Exhibit 10.1
PURCHASE AGREEMENT
BETWEEN
S.C.O. MEDALLION HEALTHY HOMES, LTD.
(A Canadian Corporation)
AND
THE OZONE MAN, INC
(A Florida Corporation)
PURCHASE AGREEMENT
BETWEEN
S.C.O. MEDALLION HEALTHY HOMES, LTD.
AND
THE OZONE MAN, INC
THIS PURCHASE AGREEMENT ("Agreement") dated as of February 23, 2008, is by and
between S.C.O. MEDALLION HEALTHY HOMES, LTD., a Canadian corporation ("Seller"),
and THE OZONE MAN, INC., a Florida corporation ("Buyer"), with its Executive
office at 0000 Xxxxxxxx Xxxx., Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000.
WITNESSETH THAT:
WHEREAS, Seller owns and operates a business of distributing, and marketing
ozone based air purification systems using proprietary Ultraviolet two gas
system lamps with certain selected sublicenses, and licenses/franchises
worldwide. This system is capable of purifying indoor air pollution both at
home and in the workplace (the "Medallion System"). The "Medallion System" is a
methodology employing ozone to purify indoor air in a safe yet effective manner
that ensures that odors, germs, viruses, allergens, VOC'S, pet dander, and mold
are controlled/eliminated, inactivated or killed returning "sick homes or
workplaces" to a condition conductive to healthy living. The company's business
is throughout Canada, United States, and internationally; and
WHEREAS, Buyer is engaged in the business of inspection, indoor air testing,
ozone treatment and the selling of accessory indoor air sanitizing products l
icensing a product and service incorporating a technology system that utilizes
ozone applications as a purification method to clean, sanitize, and purify the
air you breath in all environments; and
WHEREAS, Seller desires to sell and to cause the sale of, such assets and rights
of the business to Buyer, and Buyer desires to purchase from Seller certain of
Seller's assets and rights used in or relating to the Business (as described
herein) under the terms and conditions hereinafter set forth; and in addition
included is:
1. Six documented studies showing the elimination and
control of mold and VOC's (volatile organic compounds like formaldehyde).
2. A complete training Manual explaining the
methodology and safety procedures.
3. Training will include a minimum of three sample
sites, 8 hours of classroom and hands on instruction of all equipment and a test
to insure all procedures are understood. All training to be at the expense of
the buyer.
4. Immediate access to a trained Medallion technician
to insure all your questions are answered quickly and correctly.
5. Access to all new developments and techniques by
Medallion and right of first refusal on new products.
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants, promises, and agreements contained herein, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 "Agreement"- shall mean this Purchase Agreement.
1.2 "Assets"- shall mean all of the Medallion methodology including specified
rights, title and interest that the Seller possesses in and to all of the
following described properties, assets and rights used or useful in connection
with the Business as the same shall exist on the Closing Date:
i. all Intellectual property for the Medallion methodology included but not
limited to patents, trademarks, applications, extensions, copyrights,
methodology equipment and technologies related to the business also included
are prototypes, which specifically relate to the products or services of the
Business Exhibit 1 attached hereto;
ii. All goodwill associated with the Business; and
1.3 "Books and Records"- shall mean all books, records, trade secrets, customer
lists, supplier lists, marketing materials, creative materials, advertising,
promotional, studies, reports, and all other intangible personal property rights
of the Seller which relate to the Purchase Agreement.
1.4 "Close" or "Closing"- shall mean the consummation of the transactions
contemplated hereby.
1.5 "Closing Date"- shall mean February 23, 2008, at 10:00 a.m., or as otherwise
described herein or agreed to by the parties to this Agreement, at the offices
of THE OZONE MAN, INC.
1.6 "Damages"- shall have the meaning set forth in Section 4 in the
Indemnification Agreement.
1.7 "Disputed Item"- Any of the terms, Items, Warranties or conditions set
forth in the Purchase Agreement.
1.8 "Knowledge"- shall mean actual knowledge after reasonable investigation.
1.9 "Material Breach"- shall mean when used with reference to damage, losses and
expenses, and those damages, losses and expenses, which exceed $5,000.00 U.S.
