ASSET PURCHASE AGREEMENT
Exhibit 99.01
This
ASSET PURCHASE AGREEMENT (this “Agreement”) is made and
entered into as of the 1st day of March, 2019,
by and among Global Digital Solutions, Inc. a New Jersey
corporation (the “Buyer”) and Xxxx Xxxx an individual
doing business as HarmAlarm (the “Company”) and Xxxx
Xxxx (“Ball”).
Recitals
A. Buyer
desires to purchase certain of the Company’s assets as set
forth herein.
B. The
Company desires to sell and Buyer desires to purchase such assets
upon the terms and subject to the conditions set forth
herein.
Agreement
NOW,
THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties agree as
follows:
ARTICLE
I. - SALE
AND PURCHASE OF ASSETS
1.1. Sale
and Purchase of Assets.
(a) On
the terms and subject to the conditions of this Agreement, the
Company hereby sells, conveys, assigns, transfers and delivers to
Buyer, and Buyer hereby purchases, acquires and accepts delivery
of; (i) those assets specifically listed on Schedule
1.1(a); (ii)all
proprietary knowledge, trade secrets, confidential information
domain names, including computer software and licenses (whether
secret or not), methods, together with all other Intangible Rights
Used in connection with the Company’s business; (iii) its
permits and other authorizations of governmental authorities (iv)
third party licenses, telephone numbers, fax numbers customer
lists, vendor lists, referral lists and contracts, advertising
materials and data, restrictive covenants, chooses in action and
similar obligations owing to the Company, together with all books,
operating data and records (including financial, accounting and
credit records), files, papers, records and other data of the
Company; and (v) all rights of the Company in and to all
tradenames, trademarks and slogans used in its business, all
variants thereof and all goodwill associated therewith;
and
(b) It
is specifically understood and agreed by the parties hereto that
Buyer is acquiring, and Company is selling, all of the tangible and
intangible assets attributable to or used by the Company in its
business. The aforesaid assets and properties to be transferred to
the Buyer hereunder are hereinafter collectively referred to as the
“Assets.”
(b) Conveyance
Free of Liens. The Company represents, warrants and
covenants that good, valid and marketable title to all of the
Assets is being transferred, conveyed, assigned and delivered by
the Company to Buyer free and clear of any and all liens,
encumbrances, mortgages, security interests, pledges, claims,
equities and other restrictions or charges of any kind or nature
whatsoever.
1.2.
Payment for Assets.
The “Purchase
Price” for the Assets to be paid at Closing shall be
(i) five million two hundred thousand (5,000,000) shares of the
Buyer’s publicly traded common stock, and (ii) any profits
generated post-closing by the Assets conveyed will be distributed
as follows: 50.1% to GDSI; 48.4% to Xxxx Xxxx: 1.5% to Xxx
Xxxxxxxxx.
1.4.
Financing. GDSI
will use its best efforts to secure funding of $2,000,000 USD to be
used for operations of the various subsidiaries.
1.3
Closing
Deliveries.
(i) Deliveries
by the Company and the Seller. Upon the terms contained
herein, at or prior to the Closing, the Company and the Ball shall
deliver to Buyer an “Consulting Agreement”,
duly executed by the Buyer attached hereto as Exhibit A;
and
(ii)
Deliveries by the
Buyer. Upon the terms contained herein, at the Closing, the
Buyer shall pay the Purchase Price as provided in Section 1.2
and the Consulting Agreement;
ARTICLE
II. -
REPRESENTATIONS AND WARRANTIES OF BALLAND THE COMPANY
Ball
and the Company respectively, hereby jointly and severally
represent and warrant to Buyer that the statements contained in
this Section 2
are correct and complete as of the date of this
Agreement.
