AGREEMENT FOR PURCHASE AND SALE OF ASSETS
THIS AGREEMENT is made and entered into as of the 7th day of March,
2000, by and among Cutco Acquisition Corp., a Minnesota corporation ("Buyer"),
Cutco Salons, Inc., a New York corporation ("Seller"), and Yellowave
Corporation, a New York corporation, the sole shareholder of Seller
("Shareholder").
RECITALS
A. Seller either directly or through a wholly-owned subsidiary owns
(i) certain rights as a franchisor under certain franchise agreements, license
agreements, development agreements, sublease agreements, promissory notes and
any other agreements with its franchisees (which are collectively referred to
herein as the "Franchise Agreements" and are described in further detail on the
attached Exhibit A); (ii) the rights to use, and license others to use, the
service marks and trademarks set forth on the attached Exhibit B (collectively
the "Trademarks"); (iii) the rights as tenant under the real property lease
agreements set forth on the attached Exhibit C (collectively the "Leases"); and
(iv) all issued and outstanding shares of capital stock of the companies set
forth on the attached Exhibit D (individually, a "Subsidiary" and collectively,
the "Subsidiaries"); and (v) all other assets, including inventory, accounts
receivable, notes receivable, unpaid royalties, arbitration awards and supplies,
related to or used in connection with Seller's franchise business. The foregoing
assets described in A(i) through A(v) above are hereinafter referred to as the
Assets. Seller's cash is excluded from the Assets.
B. Seller desires to sell the Assets to Buyer and Buyer desires to
purchase the Assets from Seller, all on the following terms and conditions.
NOW, THEREFORE, in consideration of mutual covenants, agreements and
considerations set forth herein, the parties agree as follows:
1. Purchase and Sale.
1.1 Assets. On and subject to the terms and conditions of this
Agreement, Buyer agrees to purchase the Assets from Seller and Seller agrees to
sell the Assets to Buyer on the Closing Date (as hereinafter defined).
1.2 Purchase Price. The purchase price for the Assets shall be
$3,600,000 ("Purchase Price") payable as follows:
(a) $3,300,000 in cash paid to Seller on the Closing Date.
(b) $300,000 shall be placed in escrow on the Closing Date (the
"Escrow Fund"), in an interest bearing account with LaSalle
National Bank, Chicago, Illinois (the "Escrow Agent"). This
amount, plus all accrued interest, less any deductions
provided for herein, shall be released to Seller ninety (90)
days thereafter.
1.3 Allocation of Purchase Price. Buyer and Seller agree that the
purchase price shall be allocated as follows:
Cash $ 0
Inventory $ 2,000
Receivables $ 397,000
Furniture, Fixtures, Leasehold
Improvements and Equipment $ 60,000
Goodwill and other Intangibles $ 3,141,000
-----------
TOTAL: $ 3,600,000
===========
1.4 Obligations of Seller. All liabilities of Seller, whether disclosed
or undisclosed, shall be paid by Seller and Seller shall indemnify and hold
Buyer harmless against all such liabilities. Except as otherwise provided
herein, Buyer shall assume no liabilities or obligations of Seller. If Buyer is
required to pay any liabilities of Seller, Buyer shall deduct such amount from
the payments described in Section 1.2.
1.5 Obligations of Buyer. Buyer agrees to assume, pay and perform each
and every obligation of Seller which accrues on or after the Closing Date, in
connection with the operations of Seller's franchise business and Buyer shall
indemnify and hold Seller harmless against all such liabilities. The parties
agree that Buyer shall not assume any liability for obligations which accrue or
relate to any period of time prior to the Closing Date.
