AGREEMENT OF PURCHASE AND SALE OF ASSETS
This AGREEMENT OF PURCHASE AND SALE OF ASSETS is entered
into as of the 14th day of August, 1998, by and between Dirt
Free Carpet & Upholstery Cleaning, Inc., a Texas corporation
having its principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Dirt Free"), ▇▇▇▇▇
▇▇▇▇▇▇, the owner of Dirt Free and the owner of certain assets
used by Dirt Free in the carpet cleaning business, having an
office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ ("Thoede") (Dirt Free and Thoede are sometimes
collectively referred to as "Sellers"), and Venturi
Technologies, Inc., a Nevada corporation, having its principal
office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
("Purchaser").
WHEREAS, Sellers own and operate a carpet and upholstery
cleaning business located in the Houston, Texas area;
WHEREAS, Purchaser desires to purchase from Sellers, and
Sellers desire to sell to Purchaser substantially all of the
Sellers' Assets used in, and connected with, the Sellers'
carpet cleaning business in exchange for Purchaser's common
stock upon the terms described in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements
set forth herein, the parties agree as follows:
1. Purchase and Sale of Business. Sellers shall sell to
Purchaser, and, subject to the License Agreement between the
parties, Purchaser shall purchase from Sellers substantially
all of Sellers' interest in all the business assets, goodwill
and rights owned by Sellers and used in the operation of
Sellers' business ("Sellers' Assets"), including (i) the right
to use Sellers' business name, (ii) the assets listed in the
Bills of Sale and Assignments attached as Exhibits "A-1" and
"A-2," and (iii) the assets listed on the Balance Sheet
described in Section 5.3, except for assets disposed of in the
ordinary course of Sellers' business between the Balance Sheet
Date and the Closing Date. Sellers shall transfer Sellers'
Assets free and clear of all liabilities and liens except as
provided by this Agreement.
2. Payment for Non-Competition and Confidentiality
Undertaking and For Sellers' Assets.
2.1 Cash Payment for Confidentiality and Non-Competition/Confidentiality
Undertaking. Upon the termination of the ninety (90) day recission period
specified in Section 2.5 herein, Thoede shall execute and deliver to Purchaser
a Non-competition, Confidentiality and Continuity of Business
Dealings Undertaking substantially in the form attached hereto
as Exhibit "B," and the Purchaser shall, upon delivery of the
executed Undertaking, and as consideration for such
Undertaking, pay to Thoede $150,000.00 in cash.
2.2 Stock for Sellers' Assets. As full payment for
Sellers' Assets, Purchaser shall, at the Closing, cause to be
issued to Sellers, in such proportions as directed by Sellers,
a total of 52,632 shares of Purchaser's $.001 par value common
stock (the "Shares").
2.3 Restricted Stock. The Shares issued to Sellers
under this Agreement have not been registered with the
Securities and Exchange Commission, nor have the Shares been
qualified under the securities laws of any state. The Sellers
acknowledges that the Shares are subject to the following
restriction which will be printed in the following form on the
certificates representing the Shares:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT") OR QUALIFIED UNDER THE
SECURITIES LAWS OF ANY STATE (THE "LAW"). SUCH
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
NEITHER SAID SHARES NOR ANY INTEREST THEREIN MAY BE
SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES
UNDER THE ACT AND QUALIFICATION UNDER THE LAW OR AN
OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION
THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT
REQUIRED AS TO SAID SALE OR OFFER.
Sellers represent the following to Purchaser in order to
establish exemptions from registration under Federal and state
securities laws. Seller are acquiring the Shares for their
own account, for investment, and not for resale in connection
with any distribution thereof. Sellers have such knowledge
and experience in business and financial matters that they are
capable of evaluating the risks of obtaining the Shares.
Sellers understand the speculative nature of the Shares.
