ASSET PURCHASE AND ASSUMPTION OF LIABILITES AGREEMENT
This ASSET PURCHASE AND ASSUMPTION OF LIABILITIES AGREEMENT (this "Agreement")
is made and entered into as of November 28, 2001 (the "Agreement Date") by and
among Keystone Rare Coins LLC ("Purchaser"), Xxxxx Xxxxxxxxx, an individual
residing of Pennsylvania, Xxxxxxx Xxxxxx, an individual residing Pennsylvania
(collectively the "Lenders"), Xxxxxxxxx & Xxxxxx, Inc., a Pennsylvania
coporation (the "Company"), and Tangible Asset Gallereries, Inc. ("TAGZ").
WHEREAS, on December 30, 1999, the Lenders, the Company, and TAGZ entered into
that ceratin Acquisition Agreement whereby TAGZ acquired the Company;
WHEREAS, subsequent to TAGZ's acquisition of the Company, TAGZ and the Company
entered into that certain Credit Agreement dated January 26, 2000 with Lenders
(the "Loans") whereby Lenders agreed to extend credit to the Company and TAGZ
agreed to be a Surety to the Loans;
WHEREAS, the Company currently owes Lenders $1,199,412.69 under the Loans;
WHEREAS, as a condition to the continuation of the Loans, Lenders would enter
into employment agreements with the Company and continue in said positions for a
period of three years (the "Employment Agreements"); and
WHEREAS, the parties desire to terminate their relationship and satisfy the
Loans;.
NOW, THEREFORE, For good and valuable consideration, the parties to this
Agreement agree as follows:
ARTICLE I. THE ACQUISITION
1.1 The Purchase, Assumption, and Release.
(a) Purchase and Sale of Assets. On the terms and subject to the conditions
set forth in this Agreement, and as of the Closing Date (as defined in
Section 1.4), Company will sell, convey, transfer, assign and deliver to
Purchaser and Purchaser will purchase and acquire from Company, all right, title
and interest in and to certain assets listed on Exhibit A (the "Purchased
Assets") free and clear of all liens, pledges, charges, claims, security
interests or other encumbrances of any sort (collectively, "Liens").
(b) Assumption of Liabilities. On the terms and subject to the conditions
set forth in this Agreement, and as of the Closing Date, Company will sell,
convey, transfer, assign and deliver to Purchaser and Purchaser will purchase,
acquire and assume from Company all rights, interest and obligations to and for
the liabilities listed on Exhibit B, which includes the Loans, and the Lenders
hereby grant their consent for such transfer and assignment (the "Assumed
Liabilities") and Purchaser shall discharge when due in accordance with their
terms, all liabilities or obligations with respect to the Assumed Liabilites.
Together with the Purchased Assets, this transaction shall be referred to as the
"Acquisition". Except for the Assumed Liabilities, it is expressly understood
that Purchaser shall not be liable for and is not assuming or agreeing to pay,
become responsible for or discharge any of the debts, claims, damages,
obligations, liabilities or responsibilities of any kind or nature whatsoever of
the Company or any other party in connection with the Acquisition, whether
accrued, absolute, contingent, matured, unmatured or other, including but not
limited to any liabilities or obligations for employment, income, sales,
property or other Taxes, incurred or accrued by Company or that would have been
accrued by Company under generally accepted accounting principles.
(c) Release of Loans and Employment Agreements. On the terms and subject to
the conditions set forth in this Agreement, and as of the Closing Date, Lenders
agree to release the Company and TAGZ of all obligations under the Loans (that
certain Credit Agreement dated January 26, 2000 with Lenders as described above)
and under the Employment Agreements.
1.2 Risk of Loss. If any of the Purchased Assets are unavailable for
delivery to Purchaser on the Closing Date, Purchaser may require Company to
deliver to Purchaser assignments of Company's rights or proceeds under its
insurance policies, if any, applicable to such Purchased Assets and to close the
Acquisition on that basis.