1.6 Prorations. All operating costs relating to Seller's business shall
be allocated between Seller and Buyer based upon the Closing Date, such that
Seller shall pay that portion of the operating
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costs and receive that portion of the income (excepting any unpaid receivables,
promissory notes, arbitration awards or delinquent royalty/license fee accounts,
all of which shall be the sole property of Buyer as of the Closing Date)
pertaining to that period of time up to and including the day prior to the
Closing Date and Buyer shall pay that portion of the operating costs and receive
that portion of the income on and after the Closing Date. The parties will
attempt to make the necessary adjustments within sixty (60) days after the
Closing Date, and make such necessary payments within the same time period.
2. The Closing. The transaction provided for herein shall be closed on
March 9, 2000, by overnight delivery of documents, or by such other means as the
parties may agree upon.
3. Instruments of Transfer; Further Assurances.
(a) At the Closing, Seller shall deliver to Buyer:
(i) A Xxxx of Sale and Assignment(s) transferring to Buyer
ownership of the Assets free and clear of all liens, security
interests and other encumbrances;
(ii) Certificates of Good Standing for Seller and each
Subsidiary from the Secretary of State offices where each such
company is doing business;
(iii) Certified resolutions of the Boards of Directors and
Shareholder of Seller and each Subsidiary approving this
transaction;
(iv) The Non-Competition Agreement pursuant to Section 9
herein, duly executed by Seller and Shareholder; and
(v) Such other and further instruments of transfer as shall in
the reasonable opinion of Buyer's counsel be necessary or
appropriate to consummate the purchase and sale.
(b) At the Closing, Buyer shall deliver the amounts to Seller and
Escrow Agent as set forth in Section 1.2 herein.
4. Representations and Warranties of Seller and Shareholder. For all
purposes of this Section 4, each reference to Seller shall also refer to and
include each Subsidiary. Seller and Shareholder represent and warrant to Buyer
as follows:
(a) Organization: Good Standing. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State
of New York with all requisite power and authority to perform its obligations
hereunder.
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(b) Authorization. The execution, delivery and performance of this
Agreement by Seller has been duly authorized by the Board of Directors of
Seller and the Agreement constitutes the valid and binding obligations of
Seller.
(c) Shareholder Approval. The execution, delivery and performance
of this Agreement by Seller has been duly authorized by the shareholders of
Seller.
(d) Financial Statements. Seller has delivered to Buyer copies of
the following financial statements of Seller all of which are attached hereto
as Exhibit E ("Financial Statements"), all of which are true and complete:
(i) Balance Sheet of Seller for the period ended December 31,
1999;
(ii) Statement of Income for the six months ended December 31,
1999;
(iii) Letter dated February 11, 2000 ("Letter Summary"),
summarizing royalties paid and not paid, Notes paid and not
paid and actual monies received from royalties and notes;
(iv) Installment Note Schedule as of December 31, 1999;
(v) Royalty Sales Report for period January 3, 1999 to
December 26, 1999 (generated on February 3, 2000);
(vi) Royalty Delinquency Report as of December 26, 1999;
(vii) Royalty Reports Summary, 1999;
(viii) Cutco Industries' projections for 2000; and
(ix) Royalties reported for period January 3, 1999 to December
26, 1999.
The Financial Statements fairly present the financial condition
and assets and liabilities of Seller as of the date indicated, and the results
of operations of Seller for the period then ended. The individual Royalty
Delinquencies, Notes Outstanding and Accounts Receivable balances as of the
Closing Date shall equal or exceed the respective individual balances as of
December 31, 1999 as set forth in the Letter Summary.
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(e) Absence of Undisclosed Liabilities. Except to the extent
reflected, reserved, or otherwise provided for in the Financial Statements,
Seller does not have any liabilities or obligations of any nature relating to
the operations or business conducted at the Stores, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, other than those
incurred in the ordinary course of business since December 31, 1999. There is
no basis for assertion against Seller of any claim or liability relating to
said operations or business in any amount not fully reflected or provided for
in the Financial Statements or covered by insurance policies of Seller.