Dollars.
1.10 "Permits and Licenses"- shall mean all government permits, licenses,
authorizations, and approvals which are transferable and possessed by Seller and
used in the operation of the Business.
1.11 "Purchase Price"- shall have the meaning set forth in Section 2.2 below.
SECTION 2. AGREEMENT
2.1 Purchase and Sale of Assets
Subject to the terms and conditions of this Agreement, and in reliance on the
representations, warranties and agreements contained herein, on the Closing
Date, Seller shall sell, convey, assign, transfer and deliver or cause to be
sold, conveyed, assigned, transferred and delivered to Buyer, and Buyer shall
purchase and acquire from Seller, the Medallion methodology system and all
marketing material, studies and information required to operate the methodology
system. The Assets existing as of the Closing Date free and clear of any title
defect, mortgage, assignment, pledge, hypothecation, security interest, title or
retention agreement, levy, execution, seizure, attachment, garnishment, deemed
trust, lien, easement, option, right or claim of others, or charge or
encumbrance of any kind whatsoever (each, an "Encumbrance") in exchange for the
Purchase Price. Exception: All Canadian franchises that have been assigned are
exempt from this provision.
2.2 Purchase Price
The purchase price to be paid by buyer for the purchase of the assets shall be
SIXTY Thousand Dollars U.S. ($60,000).
2.3 Consulting Agreement
The Ozone Man, Inc. will enter into Consulting Agreements with Xxx Xxxxxxx.
SECTION 3. CLOSING
The Closing shall occur at the offices of The Ozone Man, Inc., at 10:00 a.m.
Pacific Standard Time on the Closing Date, or on such other date or at such
other location(s) or starting at such other time as the parties shall agree.
The Closing conditions are as follows:
a) Seller obtains consents for the transfer of all contracts,
b) Seller represents that the warranties and representations are true and
that there are no legal proceedings initiated to restrain these transactions,
c) Buyer warrants that it has competed its due diligence, and
d) Buyer has received their own legal opinion.
SECTION 4. INDEMNIFICATION AGREEMENT
INDEMNIFICATION BY SELLER
4.1 Breach of Seller's Warranties. Seller agrees to indemnify, defend and
hold harmless Buyer and its shareholders, officers and directors, Affiliates,
agents and employees from and against and in respect of any and all losses,
damages, claims, liabilities, actions, suits, proceedings and costs and expenses
of defense thereof, including reasonable attorneys' fees (a "Loss"), suffered or
incurred by any such party by reason of or arising out of breach of the several
representations and warranties of Seller set forth herein, subject to each of
the terms, conditions and limitations set forth in Section 5 hereof,
4.2 Liabilities; Breach of Covenants. Seller agrees to indemnify and hold
harmless Buyer and its shareholders, officers and directors, Affiliates, agents
and employees from and against and in respect of any and all damages, losses or
expenses suffered or incurred by any such party as a result of any and all
claims, demands, suits, causes of action, proceedings, judgments and
liabilities, including reasonable counsel fees incurred in litigation or
otherwise, assessed, incurred or sustained by or against any of them with
respect to or arising out of (i) the "Sellers Liabilities" or (ii) any breach
by Seller of any covenant of Seller hereunder. Seller agrees to indemnify Buyer
against all claims, demands, damages or costs including attorney fees that
Buyer, its affiliates and their respective directors, officers, employees and
shareholders may incur by reason of this Purchase Agreement.
Seller agrees at their sole cost and expense, jointly and severally to
indemnify, protect, hold harmless and defend Buyer from and against any and all
claims and losses against Buyer arising out of the use of any and all assets
contained in this Purchase Agreement and shall be liable for damages to Buyer
for any breach of this Agreement.
