Exhibit 10.1
BUSINESS
PURCHASE AGREEMENT
THIS
ASSET PURCHASE AGREEMENT (the “Agreement”) is entered into as of
December 1, 2000 between Senior-Inet, Inc., a Colorado
corporation (“Buyer”), and Xxxx Xxxxxx
(“Seller”), sole proprietor of Senior-Inet (“Business”).
W I T N E S S E T H:
WHEREAS,
this Agreement sets forth the terms and conditions upon which Seller is willing
to sell and Buyer is willing to purchase Seller's Business.
NOW
THEREFORE, in consideration of the mutual promises of the parties, in
reliance on the representations, warranties, covenants and conditions contained
in this Agreement, and for other good and valuable consideration, the parties
agree as follows:
1.
PURCHASE AND SALE OF BUSINESS
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1.1 |
Purchase and Sale of Business. Subject to the terms and conditions of
this Agreement, Seller shall sell, convey, assign, transfer and deliver to
Buyer, and Buyer shall purchase, at Closing all of Seller’s assets,
properties, rights, claims and goodwill, of every kind, character and
description, tangible and intangible, real and personal, wherever located and
whether or not reflected on the books and records of Seller, which are used in
the Business, except for cash held in any business checking or savings account.
Assets shall include, but not be limited to all furniture, furnishings,
fixtures, machinery, equipment, inventory, trade accounts receivable, customer
lists, data bases, trade secrets, methods, inventions and other know-how, and
patents, trademarks, service marks, trade names (including the name
“Senior-Inet”) and copyrights, goodwill, books, records, licenses and
permits. |
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1.2 |
Liquidation of Liabilities. At Closing, Seller shall liquidate all
liabilities associated with the Business. |
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1.3 |
Amount of Purchase Price. In consideration for Seller’s sale of
assets, Buyer will deliver $5,000 in cash to Seller and enter into a Profit
Participation Agreement, the terms and conditions of which are outlined below,
at Closing. |
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1.4 |
Profit Participation Agreement. Buyer will execute a Profit Participation
Agreement, a copy of which is attached, wherein Buyer agrees to pay, as part of
the Purchase Price, $32,000 once the Business has generated over $400,000 in
gross revenues in any consecutive 12-month period within three years from
Closing. |
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1.5 |
Advance Compensation Deposit. Buyer agrees to deposit $6,000 in an
interest bearing account at a financial institution of Seller’s choosing to
be used as the first year compensation for Xxxx Xxxxxx. Buyer agrees to disburse
$500 per month from such interest bearing account to Xxxx Xxxxxx as compensation
for his services pursuant to an Employment Agreement, a copy of which is
attached hereto. |
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1.6 |
Compliance with Bulk Sales Laws. Buyer and Seller waive compliance with
the bulk sales law and any other similar laws in any applicable jurisdiction in
connection with the transactions contemplated by this Agreement. Seller shall
indemnify Buyer from, and hold it harmless against, any claims, actions,
liabilities, damages, losses, costs and expenses (including reasonable
attorneys’ fees) resulting from or arising out of the parties’ failure
to comply with any of such laws in respect of the transactions contemplated by
this Agreement. |
2.
CLOSING AND
POST-CLOSING MATTERS
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2.1 |
Time and Place. The consummation of the transactions contemplated by this
Agreement (the “Closing”) shall take place on December 1, 2000 at
10:00 a.m. Mountain Time (the “Closing Date”) or upon completion of an
audit of Seller’s books and records, whichever event occurs last, at the
principal offices of Buyer in Lakewood, Colorado, or such other time and place
as Buyer and Seller shall mutually agree. |
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2.2 |
Buyer’s Deliveries at Closing. At the Closing, Buyer shall deliver
to Seller the following: |
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(a) |
an executed Profit Participation Agreement, a copy of which is attached hereto; |
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(b) |
the other agreements, opinions, certificates and other documents referred to
in herein; |
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(c) |
records and certification indicating that $6,000 has been deposited to a
financial institution of Seller’s choosing pursuant to section 1.5 above;
and |
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(d) |
$5,000 in cash to Seller. |
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2.3 |
Seller’s Deliveries at Closing. At the Closing, Seller shall deliver
to Buyer the following: |
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(a) |
a Xxxx of Sale and such other instruments of conveyance, assignment, transfer,
in form and substance reasonably satisfactory to buyer’s counsel, as shall
be effective to transfer and assign to, and vest in, Buyer all of the assets and
the business known as Senior-Inet; |
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(b) |
the other agreements, opinions, certificates and other documents referred to in
herein. |
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2.4 |
Employment Matters. At Closing, Buyer shall offer employment to Xxxx
Xxxxxx and Xxxx Xxxxxx will accept such employment in accordance with the terms
and conditions of an Employment Agreement, a copy of which is attached hereto. |
3.
COVENANTS
OF SELLER PENDING CLOSING
Seller covenants and
agrees with Buyer that from the date of this Agreement to the Closing:
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3.1 |
Confidentiality. Unless and until the Closing has been consummated,
Seller shall hold, and shall cause its employees, agents and representatives to
hold in confidence any confidential data or information of Buyer made available
to Seller in the course of its discussions with Buyer in connection with this
Agreement, using the same standard of care to protect such confidential data or
information as is used to protect Seller’s confidential information. If the
transactions contemplated by this Agreement are not consummated, Seller shall
return or cause to be returned to Buyer all written materials and all copies
thereof that were supplied to Seller by Buyer and that contain any such
confidential data or information. |
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3.2 |
No Shopping. Seller shall not negotiate with any other person, or solicit
or entertain any proposal, or furnish to any other person any information,
concerning the acquisition in any form of the Assets or Business or a material
interest therein, other than Buyer. |
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4.
