ASSET PURCHASE AGREEMENT
BETWEEN
CAPITAL TRAINING COMPANY
a Missouri corporation
and its MAJORITY STOCKHOLDER
AND
BANKERS CONSULTING COMPANY,
a Missouri corporation
Dated as of
August 1, 1995
TABLE OF CONTENTS
ARTICLE 1
PURCHASE AND SALE OF ASSETS
Page
1.1 Assets to be Acquired . . . . . . . . . . . . . . . . . . .1
1.2 Purchase Price. . . . . . . . . . . . . . . . . . . . . . .1
1.3 Transfer of Assets. . . . . . . . . . . . . . . . . . . . .1
1.4 Assumption of Liabilities . . . . . . . . . . . . . . . . .2
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1 Due Organization. . . . . . . . . . . . . . . . . . . . . .2
2.2 Due Authorization . . . . . . . . . . . . . . . . . . . . .2
2.3 Brokers and Finders . . . . . . . . . . . . . . . . . . . .3
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLERAND MAJORITY STOCKHOLDER
3.1 Due Organization. . . . . . . . . . . . . . . . . . . . . .3
3.2 Due Authorization . . . . . . . . . . . . . . . . . . . . .3
3.3 No Consents . . . . . . . . . . . . . . . . . . . . . . . .4
3.4 Tax or Informational Returns. . . . . . . . . . . . . . . .4
3.5 Assets. . . . . . . . . . . . . . . . . . . . . . . . . . .4
3.6 Properties. . . . . . . . . . . . . . . . . . . . . . . . .4
3.7 Licenses and Permits. . . . . . . . . . . . . . . . . . . .4
3.8 Intellectual Rights . . . . . . . . . . . . . . . . . . . .4
3.9 Compliance with Laws. . . . . . . . . . . . . . . . . . . .5
3.10 Employee Plans. . . . . . . . . . . . . . . . . . . . . . .5
3.11 Contracts and Agreements. . . . . . . . . . . . . . . . . .5
3.12 Claims and Proceedings. . . . . . . . . . . . . . . . . . .6
3.13 Financial Statements. . . . . . . . . . . . . . . . . . . .6
3.14 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . .6
3.15 Business Relations. . . . . . . . . . . . . . . . . . . . .7
3.16 Brokers and Finders . . . . . . . . . . . . . . . . . . . .7
3.17 Inventory . . . . . . . . . . . . . . . . . . . . . . . . .7
3.18 Accounts Receivable . . . . . . . . . . . . . . . . . . . .7
3.19 Information Furnished to Purchaser. . . . . . . . . . . . .8
3.20 Subscribers and Customers . . . . . . . . . . . . . . . . .8
ARTICLE 4
CONCURRENT DELIVERIES
4.1 Deliveries to Purchaser . . . . . . . . . . . . . . . . . .8
4.2 Deliveries to Seller and Majority Stockholder . . . . . . .9
ARTICLE 5
INDEMNIFICATION
5.1 Indemnification of Purchaser. . . . . . . . . . . . . . . .9
5.2 Indemnification of Seller.. . . . . . . . . . . . . . . . .9
5.3 Defense of Third-Party Claims . . . . . . . . . . . . . . 10
5.4 Direct Claims . . . . . . . . . . . . . . . . . . . . . . 11
5.5 Bulk Sales Indemnification. . . . . . . . . . . . . . . . 11
5.6 Limits on Indemnification . . . . . . . . . . . . . . . . 11
5.7 Exclusive Remedy. . . . . . . . . . . . . . . . . . . . . 12
5.8 Real Property Lease . . . . . . . . . . . . . . . . . . . 12
ARTICLE 6
MISCELLANEOUS
6.1 Use of Seller's Name. . . . . . . . . . . . . . . . . . . 12
6.2 Collateral Agreements, Amendments, and Waivers. . . . . . 12
6.3 Records . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.4 Successors and Assigns. . . . . . . . . . . . . . . . . . 13
6.5 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . 13
6.6 Sales Taxes . . . . . . . . . . . . . . . . . . . . . . . 13
6.7 Invalid Provisions. . . . . . . . . . . . . . . . . . . . 13
6.8 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.9 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.10 Survival of Representations, Warranties, and Covenants. . 14
6.11 Further Assurances. . . . . . . . . . . . . . . . . . . . 14
6.12 No Third-Party Beneficiaries. . . . . . . . . . . . . . . 14
6.13 Best Knowledge. . . . . . . . . . . . . . . . . . . . . . 14
6.14 Governing Law . . . . . . . . . . . . . . . . . . . . . . 14
6.15 Headings. . . . . . . . . . . . . . . . . . . . . . . . . 15
6.16 Sections; Exhibits. . . . . . . . . . . . . . . . . . . . 15
6.17 Disclosure Schedule . . . . . . . . . . . . . . . . . . . 15
6.18 Number and Gender of Words. . . . . . . . . . . . . . . . 15
6.19 Counterparts. . . . . . . . . . . . . . . . . . . . . . . 15
EXHIBITS
A - Form of Xxxx of Sale
B - Employment Agreement
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is made and
entered into as of August 1, 1995, by and among Capital Training
Company, a Missouri corporation ("Seller"), Xx. Xxxx X. Xxxxxx
("Majority Stockholder") and Bankers Consulting Company
("Purchaser").