Sellers have adequate net worth and means to provide for their
current needs and to sustain a complete loss of their
investment. Sellers have no need of liquidity of their
investment. Sellers understand that at present no public
market exists, and that a public market may never exist, for
the Shares and that the Purchaser is under no obligation to
provide a market for the Shares.
2.4 Restriction on Resale. Except as provided below,
Sellers shall not, without the prior written consent of the
Purchaser, offer for sale, sell, pledge, hypothecate or
otherwise dispose of, directly or indirectly, any of the
Shares, in any manner whatsoever, whether pursuant to SEC Rule
144 or otherwise, prior to the date that is two (2) years
after the Closing Date; provided however, that a certain
number of Shares shall be released from this restriction on
the following schedule:
5% of the total initial amount of the Shares
shall be released each month during the
thirteenth (13th) through sixteenth (16th) month
after the Closing Date;
8% of the total initial amount of the Shares
shall be released each month during the
seventeenth (17th) through twenty-first (21st)
month after the Closing Date; and
10% of the total initial amount of the Shares
shall be released each month during the twenty-second (22nd)
through twenty-fourth (24th) month after the Closing Date.
The certificates representing the Shares shall contain, for so
long as this restriction remains in effect, a legend in
substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER,
INCLUDING AN AGREEMENT BETWEEN THE COMPANY AND THE
ORIGINAL HOLDER OF THE SHARES REPRESENTED BY THIS
CERTIFICATE THAT THE SHARES MAY NOT BE OFFERED OR
SOLD FOR A CERTAIN PERIOD OF TIME AFTER THE DATE OF
ISSUANCE.
2.5 Right of Rescission. Either party may rescind this
Agreement by personally delivering a written notice of
rescission to the other party. The rescission cannot occur
earlier than sixty (60) days after the Closing Date, and it
cannot occur later than ninety (90) days after the Closing
Date. If there is a rescission, each party shall return as
close as reasonably possible the other party to its position
prior to the Closing. Specifically, Sellers shall return the
stock certificates and shall assume the liabilities assumed by
Purchaser on behalf of Seller, and Purchaser shall return
Sellers' Assets (or their net value).
2.6 Consent to Dilution. Sellers understand that
Purchaser plans to acquire other businesses and assets by
issuing stock, and that Purchaser may issue shares of its
stock for other reasons in the future. Sellers understand and
consent that future issuance of stock will dilute Sellers'
proportionate ownership of Purchaser.
2.7 Liabilities Undertaking. At the Closing Purchaser
shall sign a Liabilities Undertaking in the form of the
attached Exhibit "___," pursuant to which Purchaser shall
assume to pay or discharge the obligations set forth therein.
2.8 Life Insurance. Within thirty (30) days after the
Closing Date Purchaser shall obtain a policy of life insurance
on Thoede's life, naming Thoede's wife as beneficiary, in the
face amount of $1,500,000. Purchaser shall pay all premiums
on such insurance, and shall maintain such insurance in effect
until such time as the common stock in Purchaser owned by
Thoede has an aggregate market value of at least $1,000,000,
at which time Purchaser shall no longer be required to make
premium payments on such insurance, and such insurance shall
either be allowed to be canceled or Thoede may take over the
payment of all premiums. Thoede shall submit to any physical
examinations and complete any applications that are required
in order to obtain such insurance.
3. Closing. The Closing shall take place at the close
of business on the ___ day of ________, 1998, at Purchaser's
office or at such other time and place as the parties agree,
but in no event at a date later than August 20, 1998.
4. Sellers' Obligations at Closing; Further Assurances.
4.1 At the Closing, Sellers shall deliver to Purchaser:
4.1.1 a cashier's or certified check payable
to Purchaser in the amount of Sellers' cash on hand
and in banks, less the amount necessary for all
uncleared checks to clear which are in payment of
liabilities assumed by Purchaser hereunder (and
Sellers agrees to keep enough money in the bank for
such checks to clear) or, at Purchaser's option, an
assignment of all of Sellers' bank accounts;
4.1.2 a ▇▇▇▇ of Sale and Assignment signed by
Dirt Free in the form attached as Exhibit "A-1" and
a ▇▇▇▇ of Sale and Assignment signed by Thoede in
the form attached as Exhibit "A-2;"
4.1.3 any other instruments of assignment and
transfer necessary to vest in Purchaser good and
marketable title to Sellers' Assets;
4.1.4 all contracts and records relating to
Sellers' Assets; and
4.1.5 all documents required by this
Agreement.