2.1. Authority,
Approval and Enforceability. This Agreement has been duly
executed and delivered by the Company and Ball. Ball and the
Company each have all requisite power and legal capacity to execute
and deliver this Agreement and all “Collateral
Agreements” executed and delivered or to be executed and
delivered in connection with the transactions provided for hereby,
to consummate the transactions contemplated hereby and by the
Collateral Agreements, and to perform their respective obligations
hereunder and under the Collateral Agreements. This Agreement and
each Collateral Agreement to which Ball and/or the Company are a
party constitutes, or upon execution and delivery will constitute,
the legal, valid and binding obligation of such party, enforceable
in accordance with its terms, except as such enforcement may be
limited by general equitable principles or by applicable
bankruptcy, insolvency, moratorium, or similar laws and judicial
decisions from time to time in effect which affect creditors’
rights generally.
2.2. No
Company Defaults or Consents. Neither the execution and
delivery of this Agreement, nor the carrying out of any of the
transactions contemplated hereby, will:
(i) violate
any Legal Requirements applicable to the Company;
(iii)
violate, conflict with, result in a breach of, constitute a default
under (whether with or without notice or the lapse of time or
both), or accelerate or permit the acceleration of the performance
required by, or give any other party the right to terminate, any
Contract or Permit binding upon or applicable to the
Company;
(iv) result
in the creation of any lien, charge or other encumbrance on any
Assets of the Company; or
2
(v) require
either of Ball or the Company to obtain or make any waiver,
consent, action, approval or authorization of, or registration,
declaration, notice or filing with, any private non-governmental
third party or any “Governmental
Authority”.
2.3. No
Proceedings. No suit, action or other proceeding is pending
or, to the knowledge of any of Ball or the Company, threatened
before any Governmental Authority seeking to restrain the Company
or prohibit its entry into this Agreement or prohibit the
consummation of the transactions contemplated hereby, or seeking
Damages against the Company or its Assets as a result of the
consummation of the transactions contemplated hereby.
2.4. Compliance
with Laws. To the best knowledge of the Company and Ball,
the Company is and has been in compliance in all respects with any
and all Legal Requirements applicable to the Company, other than
failures to so comply that would not have an adverse effect on the
business, operations, prospects, Assets or financial condition of
the Company.
2.5. Litigation.
Except as otherwise set forth in Schedule
2.5, there are no claims, actions, suits, investigations or
proceedings against the Company pending or, to the best knowledge
of the Company and Ball, threatened in any court or before or by
any Governmental Authority that might have an adverse effect
(whether covered by insurance or not) on the business, operations,
prospects, Assets or financial condition of the Company and there
is no basis for any such claim, action, suit, investigation or
proceeding.
2.6. Commitments
(a) Schedule
2.6(a) sets
forth a true and correct listing of each material Company Contract,
whether written or oral, including each of the
following:
(i) any
Contract that cannot by its terms be terminated by the Company with
thirty (30) days or less notice without penalty or whose term
continues beyond one (1) year after the date of this
Agreement;
(ii) any
Contract or commitment for capital expenditures by the Company in
excess of Five Thousand Dollars ($1,000.00);
(iii) any
lease or license with respect to any Assets, real or personal,
whether as landlord, tenant, licensor or licensee;
(iv) any
agreement, contract, indenture or other instrument relating to the
borrowing of money or the guarantee of any obligation or the
deferred payment of the purchase price of any Assets;
(v) any
agreement for the sale of any assets that in the aggregate have a
net book value on the Company’s books of greater than Five
Thousand Dollars ($5,000.00); and
(vi) any
agreement that purports to limit the Company’s freedom to
compete freely in any line of business or in any geographic
area.
3
(b) All
of the Contracts listed or required to be listed in Schedule
2.6(a) are
valid, binding and in full force and effect, and the Company has
not been notified or advised by any party thereto of such
party’s intention or desire to terminate or modify any such
Contract in any respect.
2.7. Intellectual
Property.
(a) Schedule
2.7(a) sets
forth a true and complete list of all (i) registered United States
trademarks and patents as well as applications, copyrights and
copyright applications and other Intellectual Property (as
hereinafter defined), in each case owned by the Company and
material to the business of the Company (“Company Owned
Intellectual Property”), (ii) licenses for any software
licensed to the Company or by the Company to a third party (as
hereinafter defined), in each case that are material to the
business of the Company (“Company Licensed Intellectual
Property”), and (iii) all software and Intellectual Property
that is licensed by the Company to a third party (“Third
Party Licensed Intellectual Property”).