R E C I T A L S
WHEREAS, Purchaser desires to purchase from Seller, and Seller
desires to sell to Purchaser, upon the terms and subject to the
conditions set forth herein, substantially all of property, assets
and business of Seller;
WHEREAS, Majority Stockholder owns 77.8% of the issued and
outstanding stock, $.01 par value per share, of Seller.
NOW, THEREFORE, in consideration of the respective
representations, warranties, covenants, agreements, and conditions
set forth herein, and other good and valuable consideration, the
parties hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS
1.1 Assets to be Acquired. On the basis of the
representations and warranties and for the consideration set forth
in this Agreement, Seller hereby agrees to sell to Purchaser, and
Purchaser hereby agrees to purchase from Seller, upon the terms and
conditions set forth in this Agreement, the name "CAPITAL TRAINING
COMPANY," and all other property, assets and rights of Seller,
including without limitation those assets set forth on
Schedule 1.1A, wherever located and whether or not reflected in the
books and records of Seller (the "Transferred Assets"), except for
excluded assets set forth on Schedule 1.1B. It is expressly
understood and agreed that Purchaser shall not be liable for and
does not assume any of Seller's obligations or liabilities (whether
known or unknown, matured or unmatured, or fixed or contingent),
except as specifically stated in Section 1.4 below.
1.2 Purchase Price. The Purchase Price payable by Purchaser
in consideration for sale of the Transferred Assets is $1,380,000
(the "Purchase Price"), which is being paid by Purchaser
concurrently with the execution hereof to Seller through a wire
transfer to the account designated by Seller.
1.3 Transfer of Assets. Concurrently with the execution
hereof, Seller is executing and delivering to Purchaser a Xxxx of
Sale with respect to the Transferred Assets, which Xxxx of Sale
shall be substantially in the form attached hereto as Exhibit A
(the "Xxxx of Sale").
1.4 Assumption of Liabilities. Subject to the terms of this
Agreement, Purchaser agrees to assume and become responsible at
Closing for those liabilities listed on Schedule 1.4, including
those liabilities and obligations of Seller under the agreements,
contracts, leases, licenses and other arrangements with customers
and providers of Seller with respect to the Transferred Assets.
Purchaser will not assume or have any responsibility, however, with
respect to any other obligation or liability of Seller not included
in Schedule 1.4.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller and
Majority Stockholder as follows (with the understanding that Seller
and Majority Stockholder are relying materially on each such
representation and warranty in entering into and performing this
Agreement):
2.1 Due Organization. Purchaser is a corporation, validly
existing, and in good standing under the laws of the State of
Missouri and has full power and authority and is entitled to own or
lease its properties and to carry on its business as, and in the
places where, such properties are owned or leased and such business
is conducted.
2.2 Due Authorization. Purchaser has full power and
authority to enter into and perform its obligations under this
Agreement and each agreement, instrument, and document required to
be executed by Purchaser in accordance herewith. The execution,
delivery, and performance by Purchaser of this Agreement and the
agreements, documents, and instruments required to be executed and
delivered by Purchaser in accordance herewith have been duly
authorized by the Board of Directors of Purchaser. This Agreement
and the agreements, documents, and instruments required to be
executed and delivered by Purchaser in accordance herewith have
been duly and validly executed and delivered by Purchaser and
constitute valid and binding obligations of Purchaser, enforceable
in accordance with their respective terms, except that (i) such
enforcement may be subject to applicable bankruptcy, insolvency,
fraudulent transfer, or other laws, now or hereafter in effect,
affecting creditors' rights generally, and (ii) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses (including commercial
reasonableness, good faith, and fair dealing) and to the discretion
of the court before which any proceeding therefor may be brought.
Neither the execution, delivery, nor performance of this Agreement
or any other agreement, instrument, or document to be executed by
Purchaser in connection herewith shall (a) violate any federal,
state, county, or local law, rule, or regulation or any order,
writ, injunction, or decree of any court, agency or governmental
body applicable to Purchaser or its properties, (b) violate or
conflict with, or permit the cancellation of, any agreement to
which Purchaser is a party, or by which it or any of its properties
are bound, or result in the creation of any lien, security
interest, charge, or encumbrance upon any of such properties, or
(c) violate or conflict with any provision of the Articles of
Incorporation or the Bylaws of Purchaser.
2.3 Brokers and Finders. Purchaser has not incurred any
liability to any finder, broker, or sales agent in connection with
the execution, delivery, or performance of this Agreement or the
transactions contemplated hereby.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
AND MAJORITY STOCKHOLDER
Seller and Majority Stockholder jointly and severally
represent and warrant to Purchaser as follows (with the
understanding that Purchaser is relying materially on each such
representation and warranty in entering into and performing this
Agreement):
3.1 Due Organization. To the best of Seller's and Majority
Stockholder's knowledge, Seller is a corporation validly existing
and in good standing under the laws of the State of Missouri and
has full power and authority and is qualified to own or lease its
properties and to carry on its businesses in the U.S. and in places
where such properties are owned or leased and such business is
conducted except where the failure to qualify would not have a
material adverse effect on the Transferred Assets or the business
acquired by Purchaser from Seller.
