Stock Purchase Agreement
Exhibit
10.1
THIS STOCK PURCHASE AGREEMENT
(this “Agreement”) is made effective as of
the 2nd day of October 2009, by and among Xxxxx X. Xxxx, an individual
(“Loev”)
and XxxxXxxx XxXxxxx, (“XxXxxxx”
and together with Loev, the “Seller”
or the “Sellers”),
and Archetype Partners LLC, a Georgia limited liability company, or its assigns
(being herein referred to as “Purchaser”), each sometimes referred
to herein as a “Party”
and collectively the “Parties.”
PRELIMINARY
STATEMENTS
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A.
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Sellers
collectively own 3,000,000 shares of common stock of RX Scripted, Inc., a
Nevada corporation (the “Company”),
which shares represent approximately 92% of the outstanding shares of the
Company.
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X.
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Xxxxxxx
are willing to sell an aggregate of 2,336,000 shares of common stock of
the Company (the “Shares”
or the “Common
Stock”) to the Purchaser, on the terms, provisions and conditions
set forth herein.
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NOW, THEREFORE, in
consideration of the mutual agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Seller and Purchaser do hereby agree as follows:
ARTICLE
I
Purchase and Sale of the
Common Stock
Section 1.01. Purchase and
Sale. On the Closing Date (as defined below) and upon the
terms and subject to the conditions set forth herein, the Sellers shall deliver
the Common Stock of the Company to the Purchaser free and clear of all liens,
and Purchaser shall purchase the Common Stock from the Seller in accordance with
Section 1.02 below.
Section 1.02. Purchase
Price. The purchase price (the “Purchase
Price”) for the
Common Stock shall be $185,000 and the Additional Shares (as defined below),
payable as follows:
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(a)
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Purchaser
shall pay Sellers $100,000 in cash at Closing (the “Closing
Cash Consideration”);
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(b)
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Purchaser
shall pay Sellers $85,000 within 45 days of Closing, which amount if not
paid within 45 days of Closing shall bear interest at the rate of 19.2%
per annum, until paid in full (the “Post-Closing
Cash Consideration”); and
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(c)
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Following
the transaction by Purchaser involving the Company, which transaction
shall include the acquisition of a business unit and may include, but not
be limited to, a Share Exchange Agreement, Stock Purchase Agreement or
similar agreement which results in a Change in Control (as defined below)
of the Company, the Purchaser shall cause the Company to issue to the
Sellers, within 10 days of the closing of such transaction, a sufficient
number of additional shares of common stock of the Company such that each
Seller owns, together which such other shares of common stock as each
Seller then owns, at a minimum 1% of the Company’s then outstanding voting
shares (the “Additional
Shares” and together with 1.02(b) above, the “Continuing
Obligations”). The Additional Shares shall apply to only
the first acquisition and related financing and no other transactions of
any kind, provided nothing herein shall limit Sellers rights as
shareholders to participate in stock dividends or stock splits or other
transactions that merely adjust or change the number of shares outstanding
on a pro rata basis.
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(d)
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A
“Change
in Control” shall include, but not be limited
to:
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(1)
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the
adoption of a plan of merger, share exchange, stock purchase agreement
with any other corporation or association as a result of which the holders
of the voting capital stock of the Company as a group would receive less
than 50% of the voting capital stock of the surviving or resulting
corporation;
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(2)
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the
approval by the Board of Directors of the Company of an agreement
providing for the sale or transfer of substantially all the assets of the
Company; or
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(3)
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the
acquisition of more than 20% of the Company's voting capital stock by any
person within the meaning of Rule 13d-3 under the Securities Act of 1933,
as amended.
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Section 1.03. Time and Place of
Closing. Subject to the satisfaction or waiver of the
conditions herein, the closing (the “Closing”) of the transactions
contemplated by this Agreement shall take place on or before __________, 2009 or
at such time, date or place as the Seller and Purchaser may
agree (the “Closing
Date”).
