Agreement for Sale of Assets
of Exposure 0x.xxx, Inc.
This Agreement is entered into on this 25 day of August, 2000,
between Exposure 0X.xxx, Inc., a corporation organized under the laws of
the state of Florida with its principal office located 0000 Xxxxxxx
Xxxxx Xxxx, Xx. Xxxxxxxxxx, XX 00000 ("Seller"), and XXXx.xxx, Inc., a
corporation organized under the laws of the state of Florida with its
principal office located at 0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, XX 00000 ("Buyer").
WHEREAS, Seller is engaged in the database management and email business
using software and computers (the "Business"); and
WHEREAS, Seller desires to sell and Buyer desires to buy the assets of
the Seller.
NOW THEREFOR, in consideration of the mutual covenants of the parties,
Seller and Buyer agree:
1. Sale of Assets
Seller shall sell, assign, and deliver to Buyer and Buyer shall
purchase and accept, on the Closing Date (as hereinafter defined), all
the assets of Seller. Such assets are listed on the attached Exhibit A
(the "Purchased Assets"). At the Buyer's option, the Purchased Assets
shall be incorporated by Buyer into its INFe-Relations, Inc. subsidiary.
The Buyer agrees that simultaneously with the signing of this Agreement,
employment agreements will be signed with Xxxxxxx Xxxxxxx and Xxxxx
Xxxxx.
2. Consideration; Limited Assumption of Liabilities
In consideration of the sale of the Purchased Assets, the signing
of the employment agreements referred to above, and other valuable
consideration, receipt of which is hereby acknowledged, Buyer agrees to
pay to Seller, or to a third party on behalf of Seller the sum of
$34,950 within two (2) business days of Closing. The $34,950 shall be
used as follows:
$20,000 to repay loan to Xxxxxx & Associates
$5,950 for salaries currently due
$9,000 for existing liabilities as listed on Exhibit A
______
$34,950
Seller acknowledges and agrees that Buyer is only assuming the
liabilities listed on Exhibit A and that the $34,950 being delivered by
Buyer is being used only for the purposes described above. Seller
acknowledges and agrees that any and all other liabilities either now
known or that in the future are revealed that relate to activities of
the Business prior to Closing, that are not listed on Exhibit A are the
responsibility of Seller. Seller will supply a signed copy of its buyout
agreement with existing partner subsequent to Closing.
Buyer also agrees to deliver to each of Xxxx Xxxxxxx and Xxxxx Xxxxx
21,250 shares of free trading INFE Common Stock as payment for salaries
currently due.
Buyer also agrees that at the time Buyer determines new computers are
needed, Buyer will pay the down payment for Dell Computers which is
listed on Exhibit A and estimated to be $5,175.
/s/[Initial] /s/ [Initial]
Exhibit 2.5 - Pg. 2
3. Employment Agreements
Buyer and Seller agree that they shall, concurrent with the signing of
this Agreement, sign an employment agreement with each of Xxxxxxx
Xxxxxxx and Xxxxx Xxxxx. These agreements will contain such terms and
conditions as are normal for INFE employment agreements, including
responsibilities (hereinafter referred to as "New Business Operations").
These agreements are attached as Exhibit B.
4. Instruments of Transfer
The sales, assignments, and deliveries to be made to Buyer pursuant
to this Agreement shall be effected by deeds, bills of sale,
endorsements, checks, and other instruments of transfer in such form as
Buyer shall reasonably request. Seller shall prepare appropriate forms
of instruments of transfer and conveyance in conformity with this
Agreement. Any time and from time to time after the Closing Date, on
Buyer's request, Seller will do, execute, acknowledge, and deliver all
such further acts, deeds, assignments, transfers, and powers of attorney
as may be reasonably required in conformity with this Agreement for the
adequate assigning, transferring, granting, and confirming to Buyer of
the Purchased Assets to Buyer.