(f) No Adverse Changes. Since December 31, 1999, there have not
been (i) any adverse changes in the financial condition or in the operations,
business, prospects, properties or Assets from that shown on the Financial
Statements, or (ii) any material damage, destruction or loss to any of the
properties or Assets, whether or not covered by insurance, which have
adversely affected or impaired or which does or may reasonably be expected to
adversely affect or impair the ability of Seller to conduct its business, or
(iii) any negotiation, or request for negotiation, for any representation or
any labor contract or any event or condition relating to Seller's business of
any character which has adversely affected or which does or may adversely
affect or impair the business of Seller.
(g) Tax Returns and Payments. Except for returns which are not yet
due (provided they are filed on or prior to their due date), Seller will have
at Closing duly filed all federal, state and local tax returns and reports
required to be filed and now have and will have at Closing fully paid or
established adequate reserves for the proper payment of all taxes (whether or
not shown on any tax return) and other governmental charges upon it or its
properties, assets, licenses or sales (excluding income taxes based on
Seller's net income). There are no tax rulings outstanding, or requested
rulings, that would affect any of Seller's tax liabilities. All monies
required to be withheld by Seller from employees for income taxes, Social
Security and unemployment insurance taxes have been collected or withheld, and
either paid to the respective governmental agencies or set aside in accounts
for such purpose, or accrued, reserved against, and entered upon the books of
Seller. Any and all Internal Revenue Service adjustments to Seller's taxes
have been reported to all applicable states and all state taxes relating to
such adjustments have been paid.
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(h) Title to Property and Assets. Seller has good title to all its
Assets, subject to no mortgage, pledge, lien, security interest, lease,
charge, encumbrance or conditional sale or other title retention agreement.
(i) Franchise Agreements. Except as set forth in Exhibit F, Seller
is not in default in any respect under any Franchise Agreements, nor has any
event occurred which with the passage of time or the giving of notice or both
would constitute such a default. The Franchise Agreements are in full force
and effect as of the date hereof and there have been no amendments,
modifications, or alterations to the Franchise Agreements except as previously
disclosed in writing by Seller to Buyer. The continuation, validity and
effectiveness of all such Franchise Agreements will in no way be adversely
affected by the consummation of this Agreement. The Franchise Agreements are
freely assignable from Seller to Buyer, and such an assignment will not be a
default with respect to any of the Franchise Agreements. There are presently
no negotiations pending between the parties to the Franchise Agreements, nor
modification of the Franchise Agreements and Seller has no commitments or
understandings, oral or written, relating to the Franchise Agreements except
as contained in the particular Franchise Agreements. Seller has provided Buyer
with a copy of all Franchise Agreements.
(j) Leases. The Leases are in good standing, valid and effective
in accordance with their respective terms and there are no existing defaults
or events of default or events which with notice or lapse of time or both
would constitute defaults. Seller has not received any written notice of any
notice of any claim default with respect to the Leases. Seller has provided
Buyer with a copy of all Leases.
(k) Other Leases and Licenses. Excepting the Franchise Agreements
and Leases, a list of all leases of real or personal property and all license
agreements to which Seller is a party, and related to the Assets, is set forth
in Exhibit G. All such leases and licenses are in good standing, valid and
effective in accordance with their respective terms, and there are no existing
defaults or events of default or events which with notice or lapse of time or
both would constitute defaults. Seller has not received any notice of any
claimed default with respect to any leases and licenses. Neither the execution
of this Agreement nor the consummation of the transaction contemplated by this
Agreement will result in a default in, or will be deemed to be an assignment
of, Seller's leases and/or licenses. There are presently no negotiations
pending between Seller and the other party of such
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leases and/or licenses for the modification of any such lease or license except
as contemplated herein. Seller has no commitments or understandings, oral or
written, relating to such leases or licenses, except as contained in the
particular leases or licenses, listed on Exhibit G. Seller has provided Buyer
with a copy of all leases, licenses and amendments thereto.
(1) Condition of Property. Seller's property and equipment will
be, at Closing, in good operating condition and repair, subject to normal wear
and maintenance, and in conformity with all applicable ordinances and
regulations, and environmental, building, zoning or other laws.
