EXHIBIT 2.15
AGREEMENT
THIS AGREEMENT is executed this ____ day of December, 1999, NUNC PRO
TUNC to August __, 1999, by and among:
JAMBERRY LAKE, LLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
(hereinafter "Jamberry" and/or "Shareholder");
JAMBERRY LAKE DIGITAL MEDIA,INC.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
(hereinafter the "Corporation")
and
XXXXXXXXXX.XXX, INC.
000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
(hereinafter "ColorSmart" and/or "Purchaser")
WITNESSETH:
WHEREAS, Jamberry owns one hundred (100) shares of the common stock of
the Corporation, which represent one hundred (100%) percent of the issued and
outstanding shares of common stock (hereinafter the "Shares") of the
Corporation; and
WHEREAS, the Corporation is in the business of designing, distributing
and implementing multi-media applications for electronic commerce; and
WHEREAS, the Corporation is in need of additional working capital to
fund its operations; and
WHEREAS, the Purchaser intends to engage in an Initial Public Offering
("IPO") of the Purchaser's stock; and
WHEREAS, Jamberry desires to sell to the Purchaser, and the Purchaser
desires to purchase from Jamberry the Shares, upon the terms and subject to
the conditions contained herein;
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE OF THE SHARES/ADDITIONAL CONSIDERATION.
1.1 PURCHASE AND SALE. Upon the terms and subject to the conditions
contained herein, Jamberry shall sell, transfer and deliver to the
Purchaser, and the Purchaser shall purchase and acquire from Jamberry the
Shares, which Shares shall be free of any adverse claim or encumbrance.
1.2 PURCHASE PRICE. The purchase price (the "Purchase Price") for the
Shares shall be ONE MILLION AND 00/100 DOLLARS ($1,000,000.00). The Purchase
Price is subject to potential increase as set forth in Section 1.3.
1.3 PAYMENT OF THE PURCHASE PRICE. In payment of the Purchase Price,
Jamberry shall receive, at the time of the Purchaser's IPO, ONE HUNDRED
TWENTY-FIVE THOUSAND SHARES (125,000) of common stock of the Purchaser (the
"Minimum
Stock Consideration"). The Minimum Stock Consideration is the minimum
compensation which Jamberry shall receive for the sale and transfer of the
Shares. On the thirtieth (30th) day after the IPO, Jamberry shall receive
common stock of the Purchaser with a fair market value equal to ten percent
(10%) of the amount by which the average equity market capitalization of the
Purchaser during the thirty (30) day period following the IPO (the "Initial
Period") exceeds SEVENTY-FIVE MILLION AND 00/100 DOLLARS ($75,000,000.00).
The average equity market capitalization during that Initial Period will be
considered the "Threshold Level". Sixty (60) days after the IPO, Jamberry
shall receive common stock of the Purchaser with a fair market value equal to
ten percent (10%) of the amount by which the average equity market
capitalization of the Purchaser, during the thirty (30) days that begin
thirty-one (31) days after the Initial Period exceeds the Threshold Level. The
average equity market capitalization during that thirty (30) day period will
be considered the "Second Threshold Level". Ninety days after the IPO,
Jamberry shall receive common stock of the Purchaser with a fair market value
equal to ten (10%) of the amount by which the average equity market
capitalization of the Purchaser, during the thirty (30) days that begin
sixty-one (61) days after the Initial Period, exceeds the "Second Threshold
Level".
1.4 ADDITIONAL CONSIDERATION - PURCHASER'S OBLIGATION TO PROVIDE WORKING
CAPITAL. In addition to the payment of the Purchase Price as set forth
herein, and as further consideration for Jamberry's transfer of the Shares,
Purchaser shall be required to pay to Jamberry ONE HUNDRED THOUSAND AND
00/100 DOLLARS ($100,000.00) per month until the completion of the
Purchaser's IPO (collectively the "Capital
Contribution Payments", individually a "Capital Contribution Payment"). Each
Capital Contribution Payment is non-refundable and shall be due and payable
on the fifteenth (15th) day of each month beginning on August 15, 1999.