4.3 Notice of Claim; Right to Defend. Buyer shall give to each of Seller prompt
written notice of any claim, suit or demand which Buyer believes will give rise
to a claim for indemnification under either Section 4.1 or Section 4.2
hereunder; provided, however, that the failure of Buyer to give such prompt
written notice shall not affect the liability of Seller hereunder, except to
the extent that the rights of Seller to defend itself or to cure or mitigate
the damages are actually prejudiced thereby. Thereafter, Buyer shall furnish to
Seller, in reasonable detail, such information as it may have with respect to
such claim; action, suit or proceeding, including copies of any summons,
complaint or other pleading which may have been served upon it or any written
claim, demand, invoice, billing or other document evidencing or asserting the
same. Buyer shall designate in writing all information and documents, which it
furnishes to Seller pursuant to this Section 4.3 as being with respect to a
claim, action, suit or proceeding under this Section 4.3. Provided Seller,
within ten (10) days after receipt of such written notice from Buyer, shall
acknowledge in writing to Buyer Seller's assumption of responsibility for
defense and indemnification with respect to such claim, action, suit or
proceeding, Seller shall have the right to assume defense of such claim,
action, suit or proceedings through counsel selected by Seller at Seller's
expense, and to contest or compromise such claim, action, suit or proceeding.
Upon such assumption of defense by Seller, Buyer shall cooperate with Seller
in Seller's conduct of such defense to the extent reasonably requested by
Seller and at Seller's expense and, so long as Seller is defending such claim,
action, suit or proceeding, Buyer shall not settle or compromise the same.
Without the prior written consent of Buyer, Seller shall not be entitled to
settle any claim, action, suit or proceedings the defense of which has been
assumed by Seller if (i) the Losses to Buyer are not fully covered by the
indemnities provided herein, or (ii) such settlement might have a Material
Adverse Effect or impose any material condition or limitation on the business,
operations, prospects or condition (financial or otherwise) conducted by Seller
as of the Closing Date, as continued by Buyer.
4.4 Limitations on Seller Indemnification. Notwithstanding anything contained
herein to the contrary, Buyer shall not be entitled to indemnification for
Losses under the provisions of Section 4.1 hereof, (i) unless it shall have
given written notice to Seller, setting forth its claim for indemnification in
reasonable detail. Buyer shall be entitled to such indemnification for all
losses. This clause (ii) shall not limit or reduce any claim for indemnification
of losses resulting from a breach of the representations and warranties
contained in section 5.
Nothing contained herein shall be deemed to create an affirmative obligation on
the part of buyer to submit a claim to its insurance carrier with respect to any
loss for which seller is obligated to provide indemnification to buyer
hereunder.
4.5 Personal Indemnification: Nothing contained herein shall subject the parties
Xxx Xxxxxx and Xxxxxx Xxxxx or Xx. Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx, Esq.
to any personal liability in this Purchase Agreement.
SECTION 5. REPRESENTATIONS AND
WARRANTIES OF SELLER
Seller represents and warrants to Buyer that:
5.1 Organization
Seller is a Canadian corporation duly organized, validly existing and in good
standing under the laws of The Province of British Columbia, Canada. Exhibit 2.
5.2 Authority
A. Authority Generally
Seller has the full right, power and authority (including full corporate power
and authority) to execute and deliver this Agreement and to perform Seller's
obligations hereunder, and to carry out the transactions contemplated in this
Agreement, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally.
The Agreement and related agreements including a xxxx of sale, assignment, and
assignment agreement for intellectual properties being transferred to buyer
constitutes the valid and legally binding obligation of the Seller, enforceable
in accordance with its terms and conditions.
B. Noncontravention
Neither the execution and the delivery of this Agreement, nor the consummation
of the transactions contemplated hereby, will (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any government, governmental agency, or court to which
Seller is subject or any provision of the Seller's Articles of Incorporation or
By-laws, or (ii) conflict with, result in a breach or constitute a default
under, result in the acceleration of, result in the creation of any Encumbrance
upon the Assets, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice, authorization, consent, approval, exemption
or other action under any of the Contracts or to which any of the Assets are
subject, except where the violation, conflict, breach, default, acceleration,
termination, modification, cancellation, or failure to give notice, would not
have a material adverse effect on the assets or the financial condition of Buyer
taken as a whole or on the ability of the parties to consummate the transactions
contemplated by this Agreement. Without limiting the generality of the
foregoing, the transfer of the Assets to the Buyer is not subject to any bulk
sales law. Seller is responsible for making all compliance filings and the
payment of all taxes.