(m) Insurance. All the insurable properties of Seller are insured
for Seller's benefit, in amounts deemed adequate by Seller's management,
against all risks usually insured against by persons operating similar
properties in the localities where such properties are located, under valid
and enforceable policies issued by insurers of recognized responsibility.
(n) Litigation, etc. Except as set forth in Exhibit H, there is no
suit, action or litigation, or administrative, arbitration or other proceeding
or, any governmental investigation or any change in the environmental, zoning
or building laws, regulations or ordinances affecting the real property or
leasehold property of Seller or its business operations, pending or, to the
knowledge of Seller or Shareholder, threatened, that might, severally or in
the aggregate, adversely affect the financial condition, business, property,
assets or prospects of Seller. Seller has complied with and is not in default
under or in violation of any laws, ordinances, requirements, regulations or
orders applicable to its business and Seller has not received notice of any
claimed default or violation with respect to any of the foregoing.
(o) Compliance with Other Instruments, etc. Neither the execution
nor the delivery of this Agreement nor the consummation of the transaction
contemplated hereby will conflict with or result in any violation of or
constitute a default under any agreements among Seller and Shareholder, or any
agreement, mortgage, indenture, license, permit or other instrument, judgment,
decree, order, law or regulation by which Seller or Shareholder is bound.
(p) Environmental Compliance. Seller is not in violation of any
United States federal, state or local law, ordinance or regulation relating to
the environmental conditions ("Environmental Law") on, under or about any real
property owned or leased by Seller including, but not limited to, soil and
groundwater conditions. To the best of Seller and Shareholder's knowledge,
Seller has not used, generated, manufactured, produced, stored, treated or
disposed of,
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whether temporarily or permanently, on, under or about any real property leased
by Seller or transported to or from any real property owned or leased by Seller
any Hazardous Substance (as defined below) in violation of any Environmental
law, except for hair care products customarily used in Seller's business. To the
best of Seller and Shareholder's knowledge, there is no proceeding or
investigation by any governmental entity with respect to the presence of such
Hazardous Substance on any real property leased by Seller or the migration
thereof from or to other property. Seller has not been required or ordered by
any governmental entity to treat, clean-up or otherwise dispose, remove or
neutralize any Hazardous Substance from or on any real property leased by
Seller. For purposes of this Agreement, "Hazardous Substances" shall mean (but
shall not be limited to) substances defined or listed as "hazardous wastes" or
"toxic substances", or any variation thereof, in or determined at any time to be
such pursuant to applicable laws, and regulations adopted and publications set
forth in or promulgated pursuant to such laws, including, without limitation:
(i) the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. Sections 9601 et seq.; Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et seq.; and (ii) pesticides,
fungicides, solvents, herbicides, flammable explosives, asbestos,
polychlorinated biphenyls, radioactive materials; and petroleum, and drilling
fluids, produced waters and other wastes associated with the exploration,
development, or production of crude oil, natural gas or geothermal energy.
(q) Defaults, etc. There is no actual or claimed default or state
of facts that with notice or lapse of time or both would constitute a default
on the part of Shareholder and/or Seller in the performance or payment of any
obligation to be performed or paid by Shareholder and/or Seller under any
contracts, plans or other instruments or arrangements referred to in or to be
submitted as provided herein, and neither Seller nor Shareholder has received
or given notice of any actual or claimed default or state of facts that with
notice or lapse of time or both would constitute a default on the part of
Shareholder and/or Seller in the performance or payment of any obligation to
be performed or paid by Shareholder and/or Seller under any contracts, plans
or other instruments or arrangements referred to or submitted as provided
herein. There are no benefit plans of Seller subject to the Employee
Retirement Income Security Act ("ERISA").
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(r) Books of Account and Records. Seller's books of account fairly
reflect all of the Seller's items of income and expense, assets, liabilities
and accruals, and are prepared, maintained and compiled on a basis consistent
with prior years.
