TRANSFER AGREEMENT
This TRANSFER AGREEMENT (the "Agreement") is dated as of March 23, 2001
(the "Signing Date") and is entered into by and among XxxxxxxXxxxxx.xxx, Inc., a
Delaware Corporation ("GMC"), and Gourmet Productions, Inc., a California
corporation, doing business as XxxxxxxXxxxxxx.xxx ("VG") and Xxxxxxx Xxxxxxx
Company, a Georgia corporation ("RCC").
WHEREAS, on our about September 26, 2000, GMC made, executed, and
delivered to RCC a certain promissory note secured by all assets of GMC and
payable to RCC in the principal sum of $75,000.00 plus interest thereon
("$75,000 Note").
WHEREAS, on or about October 19, 2000, GMC made, executed, and
delivered to RCC a certain promissory note secured by all assets of GMC and
payable to RCC in the principal sum of $25,000.00 plus interest thereon
("$25,000").
WHEREAS, under the terms of the $75,000 Note and the $25,000 Note, RCC
was granted warrants to purchase 15,000 and 5,000 shares respectively of GMC
stock at the exercise price of $.01 per share.
WHEREAS, the $75,000 Note and the $25,000 Note have both matured and
are due and payable.
WHEREAS, VG is interested in acquiring the domain name and brand name
of XxxxxxxXxxxxx.xxx
WHEREAS, the parties hereto desire to enter into an agreement on the
terms and conditions set forth herein whereby GMC shall transfer certain assets,
including the domain and brand name XxxxxxxXxxxxx.xxx, to VG and shall deliver
to RCC the warrants previously granted to RCC in exchange for forgiveness of
GMC's indebtedness to RCC, a percentage of sales from future operation of the
XxxxxxxXxxxxx.xxx site, and an equity position in VG; and
WHEREAS, GMC has obtained the approvals to make such transfer to VG;
NOW THEREFORE, in consideration of the mutual agreements contained
herein and such other consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
TRANSFER OF ASSETS
1.1 TRANSFER OF ASSETS. Subject to the terms and conditions of this
Agreement, at the Closing (as defined below), GMC shall sell, convey, transfer,
assign, and deliver to VG, free and clear of any pledge, lien, claim or other
encumbrance of any kind whatsoever in and to the assets of GMC listed below
(collectively, the "Purchased Assets"):
(a) All trademarks, service marks, trade names, brand names,
copyrights, logos, slogans and trade references, in each case whether
registered, under application or otherwise, any other intangible property used
in connection with the conduct of GMC's business, and the applications therefore
and the licenses with respect thereto, together with the goodwill and the
business appurtenant thereto and any rights, claims or choses in action relating
to or deriving from any of the foregoing;
(b) The Uniform Resource Locator, xxx.XxxxxxxXxxxxx.xxx, and its linked
and related websites and Uniform Resource Locators ("URL") including, without
limitation, (i) all goodwill associated therewith and inhering therein, (ii)
originals of all files, correspondence and other records relating to or
reflecting GMC's ownership of the URL or right, title or interest therein, (iii)
all claims of GMC against third parties relating to the URL, (iv) any and all
intellectual property and other proprietary rights associated therewith existing
at any time under the laws of any jurisdiction, including, without limitation,
any trademark, service xxxx, trade name, brand name and/or copyright rights
relating thereto, all registrations and pending applications to register such
rights, together with all such rights inhering in or protecting names and marks
derivative of or similar to the URL and the right to register any of the
foregoing anywhere in the world, and (v) any and all rights of GMC pertaining to
the URL arising under any agreement, contract, commitment or other arrangement;
(c) all technology and equipment (owned or licensed) used in connection
with the operation of the XxxxxxxXxxxxx.xxx Web-site (the "Site"), including,
without limitation, all computer software (including all source code, object
code, firmware, development tools, files, records and data and all media on
which any of the foregoing is recorded) related thereto; all techniques,
methods, applications and other technology relating thereto; the brands, names,
logos, trademarks and service marks used in or in connection therewith; the
XxxxxxxXxxxxx.xxx user interface and the copyrights in the design of the
XxxxxxxXxxxxx.xxx user interfaces; all Derivate Works (as defined below); any
reference materials or other documentation, whether in printed or machine
readable form relating to the operation of the site (collectively with the
assets set forth in subsections (a) and (b), the "Intellectual Property");
1.1 (c) "Derivative Works" means (i) without limitation, any computer
program, work product, service, improvement, supplement, modification,
alteration, addition, revision, enhancement, new version, new edition, remake,
sequel, translation, adaptation, design, plot, theme, character, story line,
concept, scene, audio-visual display, interface element or aspect, in any
medium, format, use or form whatsoever, whether interactive or linear and
whether now known or unknown, that is derived in any manner, directly or
indirectly, from the applications used in the operation of the Site, or any part
or aspect thereof, and (ii) any material or documentation related to any of the
foregoing; VG acknowledge that it understands what Work is available and that
GMC will turnover whatever it currently has in its possession.