Jamberry hereby acknowledges receipt of TWO HUNDRED FORTY-FIVE THOUSAND AND
00/100 DOLLARS ($245,000.00) representing two (2) whole and one (1) partial
Capital Contribution Payment from the Purchaser. Notwithstanding any
provision contained herein to the contrary, in the event the Purchaser
completes its IPO prior to Jamberry's receipt of Capital Contribution Payment
totaling at least ONE MILLION AND 00/100 DOLLARS ($1,000,000.00), Purchaser
shall be required to pay to Jamberry, at the closing of the IPO, an amount
equal to the difference between ONE MILLION AND 00/100 DOLLARS
($1,000,000.00) and the total amount of the Capital Contribution Payments
received by Jamberry.
ARTICLE 2
TRANSFER OF SHARES
1.1 SHARE TRANSFER. Within five (5) business days of receipt of each
Capital Contribution Payment Jamberry shall deliver to Xxxxxx & Xxxxxx, Esqs.
(the "Escrow Agent") ten percent (10%) of the issued and outstanding shares
of common stock of the Corporation duly endorsed (or accompanied by
appropriate stock powers duly endorsed) in blank for transfer (individually a
"Share Installment", collectively the "Share Installments"). All of the Share
Installments delivered to the Escrow Agent pursuant to this Section 2.1 shall
be held under the terms of the Escrow Agreement attached hereto as Exhibit
A. In the event that all of the issued and outstanding Shares of common stock
have not been delivered to the Escrow Agent at the time of the Purchaser's
IPO, Jamberry shall, provided it has received the required number of
shares of the common stock of the Purchaser due Jamberry pursuant to Section
1.3 herein, deliver the remaining shares directly to the Purchaser at the
Closing as set forth in Section 5.1.
2.2 NON-OCCURANCE OF IPO. Notwithstanding anything to the contrary
contained herein, in the event the Purchaser's IPO has not occurred by March
31, 1999, either party may cancel this Agreement upon ten (10) days advance
written notice to the other party, and the parties shall thereafter have no
further rights or obligations to each other, except as set forth in this
Section 2.2. Upon cancellation of this Agreement pursuant to this Section
2.2, Purchaser shall be entitled to receive from the Escrow Agent one percent
(1%) of the issued and outstanding common stock of the Corporation for each
TWENTY THOUSAND AND 00/100 DOLLARS ($20,000.00) in Capital Contribution
Payments which have been made by the Purchaser at the time of cancellation up
to a maximum of fifty percent (50%) of the issued and outstanding shares of
common stock of the Corporation.
2.3 TAXES ON TRANSFER; EXPENSES OF SHAREHOLDERS.
Jamberry shall pay all state and/or federal taxes and governmental
charges assessable against Jamberry regarding the transfer of the Shares to
the Purchaser. Each party shall be required to pay its respective fees and
expenses of counsel, and any accounting and other costs and expenses
incurred, by them in connection with the Agreement and the transactions
provided for herein.
2.4 ASSUMPTION OF JAMBERRY'S LEASE OBLIGATIONS. The parties hereto
acknowledge that Jamberry is the Guarantor on the Lease for the premises
located at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx, (the "Leased
Premises"), a copy of which is hereto attached as Exhibit "B". Purchaser
hereby agrees to replace Jamberry as the Guarantor on
the Lease within fifteen (15) business days of the day on which Purchaser
receives a Share Installment or Share Installments such that Purchaser at the
time of receipt of said Share Installment or Share Installments owns a
minimum of fifty percent (50%) of the issued and outstanding shares of
commons stock of the Corporation. In the event the Landlord of the Leased
Premises refuses to consent to the substitution of the Purchaser as the
Guarantor, Purchaser agrees to indemnify and hold Jamberry harmless from any
damage, loss, claim, liability, deficiency or expense inclusive of reasonable
attorneys' and accountants' fees arising out of or relating to Jamberry's
obligations as Guarantor under the Lease.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER.
Jamberry represents and warrants to Purchaser that:
3.1 ORGANIZATION, STANDING, POWER AND AUTHORITY OF THE CORPORATION. The
Corporation is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power
and authority to own, lease and operate its properties and to conduct its
business as it has been and is now conducted. The Corporation has no
subsidiary corporation and owns no interest, directly or indirectly in any
other business, enterprise, firm or corporation.
