ASSET PURCHASE AGREEMENT BY AND AMONG
AEON TECHNOLOGIES, LTD., A TEXAS LIMITED PARTNERSHIP
AND
CONTEMPORARY CONSTRUCTORS NEVADA, INC., A NEVADA CORPORATION,
AS PURCHASER
CHARYS HOLDING COMPANY, INC., A DELAWARE CORPORATION, AS
CORPORATION
TABLE OF CONTENTS
ARTICLE I
Agreement to Purchase and Sell
ARTICLE I1
Purchase Price
2.1 Purchase Price
2.2 Purchase Price Adjustment Mechanism
2.3 Common Stock Issued to the Sellers
ARTICLE I11
3.1 Organization
3.2 Subsidiaries and Affiliates
3.3 Authorization
3.4 No Violation
3.5 Financial Statements
3.6 Contracts
3.7 Title and Related Matters
ARTICLE rv
4.1 Shares Held For Own Account
4.2 No Registration
4.3 Investment Knowledge
ARTICLE V
5.1 Corporate Organization
5.2 Capital Stock
5.3 Authorization
5.4 No Violation
5.5 Financial Statements
5.6 Brokerage
5.7 Disclosure
ARTICLE VI
6.1 Regular Course OF Business
6.2 Consents
6.3 Breach of Agreement
6.4 Bulk Sale
6.5 Confidentiality
ARTICLE VII
7.1 Consents
7.2 Breach of Agreement
7.3 Confidentiality
ARTICLE VIII
8.1 Employment, Non-Competition and Incentive Compensation Agreements
8.2 Further Assurances
ARTICLE IX
9.1 Representations and Warranties; Performance
9.2 Consents AND Approvals
9.3 Opinion of the Seller's Counsel
9.4 No Material Adverse Change
9.5 No Proceeding or Litigation
9.6 Proceedings and Documents
9.7 Employment Agreements
9.8 Other Documents
ARTICLE X
10.1 Representations and Warranties; Performance
10.2 Consents and Approvals
10.3 Opinion of Purchaser's Counsel
10.4 No Proceeding or Litigation
10.5 Proceedings and Documents
10.6 Secretary's Certificate
10.7 Certificate of Good Standing
10.8 Employment Agreements
10.9 Indemnification Agreement
10.10 Registration Rights Agreement
10.11 Other Documents
ARTICLE XI
11.1 Closing
11.2 Intervening Litigation
11.3 Obligations of Seller
11.4 Obligations of Purchaser
ARTICLE XI1
12.1 Methods of Termination
12.2 Termination of Obligations
ARTICLE XI11
13.1 The Seller's Agreement to Indemnify
13.2 The Purchaser's Agreement to Indemnify
13.3 Limitations on Indemnification
13.4 Third PARTY Indemnification
13.5 Survival; Time to Assert Claims
ARTICLE XIV
14.1 Amendment AND Modification
14.2 Entire Agreement
14.3 Certain Definitions
14.4 Notices
14.5 Assignment
14.6 Governing Law
14.7 Dispute Resolution
14.8 Counterparts
14.9 Headings
14.10 Binding Effect
14.11 Delays or Omissions
14.12 Severability
14.13 Expenses
EXHIBITS
EXHIBIT A Equipment and Supplies
EXHIBIT B Contracts
EXHIBIT C Leases
EXHIBIT D Accounts Receivable
EXHIBIT E Secured Promissory Note
EXHIBIT F Security Agreement
EXHIBIT G Purchase Price Formula
EXHIBIT H Registration Rights Agreement
EXHIBIT I Employment Agreement, Xxxx Xxxxx
EXHIBIT J Employment Agreement, Xxxxx Xxxxxxxxx
EXHIBIT K Seller's Certificate
EXHIBIT L Purchaser's Certificate
EXHIBIT M Purchaser's Secretary Certificate
EXHIBIT N Xxxx of Sale
EXHIBIT O Assignment, Assumption, and Consent Agreement
SCHEDULES
Schedule 2.2.2 Seller's Special Purpose Financial Statement
Schedule 3.3 Contract defaults, liens and legal authorities of Seller
Schedule 3.4.1 Seller's Financial Statements
Schedule 3.4.2 Additional Debts and Liabilities
Schedule 3.5 (a) - (d) Additional Contracts
Schedule 3.6.1 Title Defects
Schedule 3.6.4.1 Additional Trade Names
Schedule 3.6.4.2 Proprietary Rights and Claims
Schedule 5.2 Stock Options and Conversion Rights
Schedule 5.4 Contract defaults, liens and legal authorities of Purchaser
Schedule 5.5.1 Accounting Requirements
Schedule 9.3 Opinion of Seller's Counsel
Schedule 10.3 Opinion of Purchaser's Counsel
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered into
this 9th day of April, 2006, by and between AEON TECHNOLOGIES, LTD., a Texas
limited partnership (the "Seller"), and CONTEMPORARY CONSTRUCTORS NEVADA, INC.,
a Nevada corporation (the "Buyer" or "PURCHASER").