1.3 Consideration.
(a) Consideration for Purchased Assets. On the terms and subject to the
conditions set forth in this Agreement, as full payment for the Purchased Assets
and for the agreements set forth herein, and at the Closing Date, Purchaser
shall provide the Total Consideration to the Company and TAGZ shall transfer to
Purchaser shares of TAGZ's common stock as described in Section 1.5 hereunder
(b) Transaction Taxes. Company shall pay and promptly discharge when due
(if any are due) all stamp duty, sales, use, transfer, recording or other Taxes
imposed or levied by reason of the sale or transfer of the Purchased Assets or
in connection with the Acquisition.
1.4 Closing Date. The closing of the Acquisition (the "Closing") will take
place as promptly as practicable at the offices of the Company unless another
place or time is agreed to in writing by Purchaser and the Company. The date
upon which the Closing actually occurs is the "Closing Date."
1.5 Total Consideration. At the Closing Date, Purchaser agrees to purchase
the Purchased Assets and assume the Assumed Liabilities. In consideration of the
foregoing, Purchaser shall pay to Company within twelve months from the Closing
Date the amount of On Hundred Thirty Six Thousand Two Hundred Sixty Dollars
($136,260.00), provided that, Purchaser may offset such amount against any
amounts then due and owing from either the Company or TAGZ (the "Net Amount"),
and either pay the Net Amount to the Company or if the Net Amount is due to the
Purchaser, the Company or TAGZ, as the case may be, shall immediately pay the
Net Amount to the Purchaser. Lenders agree to the unconditional assignment and
transfer of the Loans to the Purchaser and release the Company and TAGZ from any
and all furture liability with respect to the Loans. In consideration of the
foregoing, Lenders shall receive from the Company 325,000 shares of the common
stock of Tangible Asset Galleries, Inc., which stock has not been registered and
shall contain a restrictive legend similar to the following:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF
ANY STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF FOR A PERIOD OF ONE YEAR FROM THE ISSUANCE THEREOF EXCEPT
(i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY
APPLICABLE STATE LAWS OR (ii) UPON THE EXPRESS WRITTEN AGREEMENT OF THE COMPANY
AND COMPLIANCE, TO THE EXTENT APPLICABLE, WITH RULE 144 UNDER THE ACT (OR ANY
SIMILAR RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES.)
1.6 The shares shall be issued in the amounts of 162,500 each to Xx.
Xxxxxxxxx and Xx. Xxxxxx (the "Total Consideration").
1.7 Purchase of Purchased Assets and Assumption of Liabilities; Exchange for
Shares.
(a) Exchange Agent. The Company's Chairman of the Board, Xxxxxxx XxXxxxxx,
shall serve as the exchange agent (the "Exchange Agent") in connection with the
Agreement.
(b) Exchange Procedures. On the terms and subject to the conditions of this
Agreement, and at the Closing, (i) Company shall deliver to Purchaser full
possession of the Purchased Assets and all of the Assumed Liabilities at a
location determined by Purchaser, along with all bills of sale, endorsements,
assignments, consents to assignments that Company has obtained and other
instruments and documents as Purchaser may reasonably request to sell, convey,
assign, transfer and deliver to Purchaser all right, title and interest in and
to all the Purchased Assets free and clear of any and all Liens; and (ii)
Purchaser shall acknowledge receipt and responsibility for the Assumed
Liabilites and complete and execute any consent or assignment that Company may
reasonably request to assign and transfer to Purchaser the obligations with
respect to the Assumed Liabilities. Purchaser and the Company shall then
deliver to the respective party such portion of the Total Consideration in
accordance with the terms hereof.