3.2 SHAREHOLDERS OF THE CORPORATION. Jamberry is the sole holder of
record and the sole beneficial owner of the Shares. The Shares are held by
Jamberry free and clear of any
adverse claim or encumbrance.
3.3 CAPACITY OF SHAREHOLDER; CONSENT; EXECUTION OF AGREEMENT; GOOD
TITLE. Jamberry has all requisite power, authority and capacity to enter into
this Agreement and to perform the obligations to be performed hereunder.
Jamberry represents that it is not required to obtain any consents and
approvals from any persons, other than Xxxx X. Xxxxxx, Xxxx Xxxxxx, and
Xxxxxxx Xxxxxx, so as to sell the Shares to Purchaser pursuant to the terms
and conditions of this Agreement. This Agreement has been duly executed and
delivered by and constitutes the valid and legally binding obligation of
Jamberry. Upon delivery of the Shares to Purchaser as herein contemplated,
Purchaser shall acquire legal and beneficial ownership of, and shall have
good and marketable title to, all of the issued and outstanding Shares, which
constitute all of the issued and outstanding shares of capital stock of the
Corporation, free of any adverse claim or encumbrance.
3.4 NONVIOLATION OF LAWS, ORDERS AND AGREEMENTS. The execution and
delivery of this Agreement by Jamberry and the performance of its obligations
hereunder are not prohibited by, are not in violation of breach of, do not
conflict with or constitute a default under, and will not accelerate or
permit the acceleration of the performance required by, any of the terms or
provisions of the Articles of Incorporation or By-Laws of the Corporation or
any note, debt instrument, security agreement, deed, lease or mortgage, or
any other material commitment, license, purchase order, contract, agreement
or other instrument, written or oral, to which the Corporation or Jamberry or
any of their respective assets or properties are bound, and will not be an
event which, after notice or lapse of time or both, will result in any such
violation, breach, conflict, default or acceleration. The execution and
delivery of this Agreement by Jamberry and
the performance of its obligations hereunder will not violate any law,
judgment, decree, order, rule or regulation of any governmental authority or
court, whether federal, state or local, at law or in equity, applicable to
the Corporation or Jamberry and will not result in the creation or
imposition of any lien, encumbrance, equity, mortgage, restriction or claim in
favor of any third person upon any of the properties, assets or common or
preferred stock of the Corporation.
3.5 ABSENCE OF DEFAULT. The Corporation is not in default (i) under any
of the terms or provisions of any note, debt instrument, security agreement,
deed, lease, or mortgage or under any other commitment, contract, agreement,
license, purchase order, lease or other instrument, whether written or oral,
to which the Corporation is a party or by which it or any of its properties
or assets is bound; (ii) under any law, judgment, decree, order, notice, rule
or regulation of any governmental authority or court, whether federal, state
or local, at law or in equity, and applicable to the Corporation or to
any of its respective operations, properties or assets; or (iii) in the
payment of any of its respective monetary obligations or debts; and to the
best of Jamberry's knowledge and belief, there exists no condition or event
which, after notice or lapse of time or both, would constitute a default in
connection with any of the foregoing, which default (or the curing of which
default) could have a material, adverse effect on the business, assets,
properties or operations of the Corporation.
3.6 FINANCIAL STATEMENTS. Exhibit "C" to this Agreement sets forth the
balance sheet for the Corporation as of September 30, 1999, and the statement
of income and retained earnings of the Corporation for the most recent year,
which has been prepared by the Corporation and which accurately reflect the
financial condition of the Corporation as noted therein and thereon by
management.
3.7 ACTIONS BY THE CORPORATION. The Corporation has not, since the date
of the balance sheet as of September 30, 1999, referenced in Section 3.6
above, acquired or disposed of any real property or material interests
therein or material fixtures attached thereto, paid any dividend or made any
distribution on its shares, incurred any indebtedness, or (except for this
Agreement) entered into any transaction not in the ordinary course of
business.
3.8 TAXES OF THE CORPORATION AND THE SHAREHOLDERS. The Corporation and
Jamberry are not delinquent in the payment of any taxes to the United States
Government, the States of New Jersey or Delaware, or to any other taxing
authority.
