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Exhibit 2.1
ASSET PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") made this 26th day of February, 1999, by
and between ROXXI, INC., a Nevada corporation, with its principal office at
00000 X. Xxxxxx Xxxx, Xxxxx 0, Xxxxxxxxxx, Xxxxxxx 00000 ("Seller"), and
PARAMOUNT HEADWEAR, INC., a Missouri corporation, with its principal xxxxxx xx
#0 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 ("Buyer").
WITNESSETH, THAT:
WHEREAS, Seller is engaged in the business of manufacturing and selling
headwear (the "Business");
WHEREAS, Seller desires to sell certain assets used or usable in
connection with the operation of the Business; and
WHEREAS, Buyer desires to purchase certain assets of Seller used in,
and related to the Business upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, the mutual covenants,
promises and conditions herein contained and for other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
the parties, intending to be legally bound hereby, agree as follows:
ARTICLE I
PURCHASE AND SALE
1.01 Assets to be Sold.
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At the Closing (as hereinafter defined), subject to the terms and
conditions hereafter set forth, Seller agrees to sell, assign, transfer and
convey, and Buyer agrees to purchase, acquire, assume and accept, all of
Seller's right, title and interest in and to the following assets used in the
Business (all of which are collectively referred to herein as the "Assets").
(a) Seller's custom headwear database which includes customer
and order information but specifically excludes accounts receivable used in
connection with the Business (the "Database");
(b) All of Seller's collegiate license agreements which are
transferable, as set forth on Schedule 1.01(b) attached hereto and incorporated
herein by reference ("License Agreements");
(c) All of Seller's custom headwear programs used in
connection with the Database and the source code therefor;
(d) Seller's registered trademark "ROXXI";
(e) Certain computer hardware designated by Seller as set
forth on Schedule 1.01(e) attached hereto and incorporated herein by reference;
and
(f) Seller's pulse systems digitizing database of which Buyer
shall have exclusive rights thereto, including one (1) read device, and personal
computer and software, which shall be delivered by Seller to Buyer within three
(3) weeks after Closing.
All hardware, software and digitizings are taken AS IS by Buyer, and Seller
makes no representations or warranties thereon.
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1.02 Purchase Price and Method of Payment.
-------------------------------------
The total compensation to be paid to Seller shall be an amount equal to
sixteen percent (16%) of the net sales (gross sales less returns and allowances)
of all of the following and subject to the provisions set forth below:
(a) All headwear products sold using the "Roxxi" name;
(b) All headwear products sold by any representative that
represented Seller on the closing date and listed on Schedule 1.02(b) attached
hereto and incorporated herein by reference;
(c) All headwear products sold by representatives that are
hired to replace, in whole or in part, the representatives and their successors
that represented Seller on the Closing Date (Buyer agrees that a representative
will not be terminated without replacing such representative, and Buyer agrees
to use its best efforts to replace a representative who resigns);
(d) All headwear products sold by Roxxi representatives hired
after the Closing Date to sell products in previously uncovered territories;
(e) If Buyer discloses Seller's customer database to American
Dry Goods, then all headwear products sold to customers whose names are in
Seller's database being acquired by Buyer and (i) were sold products by Seller
within the last two (2) years from the date hereof, and (ii) not sold to by
Buyer or American Dry Goods within the last two (2) years from the date hereof;
and
(f) Sales by Buyer (excluding sales made by American Dry
Goods) to high schools, green grass golf shops or little leagues who are listed
on Seller's database and (i) were sold to by Seller within the last twenty-four
(24) months and (ii) not sold to by Buyer.