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1.2 WARRANTS. On or prior to the Closing Date as defined below, GMC
shall deliver to RCC 20,000 shares of common stock of GMC granted to RCC under
the terms of the $75,000 Note and the $25,000 Note. The stock shall not be
freely tradable, but shall be 144 stock. However, VG shall have piggy-back
rights to register such shares of stock in the event GMC has any registration of
its shares.
1.3 CONSIDERATION. In consideration for the transfer of the Purchased
Assets and delivery of the Warrants, VG and/or RCC agree as follows:
(a) RCC shall deem the $75,000 Note and the $25,000 Note to have
been paid in full;
(b) VG shall deliver shares of its common stock (the "VG Shares")
to GMC, represented by a single stock certificate.
(c) Subject to the deductions with respect to certain coupons as
set forth as follows, VG shall pay GMC, on a contingent basis, nine percent
(9.0%) of the gross retail sales on VG's website until GMC has received the
maximum sum of $125,000 on the following terms and conditions:
(i) It is hereby understood and agreed that these payments are
based only on a percentage of gross retail sales on VG's website and that GMC
shall not receive any percentage of non-retail, non-website sales, such as VG
sales to its corporate customers or sales through its VG Club, unless such sales
were derived from GMC's corporate clients;
(ii) In addition, it is also hereby understood and agreed that
the payments to be made hereunder are contingent upon the existence of gross
retail sales on VG's website and shall be payable only from such sales. Except
to the extent of such sales, nothing in this Agreement creates a debt, general
liability, or obligation by VG to pay $125,000 or any other sum to GMC, whether
from any other sales or with any other assets.
(iii) These payments shall be made on a monthly basis. Once VG
has remitted $125,000 to GMC, then no further payments shall be due GMC by VG,
and GMC's only interest in VG's website will be as a shareholder of VG.
(iv) Notwithstanding anything to the contrary contained herein,
after a reasonable amount of time to implement technology to handle redemption
and after receiving number sequencing from GMC, which amount of time shall be no
less than 3 weeks from the Closing Date, VG shall honor coupons issued by GMC
pursuant to the Kodak promotion, as well as any prepaid cash certificates that
had been issued by GMC, a list of which shall be provided by GMC to VG prior to
the Closing Date as defined below, up to an aggregate sum of nine thousand
dollars ($9,00). For the purposes of the payments to be made pursuant to this
subsection, the amount of any Kodak promotion coupon honored shall be deducted
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from gross sales before determining the payments due hereunder, while the amount
of any prepaid cash gift certificate honored by VG will be excluded from gross
sales before determining the payments due hereunder, while the amount of any
prepaid cash gift certificate honored by VG will be excluded from gross sales
and also be deducted from any amount due GMC pursuant thereto. VG will not honor
any other gift certificates or coupons other than the ones referenced in this
paragraph.
1.4 ALLOCATION OF LIABILITIES
(a) VG shall be responsible for all financial costs related to the
use and operation of the Purchased Assets after the Closing Date and for
honoring of coupons and gift certificates as set forth herein ("Assumed
Liabilities"). VG shall not be responsible for any obligation or liability of
GMC other than the Assumed Liabilities.
(b) Except for Assumed Liabilities, VG shall not assume, and shall
not any time hereafter become liable for any obligations or liabilities of GMC.
GMC shall defend, indemnify, and hold harmless VG and/or RCC from and against
any losses, damages, expenses, and liabilities or actions based on any claims
arising out of any such obligations or liabilities of GMC.
1.5 EMPLOYEES
(a) GMC shall have sole and complete responsibility for payment of
all wages and other remuneration due to all employees, agents, independent
contractors and representatives who work for GMC (the "Employees") as of the
Closing Date, including without limitation, overtime, expense reimbursement,
severance, accrued vacation time, sick leave and any other paid time off.