Section 1.04. Delivery of the Common
Stock; Payment of Purchase Price. At Closing: (a)
the Seller shall deliver to the Purchaser the certificates representing the
Common Stock, duly endorsed in blank or accompanied by stock powers duly
endorsed in blank, with all taxes attributable to the transfer and sale of the
Common Stock paid by the Seller; and (b) the Purchaser shall deliver to the
Seller the Closing Cash Consideration in accordance with Section
1.02.
ARTICLE
II
Representations and
Warranties of Sellers and the Company
Subject to all of the terms, conditions
and provisions of this Agreement, the Sellers and the Company hereby represent
and warrant to Purchaser, as of the date hereof and as of the Closing, as
follows:
Section 2.01. Organization and
Qualification. The Company is a Nevada corporation, duly
organized, validly existing and in good standing under the laws of the State of
Nevada. The Company has all requisite power and authority, corporate
or otherwise, to own, lease and operate its assets and properties and to carry
on its business as now being conducted.
Section 2.02. Capitalization of the
Company; Title to the Common Stock. There are 100,000,000
shares of common stock, $0.001 par value per share, authorized of the Company,
of which 3,282,500 shares of common stock are issued and outstanding and
10,000,000 shares of preferred stock, $0.001 par value per share, authorized of
the Company, of which no shares are currently issued and
outstanding. All of the outstanding shares of common stock of the
Company have been duly authorized and validly issued, are fully paid and
nonassessable and are free of preemptive rights. The Common Stock
transferred by the Seller to Purchaser will be free and clear of
liens. There are no outstanding or authorized subscriptions, options,
warrants, calls, rights or other similar contracts, including rights of
conversion or exchange under any outstanding debt or equity security or other
contract, or obligating the Company to issue, deliver or sell, or cause to be
issued, delivered or sold, any other shares of capital stock of the Company or
any other debt or equity securities convertible into or evidencing the right to
subscribe for any such shares of capital stock or obligating the Company to
grant, extend or enter into any such contract, except a convertible note with
Loev as otherwise described in the Company’s XXXXX filings at xxx.xxx.xxx which
will be cancelled as of Closing. The Sellers have full legal right to
sell, assign and transfer the Common Stock to Purchaser and will, upon payment
for the Common Stock and delivery to Purchaser of a certificate or certificates
representing the Common Stock, transfer good and indefeasible title to the
Common Stock to Purchaser, free and clear of liens, subject only to the
Continuing Obligations described above.
Section 2.03. Authority. The
Sellers have all requisite power and authority, corporate or otherwise, to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby and thereby. The Sellers and the Company have
duly and validly executed and delivered this Agreement and will, on or prior to
the Closing, execute, such other documents as may be required hereunder and,
assuming the due authorization, execution and delivery of this Agreement by the
parties hereto and thereto, this Agreement constitutes, the legal, valid and
binding obligation of the Sellers and the Company, as applicable, enforceable
against the Sellers and the Company, as applicable, in accordance with its
terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally and general equitable principles.
Section 2.04. No
Conflict. The execution and delivery by the Sellers and the
Company of this Agreement and the consummation of the transactions contemplated
hereby and thereby, do not and will not, by the lapse of time, the giving of
notice or otherwise: (a) constitute a violation of any law; (b)
constitute a breach or violation of any provision contained in the Articles of
Incorporation or Bylaws of the Company; (c) constitute a breach of any provision
contained in, or a default under, any governmental approval, any writ,
injunction, order, judgment or decree of any governmental authority or any
contract or agreement to which the Sellers and/or the Company are a party; or
(d) result in or require the creation of any lien upon the Common
Stock.
Section 2.05. Consents and
Approvals. No governmental approvals and no notifications,
filings or registrations to or with any governmental authority or any other
person is or will be necessary for the valid execution and delivery by the
Seller and/or the Company of this Agreement or the consummation of the
transactions contemplated hereby or thereby, or the enforceability hereof or
thereof, other than those which have been obtained or made and are in full force
and effect.