3.2 Due Authorization. Seller and Majority Stockholder have
full power and authority to enter into and perform their respective
obligations under this Agreement and each agreement, instrument,
and document required to be executed by Seller and Majority
Stockholder in accordance herewith. This Agreement has been duly
and validly authorized, executed and delivered by Seller and
Majority Stockholder, as the case may be, and constitutes valid and
binding obligations of Seller and Majority Stockholder, as the case
may be, enforceable in accordance with its terms, except that
(i) such enforcement may be subject to applicable bankruptcy,
insolvency, fraudulent transfer, or other laws, now or hereafter in
effect, affecting creditors' rights generally, and (ii) the remedy
of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses (including commercial
reasonableness, good faith, and fair dealing) and to the discretion
of the court before which any proceeding therefor may be brought.
Except as described on Schedule 3.2, neither the execution,
delivery, nor performance of this Agreement or any other agreement,
instrument, or document to be executed by Seller in connection
herewith shall (a) to the best of Seller's or Majority
Stockholder's knowledge, violate any federal, state, county, or
local law, rule, or regulation, (b) violate any order, writ,
injunction, or decree of any court, agency or governmental body
applicable to Seller or its properties, (c) violate or conflict
with, or permit the cancellation of, any agreement to which Seller
is a party, or by which it or any of its properties are bound, or
result in the creation of any lien, security interest, charge, or
encumbrance upon any of such properties, (d) result in the
acceleration of the maturity of any indebtedness of, or
indebtedness secured by any property or other assets of, Seller, or
(e) violate or conflict with any provision of the Articles of
Incorporation or the Bylaws of Seller.
3.3 No Consents. Except as described on Schedule 3.2, no
consent or approval of any governmental agency or third party is
required in order for Seller or Majority Stockholder to enter into
and perform this Agreement or any agreement, instrument, or
document executed by Seller or Majority Stockholder in accordance
herewith.
3.4 Tax or Informational Returns. Schedule 3.4 lists all
federal and state tax returns of Seller for the four years ended
December 31, 1994, true and correct copies of which have been
delivered to Purchaser.
3.5 Assets. Schedule 1.1A sets forth all material assets of
Seller. Schedule 3.5 lists all liens, security interests, claims,
charges or other encumbrances against Seller or any of Seller's
assets listed on Schedule 1.1A.
3.6 Properties. Upon the consummation of the transactions
contemplated hereby, Purchaser shall acquire good and marketable
title to the Transferred Assets, free and clear of all liens,
security interests, claims, and encumbrances except as set forth on
Schedule 3.5. The Transferred Assets are in good operating
condition and repair, normal wear and tear excepted, are free from
material defects, and are fit for the particular purposes for which
they are intended. To the best of Seller's and Majority
Stockholder's knowledge, the operation of the respective properties
and businesses of Seller in the manner in which they are now and
have been operated does not violate any zoning ordinances,
municipal regulations, or other rules, regulations, or laws.
3.7 Licenses and Permits. To the best of Seller's and
Majority Stockholder's knowledge, set forth on Schedule 3.7A is a
list of all federal, state, county, and local governmental
licenses, authorizations, accreditations, certificates, permits,
and orders held or applied for by Seller. To the best of Seller's
and Majority Stockholder's knowledge, Seller has complied, and is
complying, in all material respects, with the terms and conditions
of all such licenses, authorizations, accreditations, certificates,
permits, and orders, and no material violation of any such
licenses, authorizations, accreditations, certificates, permits, or
orders, or the laws or rules governing the issuance or continued
validity thereof, has occurred. To the best of Seller's and
Majority Stockholder's knowledge, no additional license,
authorization, accreditation, certificate, permit, or order is
required from any federal, state, county, or local governmental
agency or body thereof in connection with the conduct of the
business of Seller, except (a) as may be required by authorities
listed on Schedule 3.7B, and (b) those which the failure to obtain
would not have a material effect on the conduct of the business of
Seller. No claim has been made by any governmental authority (and,
to the best actual knowledge of Seller and Majority Stockholder, no
such claim is anticipated) to the effect that any license,
authorization, accreditation, certificate, permit, or order in
addition to those listed on Schedules 3.7A and 3.7B is necessary
with respect to the business conducted by Seller.
3.8 Intellectual Rights. To the best of Seller's and Majority
Stockholder's knowledge, Schedule 3.8 is a list and description of
all material patents, trademarks, service marks, trade names, and
copyrights and applications therefor owned by or registered in the
name of Seller or in which Seller has any right, license, or
interest. Except for the agreements listed on Schedule 3.8, Seller
is not a party to any license agreements, either as licensor or
licensee, with respect to any patents, trademarks, service marks,
trade names, or copyrights or applications therefor. Except as
disclosed on Schedule 3.8, to the best of Seller's and Majority
Stockholder's knowledge, Seller has good and marketable title to,
or the right to use, such assets and all inventions, processes,
designs, formulae, trade secrets, and know-how necessary for the
conduct of its business, without the payment of any royalty or
similar payment. Seller has not applied for or obtained any
copyright or other intellectual property protection for its media,
and to the best of its knowledge, Seller is not infringing any
patent, trademark, service xxxx, trade name, or copyright of
others, and Seller is not aware of any infringement by others of
any such rights owned by Seller.