Seller shall be paid on all orders received from a customer or
representative within the first twenty-four (24) months following April 30,
1999. These amounts shall be paid to Seller on the twenty-fifth (25th) day of
each month following the shipment and collection of money without offset or
counterclaim. All amounts not collected within six (6) months after invoice due
date will not be payable to Seller and Buyer shall be under no further
responsibility to Seller for such uncollected amounts. Notwithstanding the
foregoing, Seller shall be paid a commission on re-orders placed with Buyer
after such twenty-four (24) month period, if and only if, (i) the reason for
placing such re-order was for receiving defective products sold within the
twenty-four (24) month period, and (ii) collected upon within six (6) months
after invoice due date. Buyer agrees to use and exert all commercially
reasonable efforts to collect accounts receivable described herein. Buyer will
provide Seller with monthly sales and collection reports on the twenty-fifth
(25th) day of each month along with its payment.
Seller may, at its option, review any document necessary to ensure that
the proper amounts are being paid. In the event that it is determined that the
amounts paid are incorrect by more than fifteen percent (15%), Buyer will
reimburse Seller for all reasonable expenses related to the audit of such
records.
1.03 Obligations of Seller After Closing.
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Within three (3) weeks after Closing, Seller shall install the Database
and Seller's order entry system, both AS IS, on the following items to be
provided by Buyer: (a) PC hardware; (b) Network Operating System; (c) Network
Topology; and (d) Oracle 8 database which will include client system data
structures, data and source code. Upon installation, Seller will be under no
obligation to make any modifications or enhancements to the system provided.
Seller shall continue to have all rights to use and/or sell the order entry
system, so long as any such use or sale in no way affects Buyer's right to use
and operate the order entry system installed by Seller.
Seller shall continue to employ Seller's existing employees through and
including April 15, 1999, in order to enter orders and train Buyer's employees
and to otherwise assist with the transition of Seller's customer service
functions to Buyer. After such date, Seller shall no longer have any obligation
to employ any of Seller's employees. Buyer and
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Seller agree to split any stay bonuses or severance pay in order to induce
Seller's employees to remain working for Seller after the announcement of this
Agreement and the transactions contemplated herein. Any amounts paid by Buyer
and Seller shall be agreed upon by both parties prior to any offer. After
Closing, Buyer may hire any and all of Seller's employees at its sole
discretion.
1.04 Obligations of Buyer After Closing.
-----------------------------------
After Closing, Buyer shall manufacture and sell headwear similar to the
headwear sold by Seller prior to Closing (the "Products"). Buyer acknowledges
that Seller is required to out source forty thousand (40,000) caps to the third
party purchaser of Seller's equipment. Buyer and Seller shall work together to
provide a smooth transition of manufacturing operations. In connection
therewith, after Closing, Buyer shall (a) manufacture the Products and build
inventory to support sales of the Products; (b) set pricing policies; (c) be
responsible for marketing (and all costs associated therewith) the Products and
use commercially reasonable efforts to market and promote the Roxxi name and the
Products; and (d) manage the team of independent contractors/sales
representatives, each of whom shall receive a commission of up to ten percent
(10%) of net sales of the headwear they each sell.
1.05 Liabilities Not Assumed.
------------------------
Buyer is not assuming and shall not be held responsible for nor shall
be required to assume or be obligated to pay, discharge or perform, any debts,
taxes, adverse claims, obligations or liabilities of Seller of any kind or
nature or at any time existing or asserted, whether fixed, contingent or
otherwise, whether in connection with the Assets or otherwise and whether
arising before or after the consummation of the transactions contemplated herein
or bear any cost or charge with respect thereto, including, without limitation,
accounts, notes and taxes payable, warranty claims and personal injury claims
accrued prior to Closing, commissions, profit sharing, retirement, pension,
bonus, hospitalization, vacation or other employee benefits or any employment or
old-age benefits relating to the employees of Seller. Seller hereby agrees to
indemnify, defend and hold Buyer harmless from all liability therefor and
therefrom.
1.06 No Obligation to Employ Employees of Seller.
--------------------------------------------
Notwithstanding anything herein to the contrary, Buyer shall have no
obligation to hire or employ any of Seller's employees, regardless of whether
such employee is employed by Seller full-time, part-time or otherwise, and
regardless of when such employee's employment with Seller began or is scheduled
to begin.