Section 2.06. Litigation. There
are no claims pending or, to the knowledge of the Sellers and the Company,
threatened against or affecting the Company or any of its assets, liabilities
and properties before or by any governmental authority or any other
person. The Sellers and the Company have no knowledge of the basis
for any claim, which alone or in the aggregate: (a) could reasonably
be expected to result in any liability with respect to either of the Company; or
(b) seeks to restrain or enjoin the execution and delivery of this Agreement or
the consummation of any of the transactions contemplated hereby or
thereby. There are no judgments or outstanding orders, injunctions,
decrees, stipulations or awards against either of the Company or any of their
assets and properties.
Section 2.07. Brokers, Finders and
Financial Advisors. No broker, finder or financial advisor has
acted for Sellers in connection with this Agreement or the transactions
contemplated hereby or thereby, and no broker, finder or financial advisor is
entitled to any broker’s, finder’s or financial advisor’s fee or other
commission in respect thereof based in any way on any contract with
Seller.
Section 2.08. Liabilities. Sellers
shall be responsible for all liabilities of the Company at Closing and shall
indemnify the Purchaser against such liabilities subsequent to the Parties
entering into this Agreement and subsequent to Closing.
Section 2.09 Filings. All
of the Company’s SEC filings are accurate in all material respects and contain
all necessary disclosures and were duly and timely filed and all required
filings are up to date. The Company is not under and has no knowledge
of any facts that would give rise to the SEC sanctioning or otherwise imposing
any restrictions on the Company’s ability to file a registration statement or
permit that registration statement from going effective in the SEC’s ordinary
course.
ARTICLE
III
Representations and
Warranties of Purchaser
Subject to all of the terms, conditions
and provisions of this Agreement, Purchaser hereby represents and warrants to
the Sellers, as of the date hereof and as of the Closing, as
follows:
Section 3.01. Authority. Purchaser
has all requisite power and authority to execute and deliver this Agreement and
to consummate the transactions contemplated hereby and
thereby. Purchaser has duly and validly executed and delivered this
Agreement and, assuming the due authorization, execution and delivery of this
Agreement by the other parties hereto and thereto, this Agreement constitutes
the legal, valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ rights generally and general equitable
principles.
Section 3.02. No
Conflict. The execution and delivery by Purchaser of this
Agreement and the consummation of the transactions contemplated hereby and
thereby do not and shall not, by the lapse of time, the giving of notice or
otherwise: (a) constitute a violation of any law; or (b) constitute a
breach of any provision contained in, or a default under, any governmental
approval, any writ, injunction, order, judgment or decree of any governmental
authority or any contract to which Purchaser is a party or by which Purchaser is
bound or affected.
Section 3.03. Consents and
Approvals. No governmental approvals and no notifications, filings or
registrations to or with any governmental authority or any other person is or
will be necessary for the valid execution and delivery by Purchaser of this
Agreement and the closing documents to which it is a party, or the consummation
of the transactions contemplated hereby or thereby, or the enforceability hereof
or thereof, other than those which have been obtained or made and are in full
force and effect.
Section 3.04. Litigation. There
are no claims pending or, to the knowledge of Purchaser, threatened, and
Purchaser has no knowledge of the basis for any claim, which either alone or in
the aggregate, seeks to restrain or enjoin the execution and delivery of this
Agreement or the consummation of any of the transactions contemplated hereby or
thereby. There are no judgments or outstanding orders, injunctions,
decrees, stipulations or awards against Purchaser which prohibits or restricts,
or could reasonably be expected to result in any delay of, the consummation of
the transactions contemplated by this Agreement. Purchaser agrees to
indemnify and hold harmless the Seller and Company against any and all costs,
judgments, fees or awards whatsoever associated with any proceedings, claims,
demands, or other actions made against the Company for time periods prior to
Closing.