3.9 Compliance with Laws. To the best of Seller's and
Majority Stockholder's knowledge, Seller has complied in all
material respects, and is in compliance in all material respects,
with all federal, state, county, and local laws, regulations, and
orders that are applicable to Seller's business and has filed with
the proper authorities all statements and reports required by the
laws, regulations, and orders to which Seller or its properties or
operations are subject. No claim has been made by any governmental
authority (and, to the best knowledge of Seller and Majority
Stockholder, no such claim is anticipated) to the effect that the
business conducted by Seller fails to comply, in any respect, with
any law, rule, regulation, or ordinance. Without limiting the
foregoing, to the best of Seller's and Majority Stockholder's
knowledge, Seller has complied in all material respects with all
judicial and governmental requirements relating to pollution and
environmental control and regulation and employee health and safety
including, but not limited to, laws, rules, regulations,
ordinances, and orders related to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport,
handling, presence, emission, discharge, release, or threatened
release into or on the air, land, surface, water, groundwater,
personal property, or structures, wherever located, of any
contaminants, hazardous materials, hazardous or toxic substances,
or wastes as defined under any federal, state, or local laws,
regulations, or ordinances.
3.10 Employee Plans. Seller does not have any employee
benefit, savings, or retirement plans or agreements or employment
or consulting contracts or agreements other than those set forth on
Schedule 3.10. Except for the plans listed on Schedule 3.10,
Seller does not have any employee plans or agreements which are
subject to ERISA.
3.11 Contracts and Agreements. The agreements listed on
Schedule 3.11A attached hereto constitute all of the written or
oral contracts, commitments, leases, and other agreements relating
to the subscribers and customers listed by Seller on Schedule 3.20
or to the Transferred Assets which are to be assigned to Purchaser.
Seller has afforded, to Purchaser and its officers, attorneys, and
other representatives the opportunity to review complete and
correct copies of all such contracts, commitments, leases, and
other agreements to which Seller is a party or by which Seller or
its properties are bound. Except as listed in Schedule 3.11,
Seller is not and, to the best knowledge of Seller and Majority
Stockholder, no other party thereto is in default (and no event has
occurred which, with the passage of time or the giving of notice,
or both, would constitute a default) under any such contract,
commitment, lease, or other agreement material to the Transferred
Assets or business acquired hereunder, and Seller has not waived
any right under any such contract, commitment, lease, or other
agreement. Neither Seller nor Majority Stockholder has received
any notice of default or termination under any such contract,
commitment, lease, or other agreement and, except as contemplated
by this Agreement, and Seller has not assigned or otherwise
transferred any rights under any such contract, commitment, lease,
or other agreement. There are no written or oral contracts,
commitments or other agreements pursuant to which or in connection
with which Seller has accepted payment for services or goods yet to
be performed or provided by Seller to a third party other than
those set forth in Schedule 3.11B (including a description of such
services or goods to be performed or delivered and the amounts
received by Seller).
3.12 Claims and Proceedings. There are no claims, actions,
suits, proceedings, and investigations pending or, to the best
knowledge of Seller and Majority Stockholder, threatened against or
affecting Seller or any of its properties or assets, at law or in
equity, or before or by any court, municipal or other governmental
department, commission, board, agency, or instrumentality. No
inquiry, action, or proceeding has been asserted, instituted, or,
to the best knowledge of Seller and Majority Stockholder,
threatened to restrain or prohibit the carrying out of the
transactions contemplated by this Agreement or to challenge the
validity of such transactions or any part thereof or seeking
damages on account thereof. To the best knowledge of each of
Seller and Majority Stockholder, there is no basis for any such
claim or action.
3.13 Financial Statements. Seller has delivered to Purchaser
a complete and correct copy of Seller's compiled financial
statements for the three year period ended December 31, 1994, and
its unaudited balance sheet and income statement at and for the
three month period ended March 31, 1995 (the "Financial
Statements"). The Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on
a consistent basis with prior periods and each of the Financial
Statements fairly present the financial position, results of
operations, and changes in financial position of Seller as of the
indicated date and for the indicated period. Since December 31,
1994, there has been no material adverse change in the financial
position, assets, results of operations, or business of Seller,
other than those normally encountered in the market place.
