EXHIBIT 10.22
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into effective
this 27th day of February, 2004 by and among Rush Financial Technologies, Inc.,
a Texas corporation (hereinafter referred to as "Buyer"), Xxxxx `Xxxx' Xxxxxx
("Xxxxxx") and Xxxxxxx Xxxxx ("Xxxxx"), the principal Shareholders of LostView
Development Corporation (together, "Sellers"), and LostView Development
Corporation, a Texas corporation (the "Company" or "LostView").
WHEREAS, Sellers own all of the outstanding common stock of the
Company; and
WHEREAS, Buyer desires to acquire all of the outstanding shares of
common stock of the Company (the "Shares") and employ the services of the
Sellers as evidenced by the Employment Agreements attached hereto and made a
part hereof.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, and subject to the
accuracy of the representations and warranties of the parties, the parties
hereto agree as follows:
ARTICLE I
THE PURCHASE
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1.1 Sale of Stock. At the Closing (as defined in Section 1.2) and
subject and upon the terms and conditions of this Agreement, Buyer shall acquire
and the Sellers shall deliver for sale all of the outstanding common stock of
the Company.
1.2 Closing. The closing of the sales of the Shares (the "Closing")
will take place concurrently with the execution of this Agreement at the offices
of the Buyer, unless another place or time is agreed to by Buyer and Sellers.
The date upon which the closing actually occurs is hereby referred to as the
"Closing Date". On the Closing Date, the parties hereto shall cause the
transactions described herein to be consummated.
1.3 Purchase Price.
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(a) Subject to the terms and conditions of this Agreement, at
the Closing, Sellers shall execute a Subscription Agreement for
1,500,000 shares of restricted shares of Common Stock, par value $0.01
per share, of Buyer. A total of 750,000 of the shares will be issued
within fifteen (15) days after Closing in the names of Sellers with
400,000 shares being issued to Xxxxxx and 350,000 shares being issued
to Nivin, and the balance of 750,000 shares will be issued to Xxxxx X.
Xxxxxxx as Escrow Agent under the terms of the Escrow Agreement dated
the date hereof. The certificates representing the Common Stock shall
bear restrictive legends to the effect that the Shares are unregistered
and may not be sold unless they are registered or exempt from
registration.
(b) The Performance Criteria for the release from escrow of
the second installment of 750,000 shares, shall mean satisfaction by
the Company of the following items as of December 31, 2004:
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(i) During 2004 Buyer, acting in good faith,
discovers no material actual or contingent liabilities of the
Company which existed before Closing and which were
undisclosed on the Company Financial Statements (defined
below) as of December 31, 2003, or disclosed on the Disclosure
Schedule;
(ii) During 2004 Buyer, acting in good faith,
discovers no out-of-pocket loss to the Buyer from any Excluded
Liability;
(iii) During 2004 Buyer, acting in good faith,
discovers no liens on the Company's assets which existed
before Closing and which were not disclosed on the Company
Financial Statements as of December 31, 2003, or on the
Disclosure Schedule;
(iv) As to Xxxxxx'x escrow shares only, continued
employment of Xxxxxx under the Employment Agreement between
the Buyer and Xxxxxx dated the date hereof until December 31,
2004; provided, however, that the termination of such
Employment Agreement by Buyer for any reason other than "for
cause" (as defined in the Employment Agreement) prior to
December 31, 2004, will result in the immediate acceleration
and the delivery of all the escrow shares to Xxxxxx. The
proper termination of the Employment Agreement by the Buyer
"for cause" as defined therein will result in the forfeiture
of the escrow shares of Xxxxxx. For these purposes, Xxxxxx
shall be deemed to be the beneficial owner of 400,000 of the
750,000 escrow shares; and
(v) As to Nivin's escrow shares only, continued
employment of Nivin under the Employment Agreement between the
Buyer and Nivin dated the date hereof until December 31, 2004;
provided, however, that the termination of such Employment
Agreement by Buyer for any reason other than "for cause" (as
defined in the Employment Agreement) prior to December 31,
2004, will result in the immediate acceleration and the
delivery of all the escrow shares to Nivin. The proper
termination of the Employment Agreement by the Buyer "for
cause" as defined therein will result in the forfeiture of the
escrow shares of Nivin. For these purposes, Nivin shall be
deemed to be the beneficial owner of 350,000 of the 750,000
escrow shares.
