Exhibit 10.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") dated on or as of
January 1, 2001 ("Effective Date") is by and between SILVER XXXXXX MINING, INC.,
a Delaware corporation ("Purchaser"), and Xxx Xxxx and Xxxxx Xxxx ("Sellers").
W I T N E S S E T H:
WHEREAS, Sellers are the owners of all issued and outstanding stock in
Career Direction, Inc., a Texas Corporation ("Company"), and
WHEREAS, Purchaser desires to purchase and Sellers desire to sell all
of their shares of stock ("Shares") in Company, hereinafter described in this
Agreement, and
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and undertakings herein contained, and other good and valuable consideration,
the receipt and sufficiency of which are hereby mutually acknowledged and
confessed, and subject to the terms and conditions set forth herein, Sellers and
Purchaser agree as follows:
1. ACQUISITION.
(a) PURCHASE OF SHARES. Subject to and upon the terms and
conditions hereinafter set forth, Sellers agree to grant, bargain, convey, sell,
transfer, assign and deliver to Purchaser, and Purchaser hereby agrees to
purchase from Sellers shares of stock owned by Sellers.
(b) CONSIDERATION. Purchaser agrees to pay to sellers at
closing the following consideration:
(i) A certificate representing 50,000 shares of
Silver Xxxxxx Mining, Inc. common stock, which Sellers may
convert to $50,000 cash at sellers' option upon Purchaser's
conclusion of a private placement or secondary offering of at
least $2,000,000.00 on or before July 1, 2001; and
(ii) $150,000.00 out of the proceeds of a primary or
secondary offering of stock at $1.00 per share or 150,000
shares of Silver Xxxxxx Mining, Inc. stock at $1.00 per share;
the balance of $800,000.00 payable by 50,000 shares of Silver
Xxxxxx Mining, Inc. stock each quarter at a price of $1.00 per
share as reflected in the attached promissory note in form and
content satisfactory to the parties at Sellers' option,
provided, however, that in the event Silver Xxxxxx Mining,
Inc. stock falls below a market value of $1.00 per share when
each installment is due, sellers shall have the option to
convert stock to cash. It is understood that as to the initial
$50,000 payment made in Purchaser's stock, that Purchaser
guarantees that the stock shall have a value of $50,000 on
July, 2001, or it will redeem the stock for $50,000 cash on
that date at Sellers' option. Purchaser will issue a Stock
Pledge securing said Note.
2. CLOSING. Closing shall occur at the offices of Xxxxx Xxxxx, 0000
Xxxxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 effective January 1, 2001.
3. REPRESENTATIONS AND WARRANTIES OF SELLERS. Sellers represent and
warrant to Purchaser that:
(a) ORGANIZATION AND STANDING OF COMPANY. Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Texas and has full corporate power and authority to conduct
business.
(b) AUTHORITY TO CONTRACT. Sellers have the legal power and
right to enter into and perform this Agreement, and the consummation of the
transaction described in this Agreement will not result in the breach or
termination of any agreement, mortgage or instrument to which Sellers are bound.
(c) EMPLOYMENT. Sellers have supplied Purchaser with a
complete list of all employees of company. There are no claims by employees or
by any governmental agency.
(d) LITIGATION. Except for the matters described in
Schedule ___ attached hereto, Sellers are not a party to any legal or
governmental actions, claims, suits or judgment, nor do Sellers have notice of
any claim or suit. Neither Sellers nor Company have filed any bankruptcy or
insolvency proceeding.
(e) TAXES. Company has duly and timely filed all federal,
state, and local tax returns required to be filed, or has made adequate
provision for the payment of all taxes which are
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due pursuant to any returns. Sellers have provided Purchaser with tax returns of
Company for years 1998 and 1999.
(f) FINANCIAL STATEMENTS. Sellers have furnished to Purchaser
financial statements of Company as of December 31, 1999 and for the period
ending November 30, 2000, and the related statements of income and cash flow for
the periods therein ("Financial Statements"). The Financial Statements were
prepared in accordance with generally accepted accounting principles, and fairly
present the financial position of Company during the period indicated. There are
no material liabilities, direct or indirect, fixed or contingent of Company
which are not reflected in the Financial Statements, or any amendment thereto.
(g) BROKERS. Sellers are not a party to or in any way
obligated under a brokerage contract or other agreement and there are no
outstanding claims against Sellers for the payment of any broker's or finder's
fees in connection with the origin, negotiation, execution or performance of
this Agreement. Sellers agree to indemnify and hold harmless Purchaser from any
and all liability, for any brokerage commissions, finders fees or similar
obligations contracted for or incurred by Sellers.
