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Exhibit 10.9
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement") dated as of December 24, 1999
by and between Xxxxxx X. Xxxxxx ("Xxxxxx") and Xxxxxxxx Xxxxxxxxx ("Borgonovo")
("Sellers") and Peachtree FiberOptics, Inc., a Delaware corporation
("Purchaser"). Definitions of capitalized terms used in Articles 1 through 7
herein which are not otherwise defined are set forth in Section 8.1.
W I T N E S S E T H:
WHEREAS, the Sellers own all of the membership interests (the
"Interests") in Pinnacle Capital Group, L.C., a Florida limited liability
company (the "Company"); and
WHEREAS, in reliance upon the representations, warranties and covenants
contained in this Agreement, Purchaser desires to purchase the Interests from
Sellers;
NOW, THEREFORE, in consideration of the foregoing premises, and the
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as follows:
ARTICLE 1.
PURCHASE AND SALE OF INTERESTS
SECTION 1.1 PURCHASE AND SALE. Subject to the provisions of this
Agreement, on the Closing Date (as hereinafter defined), Purchaser shall
purchase from Sellers, and Sellers shall sell to Purchaser, the Interests in
consideration of the Purchase Price.
SECTION 1.2 PURCHASE PRICE. The aggregate purchase price (the "Purchase
Price") for the Interests shall be:
Each Seller will be issued a warrant (collectively, the
"Warrants") with each Warrant giving the holder the right to purchase 5,000
shares of Purchaser's common stock, exercisable for a period of five years
following the Closing Date (defined below) at an exercise price of $2.50 per
share, pursuant to the form of Warrant Certificate attached hereto as Exhibit A.
ARTICLE 2.
CLOSING
SECTION 2.1 THE CLOSING. The consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place one business day
after NASD approval of the sale of the Company to Purchaser at the offices of
Cohen, Berke, Xxxxxxxxx, Xxxxxx & Kondell, P.A., 0000 Xxxxx Xxxxxxxx Xxxxx,
Xxxxx 0000, Xxxxx, Xxxxxxx 3313 with the execution of this Agreement. The date
of the Closing shall be referred to as the "Closing Date".
SECTION 2.2 DELIVERIES AT CLOSING. At the Closing:
(a) There shall be delivered to the Sellers;
(i) the Warrants;
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(ii) Certificate of good standing of Purchaser;
(iii) Certified Resolutions of the Board of
Directors of Purchaser approving all
transactions contemplated herein.
(b) There shall be delivered to Purchaser:
(i) An assignment of the Interests executed by
each of the Sellers;
(ii) Certificate of good standing of the Company;
(iii) Executed certificates required by Section
5.2.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company, Xxxxxx and Borgonovo represent and warrant to Purchaser as
follows:
SECTION 3.1 STATUTORY EXISTENCE AND POWER. The Company is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Florida, and has all requisite corporate powers and all
material Permits required to carry on the Business as now conducted. The Company
is not qualified to do business as a foreign corporation in any jurisdiction.
The Company does not directly or indirectly own any interest or investment in
any other person.
SECTION 3.2 AUTHORITY RELATIVE TO THIS AGREEMENT. Each Seller has full
power, capacity and authority to execute and deliver this Agreement and each
other Transaction Document to which he is a party and to consummate the
transactions contemplated hereby and thereby (the "Contemplated Transactions").
This Agreement and the other Transaction Documents to which Sellers are a party
have been duly and validly executed and delivered by each of the Sellers and
(assuming the valid execution and delivery thereof by the other parties thereto)
constitute the legal, valid and binding agreements of the Sellers enforceable
against them in accordance with their respective terms.
SECTION 3.3 NO CONFLICTS, CONSENTS. The execution, delivery and
performance by the Sellers of this Agreement and each other Transaction Document
to which they are a party, the consummation of the Contemplated Transactions to
which they are a party will not (i) violate any provision of the Articles of
Organization, Regulations, Operating Agreement or other charter document or
agreement among the Members of the Company; (ii) require the Sellers to obtain
any consent, approval or action of or waiver from, or make any filing with, or
give any notice to, any Governmental Body or any other Person other than the
NASD; (iii) violate, conflict with or result in a breach or default under (after
the giving of notice or the passage of time or both), or permit the termination
of, any Contract to which the Company is a party or by which it or any of their
Assets may be bound or subject, or result in the creation of any Lien upon any
of the Assets of the Company pursuant to the terms of any such Contract; or (iv)
violate any Law or Order of any Governmental Body against, or binding upon, the
Company or upon its Assets or the Business; or (v) violate or result in the
revocation or suspension of any Permit.