The Seller desires to sell to the Buyer and the Buyer desires to purchase
from the Seller 100% of the assets of the Seller on the terms and conditions
contained in this Agreement.
In consideration of the mutual covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
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AGREEMENT TO PURCHASE AND SELL
Subject to the terms, provisions and conditions set forth in this
Agreement, on the date specified in Section 1 1.1 hereof (the "Closing Date"),
the Seller shall sell, transfer and convey to the Buyer, and the Buyer shall
purchase from the Seller all of its assets, including but not limited to the
following (hereinafter called the "Assets"):
(a) All of the Seller's rights, title and interest in and to the
equipment, fixtures and supplies described on EXHIBIT "A" attached to this
Agreement (the "Equipment and Supplies").
(b) All of the Seller's right title and interest to the contracts
attached hereto as EXHIBIT "B" to this Agreement (the "Contracts").
(c) All of the Seller's right, title and interest in and to the Leases
to which Seller is a party, copies of which are attached as Exhibit "Cn hereto.
(d) All of the Seller's right, title and interest in and to any
accounts receivable of the Seller, specifically listed on EXHIBIT "D" hereto.
(e) All intellectual property, including but not limited to the trade
name, trademark, or any other identifying name, owned by Seller and related to
the above-described assets.
ARTICLE II
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PURCHASE PRICE
2.1 The Purchaser agrees to pay to the Seller at the Closing (as defined in
Article 11.1 below) aggregate consideration of $2,088,000 (the "PURCHASE PRICE")
by delivery of (i) $907,000 to Seller ("CASH CONSIDERATION") (ii) $1,211,011 in
shares of Common Stock of Charys Holding Company, Inc., (hereinafter the
"Corporation") a publicly traded Delaware
corporation (hereinafter called the "Common Stock") to the SELLER for the
balance thereof ("STOCK CONSIDERATION") as described below in Section 2.1.3 of
this Agreement. The aggregate consideration is subject to adjustment pursuant to
Section 2.2 of this Agreement.
2.1.1 The Cash Consideration shall be issued to Seller as follows:
Purchaser and the corporation shall give Seller a Secured
Promissory Note ("Note") in a form attached as EXHIBIT "E"
requiring payment of:
a. $226,000 payment within 30 days of closing.
b. The remainder to be paid in three equal annual
installments on the anniversary of the closing date.
c. The Note shall bear interest at 8%
d. The Note shall be secured by the Assets pursuant to a
Security Agreement in a form attached hereto as EXHIBIT
"F".
2.1.2 The Stock Consideration shall be issued to the Xxxx and Xxxxxxxx
Xxxxx Irrevocable Trust . Whenever in this document there is a reference to
Seller receiving the Common Stock, Seller shall mean the Xxxx and Xxxxxxxx
Xxxxx Irrevocable Trust. The Common Stock shall be delivered as follows:
(a) At Closing (AS defined in Article 10.1 below), the
Purchaser shall cause to be issued to the Seller sufficient shares of Common
Stock in the Corporation (the "INITIAL STOCK TRANCHE"), reflecting fifty percent
(50%) of the total Stock Consideration to be paid to the Seller based upon a
share price of Four Dollars ($4.00) per share.
(b) 180 days after the Effective Date, the Purchaser shall
cause to be issued to the Seller additional shares of Common Stock in the
Corporation (the "SECOND STOCK TRANCHE") reflecting fifty percent (50%) of the
total Stock Consideration to be paid to the Seller based upon a share price of
Four Dollars ($4.00) per share.
(c) The number of shares of Common Stock issued will be
adjusted at the end of 25 days fRom the due date for filing by Charys Holding
Company, Inc. of the SEC prescribed 10Q for the full second quarter after
Closing (hereinafter the "Adjustment Date"):
If the Common Stock does not reach an average Market Price
of at least Four Dollars and Fifty Cents ($4.50) per share for at least three
(3) consecutive Trading Days prior to or including the Adjustment Date, then, at
the Purchaser's option, either:
(i) The Purchaser shall cause to be issued to the Seller
additional shares of Common Stock in the Corporation, the number of which shall
be determined pursuant to the following formula:
AS = (ISP/AVG)-IST
Where:
AS = the number of additional shares of Common Stock
to be issue.