(c) To the extent any performance criteria set forth above in
subsections 1.3(b)(I), (ii) or (iii) is not met, Sellers shall forfeit
(in increments of Xxxxxx (8/15) and Nivin (7/15)) that number of shares
subject to the escrow in the amount of the loss or liability to Buyer,
at the rate of one share forfeited for each $0.25 of loss, but only
after the aggregate of such losses or liabilities shall exceed
$5,000.00.
(d) o the extent the Performance Criteria has been satisfied
or Buyer has not provided proper notice to Sellers of any failure to
satisfy the Performance Criteria on or before December 31, 2004, each
of Sellers and Buyer shall promptly give joint written notice to the
Escrow Agent to cause delivery of the remaining escrow shares to
Sellers.
1.4 Other Agreements. At the Closing, the indicated parties shall
execute and deliver the following additional agreements in substantially the
form attached hereto:
(a) Corporate records, checking account and books of the
Company.
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(b) Any necessary consents of third parties and regulatory
authorities.
(c) The Shares, endorsed for transfer.
(d) Subscription Agreements from each Seller.
(e) Employment Agreements dated concurrently herewith with
each of the Sellers.
(f) Assumption Agreement for the Excluded Liabilities.
(g) Resolutions of the Boards of Directors of each of Buyer
and the Company approving this Agreement and the agreements and
transactions provided for herein.
(h) 400,000 shares of Buyer issued to Xxxxxx and 350,000
shares of Buyer issued to Nivin, within fifteen (15) days after
Closing.
(i) All other instruments required by this Agreement or
reasonably requested by either party.
1.5 Taking of Necessary Action; Further Action. If, at any time after
the Closing, any such further action is necessary or desirable to carry out the
purposes of this Agreement and to vest the Buyer with full right, title and
possession to all assets, property, rights, privileges, powers and franchises of
the Company, the Sellers and the officers and directors of the Company are fully
authorized, in the name of the Company, to take, and will take, all such lawful
and necessary action.
1.6 Excluded Assets and Liabilities. No assets owned by the Company
shall be excluded, other than those listed in the Disclosure Schedule. Sellers
shall assume at Closing and indemnify the Company and Buyer from any loss, claim
or liability for any severance, back pay, unpaid employment taxes, sick pay or
accrued vacation payable to any employees of the Company, and any liability for
commissions payable to any third-party broker dealers ("Excluded Liabilities").