(b) The parties to this Agreement acknowledge and agree that,
although VG has the right to employ, from and after the Closing Date, certain of
the Employees, VG shall be under no obligation to do so. Each such Employee's
compensation, benefits and any other terms and conditions of employment of such
Employees shall be determined by VG and such Employee, in their respective
discretion, in the event that VG elects to offer employment to such Employees.
1.6 REVIVOR IN BANKRUPTCY. If any claim is ever made upon VG or RCC
in connection with or relating to this Agreement or the transactions
contemplated hereby (hereinafter referred to as "Claim") (including, but not
limited to, any claim for avoidance of any obligation or transfer, or for
payment or recovery of any money, property, or other asset transferred or
surrendered to VG or RCC in connection with this Agreement, because of any
obligation or transfer, or for repayment or recovery of any money, property, or
other asset transferred or surrendered to VG or RCC in connection with this
Agreement, because of any assertion that any such transfer or surrender
constituted a preferential transfer or fraudulent conveyance, or for any other
reason whatsoever in connection with a bankruptcy, insolvency, or similar
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proceeding), then at VG or RCC's option, exercised at any time whatsoever,
before or after any such Claim has been resolved, settled or determined, VG and
RCC may choose to treat the transaction which is the subject of the Claim as not
having occurred and to revive in full the full amount of the indebtedness,
liabilities, and obligations of GMC related to such transaction, or with respect
to which any property, money, or other asset was transferred pursuant to this
Agreement, and all interest thereon and all costs and expenses incurred in
connection therewith (including without limitation, all attorney's fees). Such
revival shall be in addition to all of VG and RCC's other rights and remedies.
1.7 RESERVATION OF RIGHTS. Nothing in this Agreement shall constitute
or shall be construed to constitute a waiver of any of the rights and remedies
of GMC, VG, and RCC against Xxxx Xxxxx or LM Investment Group, Inc., all of
which rights and remedies are hereby expressly reserved.
1.8 CLOSING. The Closing for the sale of the Purchased Assets (the
"Closing") Xxxxx 0000, Xxxx Xxxxxxxxx, Xxxxxxxxxx 00000, at 2:00 p.m. on April
2, 2001, or such other place or date as the parties hereto mutually agree to
(the "Closing Date").
1.9 DELIVERIES AT CLOSING
(a) GMC Deliveries. At the Closing, GMC will deliver the following
to VG and RCC:
(i) Bills of sale or other documents to transfer title to the
Purchased Assets to VG;
(ii) 20,000 shares of GMC common stock;
(iii) the certificate described in Section 5.1.
(b) VG and RCC Deliveries. At the Closing, VG will deliver to GMC:
(i) the original $75,0000 Note and the $25,000 Note marked as
paid;
(ii) the Stock Certificate evidencing the VG shares, issued in
GMC's name.
(iv) the certificate described in Section 6.1.
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ARTICLE II
REPRESENTATIONS, WARANTIES, AND COVENANTS OF GMC
GMC represents, warrants, and covenants to VG and RCC as follows:
2.1 INVESTMENT. GMC will be acquiring the VG Shares for investment for
an indefinite period, and not with a view to the sale or distribution of any
part thereof, and GMC has no present intention of selling, granting
participations in, or otherwise distributing the same.
2.2 NOT REGISTERED. GMC understands that the VG Shares are not (a)
registered under the Securities Act of 1933, as amended (the "Act"), on the
ground that the issuance of the Shares is exempt from registration under the Act
pursuant to Section 4(2) thereof, or (b) qualified or registered under the
California Corporate Securities Law of 1968 (the "Law"), on the ground that the
issuance of the Shares is exempt from qualification under the Law pursuant to
Section 25102(f) thereof, and that VG's reliance on such exemptions is
predicated on GMC's representations set forth herein. GMC understands that the
VG Shares are "restricted securities" under Rule 144 and are subject to
restrictions on resale. GMC understands that the VG Shares must be held
indefinitely unless the sale or other transfer thereof is subsequently
registered under the Act, as amended, or an exemption from such registration is
available. GMC further understands that VG is under no obligation to register VG
Shares on their behalf or to assist in complying with any exemption from
registration. GMC understands and agrees that the certificates for the VG Shares
shall bear legends on the certificates thereof consistent with the provisions
hereof.