AVG = the lesser of (x) (MPl+MP2)/2 or (y) 4.
ISP = $1,211,011
IST = the number of shares of Common Stock issued in
the Initial Stock Tranche and the Second Stock
Tranche.
MP1 = the average Market Price for the Common Stock
over the twenty-five (25) trading day period
beginning on the SEC prescribed due date for
filing the Purchaser's quarterly report on Form
10-Q or annual report on Form 10K with the SEC,
as the case may be, for the Purchaser's second
full fiscal quarter after Closing.
MP2 = he average Market Price for the Common Stock
over the twenty-five (25) day period ending on
the Make Whole Determination Date.
or;
(ii) The Purchaser shall pay the SELLER an amount equal
to AS multiplied by AVG, in cash by wire transfer of immediately available
funds; and in either case, such issuance or payment shall occur within thirty
(30) days of the eighteenth month after Closing (or that cash is paid in lieu of
such Second Stock Tranche pursuant to Section 2.2.3(c) above).
2.2 Purchase Price Adjustment Mechanism.
2.2.1 The aggregate consideration to be paid by the Purchaser to the
Seller is subject to a one-time adjustment based upon the Seller's
financial performance during the year preceding the Closing Date, as
described below. Attached as EXHIBIT "G" is a document reflecting the
formula used in determining the Purchase Price. This same methodology
shall be applied to the March 31, 2005 financial statement to
determine the Purchase Price Adjustment.
2.2.2 As soon as practicable, but in no event more than sixty (60)
days after the Determination Date, the Purchaser shall cause the
Seller to prepare and deliver to the Purchaser, special purpose
financial statements prepared in accordance with GAAP, applied on a
consistent basis in accordance with the Seller's historical accounting
policies and as described on SCHEDULE 2.2.2, showing results of
operation of the Seller as of the close of business for the one year
period (the
"DETERMINATION PERIOD") ending on the Closing (the "DETERMINATION DATE
FINANCIAL STATEMENTS"), which Determination Date Financial Statements
shall be prepared at the expense of the Purchaser, by the Purchaser
accounting firm (the "AUDITOR"). In addition, the Purchaser shall bear
the expense of having an opening date balance sheet as of the
Effective Date, prepared by the Auditor in accordance with GAAP,
applied on a consistent basis in accordance with the Seller's
historical accounting policies. The parties acknowledge that the
Determination Date Financial Statements are for the sole of
determining adjustments to the Purchase Price and may not reflect the
actual financials of the Seller used in preparing the Purchaser's
consolidated financial statements.
2.2.3 The PURCHASER shall have thirty (30) days from the date the
Determination Date Financial Statements are delivered by the Seller to
review the Determination Date Financial Statements and propose any
adjustments for the purpose of determining adjustments to the Purchase
Price. If after discussion of any such proposed adjustments, either
party disputes such adjustments, then the Purchaser and the Seller
shall engage a nationally recognized accounting firm (the "Alternate
Auditor") to review the disputed items. The Alternate Auditor's
determination of the disputed items with respect to the determination
of the Purchase Price shall be final and binding upon the Parties,
without adjustment. All invoices submitted by the Alternate Auditor
shall be paid by the Purchaser and the Seller equally.
2.2.4 The "ADJUSTED PURCHASE PRICE" for the Assets shall be 4 times
the Seller's consolidated EBIDTA for the Determination Period, as
calculated h m the Determination Date Financial Statements.
(a) In the event that the Adjusted Purchase Price is equal to or
greater than $906,909 and less than $2,088,000 pursuant to clause
(x) above, then no later than 5 days following the date on which
the Determination Date Financial Statements is finalized pursuant
to Section 1.3.3, the SELLER shall transfer to the Purchaser, ON
A PRO-RATA BASIS, the number of shares of Common Stock issued as
Stock Consideration to the SELLER equal in Base Value to the
amount determined by taking the difference between the $2,088,000
and the Adjusted Purchase Price, and dividing such number by the
Average Issue Price Per Share (the "Shortage Amount") of $4,
regardless of the actual value of such Common Stock. If the Base
Value of all of the shares of Common Stock owned by SELLER is
less than the Shortage Amount, then Seller shall transfer all of
the shares of Common Stock owned by IT, to Purchaser, and the
Seller note will be adjusted for any remaining Shortage Amount.