3.14 Taxes. Except as set forth on Schedule 3.14A, to the
best of Seller's and Majority Stockholder's knowledge, all federal,
foreign, state, county, and local income, gross receipts, excise,
property, franchise, license, sales, use, withholding, and other
tax (collectively, "Taxes") returns, reports, and declarations of
estimated tax (collectively, "Returns") which were required to be
filed by Seller on or before the date hereof have been filed within
the time and in the manner provided by law, and all such Returns
are true and correct and accurately reflect the Tax liabilities of
Seller. To the best of Seller's and Majority Stockholder's
knowledge, all Taxes, assessments, penalties, and interest which
have become due pursuant to such Returns have been paid or
adequately accrued in the Financial Statements. Schedule 3.14B
lists all of the states in which Seller has filed Returns during
the 1994 calendar year and sets forth the amount and type of Taxes
paid to such states. Seller has not executed any presently
effective waiver or extension of any statute of limitations against
assessments and collections of Taxes. There are no pending or, to
the best of Seller's and Majority Stockholder's knowledge,
threatened, claims, assessments, notices, proposals to assess,
deficiencies, or audits (collectively, "Seller Tax Actions") with
respect to any Taxes owed or allegedly owed by Seller. Except as
set forth on Schedule 3.14A, to the best knowledge of Seller and
Majority Stockholder, there is no basis for any Seller Tax Actions.
There are no tax liens on any of the assets of Seller. To the best
of Seller's and Majority Stockholder's knowledge, proper and
accurate amounts have been withheld and remitted by Seller from and
in respect of its employees for all periods in full and complete
compliance with the tax withholding provisions of all applicable
laws and regulations. Seller is, and for all of its existence has
been, an S corporation as defined in the Internal Revenue Code of
1986, as amended.
3.15 Business Relations. Neither Seller nor Majority
Stockholder knows or has any reason to believe that any customer,
client, or supplier of Seller will cease or otherwise refuse to do
business with Purchaser after the closing of the transactions
contemplated herein in the same manner as such business was
previously conducted with Seller. Neither Seller nor Majority
Stockholder have received any notice of any disruption (including
delayed deliveries or allocations by suppliers) in the availability
of the materials or products used by Seller nor is Seller or
Majority Stockholder aware of any facts which could lead it to
believe that the business of Seller will be subject to any such
material disruption. This Section 3.15 does not constitute a
warranty by Seller or Majority Stockholder of the size of the
subscription base that will be maintained by Purchaser following
the closing of the transactions contemplated herein or of such
subscribers' satisfaction with video tapes, programs or services
provided by Purchaser.
3.16 Brokers and Finders. Seller has not caused any liability
to be incurred to any finder, broker, or sales agent in connection
with the execution, delivery, or performance of this Agreement or
the transactions contemplated herein.
3.17 Inventory. Schedule 3.17 is a true, complete and
accurate list of each item of Seller's tape library. As used
herein, the term "tape library" shall include all printed material
prepared for and to be sent or used in connection with such tapes.
Seller owns such inventory free and clear of all liens, security
interests and third party claims which would interfere with the use
of such inventory, subject to the agreements listed on Schedule
3.11A.
3.18 Accounts Receivable. Schedule 3.18 is a list of all of
the Accounts Receivable of Seller as of June 30, 1995 and July 31,
1995. Except as listed on Schedule 3.18, (a) all of such Accounts
Receivable are free and clear of any security interests, liens,
encumbrances, or other charges; (b) to the best of Seller's and
Majority Stockholder's knowledge, none of such Accounts Receivable
are subject to any offset or claims of offset; and (c) none of the
obligors of such Accounts Receivable have given notice that they
will or may refuse to pay the full amount thereof or any portion
thereof.
3.19 Information Furnished to Purchaser. Seller has made
available to Purchaser and its officers, attorneys, accountants,
and representatives true and correct copies of all agreements,
documents, and other items listed on the schedules to this
Agreement and all books and records of Seller, and, to the best
knowledge of Seller and Majority Stockholder, neither this
Agreement, the schedules hereto, nor any information, agreements,
or documents delivered to or made available to Purchaser or its
officers, attorneys, accountants, or representatives pursuant to
this Agreement contain any untrue statement of a material fact or
omit any material fact necessary to make the statements herein or
therein, as the case may be, not misleading.
3.20 Subscribers and Customers. Schedule 3.20 accurately sets
forth as of July 31, 1995 the name of each existing subscriber and
customer of Seller and a description of the date and term of the
agreement relating to such subscriber or customer.
ARTICLE 4
CONCURRENT DELIVERIES
4.1 Deliveries to Purchaser. Concurrently with, and as a
condition to, its delivery and execution hereof, Purchaser is being
delivered the following:
(a) A copy of the resolutions duly adopted by Seller's
Board of Directors approving the adoption, execution and
delivery of this Agreement and authorizing all necessary or
proper action to enable Seller to comply with the terms
hereof.
(b) A copy of the resolutions duly adopted by Seller's
stockholders authorizing the adoption, execution and delivery
of this Agreement and approving the sale of Seller's assets as
contemplated hereby.
(c) The Xxxx of Sale, duly executed by Seller.
(d) A certificate executed by the President of Seller
accurately setting forth the number of Subscribers as of the
date hereof as customarily counted by Seller.
(e) The Employment Agreement in the form attached hereto
as Exhibit B (the "Employment Agreement"), duly executed by
Xxxx X. Xxxxxx.
(f) At least one master copy of each item of tape
inventory included in the Transferred Assets.
(g) Physical possession of all items of tangible
property included in the Transferred Assets.
(h) The Disclosure Schedules as described in
Section 6.17 hereof.