(b) To
the knowledge of Ball, the conduct of the business of the Company
as currently conducted does not infringe or misappropriate the
Intellectual Property rights of any third party, and no claim has
been asserted against the Company that the conduct of the business
of the Company as currently conducted infringes or may infringe or
misappropriate the Intellectual Property rights of any third
party.
(c) With
respect to each item of the Company Owned Intellectual Property,
the Company is the sole owner of the entire right, title and
interest in and to such Intellectual Property and without
limitation of the foregoing is entitled to use such Intellectual
Property in the continued operation of its business.
(d) With
respect to each item of Company Licensed Intellectual Property, the
Company has the right to use such Company Licensed Intellectual
Property in the continued operation of its business in accordance
with the terms of the license agreement governing such Company
Licensed Intellectual Property.
(e) To
the knowledge of Ball, the Company Owned Intellectual Property is
valid and enforceable, and has not been adjudged invalid or
unenforceable in whole or part.
(f) To
the knowledge of Ball, no person is engaging in any activity that
infringes upon the Company Owned Intellectual
Property.
(g) To
the knowledge of Ball, each license of the Company Licensed
Intellectual Property and Third Party Licensed Intellectual
Property is valid and enforceable, is binding on all parties to
such license, and is in full force and effect.
(h) To
the knowledge of Ball, neither party to any license of the Company
Licensed Intellectual Property nor any Third Party Licensed
Intellectual Property is in breach thereof or default
thereunder.
4
“Intellectual Property”
means (i) patents, patent applications and statutory invention
registrations, in each case in the United States and all other
countries, (ii) any trademarks, service marks, trade dress, logos,
trade names, corporate names, and other source identifiers,
including any registrations and applications for registration of
any of the foregoing in the United States and any foreign country,
(iii) all rights under the copyright laws of the United States and
all other countries, including, without limitations, all
copyrightable works copyrights, and
registrations and applications for registration thereof, and (iv)
all confidential and proprietary information, including trade
secrets and know-how.
2.8.
Consents.
Except
as set forth in Schedule
2.8, no consent, approval or authorization of, or exemption
by, or filing with, any governmental authority or third party is
required to be obtained or made by Ball, the Company in connection
with the execution, delivery and performance by Ball of this
Agreement or the taking by Ball of any other action contemplated
hereby.
2.9. Other
Information. The information furnished by Ball and the
Company to Buyer pursuant to this Agreement (including, information
contained in the exhibits hereto, the Schedules identified herein,
the instruments referred to in such Schedules and the certificates
and other documents to be executed or delivered pursuant hereto by
Ball and/or the Company) is not false or misleading in any material
respect, or contains any misstatement of material fact, or omits to
state any material fact required to be stated in order to make the
statements therein not misleading.
ARTICLE
III -
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer
hereby represents and warrants to the Company and Ball that the
statements contained in this Section 3
are correct and complete as of the date of this
Agreement.
3.1. Corporate
Existence and Qualification. Buyer is a
corporation duly
organized, validly existing and in good standing under the laws of
the State of New Jersey, has the corporate power to own, manage,
lease and hold its properties and to carry on its business as and
where such properties are presently located and such business is
presently conducted.
3.2. Authority,
Approval and Enforceability. This Agreement has been duly
executed and delivered by Buyer and Buyer has all requisite
corporate power and legal capacity to execute and deliver this
Agreement and all Collateral Agreements executed and delivered or
to be executed and delivered by Buyer in connection with the
transactions provided for hereby, to consummate the transactions
contemplated hereby and by the Collateral Agreements, and to
perform its obligations hereunder and under the Collateral
Agreements. The execution and delivery of this Agreement and the
Collateral Agreements and the performance of the transactions
contemplated hereby and thereby has been duly and validly
authorized and approved by all corporate action necessary on behalf
of Buyer. This Agreement and each Collateral Agreement to which
Buyer is a party constitutes, or upon execution and delivery will
constitute, the legal, valid and binding obligation of Buyer,
enforceable in accordance with its terms, except as such
enforcement may be limited by general equitable principles or by
applicable bankruptcy, insolvency, moratorium, or similar laws and
judicial decisions from time to time in effect which affect
creditors’ rights generally.