1.7 Registration Rights. If at any time during a period of two years
after Closing, the Buyer shall prepare and file one or more registration
statements under the Securities Act of 1933 (the "Act") with respect to a public
offering of equity or debt securities of the Buyer, other than a registration
statement on Forms X-0, X-0, or similar form, the Buyer will include in any such
registration statement such information as is required, and such number of
shares of Common Stock held by, or shares of Common Stock held by, the Sellers
to permit a public offering of such shares of Common Stock as required;
provided, however, that if, in the written opinion of the Buyer's managing
underwriter, if any, for such offering, the inclusion of the shares requested to
be registered, when added to the securities being registered by the Buyer or the
selling security holder(s), would exceed the maximum amount of the Buyer's
securities that can be marketed without otherwise materially and adversely
affecting the entire offering, then the Buyer may exclude from such offering
that portion of the shares required to be so registered so that the total number
of securities to be registered is within the maximum number of shares that, in
the opinion of the managing underwriter, may be marketed without otherwise
materially and adversely affecting the entire offering. The Buyer shall use its
best efforts to obtain promptly the effectiveness of such registration statement
and maintain the effectiveness thereof for at least 180 days and to register or
qualify the subject shares of Common Stock for sale in up to five (5) states
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identified by the Sellers. The Buyer shall bear all fees and expenses of the
registration other than the fees and expenses of any counsel retained by the
Sellers to review the registration statement prepared by Buyer and the amount of
any underwriting discounts or sales commissions attributable to Sellers' shares
being sold.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
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2.1 Representations and Warranties of Sellers and the Company. Sellers
and the Company jointly and severally represent and warrant to Buyer that,
except as set forth in the Disclosure Schedule:
(a) Title to the Shares. At Closing, Sellers shall own of
record and beneficially the Shares as listed in the Disclosure
Schedule, free and clear of all liens, encumbrances, pledges, claims,
options, charges and assessments of any nature whatsoever, with full
right and lawful authority to transfer the Shares to Buyer. No person
has any preemptive rights or rights of first refusal with respect to
any of the Shares. There exists no voting agreement, voting trust, or
outstanding proxy with respect to any of the Shares. There are no
outstanding rights, options, warrants, calls, commitments or any other
agreements of any character, whether oral or written, with respect to
the Shares. The Shares represent 100% of all issued and outstanding
equity securities of the Company.
(b) Authority. The Company and Sellers have full power and
lawful authority to execute and deliver this Agreement and to
consummate and perform the other agreements and transactions
contemplated hereby. This Agreement constitutes (or shall, upon
execution, constitute) valid and legally binding obligation of the
Company and Sellers, enforceable in accordance with its terms. Neither
the execution and delivery of this Agreement by the Company and
Sellers, nor the consummation and performance of other agreements and
the transactions contemplated thereby, conflicts with, requires the
consent, waiver or approval of, results in a breach of or default
under, or gives to others any interest or right of termination,
cancellation or acceleration in or with respect to, any agreement by
which the Company or Sellers are a party or by which the Company and
Sellers or any of their respective properties or assets are bound or
affected.
(c) Organization. The Company is a corporation duly formed
under the laws of the State of Texas. The Company has all requisite
corporate power and authority to own, lease and operate its properties
and to carry on its business. The Company is duly qualified and in good
standing as a corporation in Texas and each other jurisdiction where
its ownership of property or operation of its business requires
qualification.
(d) Authorized Capitalization. The authorized capitalization
of the Company consists of One Hundred Thousand (100,000) shares of
Common Stock, par value one tenth of One Cent ($0.001), of which
Fifteen Thousand (15,000) shares have been issued and are outstanding.
The Shares have been duly authorized, validly issued, are fully paid
and nonassessable with no personal liability attaching to the ownership
thereof and were offered, issued, sold and delivered by the Company in
compliance with all applicable state and federal laws. The Company has
no outstanding rights, options, warrants, calls, commitments,
conversion or any other agreements of any character, whether oral or
written, obligating it to issue any shares of ownership, whether
authorized or not. The Company is not a party to or is bound by any
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agreement, contract, arrangement or understanding, whether oral or
written, giving any person or entity any interest in, or any right to
share, participate in or receive any portion of, their income, profits
or assets, or obligating the Company to distribute any portion of their
income, profits or assets.
(e) Company Financial Statements. The Company's balance sheet
as of December 31, 2003, and statements of income, shareholders equity
and cash flow for the twelve months then ended (the "Company Financial
Statements") are complete in all material respects, were prepared in
accordance with generally accepted accounting principles applied on a
basis consistent with prior periods and fairly present the financial
position of the Company as of December 31, 2003.
(f) No Undisclosed Liabilities. Except as set forth in the
Company Financial Statements and as set forth in the Disclosure
Schedule, and except for obligations incurred thereafter in the
ordinary course of the Company's business, Sellers are not aware of any
material liabilities for which the Company is liable or will become
liable in the future.