(i) Possession and control, together with proper
signature authority, of the bank accounts and other deposits
of Seller.
4.2 Deliveries to Seller and Majority Stockholder.
Concurrently with its execution and delivery hereof, Seller is
being delivered the following:
(a) A copy of the resolutions duly adopted by
Purchaser's Board of Directors or a duly authorized committee
thereof approving the execution and delivery of this Agreement
and authorizing all necessary or proper action to enable
Purchaser to comply with the terms hereof.
(b) A wire transfer of the Purchase Price as set forth
in Section 1.2 hereof.
(c) The Employment Agreement, duly executed by
Purchaser.
ARTICLE 5
INDEMNIFICATION
5.1 Indemnification of Purchaser. Seller and Majority
Stockholder agree to jointly and severally indemnify and hold
harmless Purchaser, and its respective affiliates, officers,
directors, stockholders and employees (collectively, the "Purchaser
Indemnified Parties") from and against any and all damages, losses,
claims, liabilities, demands, charges, suits, penalties, costs, and
expenses (including court costs and reasonable attorneys' fees and
expenses incurred in investigating and preparing for any litigation
or proceeding) (collectively, "Purchaser Indemnified Costs") which
any of Purchaser Indemnified Parties may sustain, or to which any
of Purchaser Indemnified Parties may be subjected, arising out of
any breach or default by Seller or Majority Stockholder of or under
any of their respective representations, warranties, covenants,
agreements, or other provisions of this Agreement or any agreement
or document executed in connection herewith.
5.2 Indemnification of Seller. Purchaser agrees to indemnify
and hold harmless Seller and Majority Stockholder, and each of
their respective affiliates, officers, directors, and employees
(collectively, the "Seller Indemnified Parties" and, collectively
with Purchaser Indemnified Parties, the "Indemnified Parties") from
and against any and all damages, losses, claims, liabilities,
demands, charges, suits, penalties, costs, and expenses (including
court costs and reasonable attorneys' fees incurred in
investigating and preparing for any litigation or proceeding)
(collectively, the "Seller Indemnified Costs" and, collectively
with Purchaser Indemnified Costs, the "Indemnified Costs") which
any of Seller Indemnified Parties may sustain, or to which any of
Seller Indemnified Parties may be subjected, arising out of any
breach or default by Purchaser under any of their respective
representations, warranties, covenants, agreements, or other
provisions of this Agreement or any agreement or document executed
in connection herewith.
5.3 Defense of Third-Party Claims. An Indemnified Party
shall give prompt written notice to the party who is obligated to
provide indemnification hereunder (the "Indemnifying Party") of the
commencement or assertion of any action, proceeding, demand, or
claim by a third party (collectively, a "third-party action") in
respect of which such Indemnified Party shall seek indemnification
hereunder. Any failure so to notify the Indemnifying Party shall
relieve the Indemnifying Party from any liability that it may have
to such Indemnified Party under this Article 5. The Indemnifying
Party shall have the right to assume control of the defense of,
settle, or otherwise dispose of such third-party action on such
terms as it deems appropriate; provided, however, that:
(a) The Indemnified Party shall be entitled, at his,
her, or its own expense, to participate in the defense of such
third-party action (provided, however, that the Indemnifying
Party shall pay the attorneys' fees of the Indemnified Party
if (i) the employment of separate counsel shall have been
authorized in writing by the Indemnifying Party in connection
with the defense of such third-party action, (ii) the
Indemnifying Party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to have charge of such
third-party action, (iii) the Indemnified Party shall have
reasonably concluded that there may be defenses available to
it which are different from or additional to those available
to the Indemnifying Party, or (iv) the Indemnified Party's
counsel shall have advised the Indemnified Party in writing,
with a copy to the Indemnifying Party, that there is a
conflict of interest that could make it inappropriate under
applicable standards of professional conduct to have common
counsel);
(b) The Indemnifying Party shall obtain the prior
written approval of the Indemnified Party before entering into
or making any settlement, compromise, admission, or
acknowledgement of the validity of such third-party action or
any liability in respect thereof if, pursuant to or as a
result of such settlement, compromise, admission, or
acknowledgement, injunctive or other equitable relief would be
imposed against the Indemnified Party or if, in the opinion of
the Indemnified Party, such settlement, compromise, admission,
or acknowledgement could have a material adverse effect on its
business or, in the case of an Indemnified Party who is a
natural person, on his or her assets or interests;
(c) The Indemnifying Party shall not consent to the
entry of any judgment or enter into any settlement that does
not include as an unconditional term thereof the giving by
each claimant or plaintiff to each Indemnified Party of a
release from all liability in respect of such third-party
action; and
(d) The Indemnifying Party shall not be entitled to
control (but shall be entitled to participate at its own
expense in the defense of), and the Indemnified Party shall be
entitled to have sole control over, the defense or settlement,
compromise, admission, or acknowledgement of any third-party
action (i) as to which the Indemnifying Party fails to assume
the defense within a reasonable length of time or (ii) to the
extent the third-party action seeks an order, injunction, or
other equitable relief against the Indemnified Party which, if
successful, would materially adversely affect the business,
operations, assets, or financial condition of the Indemnified
Party; provided, however, that the Indemnified Party shall
make no settlement, compromise, admission, or acknowledgement
which would give rise to liability on the part of the
Indemnifying Party without the prior written consent of the
Indemnifying Party.