Section 3.05. Brokers, Finders and
Financial Advisors. No broker, finder or financial
advisor has acted for Purchaser in connection with this Agreement or the
transactions contemplated hereby or thereby, and no broker, finder or financial
advisor is entitled to any broker’s, finder’s or financial advisor’s fee or
other commission in respect thereof based in any way on any contract with
Purchaser.
Section 3.06. Representations,
Acknowledgements and Warranties of Purchaser. The Purchaser
represents, acknowledges and warrants the following to the Company on behalf of
the Purchaser and/or any permitted assigns of the Purchaser, and agrees that
such representations, acknowledgements and warranties shall be automatically
reconfirmed by the Purchaser on the Closing Dates:
(a) The
Purchaser recognizes that the Common Stock has not been registered under the
Securities Act of 1933, as amended (“Act”),
nor under the securities laws of any state and, therefore, cannot be resold
unless the resale of the Common Stock is registered under the Act or unless an
exemption from registration is available. The Purchaser may not sell
the Common Stock without registering them under the Act and any applicable state
securities laws unless exemptions from such registration requirements are
available with respect to any such sale;
(b) The
Purchaser is acquiring the Common Stock for its own account for long-term
investment and not with a view toward resale, fractionalization or division, or
distribution thereof, and it does not presently have any reason to anticipate
any change in its circumstances, financial or otherwise, or particular occasion
or event which would necessitate or require the sale or distribution of the
Common Stock. No one other than the Purchaser will have any
beneficial interest in said securities;
(c) The
Purchaser acknowledges that it is an “Accredited
Investor” because it meets one of the following items: is a natural
person who has an individual net worth, or joint net worth with that
person's spouse of more than $1,000,000; or is a natural person who had an
individual income in excess of $200,000 in each of the two most recent years or
joint income with that person's spouse in excess of $300,000 in each of those
years and has a reasonable expectation of reaching the same income level in the
current year; or is a bank as defined in Section 3(a)(2) of the 1933 Act or any
savings and loan association or other institution as defined in Section
3(a)(5)(A) of the 1933 Act whether acting in its individual or fiduciary
capacity; or any broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934; or is an insurance company as defined in
Section 2(13) of the 1933 Act; or is an investment company registered under the
Investment Company Act of 1940; or a business development company as defined in
Section 2(a)(48) of the Investment Company Act of 1940; or is a Small Business
Investment Company licensed by the U. S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of 1958; or is an
employee benefit plan within the meaning of Title I of the Employee Retirement
Income Security Act of 1974, if the investment decision is made by a "plan
fiduciary" (as defined in Section 3(21) of such act) which is either a
bank, insurance company, or registered investment advisor, or if the employee
benefit plan has total assets in excess of $5,000,000, or, if a self-directive
plan, its investment decisions are made solely by persons that are accredited
investors; or is a "private
business development company" as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940; or is an organization described in Section
501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar
business trust, or partnership, not formed for the specific purpose of acquiring
the securities offered, with total assets in excess of $5,000,000; or any trust,
with total assets in excess of $5,000,000, not formed for the specific purpose
of acquiring the Common Stock, whose purchase is directed by a sophisticated
person as defined in the rules and regulations of the 1933 Act; or is an entity
in which all of the equity owners fall within one of the categories set forth
above; or is otherwise an Accredited Investor as defined in Section 501 of
Regulation D as adopted by the Securities and Exchange Commission;
(d) The
Purchaser has such knowledge and experience in financial and business matters
that the Purchaser is capable of evaluating the merits and risks of an
investment in the Common Stock and of making an informed investment decision,
and does not require a Purchaser Representative in evaluating the merits and
risks of an investment in the Common Stock;
(e) The
Purchaser recognizes that an investment in the Company is a speculative venture
and that the total amount of funds tendered to purchase the Common Stock is
placed at the risk of the business and may be completely lost. The
purchase of Common Stock as an investment involves special risks. The
Purchaser has read and reviewed the Company’s latest periodic and current report
