usable and/or
salable in the ordinary course of the Business as now conducted.
(i) Seller is conducting and has conducted the Business in compliance with all
applicable Federal, state and local laws, rules, regulations, ordinances,
orders, decrees, building codes, safety and fire and health approvals,
certificates of occupancy or other governmental restrictions applicable to the
Business or the Assets.
(j) Xxxx Xxxxx and Xxxxxxx Xxxxxxxxx, both interested parties of the transaction
have signed a document acknowledging and consenting to the terms of the
transaction between Seller and Buyer. These Acknowledgement and Consent
documents will be attached hereto as Exhibit "D".
(k) Seller represents that it has paid all sales and use tax and buyer will be
able to receive a corporation tax clearance certificate from the State Board of
Equalization (with respect to Seller's sales and use tax liabilities).
5.2. Correctness of Representations. No representation or warranty of Seller in
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this Agreement or any other information furnished by Seller pursuant to this
Agreement contains any untrue statement of material fact or fails to state any
fact necessary in order to make the statements not misleading in any material
respect. All statements, representations, and other information provided by
Seller to Buyer shall be true and correct on and as of the Closing Date as
though made on that date.
5.3. Responsibility for Liabilities. Seller will be liable for all
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damages, including, but not limited to, actual, consequential and special
damages resulting from any misrepresentations of the above stated facts.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
6.1. Buyer's Representations and Warranties. Buyer makes the following
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representations and warranties to Seller, each of which is true and correct as
of the date of this Agreement and shall be true and correct as of the Closing
Date:
(a) Buyer has full legal power and authority to enter into and perform
this Agreement, and this Agreement constitutes the valid and binding obligation
of Buyer, enforceable in accordance with its terms.
(b) The execution and delivery of this Agreement does not conflict with,
violate, or constitute a default under the terms, conditions, or provisions of
any agreement or instrument to which Buyer is a party, or any law, judgment, or
order of which Buyer is aware, and will not result in the creation of any lien,
security interest, or encumbrance on any of the Assets.
(c) There is no action, proceeding, or claim pending, or, to Buyer's knowledge,
threatened, against Buyer that would affect Buyer's ability to consummate the
transactions contemplated by this Agreement.
(d) No consent, approval, or authorization of or declaration, filing, or
registration with any governmental or regulatory authority is required in
connection with the execution, delivery, and performance by Buyer of this
Agreement or the consummation of the transactions contemplated by the Agreement.
6.2. Correctness of Representations. No representation or warranty of Buyer
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in this Agreement or any other information furnished by Buyer pursuant to this
Agreement contains any untrue statement of material fact or fails to state any
fact necessary in order to make the statements not misleading in any material
respect. All statements, representations, exhibits, and other information
provided by Buyer to Seller shall be true and correct on and as of the Closing
Date as though made on that date.
6.3. Responsibility for Liabilities. Seller will be liable for all damages,
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including but not limited to, actual, consequential and special damages
resulting from any misrepresentations of the above stated facts.
ARTICLE 7
PRE-CLOSING OBLIGATIONS
7.1. Maintenance of Property Pending Closing. At all times prior to the
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Closing Date, Seller shall continue to maintain the Assets and conduct the
operation of the Business in the same manner as they have been maintained and
operated by Seller prior to the execution of this Agreement.
7.2. Access and Information. Seller shall promptly provide Buyer with all
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information concerning the Business and the Assets that Buyer may reasonably
request, and Buyer and Buyer's accountants and other representatives shall have
access during normal business hours to all of the Assets and to the books and
records of the Business.
7.3. Consents. On or before the Closing Date, Seller, at Seller's expense, shall
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obtain all necessary consents required to assign Seller's interest in any of the
Assets to Buyer as contemplated by this Agreement. In the event Seller is unable
to obtain any such consent on or before the Closing Date, Buyer may terminate
this Agreement as provided in Article 11.
7.4. Discharge of Liens. All liens, claims, charges, security interests,
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pledges, assignments, or encumbrances relating to the Assets, other than those
securing the Liabilities as represented by the Seller, shall be satisfied,
terminated, and discharged by Seller on or prior to the Closing Date and
evidence reasonably satisfactory to Buyer of the satisfaction, termination, and
discharge shall be delivered to Buyer at or prior to the Closing.