5
3.3. No
Default or Consents. Neither the execution and delivery of
this Agreement, nor the carrying out of the transactions
contemplated hereby, will:
(i) violate
or conflict with any of the terms, conditions or provisions of
Buyer’s charter documents or bylaws; or
(ii) violate
any Legal Requirements applicable to Buyer;
3.4. No
Proceedings. No suit, action or other proceeding is pending
or, to Buyer’s knowledge, threatened before any Governmental
Authority seeking to restrain Buyer or prohibit its entry into this
Agreement or prohibit the consummation of the transactions
contemplated hereby, or seeking Damages against Buyer or its
properties as a result of the consummation of the transactions
contemplated hereby.
ARTICLE IV. - CONDITIONS TO BUYER’S OBLIGATIONS
The
obligation of Buyer to consummate the transactions contemplated by
this Agreement shall be subject to the satisfaction (or waiver) on
or prior to the Closing Date of all of the following
conditions:
4.1. Representations,
Warranties and Covenants of Ball. Ball shall have complied
in all material respects with their agreements and covenants
contained herein to be performed on or prior to the Closing Date,
and the representations and warranties of Ball contained herein in
the aggregate shall be true in all material respects on and as of
the Closing Date with the same effect as though made on and as of
the Closing Date, except (a) as otherwise contemplated hereby, and
(b) to the extent that any such representations and warranties were
made as of a specified date and as to such representations and
warranties the same shall continue on the Closing Date to have been
true in all material respects as of the specified date. For
purposes of the preceding sentence, specific material adverse
effect and materiality qualifiers contained in individual
representations and warranties shall be disregarded.
4.2. No
Prohibition. No statute, rule or regulation or order of any
court or administrative agency shall be in effect that prohibits
Buyer from consummating the transactions contemplated
hereby.
4.3. Consents.
All other consents, approvals, authorizations, exemptions and
waivers from governmental agencies and third parties that are
reasonably required for the consummation of the transactions
contemplated hereby, including those listed on Schedule
2.8, shall have been obtained in form and substance
reasonably satisfactory to the Buyer.
4.4. No
Material Adverse Change. Since, the Company has not suffered
any material adverse change in the business, assets, liabilities,
and results of operations or prospects of the Company.
6
ARTICLE V. - CONDITIONS TO BALL’S OBLIGATIONS
The
obligation of Ball to consummate the transactions contemplated by
this Agreement shall be subject to the satisfaction (or waiver) on
or prior to the Closing Date of all of the following
conditions:
5.1. Representations,
Warranties and Covenants of Buyer. Buyer shall have complied
in all material respects with its agreements and covenants
contained herein to be performed on or prior to the Closing Date,
and the representations and warranties of Buyer contained herein in
the aggregate shall be true in all material respects on and as of
the Closing Date with the same effect as though made on and as of
the Closing Date, except (a) as otherwise contemplated hereby, and
(b) to the extent that any such representations and warranties were
made as of a specified date and as to such representations and
warranties the same shall continue on the Closing Date to have been
true in all material respects as of the specified date. For
purposes of the preceding sentence, specific material adverse
effect and materiality qualifiers contained in individual
representations and warranties shall be disregarded.
5.2. No
Prohibition. No statute, rule or regulation or order of any
court or administrative agency shall be in effect that prohibits
Ball from consummating the transactions contemplated
hereby.
5.3. Collateral
Agreements. The execution of delivery of the Employment and
Non- Compete Agreement.
5.4 Consents.
All other consents, approvals, authorizations, exemptions and
waivers from governmental agencies and third parties that are
reasonably required for the consummation of the transactions
contemplated hereby shall have been obtained in form and substance
reasonably satisfactory to Ball
ARTICLE
VI. -
POST-CLOSING OBLIGATIONS
6.1. Further
Assurances. Following the Closing, the Company, Ball and
Buyer shall execute and deliver such documents, and take such other
action, as shall be reasonably requested by any other party hereto
to carry out the transactions contemplated by this
Agreement.