filings on the Securities and Exchange Commission’s XXXXX webpage at
xxx.xxx.xxx;
(f) The
Purchaser realizes that the Common Stock shares cannot readily be sold as they
will be restricted securities and therefore the Common Stock must not be
purchased unless the Purchaser has liquid assets sufficient to assure that such
purchase will cause no undue financial difficulties and the Purchaser can
provide for current needs and possible personal contingencies;
(g) The
Purchaser confirms and represents that it is able (i) to bear the economic risk
of its investment, (ii) to hold the Common Stock for an indefinite period of
time, and (iii) to afford a complete loss of its investment. The
Purchaser also represents that it has (i) adequate means of providing for its
current needs and possible personal contingencies, and (ii) has no need for
liquidity in this particular investment;
(h) All
information which the Purchaser has provided to the Company concerning the
Purchaser's financial position and knowledge of financial and business matters
is correct and complete as of the date hereof, and if there should be any
material change in such information prior to acceptance of this Agreement by the
Company, the Purchaser will immediately provide the Company with such
information; and
(i) The
Purchaser has carefully considered and has, to the extent it believes such
discussion necessary, discussed with his, her or its professional, legal, tax
and financial advisors, the suitability of an investment in the Common Stock for
its particular tax and financial situation and that the Purchaser and his, her
or its advisers, if such advisors were deemed necessary, have determined that
the Common Stock are a suitable investment for it.
ARTICLE
IV
Covenants
Section 4.01. Further
Assurances. Sellers, the Company and Purchaser agree that,
from time to time, whether before, at or after the Closing, each of them will
take such other action and to execute, acknowledge and deliver such contracts,
deeds, or other documents (a) as may be reasonably requested and necessary or
appropriate to carry out the purposes and intent of this Agreement; or (b) to
effect or evidence the transfer to the Purchaser of the Common Stock held by or
in the name of the Sellers.
Section 4.02. Public
Announcements. Except as required by law, without the prior
written approval of the other party, neither Sellers, the Company nor Purchaser
will issue, or permit any agent or affiliate thereof to issue, any press release
or otherwise make or permit any agent or affiliate thereof to make, any public
statement or announcement with respect to this Agreement or the transactions
contemplated hereby and thereby, provided however that the Company may take
actions consistent with Form 8-K to disclose the Agreement and the terms and
conditions herein in its required filings on XXXXX.
Section 4.03. Voting. Provided
that Purchaser is not in default for any obligation hereunder that remains
uncured, for the first twelve months after Closing, Sellers shall vote
their shares in the same manner as Purchasers.
ARTICLE
V
Conditions
Section 5.01. Conditions to Obligations of
each of the Parties. The respective
obligations of each party to consummate the transactions contemplated hereby
shall be subject to the fulfillment at or prior to the Closing of the following
conditions: (a) no preliminary or permanent injunction or other order, decree or
ruling which prevents the consummation of the transactions contemplated by this
Agreement shall have been issued and remain in effect; (b) no claim shall have
been asserted, threatened or commenced and no law shall have been enacted,
promulgated or issued which would reasonably be expected to (i) prohibit the
purchase of, payment for or retention of the Common Stock by Purchaser or the
consummation of the transactions contemplated by this Agreement or (ii) make the
consummation of any such transactions illegal; and (c) all approvals legally
required for the consummation of the transactions contemplated by this Agreement
shall have been obtained and be in full force and effect at the
Closing.
Section 5.02. Conditions to Obligations of
Sellers. The obligations of
Sellers to consummate the transactions contemplated hereby shall be subject to
the fulfillment at or prior to the Closing Date of the following additional
conditions, except as Sellers may waive in writing: (a) Purchaser shall have
complied with and performed in all material respects all of the terms,
covenants, agreements and conditions contained in this Agreement which are
required to be complied with and performed on or prior to Closing; and (b) the
representations and warranties of Purchaser in this Agreement shall have been
true and correct on the date hereof or thereof, as applicable, and such
representations and warranties shall be true and correct on and at the Closing
(except those, if any, expressly stated to be true and correct at an earlier
date), with the same force and effect as though such representations and
warranties had been made on and at the Closing.