3.9 ASSETS OF THE CORPORATION; GOOD TITLE. The assets shown in the most
current balance sheet of the Corporation constitute all the property, real
and personal, tangible and intangible, used by the Corporation in the
conduct of its business. To the best of the knowledge of the Shareholders,
all of the personal properties and assets of the Corporation used in the
conduct of its business are in operating condition (subject to normal wear
and tear, consistent with the age of the properties or assets). Except as set
forth in Exhibit D to this Agreement, the Corporation has good and marketable
title to all of its personal and real properties and assets (tangible and
intangible), free and clear of any and all liens, charges, encumbrances,
claims, restrictions, or equities. No such asset is subject to or held under
any lease, mortgage, security agreement, conditional sales contract or other
title retention agreement, or is other than in the sole possession and under
the sole control of the Corporation.
3.10 CONTRACTS OF THE CORPORATION. Exhibit "E" to this Agreement
constitutes a full and complete list of each contract or agreement to which
the Corporation is a party or bound thereby in any respect.
3.11 ARTICLES OF INCORPORATION AND BY-LAWS OF THE CORPORATION. The
copies of the Articles of Incorporation of the Corporation, certified by the
Secretary of State of the State of Delaware, and the By-Laws of the
Corporation, certified by the Secretary, heretofore delivered by the
Corporation, are true, complete and correct. The corporate records and stock
books of the Corporation heretofore provided to Purchaser or its authorized
representatives for inspection and review are current and up-to-date, true,
complete and correct. All such information which Jamberry and the Corporation
have made available or provided to, or have caused to be made available or to
be provided to, Purchaser or any of its authorized representatives is true,
correct and complete as to the subject matter thereof.
3.12 LITIGATION OF THE CORPORATION. There are no outstanding suits,
proceedings, actions, claims and investigations, at law or in equity, pending
against or affecting the Corporation or involving any of its respective
properties, assets or capital stock, before any court, agency or authority.
The Corporation is not subject to nor in default with respect to any notice,
order, writ, injunction or decree of any court, agency or authority.
3.13 LICENSES OF THE CORPORATION. Exhibit "F" to this Agreement
constitutes a full and complete list of all registrations, licenses, permits,
approvals, qualifications, or the like, issued or to be issued to the
Corporation by any government or any governmental unit, agency, body or
instrumentality, whether federal, state, local or other. No other
registrations, licenses, permits, approvals, qualifications or the like are
necessary to conduct the respective business of the Corporation as it is now
being conducted. No registration with, approval by, clearance from or
prenotification to any governmental agency is required in connection with the
execution and performance of this Agreement by the Shareholders.
3.14 BANK ACCOUNT OF THE CORPORATION. Exhibit "G" to this Agreement
constitutes a full and complete list of (i) all the bank and Security
Brokerage accounts of the Corporation, together with the names of the persons
authorized to draw thereon and (ii) the names of all persons holding powers
of attorney from the Corporation and a summary statement of the terms thereof.
3.15 ACCURACY OF INFORMATION FURNISHED BY OR ON BEHALF OF THE
CORPORATION AND THE SHAREHOLDER. This Agreement, including the Exhibits
hereto, to the best of Jamberry's knowledge and belief, does not contain any
untrue statement of a material fact and does not omit to state any material
fact necessary to make any such statement, in light of the circumstances
under which such statement is made, not misleading.
3.16 COMPLIANCE BY THE CORPORATION WITH LAWS, REGULATIONS, AND ORDERS.
Except where limited or qualified by the terms of this Agreement or any
exhibits attached hereto, and to the best knowledge and belief of Jamberry,
the Corporation has complied with all laws, regulations, and orders
applicable to the operation of its business.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Jamberry that:
4.1 ORGANIZATION, STANDING, POWER AND AUTHORITY OF PURCHASER; EXECUTION
OF AGREEMENT. Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada, and has all requisite
power and authority to own, lease and operate its properties and to conduct
its business as it has been and is know conducted. Purchaser has all
requisite corporate power and authority to enter into this Agreement and to
perform the obligations to be performed by it hereunder. This Agreement has
been duly authorized, executed and delivered by and constitutes the valid and
legally bind obligation of, Purchaser.