2.3 NO PUBLIC MARKET. GMC is aware that there is no public market for
VG Shares and that no such market is likely to develop in the foreseeable
future, and that because of the limitations upon transfer imposed under federal
and state securities laws, the opportunities for private resale of the VG Shares
are greatly reduced. As a result, GMC acknowledges that they cannot expect to be
able to sell or borrow against the Vg Shares in case of emergency or for any
other reason. GMC (a) has adequate means of providing for its current needs and
possible contingencies, (b) has no need for liquidity in this investment, (c) is
able to bear the substantial economic risks of an investment in the VG Shares
for an indefinite period, (d) at the present time, can afford a complete loss of
such investment, and (e) does not have an overall commitment to investments
which are not readily marketable that is disproportionate to GMC's net worth,
and GMC's investment in the VG Shares will not cause such overall commitment to
become excessive.
2.4 ACCESSS TO INFORMATION. GMC represents and warrants that it has the
requisite knowledge and experience to assess the relative merits and risks of an
investment in the VG Shares. The VG Shares to be issued to GMC have been
determined by GMC as fair and appropriate based solely upon GMC's independent
investigation and due diligence of GMC, and neither VG, RCC, nor any of its
agents, officers, directors, employees, accountants and attorneys, have made any
representations or warranties whatsoever in connection with the sale of the VG
Shares by VG to GMC. GMC and its representatives have had sufficient opportunity
in connection with this Agreement to review VG's business and affairs and to
inquire of VG's management with respect thereto. GMC has had answered to its
satisfaction any questions with respect to VG's business and affairs. GMCs
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further have had the opportunity to obtain independent financial, legal,
accounting, business, tax and other appropriate advice with respect to the
transactions contemplated by this Agreement, and is not relying upon VG or any
of its agents in any manner in connection with same.
2.5 ORGANIZATION AND STANDING; CERTIFICATE AND BYLAWS. GMC is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. GMC has all requisite corporate power and authority to
own and operate its properties and assets, and to carry on its business as
presently conducted and as proposed to be conducted.
2.6 CORPORATE POWER. At the Closing, GMC shall have all requisite
corporate power and authority to execute and deliver this Agreement, and to
transfer the Purchased Assets hereunder.
2.7 SUBSIDIARIES. GMC has no subsidiaries or affiliated companies and
does not own or otherwise control, directly or indirectly, any interest in any
corporation, association or business entity.
2.8 AUTHORIZATION; NO BREACH. At the Closing, the execution, delivery
and performance of this Agreement and the consummation of all transactions
contemplated hereby have been duly authorized by all required corporate actions
of GMC and its stockholders. This Agreement constitutes a valid and binding
obligation of GMC, enforceable against GMC in accordance with its terms. Except
as set forth on SCHEDULE 2.8, the execution and delivery by GMC of this
Agreement and the consummation of the transactions contemplated hereby do not
and will not (with or without due notice, lapse of time, or both) (a) conflict
with or result in a breach of the terms, conditions or provisions of, (b)
constitute a default under, (c) result in the creation of any lien, security
interest, charge or encumbrance upon the Purchased Assets pursuant to, (d) give
any third party the right to accelerate any obligation under, (e) result in a
violation of, or (f) require any authorization, consent, qualification,
approval, exemption, filing or other action by or notice to any court or
administrative or governmental body pursuant to, the Certificate or Bylaws of
GMC, or any law, statute, rule, regulation, instrument, order, judgment or
decree to which GMC, or any of its respective properties is subject, or any
other material agreement or instrument which is a Purchased Asset.
2.9 CERTAIN TRANSACTIONS. No officer, director, significant employee,
consultant or holder of any of its capital stock or any member of their
immediate families, directly or indirectly, is interested in any contract with
GMC, except for loans to GMC;
2.10 LITIGATION, ETC. There are no actions, suits, proceedings or
investigations pending or threatened, or to GMC's knowledge, claims asserted, to
which GMC or any of its directors or officers, as such, is a party, or to which
property of GMC is subject, that might result in any material adverse effect,
and none which question the validity of this Agreement or any action taken or to
be taken in connection herewith or therewith; except that there are numerous
threatened suits with respect to trade creditors.