4.2 At any time after the Closing, Purchaser may request
and Sellers must sign and/or deliver any documents necessary
to transfer and assign to Purchaser, and confirm Purchaser's
title to Sellers' Assets, and to assist Purchaser in the
exercise of all rights thereto. After the Closing, Sellers
shall have access to the books and records pertaining to its
operations.
4.3 Purchaser shall have the right to collect all
receivables transferred to Purchaser under this Agreement and
to endorse Sellers' name on checks received for such
receivables. Sellers shall transfer to Purchaser any cash or
other property Sellers receives for such receivables.
4.4 Sellers shall pay any income taxes payable as a
result of this transaction, and shall indemnify Purchaser from
any income tax liability that may result from this
transaction.
4.5 The parties agree to allocate the purchase price
among the Sellers' Assets as set forth in Schedule 4.5.
5. Representations and Warranties by Sellers. Sellers
represent and warrant to Purchaser as follows:
5.1 Organization, Standing and Qualification. Dirt Free
is a corporation duly organized, validly existing and in good
standing under the laws of the State of Texas. Thoede is an
individual who owns all of the outstanding capital stock of
Dirt Free, and who owns some of the assets used by Dirt Free
in Dirt Free's carpet cleaning business. Sellers have all
requisite corporate or other power and authority and are
entitled to carry on their respective businesses as now being
conducted and to own, lease or operate their properties as and
in the places where such businesses are now conducted.
Sellers are properly licensed to conduct their respective
businesses.
5.2 Execution and Performance of Agreement; Authority.
The performance of this Agreement by Sellers will not result
in a default or breach of any other agreement to which Sellers
are a party. Sellers have the authority to enter into this
Agreement.
5.3 Financial Statements. The copies of the following
financial statements given to Purchaser and prepared by
Sellers (called the "Financial Statements") are complete and
correct, have been prepared from the records of Sellers in
accordance with generally accepted accounting principles and
fairly present the financial condition of Sellers as of their
dates and the results of its operations for the periods
covered thereby:
5.3.1 an unaudited balance sheet of Sellers
(the "Balance Sheet") as of ________, 199__, (the
"Balance Sheet Date") and Sellers' unaudited income
or cash flow statement for the period ended
__________, 199__.
Such statements of earnings do not contain any items of
special income or any other income not earned in the ordinary
course of business except as specified therein, and such
interim financial statements include all adjustments, which
consist only of normal recurring accruals, necessary for such
fair presentation.
5.4 Absence of Undisclosed Liabilities. Except as
reflected on Schedule 5.4 or on the Balance Sheet, as of the
Balance Sheet Date Sellers had no debts or obligations of any
nature whatsoever, including any tax liabilities incurred in
respect of Sellers' income, or its period prior to the close
of business on the Balance Sheet Date or any other debts or
obligations relating to any act, omission or other condition
which occurred or existed on or before the Balance Sheet Date.
5.5 Taxes. Except as may be set forth on Schedule 5.5,
all taxes and assessments imposed by any taxing authority,
whether federal, state, local, foreign or otherwise which are
due or payable by Sellers, and all interest and penalties
thereon, have been paid in full. Except as may be set forth
on Schedule 5.5, all tax returns required to be filed have
been accurately prepared and filed and all deposits required
to be made by Sellers with respect to employees' withholding
taxes have been made.
5.6 Absence of Changes or Events. Except as may be set
forth in Schedule 5.6, since the Balance Sheet Date, there has
not been any material adverse change in the business,
operations, properties, prospects, assets, or condition of the
Company, and no event has occurred or circumstance exists that
may result in such a material adverse change.