1.07 Option.
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Buyer shall have the option to purchase some or all of Seller's
products bearing the Roxxi name at a price equal to fifty percent (50%) of
Seller's actual cost for such products exercised at Closing and paid in cash at
Closing.
ARTICLE II
CLOSING
2.01 Closing Date.
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The Closing and consummation of all transactions provided for in this
Agreement shall be at 10:00 a.m. on March 15, 1999 (the "Closing" or "Closing
Date"), at the offices of Xxxxxxxxxx, Xxxxxx & Xxxxxxxxx, P.C., 000 X. Xxxxxxx
Xxxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000, or at such other time and place as
the parties hereto may mutually agree.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
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3.01 Corporate Standing.
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Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada, and has full power and lawful
authority to own and operate all of the Assets and to conduct its business as
and where the Business is now being conducted.
3.02 Authority.
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Seller has full corporate power and authority to enter into and
consummate the transactions provided for and contemplated in this Agreement,
including the sale, transfer and delivery of the Assets. Seller has taken all
such corporate actions and conducted such other proceedings as may be necessary,
advisable or proper, including all action required by law, its Articles of
Incorporation and Bylaws to authorize the execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby, and the
execution and delivery of each of the documents required to be delivered
hereunder so that Seller will have full right, power and authority to deliver
the Assets to Buyer and to perform all of their obligations under this Agreement
at Closing. Upon execution and delivery by the duly authorized officers of
Seller, this Agreement and all agreements and other documents provided for
herein or attached hereto shall be valid and binding obligations of Seller in
accordance with their terms subject to qualification that the binding nature of
such obligations may be limited by applicable bankruptcy, solvency,
reorganization, fraudulent conveyance or transfer or similar laws affecting the
enforcement of creditor's rights.
3.03 Absence of Restrictions.
------------------------
Seller has no agreement with any other party with respect to the sale
of the Assets and all encumbrances shall be released as of the Closing. The
execution, delivery and performance by Seller of this Agreement and any other
instrument, agreement or document executed or to be executed and delivered by
Buyer, and the consummation of the transactions provided hereunder do not
require any third party consent and do not violate, with or without the giving
of notice or the passage of time, conflict with, result in the breach of, or
cause the acceleration of or default under any provision of any obligation,
mortgage, lien, lease, agreement, instrument, law, order, regulation,
arbitration award, judgment, decree or any other restriction to which Seller is
a party or by which Seller is subject or bound, which could materially or
adversely affect the Business or the Assets except those to be received as of
the Closing.
3.04 Title to Assets.
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Seller shall, as of Closing, own all of the Assets, free and clear of
any and all liabilities, mortgages, conditional sales agreements, security
interests, leases, liens, pledges, encumbrances, deeds of trust, equities,
charges, claims, imperfections of title or other burdens of every nature and
kind, either of record or otherwise, and whether absolute, accrued, contingent
or otherwise, so that Buyer shall, after consummation of the transactions
contemplated hereunder, be free to utilize, sell or otherwise dispose of the
Assets in whatever manner Buyer may desire.
3.05 Contracts.
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Seller has no contracts or commitments of any kind or nature,
including, but not limited to, distribution agreements, purchase orders or
licensing agreements, which affect the Assets and/or the Business except as set
forth on Schedule 3.05 or on Schedule 1.01(b). Seller is not a party to any
pension or profit sharing plan which requires that Buyer, as the purchaser of
certain assets of Seller, assume or become obligated to pay any of the
obligations or liabilities of Seller under such pension or profit sharing plan.
3.06 Litigation and Claims.
----------------------
Seller is not infringing any patents, copyrights, trademarks, service
marks, trade names, or similar rights of others and no claim, suit, action,
judicial or administrative proceeding, arbitration or investigation or similar
proceeding involving Seller or any of the Assets is pending or has been made to
such effect.
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3.07 No Broker.