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2.11 CONSENTS. No material consent, approval, qualification, order or
authorization of, or filing with, any governmental authority or any other person
or entity required on the part of GMC is required in connection with GMC's valid
execution, delivery or performance of this Agreement, or the consummation of the
transactions contemplated on the part of GMC hereby.
2.12 OWNERSHIP OF PURCHASED ASSETS. GMC has good and marketable title
to all of the Purchased Assets free and clear of any claim, lien, charge,
security interest or encumbrance. Upon GMC's transfer and sale of such Purchased
Assets to VG pursuant to this Agreement, VG will have good and marketable title
to all of such Purchased Assets, free and clear of any claim, lien, charge,
security interest or encumbrance. GMC does not hold or use any of the Purchased
Assets pursuant to any lease, conditional sales contract, franchise or license.
2.13 INTELLECTUAL PROPERTY. GMC has sufficient title and interest in,
or the right to use, all Intellectual Property of GMC in its business as now
conducted. No claim has been made or to the best of GMC's knowledge, is
threatened with regard to any third party intellectual property, including any
allegation of intellectual property infringement or misappropriation or of any
breach or default of an intellectual property license or similar agreement;
except for the Arome content, which VG has been aware.
2.14 TAXES. GMC has filed all tax returns or filed extensions that are
required to have been filed on or before the closing Date with appropriate
federal, state, county and local governmental agencies or instrumentality's. All
such tax returns, in all material respects, are complete and accurate and in
accordance with all legal requirements applicable thereto. GMC has paid or
established adequate reserves for all income, franchise and other taxes,
assessments, governmental charges, penalties, interest and liens due and payable
by it on or before the Closing Date. There is no pending dispute with any taxing
authority relating to any of GMC's tax returns, and GMC has no knowledge of any
proposed liability for any tax to be imposed upon the properties or assets of
GMC.
2.15 BROKERS OR FINDERS. GMC has not incurred, and will not incur,
directly or indirectly, as a result of any agreement entered into or action
taken by GMC, any liability for brokerage or finders' fees or agents'
commissions or any similar charges in connection with this Agreement.
2.16 COMPLIANCE WITH LAW. The operations of GMC have not violated any
federal, state or local laws, regulations or orders, to the extent any such
violation would have a material adverse effect on this Agreement. GMC has all
licenses, permits, certificates and authority from governmental agencies
necessary for the conduct of its business, except for those, which if not
obtained would not have a material adverse effect on this Agreement.
2.17 NO OTHER AGREEMENTS TO SELL THE PURCHASED ASSETS. GMC, has no
legal obligation, to any other person or entity to sell the Purchased Assets, to
sell a majority of the capital stock of GMC or to effect any merger,
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consolidation or other reorganization of GMC or to enter into any agreement with
respect to any transaction described in this sentence.
ARTICLE III
REPRESENTATIONS, WARRANTIES, AND COVENANTS OF VG
VG represents, warrants, and covenants to GMC as follows:
3.1 ORGANIZATION AND POWER. VG is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. VG has
all requisite corporate power and authority to own and operate its properties
and assets, and to carry on its business as presently conducted and as proposed
to be conducted.
3.2 AUTHORIZATION AND ENFORCEABILITY OF AGREEMENTS. As of the Closing,
VG will have all requisite corporate power and authority to enter into this
Agreement and to perform its obligations hereunder. At the Closing, this
Agreement will be duly and validly authorized by and approved by all requisite
corporate action (including stockholder approval) on the part of VG. This
Agreement has been duly executed and delivered by VG and constitutes the legal,
valid and binding obligation of VG enforceable in accordance with its terms. No
further approvals or consents by, or filings with, any federal, state,
municipal, foreign or other court or governmental or administrative body, agency
or other third party is required in connection with the execution and delivery
by the Buyer of this Agreement, or the consummation by the Buyer of the
transactions contemplated hereby including the issuance of the Shares.
3.3 NO CONFLICTS. Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby (including the
issuance of the VG Shares) will (a) violate any provisions of the charter or
bylaws of VG, (b) violate, or be in conflict with, or constitute a default (or
other event which, with the giving of notice or lapse of time or both, would
constitute a default) under, or give rise to any right of termination,
cancellation or acceleration under any of the terms, conditions or provisions of
any material lease, license, promissory note, contract, agreement, mortgage,
deed of trust or other instrument or document to which VG is a party or by which
the Buyer or any of its properties or assets may be bound, (c) violate any
order, writ, injunction, decree, law, statute, rule or regulation of any court
or governmental authority applicable to VG or any of its properties or assets or
(d) give rise to a declaration or imposition of any claim, lien, charge,
security interest or encumbrance of any nature whatsoever upon any of the assets
of VG's business.