5.7 Litigation. Except as set forth in Schedule 5.7
there is no claim, order, investigation or other proceeding,
against Sellers, their employees, their properties, or
business or the transactions contemplated by this Agreement,
and Sellers knows of no basis for the same.
5.8 Compliance With Laws and Other Instruments. Except
as set forth in Schedule 5.8, Sellers has complied with all
laws applicable to their business. The ownership and use of
Sellers' Assets as well as the conduct of their business will
not conflict with the rights of any other person or entity,
and will not cause a default under any agreement to which
Sellers are a party. Sellers are not aware of any proposed
laws, condemnations or other proceedings which would affect
their business or Sellers' Assets.
5.9 Title to Properties. Sellers have good title to
Sellers' Assets. None of Sellers' Assets are subject to any
lien, lease, license, or adverse claim except (i) as expressly
set forth in the Balance Sheet as securing specific
liabilities or as otherwise expressly permitted by the terms
of this Agreement, or (ii) insubstantial imperfections of
title which have arisen in the ordinary course of business.
Sellers' Assets are in good operating condition and repair,
are suitable for the purposes used, and are adequate for all
current operations of Seller.
5.10 Environmental Compliance. Except as may be set
forth in Schedule 5.10: (a) Sellers' business is being
operated in compliance with all environmental laws and with
all terms of required permits and licenses, (b) Sellers are
not aware of any circumstances that may interfere with their
compliance with environmental laws or which may give rise to
any liability, or which would otherwise form the basis of any
claim or investigation, and that is based on Sellers'
manufacture, storage, disposal, transport, or handling, or the
release into the environment, of any hazardous substance, (c)
there is no claim, investigation, or proceeding pending or
threatened against Seller, in connection with the Sellers'
Assets or their business relating to environmental laws, and
(d) Sellers currently maintains all material government
permits, licenses and agreements required to operate Sellers'
Assets and business, and has complied with all requirements
relating thereto.
5.11 Schedules. Schedule 5.11 contains a complete list
and description of:
5.11.1 All real property in which Sellers has
any ownership or other interest and which is used in
connection with the operation of their business.
5.11.2 As of a date no earlier than May 31,
1998, all of Sellers' receivables with detailed
information on each receivable which has been
outstanding more than 30 days.
5.11.3 All equipment, motor vehicles, and
other personal property (other than inventory and
supplies), owned or leased by Sellers setting forth
a summary description of all leases, claims, and
conditions relating thereto.
5.11.4 All patents, trademarks, service marks,
service names, trade names, and copyrights together
with any registrations, applications and licenses
related thereto, owned by Sellers or used in the
operation of Sellers' business.
5.11.5 All insurance policies insuring Sellers
or their assets, specifying the name of the insurer,
the risk insured against, the limits of coverage,
the deductible amount, the premium rate and the date
through which coverage will continue by virtue of
premiums already paid.
5.11.6 All contracts or agreements relating to
the Assets to which Sellers are a party.
5.11.7 All loan agreements, conditional sale
agreements, security agreements, guaranties, and
leases to which Sellers are a party.
5.11.8 All employment and consulting
agreements, compensation plans, pension plans or
retirement plans, group life, health and accident
insurance and other employee benefit plans,
including holiday, vacation, Christmas and other
bonus practices, to which Sellers are a party.
5.11.9 The name of all banks where Sellers
have accounts or safe deposit boxes and the names of
all persons authorized to sign on the accounts or
have access to the boxes; and the names of all
persons holding tax or other powers of attorney from
Sellers and a summary of the terms thereof.