7.5. Divestiture of Competing Interests. Seller will divest themselves
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from all competing interests to the items contemplated within this sale. Seller
will no longer be involved in the printing and fulfillment business with the
exception of the employment offer by Buyer.
ARTICLE 8
MUTUAL COVENANTS
8.1. Further Assurances Prior to Closing. Seller and Buyer shall, prior to
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Closing, execute any and all documents and perform any and all acts reasonably
necessary, incidental, or appropriate to effect the transactions contemplated by
this Agreement.
8.2. Notification of Changed Circumstances. At any time prior to the Closing, if
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either party becomes aware of any fact or circumstance that would materially
change a representation or warranty made under this Agreement, the party with
knowledge of those facts shall notify the other in writing as soon as possible
after the discovery of the changed circumstances.
8.3. Broker's Fees. Each party represents and warrants that no broker, finder,
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or any other person or entity has any claim for any brokerage commissions or
fees in connection with any of the transactions contemplated by this Agreement.
Each party shall indemnify the other against any claim or loss suffered as a
result of any claim for brokerage commissions or fees payable, or claimed to be
payable, on the basis of any actions in connection with this Agreement.
8.4. Accounts Receivable; Collection. All accounts receivable of the Business as
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of the Closing Date are being retained by Seller. In the event Buyer shall
receive any amounts due to Seller pursuant to such accounts receivable, Buyer
shall remit such amounts to Seller at the end of each month. In the event Buyer
or Seller shall receive any amounts due to the other under this Agreement after
the Closing Date, Buyer and/or Seller shall remit such amounts to the other
before the end of each month. Nothing in this Agreement shall obligate Buyer to
initiate or prosecute any collection or other action with respect to any
accounts receivable retained by Seller; provided that Buyer shall cooperate with
Seller in any such action initiated by Seller. All future receivables generated
post closing subsequent to the Closing Date shall become the property and asset
of Buyer.
8.5 Accounts Payable. All of Seller's liabilities with the exception of
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those specifically stated herein shall remain the liability of Seller.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
9.1. Buyer's Conditions. The obligation of Buyer to consummate the
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transactions contemplated by this Agreement shall be subject to the
satisfaction, on or before the Closing Date, of each of the following
conditions:
(a) The representations and warranties of Seller set forth in Article 5
shall be true and correct as of the Closing Date.
(b) Seller shall have performed and complied with all of the agreements,
covenants, and conditions required of Seller by this Agreement on or before the
Closing Date.
(c) No action, suit, or proceeding before any court or any governmental body or
authority that would in any way affect the Assets or the ability of the parties
to consummate the transactions contemplated by this Agreement shall have been
instituted or threatened on or before the Closing Date.
(d) The Assets shall be in substantially the same condition on the Closing Date
as they were three (3) months prior to the Closing Date, and there shall be no
loss or damage to the property prior to the Closing. The assets shall all be in
good working order as represented by Seller to Buyer.
(e) The parties shall have obtained all necessary agreements and consents of any
parties required to consummate the transactions contemplated by this Agreement.
Seller shall have obtained the consents of Xxxxx and Xxxxxxx Xxxxxxxxx to all
such transactions. All assets will be transferred with clear title free of any
superior claims or liens on the title except those securing the Liabilities or
as specifically noted in the attached Schedules.
(f) Xxxxxxx shall have executed the Employment Agreement.
(g) One Source Imaging, Inc. shall terminate operations.
9.2. Seller's Conditions. The obligation of Seller to consummate the
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transactions contemplated by this Agreement shall be subject to the
satisfaction, on or before the Closing Date, of each of the following
conditions:
(a) The representations and warranties of Buyer set forth in Article 6
shall be true and correct as of the Closing Date.
(b) Buyer shall have performed and complied with all of the agreements,
covenants, and conditions required of Buyer by this Agreement on or before the
Closing Date.
(c) No action, suit, or proceeding before any court or any governmental body or
authority that would in any way affect the Assets or the ability of the parties
to consummate the transactions contemplated by this Agreement shall have been
instituted or threatened on or before the Closing Date.
(d) The parties shall have obtained all necessary agreements and consents of any
parties required to consummate the transactions contemplated by this Agreement.
9.3 Failure to Satisfy Conditions. Any of a party's conditions
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precedent may be waived in whole or in part by such party in writing at any time
on or before the Closing Date. In the event all conditions precedent have not
been waived by a party or satisfied in full on or before the Closing Date, such
party may elect to terminate this Agreement as provided in Article 11.