3.4 LITIGATION. There are no actions, suits, proceedings or
investigations, pending or threatened, or to VG's knowledge, claims asserted, to
which VG or any of its directors or officers is a party, to which the property
of VG is subject or which relates to or affects the transactions contemplated by
this Agreement.
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ARITICLE 1V
COVENANTS
4.1 COVENANTS PENDING CLOSING. GMC agrees that from the date hereof to
the Closing Date, it will:
(a) operate its business substantially as now operated and only in
the ordinary course and, to the extent of and consistent with such operation,
use reasonable efforts to preserve intact the present business organization and
the relationships with persons having business dealings with GMC; however VG
acknowledges that it has been operating the site traffic for the last month and
that there have been no active operations of GMC during this period;
(b) maintain its books, accounts and records, in the usual, regular
and ordinary manner and consistent with past practice;
(c) not dispose of or encumber any of the Purchased Assets; or
(d) not amend, adversely modify or terminate any Contract.
4.2 CONSENTS AND APPROVALS; FULFILLMENT OF CONDITIONS. The GMC and VG
will use their reasonable efforts (a) to obtain all necessary consents and
approvals of governmental and regulatory authorities to the consummation of the
transactions contemplated by this Agreement, (b) to obtain all other consents
necessary or advisable in connection with the transactions contemplated by this
Agreement, including consents to the assignment of the Contracts, and (c) to
perform, comply with and fulfill all obligations, covenants and conditions
required by this Agreement to be performed, complied with and fulfilled by them
prior to or at the closing Date. All regulatory filings or consent payments
shall be at VG's expense.
4.3 ACCESS. Prior to the Closing, GMC agrees to permit VG and its
employees, agents and representatives to have reasonable access to the
properties, assets, books and records, contracts and other documents of GMC, on
reasonable prior notice to and approval of GMC, during regular business hours.
4.4 DISCLOSURE OF BREACH DISCOVERED. In the course of their due
diligence whether before, upon or following the date first above written and
prior to the Closing Date, should a party discover any material fact or omission
to disclose a material fact that they believe to constitute a breach of a
representation or warranty hereunder, such party shall promptly disclose such
fact or omission to all other parties hereto. In the event that the discovering
party proceeds with signing this Agreement and/or a Closing despite actual
knowledge of any such fact or omission, for all purposes such actual knowledge
shall result in a waiver of the applicable breach of this Agreement.
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4.5 NO SALE OF PURCHASED ASSETS. GMC hereby agrees that it shall not
sell, lease, dispose of or encumber any of the Purchased Assets or any copies or
duplicates thereof other than pursuant to this Agreement.
ARTICLE V
CONDITIONS TO THE OBLIGATIONS OF VG
The obligations of VG hereunder are subject to the fulfillment or
satisfaction at or prior to the Closing of each of the following conditions (any
one or more of which may be waived by VG):
5.1 REPRESENTATIONS AND WAARRANTIES OF GMC. All representations and
warranties of GMC contained in this Agreement shall be true and correct in all
material respects as of the Closing with the same effect as though such
representations and warranties were made at and as of the Closing (unless such
representation speaks as of an earlier date, in which case it shall be true and
correct as of such date); GMC shall have performed and satisfied in all material
respects all covenants, conditions and agreements required or contemplated by
this Agreement to be performed prior to the Closing; and at the Closing, there
shall be delivered to VG a certificate to such effect signed by an authorized
officer of GMC, which certificate shall have attached thereto (a) a certificate
of good standing in respect of GMC dated on or about the date hereof, and (b) a
certified copy of the Certificate of Incorporation of GMC.
5.2 ABSENCE OF LITIGATION OR INVESTIGATION. No preliminary or permanent
injunction or other order of any court or governmental agency or instrumentality
shall have issued or been entered and remain in effect which prohibits the
consummation of the transactions contemplated by this Agreement.
5.3 TRANSFER OF URLS. GMC shall have completed and delivered to VG a
Network Solutions, Inc. Registrant Name Change Agreement in favor of VG, duly
executed and notarized, for the URL xxx.XxxxxxxXxxxxx.xxx and all linked and
related web-sites and URLS.