4.2 BROKER, FINDER, OR AGENT. Purchaser has not expressly or impliedly
engaged any broker, finder or agent with respect to any transaction
contemplated by this Agreement.
4.3 NONVIOLATION OF LAWS, ORDER AND AGREEMENT. The execution and
delivery of this Agreement by Purchaser and the performance of its obligation
hereunder are not prohibited by, are not in violation or breach of, do not
conflict with or constitute a default under, and will not accelerate or
permit the acceleration of the performance required by, any of the terms or
provisions of the Articles of Incorporation or By-Laws of Purchaser or any
material note, debt instrument, security agreement or mortgage, or any other
contract, agreement or instrument, written or oral, to which Purchaser is a
party or by which Purchaser is bound, and will not be an event which, after
notice or lapse of time or both, will result in any such violation, breach,
conflict, default or acceleration. The execution and delivery of this
Agreement by Purchaser and the performance of its obligations hereunder will
not violate any law, judgment, decree, order, rule or regulation of any
governmental authority or court, whether federal, state or local, at law or
in equity, applicable to Purchaser, and will not result in the creation or
imposition of any material lien, possibility of lien, encumbrance, equity,
restriction or claim in favor of any third person upon any of the properties,
assets or common stock of Purchaser.
1.4 CONSENT AND APPROVALS. There is no requirement for any consent,
approval or
authorization of, or filing with any court, governmental authority or
regulatory agency of validity of the execution and delivery of this Agreement
and the performance by Purchaser hereof which has not been fulfilled.
ARTICLE 5
BOARD OF DIRECTORS
5.1 COMPOSITION OF THE BOARD OF DIRECTORS. Jamberry and the Purchaser
acknowledge that the current Board of Directors (the "Board") of the
Corporation consists of the following three (3) members: Xxxx X. Xxxxxx, Xxxx
Xxxxxx and Xxxxxxx Xxxxxx, (collectively the "Dukoffs"). Jamberry shall, upon
,
execution of this Agreement, take such actions as shall be necessary to elect
Xxxxx Xxxxxxx, Xx., or his designee, to the Board of Directors of the
Corporation. Purchaser agrees that from and after the Closing the Board shall
consist of no more than seven (7) members. Purchaser further agrees that for
a period of three (3) years, and for so long thereafter as Xxxx X. Xxxxxx
and/or Xxxx Xxxxxx are employed by the Purchaser, Purchaser shall use all
reasonable efforts to cause the Dukoffs, to be elected to the Board at every
annual meeting or special meeting of the Corporations shareholders held for
the election of directors. During the three (3) year period referenced above
and any subsequent period during which Xxxx Xxxxxx or Xxxx Xxxxxx are
employed by the Purchaser, neither the Corporation nor the Purchaser shall
take any action to remove the Dukoffs, or any one of them, from the Board.
ARTICLE 6
CLOSING
6.1 CLOSING DEFINED. The "Closing" means the time at which the sale of
the Shares to Purchaser is consummated by the delivery to the Purchaser of
certificates representing all of the issued and outstanding shares of the
Corporation. Provide all of the conditions set forth
in this Agreement have been satisfied (or waived by the appropriate party),
the closing shall take place at the law offices of Xxxxxx & Xxxxxx, 0000
Xxxxxxxxxx Xxxxxx, Xxxx Xxxxxxxx, Xxx Xxxxxx 00000, or at any other place or
on any other date mutually agreed upon in writing by the parties hereto,
within three (3) business days from the date of the IPO.