(s) Suppliers. Seller's relationships with its suppliers are
continuing and satisfactory. Shareholder and Seller have no knowledge of any
plans of any supplier to discontinue providing products to Seller and have no
knowledge that a sale of the Assets by Seller might cause any such supplier to
discontinue providing products to Seller.
(t) Inventories. All inventory of Seller held for sale to
customers is of good merchantable quality and saleable in the ordinary course
of business. The merchandise inventory of Seller is valued at Seller's
customary cost.
(u) Labor Controversies: Collective Bargaining Agreements. There
are no controversies pending or threatened between Seller and (i) any union,
or (ii) Seller's employees. Seller is not currently subject to (i) any threats
of strikes or work stoppages, or (ii) any organizational efforts or demands
for collective bargaining or any union organization. Seller is in substantial
compliance with applicable labor laws. Seller is not a party to any collective
bargaining agreement with any labor union or other representative of any of
its employees.
(v) Brokers. No broker or finder has been employed by Seller or
Shareholder in connection with this transaction.
(w) Disclosure. No representation or warranty by the Shareholder
or Seller in this Agreement, nor any statement or certificate furnished or to
be furnished to Buyer pursuant hereto, or in connection with the transaction
contemplated hereby, 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.
5. Indemnity.
(a) The parties agree to indemnify each other and hold each other
harmless from any loss or damage from the breach of any warranty or
representation of the respective party set forth herein, including reasonable
legal and accounting fees and expenses incurred by the other party as a result
of such breach or in enforcing this indemnity.
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(b) Should Buyer pay any amount to any entity as a result of
Seller's breach or default under this Agreement, in addition to any other
remedies available to Buyer, Buyer may deduct such amount from the payments
described in Section 1.2.
6. Representations and Warranties of Buyer. Buyer represents and
warrants to Seller as follows:
(a) Organization; Good Standing. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Minnesota with all requisite power and authority to perform its obligations
hereunder.
(b) Compliance with Other Instruments, etc. Neither the execution
nor the delivery of this Agreement nor the consummation of the transaction
contemplated hereby will conflict with or result in any violation of or
constitute a default under any agreements of Buyer, or any agreement,
mortgage, indenture, license, permit or other instrument, judgment, decree,
order, law or regulation by which Buyer is bound.
(c) Brokers. No broker or finder has been employed by Buyer in
connection with this transaction.
(d) Authorization. The execution, delivery and performance of this
Agreement by Buyer has been duly authorized by the Board of Directors of Buyer
and the Agreement constitutes the valid and binding obligations of Buyer.
(e) Disclosure. No representation or warranty by Buyer in this
Agreement, nor any statement or certificate furnished or to be furnished to
Seller pursuant hereto, or in connection with the transaction contemplated
hereby, 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.
7. Covenants of Seller and Shareholder. Seller and Shareholder
agree that prior to the Closing:
(a) Cooperation. Seller, each Subsidiary and Shareholder will
cause the transactions contemplated by this Agreement to be consummated, and,
without limiting the generality of the foregoing, to obtain all consents and
authorizations of third parties and to make all filings with and give all
notices to third parties which may be necessary or reasonably required in
order to effect the transactions contemplated hereby. Seller and Shareholder
will use their best efforts to preserve
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Seller's business organizations intact and to keep available the services of its
employees and representatives and will preserve the goodwill of its employees,
customers, suppliers and others having business relations with Seller.
(b) Landlords' Consents. Seller shall cooperate with Buyer to
obtain the written consents from the Landlords to assignments of the Leases
with no increase in rent, but with such modifications as Buyer, in its sole
discretion, may deem necessary and reasonable, including but not limited to
the right to the modification of any radius restriction clauses so that the
scope is reasonable and the restrictions are limited to the existing trade
name only. Seller shall pay all fees required by Landlords as consideration
for consenting to the Lease assignments.