5.4 DELIVERY OF DOCUMENT. The documents described in SECTION 1.9(a)
hereof shall have been delivered to VG in a form reasonably acceptable to GMC.
5.5 CONSENTS. GMC shall have obtained all necessary consents to
transfer the Purchased Assets.
5.6 APPROVAL OF BOARD OF DIRECTORS. The Boards of Directors of VG and
RCC shall have authorized and approved of each of (a) the terms and conditions
of this Agreement, (b) the transactions contemplated under this Agreement and
(c) the execution of this Agreement by duly authorized officers of VG and RCC.
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ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF GMC
The obligations of GMC hereunder are subject to the fulfillment or
satisfaction at or prior to the Closing of each of the following conditions (any
one or more of which may be waived by GMC):
6.1 REPRESENTATIONS AND WARRANTIES OF VG. All representations and
warranties of VG contained in this Agreement shall be true and correct as of the
date made and shall be true and correct in all material respects as of the
Closing with the same effect as though such representations and warranties were
made at and as of the Closing (unless such representation speaks as of an
earlier date, in which case it shall be true and correct as of such date); VG
shall have performed and satisfied in all material respects all covenants,
conditions and agreement required or contemplated by this Agreement to be
performed and satisfied by it at or prior to the Closing; and at the Closing, VG
shall deliver to GMC, a certificate to such effect signed by an authorized
officer of VG.
6.2 ABSENCE OF LITIGATION OR INVESTIGATION. No preliminary or permanent
injunction or other order of any court or governmental agency or instrumentality
shall have issued or been entered and remain in effect which prohibits the
consummation of the transactions contemplated by this Agreement.
6.3 DELIVERY OF DOCUMENTS. The documents described in SECTION 1.9(b)
hereof shall have been delivered to GMC in a form reasonably acceptable to GMC.
ARTICLE VII
INDEMNIFICATION
7.1 INDEMNIFICATION. GMC shall indemnify and hold harmless VG and RCC
against any loss, cost or damage, including but not limited to reasonable
attorneys' fees and costs ("Losses"), incurred by VG or RCC in any action or
claim resulting from (a) any inaccuracy in, or breach of, any representations,
warranties or covenants of GMC contained in this Agreement, and (b) any use of
the Purchased Assets by GMC prior to the Closing Date.
7.2 REIMBURSEMENT OF LOSSES; NOTICE OF ARBITRATION. Within thirty (30)
days of receipt of a notice from VG or RCC, GMC shall (a) reimburse VG or RCC,
by certified or bank cashier's check, for the losses for which indemnification
is sought by such notice, or (b) provide written notice to VG and RCC of its
objection to the indemnification sought by VG and their election to arbitrate
the dispute pursuant to the provisions set forth below. The failure of GMC to
provide VG and RCC with the notice specified in (c) above within the allotted
time shall constitute a waiver of any objection to the indemnification then
sought by VG or RCC.
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ARTICLE VIII
GENERAL PROVISIONS
8.1 EXPENSES. Except as otherwise provided in this Agreement, al
expenses incurred pursuant to this Agreement and the transactions contemplated
hereby shall be paid by the party incurring the expense. All external costs of
transferring the Purchased Assets in accordance with this Agreement, including
recordation, transfer and documentary taxes and fees, and any excise, sales or
use taxes shall be paid by VG.
8.2 SURVIVAL. The representations and warranties of GMC, in this
Agreement shall survive the Closing Date. The covenants contained in this
Agreement shall survive until performed in accordance with their respective
terms.
8.3 FURTHER ASSURANCES. Each party hereto agrees to use such party's
reasonable best efforts to cause the conditions to such party's obligations
herein set forth to be satisfied at or prior to the Closing insofar as such
matters are within its control. Each of the parties agrees to execute and
deliver any and all further agreements, documents or instruments necessary to
effectuate this Agreement and the transactions referred to herein or
contemplated hereby or reasonably requested by any other party to evidence its
rights hereunder.
8.4 NOTICES. Any notices hereunder shall be deemed sufficiently given
by one party to another only if in writing and if and when delivered or tendered
by personal delivery or as of five (5) business days after deposit in the United
States mail in a sealed envelope, registered or certified, with postage prepaid,
twenty-four (24) hours after deposit with an overnight courier, or five (5)
hours after confirmation of delivery by facsimile, addressed as follows:
If to VG:
Gourmet Productions Inc.