All of the agreements, leases and licenses required to be
listed on Schedule 5.11 (other than those which have been
fully performed) are valid and binding, and except as
otherwise specified in Schedule 5.11, assignable to Purchaser
without the consent of any other party so that, after
assignment to Purchaser, Purchaser will be entitled to the
full benefits thereof. Except as disclosed in Schedule 5.11,
no payment required to be made under any such agreement, lease
or license has been prepaid more than 30 days prior to its due
date, and there is not any default, or event which would
constitute a default, and none of such agreements, leases or
licenses is unduly burdensome or adverse to Sellers' Assets or
business or likely to result in any material loss or
liability. None of Sellers' existing or completed contracts
is subject to renegotiation with any government body.
5.12 No Guaranties. Except as may be set forth on
Schedule 5.12, no obligation of Sellers are guaranteed by any
other person or entity, nor has Sellers guaranteed any
obligation of any other person or entity.
5.13 Receivables. All Sellers' receivables have arisen
only from transactions in the ordinary course of business and
shall be fully collected within 90 days after each receivable
arose, without offset or resort to litigation, except for an
allowance for doubtful accounts computed as a percentage of
sales consistent with prior practices as reflected on the most
recent annual Financial Statement.
5.14 Records. The accounting books of Sellers are
complete and correct, and no transactions which are required
to be recorded therein have been omitted.
5.15 Absence of Certain Business Practices. Neither
Sellers nor any employee or agent of Sellers has within the
past five years agreed to give any gift to any customer,
supplier, government employee or other person who may be in a
position to help or hinder the business of Sellers which (i)
might subject Sellers to liability in any proceeding, (ii) if
not given in the past, might have had an adverse effect on the
Sellers' Assets or business as reflected in the Financial
Statements, or (iii) if not continued in the future, might
adversely affect Sellers' Assets or business, or which might
subject Sellers to liability in any proceeding.
5.16 Disclosure. All of Sellers' representations made in
this Agreement and its related documents are true and contain
no untrue statements and do not omit important facts. Sellers
have disclosed, to the best of their knowledge, to Purchaser
in writing all the adverse facts concerning the Sellers'
Assets and their business.
5.17 No Conflict. Except as may be set forth on Schedule
5.17, or contained in any agreement attached hereto,
performance of this Agreement by Sellers will not conflict
with any regulations or agreements to which Sellers are a
party. No authorization or filing, which has not already been
completed, is necessary for Sellers to perform this Agreement.
6. Representations and Warranties by Purchaser.
Purchaser represents and warrants to Sellers as follows:
6.1 Organization. Purchaser is a corporation organized
and in good standing under the laws of the State of Nevada and
has full authority to enter into this Agreement and to carry
on their business and to own and operate their properties.
6.2 Authorization and Approval of Agreement. All
actions required to be taken by Purchaser relating to the
singing of this Agreement shall have been taken at or prior to
the Closing.
6.3 Execution and Performance of Agreement. The
performance of this Agreement by Purchaser will not result in
a default of any Agreement to which Purchaser is a party.
Purchaser has the authority to enter into this Agreement.
6.4 Litigation. There is no claim, order, investigation
or other proceeding, against Purchaser relating to the
transactions contemplated by this Agreement and Purchaser does
not know or have any reason to be aware of any basis for the
same.
7. Conduct of Business Prior to Closing.
7.1 Prior to the Closing, Sellers shall conduct their
business only in a manner consistent with their prior practice
and shall preserve their assets and properties in good
condition and maintain insurance thereon in accordance with
present practices, and Sellers will use their best efforts (i)
to preserve the business and organization of Sellers intact,
(ii) to keep available the services of Sellers' present
employees, agents and independent contractors, (iii) to
preserve the goodwill of Sellers' suppliers, customers,
landlords and others having business relations with it, and
(iv) to cooperate with Purchaser and assist in obtaining the
consent of any party to any lease or contract with Sellers
where the consent of such party may be required by reason of
this Agreement.
7.2 If there is a change in any information contained in
this Agreement or its related documents prior to closing,
Sellers shall give Purchaser prompt written notice.