(b) In the event that the Adjusted Purchase Price is greater than
$2,088,000 pursuant to clause (x) above, then no later than 5
days following the date on which the Determination Date Financial
Statements is finalized pursuant to Section 1.3.3, If the
Purchase Price is greater than the Estimated Purchase Price, then
the Purchaser shall pay to the Seller,
THE difference between the Adjusted Purchase Price and $2,088,000
(the "PURCHASE PRICE BALANCE"), as follows:
(i) The Purchase Price Balance, shall, at the option of the
Purchaser, be paid in (i) cash by wire transfer of
immediately available funds or (ii) shares of Common Stock
(using the $4.00 Price for such Common Stock to calculate
the number of shares to be issued).
(c) The Seller hereby agrees that it shall deliver any shares of
Common Stock required to pay the Shortage Amount, if any, free
and clear of all Liens.
2.3 Common Stock Issued to the Xxxx and Xxxxxxxx Xxxxx Irrevocable Trust.
2.3.1 No fractional shares of Common Stock shall be issued to the
Seller hereunder, and the number of shares of Common Stock to be
issued shall be rounded down to the nearest whole share. If A
fractional share interest arises pursuant to any calculation in
Section 2.3 or elsewhere herein, the Purchaser shall eliminate such
fractional share interest by paying the Seller the amount computed by
multiplying the fractional interest by the price of a full share (with
such price being the same price used to determine the shares then
being issued).
2.3.2 The Common Stock shall be restricted bearing a legend as
follows:
"The Shares of Stock represented by this certificate have not
been registered under the securities act of 1933, as amended and
may not be sold or otherwise transferred unless a compliance with
the registration provisions of such act has been made or unless
availability of an exemption from such registration provisions
xxxx been established, or unless sold pursuant to Rule 144 under
the securities act of 1933."
2.3.3 The Seller shall be granted "piggy-back" registration rights,
with respect to all shares of Common Stock issued to the Seller
hereunder, as more specifically set forth in that certain Registration
Rights Agreement (the "REGISTRATION RIGHTS AGREEMENT") in the form
attached hereto as EXHIBIT "H". Shares to be delivered to Seller shall
be included in the next registration.
ARTICLE III
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REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser as of the date
hereof and as of the Closing Date that, to the best of its knowledge:
3.2 3.1 Organization. The Seller is a limited partnership duly organized,
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validly existing and in good standing under the laws of Texas with full power
and authority to carry
on its business as it is now being conducted and proposed to be conducted, and
to own, operate and lease its properties and assets.
3.2 Authorization. The Seller has full power and authority to enter into
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this Agreement and the agreements contemplated hereby and to deliver the Assets
free and clear of all Liens. The execution, delivery and performance of this
Agreement and all other agreements and transactions contemplated hereby have
been duly authorized by the General Partner and no other proceedings on its part
are necessary to authorize this Agreement and the transactions contemplated
hereby. This Agreement and all other agreements contemplated hereby to be
entered into by the Seller constitute a legal, valid and binding obligation of
the Seller enforceable against the Seller in accordance with their respective
terms.
3.3 No Violation. Other than as set forth in SCHEDULE 3.3, the execution,
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delivery and assignment by the Seller and all Assets contemplated hereby, and
the fulfillment of and compliance with the respective terms hereof and thereof
by the Seller do not and will not (a) conflict with or result in a breach of the
terms, conditions or provisions of or constitute a default or event of default
under (with due notice, lapse of time or both) of any contract to which the
Seller is a party; (b) or result in the creation of any Lien upon any of the
Assets; (c) give any third party the right to accelerate any obligations of the
Seller; (d) result in a violation of or require any authorization, consent,
approval, exemption or other action by or notice to any court or Authority.
3.4 Financial Statements.
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3.4.1 Unaudited year-end balance sheets and statements of operations, and
cash flow of the Seller as of December 31,2005 and unaudited balance
sheets for the period commencing January 1, 2006 and ending MARCH
31, 2006 (the "FINANCIAL STATEMENT DATE") and unaudited statements of
operations for the three (3) month period then ended (collectively,
the "FINANCIAL STATEMENTS") have been delivered to the Purchaser, and
are attached to SCHEDULE 3.4.1. Such balance sheets and the notes
thereto fairly present the financial position of the Seller as at the
respective dates thereof, and such Financial Statements (a) fairly
present the results of operations for the periods therein referred to,
all in accordance with GAAP (except as stated therein or in the notes
thereto) applied on a consistent basis; (b) fairly present the
financial condition of the Seller at the respective date of, and for
the period covered by such statements; and (c) (EXCEPT AS DISCLOSED IN
SCHEDULE 3.4.1,) are in accordance with the required or permitted
statutory accounting requirements or practices applied on a consistent
basis under the laws of the State of Texas. Since the Financial
Statement Date, no change has occurred in the condition of the Seller
as shown in the Financial Statements which HAS or could reasonably be
expected to have a Material Adverse Effect.