Section 5.03. Conditions to Obligations of
Purchaser. The obligations of Purchaser to consummate the
transactions contemplated hereby shall be subject to the fulfillment at or prior
to Closing of the following additional conditions, except as Purchaser may waive
in writing: (a) the Sellers and the Company shall have complied with and
performed in all material respects all of the terms, covenants, agreements and
conditions contained in this Agreement which are required to be complied with
and performed on or prior to Closing; and (b) the representations and warranties
of Sellers and the Company in this Agreement shall have been true and correct on
the date hereof or thereof, as applicable, and such representations and
warranties shall be true and correct on and at the Closing (except those, if
any, expressly stated to be true and correct at an earlier date), with the same
force and effect as though such representations and warranties had been made on
and at the Closing.
ARTICLE
VI
Indemnification
Section 6.01. Indemnification of
Sellers. Subject to the terms and conditions of this Article
VI, Purchaser agrees to indemnify, defend and hold harmless Sellers, their
respective affiliates, its respective present and former directors, officers,
shareholders, employees and agents and its respective heirs, executors,
administrators, successors and assigns (the “Seller
Indemnified Persons”), from and against any and all claims, liabilities
and losses which may be imposed on, incurred by or asserted against, arising out
of or resulting from, directly or indirectly:
(a) the
inaccuracy of any representation or breach of any warranty of Purchaser
contained in or made pursuant to this Agreement which was not disclosed to
Sellers in writing prior to the Closing; provided that no such
notification shall be deemed to waive or abrogate any right of Sellers with
respect to conditions to Closing in Section 5.02;
(b) the
breach of any covenant or agreement of Purchaser contained in this
Agreement;
(c) any
claim to fees or costs for alleged services by a broker, agent, finder or other
person claiming to act in a similar capacity at the request of Purchaser in
connection with this Agreement; or
(d)
the conduct of the business of the Company after the date of
Closing;
provided, however, that
Purchaser shall not be liable for any portion of any claims, liabilities or
losses resulting from a material breach by Sellers of any of its obligations
under this Agreement or from any Seller Indemnified Party’s gross negligence,
fraud or willful misconduct.
Purchaser
shall conduct the defense of such claims. Sellers agree to immediately notify
Purchaser of any claims and to cooperate with Purchaser’s defense of the claims,
at Purchaser’s expense. Sellers further agree to retain all records of the
corporation, including but not limited to all contracts with customers effective
before the closing date so that the records may be available to Purchaser in
conduct of the defense against any such claims.
Section 6.02. Indemnification of
Purchaser. Subject to the terms and conditions of this Article
VI, from and after the Closing, Sellers agree to indemnify, defend and hold
harmless the Purchaser, its respective affiliates, its respective present and
former directors, officers, shareholders, employees and agents and its
respective heirs, executors, administrators, successors and assigns (the “Purchaser
Indemnified Persons”), from and against any and all claims, liabilities
and losses which may be imposed on, incurred by or asserted against any
Purchaser Indemnified Person, arising out of or resulting from, directly or
indirectly:
(a) the
inaccuracy of any representation or breach of any warranty of the Sellers or the
Company contained in or made pursuant to this Agreement which was not disclosed
to Purchaser in writing prior to the Closing; provided that no such
notification shall be deemed to waive or abrogate any right of Purchaser with
respect to conditions to Closing in Section 5.03;
(b) the
breach of any covenant or agreement of Sellers or the Company contained in this
Agreement;
(c) the
conduct of the business of the Company prior to the Closing; or
(d) any
claim to fees or costs for alleged services rendered by a broker, agent, finder
or other person claiming to act in a similar capacity at the request of the
Seller in connection with this Agreement;
provided, however, that
Sellers and the Company shall not be liable for any portion of any claims,
liabilities or losses resulting from a material breach by Purchaser of its
obligations under this Agreement or from a Purchaser Indemnified Person’s gross
negligence, fraud or willful misconduct.