The parties hereto shall extend reasonable cooperation in
connection with the defense of any third-party action pursuant to
this Article 5 and, in connection therewith, shall furnish such
records, information, and testimony and attend such conferences,
discovery proceedings, hearings, trials, and appeals as may be
reasonably requested.
5.4 Direct Claims. In any case in which an Indemnified Party
seeks indemnification hereunder which is not subject to Section 5.3
hereof because no third-party action is involved, the Indemnified
Party shall notify the Indemnifying Party in writing of any
Indemnified Costs which he, she, or it claims are subject to
indemnification under the terms hereof. The failure of the
Indemnified Party to exercise promptness in such notification shall
amount to a waiver of such claim.
5.5 Bulk Sales Indemnification. The parties hereto hereby
waive compliance with any laws governing bulk sales (to the extent
such laws are applicable to the transactions contemplated by this
Agreement). Seller hereby agrees to indemnify Purchaser for any
liabilities incurred by Purchaser as a result of such non-compliance or
claims asserted against Purchaser or any of the Transferred Assets in respect
of any liabilities of Seller that are not assumed by Purchaser.
5.6 Limits on Indemnification. Notwithstanding anything in
this Agreement to the contrary, (i) Seller and Majority Stockholder
shall not have any obligation to indemnify the Purchaser
Indemnified Parties under this Article 5 until Purchaser has
suffered Material Purchaser Indemnified Costs (as defined below) in
excess of $10,000.00 aggregate; and (ii) Majority Stockholder's
obligation to indemnify the Purchaser Indemnified Parties under
this Article 5 shall cease when the amount of Purchaser Indemnified
Costs paid by Majority Stockholder exceeds the amount of the
Purchase Price allocated to and received by Majority Stockholder.
"Material Purchaser Indemnified Costs" are (i) any Purchaser
Indemnified Costs arising from the breach of Sections 3.2, 3.4,
3.5, the first two sentences of Section 3.6, the last sentence of
Section 3.7, the second and third sentences of Section 3.8, the
second sentence of Section 3.9, Sections 3.10, 3.11, 3.12, 3.13,
the third, fourth, fifth, sixth and seventh sentences of Section
3.14, Sections 3.15, 3.16, 3.17, 3.18, 3.19 and 3.20, and (ii) any
portion of a Purchaser Indemnified Cost which arises from breach of
any other representation, warranty, covenant, agreement or other
provision of this Agreement or any agreement or document executed
in connection herewith and which is in excess of a material amount
on an individual basis.
5.7 Exclusive Remedy. The indemnification provided in this
Article 5 shall be the sole and exclusive remedy and recovery for
(a) any Purchaser Indemnified Party against Seller or Majority
Stockholder for any Purchaser Indemnified Costs for breach of a
representation or warranty contained in Article 3, and (b) any
Seller Indemnified Party against Purchaser for any Seller
Indemnified Costs for breach of a representation or warranty
contained in Article 2.
5.8 Real Property Lease. Purchaser acknowledges that Seller
is a party to a real property lease by and between Seller and
County Life Insurance Company for the property located at 000
Xxxxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000,
expiring on October 31, 1996 (the "Lease"). Purchaser agrees to
indemnify and hold the Seller Indemnified Parties harmless from and
against any Seller Indemnified Costs which any of the Seller
Indemnified Parties may sustain or to which any of the Seller
Indemnified Parties may be subjected, arising out of or related to
the Lease which accrue on or after Closing.
ARTICLE 6
MISCELLANEOUS
6.1 Use of Seller's Name. Seller and Majority Stockholder,
jointly and severally, hereby covenant and agree concurrently with
the execution of this Agreement, they shall cause an amendment of
Seller's Articles of Incorporation to change its name or take such
other action as is reasonable and necessary to enable Purchaser to
use the name "Capital Training Company" and gain the benefits of
all contracts, rights, trademarks, trade names, service marks and
the Transferred Assets.
6.2 Collateral Agreements, Amendments, and Waivers. This
Agreement (together with the documents delivered in connection
herewith) supersedes all prior documents, understandings, and
agreements, oral or written, relating to this transaction and
constitutes the entire understanding among the parties with respect
to the subject matter hereof. Any modification or amendment to, or
waiver of, any provision of this Agreement (or any document
delivered in connection herewith unless otherwise expressly
provided therein) may be made only by an instrument in writing
executed by the party against whom enforcement thereof is sought.
6.3 Records. Concurrently with the execution hereof, Seller
is turning over and delivering to Purchaser all files of Seller
relating to the Transferred Assets, including, without limitation,
all subscription documents and records, any and all operating
manuals, third party warranties, and like materials and data in
Seller's and Majority Stockholder's possession relating to the
operation of business, facilities, improvements, and equipment
included in the Transferred Assets, and all appropriate books and
records, accounting information, and operating information and
data, whether current or historical, reasonably related to the
Transferred Assets.