1.8 Taking of Necessary Action; Further Action. If, at any time after the
Closing Date, any further action is necessary or desirable to carry out the
purposes of this Agreement and to vest Purchaser with all right, title, interest
in and to (and possession of) the Purchased Assets, or to confirm assumption of
and responsibility for the Assumed Liabilities, Company or Purchaser shall (as
the case may be) and shall procure that any other necessary party shall, take
such action promptly, including without limitation any necessary actions to
obtain necessary waivers, consents and approvals and execute and do all such
documents acts and things as may be so required.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND PURCHASERS
The Company hereby represents and warrants to Purchaser as follows:
2.1 Organization of the Company. The Company is duly incorporated and
validly existing under the laws of the State of Pennsylvania. The Company has
the corporate power to own its properties and to carry on its business as now
being conducted.
2.2 Authority. The Company has all requisite power and authority to enter
into this Agreement and all other agreements required by the terms hereof to be
entered into and to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Company. This Agreement has been duly executed and
delivered by the Company and, assuming the due authorization, execution and
delivery by Purchaser, constitute the valid and binding obligations of the
Company, enforceable in accordance with their terms, except as such
enforceability may be limited by principles of public policy and subject to the
laws of general application relating to bankruptcy, insolvency and the relief of
debtors and to rules of law governing specific performance, injunctive relief or
other equitable remedies.
2.3 Consents. Other than the consent of the Lenders to the assignment of the
Loans as described herein and such consent is evidenced by the execution hereof
by the Lenders, no consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other federal, state, county, local or other foreign governmental
authority, instrumentality, agency or commission or any third party, including a
party to any agreement with the Company is required by or with respect to the
Company in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby, except for such consents,
waivers, approvals, orders, authorizations, registrations, declarations and
filings as may be required under applicable securities laws hereby.
2.4 Title to Properties; Absence of Liens and Encumbrances; Condition of
Equipment.
(a) The Company has, and upon consummation of the transactions contemplated
hereby will cause to be delivered to Purchaser good, valid and marketable title
to all of the Purchased Assets, free and clear of any Liens, and there are no
undisclosed liabilities relating directly or indirectly to the Purchased Assets.
The Purchased Assets are in normal operating condition and repair, normal
wear and tear in view of their age excepted.
(b) The Company has sole and exclusive ownership, free and clear of any
Liens, of all customer files and other customer information relating to the
Company's current and former customers (the "Customer Information"). Other than
normal rights of the Company's customers to their own information, no third
party possesses any claims or rights with respect to use of the Customer
Information.
2.5 Compliance with Laws. With respect to the Purchased Assets, the Company
has complied with, is not in violation of, and has not received any notices of
violation with respect to, any foreign, federal, state or local statute, law or
regulation.
2.6 No Adverse Consequence.Neither the execution, delivery and performance
of this Agreement nor the consummation of the transactions contemplated hereby
will: (i) result in the creation or imposition of any Lien on any of the
Purchased Assets; (ii) either alone or with the giving of notice or the passage
of time or both, conflict with, constitute grounds for termination or
acceleration of, result in the breach of the terms, conditions or provisions of,
result in the loss of any benefit to the Company or Purchaser under, or as a
result in or constitute a default or an event that would be a default of, any
material agreement or arrangement to which the Company is a party or by which
the Company or any of the Purchased Assets is bound; or (iii) the violation of
any law, regulation, ordinance, judgement, decree or permit applicable to or
affecting it.
2.7 Agents and Finders. The Company has not engaged any agent or finder
with respect to the transaction contemplated by this Agreement
The Purchaser, individually and collectively, hereby represent and warrant to
Company as follows:
2.8 Authority. The Purchaser have all requisite power and authority to enter
into this Agreement and all other agreements required by the terms hereof to be
entered into and to consummate the transactions contemplated hereby and thereby.
This Agreement has been duly executed and delivered by the Purchaser and,
assuming the due authorization, execution and delivery by Company, constitutes
the valid and binding obligations of the Purchaser, enforceable in accordance
with their terms, except as such enforceability may be limited by principles of
public policy and subject to the laws of general application relating to
bankruptcy, insolvency and the relief of debtors and to rules of law governing
specific performance, injunctive relief or other equitable remedies.