ARTICLE 10
POST-CLOSING OBLIGATIONS
10.1. Liability for Work Performed Prior to theClosing. Seller shall be
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responsible for all work done and goods sold prior to the Closing. If, prior to
the Closing there is a claim made by a customer for defective work or relating
to defective work completed prior to the Closing and Seller agrees to the claim,
then Buyer shall perform the corrective work approved by Seller and shall reduce
the payment or part thereof due under the Deferred Payment by Buyer's actual
cost of performing such corrective work.
10.2. Employment Services. Xxxxxxx agrees to provide services to Buyer's
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affiliate as an employee pursuant to the terms of the Employment Agreement
attached hereto as Exhibit C.
10.3 Assignment. This Agreement shall inure to the benefit of and be
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binding upon Buyer, its successors and assigns, and upon Seller and its heirs,
executors, administrators, and legal representatives. Notwithstanding the
foregoing, this Agreement shall not be assignable by Seller without the prior
written consent of Buyer; provided, however, that Buyer may assign all of its
rights and interests under this Agreement to any of its affiliates, so long as
it remains responsible for its obligations hereunder.
ARTICLE 11
TERMINATION
11.1. Termination. This Agreement may be terminated: (a) by the mutual
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consent of Buyer and Seller at any time prior to the Closing; (b) by either
party at any time prior to the Closing as expressly provided in this Agreement,
or if any condition precedent to such party's obligations set forth in Article 9
has not been satisfied in full or previously waived by such party in writing, at
or prior to the Closing; or (c) By either party if the Closing has not occurred
on or before June 30, 2006.
11.2. Effect of Termination. In the event of the termination of this Agreement
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pursuant to the provisions of this Article 11, this Agreement shall become void
and have no effect, without any liability on the part of any of the parties. In
the event of the termination of this Agreement, the Employment Agreement will
become voidable at Buyer's sole discretion and all Buyer obligations associated
with the employment agreement will cease. All ownership interests granted to
Seller through the employment agreement will be returned in the event the
contract is voided.
11.3. Remedies Cumulative. The remedies set forth in this Agreement are
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cumulative and not exclusive of any other legal or equitable remedy otherwise
available to any party.
ARTICLE 12
INDEMNIFICATION
12.1. Seller's Indemnification. In addition to any other agreement on the
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part of Seller to indemnify Buyer set forth in this Agreement, Seller shall
indemnify and hold Buyer harmless from and against any and all loss, cost,
damage, claim, liability, or expense, including reasonable attorney fees and
costs, in any way arising from or related to (a) Seller's ownership or use of
the Assets, or Seller's operation of the Business, prior to the Closing Date,
(b) the failure or falsity of any representation or warranty of Seller contained
in this Agreement, or (c) the failure by Seller to observe or perform any other
covenant or agreement to be observed or performed by Seller under this
Agreement.
12.2. Buyer's Indemnification. In addition to any other agreement on the part of
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Buyer to indemnify Seller set forth in this Agreement, Buyer shall indemnify and
hold Seller harmless from and against any and all loss, cost, damage, claim,
liability, or expense, including reasonable attorney fees and costs, in any way
arising from or related to (a) Buyer's ownership or use of the Assets, or
Buyer's operation of the Business, from and after the Closing Date, (b) the
failure or falsity of any representation or warranty of Buyer contained in this
Agreement, or (c) the failure by Buyer to observe or perform any other covenant
or agreement to be observed or performed by Buyer under this Agreement
including, without limitation, any failure to pay the agreed upon Liabilities.
12.3. Survival of Indemnities. The mutual agreements to indemnify set forth in
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this Article 12 shall survive the Closing.
ARTICLE 13
GENERAL PROVISIONS
13.1. Assignment. The respective rights and obligations of the parties to
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this Agreement may not be assigned by any party without the prior written
consent of the other, which consent may not be unreasonably withheld or delayed.
13.2. Successors and Assigns. The terms and provisions of this Agreement shall
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be binding on and inure to the benefit of the successors and permitted assigns
of the parties.
13.3. Entire Agreement. This Agreement constitutes the entire agreement between
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the parties with respect to the subject matter of this Agreement and supersedes
all prior agreements, oral and written, between the parties hereto with respect
to the subject matter of this Agreement.