(c) Transactions Out of Ordinary Course of Business. Seller and
the Subsidiaries will not, except with the prior written consent of Buyer,
enter into any transaction out of the ordinary course of business, including,
but not limited to, the execution of any new lease or the modification of any
existing lease.
(d) Maintenance of Properties, etc. Seller and the Subsidiaries
will maintain all their properties in good repair, order and condition,
reasonable wear and use, damage by fire or other casualty excepted, and will
maintain insurance upon all their properties with respect to the conduct of
their business, in such amounts and of such kinds comparable to that in effect
on the date of this Agreement.
(e) Maintenance of Books and Records. Seller and all Subsidiaries
will maintain their books, accounts and records in the usual manner on a basis
consistent with prior years. Seller and each Subsidiary will duly comply in
all respect with all laws and decrees applicable to them and to the conduct of
their business.
(f) Certain Prohibited Transactions. Except with the prior written
consent of Buyer, Seller and Subsidiaries will not enter into any contract to
merge or consolidate with or sell all or any substantial part of their assets
to any other party or change the character of their business.
(g) Debts. All debts and trade payables of Seller and all
Subsidiaries will be paid as they become due in the normal course of business.
(h) COBRA Indemnification. Seller and Shareholder agree to pay and
be liable to Buyer and shall indemnify, defend and hold harmless Buyer from
and against and in respect of any and all losses, damages, liabilities, taxes,
sanctions that arise under section 4980B of the Internal
11
Revenue Code (the "Code"), interest and penalties, costs and expenses
(including, without limitation, disbursements and reasonable legal fees
incurred in connection therewith and in seeking indemnification therefore, and
any amounts or expenses required to be paid or incurred in connection with any
action, suit, proceeding, claim, appeal, demand, assessment or judgment)
imposed upon, incurred by, or assessed against Buyer arising by reason of or
relating to any failure by Seller or Subsidiaries to comply with the
continuation health care coverage requirements of section 4980B of the Code
and section 601 through 608 of ERISA which failure occurred with respect to
any current or prior employee of Seller or Subsidiaries or any qualified
beneficiary of such employee (as defined in section 4980(g)(1) of the Code)
prior to the Closing Date but only to the extent such action, suit,
proceeding, claim, appeal, demand, assessment or judgment arises by virtue of
the fact that such employee was employed by Seller or a Subsidiary prior to
the Closing Date and is based upon an obligation owed by Seller to such
employee. For purposes of this provision, references to the Code and ERISA
shall include references to any provision of such statutes as they may be
amended from time to time.
(i) Agreements Delivered, etc. Prior to the Closing Date, Seller
will furnish to Buyer complete and accurate lists of the following: (i) all
agreements or arrangements of Seller and all Subsidiaries that are to be
performed in whole or in part on or after the date hereof, other than leases
or licenses listed in Exhibit G; (ii) all bonus, incentive, death benefit or
other fringe benefit plans, deferred compensation and post-termination
obligations, trust agreements of Seller and all Subsidiaries in effect or
under which any amounts remain unpaid on the date hereof or are to become
effective after the date hereof; and (iii) all employment and consulting
contracts not terminable at will without penalty to which Seller or any
Subsidiary is a party.
8. Covenants of Buyer. Buyer will faithfully perform on a timely
basis all of its obligations required herein.
9. Non-Competition Agreement. At the Closing, Seller and
Shareholder will enter into a Non-Competition Agreement in the form set forth
in Exhibit I attached hereto.
10. Conditions Precedent to the Obligations of Seller and
Shareholder. All obligations of Seller and Shareholder xxxxxx this Agreement
are subject to the fulfillment, at the option of Seller and Shareholder, at or
prior to the Closing Date, of the following condition: The representations and
warranties of Buyer herein contained shall be true on and as of the Closing
Date with the same force
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and effect as though made on and as of said date, except as affected by the
transaction contemplated hereby.