2.9 Consents. No consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other federal, state, county, local or other foreign governmental
authority, instrumentality, agency or commission or any third party, including a
party to any agreement with the Purchaser is required by or with respect to the
Purchaser in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby, except for such consents,
waivers, approvals, orders, authorizations, registrations, declarations and
filings as may be required under applicable securities laws hereby.
2.10 No Adverse Consequence. Neither the execution, delivery and performance of
this Agreement nor the consummation of the transactions contemplated hereby
will:(i) either alone or with the giving of notice or the passage of time or
both, conflict with, constitute grounds for termination or acceleration of,
result in the breach of the terms, conditions or provisions of, result in the
loss of any benefit to the Company or Purchaser under, or as a result in or
constitute a default or an event that would be a default of, any material
agreement or arrangement to which the Purchaser are a party; or (ii) the
violation of any law, regulation, ordinance, judgement, decree or permit
applicable to or affecting it.
2.11 Accredited Investor Status. Lernders individually represent that they are
both "Accredited Investors" as that term is defined in Section 501(a) of
Regulation D promulgated under the Securities Act of 1933, as amended (the
"Act");
ARTICLE III. ADDITIONAL AGREEMENTS
3.1 Expenses. All fees and expenses incurred in connection with this
Agreement including, without limitation, all legal, accounting, financial
advisory, consulting and all other fees and expenses of third parties incurred
by a party in connection with the negotiation and effectuation of the terms and
conditions of this Agreement and the transactions contemplated hereby, shall be
the obligation of the party incurring such fees and expenses.
3.2 Notification of Certain Matters. The Company shall give prompt notice
to Purchaser, and Purchaser shall give prompt notice to the Company, of any
failure of the Company or Purchaser, as the case may be, to comply with or
satisfy any covenant, condition or agreement to be complied with or satisfied by
it hereunder; provided, however, that the delivery of any notice pursuant to
this Section 3.1 shall not limit or otherwise affect any remedies available to
the party receiving such notice.
3.3 Xxxx of Sale. The Company shall execute a xxxx of sale in favor of
Purchaser, substantially in the form of the attached Exhibit C, and deliver such
xxxx of sale at Closing.
ARTICLE IV. INDEMNITY
4.1 Survival of Representations and Warranties. All of the representations
and warranties of the Company in this Agreement or in any instrument delivered
pursuant hereto shall terminate on the date six (2) years subsequent to the
Closing Date.
4.2 Indemnity. (i) The Company hereby agrees to indemnify and hold Purchaser
and its agents harmless against and in respect of any loss, cost, expense,
claim, liability, deficiency, judgment or damage (hereinafter, individually, a
"Loss"; and collectively, "Losses") incurred by Purchaser and agents as a result
of any inaccuracy in or breach of a representation or warranty of the Company
contained in this Agreement or any instrument delivered by the Company at the
Closing or any failure by the Company to perform or comply with any covenant
contained in this Agreement or any such instrument.The Company liability for the
aggregate of the Losses shall not exceed the value of the Total Consideration.
(ii) The Purchaser hereby agree, individually and collectively, to indemnify and
hold Company and its subsidiaries, directors, officers and agents harmless
against and in respect of any Loss or Losses incurred by Company, its
subsidiaries, officers, directors and agents as a result of any inaccuracy in or
breach of a representation or warranty of the Purchaser contained in this
Agreement or any instrument delivered by the Purchaser at the Closing or any
failure by the Purchasrs to perform or comply with any covenant contained in
this Agreement or any such instrument.Neither the Company liability nor the
Purchaser liability for the aggregate of the Losses shall not exceed the value
of the Total Consideration.
(a) Expiration of Indemnification. The indemnification obligations under
this Section 4.2 shall terminate at 5:00 p.m., Pacific Time, six (6) months
after the Closing Date, but shall not terminate as to any Loss (or a potential
claim by an appropriate party) asserted in good faith prior to such date.