SECTION 3.4 CHARTER DOCUMENTS AND CORPORATE RECORDS. The Company has
heretofore delivered to Purchaser true and complete copies of the Articles of
Organization, Regulations, Operating Agreement and other charter documents and
agreements among the Members of the Company, as in effect on the date hereof.
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The minute and transfer books of the Company have been made available to
Purchaser for inspection and are true and complete.
SECTION 3.5 FINANCIAL INFORMATION. The Company has furnished to
Purchaser true and complete copies of (i) the Company's unaudited financial
statements at and for the calendar years ended December 31, 1998 (the "Annual
Statements"), (ii) the Company's unaudited financial statements at and for each
calendar quarter of 1999 through September 30, 1999, (iii) all management
letters, and attorney audit response letters, if any, issued in connection with
the Company's financial statements for each of the three years comprising the
Annual Statements, (iv) all Focus reports and other filings and
financially-related correspondence with the NASD, and (v) a balance sheet dated
as of November 30, 1999 (the "Latest Balance Sheet"). Each financial statement
presents fairly the financial position of the Company as of its date and its
earnings for the periods then ended. Each delivered balance sheet fully sets
forth all Assets and Liabilities of the Company existing as of its date which,
under GAAP, should be set forth therein, and each delivered statement of
earnings sets forth the items of income and expense of the Company which should
appear therein under GAAP. All financial and accounting books, ledgers, accounts
and official and other records relating to the Company have been properly and
accurately kept and completed in all material respects.
SECTION 3.6 LIABILITIES. Except as and to the extent reflected in the
Latest Balance Sheet, to Sellers' knowledge, the Company does not have any
Liabilities or obligations. Except Liabilities reflected on the Latest Balance
Sheet, there has been (i) no material adverse change in the Assets or
Liabilities, or in the Business or condition of the Company, financial or
otherwise, or the result of operations of the Company, and (ii) no change in the
Assets or Liabilities or in the Business or condition of the Company, financial
or otherwise, or in the results of operations or prospects of the Company,
except in the ordinary course of business; and (iii) no factor or condition
exists or, to the Company's knowledge and belief, is contemplated or threatened,
which might cause such a change in the future.
SECTION 3.7 RECEIVABLES. All Receivables of the Company are valid and
enforceable claims, constitute bona fide Receivables resulting from the sale of
goods and services in the ordinary course of the Business, and are not subject
to any defenses, offsets, returns, allowances or credits of any kind.
SECTION 3.8 ABSENCE OF CERTAIN CHANGES. Since the date of the Latest
Balance Sheet, the Company has conducted the Business in the ordinary course
consistent with past practices and there has not been: (a) any material adverse
change in the Condition of the Business or any event, occurrence or circumstance
that could reasonably be expected to cause such a material adverse change; (b)
any transaction or Contract with respect to the purchase, acquisition, lease,
disposition or transfer of any Assets or to any capital expenditure (in each
case, other than in the ordinary course of the Business in accordance with past
practice), in excess of $5,000; (c) any change in any method of accounting or
accounting practice by the Company; (d) any material adverse change in the
relationships of the Company with its customers, suppliers and vendors; or (e)
except in the ordinary course of the Business, consistent with past practice,
any payment, directly or indirectly, of and Liability before or after the same
became due in accordance with its terms.
SECTION 3.9 PROPERTIES. The Company has good and marketable title to
all of the Assets, including, without limitation, personal property used in the
Business, free and clear of all Liens. The equipment and other tangible personal
property constituting a part of the Assets (whether owned or leased), are in
good condition and repair (subject to normal wear and tear) and are adequate in
quantity and quality for the operation of the Business as presently conducted.
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SECTION 3.10 CONTRACTS.
(a) Schedule 3.10 sets forth an accurate and complete list of
all material Contracts to which the Company is a party or by which it or its
Assets are bound or subject. True and complete copies of all written Contracts
of the Company and summaries of the material provisions of all oral Contracts so
listed have been delivered to Purchaser.
