EXHIBIT 11.1
AGREEMENT
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1. THIS AGREEMENT (Agreement) is entered into as of June 15, 2005, by and among
HAMPTON & HAMPTON, P.A., a Kansas corporation, (hereinafter referred to as "H &
H") and Xxx Xxxxxxx, personally, (hereinafter referred to as "Hampton"), and
X.X. Xxxxxxxx CPA, INC. , a Kansas corporation, (hereinafter referred to as
"WHW"), and Xxxxxx Xxxxxxxx, personally (hereinafter referred to as "Xxxxxxxx").
W I T N E S S E T H:
WHEREAS, Xxxxxxxx sold the accounting practice operated by WHW to H & H upon the
terms and conditions set forth in the Agreement by and between the parties
entitled ASSET PURCHASE AND SALE AGREEMENT, dated September 30, 2004, and
contemporaneously Xxxxxxxx entered a Contract for Deed which conveyed to H & H
all right, title and interest of WHW's Assets to include goodwill, and Xxxxxxxx
conveyed the contractual right to obtain the real property located at 000 X.
Xxxxxxxx, Xxxxxx, Xxxxxx, and further Xxxxxxxx entered into a
Non-Compete/Non-Solicitation Provision in the body of the ASSET PURCHASE AND
SALE AGREEMENT; and
WHEREAS, H & H and Hampton (Purchasers) and WHW and Xxxxxxxx (Sellers) are
desirous of terminating and reversing said ASSET PURCHASE AND SALE AGREEMENT and
Contract for Deed, the above referenced parties;
NOW THEREFORE, in consideration of the mutual covenants, terms and conditions
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. TRANSACTION PRICE: Xxxxxxxx shall pay to H & H the sum of One Hundred
Seventy-Six Thousand Dollars ($176,000.00), to be paid as follows:
A. One Hundred Twenty-Five Thousand Dollars ($125,000.00) at the
execution of this Agreement by check; and
B. The execution of a Promissory Note, attached hereto and incorporated
by reference in the sum of Fifty-One Thousand Dollars ($51,000.00).
2. CONSIDERATION CONVEYED BY H & H:
A. H & H shall return all assets conveyed in the original ASSET PURCHASE
AND SALE AGREEMENT (Schedule A, attached hereto and incorporated by
reference) to include any obligation as to Xxxxxxxx
Non-Compete/Non-Solicitation. Further, as well as any general
goodwill, H & H shall return the Blue Book and information about any
WHW or Xxxxxxxx' clients contained therein. H & H specifically agrees
not to solicit any WHW or Xxxxxxxx' clients and herein agrees to
return all client information, with the exception of certain tax
records for which H & H was a paid preparer and for which H & H has a
statutory obligation to retain said records for a period of three (3)
years from the date of preparation, this provision shall not be
construed as a permission to solicit said WHW or Xxxxxxxx' clients.
Finally, all information with respect to the original ASSET PURCHASE
AND SALE AGREEMENT, CONTRACT FOR DEED, ESCROW AGREEMENT, (if any),
NON-COMPETITION/NON-SOLICITATION AGREEMENT (if any) and this
AGREEMENT, shall be to the extent permissible under the Securities and
Exchange Commission Acts of 1933 or 1934 as Amended shall be removed
from the H & H website or any required filings.
B. H & H shall make no further claim upon the real property located at
000 X. Xxxxxxxx, Xxxxxx, Xxxxxx, and further shall be relieved of any
obligation contained in said Contract for Deed. Further, H & H shall
return all keys and alarm codes, if any, remove all H & H files and
furniture, as well as the reference to said address on H & H's
letterhead, stationary or website.
3. PRORATIONS:
A. Utilities shall be taken out of the name of H & H and replaced by
Xxxxxxxx to himself or the entity of his choice.
B. Accounts Receivable shall be divided per a cash basis with any
xxxxxxxx received through June 15, 2005, to H & H and any received
after June 15, 2005, to WHW or Xxxxxxxx.
C. Liability insurance shall be cancelled by H & H as of June 16, 2005,
and shall be the sole responsibility of WHW or Xxxxxxxx.
D. Property tax shall be prorated by the parties, the amount computed due
from September 30, 2004, through June 15, 2005, shall be the
responsibility of H & H and from said computed sum H & H shall receive
a credit for the payment made in December 2004. All other taxes shall
be and remain the responsibility of WHW or Xxxxxxxx. Should the above
computation require additional payment by H & H, the sum due, if any,
shall be deducted from the first payment due under the
above-referenced Promissory Note.