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Seller has not engaged or retained any investment banking firm or
broker to assist with this transaction and Seller agree to indemnify and hold
harmless Buyer from any fees due and any suits or claims for fees as a result of
any such claim by any firm or broker.
3.08 License Agreements.
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The agreements set forth on Schedule 1.01(b) are freely assignable to
Buyer, or, if consent of the contracting party to an assignment is required,
such consent shall be secured by Seller prior to the Closing Date.
3.09 General Warranty.
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No representation or warranty made by Seller in this Agreement, or in
any certificate, schedule, exhibit or other document furnished to Buyer or its
agents as provided herein, or in connection with the transaction contemplated
hereby or filed with any government agency, contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
herein or therein not misleading. The representations and warranties made by
Seller and pursuant to this Article III shall be true and accurate in all
respects on the Closing Date and shall survive the Closing Date. Seller makes
the representations and warranties set forth herein with the knowledge and
expectation that Buyer is placing reliance on them in its decision to enter into
this Agreement.
ARTICLE IV
COVENANTS OF SELLER
Seller covenants and agree as follows:
4.01 Conduct of Business.
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To conduct the Business pending the Closing in the normal and usual
manner consistent with the operation thereof and keeping Buyer advised of all
facets of the operation of the Business. Without the prior written approval of
Buyer (which approval may be withheld by Buyer for any reason in its sole
discretion), Seller will not make any change in the policies affecting the
operation and conduct of the Business, nor commence negotiations for, or enter
into, any material or unusual contracts or agreements affecting employment, the
Business or the Assets; nor shall Seller enter into any contracts or agreements
extending beyond the Closing. Buyer acknowledges, however, that Seller will sell
its equipment to a third party prior to or as of the Closing.
4.02 Cooperation.
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To execute, acknowledge and deliver to Buyer at Closing, or earlier if
otherwise specified in this Agreement, all such instruments, consents,
authorizations, certifications, books, records and data (the "Instruments"), and
to take all other action, as heretofore agreed or as may be reasonably necessary
or advisable in the opinion of Buyer to (i) effectuate the provisions and intent
of this Agreement; and (ii) to better assign, transfer and convey title and
possession of the Assets to Buyer. Seller shall be given access to all
Instruments delivered to Buyer hereunder and Buyer shall provide Seller with
notice prior to destroying any Instruments, giving Seller the opportunity to
take possession thereof in lieu of destruction.
4.03 Change of Name.
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On the Closing Date, Seller will amend its Articles of Incorporation so
as to change its name and will thereafter cooperate with Buyer in making its
present corporate name available to Buyer in Arizona, Nevada and each State in
which Seller transacts, or has transacted, business, and Seller shall cease to
use the name, Roxxi, Inc., and all derivations thereof and will thereafter
cooperate with Buyer in making such names available to Buyer.
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4.04 Retention of Business.
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To use and exert its commercially reasonable efforts between the date
hereof and Closing to keep and retain the Business as a going concern and to
instruct Buyer concerning the Business and its operations, including such
assistance and cooperation as may be requested or necessary to assure the
orderly transfer of the Assets to Buyer and the continuation thereof by Buyer
subsequent to the Closing.
4.05 Consents.
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In each case where license agreements or other contract rights of
Seller which are to be transferred to Buyer pursuant to this Agreement are not
transferable or assignable to Buyer without the consent of another party, Seller
will use its commercially reasonable efforts to obtain, prior to the Closing
Date, all such consents of such other party to the transfer of such licenses or
other contract rights to Buyer pursuant to this Agreement. All reasonable costs
associated with such transfers or assignments shall be borne by Buyer.
4.06 Changes.
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Between the date hereof and Closing, to notify Buyer of any changes,
problems or developments with respect to the Business and the status of Seller's
liabilities, obligations or relationships with creditors, customers and
suppliers, so that an uninterrupted and efficient transfer of the ownership of
the Assets may be made.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
5.01 Corporate Standing.
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Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Missouri with full power and authority
to own its own properties and to carry on its own business as currently
conducted.