(b) All Contracts listed on Schedule 3.10 are valid, existing,
in full force and effect and binding upon the Company and, to the knowledge of
Sellers, the other parties thereto in accordance with their terms. The Company
is not in material default (or alleged default) under any Contract, or, to the
knowledge of the Sellers, is any other party thereto in material default
thereunder, nor does any condition exist that with notice or the lapse of time
or both would constitute a material default (or give rise to a termination
right) thereunder. Since the Latest Balance Sheet Date, the Company has not
waived any right under any such Contract, amended or extended beyond June 30,
2000 any such Contract or terminated or failed to renew (or received notice of
termination or failure to renew with respect to) any such Contract. Schedule
3.10 further identifies all Contracts for which a third party consent or
notification is required for the assignment thereof by the Company to Purchaser
("Third Party Consents").
SECTION 3.11 INTANGIBLE PROPERTY. The Company does not own any patents,
trademarks, trade names, copyrights, Intellectual Property and service marks. In
particular, the Company does not have any proprietary rights in, or the right to
continue to use, the name "Pinnacle."
SECTION 3.12 CLAIMS AND PROCEEDINGS. There are no outstanding Orders of
any Governmental Body against or involving the Company or the Business. There
are no actions, suits, claims or counterclaims or legal, administrative or
arbitral proceedings or investigations (collectively, "Claims") (whether in
respect thereof are covered by insurance), pending or, to the knowledge of the
Sellers, threatened on the date hereof, against or involving the Company, any of
the Company's Assets or the Business.
SECTION 3.13 TAXES. The Company has timely filed or, if not yet due,
will timely file all Tax Returns required to be filed by it for all taxable
periods ending on or before the Closing Date and all such Tax Returns are true,
correct and complete in all material respects. The Company has paid or, if
payment is not yet due, will pay to the appropriate Tax Authority or has
established, in accordance with GAAP and consistent with past practice, accruals
that are reflected on the Latest Balance Sheet for the payment of, all Taxes of
the Company for all taxable periods ending on or before the Closing Date. No
extension of time has been requested or granted for the Company to file any Tax
Return that has not yet been filed or to pay any Tax that has not yet been paid.
The Company has not received notice of a determination by a Tax authority that
Taxes are owed by the Company (such determination to be referred to as a "Tax
Deficiency") and, to the knowledge of the Company, no Tax Deficiency is proposed
or threatened. All Tax Deficiencies, if any, have been paid or finally settled
and all amounts determined by settlement to be owed have been paid. There are no
Tax Liens on or pending against the Company or any of the Assets. There are no
presently outstanding waivers or extensions or requests for waiver or extension
of the time within which a Tax Deficiency may be asserted or assessed. No issue
has been raised in any examination, investigation, audit, suit, action, claim or
proceeding relating to Taxes (a "Tax Audit") which, by application of similar
principles to any past, present or future period, would result in a Tax
Deficiency for such period. There are no pending or, to the knowledge of the
Company, threatened Tax Audits of the Company. The Company has never been
required to include in income any adjustment pursuant to Section 481 of the Code
and no Tax authority has ever made or proposed any such adjustment. The Company
has maintained and has in its possession all records, supporting documents and
exemption certificates required by applicable sales Tax statutes and regulations
to be retained in connection with the collection and remittance of sales and use
Taxes for all periods up to and including the Closing Date. The Company shall be
responsible for the payment of all state and
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local Taxes arising from or relating to the sale of the Assets and the
Contemplated Transactions. The aforementioned nothwithstanding, if required, the
Sellers shall undertake to file the 1998 Federal tax return no later than
January 15, 2000.
SECTION 3.14 COMPLIANCE WITH LAWS. The Company is not in material
violation of any order, judgment, injunction, award, citation, decree, consent
decree or writ applicable to the Company (collectively, "Orders"), or any law,
statute, code, ordinance, rule, regulation or other requirement (collectively,
"Laws"), of any government or political subdivision thereof, whether federal,
state, local or foreign, or any agency or instrumentality of any such government
or political subdivision, or any court or arbitrator (collectively,
"Governmental Bodies") affecting its Assets or the Business.
SECTION 3.15 PERMITS. The Company has obtained all licenses, permits,
certificates, certificates of occupancy, orders, authorizations and approvals of
(collectively, "Permits"), and have made all required registrations and filings
with, any Governmental Body that are material to the conduct of the Business.