E. Monthly rent paid by H & H shall be prorated as of June 15, 2005, and
any sums due for overpayment of June's rent shall be refunded to H &
H. BN If the combined proration in Xxxxxxxxx 0, Xxxxxxx X and E, are
equal to or less then Two Hundred Fifty Dollars ($250.00), these two
provisions shall be deemed satisfied.
4. CLOSING: The closing of this Agreement shall take place at the law offices
of Xxxxx X. Xxxxxx, Esq., Xxxxxx & Xxxxxxx, 0000 Xxxxxxx, Xxxxx 000, Xxxxxx
Xxxx, Xxxxxxxx 00000, on the 15th day of June, 2005, at 1:00 o'clock p.m.
or at such other time and place as all of the parties hereto may mutually
agree.
5. VALIDITY OF AGREEMENT: The Parties have the legal capacity and authority to
enter into this Agreement. This Agreement is a valid and legally binding
obligation of the Parties and is fully enforceable against the other in
accordance with its terms, except as such enforceability may be limited by
general principles of equity, bankruptcy, insolvency, moratorium and
similar laws relating to creditors rights generally.
6. REPRESENTATIONS OF THE PARTIES: The Parties represent and warrant to the
other that:
A. Neither party has incurred any obligation or liability, contingent or
otherwise, for brokerage fees, finder's fees, agent's commissions or
the like in connection with this Agreement or the transactions
contemplated hereby.
B. That each party shall recover reasonable attorneys' fees should that
party be required to xxx to enforce this Agreement, provided they
prevail by suit or settlement.
C. Any action under this Agreement, which is a duty or obligation of that
party per this Agreement, shall entitle the non-breaching or
defaulting party to be indemnified by the breaching or defaulting
party.
7. MISCELLANEOUS:
A. Survival of Representations, Warranties and Agreements. All of the
representations, warranties, covenants, promises and agreements of the
parties contained in this Agreement (or in any document delivered or
to be delivered pursuant to this Agreement or in connection with the
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Closing) shall survive the execution, acknowledgment, sealing and
delivery of this Agreement and the consummation of the transactions
contemplated hereby.
B. Notices. All notices, requests, demands, consents and other
communications which are required or may be given under this Agreement
(collectively, the "Notices") shall be in writing and shall be given
either (a) by personal delivery against a receipted copy, or (b) by
certified or registered U.S. mail, return-receipt requested, postage
prepaid, to the following addresses:
(i) Seller: Hampton & Hampton, PA and Xxx Xxxxxxx 1501 Kansas
Great Bend, Kansas 67530
(ii) Purchaser: X. X. Xxxxxxxx, Inc. and Xxxxxx X. Xxxxxxx, CPA
113 S. Mahaffie Olathe, Kansas
(iii) Copy to Arbitrator: Xxxxx X. Xxxxxx 0000 Xxxxxxx, Xxx. 000
Xxxxxx Xxxx, Xxxxxxxx 00000 Telephone: 000-000-0000
Facsimile: 000-000-0000
or to such other address of which written notice in accordance with this
Paragraph 7 shall have been provided by such party.
C. Entire Agreement. This Agreement (including the Exhibits hereto)
constitutes the full, entire and integrated agreement between the
parties hereto with respect to the subject matter hereof, and
supersedes all prior negotiations, correspondence, understandings
and agreements among the parties hereto respecting the subject
matter hereof.
D. Assignability. This Agreement shall not be assignable by any
party hereto without the prior written consent of the other
parties hereto; provided, however, that the Purchaser may,
without the prior written consent of any other party, assign its
interest in this Agreement to any Affiliate of the Purchaser if
such Affiliate undertakes to perform the Purchaser's obligations
hereunder that shall have been so assigned, and upon, from and
after such assignment the Purchaser shall have no further
liabilities, obligations or duties in respect of the rights,
obligations and duties so assigned.
E. Binding Effect; Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, each other
Person who is indemnified under any provision of this Agreement,
and their respective heirs, personal and legal representatives,
guardians, successors and, in the case of Purchaser, its
permitted assigns. Nothing in this Agreement, express or implied,
is intended to confer upon any other Person any rights, remedies,
obligations or liabilities.
F. Severability. Any provision of this Agreement which is held by a
court of competent jurisdiction to be prohibited or unenforceable
shall be ineffective to the extent of such prohibition or
unenforceability, without invalidating or rendering unenforceable
the remaining provisions of this Agreement.