5.02 Authority.
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Buyer has full corporate power and authority to enter into and
consummate the transactions provided for and contemplated in this Agreement,
including the purchase of the Assets. Buyer has taken all such corporate actions
and conducted such other proceedings as may be necessary, advisable or proper,
including all action required by law, its Articles of Incorporation and Bylaws,
to authorize the execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby, and the execution and delivery of each of
the documents required to be delivered hereunder so that Buyer will have full
right, power and authority to perform all of its obligations under this
Agreement at Closing. Upon execution and delivery by the duly authorized
officers of Buyer, this Agreement and all agreements and other documents
provided for herein or attached hereto will be valid and binding obligations of
Buyer in accordance with their terms.
5.03 Absence of Restrictions.
------------------------
Buyer has no agreement with any other party with respect to the
purchase of the Assets. The execution, delivery and performance by Buyer of this
Agreement and any other instrument, agreement or document executed or to be
executed and delivered by Buyer, and the consummation of the transactions
provided hereunder do not require any third party consent and do not violate,
with or without the giving of notice or the passage of time, conflict with,
result in the breach of, or cause the acceleration of or default under any
provision of any obligation, mortgage, lien, lease, agreement, instrument, law,
order, regulation, arbitration award, judgment, decree or any other restriction
to which Buyer is a party or by which Buyer is subject or bound, which could
materially or adversely affect Buyer's ability to purchase the Assets.
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5.04 No Broker.
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Buyer has not engaged or retained any investment banking firm or broker
to assist with this transaction and Buyer agrees to indemnify and hold harmless
Seller from any fees due and any suits or claims for fees as a result of any
such claim by any firm or broker.
5.05 Financial Statements.
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The financial statements of Buyer which have been or will be delivered
to Seller (a) are true and accurate in all respects; (b) fairly present the
financial condition of Seller at the respective dates; and (c) have been
prepared in accordance with generally accepted accounting principles
consistently applied.
ARTICLE VI
CONDITIONS TO CLOSING BY BUYER
The obligation of Buyer to consummate the transactions contemplated by
this Agreement shall be subject, at the sole option of Buyer, to the
satisfaction of the following conditions precedent:
6.01 Representations.
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All of the representations and warranties of Seller herein contained
shall be true and correct in all material respects as of the date of this
Agreement and as of the Closing, as if made on and as of the Closing.
6.02 Performance of Covenants.
-------------------------
All of the covenants to be performed and all of the conditions to be
satisfied by Seller prior to the Closing shall have been performed or satisfied
in all material respects on or before the Closing.
6.03 Delivery of Documents.
----------------------
Buyer shall have received all such documents, certificates and papers
required of Seller pursuant to the terms of this Agreement, or which shall have
been reasonably requested by Buyer in connection therewith, all of which are
dated as of the Closing Date, except as indicated to the contrary, in form and
substance as approved by counsel for Buyer, including, but not limited to, the
following:
(a) A duly executed Xxxx of Sale and Assignment conveying to
Buyer the Assets hereto and sold pursuant to this Agreement.
(b) Assignment of the License Agreements.
(c) A Secretary's Certificate as to resolutions adopted by the
Board of Directors and Shareholder of Seller, authorizing the execution of this
Agreement, the consummation of the transactions contemplated hereby and the
execution and delivery of the documents required to be delivered hereunder.
(d) Releases from Norwest Business Credit, Inc. and Norwest
Bank of Arizona, N.A., of their security interests in and to the Assets.
(e) Release of Assignment of the ROXXI trademark by Norwest
Business Credit, Inc., recorded in the United States Patent and Trademark Office
at Reel 1593, Frame 0507 on February 27, 1997.
(f) Certificate of Good Standing for Seller from the Secretary
of State of Nevada.
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(g) Evidence of the recordation of an Assignment of the ROXXI
trademark from Roxxi, Inc., an Oklahoma corporation, to Roxxi, Inc., a Nevada
corporation, in the United States Patent and Trademark Office.