SECTION 3.16 FINDERS FEES. There is no investment banker, broker,
finder or other intermediary which has been retained by or is authorized to act
on behalf of the Company who might be entitled to any fee or commission from the
Company upon consummation of the Contemplated Transactions.
SECTION 3.17 FEES, COMMISSIONS AND ROYALTIES. The Company has no
relationships with any distributors, agents, partners, employees or other
representatives anywhere in the world which is entitled to fees, commissions,
royalties or any other payments as a result of the sale of the Company's
securities, products, services, or pursuant to its on going business, except as
described herein. Xxxx Xxxxxxx is entitled to one-third of any success fee
generated in connection with The Graduate Group, Inc.
SECTION 3.18 SOFTWARE. The Company does not own any of the software
used in connection with the Business.
SECTION 3.19 DISCLOSURE. Neither this Agreement, nor the Schedules
hereto, or any audited or unaudited financial statements, documents or
certificates furnished or to be furnished to Purchaser by or on behalf of the
Company pursuant to this Agreement contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
contained herein or therein not misleading.
SECTION 3.20 INSOLVENCY PROCEEDINGS. No insolvency proceedings,
including bankruptcy, receivership, reorganization, composition or arrangement
with creditors, are pending or threatened against the Company.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser makes the following representations and warranties to Xxxxxx
and Borgonovo:
SECTION 4.1 ORGANIZATION AND GOOD STANDING. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Florida and is duly qualified to do business in all states where its
activities make such qualification necessary.
SECTION 4.2 AUTHORITY. Purchaser has full power and has taken all
corporate action necessary to execute, deliver and perform this Agreement and to
carry out the transactions
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contemplated hereby. The execution, delivery and performance of the obligations
of Purchaser under this Agreement has been, or will be on the Closing Date, duly
and effectively authorized by Purchaser's Board of Directors and no further
corporate authority therefor or approval thereof is required by law.
SECTION 4.3 CONFLICTS. The execution, delivery and performance of this
Agreement shall not conflict with or result in the breach or violation of the
Purchaser's Articles of Incorporation, By-Laws or any contract, agreement,
lease, commitment, license, permit, authorization or concession to which it is a
party or by which it is bound, or any statute, rule, regulation, ordinance,
code, order, judgment, writ, injunction, decree or award of any court or
administrative or governmental body, or constitute an event which with notice,
lapse of time, or both, would result in any such breach, or violation and which
would have a material adverse effect on the Purchaser.
SECTION 4.4 CHARTER DOCUMENTS AND CORPORATE RECORDS. The Company has
heretofore delivered to Purchaser true and complete copies of the Articles of
Incorporation and Bylaws, as in effect on the date hereof.
ARTICLE 5.
CONDITIONS PRECEDENT TO CLOSING
SECTION 5.1 CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. All
obligations of the Sellers hereunder are subject, at the option of the Seller,
to the fulfillment prior to or at the Closing of each of the following
conditions:
(a) PERFORMANCE. Purchaser shall have performed and complied
in all material respects with all agreements, obligations and covenants required
by this Agreement to be performed or complied with by it at or pior to the
Closing Date.
(b) DOCUMENTATION. There shall have been delivered to the
Sellers the following:
(i) A certificate, dated the Closing Date, of the
Secretary or Assistant Secretary of Purchaser certifying, among other things,
that attached or appended to such certificate (A) is a true and correct copy of
its Articles of Incorporation and all amendments if any thereto as of the date
thereof; (B) is a true and correct copy of its By-laws as of the date hereof,
(C) is a true copy of all corporate actions taken by it, including resolutions
of its board of directors authorizing the execution, delivery and performance of
this Agreement, and each other document to be delivered by such party pursuant
hereto; and (D) are the names and signatures of its duly elected or appointed
officers who are authorized to execute and deliver this Agreement and any
certificate, document or other instrument in connection herewith.
(ii) Evidence of the good standing and corporate
existence of Purchaser as may be reasonably requested by the Sellers.
(c) MERGER. Purchaser shall have effectuated a merger with
Xxxxxxxx.xxx, Inc. and Union Atlantic, L.C., pursuant to which Purchaser is the
surviving corporation.
(d) DELIVERIES. All deliveries required to be made to the
Sellers pursuant to Section 2.2(a) shall have been made.