5. Assignment of Contract Rights
If any contract, license, lease, commitment, or sales or purchase
order assignable to Buyer under this Agreement may not be assigned
without the consent of the other party thereto, Seller will use its best
efforts to obtain the consent of the other party to the assignment.
6. Waiver of Compliance with Bulk Sales Laws
Buyer hereby waives its right to require compliance with any bulk
sales or similar laws and in consideration therefor, Seller agrees that
Seller shall indemnify and save and hold Buyer harmless from any
liabilities (including without limitation statutory penalties, damages
or expenses (including reasonable attorneys' fees), arising from the
failure of Buyer or Seller to comply with any bulk sales or similar law
applicable to the transactions contemplated by this Agreement.
7. Closing
7.1 Closing/Closing Date. Subject to fulfillment of the
conditions to closing specified in this Agreement and pursuant to the
other terms and conditions hereof, the closing of the transactions
provided for in this Agreement (the "Closing") shall take place on
August __, 2000 or at such other date and time as may be agreed upon by
the parties hereto (the "Closing Date"), such closing to be effective as
of the close of business on the Closing Date.
7.2 Conditions to Closing.
(1) Conditions to Buyer's Obligations. The obligations of Buyer
to purchase the Purchased Assets as provided in this Agreement are
subject to the satisfaction, on or before the Closing Date (except where
specifically required or permitted to be satisfied prior to or after the
Closing), of the following conditions:
(a) Delivery of Purchased Assets to Buyer. Seller shall deliver
title to the Purchased Assets, by duly executed Xxxx of Sale, Assignment
and Assumption Agreement and other appropriate assignments or other
instruments of transfer and documents which conform to the requirements
of this Agreement, including executed counterparts of all novation
agreements with the United States government, its agencies and
instrumentalities, and any other persons requiring them. Simultaneously
/s/[Initial] /s/ [Initial]
Exhibit 2.5 - Pg. 3
with the consummation of the transfer, Seller, through its officers,
agents, and employees, will put Buyer into full possession and enjoyment
of all Purchased Assets.
(b) Certificate from Seller. Seller shall deliver to Buyer a
certificate, dated the Closing Date, signed by a duly authorized officer
of Seller certifying that:
(i) the representations and warranties made by Seller
herein or in any Exhibit hereto remain true in all material
respects on the Closing Date as though made on such date except for
changes contemplated by this Agreement;
(ii) Seller has performed and complied in all material
respects with all agreements, covenants and conditions required by
this Agreement to be performed or complied with by Seller on or
prior to the Closing;
(iii) no litigation, proceedings or other actions are pending
against or affecting the Seller which have resulted or reasonably
could be expected to result either in an action to enjoin or the
prevention of the consummation of the transactions contemplated by
this Agreement;
(iv) Seller has received all consents required by the
federal government, any state or local governmental body or any
foreign government to the transactions contemplated by this
Agreement, and such consents are in full force and effect; and
(v) that from the date of this Agreement through the
Closing Date, Seller has managed and conducted the Business in the
ordinary course as heretofore managed and conducted as though no
change of ownership of the Business were contemplated, and has used
commercially reasonable efforts to preserve all employee, vendor
and customer relationships.
(c) Opinion of Seller's Counsel. Seller shall deliver to Buyer a
signed copy of an opinion from its counsel dated the Closing Date
substantially in the form of Exhibit C attached hereto and hereby made a
part hereof.
(d) Corporate Resolutions. Seller shall deliver to Buyer copies
of corporate resolutions, certified by the appropriate corporate officer
of Seller, authorizing the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby.
(e) Transfer of Licenses. Seller shall, to the extent permitted
by law and to the extent transferable, transfer to Buyer all licenses
necessary for the continued conduct of the Business.
(2) Conditions to Seller's Obligations. The obligations of Seller
to sell, transfer and assign to Buyer the Purchased Assets as provided
in this Agreement are subject to the satisfaction, on or before the
Closing Date (except: (1) where specifically required or permitted to be
satisfied prior to or after the Closing or (2) as provided for in
paragraph 2 with regards to payments from Buyer), of the following
conditions:
(a) Delivery of Purchase Price. Buyer shall deliver to Seller
the purchase price and other appropriate documents which conform to the
requirements of this Agreement.