Sellers
shall conduct the defense of such claims. Purchaser agrees to immediately notify
Sellers of any claims and to cooperate with Sellers defense of the claims, at
Sellers expense.
ARTICLE
VII
Miscellaneous
Section 7.01. Notices. Any
and all notices, requests or other communications hereunder shall be given in
writing and delivered by: (a) regular, overnight or registered or certified mail
(return receipt requested), with first class postage prepaid; (b) hand delivery;
(c) facsimile transmission; or (d) overnight courier service, to the parties at
the following addresses or facsimile numbers:
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(i)
if to Seller, to:
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Xxxxx
X. Xxxx and XxxxXxxx XxXxxxx
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c/o
The Loev Law Firm, PC
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0000
Xxxx Xxxx Xxxxx, Xxxxx 000,
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Xxxxxxxx,
Xxxxx 00000
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Telephone
Number: (000) 000-0000
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Facsimile
Number: (000) 000-0000
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(ii)
if to Purchaser, to:
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Archetype
Partners, LLC
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Xxxx
Xxxxxxxxx Xxxxxxx
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Xxxxx
0000
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Xxxxxxx,
XX 00000
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| Attention: Xxxxx Xxxxxxxxxxx |
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(ii) Copies
to:
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The
Loev Law Firm, PC
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0000
Xxxx Xxxx Xxxxx, Xxxxx 000,
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Xxxxxxxx,
Xxxxx 00000
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Telephone
Number: (000) 000-0000
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Facsimile
Number: (000)
000-0000
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or at
such other address or number as shall be designated by either of the parties in
a notice to the other party given in accordance with this Section
7.01. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given: (A) in the case of a
notice sent by regular or registered or certified mail, three business days
after it is duly deposited in the mails; (B) in the case of a notice delivered
by hand, when personally delivered; (C) in the case of a notice sent by
facsimile, upon transmission subject to telephone confirmation of receipt; and
(D) in the case of a notice sent by overnight mail or overnight courier service,
the next business day after such notice is mailed or delivered to such courier,
in each case given or addressed as aforesaid.
Section 7.02. Benefit and
Burden. This Agreement shall inure to the benefit of, and
shall be binding upon, the parties hereto and their successors and permitted
assigns.
Section 7.03. No Third Party
Rights. Nothing in this Agreement shall be deemed to create
any right in any creditor or other person not a party hereto (other than the
Purchaser Indemnified Persons) and this Agreement shall not be construed in any
respect to be a contract in whole or in part for the benefit of any third party
(other than the Purchaser Indemnified Persons).
Section 7.04. Amendments and
Waiver. No amendment, modification, restatement or supplement
of this Agreement shall be valid unless the same is in writing and signed by the
parties hereto. No waiver of any provision of this Agreement shall be
valid unless in writing and signed by the party against whom that waiver is
sought to be enforced.
Section 7.05. Assignments. Purchaser
may assign any of its rights, interests and obligations under this Agreement and
must notify Sellers in writing.
Section 7.06. Counterparts. This
Agreement may be executed in counterparts and by the different parties in
separate counterparts, each of which when so executed shall be deemed an
original and all of which taken together shall constitute one and the same
agreement.
Section 7.07. Captions and
Headings. The captions and headings contained in this
Agreement are inserted and included solely for convenience and shall not be
considered or given any effect in construing the provisions hereof if any
question of intent should arise.
Section 7.08. Construction. The
parties acknowledge that each of them has had the benefit of legal counsel of
its own choice and has been afforded an opportunity to review this Agreement
with its legal counsel and that this Agreement shall be construed as if jointly
drafted by the parties hereto. In this Agreement words importing the
singular number include the plural and vice versa; words importing the masculine
gender include the feminine and neuter genders. The word “person”
includes an individual, body corporate, partnership, trustee or trust or
unincorporated association, executor, administrator or legal
representative.