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SECTION 5.2 CONDITIONS TO THE OBLIGATIONS OF PURCHASER. All obligations of
Purchaser hereunder are subject, at the option of Purchaser, to the fulfillment
prior to or at the Closing of each of the following further conditions,
(a) PERFORMANCE. The Sellers shall have performed and complied
in all respects with all agreements, obligations and covenants required by this
Agreement to be performed or complied with by them at or prior to the Closing
Date.
(b) CONSENTS. All Required Consents and Third Party Consents
shall have been obtained.
(c) SCHEDULES. All schedules not delivered to Purchaser upon
execution hereof, and all updates to schedules delivered upon execution hereof,
shall have been delivered prior to Closing and accepted and agreed to by
Purchaser in its sole discretion.
(d) DOCUMENTATION. There shall have been delivered to
Purchaser the following:
(i) A certificate, dated the Closing Date, of the
President and Secretary of the Company certifying, among other things, that
attached or appended to such certificate (A) is a true and correct copy of its
Articles of Organization and all amendments if any thereto as of the date
thereof; (B) is a true and correct copy of its Regulations, Operating Agreement
or other charter documents and agreements among Members; (C) is a true copy of
all corporate actions taken by it, including resolutions of all of its members
and managers authorizing the execution, delivery and performance of this
Agreement, and each other document to be delivered by such party pursuant
hereto; and (D) are the names and signatures of its duly elected or appointed
officers who are authorized to execute and deliver this Agreement and any
certificate, document or other instrument in connection herewith.
(ii) Evidence of the good standing and corporate
existence of the Company.
(iii) Copies of all Required Consents and Permits.
(e) DELIVERIES. All deliveries required to be made to the
Company pursuant to Section 2.2(b) shall have been made.
ARTICLE 6.
INDEMNIFICATION
SECTION 6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
(a) All representations, warranties, covenants and agreements
contained in this Agreement shall survive the execution and delivery of this
Agreement and the Closing hereunder. Notwithstanding the foregoing, all
representations and warranties of the Sellers contained in this Agreement, on
any Schedule hereto or in any instrument delivered in connection with or
pursuant to this Agreement, the indemnification obligations of the Sellers in
respect of the matters specified in Section 6.2 shall terminate and expire two
years after the Closing Date; PROVIDED, however, that the liability of the
Sellers shall not terminate as to any specific claim or claims of the type
referred to in Section 6.2 hereof, whether or not fixed as to liability or
liquidated as to amount, with respect to which the Sellers have been given
specific notice on or prior to the date on which such liabilities would
otherwise terminate pursuant to the terms of this Section 6.1.
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(b) All representations, warranties, covenants and agreements
of Purchaser shall terminate and expire two years after the Closing Date,
provided, however, that the liability of Purchaser shall not terminate as to any
specific claim or claims of the type referred to in Section 6.3 hereof, whether
or not fixed as to liability or liquidated as to amount, with respect to which
Purchaser has been given specific notice on or prior to the date on which such
Liability would otherwise terminate pursuant to the terms of this Section 6.1.
SECTION 6.2 OBLIGATION OF THE SELLERS TO INDEMNIFY. The Sellers agree
to indemnify, defend and hold harmless Purchaser (and its respective directors,
officers, employees, Affiliates, successors and assigns) from and against all
Claims, losses, liabilities, damages, deficiencies, judgments, settlements,
costs of investigation or other expenses (including interest, penalties and
reasonable attorneys' fees and disbursements and expenses incurred in enforcing
this indemnification) (collectively, the "Losses") suffered or incurred by
Purchaser or any of the foregoing persons arising out of (i) any breach of the
representations and warranties of Xxxxxx and Borgonovo contained in this
Agreement or in the Schedules or any Transaction Document, or (ii) any breach of
the covenants and agreements of Xxxxxx and Borgonovo contained in this Agreement
or in the Schedules or any Transaction Document.
SECTION 6.3 OBLIGATION OF PURCHASER TO INDEMNIFY. Purchaser agrees to
indemnify, defend and hold harmless the Company, Xxxxxx and Borgonovo from and
against any Losses suffered or incurred by the Company, Xxxxxx and Borgonovo
arising out of any breach of the representations and warranties of Purchaser or
of the covenants and agreements of Purchaser contained in this Agreement or in
the Schedules or any Transaction Document.
SECTION 6.4 NOTICE AND OPPORTUNITY TO DEFEND THIRD PARTY CLAIMS.