6.2 ACTIONS BY SHAREHOLDERS AT CLOSING. At the Closing, in addition to
any other document specifically required to be delivered pursuant to this
Agreement, Jamberry shall deliver or cause to be delivered to Purchaser, in
form and substance satisfactory to Purchaser and its counsel:
(a) Certificates representing all of the Shares, duly endorsed (or
accompanied by appropriate stock powers duly endorsed) in blank for transfer
with the signatures duly guaranteed, together with such supporting documents
as may in the opinion of Purchaser's counsel be necessary to permit Purchaser
to acquire the Shares free of any adverse claim or encumbrance;
(b) The stock books, stock ledgers, minute books and corporate seal of
the Corporation;
(c) A certificate executed by Jamberry, dated the date of the Closing,
to the effect that, as of such date (i) each of the representations and
warranties of Jamberry set forth in Article 3 is true and correct, (ii)
Jamberry has performed and complied with all agreements, undertakings and
obligations which are required to be performed or complied with by it at or
prior to the Closing, and (iii) there has been no material adverse change, or
discovery of a condition or the occurrence of any event which might reasonably
be expected to result in a change in the financial condition, assets,
liabilities or business of the Corporation;
6.3 ACTIONS BY PURCHASER AT CLOSING. Purchaser shall deliver to
Jamberry and their counsel, a certificate, signed by an officer of Purchaser
and dated the date of the Closing, to the effect that (i) each of the
representations and warranties of Purchaser set forth in Article 4 hereof
is true and correct and (ii) Purchaser has performed and complied with all
agreements, undertakings and obligations which are required to be performed
or complied with by it at prior to the Closing.
ARTICLE 7
CONDITIONS PRECEDENT TO PURCHASER'S PERFORMANCE
The obligation upon Purchaser to effect the purchase of the Shares shall
be subject to the fulfillment of each of the following conditions:
7.1 ACCURACY OF JAMBERRY'S REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties of Jamberry set forth in Article 3 shall be
true and correct both on the date hereof and on the date of the Closing as if
made at that time, except insofar as changes shall have occurred after the
date hereof which are permitted by this Agreement.
7.2 PERFORMANCE OF JAMBERRY' OBLIGATIONS. Jamberry shall have performed
and complied with all agreements, undertakings and obligations which are
required to be performed or complied with by it at or prior to the Closing.
7.3 NO ADVERSE CHANGE IN THE CORPORATION. Since the date hereof, there
shall have been no material adverse change, or discovery of a condition or
the occurrence of any event which might reasonably be expected to result in
such material adverse change, in the financial condition, assets, liabilities
or business of the Corporation, other than as permitted by this Agreement.
7.4 DELIVERY OF SHAREHOLDER'S CERTIFICATE. At the Closing, Jamberry
shall have delivered to Purchaser a certificate, dated the date of the
Closing, to the effect that to the best of its knowledge and belief, after
due inquiry, the conditions specified in Sections 7.1, 7.2 and 7.3 hereof
have been fulfilled.
1.5 SATISFACTION WITH LEGAL MATTERS. All legal matters in connection
with this Agreement and the transactions contemplated hereby, and the form
and substance of all legal proceedings and of all papers, instruments and
documents used or delivered hereunder or incidental hereto shall be
reasonably satisfactory to Purchaser, and at its request, to Xxxxx, Rowin,
Novack, Burnbaum & Crystal, counsel to Purchaser.
1.5 ABSENCE OF LITIGATION. No litigation shall have been commenced or
threatened with regard to the transactions provided for in this Agreement.
1.6 ABSENCE OF IMPAIRMENT OF CONTRACTS OR LICENSES OF ANY OF THE
CORPORATION. There shall be no agreement, contract, license, lease,
franchise, permit or other instrument of the Corporation as to which the
interest of the Corporation will be impaired by the purchase of the Shares of
the Corporation which will materially and adversely affect the value of the
Shares.
1.5 RECEIPT OF CONSENTS. There shall have been received by Shareholder
all consents and/or amendments or modifications referred to in Section 9.3
hereof, and any approvals of, or any indication of no action by, any United
States, state or local government authority reasonably deemed necessary by
Purchaser to the consummation of the transactions
provided for in this Agreement.
ARTICLE 8
CONDITIONS PRECEDENT TO JAMBERRY'S OBLIGATIONS
The obligation upon Jamberry to effect the sale of the Shares shall be
subject to the fulfillment of each of the following conditions:
8.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES OF PURCHASER. Each of the
representations and warranties of Purchaser set forth in Article 4 hereof
shall be true and correct both on the date hereof and on the date of
Closing as if made at that time, except insofar as changes shall have occurred
after the date hereof which are permitted by this Agreement.
8.2 PERFORMANCE OF OBLIGATIONS OF PURCHASER. Purchaser shall have
performed and complied with all agreements, undertakings and obligations
which are required to be performed or complied with by it at or prior to the
Closing.
8.3 DELIVERY OF CERTIFICATE OF PURCHASER. At the Closing, Purchaser
shall have delivered to Jamberry a certificate, signed by an officer of
Purchaser and dated the date of the Closing, to the effect that to the best
of the knowledge and belief of such officer, after due inquiry, the conditions
specified in Sections 8.1 and 8.2 hereof have been fulfilled.
8.4 SATISFACTION WITH LEGAL MATTERS. All legal matters in connection with
this Agreement and the transactions contemplated hereby, and the form and
substance of all legal proceedings and of all papers, instruments and
documents used or delivered hereunder or incidental hereto, shall be
reasonably satisfactory to Jamberry, and at its request, to Xxxxxx & Xxxxxx,
counsel for the Shareholders.
8.5 PAYMENT OF PURCHASE PRICE. Purchaser shall have delivered to
Shareholder
the Purchase Price, as provided in Sections 1.2 and 1.3 hereof, and all of
the Capital Contribution Payments required herein.
ARTICLE 9
CERTAIN AGREEMENTS AND ASSURANCES OF JAMBERRY PRIOR TO CLOSING
9.1 ACCESS TO PROPERTIES AND RECORDS OF THE CORPORATION. Jamberry shall
afford, or shall cause the Corporation to afford, to the officers, attorneys,
accountants or other authorized representatives of Purchaser reasonably free
and full access during normal business hours to all of the assets,
properties, books and records of the Corporation in order to afford Purchaser
full opportunity of such review,examination and investigation as Purchaser
shall desire to make of the affairs of the Corporation, and Purchaser shall
be permitted to make extracts from such books, records (including the stock
record and minute books) or other documentation; and Jamberry and the
Corporation shall furnish or cause to be furnished to Purchaser such
reasonable financial and operating data and other information as to the
business, properties and assets of the Corporation as Purchaser or any of
its directors, officers, attorneys, accountants or other authorized
representatives may reasonably request. In the event the transactions
contemplated herein are not consummated for whatever reason, then in that
event, Purchaser agrees to promptly return all information and documents.
9.2 ACTION CONSISTENT WITH AGREEMENT. Jamberry shall not voluntarily
undertake any course of action inconsistent with the satisfaction of the
requirements of the conditions applicable to it set forth in this Agreement,
and Jamberry shall promptly do all such acts and take all such measures as
may be appropriate to enable it to perform as early as possible the
obligations herein provided to be performed by it.
9.3 CONSENTS. Jamberry shall use its best efforts to obtain, to the
extent necessary, from any other party or parties to all agreements to which
the Corporation is a party, appropriate consents in writing to the
transactions contemplated by this Agreement and/or such amendments,
assignments or modifications of such documents as may be required in order
that the transactions contemplated hereby shall not result in any default
thereunder.
9.4 ACTIONS INCONSISTENT WITH REPRESENTATIONS AND WARRANTIES. From the
date of this Agreement to the Closing, except as otherwise expressly
permitted by this Agreement or as Purchaser may otherwise consent to in
writing from time to time, Jamberry shall not, and Jamberry shall cause the
Corporation not to, engage in any activity or enter into any transactions or
permit to occur any event which would be in violation of any of the
representations and warranties set forth in Article 3 of this Agreement as if
such representations and warranties were made at a time subsequent to such
activity, transaction or event and all references to the date of this
Agreement were deemed to be to such later time.
ARTICLE 10
SURVIVAL OF REPRESENTATIONS AND WARRANTIES,
INDEMNIFICATION AND SET-OFF.
1.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in or pursuant to this Agreement will survive the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby and shall terminate on the first (1st) anniversary of the
Closing.
10.2 INDEMNIFICATION.
(a) Jamberry shall indemnify and hold Purchaser harmless from any
damage, loss, claim, liability, deficiency or expense, inclusive of
reasonable attorneys' and accountants' fees.
arising out of or relating to the breach of any representation or warranty of
Jamberry or the nonfulfillment of any agreement of Jamberry contained
herein or in the certificate to be delivered at Closing (all of the foregoing
called "Purchaser's Indemnification Damages") of which Purchaser has notified
Jamberry within one (1) year following the Closing. Jamberry shall not have
any liability under this Section, unless the aggregate of all of Purchaser's
Indemnification Damages exceeds on a cumulative basis $50,000.00 and then
only to the extent of any such excess. It is further agreed that Jamberry's
indemnification obligations pursuant to this Section shall be limited to the
amount of the Purchase Price as determined pursuant to Section 1.3.
(a) Purchaser shall indemnify and hold Jamberry harmless from any
damage, loss, claim, liability, deficiency or expense, inclusive of
reasonable attorneys' and accountants' fees, arising out of or relating to
the breach of any representation or warranty of Purchaser or the
nonfulfillment of any agreement of Purchaser contained herein or in the
certificate to be delivered at Closing of which Jamberry has notified
Purchaser within one (1) year following the Closing.
10.3 COOPERATION IN THE DEFENSE OF CLAIMS. In the event that a claim is
asserted against Purchaser, any of its direct or indirect subsidiaries or the
Corporation with respect to transactions, matters, events, or conditions
occurring or existing prior to the Date of the Closing, Jamberry agrees to
fully cooperate with Purchaser in the defense of any such claim.
ARTICLE 11
MISCELLANEOUS
11.1 ASSIGNMENT OF AGREEMENT. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective legal
representatives, heirs, legatees, successors and assigns. No party hereto may
make any assignment of this Agreement or of any of his rights or interest
herein without the prior written consent of the other.
11.2 ENTIRE AGREEMENT. Except as herein expressly set forth or in an
instrument in writing signed by the party to be bound thereby which makes
reference to this Agreement, this Agreement embodies the entire agreement in
relation to the subject matter hereof, and no representations, warranties,
covenants, understandings or agreements, whether written, oral or otherwise,
in relation thereto exist between the parties hereto.
11.3 SEVERABILITY OF AGREEMENT. Each Section, subsection and lesser
section of this Agreement constitutes a separate and distinct undertaking,
covenant and/or provision hereof. In the event that any provision of this
Agreement shall finally be determined to be unlawful, such provision shall be
deemed severed from this Agreement, but every other provision of this
Agreement shall remain in full force and effect.
11.4 NOTICE. Any notice or other communication required or permitted to
be given hereunder shall be deemed to have been given when received, and shall
be addressed as follows:
(a) If to Purchaser;
Xxxxxxxxxx.xxx, Inc.
000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, Xx., Chairman
with a copy to:
Xxxxx, Rowin, Novack, Burnbaum & Crystal
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
(b) If to Jamberry:
Jamberry Lake, L.L.C.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
with a copy to:
Xxxxxx & Xxxxxx
0000 Xxxxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxx Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X.X. Xxxxxxxx, Esq.
or at such other address or addresses as the party addressed may from time to
time designate in writing.
11.5 LIMITATION OF RIGHTS AND REMEDIES UNDER THE AGREEMENT. Nothing
expressed or implied in this Agreement is intended, or shall be construed, to
confer upon or give any person, firm or corporation, other than Purchaser and
the Shareholder, any rights or remedies under or by reason of this Agreement.
11.6 HEADINGS. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
11.7 DUPLICATE ORIGINALS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
shall constitute the same agreement.
11.8 GOVERNING LAW. This Agreement shall be deemed to be a contract made
under, and shall be construed in accordance with, and governed by the laws of
the State of Tennessee.
11.9 GENDER AND PLURAL. If required by the context of this Agreement,
singular language shall be construed as plural, plural language shall be
construed as singular, and the gender of personal pronouns shall be construed
as either masculine, feminine, or neuter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ATTEST Xxxxxxxxxx.Xxx, Inc.
By:
------------------------------- -------------------------------
Xxxxx Xxxxxxx, Xx.,
Chairman
WITNESS Jamberry Lake, LLC
By:
------------------------------- -------------------------------
Xxxx X. Xxxxxx,
Managing Member
ATTEST Jamberry Lake Digital Media, Inc.
By:
------------------------------- -------------------------------
Xxxx X. Xxxxxx,
President
