Exhibit 10.2
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (this "Agreement") dated as of July
29, 1999, between XxxxxXxXxxXxx.xxx, Inc., a Delaware corporation
("Buyer") and Ivan's Quik Print, Inc., a Florida corporation
("Seller") and Xxxx Xxxxx ("Xxxx"), and Xxxxxxx Xxxxx ("Xxxxxxx")
(collectively "Principals").
RECITALS:
A. Seller owns and operates a printing business d/b/a
"Ivan's Quik Print" ("Business"); and
B. Seller wishes to sell to Buyer and Buyer wishes to buy
from Seller certain of Seller's assets used primarily in, or
relating primarily to, the Business under the terms and conditions
set forth herein; and
C. The Principals are the officers, directors and/or
shareholders of the Seller, and agree to be bound by this
Agreement;
NOW THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms have the
following meanings:
1.1 "Assets" means all of Seller's right, title and interest
in the following assets:
a) All film, flats, files, work-papers and work product
relating to all customers and accounts for the Business;
b) the Marks;
c) all of Seller's rights and interests in the Material
Contracts;
d) copies of the sales, billing and other pertinent
records;
e) all of Seller's telephone and fax numbers used
exclusively in connection with the Business; and
f) all goodwill associated with the Business.
g) all of the items listed on Schedule 1.1 attached
hereto.
1.2 "Assumed Liabilities" means all of the liabilities of
Seller set forth on Schedule 1.2 attached hereto.
1.3 "Bankruptcy" means (a) an adjudication of bankruptcy
under the U.S. Bankruptcy Reform Act of 1978, as amended, or any
successor statute, (b) the specified Person stops payment of, is
deemed unable or otherwise admits inability to pay its debts or
becomes or is deemed to be insolvent, (c) an assignment for the
benefit of creditors, (d) the filing of a voluntary Petition in
bankruptcy or reorganization or the passing of a resolution for
voluntary liquidation, reconstruction or winding up (other than for
the purpose of a solvent merger or reorganization), or (e) the
failure to vacate the appointment of a receiver, trustee,
provisional liquidator or administrative receiver for any part or
all of the property of a party within 60 days from the date of such
appointment.
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1.4 "Sales, billing and other pertinent records" means all
correspondence, software developments, trade secrets, customer
lists, supplier lists, marketing materials, billing and collection
records and all other records of Seller which primarily relate to
the Assets being sold.
1.5 "Business" has the meaning set forth in the Recitals.
1.6 "Business Day" means any day that is not a Saturday or a
Sunday and on which banks are open for the conduct of normal
banking business in the city of Miami, Florida.
1.7 "Concurrent Transactions" means the collective reference
to the transactions contemplated by this Agreement, the
transactions contemplated by the Exhibits hereto and the
transactions described or referred to in Article V hereof.
1.8 "Employee Benefit Plan" means any: (a) non-qualified
deferred compensation or retirement plan which is an Employee
Pension Benefit Plan; (b) qualified deferred contribution
retirement plan or arrangement which is an Employee Pension Benefit
Plan; (c) qualified benefit retirement plan or arrangement which is
an Employee Pension Benefit Plan; or (d) Employee Welfare Benefit
Plan.
1.9 "Employee Pension Benefit Plan" shall have the meaning
set forth in Section 3(2) of ERISA.
1.10 "Employee Welfare Benefit Plan" shall have the
meaning set forth in Section 3(1) of ERISA.
1.11 "Encumbrance" means any security interest, pledge,
mortgage, lien (including, without limitation, environmental and
Tax liens), charge, encumbrance, adverse claim, option,
preferential arrangement or restriction of any kinds, including,
without limitation, any restriction on the use, voting, transfer,
receipt of income or other exercise of any attributes of ownership.
1.12 "Environmental Laws" means any foreign, federal,
state or local statute, code, ordinance, rule, regulation, permit,
consent, approval, license, judgment, order, writ, judicial
decision, common law rule, decree, agency interpretation,
injunction or other authorization or requirement whenever
promulgated, issued, or modified, including the requirement to
register underground storage tanks, relating to:
a) emissions, discharges, spills, releases or
threatened releases of pollutants, contaminants, Hazardous
Substances (as hereinafter defined), materials containing Hazardous
Substances, or hazardous or toxic materials or wastes into ambient
air, surface water, groundwater, watercourses, publicly or
privately owned treatment works, drains, sewer systems, wetlands,
septic systems or onto land;
b) the use, treatment, storage, disposal, handling,
manufacturing, transportation, or shipment of Hazardous Substances,
materials containing Hazardous Substances or Hazardous and/or toxic
wastes, material, products or by-products (or of equipment or
apparatus containing Hazardous Substances) as defined in or
regulated under the following statutes and their implementing
regulations: the Hazardous Materials Transportation Act, 49 U.S.C.
Sec. 1801 et seq., the Resource Conservation and Recovery Act, 42
U.S.C. Sec. 6901 et seq., the Comprehensive Environmental Response,
Compensation and Liability Act, as amended by the Superfund
Amendments and Reauthorization Act, 42 U.S.C. Sec. 9601 et seq.,
and/or the Toxic Substances Control Act, 15 U.S.C. Sec. 2601 et
seq., each as amended from time to time; or
c) otherwise relating to pollution or the protection of
human health or the environment.
1.13 "ERISA" means the Employee Retirement Income
Security Act of 1974, as amended.
1.14 "Excluded Liabilities" means all of Seller's
liabilities other than the Assumed Liabilities.
1.15 "Governmental Authority" means any federal, state or
local, or foreign government, governmental, regulatory or
administrative authority (or subdivision thereof) and any agency or
commission or any court, tribunal or judicial or arbitral body that
has jurisdiction over the Business, the Seller or the Assets.
1.16 "Governmental Order" means any order, writ,
judgment, injunction, decree, stipulation, determination or award
entered by or with any Governmental Authority.
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1.17 "Law" means any federal, state, local or foreign
statute, law, ordinance, regulation, rule, code, order, other
requirement or rule of law issued by any Governmental Authority.
1.18 "Marks" means all trademarks, service marks and
trade names of Seller, including without limitation, "Ivan's Quik
Print."
1.19 "Material Contract" means any contracts entered into
by the Seller and listed on Schedule 1.19 attached hereto.
1.20 "Person" means any individual, partnership, firm,
corporation, limited liability company, joint venture, association,
trust, unincorporated organization or other entity, as well as any
syndicate or group that would be deemed to be a person under
Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended.
1.21 "Purchase Price" means Ninety Thousand Dollars and
No Cents ($90,000.00).
1.22 "Tax" or "Taxes" means any and all taxes, stamp
duties, fees, levies, duties, tariffs, imposts, and other charges
of any kind (together with any and all interest, penalties,
additions to tax and additional amounts imposed with respect
thereto) imposed by any Governmental Authority or taxing authority,
including, without limitation: taxes or other charges on or with
respect to income, franchises, windfall or other profits, gross
receipts, property, sales, use, capital stock, payroll, employment,
social security, workers' compensation, unemployment compensation,
or net worth; taxes or other charges in the nature of excise,
withholding, ad valorem, stamp, transfer, value added, or gains
taxes; license, registration and documentation fees; and customs
duties, tariffs, and similar charges.
1.23 "Stock" means Buyer's Rule 144 common stock,
currently trading as NLNX-OTC:BB, subject to the restrictions,
representations and confirmations contained herein. With respect
to the Stock, the Seller(s) shall be referred to as "Shareholder."
ARTICLE II
PURCHASE AND SALE
2.1 Closing. The closing of the purchase and sale of the
Assets and the Concurrent Transactions (as defined in Section 5.1)
(the "Closing") shall take place at the offices of Xxxxxx &
Xxxxxxxxx, LLP, 0000 Xxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxxx, Xxxxxxx
00000, on or before ________________ at 9:30 a.m. The Closing Date
may only be changed by written mutual agreement of the parties.