G. Amendment; Waiver. No provision of this Agreement may be amended,
waived or otherwise modified without the prior written consent of
all of the parties hereto, No action taken pursuant to this
Agreement, including any investigation by or on behalf of any
party, shall be deemed to constitute a waiver by the party taking
such action of compliance with any representation, warranty,
covenant or agreement herein contained. The waiver by any party
hereto of a breach of any provision or condition contained in
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this Agreement shall not operate or be construed as a waiver of
any subsequent breach or of any other conditions hereof.
H. Section Headings. The section and other headings contained in
this Agreement are for reference purposes only and shall not
affect the meaning or interpretation of this Agreement.
I. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and
all of which together shall be deemed to be one and the same
instrument.
J. Applicable Law. This Agreement is made and entered into and shall
be governed by and construed in accordance with the laws of the
State of Kansas.
K. Remedies. The parties hereto acknowledge that the consideration
of each is 1unique; that any claim for monetary damages may not
constitute an adequate remedy; and that it may therefore be
necessary for the protection of the parties and to carry out the
terms of this Agreement to apply for the specific performance of
the provisions hereof. It is accordingly hereby agreed by all
parties that no objection to the form of the action or the relief
prayed for in any proceeding for specific performance of this
Agreement shall be raised by any party, in order that such relief
may be expeditiously obtained by an aggrieved party. All parties
may proceed to protect and enforce their rights hereunder by a
suit in equity, transaction at law or other appropriate
proceeding, whether for specific performance or for an injunction
against a violation of the terms hereof or in aid of the exercise
of any right, power or remedy granted hereunder or by law, equity
or statute or otherwise. No course of dealing and no delay on the
part of any party hereto in exercising any right, power or remedy
shall operate as a waiver thereof or otherwise prejudice its
rights, powers or remedies, and no right, power or remedy
conferred hereby shall be exclusive of any other right, power or
remedy referred to herein or now or hereafter available at law,
in equity, by statute or otherwise.
L. Further Assurances. The Seller agrees to execute, acknowledge,
seal and deliver, after the date hereof, without additional
consideration, such further assurances, instruments and
documents, and to take such further actions, as the Purchaser may
request in order to fulfill the intent of this Agreement and the
transactions contemplated hereby.
M. Use of Genders. Whenever used in this Agreement, the singular
shall include the plural and vice versa, and the use of any
gender shall include all genders and the neuter.
N. Common Counsel. Both Seller and Purchaser acknowledge that they
are aware of the differing interests they have with respect to
one another in this transaction and that Xxxxx X. Xxxxxx has
acted as attorney for WHW and Xxxxxxxx and for H & H and Hampton.
All Parties have been informed and advised to seek separate
counsel in this transaction, and it is Xx. Xxxxxx'x understanding
that both Parties have and will continue to have this Agreement
independently reviewed.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement under seal, with the intention of making it a sealed instrument, on
the date first above written.
Hampton & Hampton, PA
By:
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Xxx Xxxxxxx, President
STATE OF MISSOURI )
) ss:
COUNTY OF XXXXXXX, )
Acknowledged before me this 15th day of June, 2005, by Xxx Xxxxxxx,
President of Hampton & Hampton, PA, Inc., a Kansas Corporation.
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My Commission expires: Notary Public
Xxx Xxxxxxx, Individually
By:
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Xxx Xxxxxxx
STATE OF MISSOURI )
) ss:
COUNTY OF XXXXXXX )
Acknowledged before me this 15th day of June, 2005, by Xxx Xxxxxxx.
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My Commission expires: Notary Public
X.X. Xxxxxxxx, Inc.
By:
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Xxxxxx X. Xxxxxxxx, President
STATE OF MISSOURI )
) ss:
COUNTY OF XXXXXXX, )
Acknowledged before me this 15th day of June, 2005, by Xxxxxx X. Xxxxxxxx,
President of X.X. Xxxxxxxx, Inc., a Kansas Corporation.
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My Commission expires: Notary Public
Xxxxxx X. Xxxxxxxx, Individually
By:
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Xxxxxx X. Xxxxxxxx, CPA
STATE OF MISSOURI )
) ss:
COUNTY OF XXXXXXX, )
Acknowledged before me this 15th day of June, 2005, by Xxxxxx X. Xxxxxxxx.
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My Commission expires: Notary Public
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