COVENANTS
OF BUYER PENDING CLOSING
Buyer covenants and agrees
with Seller that from the date of this Agreement to the Closing:
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4.1 |
Confidentiality. Unless and until the Closing has been consummated, Buyer
shall hold, and shall cause its employees, agents and representatives to hold in
confidence any confidential data or information of Seller made available to
Buyer in the course of its discussions with Seller in connection with this
Agreement, using the same standard of care to protect such confidential data or
information as is used to protect Buyer’s confidential information. If the
transactions contemplated by this Agreement are not consummated, Buyer shall
return or cause to be returned to Seller all written materials and all copies
thereof that were supplied to Buyer by Seller and that contain any such
confidential data or information. |
5.
CONDITIONS
TO BUYER’S OBLIGATION TO CLOSE
Buyer’s obligation to
close is subject to the fulfillment of each of the following conditions
precedent (any of which may be waived by Buyer), and Seller shall use its best
efforts to cause each condition to be fulfilled:
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5.1 |
No Material Adverse Change. Since the date of this Agreement, no event or
development has occurred, and no condition has arisen, that has had or could
reasonably be expected to have a Material Adverse Effect. |
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5.2 |
Key Employee Agreements. Xxxx Xxxxxx (“Key Employees”) shall
have executed and delivered to Buyer an employment agreement, containing or
accompanied by a non compete and confidentiality agreement, in form and
substance acceptable to Buyer in its sole discretion. |
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5.3 |
Audit. This contract is conditioned upon an audit of the Business’
books and records by an independent accountant. In the event the audit does not
reflect the representations made by Seller, Buyer is not obligated to consummate
the transaction contemplated herein. |
| 6. |
CONDITIONS TO SELLER’S OBLIGATIONS TO CLOSE. Seller’s
obligations to close is subject to Buyer delivering payment as provided in
Section 1. |
| 7. |
INDEMNIFICATION. Seller and Buyer agree to indemnify, defend and hold
harmless each other, their shareholders, officers, directors, employees and
agents, and their respective successors and assigns, from and against any and
all claims, suits, losses, expenses (legal, accounting, investigation and
otherwise), damages and liabilities (including, without limitation, tax
liabilities), arising out of or relating to (i) any liability, obligation or
commitment of Buyer and Seller, (ii) the conduct of, or conditions existing with
respect to, the Business prior to Closing, and (iii) any misrepresentation or
breach of warranty or covenant made by Buyer and Seller in this Agreement. |
8.
MISCELLANEOUS
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8.1 |
Termination. This Agreement may be terminated by written notice of
termination at any time prior to the Closing, as follows: |
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(a) |
by mutual consent of Seller and Buyer; |
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(b) |
by Buyer, (A) at any time if the representations and warranties of Seller
contained herein were incorrect in any material respect when made or at any time
thereafter, (B) upon the material breach by Seller of any covenant made herein
and cannot be cured within 30 days of breach or (C) upon written notice to
Seller given at any time after December 1, 2000 If all of the conditions
precedent set forth in Section 7 hereof have not been met; or |
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(c) |
by Seller, (A) at any time if the representations and warranties of Buyer
contained herein were incorrect in any material respect when made or at any time
thereafter, (B) upon the material breach by Buyer of any covenant of Buyer made
herein and cannot be cured within 30 days of breach or (C) upon written notice
to Seller given at any time after December 1, 2000 If all of the conditions
precedent set forth in Section 7 hereof have not been met. |
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(a) |
All notices and other communications made pursuant to this Agreement shall be in
writing and shall be deemed to have been given upon receipt by (1) personal
delivery, (2) telephonically confirmed fax, (3) receipted courier service or (4)
certified or registered mail, return receipt requested, addressed as shown
below. Refusal to accept delivery shall be deemed receipt. All notices shall be
directed to the following addresses: |
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(i) if to Seller:
Xxxx Xxxxxx
Senior-Inet
000 Xxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
(ii) if to Buyer:
Senior-Inet, Inc.
P. O. Xxx 000000
Xxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxxx |
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(b) |
Any party hereto may change the address to which notices shall be directed under
this Section 11.3 by giving written notice of such change to the other party. |
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8.3 |
Counterparts. This Agreement may be executed in any number of identical
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument. |
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8.4 |
Governing Law: Binding Effect. This Agreement each of the other
Documents have been delivered to and shall be deemed to have been made in
Denver, Colorado, and shall be interpreted, and the rights and liabilities of
the parties hereto shall for all purposes be governed by and construed and
enforced without giving effect to the principles of conflicts of laws, in
accordance with the laws of the State of Colorado applicable to agreements
executed, delivered and performed within such State. |
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8.5 |
Entire Agreement. Except as otherwise expressly provided herein, this
Agreement and the other documents described or contemplated herein embody the
entire agreement and understanding among the parties hereto and thereto and
supersede all prior agreements and understandings relating to the subject matter
hereof and thereof. |
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8.6 |
Drafting Party. This Agreement expresses the mutual intent of the Buyer
and Seller. Accordingly, regardless of the party preparing any document, the
rule of construction against the drafting party shall have no application to
this Agreement. |
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement or caused
it to be executed by their duly authorized officers as of the day and year first
above written.
XXXX XXXXXX
SENIOR-INET, INC.
____________________________________
By: Xxxxx Xxxxxxx, President
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