(b) Certificate of Buyer. Buyer shall deliver to Seller a
certificate, dated the Closing Date, signed by a duly authorized officer
of Buyer certifying that:
(i) the representations and warranties made by Buyer herein
or in any Exhibit hereto remain true in all material respects on
the Closing Date as though made on such date except for changes
contemplated by this Agreement;
/s/[Initial] /s/ [Initial]
Exhibit 2.5 - Pg. 4
(ii) Buyer has performed and complied in all material
respects with all agreements, covenants and conditions required by
this Agreement to be performed or complied with by Buyer on or
prior to the Closing;
(iii) no litigation, proceedings or other actions are pending
against or affecting the Buyer which have resulted or reasonably
could be expected to result either in an action to enjoin or the
prevention of the consummation of the transactions contemplated by
this Agreement; and
(iv) Buyer has received all consents required by the federal
government, any state or local governmental body or any foreign
government to the transactions contemplated by this Agreement, and
such consents are in full force and effect.
(c) Opinion of Buyer's Counsel. Buyer shall deliver to Seller a
signed copy of an opinion from its counsel dated the Closing Date
substantially in the form of Exhibit C attached hereto and hereby made a
part hereof.
(d) Corporate Resolutions. Buyer shall deliver to Seller copies
of corporate resolutions, certified by the appropriate corporate officer
of Seller, authorizing the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby.
8. Representations of Sellers
Sellers represent, warrant, and agree:
(a) Seller is a corporation duly organized, existing, and in good
standing under the laws of Florida, and is authorized and entitled to
carry on its business in Florida. Seller has no subsidiaries. The
execution, delivery and performance of this Agreement by Seller have
been duly authorized by its board of directors and shareholders. The
signatory for Seller has full power and authority to enter into this
Agreement and to carry out all the terms and provisions hereof to be
carried out by him, and all authorizations and consents necessary for
the execution and delivery of this agreement by him have been given.
This Agreement, assuming due authorization, execution, and delivery by
the other parties hereto, constitutes a legal, valid, and binding
agreement of Seller, enforceable against Seller in accordance with its
terms (subject, as to enforcement of remedies, to applicable bankruptcy,
insolvency, moratorium, and similar laws affecting creditors, rights
generally from time to time in effect and to equitable principles
limiting the availability of the remedy of specific performance).
(b) All the Purchased Assets are owned by Seller, free and clear
of all mortgages, liens, and encumbrances, except as previously
disclosed by Seller to Buyer.
(c) Seller is not in default under any material contract,
agreement, lease, or other document to which it is a party, and is in
material compliance with all laws, regulations, and ordinances
applicable to the Business to the date of this Agreement.
9. Buyer's Representations and Warranties
Buyer hereby represents and warrants to Seller that:
(a) Buyer is a corporation duly organized, validly existing and
in good standing under the laws of Florida, with full corporate power to
enter into, and to perform its obligations under, this Agreement.
(b) The execution, delivery and performance of this Agreement by
Buyer have been duly authorized by all necessary corporate action and do
not, and will not, violate or conflict with the provisions of the
Buyer's Certificate of Incorporation or Bylaws or the provisions of any
/s/[Initial] /s/ [Initial]
Exhibit 2.5 - Pg. 5
indenture, agreement, or other instrument to which Buyer is a party or
by which any of its property is bound. This Agreement constitutes a
legal, valid and binding obligation of Buyer.
(c) Buyer has not engaged or otherwise used the services of any
broker or finder in connection with this Agreement or the transactions
contemplated hereby and Buyer agrees to indemnify and hold harmless
Seller from and against any liability for any fee, compensation,
commission or expense (including attorneys' fees) arising out of any
claim by any person acting or claiming to act on behalf of Buyer for
fees, compensation, commission or expense with respect to This Agreement
or the transactions contemplated hereby.