5.3 Compliance with Laws
The Business has been conducted in compliance with all applicable laws and
regulations of foreign, federal, state and local governmental authorities.
Seller holds, and is in compliance in all material respects with, all licenses,
permits, and authorizations necessary for the conduct of Seller's Business or
Assets pursuant to applicable statutes, laws, ordinances, rules, regulations,
codes, or any law of any governmental body, agency, commission, or unit to
which the Seller and/or the Business or Assets may be subject, the failure of
which would have a Material adverse effect on the Business and such licenses,
permits and authorizations which are transferable to Buyer, and are so
transferred, will be in full force and effect following the Closing. Seller has
not received any notice of any alleged violation of any such statute, order,
rule, regulation, or requirement in connection with the operation of the
Business or the Assets.
5.4 Governmental Approvals
Except for (a) necessary corporate action and (b) consents obtained with respect
to the assignment to Buyer of the Contracts and Distribution Agreements, no
order, permission, consent, approval, license, authorization, registration or
validation of, or filing with, or exemption by any governmental agency,
commission, board or public authority, or any other person is required to
authorize, or is required in connection with, the execution, delivery or
performance by the Seller of this Agreement, or any other agreement or
instrument to be executed or delivered by Seller herewith.
5.5 Books and Records
Seller's Books and Records (including customer order files, employment records)
for the Business are complete, true and correct in all material respects.
5.6 Accuracy of Representations and Warranties
The copies of all instruments, agreements, or other documents and written
information relating to the Business or the Assets delivered to Buyer by Seller
or Seller's representatives pursuant to or in connection with this Agreement
are or shall be complete and correct in all material respects as of the date of
this Agreement and as of the Closing Date, not withstanding the closing date of
this agreement all representations and warranties shall survive in full force
and effect and remain enforceable. No representation, warranty, or statement of
Seller omits or will omit to state any material fact necessary to make such
representation, warranty, or statement in this Agreement accurate and not
misleading in any material respect.
5.7 Tax Reports, Returns and Payments.
There are no security interests on any of the Assets that arose in connection
with any failure (or alleged failure) by Seller to pay any Tax, and Seller has
withheld and paid all Taxes required to have been withheld and paid in
connection with amounts paid or owing to any employee employed by the Business,
independent contractor, creditor, or other third party with respect to the
Business. Seller has charged, and collected all taxes due and owing to all
government agencies from customers.
5.8 Assignment of Interests and Other Commitments
A. Assignment of Interest of the Intellectual Property, for the
Medallion Technology
Exhibit 1 sets forth the Assignment of Interest of the Intellectual Property for
the Medallion Technology (true and correct copies of each have been delivered to
Buyer). Seller has not received notice from any person who is a party to any
Assignment of Interest of the Intellectual Property for the Medallion
Technology, and Seller has no reason to believe, that Seller is in default of
any of the terms, conditions or provisions of any Assignment of Interest of
the Intellectual Property for the Medallion Technology and Seller has not
received notice from any party thereto with respect to the same. The Assignment
of Interest of the Intellectual Property for the Medallion Technology is valid,
binding and enforceable in accordance with its terms, and no condition exists
that (with the passage of time, the giving notice, or both) would lead to a
default with respect to, or permit any party thereto to terminate, accelerate
or amend any such agreement, and Seller has performed in all material respects
all of its obligations under the Assignment of Interest of the Intellectual
Property for the Medallion Technology, in accordance with its terms.
The Assignment of Interest of the Intellectual Property for the Medallion
Technology are all of Seller's Contracts relating to the Business which to the
best of Seller's knowledge, are necessary for the operation of the Business as
presently conducted by Seller.
B. Assignability of Contracts
Except as set forth on Exhibit 1, respectively, the consent or approval of the
other contracting party to any Assignment of Interest of the Intellectual
Property for the Medallion Technology is not required.