(a) Promptly after receipt by any party hereto (the
"Indemnitee") of notice of any demand, claim, circumstance or audit which would
or might give rise to a claim or the commencement (or threatened commencement)
of any action, proceeding or investigation (an "Asserted Liability") that may
result in a Loss, the Indemnitee shall give prompt notice thereof (the "Claims
Notice") to the party or parties obligated to provide indemnification pursuant
to Section 6.2 or 6.3 (collectively, the "Indemnifying Party"). The Claims
Notice shall describe the Asserted Liability in reasonable detail and shall
indicate the amount (estimated, if necessary, and to the extent feasible) of the
Loss that has been or may be suffered by the Indemnitee. The rights of the
Indemnifying Party to defend Asserted Liabilities under Section 6.4(b) in the
case of Asserted Liabilities against the Company shall be exercised by the
Company.
(b) The Indemnifying Party may elect to defend, at its own
expense and with its own counsel, any Asserted Liability unless (i) the Asserted
Liability seeks an injunction or other equitable or declaratory relief against
the Indemnitee or (ii) the Indemnitee shall have reasonably concluded that there
is a conflict of interest between the Indemnitee and the Indemnifying Party in
the conduct of such defense. If the Indemnifying Party elects to defend such
Asserted Liability, it shall within thirty (30) days (or sooner, if the nature
of the Asserted Liability so requires) notify the Indemnitee of its intent to do
so, and the Indemnitee shall cooperate, at the expense of the Indemnifying
Party, in the defense of such Asserted Liability. If the Indemnifying Party
elects not to defend the Asserted Liability, is not permitted to defend the
Asserted Liability by reason of the first sentence of this Section 6.4(b), fails
to notify the Indemnitee of its election as herein provided or contests its
obligation to indemnify under this Agreement with respect to such Asserted
Liability, the Indemnitee may pay, compromise or defend such Asserted Liability
at the sole cost and expense of the Indemnifying Party. Notwithstanding the
foregoing, neither the Indemnifying Party nor the Indemnitee may settle or
compromise any claim over the reasonable written objection of the other,
provided that the Indemnitee may settle or compromise any claim as to which the
Indemnifying Party
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has failed to notify the Indemnitee of its election under this Section 6.4(b) or
as to which the Indemnifying Party is contesting its indemnification obligations
hereunder and provided further, that if any Indemnitee shall fail to consent to
the monetary terms of any proposed settlement or compromise of any Asserted
Liability, the Indemnifying Party shall not thereafter be obligated to pay the
Indemnitee in respect of such Asserted Liability under this Article 6 in excess
of the amount it would have been required to pay to the Indemnitee in connection
with such proposed settlement or compromise. In any event, the Indemnitee and
the Indemnifying Party may participate, at their own expense, in the defense of
any Asserted Liability. If the Indemnifying Party chooses to defend any Asserted
Liability, the Indemnitee shall make available to the Indemnifying Party any
books, records or other documents within its control that are necessary or
appropriate for such defense. Any Losses of any Indemnitee for which
indemnification is available hereunder shall be paid within thirty (30) days
following written demand thereof.
(c) The liability of each of the Sellers pursuant to this
Section 6.4 shall be limited to the lesser of (i) the market value of his
Warrant on the Closing Date or (ii) the market value of his Warrant on the date
the first Claims Notice is received by him.
(d) The indemnification obligations contained in this Section
6.4 shall be the sole and exclusive remedy of either the Company or Sellers for
any breach by the other of the representation, warranties, covenants or
agreement contained in this Agreement.
ARTICLE 7.
MISCELLANEOUS PROVISIONS
SECTION 7.1 NOTICES. All notices which are permitted or required under
this Agreement shall be in writing and delivered by hand, by verified overnight
delivery, or by certified mail, postage prepaid, addressed as follows, or to
such other person or address as may be designated by written notice by one party
to the other parties:
If to Purchaser: Peachtree Fiberoptics, Inc.
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: President
With a copy to: Xxxxxxx X. Xxxxxxxxx, Esq.
Cohen, Berke, Xxxxxxxxx,
Xxxxxx & Kondell, P.A.
Terremark Centre, 19th Floor
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
If to the Company: Pinnacle Capital Group, L.C.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: President
Notices shall be deemed delivered when delivered by the carrier as provided
above, as determined by the carrier receipt and/or confirmation of delivery
notice. The addresses set forth above shall be conclusive for all purposes
unless and until written notice of a change of address shall be sent to the
parties herein.