(g) Taxes. To Sellers' knowledge, the Company has filed all
federal, state, local tax and other returns and reports which were
required to be filed with respect to all taxes, levies, imposts,
duties, licenses and registration fees, charges or withholdings of
every nature whatsoever ("Taxes"), and there exists a substantial basis
in law and fact for all positions taken in such reports. No waivers of
periods of limitation are in effect with respect to any taxes arising
from and attributable to the ownership of properties or operations of
the business of the Company.
(h) Properties. The Company has good and marketable title to
all its personal property, equipment, processes, patents, copyrights,
trademarks, franchises, licenses and other properties and assets
(except for items leased or licensed to the Company), including all
property reflected in the Company Financial Statements, in each case
free and clear of all liens, claims and encumbrances of every kind and
character, except as set forth in the Disclosure Schedule. The
Company's material assets are listed in the Disclosure Schedule, along
with any assets to be excluded from the sale hereby. The Company has no
ownership interest in any real property. The assets and properties
owned, operated or leased by the Company and used in the business of
the Company are in good operating condition in all material respects,
reasonable wear and tear excepted, and suitable for the uses for which
intended.
(i) Books and Records. To Sellers' knowledge, the books and
records of the Company are complete and correct in all material
respects, have been maintained in accordance with good business
practices and accurately reflect in all material respects the business,
financial condition and results of operations of the Company as set
forth in the Company Financial Statements.
(j) Insurance. The Disclosure Schedule contains an accurate
and complete list and brief description of all policies of insurance,
including fire and extended coverage, general liability, workers
compensation, fidelity, products liability, property, and other forms
of insurance or indemnity bonds held by the Company. The Company is not
in default with respect to any provisions of any such policy or
indemnity bond and has not failed to give any notice or present any
claim thereunder in due and timely fashion. All policies of insurance
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and bonds are: (1) in full force and effect; (2) are sufficient for
compliance by the Company with all requirements of law and of all
agreements and instruments to which the Company is a party; (3) are
valid, outstanding and enforceable; (4) will remain in full force and
effect through the Closing; and (5) will not be affected by, and will
not terminate or lapse by reason of, the transactions contemplated by
this Agreement.
(k) Material Contracts. The Company has no purchase, sale,
commitment, employment or other material contracts that are not listed
on the Disclosure Schedule.
(l) Authorizations. To Sellers' knowledge, the Company has no
licenses, permits, approvals and other authorizations from any
governmental agencies and any other entities that are necessary for the
conduct of its business, except as set forth in the Disclosure
Schedule, which contains a list of all licenses, permits, approvals,
and other authorizations, as well as a list of all copyrights, patents,
trademarks, trade names, service marks, franchises, licenses and other
permits, each of which is valid and in full force and effect.
(m) No Powers of Attorney. The Sellers and the Company have no
powers of attorney or similar authorizations outstanding affecting the
Company.
(n) Compliance with Laws. To Sellers' knowledge, the Company
is not in violation of any federal, state, local or other law,
ordinance, rule or regulation applicable to the business of the
Company, and has not received any actual or threatened complaint,
citation or notice of violation or investigation from any governmental
authority. The Company is in full compliance with all securities laws
and regulations and all rules of the NASD and the Texas Securities
Board.
(o) Compliance with Environmental Laws. To Sellers' knowledge,
the Company is in compliance with all applicable pollution control and
environmental laws, rules and regulations. The Company has no
environmental licenses, permits and other authorizations held by them
relative to compliance with environmental laws, rules and regulations.
(p) No Litigation. There are no actions, suits, arbitrations,
or to Sellers' knowledge, claims, complaints, investigations,
inspections, or proceedings pending or threatened against the Company,
at law or in equity, or before or by any governmental department,
commission, court, board, bureau, agency or instrumentality. There are
no orders, judgments or decrees of any governmental authority
outstanding which specifically apply to the Company or any of its
assets.
(q) Validity. To Sellers' knowledge, all material contracts,
agreements, leases and licenses to which the Company is a party or by
which it or any of its properties or assets are bound or affected, are
valid and in full force and effect; and no breach or default exists, or
upon the giving of notice or lapse of time, or both, would exist, on
the part of the Company or by any other party thereto.