(h) Assignment of Seller's registered trademark, "ROXXI" and
corporate name. Buyer shall be responsible for all costs associated with
recording this Assignment in the United States Patent and Trademark Office.
(i) All other documents affecting title to and possession of
the Assets and necessary to sell, assign, convey and transfer the same to Buyer,
and to vest in Buyer all right, title and interest of Seller in and to the
Assets free and clear of all liens, charges and encumbrances.
(j) Such other documents relative to the operation of the
Business as may be reasonably requested by Buyer.
ARTICLE VII
CONDITIONS TO CLOSING BY SELLER
The obligations of Seller to consummate the transactions contemplated
by this Agreement shall be subject, at the sole option of Seller, to the
satisfaction of the following conditions precedent:
7.01 Representations.
----------------
All of the representations and warranties of Buyer herein contained
shall be true and correct in all material respects as of the date of this
Agreement and as of the Closing, as if made on and as of the Closing.
7.02 Performance of Covenants.
-------------------------
All of the covenants to be performed and all of the conditions to be
satisfied by Buyer prior to Closing shall have been performed or satisfied on or
before the Closing.
7.03 Delivery of Documents.
----------------------
Seller shall have received all such documents and papers required of
Buyer pursuant to the terms of this Agreement, or which shall have been
reasonably requested by Seller, including, but not limited to, the following:
(a) Resolution adopted by the Board of Directors of Buyer,
authorizing the execution of this Agreement, the consummation of the
transactions contemplated hereby and the execution and delivery of the documents
required to be delivered hereunder;
(b) Certificate of Good Standing for Buyer from the Secretary
of State of the State of Missouri; and
(c) Such other documents as may be reasonably requested by
Seller.
ARTICLE VIII
INDEMNIFICATION
8.01 Indemnification for Breach of Representation, Warranty, Covenant
----------------------------------------------------------------
or Agreement or for Liability of Seller.
----------------------------------------
Seller hereby agrees to indemnify Buyer and hold it harmless against
and from any and all loss, liability, damage, claim, cost and expense of any
nature whatsoever, including, without limitation, reasonable attorney's fees
(collectively "Damages"), arising from or in connection with:
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(a) Any breach of any representation, warranty, covenant or
agreement on the part of Seller under this Agreement or under any agreement or
instrument contemplated hereby; or
(b) Any liability of Seller arising from the operation of the
Business up to the time of Closing.
8.02 Indemnification for Breach of Representation, Warranty, Covenant
----------------------------------------------------------------
or Agreement or for Liability of Buyer.
---------------------------------------
Buyer hereby agrees to indemnify Seller and hold it harmless against
and from any and all Damages arising from or in connection with:
(a) Any breach of representation, warranty, covenant or
agreement on the part of Buyer under this Agreement, or under any agreement or
instrument contemplating hereby; or
(b) Any liability arising out of the operation of the Business
by Buyer from and after the Closing.
8.03 Indemnification Procedures.
---------------------------
The indemnified party shall give the indemnifying party prompt written
notice of any claim, demand, action, controversy or suit (accompanied by a copy
thereof) which may give rise to a claim for indemnification under this Article
VIII. The indemnifying party shall have the right to undertake the defense of
any claim, demand, action, controversy or suit by representatives of its own
choosing, at its own cost and expense; provided, however, that in the event the
indemnifying party shall fail to notify the indemnified party in writing that
the indemnifying party shall undertake the defense thereof within ten (10) days
of the date the indemnified party delivers written notice to the indemnifying
party, then the indemnified party shall have the right to undertake the defense,
compromise or settlement thereof at the risk of the indemnifying party.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.01 Survival of Representations and Warranties.
-------------------------------------------
All of the terms and conditions of this Agreement, including the
representations and warranties in Articles III, IV, and V and the
indemnification provisions of Article VIII shall survive Closing and the
transfer of the Assets.