6.2. Publicity.
None of the parties hereto shall issue or make, or cause to have
issued or made, any public release or announcement concerning this
Agreement or the transactions contemplated hereby, without the
advance approval in writing of the form and substance thereof by
each of the other parties, except as required by law (in which
case, so far as possible, there shall be consultation among the
parties prior to such announcement), and the parties shall endeavor
jointly to agree on the text of any announcement or circular so
approved or required.
7
6.3 Post-Closing
Indemnities.
(a) The
representations and warranties of the Company and Ball from and
after the date hereof shall continue indefinitely, subject only to
applicable statute of limitations, or in any agreement or other
document executed at or prior to the date hereof.
(b) The
Company and Ball shall, jointly and severally indemnify and hold
harmless Buyer and its directors, officers and employees for, from
and against any and all Damages arising out of, resulting from or
in any way related to (i) a breach of, or the failure to perform or
satisfy any of, the representations, warranties, covenants and
agreements made by Ball and/or the Company in this Agreement or in
any document or certificate delivered by Ball and/or the Company
pursuant hereto, (ii) the occurrence of any event on or prior to
the date hereof that is (or would be, but for any deductible
thereunder) covered by individual policies of insurance, blanket
insurance policies or self-insurance programs maintained by the
Company, (iii) the existence of any liabilities or obligations and
with respect to any and all liabilities, losses, damages (including
special and punitive damages and all obligations and liabilities in
respect of suits, proceedings, demands, judgments, costs and
expenses, including the reasonable fees and disbursements of
counsel and experts), whether arising from any breach, warranty,
misrepresentation or omission or failure to perform and agreement
or covenant of the Company or Ball and/or (iv) any infringement
claims based upon the Buyer’s use of the patents and/or
trademarks assigned hereunder. Any payment made to Buyer contained
herein or therein or from a claim brought by a third party, or
whether they constitute breach of contract damages by reason of a
breach of a covenant, obligation or undertaking made hereunder
(collectively, "Losses"), related to or arising directly or
indirectly out of or resulting from any of the
following:
(i) Any
inaccuracy or defect in any representation or warranty made by the
Company or Ball pursuant to the indemnification in this Agreement
or any Collateral Agreement; or
(ii) Any
breach by the Company or Ball of any covenant (including covenants
involving indemnification), obligation or undertaking made by the
Company and Ball under this Agreement or any Collateral
Agreement.
(c) Buyer
agrees to indemnify, protect, defend and hold the Company and its
Ball harmless for, from and against and with respect to any and all
Losses related to or arising directly or indirectly out of any of
the following:
(i) Any
inaccuracy or defect in any representation or warranty made by
Buyer in this Agreement or any Collateral Agreement;
or
(ii) Any
breach by Buyer of any covenant (including covenants involving
indemnification), obligation or undertaking made by Buyer under
this Agreement or any Collateral Agreement.
8
(d) Any
party (the "Aggrieved") may assert a right of indemnification
against any other party (the "Indemnitor") in connection with any
third party's actions, suit, proceeding, demand or claim at any
time instituted against or made upon the Aggrieved which may result
in Losses to the Aggrieved (a "Claim"). In such event, the
Aggrieved shall notify the Indemnitor of such Claim and of the
Aggrieved’ s claim of indemnification with respect thereto,
provided that failure by the Aggrieved to give such notice shall
not relieve the Indemnitor of its obligations under this
Section
6.3, except to the
extent, if at all, that the Indemnitor shall have been materially
prejudiced by such failure to give notice. Upon receipt of such
notice from the Aggrieved, the Indemnitor shall be entitled to
participate in the defense of such Claim.
(e) If
and only if the Indemnitor confirms in writing that it shall
indemnify the Aggrieved with respect to such Claim and posts a
bond, insurance policy or other adequate security for the amount of
such Claim, the Indemnitor may assume the defense of such
compromise and settle such Claim for the Aggrieved provided,
however, that the Indemnitor may not assume the defense of any
Claim which demands equitable relief in whole or in part without
the express written consent of the Aggrieved.