C. Product Warranties
There has not occurred any event that may give rise to liability on the part of
the Seller in respect of any claim that any of the products produced or sold on
the part of Seller in connection with the Business (i) is not or was not at the
time of such occurrence in compliance in all material respects with all
applicable federal, state, local and foreign laws and regulations or (ii) is
not or was not at the time of such occurrence fit for use, and does not or did
not conform in all material respects to any promises or affirmations of fact
made on the container or labels for such Product or in connection with its
sale. There has not occurred any event that may give rise to liability on the
part of the Buyer based on any claim that there is or was at the time of such
occurrence any design defect with respect to any of such products or that any
of such products fails or failed to contain adequate warning, presented in a
reasonably prominent manner, in accordance with applicable laws and current
industry practice with respect to its contents and use, or that any such
product fails to meet contract specifications.
D. Confidentiality, Non-Disclosure, and Non-Circumvention Agreement.
Confidentiality, Non-Disclosure & Non-Circumvention Agreement made effective the
13th day of July 2007 by and between Xxxxxx X. Xxxxx, President and CEO of The
Ozone Man, Inc., a Nevada Corporation (now a Florida Corporation) and Xxx
Xxxxxxx, President and CEO of S.C.O. Medallion Healthy Homes LTD., is herein
incorporated by reference and is attached as Exhibit 8.
E. Acknowledgement of Non-Compete Clause.
Seller represents and warrants to Buyer: Neither Seller, Xxx Xxxxxxx, Xxxxxx
Xxxxx or their respective affiliates will compete directly or indirectly with
Buyer in the operation of the Business for a period of Ten (10) years, except
for the current air testing and treatment business of Xxxxxx Xxxxx.
5.10 Title of Assets
A. Assets Generally
Seller has good and marketable title to all of the Assets, free and clear of
all Encumbrances.
B. Governmental Code Violations
Seller has not received any notices from any city, village or other governmental
authority of, and Seller has no Knowledge of the basis of, any fire hazard
caused by the equipment or health code violations in respect to manufacturing
and operation of the manufacturing facility that have not been heretofore
corrected.
5.11 Employment Matters
There are no Employees.
5.12 Environmental
A. All of Seller's past disposal practices relating to hazardous substances
and hazardous wastes have been accomplished in accordance with all applicable
laws, rules, regulations, and ordinances.
B. Seller has not been notified of nor is there any basis for any potential
liability of Seller with respect to the clean-up of any waste disposal site or
facility, and has not obtained any information to the effect that any site at
which it has disposed of hazardous substances or oil has been or is under
investigation by any local, state or federal governmental body, authority
or agency.
5.13 Advertising
Neither any advertising by Seller nor any promotional material used by Seller
at any time has contained any material untrue or misleading statements or claims
with respect to the products or services of the Business.
All Ozone generators referred to in the Medallion Catalog have been tested with
calibrated ozone measuring devices in respect to the parts per million outputs
in each generator. The output that is stated in the seller's equipment catalog
is certified to be accurate and correct.
Seller confirms that the attached schedules are complete, correct, and
not misleading.
5.14 Broker's fees
Seller has no liability or obligation to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions contemplated by this
Agreement for which Buyer could become liable or obligated.