(b) Resolution of Conflicts; Arbitration. If there is any dispute among the
parties relating to this Agreement, the parties shall submit to binding
arbitration. Judgment upon any award rendered by the arbitrators may be entered
in any court having jurisdiction. Any such arbitration shall be held in Orange
County, California under the rules then in effect of the American Arbitration
Association.
ARTICLE V. GENERAL PROVISIONS
5.1 Amendment; Notices. This Agreement may be amended by the parties hereto
at any time by execution of an instrument in writing signed on behalf of each of
the parties against which such enforcement is sought.
5.2 All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally or by commercial messenger or
courier service or sent via facsimile (with acknowledgment of complete
transmission) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) if to Lenders, to: Xxxxx Xxxxxxxxx and Xxxxxxx Xxxxxx, 0000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000; Fax: 000-000-0000.
(b) If to the Purchaser, to: Keystone Rare Coins LLC, 0000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxx 00000; Fax: 000-000-0000.
(c) if to the Company: Xxxxxxxxx & Xxxxxx, Inc., 0000 Xxx Xxxx, Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000; Fax: 000-000-0000.
5.3 General. This Agreement may be executed in one or more counterparts, all
of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other party, it being understood that all parties need not
sign the same counterpart.
5.4 This Agreement and Exhibits hereto and the documents and instruments and
other agreements among the parties hereto referenced herein: (a) constitute the
entire agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings both written and oral, among
the parties with respect to the subject matter hereof; (b) are not intended to
confer upon any other person any rights or remedies hereunder; and (c) shall not
be assigned by operation of law or otherwise except as otherwise specifically
provided. If any provision of this Agreement or the application thereof, becomes
or is declared by a court of competent jurisdiction to be illegal, void or
unenforceable, the remainder of this Agreement will continue in full force and
effect and the application of such provision to other persons or circumstances
will be interpreted so as reasonably to effect the intent of the parties
hereto.The parties further agree to replace such void or unenforceable provision
of this Agreement with a valid and enforceable provision that will achieve, to
the extent possible, the economic, business and other purposes of such void or
unenforceable provision. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party. No failure or delay by either party in exercising any right, power,
or remedy under this Agreement shall operate as a waiver of any such right,
power, or remedy. Any waiver by either party of any provision of this Agreement
shall not be construed as a waiver of any other provision of this Agreement, nor
shall such waiver operate as or be construed as a waiver of such provision.This
Agreement shall be governed by and construed in accordance with the laws of the
State of Pennsylvania, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof. Each of the parties hereto
irrevocably consents to the exclusive jurisdiction and venue of any court within
the State of Pennsylvania, in connection with any matter based upon or arising
out of this Agreement or the matters contemplated herein, agrees that process
may be served upon them in any manner authorized by the laws of the State of
Pennsylvania for such persons and waives and covenants not to assert or plead
any objection which they might otherwise have to such jurisdiction, venue and
such process. The parties hereto agree that they have been represented by
counsel during the negotiation and execution of this Agreement and, therefore,
waive the application of any law, regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be construed
against the party drafting such agreement or document. Subject to the
restrictions on transfer herein set forth, this Agreement shall be binding upon
Purchaser and the Company and their respective heirs, executors, administrators,
successors and assigns. All dates are determined using Pacific Standard Time.
[Signature Page Follows]
IN WITNESS WHEREOF, Purchaser, Lenders and the Company each have caused this
Agreement to be signed by its respective duly authorized representative have
executed this Agreement as a deed, all effective as of the date first written
above.
PURCHASER:
KEYSTONE RARE COINS LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Partner
LENDERS:
/s/ Xxxxxxx X. Xxxxxxxxx
XXXXX XXXXXXXXX
/s/ Xxxxxxx Xxxxxx
XXXXXXX XXXXXX
COMPANY:
XXXXXXXXX & XXXXXX, INC.
By: /s/ Xxxxxxx XxXxxxxx
Name: Xxxxxxx XxXxxxxx
Title: President
TANGIBLE ASSET GALLERIES, INC.