(r) No Adverse Changes. To Sellers' knowledge, since December
31, 2003, there have been no actual or threatened developments of a
nature that is materially adverse to or involves any materially adverse
effect upon the business, financial condition, results of operations,
assets, liabilities, or prospects of the Company.
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(s) Full Disclosure. All statements of the Company contained
in this Agreement and in any other written documents delivered by or on
behalf of the Company to Buyer are true and correct in all material
respects.
(t) ERISA Matters. The Company and all "Employee Benefit
Plans" described in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), that cover any of its or
their employees (which Employee Benefit Plans are listed on the
Disclosure Schedule), comply in all material respects with all
applicable laws, requirements and orders under ERISA and the Internal
Revenue Code of 1986, as amended (the "Code"), the breach or violation
of which would have a material adverse effect on the Company, taken as
a whole; the present value of all the assets of each of its Employee
Benefit Plans that it is subject to Title IV of ERISA equals or exceeds
to the knowledge of the Company the present value of all of the
benefits accrued under each such Employee Benefit Plan as of the end of
most recent plan year with respect to such plan ending prior to the
date hereof, calculated on the basis of the actuarial assumptions used
in the last actuarial evaluation for each such plan; none of the
employees of the Company is covered by a collective bargaining
agreement; the Company has never contributed to a "multi-employer plan"
as defined in Section 3(37) of ERISA; neither the Employee Benefit
Plans nor any fiduciary or administrator thereof has engaged in a
"prohibited transaction" as defined in Section 406 of ERISA or, where
applicable, Section 4975 of the Code for which no exemption is
applicable, that may have any Material Adverse Effect on the Company,
taken as a whole, nor to the knowledge of the Company have there been
any "reportable events" as defined in Section 4043 of ERISA for which
the thirty-day notice has not been waived.
(u) Bank Accounts. The Disclosure Schedule contains a complete
list of all bank accounts and the signatories thereof.
2.2 Representations and Warranties of Buyer. Buyer represents and
warrants to Sellers and Company as follows:
(a) Organization. The Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of
the State of Texas. Buyer has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
businesses. The Buyer is duly qualified and in good standing in each
jurisdiction where its ownership of property or operation of its
business requires qualification.
(b) Authorized Capitalization. The authorized common
capitalization of the Buyer at Closing consists of 50,000,000 shares of
Common Stock, $0.01 par value, of which approximately 15,000,000 shares
will be issued and outstanding prior to the Closing. All shares of
Buyer, including the shares to be issued to Sellers hereunder, have
been duly authorized, validly issued, are fully paid and nonassessable
with no personal liability attaching to the ownership thereof and were
offered, issued, sold and delivered by the Buyer in compliance with all
applicable state and federal laws.
(c) Authority. Buyer has full power and lawful authority to
execute and deliver this Agreement and to consummate and perform the
Transactions contemplated thereby, and has been approved by Buyer's
Board of Directors. This Agreement constitutes the valid and legally
binding obligation of Buyer, enforceable in accordance with its terms.
Neither the execution and delivery of this Agreement by Buyer, nor the
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consummation and performance of the agreements and transactions
contemplated hereby, conflicts with, requires the consent, waiver or
approval of, results in a breach of or default under, or gives to
others any interest or right of termination, cancellation or
acceleration in or with respect to, any agreement by which Buyer is a
party or by which Buyer or any of its respective properties or assets
are bound or affected.
(d) Buyer's Financial Statements. The Buyer's Financial
Statements set forth in its annual and quarterly reports to the
Securities and Exchange Commission are complete, were prepared in
accordance with generally accepted accounting principles applied on a
basis consistent with prior periods and fairly present the financial
position of the Buyer as of the most recent period released and
disseminated to the public.