0000 Xxxxxx Xxxx., Xxx. 000
Xxxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy:
If to RCC:
Xxxxxxx Xxxxxxx & Company
0000 Xxxxxx Xxxx., Xxx.000
Xxxx Xxxxxxxxx, XX 00000
Attention: Court Xxxxxxx
Telephone: (000) 000-0000
Telecopy:
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If to GMC:
Gourmet Market
0000 X. Xxxxxxxx Xxxx Xx.
Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy:
Or to such other address as the party addressed shall have previously designated
by written notice to the serving party, given in accordance with this section. A
notice not given as provided above shall, if it is in writing, be deemed given
if and when actually received by the party to whom it is given. Any party may
unilaterally change any one or more of the addresses to which a notice to the
party or its representative is to be delivered or mailed, by written notice to
the other party hereto given in the manner stated above.
8.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of each of the parties hereto and their successors
and assigns. Notwithstanding the foregoing, the rights and obligations of the
parties hereunder are not assignable to another person without the prior written
consent of all other parties hereto.
8.6 ENTIRE AGREEMENT; MODIFICATIONS; WAIVER. This Agreement and the
agreements ancillary hereto, supersede any and all agreements heretofore made,
written or oral, relating to the subject matter hereof, and constitute the
entire agreement of the parties relating to the subject matter hereof. This
Agreement may be amended only by an instrument in writing signed by VG and RCC
on the one hand and GMC on the other hand. No waiver shall be binding unless
executed in writing by the party making such waiver.
8.7 SEVERABILITY. Any provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability without invalidating or rendering unenforceable
the remaining provisions hereof, and any such invalidity or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. If any provision is held to be invalid or unenforceable,
such provision shall be construed by the appropriate judicial body by limiting
or reducing it to the minimum extent necessary to make it legally enforceable.
8.8 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of California, without
regard to its conflict of laws provisions.
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8.9 BULK SALES COMPLIANCE. The parties hereto waive compliance with the
provisions of the applicable statutes relating to bulk transfers or bulk sales
and GMC shall indemnify and hold VG and RCC harmless from any claims of GMC's
creditors as a result of such waiver.
8.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
8.11 RECITALS, SHCEDULES AND EXHIBITS. The recitals, schedules and
exhibits to this Agreement are incorporated herein and, by this reference, made
a part hereof as if fully set forth at length herein.
8.12 SECTION HEADINGS. The section headings used herein are inserted
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
8.13 ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement, its enforcement or interpretation, or because of an alleged
breach, default or misrepresentation in connection with any of its provisions,
or arising out of or relating in any way to the relationship between the
parties, shall be determined by binding arbitration in Los Angeles, California,
under the commercial arbitration rules of the American Arbitration Association
then existing, and judgment on the arbitration award may be entered in any court
having jurisdiction over the subject matter of the controversy.
8.14 ATTORNEYS FEES. If any legal action, arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of any
alleged dispute, breach, default or misrepresentation in connection with any of
the provisions of this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorney's fees and other costs incurred therein,
in addition to any other relief to which it or they may be entitled. The court
or arbitrator shall consider, in determining the prevailing party, (a) parties
sought, and (b) any settlement offers made prior to commencement of the trial in
the proceeding.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
"VG" Gourmet Productions, Inc.
a California corporation
By: Xxxxx Xxxxxxx
----------------------------------
Name:
Title:
"GMC" Gourmet Xxxxxx.xxx,
a Delaware corporation
By: C. Xxxxxxxx Xxxxxxxx
----------------------------------
Name:
Title:
"RCC" Xxxxxxx Xxxxxxx Company,
a Georgia corporation
By: Xxxxx Xxxxxxx
----------------------------------
Name:
Title:
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SCHEDULES
SCHEDULE 1.1(e)
Customer Service Manual
List of Frequently Asked Questions
Summary of e-Mail inquiries
List of Customer Comments
Business Logic - Java class file documentation
Website Architecture: Directory tree structure of the application server and
description of corresponding sub-directories and database schema Template files
- documentation of Template files Server Configuration Hosting Facility
Information Site Down Procedures
SCHEDULE 1.5: TO BE PROVIDED BY POST-CLOSING
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