2.2 Purchase and Sale of Assets. Subject to fulfillment of,
the conditions precedent, and based upon the representations and
warranties, set forth herein, Buyer shall, at Closing, purchase
from Seller, and Seller shall sell to Buyer, the Assets free and
clear of any and all Encumbrances. In consideration of and in full
payment for the Assets, Buyer shall, at Closing, pay to Seller the
Purchase Price as follows: (a) the sum of Fifteen Thousand Dollars
($15,000.00) payable to Seller in the form of a Bank Check,
Cashier's Check or attorney's trust account check, at Closing; and
(b) delivery of shares of Stock. If, at the close of trading on
the 365th day following the Closing Date, the value of the Stock
delivered to Seller does not have a value of at least $75,000.00
(the value to be determined by multiplying the publicly traded
share price at the close of that trading day by the number of
shares delivered to Seller at the Closing), Buyer shall deliver to
Seller, at its sole option and discretion, either (i) additional
shares of Stock in an amount which, at the share price at the close
of trading that day, will, when combined with the shares of Stock
delivered to Seller at Closing, provide Seller with a total number
of shares of Stock having a total value of $75,000 as of the 365th
day after the Closing Date; or (ii) cash in an amount necessary to
make up the difference between the value of the Stock on the 365th
day after the Closing Date (as determined in accordance with the
foregoing method) and $75,000.00. If Buyer elects to deliver
additional Stock in accordance with 2.2(b)(i), the delivery shall
be made on or before the 380th day after the Closing Date and any
stock delivered will be free of any Rule 144 Restriction. If Buyer
elects to deliver cash in accordance with 2.2(b)(ii), the delivery
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may be made in 12 equal monthly installments (without interest),
the first payment of cash to be mailed to Seller on or before the
380th day after the Closing Date.
2.3 Non-Competition and Non-Solicitation Agreement. Subject
to fulfillment of the conditions precedent, and based upon the
representations and warranties, set forth herein, Buyer shall, at
Closing, pay to Seller the sum of Ten Thousand Dollars ($10,000.00)
in the form of a Bank Check, Cashier's Check or attorney's trust
account check, in return for the Seller, and the Principals
executing and delivering the Non-Competition and Non-Solicitation
Agreement attached hereto as Exhibit 5.1(b) and further in return
for Xxxx Xxxxx, the husband of Xxxx Xxxxx and an employee of the
Seller, executing and delivering an Employment Agreement with Buyer
which agreement shall include a Non-Competition and Non-
Solicitation provision, a copy of such Employment Agreement being
attached hereto as Exhibit 5.1(c).
2.4 Assumed Liabilities. Subject to fulfillment of the
conditions precedent, and based upon the representations and
warranties set forth herein, at Closing the Buyer shall assume all
of the Assumed Liabilities. The Buyer shall not assume or have any
responsibility regarding the Excluded Liabilities, and Seller shall
retain all liability regarding the Excluded Liabilities.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF SELLER
As of the date hereof and as of the Closing Date, Seller
hereby represents and warrants to Buyer as follows:
3.1 Organization, Qualification, Etc. of Seller. Seller is
a duly organized and validly existing corporation under the Laws of
the State of Florida and has all necessary corporate power and
authority to own, operate or lease the properties and assets now
owned, operated or leased by it and to carry on its business as it
has been, and is currently and is anticipated to be conducted.
Seller is duly licensed or qualified to do business and is in good
standing in the state of Florida. All material corporate actions
taken by Seller have been duty authorized and Seller has not taken
any action that in any respect conflicts with, constitutes a
default under or results in a violation of any provision of its
Articles of Incorporation or Bylaws (collectively, the "Articles of
Incorporation"). True and correct copies of Seller's (a) Articles
of Incorporation, as amended and restated through the date hereof
and (b) resolutions of the members and the Board of Directors
adopted prior to the date hereof heretofore have been delivered to
Buyer and all of such resolutions remain in full force and effect
in the form delivered to Buyer.
3.2 Capitalization of Seller. Schedule 3.2 accurately sets
forth the names of the holders of all of the outstanding capital
stock of Seller and the number of shares owned by each such
stockholder. Each outstanding share of capital stock of Seller has
been duly and validly authorized and issued and is fully paid and
owned, beneficially and of record, by the stockholder(s) listed on
Schedule 3.2.
3.3 Title to the Assets. Seller has good title to or, in the
case of leased or subleased Assets, valid and subsisting leasehold
interests in, all the Assets, free and clear of all Encumbrances or
default.
3.4 Authority of Seller. Seller has all necessary power and
authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by Seller and (assuming due authorization, execution and
delivery by Buyer) constitutes the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with
its terms, except as such enforcement may be subject to: (a)
Bankruptcy or other similar laws now or hereafter in effect
relating to creditors' rights generally; and (b) general principles
of equity (regardless of whether such enforcement is considered in
a proceeding in equity or at law).
3.5 No Conflict. Assuming the obtaining of all the consents
and approvals referred to in Section 3.6, the execution, delivery
and performance of this Agreement by Seller and the consummation of
the transactions contemplated hereby do not and will not: (a)
conflict with or violate any Law or Governmental Order applicable
to Seller, which violation or conflict would, individually or in
the aggregate, have a material adverse effect on Seller, the
Business or on the transactions contemplated hereby (including the
Concurrent Transactions); or (b) conflict with, result in any
breach of, constitute a default (or an event which with the giving
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of notice or lapse of time, or both, would become a default) under,
require any consent under, or {live to others any rights of
termination, amendment, acceleration, suspension, revocation or
cancellation of, or result in the creation of any Encumbrance on
any of the assets properties of Seller or the Business pursuant to,
any note, bond, mortgage or indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument, agreement
or arrangement to which Seller is a party or by which any of such
assets or properties is bound or affected which conflict or
violation would, individually or in the aggregate, have a material
adverse effect on the ability of Seller to consummate the
transactions contemplated hereby or in the Business.
3.6 Consents and Approvals. Except as set forth on Schedule
3.6, the execution, delivery and performance of this Agreement by
Seller do not and xxxx not require any consent, approval,
authorization or other order of, action by, filing with or
notification to any Governmental Authority or any third party.
3.7 Financial Information. All balance sheets, profit and
loss accounts and all other financial information of Seller which
have been or hereafter shall be furnished by or on behalf of the
Seller to Buyer for the purposes of or in connection with this
Agreement or any transaction contemplated hereby, true and correct
copies of which are attached hereto as Exhibit 3.7, give a true and
fair view of the state of affairs of Seller as of the dates thereof
and' the results of its operations for the periods then ended,
subject to year-end adjustments consisting only of normal recurring
accruals.
3.8 Litigation. Except as set forth on Schedule 3.8, there
are no actions, disputes or claims (other than proceedings filed
but not yet served on Seller) being brought or threatened by or
against Seller (or any of Seller's directors, officers, employees
or agents), or affecting any of the Assets which, if adversely
determined, could reasonably be expected to have a material adverse
effect. Neither Seller nor the Assets are subject to any Law or
Governmental Order which has or could reasonably be expected to
have a material adverse effect.
3.9 Conduct of Business in the Ordinary Course. Seller has
conducted the Business only in the ordinary course and consistent
with past practice.
3.10 Compliance with Laws. Seller has conducted and
continues to conduct its business in all material respects in
accordance with all Laws and all Governmental Orders entered by or
with any Governmental Authorities, and Seller is in compliance with
all such Laws or Governmental Orders.
3.11 Environmental Compliance. Seller and the Real
Property (as hereinafter defined) are, and at all times have been,
in compliance with all applicable Environmental Laws.
3.12 Contracts. Each Material Contract: (i) is valid and
binding on the respective parties thereto and is in full force and
effect and (ii) upon consummation of the transactions contemplated
hereby shall continue in full force and effect without penalty or
other adverse consequence. Seller is not and to Seller's
knowledge, no other party to any Material Contract is, in breach of
or default under any Material Contract, which breach of default
would have a material adverse effect on the Seller or the Business.