(f) The
Aggrieved shall retain the right to employ its own counsel and to
participate in the defense of any Claim, the defense of which has
been assumed by the Indemnitor pursuant to Section
6.3(e) hereof, but the Aggrieved shall bear and shall be
solely responsible for its own costs and expenses in connection
with such participation; provided, however, that the Aggrieved
shall cooperate in all respects in the defense of the Claim,
including refraining from taking any position adverse to the
Indemnitor, whether or not the Aggrieved shall participate in the
defense.
6.4. Delivery
of Property Received by the Company. From and after the date hereof,
Buyer shall have the right and authority to collect, for the
account of Buyer, all receivables and other items which shall be
transferred or are intended to be transferred to Buyer as part of
the Assets as provided in this Agreement, and to endorse with the
name of the Company any checks or drafts received on account of any
such receivables or other Assets. The Company agrees that it will
transfer or deliver to Buyer, promptly after the receipt thereof,
any cash or other property which the Company receives after the
date hereof in respect of any claims, contracts, licenses, leases,
commitments, sales orders, purchase orders, receivables of any
character or any other items transferred or intended to be
transferred to Buyer as part of the Assets under this Agreement.
Receivables in existence on the date hereof shall be owned by the
Company and receivables generated on or after the date hereof shall
be owned by Buyer.
6.5. Assignment
of Contracts. At the option of Buyer, and notwithstanding
anything in this Agreement to the contrary, this Agreement shall
not constitute an assignment of any claim, contract, license,
franchise, lease, commitment, sales order, sales contract, supply
contract, service agreement, purchase order or purchase commitment
if an attempted assignment thereof without the consent of a third
party thereto would constitute a breach thereof or in any way
adversely affect the rights of Buyer thereunder. If such consent is
not obtained, or if any attempt at an assignment thereof would be
ineffective or would affect the rights of the Company thereunder so
that Buyer would not in fact receive all such rights, the Company
shall cooperate with Buyer to the extent necessary to provide for
Buyer the benefits under such claim, contract, license, franchise,
lease, commitment, sales order, sales contract, supply contract,
service agreement, purchase order or purchase commitment, including
enforcement for the benefit of Buyer of any and all rights of the
Company against a third party thereto arising out of the breach or
cancellation by such third party or otherwise.
9
6.6. Confidentiality.
The Company and Ball shall, and shall cause their respective
agents, accountants, legal counsel and other representatives and
advisers to, hold in strict confidence all, and not divulge or
disclose any, information of any kind concerning the transactions
contemplated by this Agreement, the Company, Buyer or their
respective businesses; provided, however, that the foregoing
obligation of confidence shall not apply to (i) information that is
or becomes generally available to the public other than as a result
of a disclosure by the Company, Ball or any of their respective
agents, accountants, legal counsel or other representatives or
advisers, (ii) information that is or becomes available to the
Company, Ball or any of their respective agents, accountants, legal
counsel or other representatives or advisers after the date hereof
on a nonconfidential basis prior to its disclosure by the Company,
Ball or any of their respective agents, accountants, legal counsel
or other representatives or advisers and (iii) information that is
required to be disclosed by the Company, Ball or any of their
respective agents, accountants, legal counsel or other
representatives or advisers as a result of any applicable law, rule
or regulation of any Governmental Authority; and provided further
that the Company shall promptly shall notify Buyer of any
disclosure pursuant to clause (iii) of this Section
6.6.
ARTICLE VII. - MISCELLANEOUS
7.1. Interpretive
Provisions.
(a) Whenever
used in this Agreement, “to Ball’ knowledge” or
“to the knowledge of Ball’ shall mean the actual
knowledge of Ball and the knowledge that he would have after due
and reasonable inquiry.
(b) The
words “hereof,” “herein,”
“hereby” and “hereunder” and words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision
thereof.