By: /s/ Xxxxxxx XxXxxxxx
Name: Xxxxxxx XxXxxxxx
Title: CEO
EXHIBIT A
ASSET PURCHASE AND ASSUMPTION OF LIABILITES AGREEMENT
BY AND BETWEEN KEYSTONE RARE COINS LLC ("PURCHASER"), XXXXX XXXXXXXXX AND
XXXXXXX XXXXXX (COLLECTIVELY "LENDERS"), XXXXXXXXX & XXXXXX, INC. ("COMPANY")
AND TANGIBLE ASSET GALLERIES, INC. ("TAGZ")
DATED AS OF NOVEMBER 28, 2001
SCHEDULE OF PURCHASED ASSETS
Inventory $972,623
Accounts Receivable $487,884
Cash $246,835
EXHIBIT B
ASSET PURCHASE AND ASSUMPTION OF LIABILITES AGREEMENT
BY AND BETWEEN KEYSTONE RARE COINS LLC ("PURCHASER"), XXXXX XXXXXXXXX AND
XXXXXXX XXXXXX (COLLECTIVELY "LENDERS"), XXXXXXXXX & XXXXXX, INC. ("COMPANY")
AND TANGIBLE ASSET GALLERIES, INC. ("TAGZ")
DATED AS OF NOVEMBER 28, 2001
SCHEDULE OF ASSUMED LIABILITIES
Accounts Payable $229,991
Accrued Payroll and Severance $141,678
Note Payable to Xxxxx Xxxxxxxxx and Xxxxxxx Xxxxxx $1,199,412
EXHIBIT C
ASSET PURCHASE AND ASSUMPTION OF LIABILITES AGREEMENT
BY AND BETWEEN KEYSTONE RARE COINS LLC ("PURCHASER"), XXXXX XXXXXXXXX AND
XXXXXXX XXXXXX (COLLECTIVELY "LENDERS"), XXXXXXXXX & XXXXXX, INC. ("COMPANY")
AND TANGIBLE ASSET GALLERIES, INC. ("TAGZ")
DATED AS OF NOVEMBER 28, 2001
FORM OF XXXX OF SALE
XXXX OF SALE AND CONVEYANCE
This XXXX OF SALE AND CONVEYANCE made, executed and delivered as of November 28,
2001 by and among Xxxxxxxxx & Xxxxxx, Inc., a Pennsylvania corporation,
("Seller") and Keystone Rare Coins LLC ("Purchaser").
W I T N E S S E T H :
WHEREAS, Seller and Purchaser desire to finalize the sale of certain assets,
intangible assets, rights, licenses and other assets as defined specifically on
the attached Schedule A (the "Purchased Assets") and the transfer and assumption
of liabilities as specifically defined on the attached Schedule B ("Assumed
Liabilities") pursuant to that certain Asset Purchase and Assumption of
Liabilities Agreement by and between Seller, Purchaser, and Xxxxx Xxxxxxxxx and
Xxxxxxx Xxxxxx of the even date herewith (the "Definitive Agreement"); and
WHEREAS, Seller and Purchaser now desire to execute and deliver to the Purchaser
this instrument evidencing the sale, conveyance, assignment, transfer and
delivery to the Purchaser of the Purchased Assets and the assumption of the
Assumed Liabilities;
NOW, THEREFORE, in consideration of the foregoing promises and for the aggregate
sum of One hundred thirty six thousand two hundred sixty dollars ($136,260.00)
("Consideration") the sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
1. Immediately upon delivery unto Purchaser of the Purchased Assets, the
Seller does hereby sell, convey, assign, transfer and deliver unto the Purchaser
and its successors and assigns, forever, the entire right, title and interest
in, to and under the Purchased Asset. TO HAVE AND TO HOLD the Purchased Assets
unto Purchaser, its successors and assigns, FOREVER.
2. Immediately upon the effective date hereof, the Purchaser hereby accepts
the transfer, assignment and assumption of the Assumed Liabilities for
Purchaser, its successors and assigns.