5.15 Patents, Trademarks, Trade Names, Trade Secrets, Etc.
Except for the trade names and trademarks identified on Schedule 6.25, Seller
does not own or use in connection with the Business (a) any patents, trademarks
(registered or unregistered), trade names, assumed names and copyrights, nor has
it on file any applications therefore, (b) any licenses, permissions and other
agreements relating to intellectual property used in the Business; or (c) any
agreements relating to technology, know-how or processes used in or necessary
for the conduct of the Business. Seller as a condition precedent to consummate
this agreement must secure the sole and exclusive right, free from any liens,
mortgages, security interests, charges or encumbrances, to use the trade names,
assumed names, technology, copyrights (other than copyrights licensed under the
Distribution Agreements and any other non-exclusive software licenses held by
Seller), know-how and processes and all trade secrets required for or incident
to the conduct of the Business where currently conducted, and the consummation
of the transactions contemplated hereby will not alter or impair any such
rights. No claims have been asserted by any person with respect to the
ownership, validity, enforceability or use of any or of any confusingly similar
or dilutive trade names, assumed names, copyrights, applications therefore,
technology, know-how, processes or trade secret or challenging or questioning
the validity or effectiveness of any such license, permission or agreement and,
to the Knowledge of Seller, there is no valid basis for any such claim, and the
use or other exploitation of such trade names, assumed names, copyrights,
applications therefore, technology, know-how, processes and trade secrets by
Seller, to the Knowledge of Seller, does not infringe on or dilute the rights
of any person; and, to the Knowledge of Seller, no other person is infringing
the rights of Seller with respect to such trade names, assumed names,
copyrights, applications therefore, technology, know-how, processes or trade
secrets. Seller represents that it pays no royalties or fees on the intellectual
property being transferred. All intellectual property is properly registered,
valid and currently maintained. Seller has taken all reasonable steps to protect
the intellectual properties.
SECTION 6. REPRESENTATIONS AND
WARRANTIES OF BUYER
Buyer represents and warrants to Seller that:
6.1 Organization
Buyer is a Florida corporation, validly existing and in good standing under the
laws of the State of Florida. See schedule 9.1.5 Certificate of Good Standing
in the State of Florida and additional documents.
6.2 Authority
A. Authority Generally
Buyer has the full right, power, and authority to execute and deliver this
Agreement and to perform Buyer's obligations hereunder. Without limiting the
generality of the foregoing, Buyer's Board of Directors has duly authorized
the execution, delivery, and performance of this Agreement by the Buyer. The
Agreement constitutes the valid and legally binding obligation of the Buyer,
enforceable in accordance with its terms and conditions, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally.
B. Non-Contravention
Neither the execution and the delivery of this Agreement, nor the consummation
of the transactions contemplated hereby (including the assignments and
assumptions referred to in Section 3 above), will (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any government, governmental agency, or court to which
Buyer is subject or any provision of the Buyer's Articles of Incorporation or
Bylaws, or (ii) conflict with, result in a breach or constitute a default under,
result in the acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any agreement,
contract, lease, license, instrument, or other arrangement to which Buyer is a
party or by which it is bound or to which any of its assets is subject, except
where the violation, conflict, breach, default, acceleration, termination,
modification, cancellation, or failure to give notice, would not have a Material
adverse effect on the financial condition of Buyer taken as a whole or on the
ability of the parties to consummate the transactions contemplated by
this Agreement.
6.3 Litigation: No Adverse Conditions
There are no actions, suits or proceedings pending, or to Buyer's Knowledge,
threatened or anticipated before any court or governmental or administrative
body or agency affecting Buyer, Buyer's property, or Buyer's ability to
consummate the transaction contemplated by this Agreement.
1.12 Broker's Fees
Buyer has no liability or obligation to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions contemplated by this
Agreement for which Seller could become liable or obligated.
6.4 Accuracy of Representations or Warranties
All of Buyer's warranties and representations as hereinabove stated shall be
true on the Closing Date and the same shall survive the Closing and be deemed
incorporated, whether explicitly stated therein or not, into all documents or
other instruments delivered by Buyer to Seller at the Closing. No
representation, warranty, or statement of Buyer omits or will omit to state any
material fact necessary to make such representation, warranty, or statement in
this Agreement accurate and not misleading in any material respect.
SECTION 7. ADDITIONAL COVENANTS
The parties agree as follows with respect to the period after the Closing:
7.1 Mail and Remittances
After the Closing, all mail addressed to Seller and Buyer relating to their
respective businesses shall be delivered promptly by each party to the
other party.
SECTION 8. MISCELLANEOUS
8.1 Expenses
Except as otherwise provided in this Agreement and the indemnification
obligations of Seller each of the Buyer and Seller agrees to pay, without right
of reimbursement from any other, the costs incurred by such party incident to
the preparation and execution of this Agreement and performance of their
respective obligations hereunder, whether or not the transactions contemplated
by this Agreement shall be consummated, including, without limitation, the fees
and disbursements of legal counsel, accountants, and consultants employed by the
respective parties in connection with the transactions contemplated by this
Agreement; provided, however, that Seller shall pay sales and other transfer
taxes, if any.