SECTION 7.2 NO ASSIGNMENT. This Agreement may not be assigned by either
party without the prior written consent of the other party.
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SECTION 7.3 SEVERABILITY. Any provision of this Agreement which is
invalid or unenforceable shall be ineffective to the extent of such invalidity
or unenforceability, without affecting in any way the remaining provision
hereof.
SECTION 7.4 GOVERNING LAW. This Agreement is deemed to have been made
in the State of Florida and its interpretations, its construction and the
remedies for its enforcement or breach are to be applied pursuant to, and in
accordance with, the laws of the State of Florida for contracts made and to be
performed in that State.
SECTION 7.5 SCHEDULES. It is acknowledged and agreed that all exhibits
and schedules to this Agreement are an integral part hereof and are
incorporated, in total, by reference fully as a part of this Agreement in all
respects.
SECTION 7.6 INCORPORATION AND AMENDMENT. This writing constitutes the
entire Agreement of the parties superseding and extinguishing all prior
agreements or understandings, representations or warranties, relating to the
subject matter hereof. This Agreement may not be modified, amended or terminated
except by written agreement specifically referring to this Agreement signed by
the parties hereto.
SECTION 7.7 REMEDIES. Each of the parties hereto agrees that any
dispute arising among the parties hereto shall be settled by a court of
competent jurisdiction in accordance with applicable law and that the parties
shall be free to petition the court for all appropriate legal and/or equitable
remedies inclusive of specific performance and injunctive relief.
SECTION 7.8 WAIVER. No waiver of any breach or default hereunder shall
be considered valid unless in writing and signed by the party giving such
waiver, and no such waiver shall be deemed a waiver of any subsequent breach or
default of the same or similar nature.
SECTION 7.9 HEADINGS. The paragraph headings contained herein are for
the purpose of convenience only and are not intended to define or limit the
contents of said paragraphs.
SECTION 7.10 FURTHER ACTION. Each party hereto shall take such further
action and shall execute and deliver such further documents as may be reasonably
requested by the other party in order to carry out the provisions and purposes
of this Agreement.
SECTION 7.12 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which taken together shall be deemed one original.
SECTION 7.13 VENUE. The parties hereto mutually agree that proper venue
with respect to any dispute arising hereunder, related hereto and connected
herewith shall be Broward County, Florida.
SECTION 7.14 NO THIRD-PARTY BENEFICIARY. Except as otherwise provided
herein, nothing expressed or implied in this Agreement is intended, or shall be
construed, to confer upon or give any person other than the parties hereto and
their respective heirs and permitted successors or assigns hereunder any rights
or remedies under or by reason of this Agreement.
SECTION 7.15 REMEDIES CUMULATIVE. No remedy made available by any of
the provisions of this Agreement is intended to be exclusive of any other
remedy, each and every remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity.
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SECTION 7.15 PUBLIC ANNOUNCEMENTS. Neither party shall, without prior
written consent from the other, issue any press release or furnish any written
statement to its employees or to the public concerning the transactions
contemplated by this Agreement.
ARTICLE 8.
DEFINITIONS
SECTION 8.1 DEFINITIONS. The following terms, as used herein, have the
following meanings:
"AFFILIATE" of any person means any other person directly or
indirectly through one or more intermediary persons, controlling, controlled by
or under common control with such person.
The term "AUDIT" or "AUDITED" when used in regard to financial
statements shall mean an examination of the financial statements by a firm of
independent certified public accountants in accordance with generally accepted
auditing standards for the purpose of expressing an opinion thereon.
"BUSINESS" shall mean the ownership and operation of the
Assets comprising the business operations of the Company.
"CONTRACT" shall mean any contract, agreement, indenture,
note, bond, lease, conditional sale contract, mortgage, license, franchise,
instrument, commitment or other binding, arrangement, whether written or oral.
"GAAP" shall mean generally accepted accounting principles in
effect on the date hereof as set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession of the United
States.
"INVENTORY" shall mean, as of any date, collectively, all
inventories of products, supplies and materials owned by the Company and held
for sale, distribution or license, together with packaging and samples thereof,
owned by the Company as of such date.