(e) Books and Records. The books and records of the Buyer are
complete and correct in all material respects, have been maintained in
accordance with good business practices and accurately reflect in all
material respects the business, financial condition and results of
operations of the Buyer as set forth in the Buyer's Financial
Statements.
(f) Compliance with Laws. The Buyer is not, and as a result of
the transactions contemplated hereby, will not be, in violation of any
federal, state, local or other law, ordinance, rule or regulation
applicable to its business, and has not received any actual or
threatened complaint, citation or notice of violation or investigation
from any governmental authority, including the Securities and Exchange
Commission.
(g) Compliance with Environmental Laws. To Buyer's knowledge,
the Buyer is in compliance with all applicable pollution control and
environmental laws, rules and regulations. The Buyer has no
environmental licenses, permits and other authorizations held by the
Buyer relative to compliance with environmental laws, rules and
regulations.
(h) Litigation. Except as disclosed in the Buyer's Financial
Statements, there are no material actions, suits, claims, complaints or
proceedings pending or threatened against the Buyer, at law or in
equity, or before or by any governmental department, commission, court,
board, bureau, agency or instrumentality.
(i) Full Disclosure. All statements of Buyer contained in this
Agreement and in any other written documents delivered by or on behalf
of the Buyer to Sellers are true and correct in all material respects.
(j) Investment Intent. Buyer is acquiring the Shares for its
own account for investment and not with a view to, or for sale or other
disposition in connection with, any distribution of all or any part
thereof.
(k) Restricted Securities. Buyer understands that the Shares
have not been registered pursuant to the Securities Act or any
applicable state securities laws, that the Shares will be characterized
as "restricted securities" under federal securities laws, and that
under such laws and applicable regulations the Shares cannot be sold or
otherwise disposed of without registration under the Securities Act or
an exemption therefrom.
(l) Disclosure of Information. Buyer acknowledges that it has
been furnished with information regarding the Company and its business,
assets, results of operations, and financial condition to allow Buyer
to make an informed decision regarding an investment in the Shares.
Buyer represents that it has had an opportunity to ask questions of and
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receive answers from the Company regarding the Company and its
business, assets, results of operation, and financial condition.
ARTICLE III
INDEMNIFICATION
3.1 Buyer Claims. (a) Sellers shall indemnify and hold harmless Buyer,
its successors and assigns, against, and in respect of:
(i) Any and all damages, losses, liabilities, costs,
and expenses incurred or suffered by Buyer that result from,
relate to, or arise out of:
(A) Any failure by Sellers to carry out any
covenant or agreement contained in this Agreement;
(B) Any material misrepresentation or breach
of warranty by Sellers contained in this Agreement, the
Disclosure Schedule, or any certificate, furnished to Buyer by
Sellers pursuant hereto; or
(C) Any claim by any Person for any
brokerage or finder's fee or commission in respect of the
transactions contemplated hereby as a result of Sellers'
dealings, agreement, or arrangement with such Person.
(ii) Any and all actions, suits, claims, proceedings,
investigations, demands, assessments, audits, fines,
judgments, costs, and other expenses (including, without
limitation, reasonable legal fees and expenses) incident to
any of the foregoing including all such expenses reasonably
incurred in mitigating any damages resulting to Buyer from any
matter set forth in subsection (i) above.
(b) The amount of any liability of Sellers under this Section
3.1 shall be computed net of any tax benefit to Buyer from the matter
giving rise to the claim for indemnification hereunder and net of any
insurance proceeds received by Buyer with respect to the matter out of
which such liability arose.
(c) The representations and warranties of Sellers contained in
this Agreement, the Disclosure Schedule, or any certificate delivered
by or on behalf of Sellers pursuant to this Agreement or in connection
with the transactions contemplated herein shall survive the
consummation of the transactions contemplated herein and shall continue
in full force and effect for a period of 12 months from the date of the
Closing.