7.2. Entire
Agreement. This Agreement (including the Schedules) and the
Collateral Documents constitute the sole understanding of the
parties with respect to the subject matter hereof.
7.3. Successors
and Assigns. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties hereto; provided, however,
that this Agreement may not be assigned by either party hereto
without the prior written consent of the other (except that Buyer
may without the prior written consent of Ball assign this Agreement
to any affiliate of Buyer so long as such assignee shall execute a
counterpart of this Agreement agreeing to be bound by the
provisions hereof as “Buyer,” and agreeing to be
jointly and severally liable with the assignor and any other
assignee for all of the obligations of the assignor hereunder), but
no such assignment of this Agreement or any of the rights or
obligations hereunder shall relieve Buyer of its obligations under
this Agreement. Notwithstanding anything contained in this
Agreement to the contrary, nothing in this Agreement, express or
implied, is intended to confer on any person other than the parties
hereto or their respective heirs, successors, executors,
administrators and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
10
if to the
Buyer:
Global Digital
Solutions, Inc.
77
South Flagler Dr Suite 000 Xxxxx Xxxxx
Xxxx
Xxxx Xxxxx, XX 00000
Attention:
President
With copies
to:
Xxxx X. Creme,
Esq
Sulloway &
Xxxxxx, PLLC
0
Xxxxxxx Xxxxxx
Xxxxxxx, XX
00000
if to
the company and
to
Ball:
0000 Xxxxxxx Xx
Xx.
Xxxxxx,
XX 00000
With
a
copies to:
Xxxxxxx Xxxxx,
Esq
Xxxxx
Law
00000
Xxxxxxx Xxxx Xx. Xxxxx 000
Xxx
Xxxxxxxxx, XX 00000
Each of
the above addresses for notice purposes may be changed by providing
appropriate notice hereunder. Notice given by personal delivery or
registered mail shall be effective upon actual receipt. Notice
given by telecopier shall be effective upon actual receipt if
received during the recipient’s normal business hours, or at
the beginning of the recipient’s next normal business day
after receipt if not received during the recipient’s normal
business hours. All Notices by telecopier shall be confirmed by the
sender thereof promptly after transmission in writing by registered
mail or personal delivery. Anything to the contrary contained
herein notwithstanding, Notices to any party hereto shall not be
deemed effective with respect to such party until such Notice
would, but for this sentence, be effective both as to such party
and as to all other persons to whom copies are provided above to be
given.
7.4. Headings.
The headings of the Articles, Sections and paragraphs of this
Agreement are inserted for convenience only and shall not be deemed
to constitute part of this Agreement or to affect the construction
hereof.
7.5. Modification
and Waiver. No amendment, modification or alteration of the
terms or provisions of this Agreement shall be binding unless the
same shall be in writing and duly executed by the parties hereto,
except that any of the terms or provisions of this Agreement may be
waived in writing at any time by the party which is entitled to the
benefits of such waived terms or provisions. No waiver of any of
the provisions of this Agreement shall be deemed to or shall
constitute a waiver of any other provision hereof (whether or not
similar). No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver
thereof.
7.6. Counterparts.
This Agreement may be executed in one or more counterparts, each of
whom shall for all purposes are deemed to be an original and all of
which shall constitute the same instrument.
7.7. Expenses.
Except as otherwise provided herein, Ball and Buyer shall pay all
costs and expenses incurred by them or it or on their or its behalf
in connection with this Agreement and the transactions contemplated
hereby, including, without limiting the generality of the
foregoing, fees and expenses of their respective financial
consultants, accountants and counsel.
11
7.8. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey without giving
effect to the principles of conflicts of law. Each of the parties
hereto hereby irrevocably and unconditionally consents to submit to
the exclusive jurisdiction of the courts of the State of New Jersey
and of the United States of America, for any litigation arising out
of or relating to this Agreement and the transactions contemplated
hereby (and agrees not to commence any litigation relating thereto
except in such courts), and further agrees that service of any
process, summons, notice or document by U.S. registered mail to its
respective address set forth in this Agreement shall be effective
service of process for any litigation brought against it in any
such court. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any
litigation arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of New Jersey or the
United States of America, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such
court that any such litigation brought in any such court has been
brought in an inconvenient forum.