7.3 Sellers shall consult with and follow the
recommendations of Purchaser with respect to (i) canceling
agreements to which Sellers are a party, including purchase
orders and commitments for capital expenditures or
improvements, (ii) discontinuing particular items or
operations and (iii) purchasing, pricing or selling policy
(including selling merchandise at discounts); provided,
however, that nothing contained in this Section shall require
Sellers to take action that is likely to result in a penalty
or claim for damages against Seller, or in losses to Seller,
or to interfere with the conduct of Sellers' business
consistent with prior practice, or to result in a breach by
Sellers of any of their representations contained in this
Agreement (unless the breach is waived by Purchaser).
8. Access to Information and Documents. Upon
Purchaser's request, Sellers shall give Purchaser access to
Sellers' personnel and all their properties, documents and
records relating to the carpet cleaning business conducted by
Dirt Free and shall furnish copies of documents requested by
Purchaser. Purchaser shall not improperly disclose the same
prior to the Closing.
9. Employment Matters.
9.1 Purchaser intends to provide employment to as many
of Sellers' current employees as possible. Schedule 9.1 is a
list of all Sellers' employees as of the date of this
Agreement, including the compensation for each employee.
Prior to the Closing Date, Purchaser shall provide Sellers a
list of employees whom Purchaser does not intend to employ
after the Closing Date. All remaining employees shall become
the employees of Purchaser on the Closing Date.
9.2 Within a reasonable period following the Closing
Date Purchaser shall provide training and support to Sellers'
employees to enable them to use and sell Purchaser's products
and services.
10. Bulk Sales Compliance. Purchaser waives Sellers'
compliance with the Bulk Sales Law of any state. Sellers
agrees to pay all claims of creditors which could be asserted
against Purchaser because of such noncompliance unless such
claims are assumed by Purchaser under this Agreement. Sellers
indemnify Purchaser against any liability or expense,
including attorneys' fees, incurred by Purchaser by reason of
the failure of Sellers to pay such claims.
11. Conditions to Purchaser's Obligations. All
obligations of Purchaser under this Agreement are subject to,
at Purchaser's option, each of the following conditions at or
prior to the Closing, and Sellers shall use their best efforts
to cause each condition to be fulfilled:
11.1 All representations of Sellers in this Agreement or
the related documents shall be correct when made and shall be
deemed to have been made again as of the Closing Date, and
shall then be correct except for changes allowed under the
terms of this Agreement.
11.2 All duties required by this Agreement to be
performed by Sellers at or before the Closing shall be
performed.
11.3 Since the date of this Agreement there shall be no
material adverse change in the condition of Sellers' Assets or
their business.
11.4 All documents required to be delivered to Purchaser
at or prior to the Closing shall be delivered.
11.5 Sellers shall use its best efforts to obtain written
consents to the transfer or assignment to Purchaser of all
agreements of Sellers where the consent of any other party may
be required.
12. Conditions Precedent to Sellers' Obligations. All
obligations of Sellers at the Closing are subject to, at
Sellers' option, each of the following conditions at or prior
to the Closing, and Purchaser shall use their best efforts to
cause each condition to be fulfilled:
12.1 All representations of Purchaser contained in this
Agreement or the related documents shall be correct when made
and as of the Closing.
12.2 All duties required by this Agreement to be
performed by Purchaser at or before the Closing shall be
performed.
13. Indemnification.
13.1 Sellers indemnifies and agrees to hold Purchaser
harmless from:
13.1.1 any loss suffered by Purchaser because
a representation was not true, a warranty was
breached or a duty was not performed by Sellers
contained in this Agreement or a related document;
13.1.2 any loss suffered by Purchaser in
connection with any of Sellers' liabilities which
are not assumed by Purchaser under the Liabilities
Undertaking;
13.1.3 any liabilities or debts of Seller,
which exist as of the Balance Sheet Date or which
arise after that date but which are based upon any
transaction, state of facts or other condition which
occurred on or before the Balance Sheet Date, except
to the extent reflected on the Balance Sheet;
13.1.4 any liabilities or debts of Seller,
which exist as of the Closing Date or which arise
after that date but which are based upon any
transaction, state of facts or other condition which
occurred on or before the Closing Date, except to
the extent (i) reflected on the Balance Sheet or
incurred after the Balance Sheet Date in connection
with a purchase in the ordinary course of Sellers'
business and in conformity with the representations
contained in this Agreement, and (ii) assumed by
Purchaser under the terms of the Liabilities
Undertaking; and
13.1.5 any claims, judgments and expenses,
including legal fees, incurred for any of the
foregoing or for attempting to avoid or oppose the
same or for enforcing this indemnity.