(d) No authorization or approval of any governmental body is
required to be obtained by Buyer in connection with the execution,
delivery or performance of this Agreement, or, if so required, all such
authorizations or approvals have been or will, prior to the Closing, be
obtained by Buyer.
(e) There is no action, arbitration, suit, notice, order, real
estate tax contest or legal, administrative or other proceeding before
any court or governmental agency, authority or body pending or, to
Buyer's knowledge, threatened against or affecting Buyer which would
prevent or interfere with the transactions contemplated by this
Agreement.
10. Broker's Fees
Each party represents and warrants to the other party that no
other person or firm brought about the sale or is entitled to
compensation in respect to it.
11. Indemnity
(a) Seller agrees to indemnify and hold harmless Buyer against and
with respect to any and all obligations and other liabilities arising
out of or relating to the conduct of the Business prior to the Closing
Date.
(b) Buyer agrees indemnify and hold harmless Seller against and
with respect to any and all obligations and other liabilities arising
out of or relating to the conduct of the Business on or after the
Closing Date, including indemnification of Xxxx Xxxxxxx and Xxxxx Xxxxx,
the principals of Seller for any guarantees they may have made on
contracts or leases assigned hereunder
12. Expenses of Negotiation and Transfer
Each party shall pay such party's own expenses, taxes, and other
costs incident to or resulting from this Agreement, whether or not the
transactions contemplated hereby are consummated. In the event of
litigation with respect to the agreement, reasonable attorneys' fees
shall be paid by the prevailing party.
13. Notices
Any notice to be given under this Agreement shall be given in
writing and delivered personally or by overnight registered or certified
mail, postage prepaid, as follows:
(a) If to Buyer, addressed to Xxxxx X. Xxxxxxx XX, General
Counsel, XXXx.xxx, Inc. 0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx
000, Xxxxxx, XX 00000.
(b) If to Seller, addressed to Xxxxxxx Xxxxxxx and Xxxxx Xxxxx,
Exposure 0X.xxx, Inc., 0000 Xxxxxxx Xxxxx Xxxx, Xx.
Xxxxxxxxxx, XX 00000
14. The validity and interpretation of this Agreement shall be governed
by the laws of the State of Florida, Palm Beach County, applicable to
agreements made and to be fully performed therein and without regard to
the principles of conflicts of law.
15. Entire Agreement
/s/[Initial] /s/ [Initial]
Exhibit 2.5 - Pg. 6
This instrument contains the entire agreement between the
parties with respect to the transaction contemplated. It may be
executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
16. Confidentiality and Nondisclosure
All confidential information which shall have been furnished or
disclosed by Buyer or Seller to the other pursuant to this Agreement
shall be held in confidence pursuant to the attached Confidential
Nondisclosure Agreement between Buyer and Seller to be signed concurrent
with this Agreement, attached hereto as Exhibit D, and shall not be
disclosed to any person other than their respective employees,
directors, legal counsel, accountants or financial advisors, with a need
to have access to such information.
17. Working Capital
Buyer agrees to supply operating capital for the New Business
Operations (as heretofore defined) when needed and as agreed to by the
parties, up to an amount of no less than $92,975.00, of which $5,000
shall be made available to INFe-Relations, Inc. for working capital
within two (2) days from the date hereof. The balance of the $87,975.00
shall be put in by Buyer as needed by the New Business Operations and
agreed to by the parties.
In witness whereof, the parties have executed this Agreement on
the day and year first above written.
XXXx.xxx, Inc. Xxxxxxxx0X.xxx, Inc.
By:___/s/Xxxxxx X. Richfield___ By:____/s/Xxxxx Cable______________
Name: Xxxxxx X. Richfield Name:
Its: President and C.E.O. Its:
By:____/s/Xxxxxxx Babcock_________
Name:
Its:
