ASSET PURCHASE AGREEMENT
THIS AGREEMENT made as of the 1st day of March, 2001 between XXXXXXX.XXX
INC., a corporation organized and existing under the laws of Ontario, (the
"Seller") and ITEX CORPORATION, a corporation organized and existing under the
laws of Nevada, (the "Buyer").
WHEREAS the Seller desires to sell certain assets of the business carried
on by the Seller consisting of barter trading operations and the Buyer wishes to
purchase such property and assets on the terms hereinafter set forth;
NOW THEREFORE THIS AGREEMENT WITNESSES that for good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by
each of the parties hereto) the parties agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions - In this Agreement, the following words and terms shall have
the following respective meanings:
(a) "Agreement" means this Purchase Agreement and all instruments
supplemental hereto or in amendment or confirmation hereof; "hereof", "hereto",
and "hereunder" and similar expressions mean and refer to this Agreement and not
to any particular Article or Section; "Article" or "Section" mean and refer to
the specified article or section of this Agreement;
(b) "Closing Date" means the 1st day of March, 2001, or such other date as
the parties may agree as to the date upon which the completion of the sale and
purchase of the Purchased Assets hereunder shall take place; and
(c) "Purchased Assets" means collectively:
(i) the assets listed in Exhibit A;
(ii) the fixed assets, equipment and inventory listed in Exhibits C,
D, E and F;
(iii) the inventory listed in Exhibit G;
(iv) the receivables listed in Exhibit I;
(v) the customer list set out in Exhibit J; and
(vi) the real property lease set out in Exhibit M.
1.2 Headings - The division of this Agreement into Articles and Sections
and the insertion of headings are solely for convenience of reference only and
shall not affect the construction or interpretation of this Agreement.
ARTICLE 2
PURCHASE AND SALE
2.1 Purchase and Sale - The Seller agrees to sell to the Buyer and the
Buyer agrees to buy from the Seller on the Closing Date on the terms hereof the
Purchased Assets for a purchase price of $750,000 USD (the "Purchase Price").
The Buyer acknowledges that certain of the Purchased Assets are not owed by the
Seller but are leased from third parties and that for these assets the Buyer is
not purchasing the assets outright but is purchasing the Seller's leasehold
interest.
2.2 Payment - The Purchase Price shall be payable to the Seller on or
before March 1, 2001 as follows:
$250,000 USD by way of certified check or bank draft; and
$500,000 USD by way of a non-negotiable promissory note (the "Note") in the
form attached as Exhibit K. The Buyer shall pay instalments of principal of
$41,666.67 USD per month on the 15th day of every month starting on April
15, 2001, with the final payment due on March 15, 2002. The Note shall bear
interest at the rate of 15% per annum provided that interest shall not
begin to accrue until when and if the Seller does not receive an instalment
payment on the date that it is due. The Note shall be secured against the
Purchased Assets by a general security agreement which shall be registered
under the Personal Property Security Act (Ontario) in first position.
2.3 Allocation of Purchase Price - The Seller and the Buyer agree that the
Purchase Price shall be allocated among the Purchased Assets in accordance with
Exhibit L and that they will prepare and file their respective tax returns in a
manner consistent with such allocation.
2.4 Transfer Taxes - The Buyer shall be liable for and shall pay all
federal and provincial sales taxes, goods and services taxes, and transfer
taxes, duties or other like charges payable upon and in connection with the
transfer of the Purchased Assets by the Seller to the Buyer.
2.5 Employees - The Buyer agrees to offer to employ the employees of the
Seller listed in Exhibit B on terms and conditions not less favourable, in the
aggregate, than as are presently enjoyed by such employees including, without
limiting the generality of the foregoing, rates of pay, benefits, severance
entitlements and recognition of vacation entitlement earned but not taken as at
the Closing Date by such employees.
2.6 Assumption Of Liabilities - The Buyer agrees to discharge, assume and
perform the following contracts, agreements, obligations, leases, licences,
engagements, commitments, undertakings, debts and liabilities (collectively, the
"Obligations") of the Seller:
(a) the liabilities and obligations of the Seller in connection with the
contracts and leases that form part of the Purchased Assets, including without
limitation the lease of the premises located at 0000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxxx;
(b) the liabilities and obligations of the Seller in connection with
telephone and fax lines, T-1 lines and other business related services at the
premises referenced in Section 2.6(a);
(c) the debts and liabilities of the Seller in connection with a trade
deficit of approximately $4,500,000 CND (provided that if any trade customer(s)
with a positive Ubarter dollar balance chooses not to accept Itex dollars and
Buyer consents, Seller agrees to accommodate such customer(s) with no recourse
to Buyer); and
(d) all Obligations of the Seller accruing after the Closing Date in
respect of the Purchased Assets.
2.7 Buyer to Indemnify -
(a) In accordance with and subject to the provisions of this section 2.9,
Buyer shall indemnify and hold harmless Seller, its officers, and directors from
and against and in respect of any and all claims, demands, losses, costs,
expenses, liabilities, damages, including interest, penalties, and reasonable
attorney fees and amounts paid in settlement, (collectively, "Indemnified
Losses") suffered or incurred by Seller, by reason of, or arising out of:
(i) any material breach of a representation or warranty contained in
this Agreement or other transaction documents to which Buyer is a
party, or any failure by Buyer to perform in connection
therewith, or the breach of any covenant or agreement in this
Agreement or other transaction documents, to which Buyer is a
party, or any failure by Buyer to perform in connection
therewith; and
(ii) the failure of Buyer to pay, satisfy, discharge, perform and
fulfil any of the Obligations expressly assumed by the Buyer
pursuant to this Agreement.
(b) Buyer shall have no liability to Seller under this Agreement except to
the extent of the purchase price, provided that Seller shall be entitled to
pursue any equitable remedy provided in this Agreement or by law.
(c) The indemnities given in section 2.9(a) and the right of Seller to
submit Claims shall expire six (6) months from the date of this Agreement.
(d) Seller shall give written notice (the "Claim Notice") of any Claim for
indemnification under this section to Buyer as promptly as practicable, but in
any event: (i) if such Claim relates to the assertion against Seller of any
claim by a third party (a "Third Party Claim"), within 30 days after the
assertion of such Third Party Claim, or (ii) if such Claim is not in respect of
a Third Party Claim, within 30 days after the discovery of facts upon which
Seller intends to base a Claim for indemnification pursuant to this section;
provided, however, that the failure or delay to so notify Buyer shall not
relieve Buyer of any obligation or liability that Buyer may have to Seller
except to the extent that Buyer demonstrates that Buyer's ability to defend or
resolve such Claim is adversely affected thereby. Any such Claim Notice shall
describe the facts and circumstances on which the asserted Claim for
indemnification is based. Subject to the rights of or duties to any insurer or
other third party having potential liability therefor, the Buyer shall have the
right, upon written notice given to Seller within 30 days after receipt of the
notice from Seller of any Third Party Claim, to assume the defense or handling
of such Third Party Claim, at Buyer's expense, in which case the following
provisions shall govern.
(e) Buyer shall select counsel reasonably acceptable to Seller in
connection with conducting the defense or handling of such Third Party Claim,
and the Buyer shall keep Seller timely apprised of the status of such Third
Party Claim. Buyer shall not, without the prior written consent of Seller, agree
to a settlement of any Third Party Claim, unless (A) the settlement provides an
acceptable release and discharge of Seller and Seller is reasonably satisfied
with such discharge and release and (B) the Seller shall not have reasonably
objected to any such settlement on the ground that the circumstances surrounding
the settlement could result in an adverse impact on the business, operations,
assets, liabilities (absolute, accrued, contingent or otherwise), condition
(financial or otherwise) or prospects of Seller. Seller shall cooperate with
Buyer and shall be entitled to participate in the defense or handling of such
Third Party Claim with its own counsel and at its own expense.
2.8 Assignment of Contracts - To the extent the assignment of any contract,
lease, agreement or commitment to be assigned to the Buyer pursuant to the terms
of this agreement shall require the consent of any other party thereto or shall
be subject to any equity or option in any other person by reason of a request
for permission to assign or transfer, this agreement shall not constitute a
contract to assign the same if an attempted assignment would constitute a breach
thereof or create any rights in other persons not desired by the Buyer. The
Seller shall use its best efforts to procure consents to any such assignment
provided that if such consent is not obtained, the Seller shall cooperate with
the Buyer in any reasonable arrangement to provide the Buyer with the benefit of
any such contract and the Buyer will remain responsible for the liabilities
under any such contract, lease, agreement or commitment.
2.9 Transition - The Buyer will begin to service the customer base beginning on
March 1, 2001. Telephone, fax and emails will be forwarded to the Buyer's
Toronto location. A letter dated March 1, 2001 will be mailed to the Seller's
customers stating that the Buyer is purchasing certain of the Seller's assets
and is beginning a monthly charge of $20 cash plus $10 trade dollars to apply on
March 30, 2001. Buyer has no obligation to Seller to utilize Seller's website.
Seller has no obligation to Buyer to permit Buyer to use Seller's website but
will reasonably cooperate to facilitate the transaction.
2.10 XXxxxxx.xxx Indemnification -
(a) In accordance with and subject to the provisions of this section 2.10,
Seller shall indemnify and hold harmless Buyer, its officers, and directors from
and against and in respect of any and all claims, demands, losses, costs,
expenses, liabilities, damages, including interest, penalties, and reasonable
attorney fees and amounts paid in settlement, (collectively, "Indemnified
Losses") suffered or incurred by Buyer, by reason of, or arising out of:
(i) any material breach of a representation or warranty contained in this
Agreement or other transaction documents to which Seller is a party,
or any failure by Seller to perform in connection therewith, or the
breach of any covenant or agreement in this Agreement or other
transaction documents, to which Seller is a party, or any failure by
Seller to perform in connection therewith;
(ii) any liabilities of Seller arising or incurred prior to the Closing
except the Obligations expressly assumed by the Buyer pursuant to this
Agreement; and
(iii)the parties' failure to comply with the Bulk Sales Act (Ontario) in
respect of the above-noted transaction.
(b) Seller shall have no liability to Buyer under this Agreement except to
the extent of the purchase price, provided that Buyer shall be entitled to
pursue any equitable remedy provided in this Agreement or by law.
(c) The indemnities given in section 2.10(a) and the right of Buyer to
submit Claims shall expire six (6) months from the date of this Agreement.
(d) Buyer shall give written notice (the "Claim Notice") of any Claim for
indemnification under this section to Seller as promptly as practicable, but in
any event: (i) if such Claim relates to the assertion against Buyer of any claim
by a third party (a "Third Party Claim"), within 30 days after the assertion of
such Third Party Claim, or (ii) if such Claim is not in respect of a Third Party
Claim, within 30 days after the discovery of facts upon which Buyer intends to
base a Claim for indemnification pursuant to this section; provided, however,
that the failure or delay to so notify Seller shall not relieve Seller of any
obligation or liability that Seller may have to Buyer except to the extent that
Seller demonstrates that Seller's ability to defend or resolve such Claim is
adversely affected thereby. Any such Claim Notice shall describe the facts and
circumstances on which the asserted Claim for indemnification is based. Subject
to the rights of or duties to any insurer or other third party having potential
liability therefor, the Seller shall have the right, upon written notice given
to Buyer within 30 days after receipt of the notice from Buyer of any Third
Party Claim, to assume the defense or handling of such Third Party Claim, at
Seller's expense, in which case the following provisions shall govern.
(e) Seller shall select counsel reasonably acceptable to Buyer in
connection with conducting the defense or handling of such Third Party Claim,
and the Seller shall keep Buyer timely apprised of the status of such Third
Party Claim. Seller shall not, without the prior written consent of Buyer, agree
to a settlement of any Third Party Claim, unless (A) the settlement provides an
acceptable release and discharge of Buyer and Buyer is reasonably satisfied with
such discharge and release and (B) the Buyer shall not have reasonably objected
to any such settlement on the ground that the circumstances surrounding the
settlement could result in an adverse impact on the business, operations,
assets, liabilities (absolute, accrued, contingent or otherwise), condition
(financial or otherwise) or prospects of Buyer. Buyer shall cooperate with
Seller and shall be entitled to participate in the defense or handling of such
Third Party Claim with its own counsel and at its own expense.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties - Each of the Buyer and the Seller hereby
covenants, represents and warrants to the other of them that:
(a) Organization and Good Standing - It is a corporation duly incorporated
and organized, validly existing, in good standing and is up to date in all of
the filings and registrations required under the laws of its jurisdiction of
incorporation.
(b) Due Authorization, Etc. - It has all necessary corporate power,
authority and capacity to enter into this Agreement and the agreements and other
instruments contemplated herein and to perform its obligations hereunder and
thereunder. The execution and delivery of this Agreement and the agreements and
other instruments contemplated herein and the performance of the transactions
contemplated hereunder and thereunder have been duly authorized by all necessary
corporate action on its part.
(c) No Violation - It is not a party to, bound by or subject to any
indenture, mortgage, lease, agreement, instrument, charter or by-law provision,
statute, regulation, order, judgement, decree or law which would be violated,
contravened or breached by, or under which any default would occur as a result
of the execution and delivery by it of this Agreement or the performance by it
of any of the terms hereof.
(d) No Broker - All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried on between the parties
directly and without the intervention of any other party in such manner as to
give rise to any valid claim against any of the parties hereto for a brokerage
commission, finder's fee or other like payment.
(e) Valid and Binding - It has the full power, legal capacity and authority
to execute and deliver this Agreement and to perform it's obligations under this
Agreement. This Agreement constitutes the legal, valid and binding obligation of
it, enforceable against it in accordance with its terms, except as that
enforceability may be (i) limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and (ii) subject to general principles of equity
(regardless of whether that enforceability is considered in a proceeding in
equity or at law). It has taken all actions necessary for the authorization,
execution, delivery and performance by it of this Agreement.
3.2 Representations and Warranties of Seller. Seller further covenants,
represents and warrants to Buyer that, save and except as has been disclosed to
Buyer:
(a) Power of Seller.
Seller by reason of its Charter Documents, requirements of its
organizational jurisdiction, or for any other reason, is entitled to vote to
approve or disapprove the consummation of the disposition of assets, and has
voted all its Capital Stock entitled to vote on that matter, in any one or more
of the manners prescribed or permitted by its Charter Documents, to approve this
Agreement and the consummation of the asset disposition and the other
transactions contemplated hereby.
(b) No Conflicts or Litigation.
To its knowledge Seller's execution, delivery and performance in accordance with
the respective terms of this Agreement and the other transaction documents to
which Seller is a party do not and will not (i) violate or conflict with any
governmental requirement, (ii) to its knowledge, breach or constitute a default
under any agreement or instrument to which Seller is a party or (iii) result in
the creation or imposition of, or afford any person the right to obtain, any
lien upon the Purchased Assets. Furthermore, to its knowledge the execution and
performance by Seller will not result in any of the following:
(i) the acceleration or mandatory prepayment of any indebtedness, or any
guaranty not constituting acquired indebtedness, of Seller or afford
any holder of any of that indebtedness, or any beneficiary of those
guaranties, the right to require Seller or ITEX, or any subsidiary to
redeem, purchase, or otherwise acquire, reacquire or repay any of that
indebtedness, or to perform any of those guaranties;
(ii) cause or result in the imposition of, or afford any person the right
to obtain, any lien upon any property or assets of Seller (or upon any
revenues, income or profits of Seller); or
(iii)result in the revocation, cancellation, suspension or material
modification of any governmental approval possessed by Seller at the
date hereof and necessary for the ownership or lease or the operation
of its properties or the carrying on of their business as now
conducted including any necessary governmental approval under each
applicable environmental law and industry law.
(c) Reports; Notices - No reports or notices to, or filings with, any
governmental authority are required to be made, by Seller for the execution,
delivery or performance by Seller of the this Agreement, the enforcement against
Seller of its obligations thereunder, or the effectuation of the acquisition and
the other transactions contemplated thereby.
(d) Litigation - Save and except for a claim by Xxx Xxxxx and a
counter-claim by Professional Auctioneers, the Seller is not aware of any
pending or threatened, suit, action, arbitration, or legal, administrative, or
other proceeding, or governmental investigation against or affecting any of its
assets. To its knowledge Seller is not in default with respect to any order,
writ, injunction, or decree of any federal, state, local, or foreign court,
department, agency, or instrumentality. Seller is not presently engaged in any
legal action to recover monies due to, or damages sustained by, it, except for a
claim against Professional Auctioneers and potential claims against Xxxxx Xxxxx
and Xxxx Xxxxxx.
(e) Financial Statements; Disclosure.
(i) Financial Statements
Since the December 31, 2000, no change has occurred in the business,
operations, properties or assets, liabilities, condition (financial or
other) or results of operations of Seller that could reasonably be
expected, alone or together with all other such changes, to have a material
adverse effect on its business or operations.
(ii) Disclosure
As of the date hereof, the information that has been furnished to ITEX by
or on behalf of Seller prior to the date of this Agreement in connection
with the transactions contemplated hereby, taken together, does not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein not materially
misleading in light of the circumstances under which those statements were
made.
(f) Compliance With Laws.
(i) Seller, to its knowledge (i) possesses all necessary certifications
and licenses and similar governmental approvals required for the
conduct of its business and (ii) is in compliance in all material
respects with the terms and conditions of all governmental approvals
necessary for the ownership or lease and the operation of its
properties and the carrying on of its business as now conducted.
(ii) Seller: (i) has been and continues to be in compliance with all
governmental requirements applicable to it or any of its presently or,
to its knowledge, previously owned or operated properties (including
all the facilities and sites now or previously owned or held by it
under any lease), businesses or operations, including all applicable
governmental requirements under environmental laws and industry laws,
except where the failure to be in compliance has not had and could not
reasonably be expected to have, individually or in the aggregate, a
material adverse effect; and (ii)(A) Seller has not received, nor to
the knowledge of Seller has any employee received, any notice from an
governmental authority which asserts, or raises the possibility of
assertion of, any noncompliance with any of those governmental
requirements and (B) to the knowledge of Seller, no condition or state
of facts exists which would provide a valid basis for any such
assertion.
(g) Assets.
Seller has good and marketable title to the Purchased Assets. All the
Purchased Assets are free and clear of restrictions on or conditions to transfer
or assignment, and of liens, pledges, charges, encumbrances, equities, claims,
covenants, conditions, or restrictions save and except for certain leases and
contracts which may require consent to transfer. All tangible personal property
is in good operating condition and repair, ordinary wear and tear excepted.
(h) Real Property/Personal Property Leases.
Exhibit M sets forth the real property lease to be transferred to ITEX.
Seller is not in default or in arrears in any respect under such lease.
(i) Customer List.
Exhibit J sets forth a complete and accurate list of all Seller customer
lists, including summaries of sales during the most recent fiscal year.
(j) Workforce.
ITEX's current intention is to employ the sales force and some office
personnel of Seller. To the extent that any or all of these Seller employees are
employed by ITEX, Seller acknowledges that any covenant not to compete in their
former employment contracts shall not be enforceable against them in their
employment or rendition of services to ITEX, and that any use of Seller
information including, but not limited to, Seller customer lists or Seller
techniques which the employees might use as an ordinary part of their employment
or rendition of services for ITEX shall not be actionable against them or ITEX.
(k) Absence of Changes.
Since December 31, 2000 none of the following has occurred with respect to
Seller:
(i) any circumstance, condition, event or state of facts (either singly or
in the aggregate), other than conditions generally affecting the
Industry, which has caused, is causing or will cause a material
adverse effect;
(ii) any increase, or any contractual commitment to increase, by more than
$3,500 individually, or $20,000 in the aggregate, the rates of
compensation of employee(s) as of the date hereof;
(iii)any work interruptions, labour grievances or claims filed, or any
similar event or condition of any character, that will have a material
adverse effect following the Closing Date;
(iv) any distribution, sale or transfer of, or any commitment to
distribute, sell or transfer, any of its assets or properties of any
kind which singly is or in the aggregate are material to Seller;
(v) any cancellation, or agreement to cancel, any indebtedness, obligation
or other liability owing to it, provided that it may negotiate and
adjust bills in the course of good faith disputes with customers in
the ordinary course of business and consistent with past practice;
(vi) any plan, agreement or arrangement granting any preferential rights to
purchase or acquire any interest in any of its assets, property or
rights or requiring consent of any Person to the transfer and
assignment of any such assets, property or rights;
(vii)any purchase or acquisition of, or agreement, plan or arrangement to
purchase or acquire, any property rights or assets outside of the
ordinary course of its business consistent with its past practices;
(viii) any waiver of any of its rights or claims that singly or in the
aggregate are material to Seller;
(ix) any transaction outside the ordinary course of its business or not
consistent with its past practices;
(x) any incurrence of any indebtedness or any guaranty not constituting
its indebtedness, or any commitment to incur any indebtedness or any
such guaranty;
(xi) any investment in the stock, securities or indebtedness of any person;
(xii) any cancellation or termination of a Material Agreement of Seller.
(l) Employment Agreements - To the knowledge of Seller, no employee, agent,
consultant or independent contractor who performs services on a regular basis
for Seller plans to discontinue such relationship after the Closing Date.
(m) Insurance Policies. Seller has maintained and now maintain (i)
insurance on all its assets and businesses of a type customarily insured,
covering property damage and loss of income by fire or other casualty, and
(ii)adequate insurance protection against all liabilities, claims, and risks
against which it is customary to insure. Seller is not in default with respect
to payment of premiums on any such policy. No claim is pending under any such
policy.
(n) Other Material Contracts. Except as otherwise disclosed in Exhibits to
this Agreement, Seller is not a party to, nor is the property of Seller bound
by, any representative or agency agreement; any agreement not entered into in
the ordinary course of business; any indenture or lease; or any agreement that
is unusual in nature, duration, that would in any way affect the Seller.
3.3 Knowledge. Where any representation or warranty is expressed to be to the
knowledge of Seller, the representation and warranty shall be conclusively
deemed to be to the current personal knowledge of Xxxxxx Xxxxx without any
investigation.
ARTICLE 4
CLOSING MATTERS
4.1 Income Tax Election with Respect to Receivables - If available, the parties
shall execute and file an election as to the receivables included in the
Purchased Assets to the extent permitted under Section 22 of the Income Tax Act
(Canada) using as the consideration paid therefor the allocation provided for in
Exhibit L.
4.2 GST Election - If available, the parties shall execute and file an election
as to the payment of GST in respect of the transactions contemplated hereby.
4.3 Bulk Sales Act Waiver - The Buyer waives compliance by the Seller with the
provisions of the Bulk Sales Act (Ontario) and such other similar legislation in
other jurisdictions applicable to the Purchased Assets in respect of the
transactions contemplated hereby.
4.4 Transfer of Assets. This agreement shall operate as the transfer and
assignment of the Purchased Assets and the Obligations, except as limited by
section 2.8 above.
ARTICLE 5
GENERAL
5.1 Confidentiality - In the event of the termination of this Agreement without
consummation of the transactions contemplated hereby, the Buyer will use its
best efforts to keep confidential any information (unless in the public domain)
obtained from the Seller. If this Agreement is so terminated, promptly after
such termination, all documents, working papers and other written material
obtained from one party in connection with this Agreement and not theretofore
made public (including all copies thereof), shall be returned to the party which
provided such material.
5.2 Public Notices - The parties agree that all notices to third parties and all
other publicity concerning the transactions contemplated by this Agreement shall
be jointly planned and co-ordinated and no party shall act unilaterally in this
regard without the prior approval of the other, such approval not to be
unreasonably withheld, unless such disclosure shall be required to meet timely
disclosure obligations of any party under applicable securities laws and stock
exchange rules in circumstances where prior consultation with the other party is
not practicable.
5.3 Expenses - All costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such expenses.
5.4 Time - Time shall be of the essence of this Agreement and of every part
hereof and no extension or variation of this Agreement shall operate as a waiver
of this provision.
5.5 Notices - All payments and communications which may be or are required to be
given by either party to the other herein, shall (in the absence of any specific
provision to the contrary) be in writing and delivered or sent by facsimile to
the parties at their following respective addresses:
For the Seller: c/o Network Commerce Inc.
000 Xxxxx Xxx Xxxxx, Xxxxx 000X
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxx,
Senior Vice President
For the Buyer: ITEX Corporation
0000 Xxxxxxx Xxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxxxx, CEO
and it shall be conclusively deemed to have been received at the time of
delivery or facsimile transmission as the case may be. Either party may from
time to time change its address for service set forth by notice to the other of
them in accordance with this section.
5.6 Governing Law - This Agreement and the rights and obligations of the parties
shall be governed by and construed in accordance with the laws of the Province
of Ontario and the laws of Canada applicable therein (but without giving effect
to any conflict of laws rules). The parties agree that the courts of the
Province of Ontario shall have jurisdiction to entertain any action or other
legal proceedings based on any provisions of this Agreement. Each party hereby
attorns to the jurisdiction of the courts of the Province of Ontario.
5.7 Assignment - Neither this Agreement nor any rights or obligations hereunder
shall be assignable by either party without the prior written consent of the
other party, which consent may be unreasonably withheld. Subject thereto, this
Agreement shall enure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns.
5.8 Entire Agreement - With respect to the subject matter of this Agreement,
this Agreement (including the Exhibits hereto) supersedes all prior
understandings and communications between the parties oral or written, and
constitutes the entire agreement between the parties and any persons who have in
the past or who are now representing either of the parties. Each party
acknowledges and represents that this Agreement is entered into after full
investigation and that no party is relying upon any statement or representation
made by any other which is not embodied in this Agreement. Each party
acknowledges that he or it shall have no right to rely upon any amendment,
promise, modification, statement or representation made or occurring subsequent
to the execution of this Agreement unless the same is in writing and executed by
each of the parties.
5.9 Further Assurances - The parties shall with reasonable diligence do all such
things and provide all such reasonable assurances as may be required to
consummate the transactions contemplated hereby, and each party hereto shall
provide such further documents or instruments required by the other party as may
be reasonably necessary or desirable to effect the purpose of this Agreement and
carry out its provisions.
5.10 Counterparts - This Agreement may be executed in any number of counterparts
and all such counterparts shall for all purposes constitute one agreement,
binding on the parties hereto, provided each party hereto has executed at least
one counterpart, and each shall be deemed to be an original, notwithstanding
that all parties are not signatory to the same counterpart.
IN WITNESS WHEREOF the parties hereto have duly executed this
Agreement as of the date first written above.
XXXXXXX.XXX INC.
-----------------------------------
Per: Xxxxxxx Xxxxxxxx, President
I have the authority to bind the
corporation
ITEX CORPORATION
-----------------------------------
Per: Xxxxxx Xxxxxxxxxxx, CEO and
President
I have the authority to bind the
corporation