(h) GOVERNMENTAL LICENSES AND PERMITS: COMPLIANCE WITH LAWS.
The Company has not received any notice of any revocation or modification or any
license, certificate, tariff, permit, registration, exemption, approval or other
authorization by any Governmental Entity. To the knowledge of the Sellers, the
Company is in compliance with all applicable laws.
(i) GOOD TITLE. Sellers have good title to the shares; no
claims or encumbrances exist against the shares; no other shareholders hold or
claim stock in company in any manner.
(j) ASSETS. A complete listing of company assets is attached
as Schedule ___. Company has good title to its assets including, but not limited
to its tradename. Each of the above representations and warranties shall survive
Closing.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents
and warrants to Sellers that:
(a) ORGANIZATION, STANDING AND AUTHORITY OF PURCHASER.
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has
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full corporate power and authority to conduct its business as it is now being
conducted and to enter into and carry out the provisions of this Agreement.
(b) AUTHORIZATION. The execution and delivery of this
Agreement and the performance by Purchaser of its obligations hereunder have
been duly authorized by the Board of Directors of Purchaser, and do not violate
any provisions of the Articles of Incorporation or By-laws of Purchaser. (c)
BROKERS. Purchaser has no outstanding claims against it for the payment of any
broker's or finder's fees in connection with the origin, negotiation, execution
or performance of this Agreement. Purchaser agrees to indemnify and hold
harmless Sellers from any and all liability for any brokerage commissions,
finders fees or similar obligations contracted for or incurred by Purchaser.
5. INDEMNIFICATION BY PURCHASER. Purchaser agrees to defend, indemnify
and hold harmless Sellers and their successors or assigns from, against, and in
respect, of any and all loss or damage (including attorneys and accounting fees)
resulting from the operation of the Subject Business and in which the event
giving rise to the occurrence had its inception after transfer of possession of
the Purchased Assets and relates to the operation of the Subject Business by
Purchaser or its agents.
6. INDEMNIFICATION BY SELLERS. Xxx and Xxxxx Xxxx agree to defend,
indemnify and hold harmless Purchaser and its successors and assigns from,
against, and in respect, of any and all loss or damage (including attorneys and
accounting fees) (i) resulting from the operation of the Subject Business or in
which the event giving rise to the occurrence had its inception before closing
and relates to the operation of the Subject business prior to transfer; and (ii)
any breach by Sellers of the terms of this Agreement.
7. DEFAULT.
(a) If sellers should default under this Agreement,
Purchaser's remedies shall include (1) an action for specific performance of
this Agreement, or (2) monetary damages for breach as permitted by law.
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(b) If Purchaser should default under this Agreement, then
Sellers shall be entitled to specific performance, or may select to be released
from all obligation to close.
(c) Sellers shall endorse certificates for transfer in
consideration of Purchaser signing the attached Convertible Promissory Note
described in Section 1(b) hereof.
8. EXPENSES. Sellers and Purchaser shall each pay its or their own
expenses (including without limitation counsel and accounting fees and expenses)
incident to the preparation and carrying out of this Agreement and the
consummation of the transactions contemplated hereby, except as otherwise
provided for herein.
9. NOTICES. All notices, demands and requests which may be given or
which are required to be given by any party to the others, and any exercise of a
right of termination provided by this Agreement, shall be in writing and shall
be deemed effective when either personally delivered to the intended recipient;
sent by certified or registered mail, return receipt requested, addressed to the
intended recipient at the address specified below; delivered in person to the
address set forth below for the party to which the notice was given; deposited
into the custody of a nationally recognized overnight delivery service such as
Federal Express Corporation, Xxxxx or Purolator, addressed to such party at the
address specified below; or sent by facsimile, telegram or telex, provided that
receipt for such facsimile, telegram or telex is verified by the sender and
followed by a notice sent in accordance with one of the other provisions set
forth above. Notices shall be effective on the date of delivery or receipt or,
if delivery is not accepted, on the earlier of the date that delivery is refused
or three (3) days after the date the notice is mailed. For purposes of this
Section, the addresses of the parties for all notices are as follows (unless
changes by similar notice in writing are given by the particular person whose
address is to be changed):
(a) if to Sellers,
Xxx Xxxx
Xxxxx Xxxx
Career Direction, Inc
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(b) if to Purchaser,
SILVER XXXXXX MINING, INC.