Section 7.09. Severability. Should
any clause, sentence, paragraph, subsection, Section or Article of this
Agreement be judicially declared to be invalid, unenforceable or void, such
decision will not have the effect of invalidating or voiding the remainder of
this Agreement, and the parties agree that the part or parts of this Agreement
so held to be invalid, unenforceable or void will be deemed to have been
stricken herefrom by the parties, and the remainder will have the same force and
effectiveness as if such stricken part or parts had never been included
herein.
Section 7.10. Effect of Facsimile and
Photocopied Signatures. This Agreement may be executed in several
counterparts, each of which is an original. It shall not be necessary
in making proof of this Agreement or any counterpart hereof to produce or
account for any of the other counterparts. A copy of this Agreement
signed by one party and faxed to another party shall be deemed to have been
executed and delivered by the signing party as though an original. A
photocopy of this Agreement shall be effective as an original for all
purposes.
Section 7.11. Remedies. The
parties agree that the covenants and obligations contained in this Agreement
relate to special, unique and extraordinary matters and that a violation of any
of the terms hereof or thereof would cause irreparable injury in an amount which
would be impossible to estimate or determine and for which any remedy at law
would be inadequate. As such, the parties agree that if either party
fails or refuses to fulfill any of its obligations under this Agreement or to
make any payment or deliver any instrument required hereunder or thereunder,
then the other party shall have the remedy of specific performance, which remedy
shall be cumulative and nonexclusive and shall be in addition to any other
rights and remedies otherwise available under any other contract or at law or in
equity and to which such party might be entitled.
Section 7.12. Applicable
Law. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS,
WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
Section 7.13. Submission to
Jurisdiction. Each of the parties hereby: (a) irrevocably
submits to the non-exclusive personal jurisdiction of any Texas court, over any
claim arising out of or relating to this Agreement and irrevocably agrees that
all such claims may be heard and determined in such Texas court; and (b)
irrevocably waives, to the fullest extent permitted by applicable law, any
objection it may now or hereafter have to the laying of venue in any proceeding
brought in a Texas court.
Section 7.14. Expenses; Prevailing Party
Costs. The Seller, the Company, and Purchaser shall pay their
own expenses incident to this Agreement and the transactions contemplated hereby
and thereby, including all legal and accounting fees and disbursements, and
Seller shall be solely liable for any and all expenses of the Seller and/or the
Company which are incident to this Agreement and the transactions contemplated
hereby and thereby (other than customary general, administrative and overhead
expenses incurred in the ordinary course of
business). Notwithstanding anything contained herein or therein to
the contrary, if any party commences an action against another party to enforce
any of the terms, covenants, conditions or provisions of this Agreement, or
because of a breach by a party of its obligations under this Agreement, the
prevailing party in any such action shall be entitled to recover its losses,
including reasonable attorneys’ fees, incurred in connection with the
prosecution or defense of such action, from the losing party.
Section 7.15. Entire
Agreement. This Agreement sets forth all of the promises,
agreements, conditions, understandings, warranties and representations among the
parties with respect to the transactions contemplated hereby and thereby, and
supersedes all prior agreements, arrangements and understandings between the
parties, whether written, oral or otherwise.
[Remainder
of page left intentionally blank. Signature page
follows.]
IN WITNESS WHEREOF, the
parties have duly executed this Agreement as of the day and year first above
written.
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“SELLERS”
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/s/
Xxxxx Xxxx
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Xxxxx
X. Xxxx
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/s/
XxxxXxxx XxXxxxx
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XxxxXxxx
XxXxxxx
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“COMPANY”
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/s/
XxxxXxxx XxXxxxx
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XxxxXxxx
XxXxxxx
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President
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“PURCHASER”
Archetype Partners, LLC
By: /s/ R. Xxxxx Xxxxxxxxxxx
Printed
Name: R. Xxxxx
Xxxxxxxxxxx
Its:
Principal