7.9. Public
Announcements. Ball shall not make any public statements,
including, without limitation, any press releases, with respect to
this Agreement and the transactions contemplated hereby without the
prior written consent of Buyer.
7.10.
Severability. If
any provision of this Agreement is held to be void, illegal or
unenforceable under present or future laws, such provision shall be
fully severable, and this Agreement shall be construed and enforced
as if such void, illegal or unenforceable provision never comprised
a part hereof, and the remaining provisions of this Agreement shall
remain in full force and effect and shall not be affected in any
way by the void, illegal or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such severed provision,
there shall be added automatically as part of this Agreement a
provision as similar in its terms to such severed provision as may
be possible and be valid, legal and enforceable.
ARTICLE
VIII. - DEFINITIONS
Capitalized terms
used in this Agreement are used as defined in this Section VIII or elsewhere in
this Agreement.
8.1.
Collateral
Agreements. The term “Collateral Agreements”
shall mean any and all agreements, instruments or documents
required or expressly provided under this Agreement to be executed
and delivered in connection with the transactions contemplated by
this Agreement, including any Patent and/or Trademark Assignment
Agreements.
8.2. Contracts.
The term “Contracts,” when described as being those of
or applicable to any person, shall mean any and all contracts,
agreements, understandings, arrangements, leases, licenses,
registrations, authorizations, easements, servitudes, rights of
way, approvals or other instruments or undertakings to which such
person is a party or to which or by which such person or the
property of such person is subject or bound, excluding any
Permits.
12
8.3. Damages.
The term “Damages” shall mean any and all damages,
liabilities, obligations, penalties, fines, judgments, claims,
deficiencies, losses, costs, expenses and assessments (including
income and other taxes, interest, penalties and attorneys’
and accountants’ fees and disbursements).
8.4. Governmental
Authorities. The term “Governmental Authorities”
shall mean any nation or country (including the United States) and
any commonwealth, territory or possession thereof and any political
subdivision of any of the foregoing, including courts, departments,
commissions, boards, bureaus, agencies, ministries or other
instrumentalities.
8.5. Legal
Requirements. The term “Legal Requirements,”
when described as being applicable to any person, shall mean any
and all laws (statutory, judicial or otherwise), ordinances,
regulations, judgments, orders, directives, injunctions, writs,
decrees or awards of, and any Contracts with, any Governmental
Authority, in each case as and to the extent applicable to such
person or such person’s business, operations or
properties.
8.6. Permits.
The term "Permits" shall mean any and all permits, rights,
approvals, licenses, authorizations, legal status, orders or
Contracts under any Legal Requirement or otherwise granted by any
Governmental Authority.
8.7.
Person. The term
“Person” shall mean any individual, partnership, joint
venture, firm, corporation, association, limited liability company,
trust or other enterprise or any governmental or political
subdivision or any agency, department or instrumentality
thereof.
8.8. Used.
The term “Used” shall mean, with respect to the Assets,
Contracts or Permits of the Company, those owned, leased, licensed
or otherwise held by the Company which were acquired for use or
held for use by the Company in connection with the Company’s
business and operations, whether or not reflected on the
Company’s books of account.
13
IN
WITNESS WHEREOF, each of the parties hereto have caused their duly
authorized representatives to execute this Agreement on their
behalf as of the date just above written.
|
|
Global
Digital Solutions, Inc.
|
|
|
|
|
______________________________________________ |
By:
_________________________________________
|
|
Date
|
Name:
Xxxxxxx Xxxxxxx
|
|
|
Title:
|
|
|
|
|
|
|
|
______________________________________________
|
Xxxx
Xxxx dba HarmAlarm
|
|
Date:
|
___________________________________
|
14
Exhibit
A
Employment
and Noncompete Agreement
See
Attached
Schedule 2.5
Litigation
Schedule 2.6(a)
Material Contracts
See
Attached
Schedule 2.7
Intellectual Property
See Attached
Schedule 2.8
Consents
See Attached
15