0000 Xxxxxxx 000X, Xxxxx 000-X
Xxxxx Xxxxxxx, Xxxxx 00000
Any party hereto may designate a different address by notice given to the other
parties.
10. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER. The obligations
of Purchaser to close shall be subject to the following conditions:
(a) The representations and warranties of Sellers contained in
this Agreement shall be true on and as of the Closing Date.
(b) On the Closing Date, Sellers shall have executed and
delivered all necessary instruments of transfer required to permit Purchaser to
run the business, including, but not limited to any assignment of marks and
intellectual property, telephone numbers, leases and of any xxxx of sale.
Sellers shall provide stock certificates at closing fully endorsed for transfer.
11. COVENANT AGAINST COMPETITION.
(a) For a period of four years following the date of Closing
each of the Sellers shall not (i) directly or indirectly conduct or have any
beneficial ownership or equity interest in any Competing Business operating
within Purchaser's area of influence, which is within the geographic area in
which Silver Xxxxxx Mining, Inc. or Career Direction operates, or has commenced
business activity, whether such interest is structured as a partner,
shareholder, beneficiary, or otherwise, or have any right, option, agreement,
understanding, or arrangement to acquire any such interest; (ii) solicit,
divert, or appropriate, or attempt to solicit, divert, or appropriate to or for
a Competing Business the business of any person or entity located within the
Area which was a customer of the company on (or within one year prior to the
Closing Date), (iii) induce or attempt to induce any of companies' business
contacts to curtail its orders or cancel its business, (iv) induce or attempt to
induce any employee of companies to terminate or modify their employment
arrangement. For the purposes of this Section 11, "Competing Business" means any
business which is engaged in the business of International Employment Testing
software and related career fairs.
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(b) If Sellers commit a breach, or threaten to commit a breach
of the provisions of subsection (a) above, Purchaser shall have the right and
remedy to have the provisions of subsection specifically enforced by any court
having jurisdiction, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to Purchaser and that money
damages will not provide remedy to Purchaser.
(c) If any of the covenants contained in subsection (a) above,
or any part thereof, are hereafter construed to be invalid or unenforceable, the
same shall not affect the remainder of the covenant or covenants, which shall be
given full effect, without regard to the invalid portions. If any of the
covenants contained in subjection (a) above, or any part thereof, are held to be
unenforceable because of the scope or duration of such provision of the
geographic area covered thereby, the parties agree that the court making such
determination shall have the power to reduce the scope, duration, or area of
such provision and, in its reduced form, said provision shall then be
enforceable.
12. MISCELLANEOUS.
(a) ASSIGNMENT. This Agreement may not be assigned by any
party hereto without the consent of the other parties.
(b) PRORATION OF TAXES AND ADJUSTMENTS. All state and local
personal property taxes relating to the Purchased Assets shall be prorated
between Purchaser and Sellers as of the Transfer of Possession of Subject
Business.
(c) SECTION AND PARAGRAPH HEADINGS. The Section and Paragraph
headings of this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Whenever the context
permits, singular shall include plural and one gender shall include all. Notice
given by or to the attorney for any party shall be as effective as if given by
or to that party.
(d) AMENDMENT. This Agreement may be amended only by an
instrument in writing executed by the parties hereto.
(e) ENTIRE AGREEMENT. If any provision of this Agreement is
held invalid or unenforceable, it is the intent of the parties that all other
provisions remain fully valid. This Agreement
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and the exhibits, schedules, certificates, and documents referred to herein
constitute the entire agreement of the parties, and supersede all understandings
with respect to the subject matter hereof.
(f) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND DEEMED
PERFORMABLE IN THE STATE OF TEXAS.
(h) COMPANY BOUND. By signature below, Company is indicates
its agreement to all terms here. IN WITNESS WHEREOF, this Agreement has been
duly executed by the parties as of the date and year first above written.
PURCHASER:
SILVER XXXXXX MINING, INC.
By:
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SELLER:
By:
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Xxxxx Xxxx, Personally
By:
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Xxx Xxxx, Personally
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SCHEDULE 1 (a) (i)
PROPERTY/ASSET DESCRIPTIONS
(To be updated within 3 days of Closing)
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SCHEDULE 1 (a) (ii)
INVENTORY AND EQUIPMENT
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SCHEDULE 2
LITIGATION
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