Anything to the contrary notwithstanding, the Survival period shall be
extended automatically to include any time period necessary to resolve
a written claim for indemnification which was made in reasonable detail
before expiration of the Survival Period but not resolved prior to its
expiration, and any such extension shall apply only as to the claims so
asserted and not so resolved within the Survival Period. Liability for
any such item shall continue until such claim shall have been finally
settled, decided, or adjudicated.
(d) Buyer shall provide written notice to Sellers of any claim
for indemnification under this Article as soon as practicable;
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provided, however, that failure to provide such notice on a timely
basis shall not bar Buyer's ability to assert any such claim except to
the extent that Seller is actually prejudiced thereby, provided that
such notice is received by Sellers during the applicable Survival
Period. Buyer shall make commercially reasonable efforts to mitigate
any damages, expenses, etc. resulting from any matter giving rise to
liability of Sellers under this Article.
(e) Buyer's sole recourse against Sellers under this Article
or otherwise under this Agreement shall be to cause forfeiture of some
or all of the shares held in escrow pursuant to Section 1.3, at the
rate of $0.25 per share held in escrow.
3.2 Defense of Third-Party Claims. With respect to any claim by Buyer
under Section 3.1, relating to a third party claim or demand, Buyer shall
provide Sellers with prompt written notice thereof and Sellers may defend, in
good faith and at their expense, by legal counsel chosen by them and reasonably
acceptable to Buyer any such claim or demand, and Buyer, at its expense, shall
have the right to participate in the defense of any such third party claim. So
long as Sellers are defending in good faith any such third party claim, Buyer
shall not settle or compromise such third party claim. In any event Buyer shall
cooperate in the settlement or compromise of, or defense against, any such
asserted claim.
3.3 Sellers Claims. Buyer shall indemnify and hold harmless Sellers
against, and in respect of, any and all damages, claims, losses, liabilities,
and expenses, including without limitation, legal, accounting and other
expenses, which may arise out of: (a) any material breach or violation by Buyer
of any covenant set forth herein or any failure to fulfill any obligation set
forth herein, including, but not limited to, the obligation to satisfy the
Assumed Liabilities; (b) any material breach of any of the representations or
warranties made in this Agreement by Buyer; or (c) any claim by any Person for
any brokerage or finder's fee or commission in respect of the transactions
contemplated hereby as a result of Buyer's dealings, agreement, or arrangement
with such Person.
3.4 Settlement of Disputes. (a) Arbitration. All disputes with respect
to any claim for indemnification under this Article III and all other disputes
and controversies of every kind and nature between the parties hereto arising
out of or in connection with this Agreement shall be submitted to arbitration
pursuant to the following procedures:
(i) After a dispute or controversy arises, either
party may, in a written notice delivered to the other party,
demand such arbitration;
(ii) The parties shall seek to agree on a single
arbitrator to decide the case, and if they cannot agree, then
the arbitrator shall be named by the Dallas, Texas office of
the American Arbitration Association ("AAA");
(iii) The arbitration hearing shall be held in
Dallas, Texas, at a location designated by the arbitrator. The
Commercial Arbitration Rules of the AAA shall be used and the
substantive laws of the State of Texas (excluding conflict of
laws provisions) shall apply;
(iv) An award rendered by the arbitrator appointed
pursuant to this Agreement shall be final and binding on all
parties to the proceeding, shall deal with the question of
costs of the arbitration and all related matters, shall not
award punitive damages, and judgment on such award may be
entered by either party in a court of competent jurisdiction;
and
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(v) Except as set forth in subsection (b) below, the
parties stipulate that the provisions of this Section 3.4
shall be a complete defense to any suit, action or proceeding
instituted in any federal, state, or local court or before any
administrative tribunal with respect to any controversy or
dispute arising out of this Agreement. The arbitration
provisions hereof shall, with respect to such controversy or
dispute, survive the termination or expiration of this
Agreement.
(b) Emergency Relief. Notwithstanding anything in this Section
3.4 to the contrary, either party may seek from a court any provisional
remedy that may be necessary to protect any rights or property of such
party pending the establishment of the arbitral tribunal or its
determination of the merits of the controversy.