11. Conditions Precedent to the Obligations of Buyer. All
obligations of Buyer under this Agreement are subject to the fulfillment, at
the option of Buyer, at or prior to the Closing Date, of the following
conditions:
(a) The representations and warranties of Seller and Shareholder
herein contained shall be true on and as of the Closing Date with the same
force and effect as though made on and as of said date, except as affected by
the transaction contemplated hereby.
(b) Shareholder and Seller shall have performed all of their
obligations and agreements and complied with all of its covenants contained in
this Agreement to be performed and complied with by Shareholder and Seller
prior to the Closing Date.
(c) Buyer shall be satisfied, in its sole discretion, with the
results of its legal, accounting, business, environmental and other due
diligence review of Seller's business and the Assets.
12. Survival of Representations. All statements by or on behalf of
Seller or Shareholder contained in this Agreement or any certificates or other
instrument delivered by or on behalf of Seller or Shareholder in connection
with the transaction contemplated hereby shall survive the Closing.
13. Entire Agreement. This Agreement supersedes all previous
agreements among the parties and contains the entire understanding and agreement
among them with respect to its subject matter. This Agreement cannot be amended,
modified or supplemented in any respect except by a subsequent written agreement
entered into by all parties.
14. Waivers and Notices. Any failure by any party to this Agreement to
comply with any of its obligations, agreements or covenants hereunder may be
waived by Seller or Shareholder in the case of a default by Buyer and by Buyer
in the case of a default by Seller or Shareholder. The failure of any party to
insist in any instance upon performance of any term or condition of this
Agreement shall not be construed as a waiver of any future performance. All
waivers under this Agreement and all notices, consents, demands, requests,
approvals and other communications which are required or may be given hereunder
of thereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed certified first class mail, postage prepaid:
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(a) If to Seller or Shareholder:
Yellowave Corporation
00000 Xxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
(b) If to Buyer:
0000 Xxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Attention: President
With a copy to:
0000 Xxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
or to such other person or persons at such address or addresses as may be
designated by written notice to the other parties hereunder.
15. Benefits. All the terms of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto and
their successors and assigns.
16. Arbitration. All disputes between the parties relating to this
Agreement or the transaction contemplated thereby or negotiations leading up
to execution of this Agreement shall be resolved by arbitration in Las Vegas,
Nevada, pursuant to the rules of the American Arbitration Association then in
effect. The arbitrators shall have the power to award costs, including
reasonable attorneys' fees, as they deem appropriate. This Agreement shall be
construed in accordance with the laws of the State of Minnesota.
17. Expenses. Whether or not the transactions contemplated hereby
are consummated, each of the parties hereto shall pay its or his own expenses
incurred in connection with the authorization, preparation, execution or
performance of this Agreement and all transactions contemplated hereby,
including without limitation, all fees and expenses of agents,
representatives, legal counsel and accountants. Seller shall pay all stamp,
documentary, transfer or similar taxes which may be payable as a result of the
sale.
18. Facsimile Signatures; Counterparts. The delivery of an
executed copy of this Agreement or of any amendment hereto, made by facsimile
transmission by any party to the other
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party hereto shall constitute effective delivery of such document by such
transmitting party to such receiving party, and any executed facsimile copy so
delivered shall be deemed equivalent to an executed original. This Agreement and
any amendments thereto may be signed in two or more counterparts, and all
counterpart signatures, taken together, shall constitute one executed original.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CUTCO ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------------------
Xxxx X. Xxxxxxxxxxx, Chief Executive Officer
CUTCO SALONS, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
, President
YELLOWAVE CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
, President
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2. This Agreement shall be construed and enforced in accordance
with the laws of the State of Minnesota.
CUTCO ACQUISITION CORP.
By:
Xxxx X. Xxxxxxxxxxx, Chief Executive Officer
CUTCO SALONS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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, President
YELLOWAVE CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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, President
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Xxx Xxxx, individually
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Xxxxx Xxxxxxxxx, individually