3. Payment of the Consideration shall be due and payable on or before
November 28, 2002, provided that, Purchaser may offset the Consideration against
any amounts then due and owing from either the Seller or any of its affiliates
(the "Net Amount"), and either pay the Net Amount to the Seller or if the Net
Amount is due to the Purchaser, the Seller or its affiliates, as the case may
be, shall immediately pay the Net Amount to the Purchaser.
4. Seller represents and warrants to Purchaser that Seller has good and
valid title to the Purchased Assets, free and clear of any Liens. All software
products in the Purchased Assets, with exception of "shrink-wrap" or similar
widely-available commercial end-user licenses, were written and created solely
by either (i) Seller or (ii) by third parties who have validly assigned all of
their rights, including intellectual property rights in such products to the
Seller.
5. The Seller hereby constitutes and appoints Purchaser and its successors
and assigns as its true and lawful attorney in fact in connection with the
transactions contemplated by this instrument, with full power of substitution,
in the name and stead of the Seller but on behalf of and for the benefit of
Purchaser and its successors and assigns, to demand and receive any and all of
the Purchased Assets, and to give receipt and releases for and in respect of the
same and any part thereof, and from time to time to institute and prosecute, in
the name of the Seller or otherwise, for the benefit of Purchaser or is
successors and assigns, proceedings at law, in equity, or otherwise, which
Purchaser or its successors or assigns reasonably deem proper in order to
collect or reduce to possession or endorse any of the Purchased Assets and to do
all acts and things in relation to the Purchased Assets which Purchaser or its
successors or assigns reasonably deem desirable.
6. This instrument shall be binding upon and shall inure to the benefit of
the respective successors and assigns of the Seller and the Purchaser. If there
is any dispute or disagreement between the provisions of this Xxxx of Sale and
Conveyance and the Definitive Agreement, the terms of the Definitive Agreement
shall govern. This Xxxx of Sale and Conveyance shall be governed by and
construed in accordance with the laws of the State of Pennsylvania, regardless
of the laws that might otherwise govern under applicable principles of conflicts
of laws thereof. Each of the parties hereto irrevocably consents to the
exclusive jurisdiction and venue of any court within the State of Pennsylvania,
in connection with any matter based upon or arising out of this instrument or
the matters contemplated herein, agrees that process may be served upon them in
any manner authorized by the laws of the State of Pennsylvania for such persons
and waives and covenants not to assert or plead any objection which they might
otherwise have to such jurisdiction, venue and such process.
7. This may be executed in one or more counterparts, each of which shall be
deemed and original but all of which together will constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have caused this Xxxx of Sale and Conveyance
to be signed by their duly authorized respective signatories as of the date
first above written.
SELLER:
Xxxxxxxxx & Xxxxxx, Inc.
By /s/ Xxxxxxx XxXxxxxx
Title: CEO
PURCHASER:
KEYSTONE RARE COINS LLC
By /s/ Xxxxxxx Xxxxxxxxx
Title: Partner
SCHEDULE A
TO THE XXXX OF SALE AND CONVEYANCE
BY AND BETWEEN
XXXXXXXXX & XXXXXX, INC. ("SELLER") AND KEYSTONE RARE COINS LLC ("PURCHASER")
DATED AS OF NOVEMBER 29, 2001
PURCHASED ASSETS
Inventory $972,623
Accounts Receivable $487,884
Cash $246,835
SCHEDULE B
TO THE XXXX OF SALE AND CONVEYANCE
BY AND BETWEEN
XXXXXXXXX & XXXXXX, INC. ("SELLER") AND KEYSTONE RARE COINS LLC ("PURCHASER")
DATED AS OF NOVEMBER 29, 2001
ASSUMED LIABILITIES
Accounts Payable $229,991
Accrued Payroll and Severance $141,678
Note Payable to Xxxxx Xxxxxxxxx and Xxxxxxx Xxxxxx $1,199,412