13.2 Purchaser hereby agrees to indemnify and hold
Sellers harmless from:
13.2.1 any loss suffered by Sellers because a
representation was not true, a warranty was breached
or a duty was not performed by Purchaser contained
in this Agreement or a related document;
13.2.2 any liabilities or debts of Sellers
assumed by Purchaser under this Agreement or the
Liabilities Undertaking; and
13.2.3 any claims, judgments and expenses,
including legal fees, incurred for any of the
foregoing or for attempting to avoid or oppose the
same or for enforcing this indemnity.
14. Nature and Survival of Representations and
Warranties. All representations and warranties contained in
this Agreement shall remain effective after the Closing.
15. Notices. Any notices described under this Agreement
shall be in writing and shall be deemed given when personally
delivered or mailed by first class registered mail, return
receipt requested, addressed to the parties at the addresses
set forth above.
16. Arbitration.
16.1 Any action, dispute, controversy or claim
between or among the Parties, whether sounding in contract,
tort, or otherwise ("Dispute") shall, at the request of any
Party, be finally resolved by arbitration as set forth below,
and shall include any Dispute arising out of or relating to
this Agreement or any agreements or instruments relating to
this Agreement or delivered in connection with this Agreement.
Any such Dispute shall be determined by arbitration in
accordance with the Commercial Arbitration Rules of the
American Arbitration Association. The arbitration proceedings
shall be conducted in Salt Lake City, Utah. The arbitrator(s)
shall have the qualifications set forth in Section 16.2. All
statutes of limitation which would otherwise be applicable in
a judicial action brought by a Party shall apply to any
arbitration proceeding under this Agreement.
16.2 The arbitrator(s) shall be selected in
accordance with the rules of the American Arbitration
Association from panels maintained by the Association. A
single arbitrator shall be knowledgeable in the subject matter
of the arbitration proceeding. If more than one arbitrator is
selected, at least one of the arbitrators must be
knowledgeable in the subject matter of the Dispute and at
least one of whom must be a practicing attorney. If more than
one arbitrator is selected, the controversy shall be decided
by a majority vote of the arbitrators. The arbitrator(s) may
award recovery of all costs and fees (including attorneys'
fees, administrative fees, arbitrators' fees, and court costs)
to the prevailing party. The arbitrator(s) also may grant
provisional or ancillary remedies such as, for example,
injunctive relief, attachment, or the appointment of a
receiver, either during the pendency of the arbitration
proceeding or as part of the arbitration award.
16.3 Notwithstanding the applicability of other
law to any agreements or instruments between or among the
Parties, the Federal Arbitration Act, 9 U.S.C. Sec. 1 et seq.
Shall apply to the construction and interpretation of this
Agreement.
16.4 The Parties acknowledge that they have read
and understand the following disclosures:
ARBITRATION IS FINAL AND BINDING ON THE
PARTIES.
THE PARTIES ARE WAIVING THEIR RIGHT TO LITIGATE
IN COURT, INCLUDING THEIR RIGHT TO A JURY
TRIAL.
PRE-ARBITRATION DISCOVERY IS GENERALLY MORE
LIMITED AND DIFFERENT FROM COURT PROCEEDINGS.