13.4. Modification and Waiver. This Agreement may not be amended, modified, or
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supplemented except by written agreement signed by the party against which the
enforcement of the amendment, modification, or supplement is sought. No waiver
of any of the provisions of this Agreement shall be deemed, or shall constitute,
a waiver of any other provision. No waiver shall be binding unless executed in
writing by the party making the waiver.
13.5. Attorney Fees. If any legal action or other proceeding is brought to
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enforce the provisions of this Agreement, the prevailing party shall be entitled
to recover reasonable attorney fees and other costs incurred in the action or
proceeding, in addition to any other relief to which the prevailing party may be
entitled.
13.6. Fees and Expenses. Except as otherwise specifically provided in this
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Agreement, Seller and Buyer shall pay their own fees and expenses in connection
with the negotiation and consummation of the transactions contemplated by this
Agreement.
13.7. Notices. All notices, requests, demands, and other communications required
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by this Agreement shall be in writing and shall be (a) delivered in person or by
courier, (b) mailed by first class registered or certified mail, or (c)
delivered by facsimile transmission, to the addresses set forth above, or to
such other address as a party may designate to the other in writing. If
delivered personally or by courier, the date on which the notice, request,
instruction, or document is delivered shall be the date on which the delivery is
made, and if delivered by facsimile transmission or mail as aforesaid, the date
on which the notice, request, instruction, or document is received shall be the
date of delivery.
13.8. Headings. All section headings contained in this Agreement are for
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convenience of reference only, do not form a part of this Agreement, and shall
not affect in any way the meaning or interpretation of this Agreement.
13.9. Counterparts. This Agreement may be executed in two (2) or more
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counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one counterpart has been signed by each party and
delivered to the other party hereto. The transmission of a facsimile of any
original signed counterpart of this Agreement (or any amendment hereto or any
other document delivered pursuant hereto) by telecopier sent pursuant to Section
13.7 shall be treated for all purposes as the delivery of an original signed
counterpart.
13.10. Time of Essence. Time shall be of the essence with respect to the
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obligations of the parties to this Agreement.
13.11. Governing Law. This Agreement shall be governed by and construed under
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the laws of the State of California,
13.12. Disputes. Except as set forth in Section 10.2 above, any controversy or
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claim arising out of or related to, this Agreement, or the breach thereof,
including any dispute regarding the validity or scope of this Agreement, shall
be settled and decided by one arbitrator pursuant to arbitration conducted in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association ("Rules"), as then in effect, unless the parties hereto mutually
agree otherwise in writing and except any party shall have the right to seek
declaratory relief in a court of competent jurisdiction. Any such arbitration
shall be held and conducted in Santa Barbara, California, within 30 days of the
appointment of the arbitrator, in accordance with the provisions set forth in
the Rules. Moreover, the prevailing party in any arbitration shall be awarded
reasonable counsel fees, expert and non-expert witness costs and expenses and
all other costs and expenses incurred, directly or indirectly, in connection
with said arbitration, unless the arbitrator for good cause determines otherwise
in its order, and all costs and fees of said arbitrator shall be borne
exclusively by the non-prevailing party. The award rendered by the arbitrator
shall be final, and judgment may be entered upon it in accordance with
applicable law in any court having jurisdiction thereof.
13.13. Severability. In the event any provision of this Agreement is deemed to
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be invalid, illegal, or unenforceable, all other provisions of the Agreement
that are not affected by the invalidity, illegality, or unenforceability shall
remain in full force and effect.
13.14 Further Assurances. Sellers and Buyer shall cooperate as either
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party requests from time to time in providing information either party requests,
providing truthful testimony in litigation, assisting in audits and
investigations, recalling past actions taken, and executing further instruments
and documents to further confirm the transactions provided for in this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the 1st day
of June, 2006.
SELLER
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Onesource Imaging, Inc.
By: /s/ Xxxxxx Vazquez_
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Xxxxxx Xxxxxxx
CEO/President
By: /s/ Xxxxxx Xxxxxxx
-----------------------
Xxxxxx Xxxxxxx, An Individual
By: /s/ Xxxxxx Vazquez_
----------------------
Xxxxxx Xxxxxxx, An Individual
BUYER
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Commerce Planet, Inc.
By: /s/ Xxxxxxx Xxxx
--------------------
Xxxxxxx Xxxx
CEO/President