9.02 Risk of Loss.
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All risk of loss with respect to the Assets to be transferred hereunder
shall remain with Seller until the transfer of the Assets and the Business on
the Closing Date. Anything to the contrary in this Agreement notwithstanding, in
the event there has been any material damage to or destruction of any of the
Assets prior to the Closing Date and Buyer elects to consummate the transactions
contemplated herein, at Closing Seller shall assign to Buyer all of Seller's
right to receive insurance proceeds toward the repair or replacement of such
Assets, if any, and if no such insurance is in effect or the amount payable
thereunder is insufficient to repair or replace any such Assets, the parties
shall equitably adjust the Purchase Price.
9.03 Benefit and Assignability.
--------------------------
This Agreement shall be binding upon, inure to the benefit of and be
enforceable by, the parties hereto and their respective successors and assigns.
9.04 Notices.
--------
Any and all notices or communications required or desired to be given
in connection with this Agreement shall be in writing and shall be deemed to
have been duly given when (i) personally delivered, (ii) sent by facsimile with
a
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corresponding confirmation, or (iii) two (2) business days after deposited with
the United States Postal Service, registered or certified mail, postage prepaid,
return receipt requested, to the respective parties as follows, or to such other
address as either party may from time to time designate by notice given in
accordance with the provisions of this Section 9.04:
If to Buyer: Paramount Headwear, Inc.
#0 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: President
Fax: (000) 000-0000
With a Copy to: Xxxx X. Xxxxxxxx, Esq.
Xxxxxxxxxx, Xxxxxx & Xxxxxxxxx, P.C.
000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
If to Seller: Roxxi, Inc.
00000 X. Xxxxxx Xxxx, Xxxxx 0
Xxxxxxxxxx, Xxxxxxx 00000
Attention: President
Fax: (000) 000-0000
With a Copy to: Xxxxxxx Xxxxxx, Esq.
0000 Xxxxxxxx Xxxxx, Xxxxx 0
Xxxxxx, Xxxx 00000
Fax: (000) 000-0000
9.05 Waiver.
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The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate as, nor be construed as, a waiver of any subsequent
breach thereof.
9.06 Entire Agreement.
-----------------
This Agreement represents the entire agreement between the parties
hereto with respect to the transactions contemplated hereby and may be modified
only by a subsequent written document executed by the parties hereto.
9.07 Headings.
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The headings of the Articles and Sections of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
9.08 Incorporation.
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All schedules and exhibits attached hereto are hereby incorporated by
reference into, and made a part of, this Agreement.
9.09 Days.
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In computing the number of days for purposes of this Agreement, all
days shall be counted including Saturdays, Sundays and holidays; provided,
however, that if the final day of any time period falls on a Saturday, Sunday or
holiday, then the final day shall be deemed to be the next day which is not a
Saturday, Sunday or holiday.
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9.10 Counterparts.
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This Agreement may be executed simultaneously in two (2) or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The parties hereto agree
that facsimile signatures shall be sufficient to bind the parties to the
Agreement herein.
9.11 Severability.
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In the event any one or more of the provisions contained in this
Agreement or any application thereof shall be invalid, illegal or unenforceable
in any respect, the validity, legality or enforceability of the remaining
provisions of this Agreement and any other application thereof shall not in any
way be affected or impaired thereby.
9.12 Expenses.
---------
Each party shall be responsible for paying the expenses it incurs in
connection with this Agreement and the transactions contemplated hereby.
9.13 Termination of Agreement.
-------------------------
This Agreement and the transactions contemplated by this Agreement may
be terminated at any time prior to Closing (a) by mutual consent of Seller and
Buyer, or (b) by either Buyer or Seller if the conditions to Closing set forth
herein are not satisfied.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the day and year first above written.
SELLER: BUYER:
Roxxi, Inc., a Nevada corporation Paramount Headwear, Inc., a Missouri
corporation
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxx
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Print Name: Xxx Xxxxxxxxx Print Name: Xxxxx Xxxxx
--------------------- -----------------------
Title: President Title: Chief Operating Officer
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