8.2 Assign-ability
Neither party hereto may assign or transfer its rights and obligations under
this Agreement without the prior written approval of the other party; provided,
however, Buyer may assign Buyer's rights under this Agreement to an affiliate
of Buyer or as security to any of Buyer's lenders. This Agreement shall inure
only to the benefit of and be binding upon the parties hereto and their
respective successors and representatives and permitted assigns.
8.3 Applicable Law
This Agreement shall be construed, interpreted and enforced in accordance with,
and governed by, the laws of the State of California, the corporate headquarters
of The Ozone Man, Inc.
8.4 Counterparts
This Agreement may be executed in one or more counterparts, each of which will
be deemed to be an original, but all of which together shall constitute one and
the same instrument.
8.5 Entire Agreement
This Agreement and the agreements, instruments, schedules and other writings
referred to in this Agreement contain the entire understanding of the parties
with respect to the subject matter of this Agreement. There are no restrictions,
agreements, promises, warranties, covenants, or undertakings other than those
expressly set forth herein or therein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its
subject matter.
8.6 Amendments
This Agreement may not be amended, changed or terminated orally, and no
attempted change, termination or waiver of any of the provisions hereof shall be
binding unless in writing and signed by the party against whom the amendment,
change, termination or waiver is sought to be enforced.
8.7 Exhibits
Each exhibit hereto, shall be attached hereto, and shall be considered a part
hereof, as if set forth in the body hereof in full.
8.8 Negotiated Transactions
The parties negotiated the provisions of this Agreement hereto and said
agreement shall be deemed to have been drafted by all of the parties hereto.
8.9 Arbitration
If there is any dispute hereunder which cannot be resolved by the parties (a
"Disputed Item"), either party may seek a resolution by arbitration by applying
for an arbitrator to be appointed by the American Arbitration Association in
accordance with the rules and regulations of that association. In the event
arbitration is requested, both parties must proceed as quickly as possible to
arbitration and accept the results of same as final and binding. The losing
party in the arbitration shall pay all of the costs of the arbitration. In the
event that the results of the arbitration cannot be said to result in a winning
party and a losing party, the arbitrator shall decide how the costs and expenses
of the arbitration shall be borne by the parties hereto. Any judgment upon the
award rendered by the arbitrator shall be enforced in the District Court of Los
Angeles County, California.
8.10 Notices
All notices, claims, certificates, requests, demands and other communications
under this Agreement will be in writing and notices will be deemed to have been
duly given if delivered or mailed, registered or certified mail, postage
prepaid, return receipt requested or for overnight delivery by a nationally
recognized overnight mail service, as follows:
If to Buyer, to: THE OZONE MAN, INC.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention; Xx. Xxxxxx X. Xxxxx
With a copy to: Attorney Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
If to Seller, to: S.C.O. MEDALLION HEALTHY HOMES LTD
00000 Xxxxxxx Xxxxx Xxxx
Xxxxx Xxxxx, XX
X0X0X0
XXXXXX
With a copy to: Xxx Xxxxxxx
S.C.O. Medallion Healthy Homes Ltd
00000 Xxxxxxx Xxxxx Xxxx
Xxxxx Xxxxx, XX
X0X0X0
XXXXXX
or to such other address as the party to whom notice is to be given previously
may have furnished to the other party in writing in the manner set forth in
this Section,
8.11 Joint Press Release
The Seller and Buyer shall agree upon the form and substance of (a) a joint
press release or other public announcement of this Agreement and the
transactions contemplated hereby and (b) other matters including, but not
limited to, form letters to customers, related to this Agreement or any of the
transactions contemplated hereby which shall be released on or after the
Closing; provided, however, that nothing in this Agreement shall be deemed to
prohibit any party hereto from making any disclosure which its counsel deems
necessary or advisable in order to fulfill such party's disclosure obligations
imposed by law or contract. The parties confirm that the joint press release/
announcement complies with SEC rules and laws.