ARBITRATORS' AWARDS ARE NOT REQUIRED TO INCLUDE
FACTUAL FINDINGS OR LEGAL REASONING AND ANY
PARTY'S RIGHT TO APPEAL OR TO SEEK MODIFICATION
OF RULINGS BY ARBITRATORS IS STRICTLY LIMITED.
17. Legal and Other Costs. In the event that any
party defaults in its obligations under this Agreement and, as
a result thereof, another party seeks to legally enforce its
rights hereunder against the defaulting party, then, in
addition to all damages and other remedies to which the non-defaulting party is
entitled by reason of such default, the defaulting party shall be liable
for and shall promptly pay to the non-defaulting party an amount equal to
all costs and expenses (including reasonable attorneys' fees) paid or
incurred by the non-defaulting party in connection with such
enforcement to the extent awarded by arbitration.
18. Miscellaneous.
18.1 This writing contains the entire agreement of the
parties concerning the subject matter hereof and it may not be
amended or terminated except by a written agreement signed by
all the parties.
18.2 No waiver of any default is valid unless in
writing and signed by the waiving party, and no such waiver
shall be deemed a waiver of any subsequent default.
18.3 This Agreement shall be binding upon and inure to
the benefit of each corporate party, its successors and
assigns, and each individual party hereto and his/her heirs,
personal representatives, successors and assigns.
18.4 The paragraph headings are for the purposes of
convenience only and are not intended to define or limit the
contents of the paragraphs.
18.5 Each party shall cooperate and take such further
action as may be reasonably requested by any other party to
carry out the provisions and purposes of this Agreement.
18.6 This Agreement may be executed in one or more
counterparts, all of which taken together shall be deemed one
original.
18.7 This Agreement and any amendments shall be governed
by and construed in accordance with law of the State of Utah.
18.8 Any information revealed pursuant to this Agreement
or previously in the course of negotiations shall be held in
confidence and solely for the purpose of consummating this
Agreement in allowing the parties to exercise prudent care.
If this Agreement is not consummated, no further use shall be
made of such information (except to the extent such
information was already known prior to this Agreement) and the
parties may be held accountable for any unauthorized use. If
this Agreement is not consummated, the parties shall return
all documents received from any party in connection with this
Agreement. If this Agreement is consummated, neither party
shall disclose any information concerning the other party's
business or the terms of this Agreement except (i) as approved
by the other party, (ii) as necessary for the conduct of the
Purchaser's or Sellers' business, (iii) as required by law, or
(iv) as is ascertainable from public information.
18.9 Each provision of this Agreement shall be
interpreted in such a way as to be valid under all laws, but
in case any of the provisions shall be held to be illegal or
unenforceable, such illegality or unenforceability shall not
affect any other provision and this Agreement shall be
interpreted as if the invalid provision was not included
unless the absence of such provision would make completing the
transactions contemplated hereby unreasonable.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be signed as of the date first above written.
SELLERS:
DIRT FREE CARPET & UPHOLSTERY
CLEANING, INC.
By: /s/ Aubry Theode
Its: President
/s/ Aubry Theode
▇▇▇▇▇ ▇▇▇▇▇▇, doing business as
Dirt Free Carpet & Upholstery
Cleaning, Inc.
PURCHASER:
VENTURI TECHNOLOGIES, INC.,
a Nevada corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Its: President
EXHIBIT "A-1"
▇▇▇▇ of Sale and Assignment
from Dirt Free
EXHIBIT "A-2"
▇▇▇▇ of Sale and Assignment
from Thoede
EXHIBIT "B"
Liabilities Undertaking
Schedule 4.5
Allocation of Purchase Price
Schdule 5.4
Liabilities
Schedule 5.5
Taxes
Schedule 5.6
Material Changes or Events
Schedule 5.7
Litigation
Schedule 5.8
Compliance With Laws and Other Instruments
Schedule 5.10
Environmental Compliance
Schedule 5.11
Schedules of Assets, Contracts, etc.
Schedule 5.12
Guaranties
Schedule 9.1
Sellers' Employees