ARTICLE IV
MISCELLANEOUS
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4.1 Binding Effect. This Agreement and the agreements and other
instruments delivered by or on behalf of the parties pursuant hereto, constitute
the entire agreement between the parties. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
heirs, legal representatives, successor and assigns of the parties hereto.
Nothing in this Agreement, expressed or implied, confers any rights or remedies
upon any party other than the parties hereto and their respective heirs, legal
representatives and assigns.
4.2 Applicable Law. This Agreement is made pursuant to, and will be
construed under, the laws of the State of Texas.
4.3 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and will be deemed to have been duly given when
delivered or mailed, first class postage prepaid:
(a) If to Sellers or the Company, to:
Xx. Xxxxx `Xxxx' Xxxxxx
00000 Xxxxxxx Xx. #000-000
Xxxxxx, Xxxxx 00000
Fax: 000-000-0000
(b) If to Buyer, to:
Mr. X.X. (Xxxxx) Xxxxx, Jr.
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
These addresses may be changed from time to time by written notice to
the other parties.
4.4 Headings. The headings contained in this Agreement are for
reference only and will not affect in any way the meaning or interpretation of
this Agreement.
Page 44
4.5 Counterparts. This Agreement may be executed in counterparts, each
of which will be deemed an original and all of which together will constitute
one instrument.
4.6 Severability. If any one or more of the provisions of this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
under applicable law this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein. The
remaining provisions of this Agreement shall be given effect to the maximum
extent then permitted by law.
4.7 Forbearance, Waiver. Failure to pursue any legal or equitable
remedy or right available to a party shall not constitute a waiver of such
right, nor shall any such forbearance, failure or actual waiver imply or
constitute waiver of subsequent default or breach.
4.8 Attorneys' Fees and Expenses. The prevailing party in any legal
proceeding based upon this Agreement shall be entitled to reasonable attorneys'
fees and expenses and court costs.
4.9 Expenses. Each party shall pay all fees and expenses incurred by it
incident to this Agreement and in connection with the consummation of all
transactions contemplated by this Agreement.
[Signature Page Follows]
Page 45
IN WITNESS WHEREOF, the undersigned parties hereto have duly executed
this Agreement on the date first written above.
Rush Financial Technologies, Inc.
By: /s/ X. X. (Xxxxx) Xxxxx, Jr.
----------------------------------------
X. X. (Xxxxx) Xxxxx, Jr., President
LostView Development Corporation
By: /s/ Xxxxx `Xxxx' Xxxxxx
----------------------------------------
Xxxxx `Xxxx' Xxxxxx,
President
SELLERS:
/s/ Xxxxx `Xxxx' Xxxxxx
-------------------------------------------
Xxxxx `Xxxx' Xxxxxx
/s/ Xxxxxxx Xxxxx
-------------------------------------------
Xxxxxxx Xxxxx
Page 46
SCHEDULE "A"
DISCLOSURE SCHEDULE
EXCLUDED ASSETS
Sellers shall retain the domain name: xxx.xxxxxxxx.xxx
Page 47
INCLUDED ASSETS
Business Property:
Software: MSDN Universal Subscription
--------
Hardware:
--------
DevServer Medion 1704; P4-2.66Ghz, 512 MB, 120GB
DevServer2 Generic; P4-1.6GHz, 512MB
DevServer3 Compaq
DevServer4 Generic
DevServer5 Generic; P4-1.6GHz, 512 MB; 80GB
DevServer6 Generic; P4-1.6GHz, 512 MB; 80GB
LostJeff PowerSpec, P4-3.0, 1GB, 120GB HD
LostTony PowerSpec, P4-3.0, 1GB, 120GB HD
Conference Emachine 1Ghz Celeron; 256MB; 60GB
Furniture:
---------
Conference Table and Chairs
Tony's Desk
Jeff's Desk
3 Bookcases
Intellectual Property:
C++ Market Data Feed Parser Code
Other:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
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