8.12 Severability
If any term, condition, or provision of this Agreement shall be declared invalid
or unenforceable, the remainder of the Agreement, other than such term,
condition, or provision, shall not be affected thereby and shall remain in full
force and effect and shall be valid and enforceable to the fullest extent
permitted by law.
8.13 Non-Assignable Assets
Notwithstanding anything contained in this Agreement to the contrary, this
Agreement shall not constitute an agreement or an attempted agreement to
transfer, sublease or assign any contract, license, lease, commitment, sales or
purchase order or any other agreement or any claim, right or benefit arising
thereunder or resulting therefrom if any such attempted transfer, sublease or
assignment without the consent of any other party thereto would constitute a
breach thereof or would in any way adversely affect the rights of Buyer
thereunder. Seller shall, between the date hereof and the Closing Date (and,
if requested by Buyer, after the Closing Date), use its commercially
reasonable best efforts to obtain the consent of any party or parties to any
such contracts, licenses, leases, commitments, sales orders, purchase orders or
other agreements to the transfer, sublease or assignment thereof by Seller to
Buyer or Buyer's designees hereunder in all cases in which such consent is
required. If any such consent is not obtained, or if an attempted assignment
would be ineffective or would affect the rights of Seller thereunder such that
Buyer would not in fact receive all such rights, Seller shall perform such
agreement for the account of Buyer or otherwise cooperate with Buyer in any
arrangement necessary or desirable to provide for Buyer or its designees the
benefits of any such agreement, including without limitation enforcement for the
benefit of Buyer of any and all rights of Seller against the other party thereto
arising out of the breach, termination or cancellation of such agreement by such
other party or otherwise. Notwithstanding any of the provisions of this Section
8.14 nothing herein shall be deemed to waive or excuse any obligation on the
part of Seller, or any condition for the benefit of Buyer, to obtain any
necessary consents of any person or entity to the assignment to Buyer of any of
the Assets or any contract, license, lease, commitment, order or other agreement
required to be assigned hereunder.
8.14 Further Assurances
From time to time after the Closing, Seller will execute and deliver, or cause
its affiliates to execute and deliver, to Buyer such instruments of sale,
transfer, conveyance, assignment and delivery, and such consents, assurances,
powers of attorney and other instruments as may be reasonably requested by Buyer
or its counsel in order to vest in Buyer all right, title and interest of Seller
in and to the Assets and otherwise in order to carry out the purpose and intent
of this Agreement.
8.15 Specific Performance
Each of Buyer and Seller acknowledges and agrees that the other would be damaged
irreparably in the event any of the provisions of this Agreement are not
performed in accordance with their specific terms or otherwise are breached,
and each of Buyer and Seller shall be entitled to enforce specifically this
Agreement and the terms and provisions thereof in any action instituted, in any
court of the United States or obtain any equitable remedies any state thereof
having jurisdiction over Buyer and Seller and the matter, subject to Section
8.17 below, in addition to any other remedy to which they may be entitled, at
law or in equity.
8.16 Jurisdiction
Subject to Section 8.10, Buyer and Seller each hereby submits to the
jurisdiction of any state or federal court sitting in San Francisco, California
(with respect to State Court) or Federal District Court of California, (with
respect to federal court), in any action or proceeding arising out of or
relating to this Agreement and agrees that all claims in respect of the action
or proceeding may be heard and determined in any such court. Buyer and Seller
each agree not to bring any action or proceeding arising out of or relating to
this Agreement in any other court. Each of the parties waives any defense of
inconvenient forum to the maintenance of any action or proceeding so brought
and waives any bond, surety, or other security that might be required of any
other party with respect thereto.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be duly
executed as of the date first written above
S.C.O. MEDALLION HEALTHY HOMES, LTD.
By: _______________________]
Name: Xxx Xxxxxxx
Title: CEO & President
By: ______________________________] By: _______________________]
Name: Name: Xxxxxx Xxxxx
Title: SCO-Medallion Board Member Title: SCO-Medallion Board Member
THE OZONE MAN, INC.
By: _______________________]
Name: Xx. Xxxxxx X. Xxxxx
Title: CEO & President