3.13 Real Property. The particulars of the real property
set forth on Schedule 3.15 attached hereto (the "Real Property")
are true and correct in all respects. The Real Property comprises
all the real property used or occupied by Seller in connection with
the Business. There is no violation of any Law (including, without
limitation, any building, planning, zoning law or environmental
law) or any covenants, stipulations or conditions relating to any
of the Real Property and Seller is in peaceful and undisturbed
possession of the Real Property. There are no contractual or legal
restrictions that preclude or restrict in any material manner the
ability to use any of the Real Property in the manner in which they
are currently being used and the Real Property has all rights and
casements reasonably necessary for their use and enjoyment for the
purposes of the Business. Seller is not leasing or subleasing and
has not leased or sublet any parcel or any portion of any parcel
Real Property to any other Person, nor has Seller assigned its
interest under any lease or sublease for any leased Real Property
to any third party. There are no outstanding material disputes
with any Person relating to the Real Property or its use and no
notices have been given or received by Seller which would adversely
affect the use and enjoyment of the Real Property.
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3.14 Taxes.
a) Except as disclosed on Schedule 3.16: (i) all
returns and reports in respect of all Taxes required to be filed
with respect to Seller or the Business have been timely filed; (ii)
all Taxes required to be shown on such returns and reports or
otherwise due have been timely paid; (iii) all such returns and
reports are true, correct and complete; (,iv) no adjustment
relating to such returns has been proposed by any tax authority and
no basis exists for any such adjustment; (v) there are no pending
or threatened actions or proceedings for the assessment or
collection of Taxes against Seller; (vi) there are no Encumbrances
on any Assets; (vii) Seller has not been at any time a member of
any partnership or joint venture or the holder of a beneficial
interest in any trust for any period for which the statute of
limitations for any Tax has not expired; and (viii) all Taxes
required to be withheld, collected or deposited, as the case may
be, and, to the extent required, have been paid to the relevant
taxing authority.
b) Except as disclosed on Schedule 3.16: (i) there are
no outstanding waivers or agreements extending the statute of
limitations for any period with respect to any Tax to which Seller
may be subject; (ii) there are no proposed reassessments of any
property owned by Seller or other proposals that could increase the
amount of any Tax to which Seller would be subject; and (iii) no
power of attorney that is currently in force has been granted with
respect to any matter relating to Taxes that could affect Seller.
3.15 Brokers. Except as disclosed in Schedule 3.17, no
broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with the
transactions contemplated by this Agreement or the Concurrent
Transactions based upon an arrangement made by or on behalf of the
Seller.
3.16 Full Disclosure. No representation or warranty with
respect to Seller contained in this Agreement and no written
statement contained in any financial or operating data or
certificate furnished to Buyer pursuant to this Agreement, or in
connection with the transactions contemplated by this Agreement
(including the Concurrent Transactions), contains any untrue
statement of a material fact, or omits to state a material fact
necessary to make the statements contained herein or therein not
misleading.
3.17 With respect to the Stock, Shareholder confirms
that:
i) it is qualified to hold the Stock;
ii) it is Familiar with Rule 144 of the
Securities Act of 1933, as amended from time to time (the
"Securities Act"), and understands the resale limitations imposed
under the Securities Act;
iii) it understands that it must bear the
economic risk of his investment in Buyer for an indefinite period
of time since the Stock has not been registered for sale under the
Securities Act and, therefore, cannot be sold or otherwise
transferred unless subsequently registered under the Securities Act
or applicable state blue sky laws or an exemption from such
registration is available;
iv) it understands that no federal or state
agency has passed upon the Stock or made any finding or
determination as to the fairness of this investment;
v) it has carefully reviewed and understands the
risks of, and other considerations relating to an investment in
Buyer. It has been furnished any materials relating to Buyer and
the Stock it has requested and has been afforded the opportunity to
ask questions and receive answers concerning the terms and
conditions of the Stock and to obtain any additional information
that Buyer possesses or can acquire without unreasonable effort or
expense that is necessary to verify the accuracy of any
representations or information provided to it;
vi) representatives of Buyer have answered all
inquiries that it has made of them concerning Buyer, or any other
matters relating to the formation and operation of Buyer and the
offering and sale of the Stock. Shareholder is not receiving the
Stock as a result of or subsequent to any advertisement, articles,
notice or other communication published in any newspaper, magazine
or similar media or broadcast over television or radio or presented
at any seminar or meeting;
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vii) it has relied only upon information
furnished or made available to it by Buyer and no oral
representations or warranties have been made to it;
viii) it understands that any underwriter in an
initial public offering of Buyer's securities may request that it
not sell any of Buyer's common stock without such underwriter's
prior written consent for a period not to exceed 12 months from the
effective date of such public offering;
ix) it understands and agrees that certain
restrictions and limitations are applicable to the resale and any
other transfer it may make of the Stock. Legends in substantially
the following form will be placed on each certificate representing
the Stock, and any securities issued in replacement or exchange
therefore, as well as legends which may be required by applicable
state securities law:
THE SHARES REPRESENTED BY THE CERTIFICATE HAVE
NOT BEEN RECISTERED UNDER THE SECURITIES ACT
OF 1933 OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. THE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD, ASSIGNED OR OTHFRWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR LAWS
OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
THE HOLDER OF THESE SECURITIES HAS ALSO AGREED
THAT IF THE COMPANY SELLS ITS SECURITIIS IN AN
INITIAL PUBLIC OFFERING, THE SECURITIES
REPRESENTED BY THIS CERTIFICATE CANNOT BE
SOLD FOR UP TO 12 MONTHS AFTER SUCH PUBLIC
OFFERING WITHOUT THE CONSENT OF THE MANAGING
UNDERWRITER.
x) It is agreed that the Stock is subject to a
restriction prohibiting its sale by Seller for a period of twelve
months ("Lockup Period"). It is agreed that at the expiration of
the 12 month "lockup period" Buyer will assist Seller, at no cost,
expense or delay to Seller, in exchanging Seller's 144 common
shares into common shares free of restrictions imposed by Rule 144
so that Seller may trade or sell its shares on the public market
then existing for the shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
As of the date hereof and as of the Closing Date, Buyer hereby
represents and warrants to Seller as follows:
4.1 Organization, Qualification, Etc. of Buyer. Buyer is a
duly registered, incorporated and validly existing corporation
under the Laws of Delaware.
4.2 Authority of Buyer. Buyer has all necessary corporate
power and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement
by Buyer, the performance by Buyer of its obligations hereunder and
the consummation by Buyer of the transactions contemplated hereby
have been duly authorized by all requisite corporate action on the
part of the Buyer. This Agreement has been duly executed and
delivered by Buyer and (assuming due authorization, execution and
delivery by Seller) constitutes the legal, valid and binding
obligation of Buyer, enforceable against Buyer in accordance with
its terms, except as such enforcement may be subject to (a)
Bankruptcy or other similar laws now or hereafter in effect
relating to creditors' rights generally and (b) general principles
of equity (regardless of whether such enforcement is considered in
a proceeding in equity or at law).
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4.3 No Conflict. Assuming the obtaining of all the consents
and approvals referred to in Section 4.4, the execution, delivery
and performance of this Agreement by Buyer and the consummation of
the transactions contemplated hereby do not and will not (a)
violate, conflict with or result in the breach of any provision of
Buyer's Articles of Incorporation or Bylaws (collectively, the
"Articles of Incorporation"), (b) conflict with or violate any Law
or Governmental Order applicable to Buyer, which violation or
conflict could, individually or in the aggregate, have a material
adverse effect on Buyer, or (c) conflict with, or result in any
breach of, constitute a default (or event which with the giving of
notice or lapse or time, or both, would become a default) under,
require any consent under, or give to others any rights of
termination, amendment, acceleration, suspension, revocation, or
cancellation of, or result in the creation of any Encumbrance on
any of the assets or properties of Buyer pursuant to, any note,
bond, mortgage or indenture, contract, agreement, lease, sublease,
license, permit, franchise or other instrument, agreement or
arrangement to which Buyer is a party or by which any of such
assets or properties are bound or affected which could reasonably
be expected to have a material adverse effect on the ability of
Buyer to consummate the transactions contemplated hereby.
4.4 Consents and Approvals. Except as disclosed on Schedule
4.4, the execution, delivery and performance of this Agreement by
Buyer do not and will not require any consent, approval,
authorization or other order of, action by, filing with, or
notification to, any Governmental Authority or any third party.
4.5 Litigation. No claims or proceedings are pending or, to
the knowledge of Buyer, threatened by or against Buyer (or, to
Buyer's knowledge, any of its directors, officers, employees or
agents) which, if adversely determined, could reasonably be
expected to have a material adverse effect or could reasonably be
expected to affect the legality, validity or enforceability of this
Agreement or the consummation of the transactions contemplated
hereby, including without limitation the Concurrent Transactions.
4.6 Full Disclosure. No representation or warranty of Buyer
contained in this Agreement and no written statement contained in
any financial or operating data or certificate furnished or to be
furnished to Seller pursuant to this Agreement, or in connection
with the transactions contemplated by this Agreement (including the
Concurrent Transactions), contains or will contain any untrue
statement of a material fact, or omits or will omit to state a
material fact necessary to make the statements contained herein or
therein not misleading.
ARTICLE V
CONCURRENT TRANSACTIONS; DELIVERIES; CONDITIONS
5.1 Concurrent Transactions. The parties hereto acknowledge
that each of the parties hereto has relied upon the accuracy,
validity and effectiveness of such other parties' representations,
warranties and agreements in entering into this Agreement and that,
concurrently with the Closing:
a) Buyer shall deliver the Stock in accordance with
Section 2.2.
b) Seller, Iris, and Xxxxxxx shall execute and deliver
to Buyer the Non-Competition and Non-Solicitation Agreement, a copy
of which is attached hereto as Exhibit 5.1(b), in accordance with
Section 2.2.
c) Xxxx Xxxxx shall execute and deliver the Employment
Agreement attached hereto as Exhibit 5.1(c).
5.2 Deliveries by Seller. On or prior to the Closing, Seller
shall execute or cause to be executed and deliver or cause to be
delivered to Buyer the following documents, certificates and
agreements:
a) Xxxx of Sale. A Xxxx of Sale, in the form of
Exhibit 5.3 attached hereto, executed by Seller;
b) Resolutions of Seller. A true and complete copy,
certified by the Secretary of Seller, of the resolutions duly and
validly adopted by the stockholders and board of directors of
Seller evidencing its authorization of the execution and delivery
of this Agreement and the consummation of the transactions
contemplated hereby;
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c) Incumbency Certificate of Seller. A certificate of
the Secretary of Seller certifying the names of the officers of
Seller authorized to sign this Agreement and the other documents to
be delivered hereunder on behalf of ,Seller;
5.3 Conditions Precedent to the Parties' Obligations to
Close. The obligations of each of Seller and Buyer hereunder to
consummate the transactions contemplated hereby are subject to the
satisfaction or, in each parties' sole discretion, waiver on or
before the Closing of each of the following conditions.
a) Deliveries. Receipt by the appropriate parties of
the items enumerated in Sections 5.1 and 5.2 hereof.
b) No Adverse Change. Since May 4, 1999 (the date of
the Letter of Intent between the parties), there shall have been no
material adverse effect on the Business, the Assets, or the
financial condition or prospects of the Seller.
c) No Proceeding or Litigation. No action, proceeding
or litigation shall have been commenced or threatened by any
Governmental Authority seeking to restrain or materially alter the
transaction contemplated hereby which, in the reasonable good faith
determination of Seller or Buyer, is likely to render it impossible
or unlawful, or otherwise render inadvisable the parties' intent,
to consummate the transactions contemplated hereby or any of the
Concurrent Transactions.
5.4 Transition of Business.
a) Advisory Services. For a period (the "Transition
Period") of up to 60 days following the Closing, the Principals
shall provide the Company with the following consulting and
advisory services pertaining to the Business:
i) management and operation of the Business,
including without limitation, the sale of services and servicing of
customer accounts; and
ii) introductions to customers and suppliers.
ARTICLE VI
INDEMNIFICATION
6.1 Survival. All representations and warranties contained
herein and made in writing by or on behalf of the parties hereto in
connection with the transactions contemplated hereby shall survive
the execution and delivery of this Agreement and the Closing,
without limitation as to time.
6.2 Buyer's Right to Indemnification. Subject to the
provisions of this Article VI and in addition to any other rights
and remedies available to Buyer under applicable law, Seller, Iris,
and Xxxxxxx, jointly and severally, shall indemnify and hold
harmless Buyer or any of its officers, directors, shareholders,
employees, agents, representatives, attorneys, successors,
predecessors and assigns from and against any and all losses,
obligations, liabilities, damages, claims, deficiencies, costs and
expenses (including, but not limited to, the amount of any
settlement entered into pursuant hereto and all reasonable legal
and other expenses incurred in connection with the investigation,
prosecution or' defense of any matter)(collectively "Claims"),
which may be asserted against or sustained or incurred by Buyer in
connection with, arising out of, or relating to: (i) any breach of
any, or any false, incorrect or misleading, representation or
warranty that is made by Seller herein or in any Exhibit, Schedule,
certificate or other document delivered to Buyer by Seller with
respect to Seller in connection with this Agreement.
6.3 Seller's Right to Indemnification. Subject to the
provisions of this Article VI and in addition to any other rights
and remedies that may be available to Seller under applicable law,
Buyer shall indemnify and hold harmless Seller or any of its
officers, directors, shareholders, employees, successors,
predecessors and assigns from and against Claims which may be
asserted against or sustained or incurred by Seller in connection
9
with, arising out of, or relating to: (i) any breach of any, or any
false, incorrect or misleading, representation or warranty that is
made by Buyer herein or in any Exhibit, Schedule, certificate or
other document delivered to Seller by or on behalf of Buyer in
connection with this Agreement or (ii) any breach of any agreements
and covenants made by Buyer herein or in any Exhibit, Schedule,
certificate or other document delivered to Seller by or on behalf
of Buyer in connection with this Agreement.
6.4 Procedure for Claims.
a) Notice of Claim. Promptly, but in any event within
30 days after obtaining knowledge of any claim or demand which may
give rise to, or could reasonably give rise to, a claim for
indemnification hereunder (any such claim an "Indemnification
Claim"), the party or parties entitled to indemnification hereunder
(the "Indemnified Party") shall give written notice to the party or
parties subject to indemnification obligations therefor (the
"Indemnifying Party") of such Indemnification Claim (a "Notice of
Claim"). A Notice of Claim shall be given with respect to all
Indemnification Claims. However, the failure to timely give a
Notice of Claim to the Indemnifying Party shall not relieve the
Indemnifying Part from any liability that it may have to the
Indemnified Party hereunder to the extent that the Indemnifying
Party is not prejudiced by such failure. The Notice of Claim shall
set forth the amount (or a reasonable estimate) of the loss, damage
or expense suffered, or which may be suffered, by the Indemnified
Party as a result of such Indemnification Claim and a brief
description of the facts giving rise to such Indemnification Claim.
The Indemnified Party shall furnish to the Indemnifying Party such
information (in reasonable detail) as the Indemnified Party may
have with respect to such Indemnification Claim (including copies
of any summons, complaint or other pleading which may have been
served on it and any written claim, demand, invoice, billing or
other document evidencing or asserting the same).
b) Third Party Claims.
i) If the claim or demand set forth in the Notice
of Claim is a claim or demand asserted by a third party (a "Third
Party Claim"), the Indemnifying Party shall have 15 days (or such
shorter period if an answer or other response or filing with
respect to the pleadings served by the third party is required
prior to the 15th day) after the date of receipt by the Indemnifying
Party of the Notice of Claim (the "Notice Date") to notify the
Indemnified Party in writing of the election by the Indemnifying
Party to defend the Third Party Claim on behalf of the Indemnified
Party.
ii) If the Indemnifying Party elects to defend
a Third Party Claim on behalf of the Indemnified Party, the
Indemnified party shall make available to the Indemnifying Party
and its agents and representatives all records and other materials
in its possession which are reasonably required in the defense of
the Third Party Claim and the Indemnifying Party shall pay any
expenses payable in connection with the defense of the Third Party
Claim as they are incurred (whether incurred by the Indemnified
Party or Indemnifying Party).
iii) In no event may the Indemnifying Party
settle or compromise any Third Party Claim without the Indemnified
Party's consent, which shall not be unreasonably withheld.
iv) If the Indemnifying Party elects to defend
a Third Party Claim, the Indemnified Party shall have the right to
participate in the defense of the Third Party Claim, at the
Indemnified Party's expense (and without the right to
indemnification for such expense under this Agreement). However,
the reasonable fees and expenses of counsel retained by the
Indemnified Party shall be at the expense of the Indemnifying Party
if (a) the use of the counsel chosen by the Indemnifying Party to
represent the Indemnified Party would present such counsel with a
conflict of interest; (b) the parties to such proceeding include
both the Indemnified Party and the Indemnifying Party and there may
be legal defenses available to the Indemnified Party which are
different from or additional to those available to the Indemnifying
Party; (c) within 10 days after being advised by the Indemnifying
Party of the identity of counsel to be retained to represent the
Indemnified Party, the Indemnified Party shall have objected to the
retention of such counsel for valid reasons (which shall be stated
in a written notice to Indemnifying Party), and the Indemnifying
Party shall not have retained different counsel reasonably
satisfactory to the Indemnified Party; or (d) the Indemnifying
Party shall authorize the Indemnified Party to retain separate
counsel at the expense of the Indemnifying Party.
10
v) If the Indemnifying Party does not elect to
defend a Third Party Claim, or does not defend a Third Party Claim
in good faith, the Indemnified Party shall have the right, in
addition to any other right or remedy it may have hereunder, at the
sole and exclusive expense of the Indemnifying Party, to defend
such Third Party Claim.
vi) To the extent that an Indemnified Party
recovers on a Third Party Claim, the amount of such recovery (after
deduction of all costs and expenses incurred in connection with
such Third Party Claim) shall reduce, dollar-for-dollar, the
indemnification obligation otherwise owing by the Indemnifying
Party.
c) Cooperation in Defense. The Indemnified Party shall
cooperate with the Indemnifying Party in the defense of a Third
Party Claim. Subject to the foregoing, (i) the Indemnified Party
shall not have any obligation to participate in the defense of or
to defend any Third Party Claim and (ii) the Indemnified Party's
defense of or is participation in the defense of any Third Party
Claim shall not in any way diminish or lessen its right to
indemnification as provided in this Agreement.
ARTICLE VII
GENERAL PROVISIONS
7.1 Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation,
fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
7.2 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be
given or made (and shall be deemed to have been duly given or made)
upon the earliest to occur of (a) receipt, if made by personal
service, (b)three days after dispatch, if made by reputable
overnight courier service, (c) upon the delivering party's receipt
of a written confirmation of a transmission made by cable, by
telecopy, by telegram, or telex or (d) seven days after being
mailed by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be
specified in a notice given in accordance with this Section 7.2):
(a) if to Buyer: XxxxxXxXxxXxx.xxx, Inc.
0000 XX 00xx Xxxxxx
Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxxxxx
with a copy to: Xxxx X. Xxxxxxxxx, Esq.
Xxxxxx & Xxxxxxxxx LLP
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
11
(b) if to Seller:
with a copy to:
7.3 Interpretation. The descriptive headings contained in
this Agreement are for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
Each party has had the opportunity to review and participate in the
drafting of this Agreement and no term or provision of this
Agreement shall be construed narrowly or strictly against the party
that was responsible for the drafting of this Agreement or such
term or provision.
7.4 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any
Law or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially
adverse to any party.
7.5 Entire Agreement. Except as otherwise identified herein,
this Agreement, including all of the Exhibits and Schedules
attached hereto which are incorporated herein by this reference,
and the agreements effecting the Concurrent Transactions constitute
the entire agreement of the parties hereto with respect to the
subject matter hereof and thereof and supersede all prior
agreements and undertakings, both written and oral, between Seller
and Buyer with respect to the subject matter hereof and thereof.
7.6 Assignment. This Agreement and the rights and duties
hereunder may not be assigned or assumed by operation of law or
otherwise (other than an assignment by Buyer to an Affiliate of
Buyer) without the express prior written consent of the other
parties, as applicable), but Buyer remains liable on the note, and
Buyer must retain its corporate existence until the note is paid in
full.
7.7 Amendment; Waiver. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf
of, each party hereto. Each party to this Agreement may (a) extend
the time for the performance of any of the obligations or other
acts of the other parties, (b) waive any inaccuracies in the
representations and warranties of the other parties contained
herein or in any document delivered by the other party pursuant
hereto or (c) waive compliance with any of the agreements or
conditions of the other parties contained herein. Any such
extension or waiver shall be valid only if set forth in an
instrument in writing signed by all of the other parties to be
bound thereby. Any waiver of any term or condition shall not be
construed as a waiver of any subsequent breach or subsequent waiver
of the same term or condition, or a waiver of any other term or
condition, of this Agreement. The failure of any party to assert
any of its rights hereunder shall not constitute a waiver of any
such rights.
7.8 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Florida
(without regard to its principles regarding conflicts of law).
7.9 Choice of Forum. All actions or proceedings initiated by
any party hereto and arising directly or indirectly out of this
Agreement which are brought to judicial proceedings shall be
litigated in Miami-Dade County Circuit Court.
7.10 Counterparts. This Agreement may be executed in one
or more counterparts, and by the different parties-hereto in
separate counterparts, each of which when executed shall be deemed
to be an original but all of which taken together shall constitute
one and the same agreement.
7.11 Attorneys' Fees. If any legal action or other
proceeding is brought for the enforcement of this Agreement, or
because of an alleged dispute, breach, default or misrepresentation
in connection with any of the provisions of this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys'
12
fees and other costs incurred in that action or proceeding, in
addition to any other relief which it may be entitled.
7.12 Further Action. Each of the parties hereto shall use
all reasonable efforts to take, or cause to be taken, all
appropriate action, do or cause to be done all things reasonably
necessary, proper or advisable under applicable Law, and execute
and deliver such documents and other papers, as may be required to
carry out the provisions of this Agreement and consummate and make
effective the transactions contemplated by this Agreement.
IN WITNESS WHEREOF, Seller, Ivan, Iris, and Xxxxxxx, and Buyer
have caused this Agreement to be executed as of the date first
written above.
XxxxxXxXxxXxx.xxx, Inc. Ivan's Quik Print, Inc.
By:/s/Xxxxxxxx Xxxxxxxxxx By:/s/Xxxx Xxxxx
Name: Xxxxxxxx Xxxxxxxxxx Name: Xxxx Xxxxx
Title: C.E.O Title: President
/s/ Xxxx Xxxxx
Xxxx Xxxxx
/s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
13
SCHEDULE 1.1 - ASSETS
1 Vehicle NuArc Camera
1 Rollem for scoring, perforating and numbering
1 NuArc carbon platemaker and chemicals and plates
1 challenge gold 31' cutter
1 challenge gold drill press
1 Ibeco Laminator
1 O&M table top folder
1 8 bin semi automatic collator
1 challenge folder no right angle
1 xxxxxx collator
2 joggers
1 Itek camera
1 wrapping unit (plastic)
1 AB Xxxx Xxxxx Press
1 AB Dick Chain Delivery Press with T-Head
2 Saddle Stitchers
2 NuArc Light Tables
1 Slidex Wax Master
1 Mini Refrigerator
1 Fax Machine
1 metal desk
3 metal filing cabinets
SCHEDULE 1.2 - ASSUMED LIABILITIES
None
SCHEDULE 1.19 - MATERIAL CONTRACTS
None
SCHEDULE 3.2 - STOCKHOLDERS
Xxxx Xxxxx
Xxxxxxx Xxxxx
SCHEDULE 3.6 - CONSENT AND APPROVAL BY THIRD PARTIES (SELLER)
None
SCHEDULE 3.8 - PENDING LITIGATION
None
SCHEDULE 3.14(A) - LIST OF EMPLOYEES, COMPENSATION AND BENEFITS
Xxxxxxx Xxxxx
Xxxx Xxxxx
SCHEDULE 3.15 - REAL PROPERTY
None
SCHEDULE 3.16 - TAX RETURNS NOT FILED
None
SCHEDULE 3.17 - BROKERS
None
SCHEDULE 4.4 - CONSENT AND APPROVAL BY THIRD PARTIES (BUYER)
None
EXHIBIT 5.1(b)
NON-COMPETITION AND NON-SOLICATION AGREEMENT
NON-COMPETITION AGREEMENT, dated as of ______________________, among
XxxxxXxXxxXxx.xxx, Inc. ("POTN"), Ivan's Quik Print, Inc., a Florida
corporation, ("IQP"), Xxxx Xxxxx ("Iris"), and Xxxxxxx Xxxxx ("Xxxxxxx").
RECITALS
A. IQP has sold all or part of its assets to POTN, pursuant
to that certain Asset Purchase Agreement, dated May 5, 1999, among
POTN, IQP, Iris, and Xxxxxxx.
B. POTN wishes to protect its legitimate business interests
and !ensure that IQP, Iris, and Xxxxxxx xx not compete with POTN
and its subsidiaries, including, without limitation, PrintAmerica
Management Company, Inc., and National Lithographers and
Publishers, Inc. (collectively, the "Company") for a certain
period of time, pursuant to the terms and conditions of this
Agreement.
C. Iris, and Xxxxxxx are principals, officers, directors,
shareholders and/or key employees of Seller, and agree that their
execution of this Agreement and agreement to be bound thereby is
supported by valuable consideration paid by POTN to IQP.
NOW THEREFORE, in consideration of $10,000.00 or other
valuable consideration, the parties agree as follows:
1. Recitals. The above recitals are true and correct and
are incorporated herein by reference.
2. Non-Competition and Non-Solicitation. During the
Restricted Period (as hereinafter defined) and within the
Restricted Area (as hereafter defined), IQP, and Iris, individually
and/or collectively without the written consent of POTN, shall not,
directly, or indirectly, alone or as a partner, officer, director,
employee, consultant, agent, independent contractor, member or
stockholder of any company or business organization (a) engage in
any business which is directly or indirectly in competition with
the Business; (b) provide goods or services to anyone else that is
directly or indirectly in competition with the Business; (c) shall
not solicit to sell nor sell goods or services to any current or
past customer or competitor of Company and/or IQP; (d) recruit,
solicit, induce, or influence any Company's employees, consultants,
suppliers or existing and prospective customers that were such with
respect to Company and/or IQP at any time prior to or during the
Restricted Period to discontinue, reduce or modify such
relationship with Company and/or IQP; and (e) shall not accept any
business from any existing and prospective customers that were such
with respect to Company and/or IQP at any time prior to or during
the Restricted Period.
During the Restricted Period (as. hereinafter defined) and
within the Restricted Area (as hereafter defined), Xxxxxxx, without
the written consent of POTN, shall not, directly, or indirectly,
alone or as a partner, officer, director, employee, consultant,
agent, independent contractor, member or stockholder of any company
or business organization (a) shall not solicit to sell nor sell
goods or services to any current or past customer of Company and/or
IQP; (b) recruit, solicit, induce, or influence any Company's
employees, consultants, suppliers or existing and prospective
customers that were such with respect to Company and/or IQP at any
time prior to or during the Restricted Period to discontinue,
reduce or modify such relationship with Company; and (c) shall not
accept any business from any existing and prospective customers
that were such with respect to Company and/or IQP at any time prior
to or during the Restricted Period.
3. Certain Definitions. For purposes of this Agreement:
"Restricted Period" shall mean the period commencing as of the
date hereof and terminating three (3) years from the date hereof.
1
"Restricted Area" means all areas in the following counties in
the State of Florida: Miami-Dade County, Broward County, Palm Beach
County, and Monroe County
"Business" shall, notwithstanding anything herein to the
contrary, include all products, services and activities of the
Company, whether now or previously offered at any time by the
Company, which are graphic arts, printing and related goods or
services.
4. Confidential Information.
IQP, Iris and Xxxxxxx acknowledge and agree that all
Confidential Information (as defined below) known or obtained by
them, whether before or after the date hereof, is the property of
the Company. Therefore, IQP, Iris and Xxxxxxx agree that they will
not, at any time, disclose to any unauthorized persons or use for
his own account or for the benefit of any third party any
Confidential Information, whether IQP, Iris and/or Xxxxxxx have
such information in their memory or embodied in writing or other
physical form, without POTN's written consent, unless and to the
extent that the Confidential Information is or becomes generally
known to and available for use by the public other than as a result
of IQP's, Iris' and/or Michael's fault or the fault of any other
person bound by a duty of confidentiality to POTN may request, all
documents, memoranda, notes, plans, records, reports, and other
documentation, models, components, devices, or computer software,
whether embodied in a disk or in other form (and all copies of all
of the foregoing), relating to the businesses, operations, or
affairs of the Company and any other Confidential Information that
IQP, Iris and Xxxxxxx xxx then possess or have under their control.
For purposes of this Agreement, "Confidential Information"
shall mean: (i) any and all trade secrets concerning the business
and affairs of the Company, product specifications, data, know-how,
formulae, compositions, processes, designs, sketches, photographs,
graphs, drawings, samples, inventions and ideas, past, current and
planned research and development, current and planned manufacturing
and distribution methods and processes, customer lists, current and
anticipated customer requirements, price lists, market studies,
business plans, computer software and programs (including object
code and source code), computer software and database technologies,
systems, structures and architectures (and related processes,
formulae, compositions, improvements, devices, know-how,
inventions, discoveries, concepts, ideas, designs, methods and
information, and any other information, however documented, of the
Company that is a trade secret under Florida law; (ii) any and all
information concerning the business and affairs of the Company
(which includes historical financial statements, financial
projections and budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds of key
personnel, personnel training and techniques and materials),
however documented; and (iii) any and all notes, analysis,
compilations, studies, summaries, and other material prepared by or
for the Company containing or based, in whole or in part, on any
information included in the foregoing.
5. Enforcement. In the event of an actual or threatened
breach by IQP, Iris and/or Xxxxxxx of any of the covenants
contained herein, Company or POTN shall be entitled to an
injunction restraining them from the prohibited conduct.
Notwithstanding the specific provisions of the covenants against
competition set forth herein and the parties' acknowledgement that
the terms and conditions set forth herein are fair and reasonable,
if a court of competent jurisdiction should hold that the duration
and/or scope (geographic or otherwise) of the covenants contained
herein are unreasonable, then, to the extent permitted by law, the
court may prescribe a duration and/or scope (geographic or
otherwise) that is reasonable and the parties agree to accept such
determination, subject to their rights of appeal. Nothing herein
stated shall be construed as prohibiting Company or POTN or any
third party from pursuing any other remedies available to it for
such breach or threatened breach, including the recovery of
damages. In any action or proceeding to enforce the provisions of
this Agreement, the prevailing party shall be reimbursed by the
other party for all costs incurred in such action or proceeding
including, without limitation, all court costs and filing fees, and
all reasonable attorneys' fees, incurred either at the trial level
or at the appellate level. The existence of any claim or cause of
action by IQP, Iris and/or Xxxxxxx against Company or POTN shall
not constitute a defense to the enforcement by Company or POTN of
the foregoing restrictive covenants
6. Benefit; Assignment. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their
successors, personal representatives, heirs and permitted assigns.
2
7. Termination. This Agreement may not be terminated by
either party for any reason whatsoever without the prior written
consent of the other party, which consent may be arbitrarily
withheld by the party whose consent is required.
8. Notices. Whenever any notice, payment, or other
communication is required to be given or delivered pursuant to this
Agreement, such notice shall be given in writing and shall be
delivered in person or by certified mail, return receipt requested,
and shall be sufficiently given if personally delivered, or by mail
addressed as follows:
(a) if to POTN: XxxxxXxXxxXxx.xxx, Inc.
0000 XX 00xx Xxxxxx
Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxxxxx
with a copy to: Xxxx X. Xxxxxxxxx, Esq.
Xxxxxx & Xxxxxxxxx LLP
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to IQP, Iris
and Xxxxxxx:
with a copy to:
or to such other address as either party may have by written notice
designated to the other party, given in accordance with this
Paragraph 8.
9. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
10. Headings. Titles or headings in paragraphs contained in
this Agreement are inserted only as a matter of convenience and for
reference and in no way define, limit, extend, or prescribe the
scope of this Agreement or the intent of any provision.
11. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
12. Entire Agreement. This Agreement constitutes the entire
agreement and understanding and supersedes all prior agreements and
understandings, both written and oral, between the parties with
respect to the subject matter hereof.
13. Amendment. This Agreement may not be amended or
modified, except by written agreement of the parties hereto.
3
14. Waiver. The provisions of this Agreement shall not be
waived, modified or amended, except by a subsequent writing signed
by a duly authorized representative of the party sought to be
bound. Waiver by a party to a breach of any of the terms of this
Agreement by the other party shall not be deemed a waiver of future
compliance herewith, and such terms shall remain in full force and
effect.
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed as of the date first above written.
XxxxxXxXxxXxx.xxx, Inc.
By:_______________________
Name:_____________________
Title:____________________
Ivan's Quik Print, Inc.
By:_______________________
Name:_____________________
Title:____________________
__________________________
Xxxxxxx Xxxxx
__________________________
Xxxx Xxxxx
4
EXHIBIT 5.1(c)
EMPLOYMENT AGREEMENT
This Agreement, made and entered into this ~ day of August,
1999, by and between XxxxxXxXxxXxx.xxx, Inc. (hereinafter
"Employer" and/or "Company"), and Xxxx Xxxxx (hereinafter
"Employee");
W I T N E S S ET H:
WHEREAS, Employer is a Delaware corporation authorized to
transact business in Florida, engaged in the business of, among
other things, printing; and
WHEREAS, Employer is purchasing assets of Ivan's Quik Print,
Inc. ("IQP"), for whom Employee has worked performing sales
functions;
WHEREAS, the Employee is an individual with sales experience
in the printing business, and has relationships with customers of
IQP; and
WHEREAS, the Employer desires to employ Employee and Employee
desires to be employed by Employer to perform sales functions;
NOW, THEREFORE, in consideration of the following promises,
and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Employee agrees to
work for Employer under the following terms, and the parties
covenant and agree as follows:
1. Term. Employer agrees to employ the Employee for an
initial term of one (1) year commencing August 30, 1999
("Commencement Date") and ending August 29, 2000 unless terminated
prior thereto under the terms set forth herein. Such initial
period of employment is hereinafter referred to as the "Initial
Term". The Initial Term and all periods of employment thereafter
(if any are agreed to by the parties), until termination of
employment, are referred to as the "Period of Active Employment."
2. Compensation. For all services rendered by the Employee
under this Agreement, Employee shall be a commission equal to 10%
on paid invoices of the gross sales on all IQP Business. For the
purposes of this Agreement, "IQP Business" shall mean all sales to
customers who are identified on Exhibit A hereto. Employee shall
not be entitled to any other compensation.
3. Benefits.
A. Health Insurance. During the term of this Agreement,
Employee shall be entitled to participate in any and all Company
sponsored health insurance plans that may exist, which premium for
Employee shall be paid entirely by Company.
B. Expenses. Employee may incur reasonable expenses for
promoting the business of Employer, including expenses for
entertainment, travel and similar items. Employer shall reimburse
Employee for all such reasonable expenses upon Employee's
presentation of an itemized account of such expenditures.
C. Vacation. With each calendar year of this Agreement,
Employee is entitled to a vacation of one (1) week without pay;
provided, however, that Employee is not entitled to any vacation
time during the first 90 days of employment hereunder.
D. Sick Leave. As determined by the Employer, the Employee
shall be entitled to five (5) days of sick leave without pay.
1
4. Duties. Employee accepts employment with the Employer
subject to the terms and conditions as herein set forth. Employee
agrees to actively work no less than twenty (20) hours per week to
provide such services as are required of him by the Employer,
including, but not limited to, providing his full attention and
time to sales of the Company's services and products and to
maintain the IQP Business at the same or greater level of gross
dollar sales as existed as of the date of this Agreement. Employee
agrees that during the period of active employment, he shall devote
his full time and efforts, and shall contribute his best skill and
services at all times for the business and benefit of the Employer.
Employee agrees that he will comply with all applicable and
relevant policies, resolutions, directives, instructions, rules,
regulations, procedures and by-laws as issued and promulgated by
the Employer, involving any matter which directly or indirectly
relates to the Employee's duties hereunder, and he will conduct
himself in accordance with the aforesaid. Employee also agrees
that he will maintain accurate records in the manner and form
prescribed by the Employer and shall prepare and submit such
reports, information, documents and records relating to the
services performed by him for the Employer as the Employer may
request from time to time.
5. Termination of Employment. Notwithstanding the
provisions of paragraph 1 herein, the parties acknowledge that this
Agreement can be terminated by either party, subject to the
following conditions:
A. Without Cause. Employer or Employee may terminate this
Agreement without cause by providing to the other party twenty-one
(21) days written notice of intent to terminate. Provided,
however, that neither party may terminate this Agreement during the
first ninety (90) days of this Agreement.
B. With Cause. Employer may terminate this Agreement with
cause at any time; however, the reasons for such termination must
be provided and stated to Employee either verbally or in writing on
the day of notice of termination. For purposes of this Agreement,
cause shall constitute and be based solely upon Employee's
violation of this Agreement, misfeasance, malfeasance or commission
of an illegal or other fraudulent act in the course of Employee's
employment.
C. Upon Death. If the Employee dies during the term of this
Agreement, the Agreement shall be deemed terminated, and the
Employer shall only have to pay the Employee's estate any
outstanding and unpaid salary which accrued pro rata for that pay
period.
D. Records. Upon termination or expiration of Employee's
employment, he shall surrender to Employer all records, files,
documents and other evidence of any confidential or otherwise
proprietary information and knowledge related to Employer's
business. Further, during the term of this agreement, Employee
shall not remove any secret, or confidential or otherwise
proprietary information from the Employer's place of business
without receiving the Employer's prior written consent.
Should the Agreement be terminated, as permitted herein,
Employer shall not be required to pay Employee (or his estate as
the case may be) any salary except for accrued (but unpaid)
compensation due pursuant to Section 2 of this Agreement. Employee
(or his estate as the case may be) shall not have the right to
payment of commissions for sales to customers arising out of IQP
Business following the date that the Agreement is terminated.
6. Restrictive Covenants. Employer wishes to protect its
legitimate business interests and ensure that Employee does not
compete with Employer and its subsidiaries and affiliated companies
including, without limitation, PrintAmerica Management Company,
Inc., and XxxxxXxXxxXxx.xxx, Inc. (collectively, the "Company")
for a certain period of time, pursuant to the terms and conditions
of this Agreement. In consideration of his employment, Employee
agrees that he shall be bound by the following covenants, each of
which shall be construed to be severable.
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A. Non-Competition and Non-Solicitation.
During the Restricted Period (as hereinafter defined) and
within the Restricted Area (as hereafter defined), Employee,
without the written consent of Employer, shall not, directly, or
indirectly, alone or as a partner, officer, director, employee,
consultant, agent, independent contractor, member or stockholder of
any company or business organization, except Employee, may own any
stocks, bonds or securities issued by a company listed on a
national securities exchange, (a) engage in any business which is
directly or indirectly in competition with the Business; (b)
provide goods or services to anyone else that is directly or
indirectly in competition with the Business; (c) shall not solicit
to sell nor sell goods or services to any current or past customer
or competitor of Company and/or IQP; (d) recruit, solicit, induce,
or influence any Company's employees, consultants, suppliers or
existing and prospective customers that were such with respect to
Company and/or IQP at any time prior to or during the Restricted
Period to discontinue, reduce or modify such relationship with
Company; and (e) shall not accept any business from any existing
and prospective customers, including IQP Business, that were such
with respect to Company and/or IQP at any time prior to or during
the Restricted Period.
B. Certain Definitions. For purposes of this Agreement:
"Restricted Period" shall mean the period commencing as of the
date hereof and terminating three (3) years from the expiration
and/or termination of this Agreement.
"Restricted Area" means all areas in the following counties in
the State of Florida: Miami-Dade County, Broward County, Palm
Beach County, and Monroe County
"Business" shall, notwithstanding anything herein to the
contrary, include all products, services and activities of the
Company, whether now or previously offered at any time by the
Company, which are graphic arts, printing and related goods or
services.
C. Confidential Information.
Employee acknowledges and agrees that all Confidential
Information (as defined below) known or obtained by them, whether
before or after the date hereof, is the property of the Company.
Therefore, Employee agrees that it will not, at any time, disclose
to any unauthorized persons or use for his own account or for the
benefit of any third party any Confidential Information, whether
Employee has such information in its memory or embodied in writing
or other physical form, without Employer's written consent, unless
and to the extent that the Confidential Information is or becomes
generally known to and available for use by the public other than
as a result of Employee's fault or the fault of any other person
bound by a duty of confidentiality to Employer may request, all
documents, memoranda, notes, plans, records, reports, and other
documentation, models, components, devices, or computer software,
whether embodied in a disk or in other form (and all copies of all
of the foregoing), relating to the businesses, operations, or
affairs of the Company and any other Confidential Information that
Employee may then possess or have under their control.
For purposes of this Agreement, "Confidential Information"
shall mean: (i) any and all trade secrets concerning the business
and affairs of the Company, product specifications, data, know-how,
formulae, compositions, processes, designs, sketches, photographs,
graphs, drawings, samples, inventions and ideas, past, current and
planned research and development, current and planned manufacturing
and distribution methods and processes, customer lists, current and
anticipated customer requirements, price lists, market studies,
business plans, computer software and programs (including object
code and source code), computer software and database technologies,
systems, structures and architectures (and related processes,
formulae, compositions, improvements, devices, know-how,
inventions, discoveries, concepts, ideas, designs, methods and
information, and any other information, however documented, of the
Company that is a trade secret under Florida law; (ii) any and all
information concerning the business and affairs of the Company
(which includes historical financial statements, financial
projections and budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds of key
personnel, personnel training and techniques and materials),
however documented; and (iii) any and all notes, analysis,
compilations, studies, summaries, and other material prepared by or
3
for the Company containing or based, in whole or in part, on any
information included in the foregoing.
D. Enforcement. In the event of an actual or threatened
breach by Employee of any of the covenants contained herein in this
Section 6 A. through C, Company or Employer shall be entitled to
an injunction restraining them from the prohibited conduct.
Notwithstanding the specific provisions of the covenants against
competition set forth herein and the parties' acknowledgement that
the terms and conditions set forth herein are fair and reasonable,
if a court of competent jurisdiction should hold that the duration
and/or scope (geographic or otherwise) of the covenants contained
herein are unreasonable, then, to the extent permitted by law, the
court may prescribe a duration and/or scope (geographic or
otherwise) that is reasonable and the parties agree to accept such
determination, subject to their rights of appeal. Nothing herein
stated shall be construed as prohibiting Company or Employer or any
third party from pursuing any other remedies available to it for
such breach or threatened breach, including the recovery of
damages. In any action or proceeding to enforce the provisions of
this Agreement, the prevailing party shall be reimbursed by the
other party for all costs incurred in such action or proceeding
including, without limitation, all court costs and filing fees, and
all reasonable attorneys' fees, incurred either at the trial level
or at the appellate level. The existence of any claim or cause of
action by Employee against Company or Employer shall not constitute
a defense to the enforcement by Company Or Employer of the
foregoing restrictive covenants
7. Right to Contract. Both parties affirmatively represent
to the other that they have the right to enter into this Agreement
and they are not violating or breaching any other agreements with
other parties by entering into this Agreement and/or by employing
or accepting employment.
8. Miscellaneous Provisions. The following provisions shall
be generally applicable.
A. Entire Agreement. This Agreement contains the entire
understanding of the parties and supersedes any and all prior
understandings, agreements or representations, either oral or in
writing, between the parties hereto.
B. No Strict Construction. The language used in this
agreement shall be deemed to be the language chosen by all of the
parties hereto to express their mutual intent, and no rule of
strict construction shall be applied against any party hereto.
C. Applicable Law. This Agreement and performance hereunder
shall be subject to and governed by the laws of the State of
Florida.
D. Amendment and Waiver. This Agreement may be amended or
any provision hereof may be waived, provided that any such
amendment or waiver shall be in writing executed by all of the
parties hereto, and only such amendments or waivers as are thus
made in writing shall be effective and binding upon any party
hereto.
E. Notice. All notices, demands and other communications to
be given, served or delivered under or by reason of the provisions
hereof, without regard to any particular manner that may be
indicated herein as the appropriate mode of giving notice, unless
expressly limited to such mode of notice, shall be in writing and
may be given either by personal delivery or by mail to the business
address of Employer and last known residence address of Employee.
F. Severability. Each provision of this Agreement shall be
interpreted so as to be effective and valid under applicable law to
the fullest extent possible, but in the event any provision of this
Agreement shall itself or in connection with any other provision of
this Agreement be held to be invalid or unenforceable, the
remaining provisions of this Agreement shall not be affected
thereby, and the Agreement shall be construed and interpreted as if
such invalid or unenforceable provision were never a part hereof,
in order to effect the purposes of this Agreement and the
intentions of the parties hereto.
4
G. Benefit. If the Employer shall at any time be merged or
consolidated into or with any successor of the Employer or if all
or substantially all of the assets of the Employer are transferred
to any successor of the Employer, the provisions of this Agreement
shall be binding upon and inure to the benefit of the successor
resulting from such merger or consolidation or to which such assets
shall be transferred, and this provision shall apply in the event
of any subsequent merger, consolidation or transfer. The term
"successor" shall include any person, firm, partnership,
association, corporation or other business entity.
H. Binding Effect. This Agreement shall be binding upon all
of the parties hereto and their respective successors, assigns,
heirs and legal representatives, as the case may be, but neither
this Agreement nor any of the rights hereunder shall be assignable
by the Employee without the written consent of the Employer.
I. Duplicate Originals. Two or more duplicate originals of
this Agreement may be signed by the parties hereto, each of which
shall be an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement
of the date first written above.
WITNESSES: EMPLOYER
XxxxxXxXxxXxx.xxx, Inc.
___________________________ By:______________________________
Xxxxxxxx Xxxxxxxxxx, President
___________________________
EMPLOYEE
___________________________ By:______________________________
Xxxx Xxxxx
___________________________
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SCHEDULE 5.3
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that Ivan's Quik Print, Inc.,
a Florida corporation, ("Seller"), in consideration of the sum of
$10.00 and other valuable consideration to Seller by
XxxxxXxXxxXxx.xxx, Inc. (the "Buyer"), the receipt whereof is
hereby acknowledged, hereby grants, bargains, sells, transfers and
delivers unto Buyer, all of its right, title and interest in and to
the following listed and identified items:
(a) All film, flats, files, work-papers and work product
relating to all customers and accounts for the Business;
(b) the Marks;
(c) all of Seller's rights and interests in the Material
Contracts;
(d) copies of the sales, billing and other pertinent records;
(e) all of Seller's telephone and fax numbers used
exclusively m connection with the Business; and
(f) all goodwill associated with the Business.
(g) all of the items listed on Schedule 1.1 attached hereto.
Ivan's Quik Print, Inc.
By:____________________________
Name:__________________________
Its: President
SCHEDULE 1.1 - ASSETS
1 Vehicle NuArc Camera
1 Rollem for scoring, perforating and numbering
1 NuArc carbon platemaker and chemicals and plates
1 challenge gold 31' cutter
1 challenge gold drill press
1 Ibeco Laminator
1 O&M table top folder
1 8 bin semi automatic collator
1 challenge folder no right angle
1 xxxxxx collator
2 joggers
1 Itek camera
1 wrapping unit (plastic)
1 AB Xxxx Xxxxx Press
1 AB Dick Chain Delivery Press with T-Head
2 Saddle Stitchers
2 NuArc Light Tables
1 Slidex Wax Master
1 Mini Refrigerator
1 Fax Machine
1 metal desk
3 metal filing cabinets