The term "KNOWLEDGE" with respect to (a) any individual shall
mean actual knowledge and (b) any corporation shall mean the actual knowledge of
the directors and the executive officers of such corporation; and "KNOWS" has a
correlative meaning.
"LIABILITY" shall mean any direct or indirect indebtedness,
liability, assessment, claim. loss, damage, deficiency, obligation or
responsibility, fixed or unfixed, xxxxxx or inchoate. liquidated or
unliquidated, secured or unsecured, accrued, absolute, actual or potential,
contingent or otherwise (including any liability under any guaranties, letters
of credit, performance credits or with respect to insurance loss accruals).
"LIEN" shall mean, with respect to any Asset, any mortgage,
lien (including mechanics, warehousemen, laborers and landlords liens), claim,
pledge, charge, security interest, preemptive right, right of first refusal,
option, judgment, title defect, or encumbrance of any kind in respect of or
affecting such Asset.
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"PERSON" or "PERSON" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated organization or
other entity, including a government or political subdivision or an agency or
instrumentality thereof.
"RECEIVABLES" shall mean as of any date any trade accounts
receivable, notes receivable, rights to payments of cash, right to payments of
stock, options, warrants and/or other non-cash payments, and other miscellaneous
receivables of the Company arising in the ordinary course of the Business.
"REGULATORY ACTIONS" shall mean any claim, demand, action,
suit or proceeding brought or instigated by any Governmental Body in connection
with any Environmental Law, Including, without limitation, civil, criminal
and/or administrative proceedings, whether or not seeking costs, damages,
penalties or expenses.
"TAX" (including, with correlative meaning, the terms "Taxes"
and "Taxable") shall mean (i) any net income, gross income, gross receipts,
sales, use, ad valorem, transfer, transfer gains, franchise, profits, license,
withholding, payroll, employment, excise, severance, stamp, rent, recording,
occupation, premium, real or personal property, intangibles, environmental or
windfall profits tax, alternative or add-on minimum tax, customs duty or other
tax, fee, duty, levy, impost, assessment or charge of any kind whatsoever
(including but not limited to taxes assessed to real property and water and
sewer rents relating thereto), together with any interest and any penalty,
addition to tax or additional amount imposed by any Governmental Body (domestic
or foreign) (a "Tax Authority") responsible for the imposition of any such tax,
with respect to the Company, the Business or the Assets (or the transfer thereof
or of the Merger); (ii) any liability for the payment of any amount of the type
described in the immediately preceding clause (i) as a result of the Company
being a member of an affiliated or combined group with any other corporation at
any time on or prior to the Closing Date and (iii) any liability of the Company
for the payment of any amounts of the type described in the immediately
preceding clause (i) as a result of a contractual obligation to indemnify any
other person.
"TAX LIABILITIES" shall mean any and all Liabilities for Taxes
(other than Tax Liabilities arising out of the Contemplated Transactions that
are payable by the Purchaser hereunder) that are payable by the Company pursuant
to the terms of this Agreement or pursuant to Law or that are payable by the
Company arising out of events, transactions, facts or circumstances occurring or
existing on or prior to the Closing Date.
"TAX RETURN" shall mean any return or report (including
elections, declarations, disclosures, schedules, estimates and information
returns) required to be supplied to any Tax Authority.
"TRANSACTION DOCUMENTS" shall mean, collectively, this
Agreement, and each of the other agreements and instruments to be executed and
delivered by all or some of the parties hereto in connection with the
consummation of the transactions contemplated hereby.
SECTION 8.2 INTERPRETATION. Unless the context otherwise requires, the
terms defined in Section 8.1 shall have the meanings herein specified for all
purposes of this Agreement, applicable to both the singular and plural forms of
any of the terms defined herein. All accounting terms defined in Section 8.1,
and those accounting terms used in this Agreement not defined in Section 8.1,
except as otherwise expressly provided herein, shall have the meanings
customarily given thereto in accordance with GAAP. When a reference is made in
this Agreement to Sections, such reference shall be to a Section of this
Agreement unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include", "includes" or
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"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first written above.
THE COMPANY:
Attest: PEACHTREE FIBEROPTICS, INC.
By: By: /s/ Xxxxxxx Xxxxxxx
-------------------------------- ------------------------------
Title: Title: CEO
/s/ Xxxxxx Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxxx Xxxxxxxxx
------------------------------
Xxxxxxxx Xxxxxxxxx
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