6.4 Successors and Assigns. No rights or obligations of any
party hereto under this Agreement may be assigned (except that
Purchaser may assign any part of its rights and obligations to any
affiliate thereof). Any assignment in violation of the foregoing
shall be null and void. Subject to the preceding sentences of this
Section 6.4, the provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
heirs, legal representatives, and successors.
6.5 Expenses. Each of the parties hereto shall pay its own
respective costs and expenses, including but not limited to
attorneys' fees, incurred in connection with this Agreement.
6.6 Sales Taxes. Seller shall be responsible for and shall
pay all federal, state, or local taxes, if any, arising by reason
of or resulting from the sale of the Transferred Assets as
contemplated hereby.
6.7 Invalid Provisions. If any provision of this Agreement
is held to be illegal, invalid, or unenforceable under present or
future laws effective during the term hereof, such provision shall
be fully severable; this Agreement shall be construed and enforced
as if such illegal, invalid, or unenforceable provision had never
comprised a part hereof; and the remaining provisions shall remain
in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance therefrom.
Furthermore, in lieu of such illegal, invalid, or unenforceable
provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid,
or unenforceable provision as may be possible and be legal, valid,
and enforceable.
6.8 Waiver. No failure or delay on the part of any party in
exercising any right, power, or privilege hereunder or under any of
the documents delivered in connection with this Agreement shall
operate as a waiver of such right, power, or privilege; nor shall
any single or partial exercise of any such right, power, or
privilege preclude any other or future exercise thereof or the
exercise of any other right, power, or privilege.
6.9 Notices. Any notices required or permitted to be given
under this Agreement (and, unless otherwise expressly provided
therein, under any document delivered in connection with this
Agreement) shall be given in writing and shall be deemed received
(a) when personally delivered to the relevant party at such party's
address as set forth below, (b) when confirmed if delivered by
facsimile or similar device, or (c) if sent by mail, on the third
day following the date when deposited in the United States mail,
certified or registered mail, postage prepaid, to the relevant
party at its or his address indicated below:
If to Purchaser: Bankers Consulting Company
0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
Attn: Xx. Xxxx X. Xxxxx
Fax No: (000) 000-0000
If to Seller or
Majority Stockholder: Xxxx X. Xxxxxx
000 Xxxxxx Xxxxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Fax No. (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxxx, Esq.
Summers, Compton, Xxxxx & Hamburg, P.C.
0000 Xxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Fax No. (000) 000-0000
Each party may change its address for purposes of this Section 6.9
by proper notice to the other parties.
6.10 Survival of Representations, Warranties, and Covenants.
All covenants, agreements, representations, and warranties of each
party made hereunder or pursuant hereto or in connection with the
transactions contemplated hereby shall survive the closing of the
transactions contemplated hereby (unless the other party knew or
had reason to know of any misrepresentation or breach of a
covenant, agreement or warranty at the time of Closing) and shall
remain in effect for a period of two (2) years after the date
hereof.
6.11 Further Assurances. From time to time hereafter, at the
request of Purchaser, but without further consideration, Seller and
Majority Stockholder jointly and severally agree to execute and
deliver such other instruments of conveyance, assignment, transfer,
and delivery and take such other action as Purchaser may reasonably
request in order more effectively to consummate the transactions
contemplated hereby.
6.12 No Third-Party Beneficiaries. No person or entity not a
party to this Agreement shall be deemed to be a third-party
beneficiary hereunder or entitled to any rights hereunder.
6.13 Best Knowledge. When used in this Agreement, the term
"best knowledge" (or any variation thereof) refers to knowledge
obtained after due inquiry.
6.14 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri.
6.15 Headings. The headings, captions, and arrangements used
in this Agreement are, unless specified otherwise, for convenience
only and shall not be deemed to limit, amplify, or modify the terms
of this Agreement or affect the meaning hereof.
6.16 Sections; Exhibits. All references to "Sections",
"Subsections", "Schedules", and "Exhibits" herein are, unless
specifically indicated otherwise, references to sections,
subsections, schedules, annexes, and exhibits of and to this
Agreement.
6.17 Disclosure Schedule. All of the Schedules referred to
herein are, unless specifically indicated otherwise, contained in
the Disclosure Schedule to this Agreement of even date herewith
which is made a part hereof for all intents and purposes.
6.18 Number and Gender of Words. Whenever herein the singular
number is used, the same shall include the plural where
appropriate, and words of any gender shall include each other
gender where appropriate.
6.19 Counterparts. This Agreement may be executed in multiple
counterparts; provided that all such counterparts together shall be
deemed to constitute one agreement. This Agreement may be executed
by facsimile signatures.
6.20 Effective Date. This Agreement shall be deemed effective
as of August 1, 1995. Whenever adjustments or assumptions of
liabilities are referred to herein as occurring at Closing, they
shall be made effective as of August 1, 1995.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement in one or more counterparts (all of which shall
constitute one and the same agreement) as of the day and year first
above written.
BANKERS CONSULTING COMPANY
By: Xxxx Xxxxxx
Vice President
CAPITAL TRAINING COMPANY
By: Xxxx X. Xxxxxx
President