3.4.2 Except as set forth in SCHEDULE 3.4.2 hereto, the Seller does not
have any Indebtedness, obligation or liability (whether accrued,
absolute,
contingent, unliquidated or otherwise, known to the Seller, whether
due or to become due) arising out of transactions entered into or
Occurrences that occurred at or prior to the Closing Date, other than:
(a) liabilities set forth in the Financial Statements; and (b)
liabilities and obligations which have arisen after the Financial
Statement Date in the ordinary course of business (none of which is a
liability resulting from breach of Contract, breach of warranty, tort,
infringement, Claim or lawsuit). Purchaser shall assume only those
liabilities listed on the Financial Statements or otherwise stated on
Schedule 3.4.2
3.5 Contracts.
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3.5.1 Except as expressly contemplated by this Agreement or as set forth on
SCHEDULES 3.5.1(a)-(d) hereto, as of the Closing Date, the Seller is
not a party to any written or oral:
(a) Guarantee of any obligation;
(b) Contract under which the Seller is lessor of or permits any third
party to hold or operate any property, real or personal, owned or
controlled by the Seller;
(c) assignment, license, indemnification or Contract with respect to
any intangible property (including, without limitation, any
Proprietary Rights), other than software licenses in the ordiiary
course of business;
(d) Contracts providing for "take or pay" or similar unconditional
purchase or payment obligations.
3.6 Title and Related Matters.
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3.6.1 Except as set forth in SCHEDULE 3.6.1 hereto, the Seller has good and
marketable title to all of the properties and assets reflected in the
Financial Statements (except for properties and assets sold since the
Financial Statement Date in the ordinary course of business), free and
clear of all Liens, except (a) statutory Liens not yet delinquent; (b)
such imperfections or irregularities of title, Liens, easements,
charges or encumbrances as do not detract from or interfere with the
present use of the properties or assets subject thereto or affected
thereby, otherwise impair present business operations at such
properties; or do not detract from the value of such properties and
assets, taken as a whole; or (c) Liens reflected in the Financial
Statements or the notes thereto.
3.6.2 There has not been since the Financial Statement Date and will not be
prior to the Closing Date, any sale, lease or any other disposition or
distribution by the Seller of any of its assets or properties and any
other assets now or hereafter owned by it, except transactions in the
ordinary
and regular course of business, or as otherwise consented to by the
Purchaser.
3.6.3 Litigation. There is no Claim pending or threatened against the
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Assets which, if adversely determined, would have a Material Adverse
Effect, nor is there any Order outstanding against the Seller which
has, or could reasonably be expected to have, a Material Adverse
Effect, except as disclosed on SCHEDULE 3.6.3.
3.6.4 Intellectual Property.
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3.6.4.1 The Seller has no trade name, service xxxx, patent, copyright
or trademark related to its business, except those which are set forth in
SCHEDULE 3.6.4.1, which are all those necessary for the operation of its
business as currently conducted.
3.6.4.2 The Seller has the right to use each Proprietary Right listed
on SCHEDULE 3.6.4.2. There are no Claims pending, or threatened, against
the Seller that its use of any of the Proprietary Rights listed on SCHEDULE
3.6.4.2 infringes the rights of any Person.
3.6.4.3 The Seller is not a party in any capacity to any franchise,
license or royalty agreement respecting any Proprietary Right.
3.6.5 Disclosure. Neither this Agreement nor any of the exhibits,
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attachments, written statements, documents, certificates or other
items prepared for or supplied to the Purchaser by or on behalf of the
Seller with respect to the transactions contemplated hereby contains
any untrue statement of a material fact or omits a material fact
necessary to make each statement contained herein or therein not
misleading. There is no fact which the Seller has not disclosed to the
Purchaser in writing and of which the Seller or any of its executive
employees is aware and which could reasonably be anticipated to have a
Material Adverse Effect.
ARTICLE IV
ADDITIONAL REPRESENTATIONS OF THE SELLER
The Seller hereby represents and warrants to the Purchaser, as of the date
hereof and as of the Closing Date that, to the best of its knowledge:
4.1 Shares Held For Own Account. Any shares of Common Stock acquired by the
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Seller hereunder (the "ACQUIRED SHARES") are being acquired for the
Seller's own account; not as a nominee or agent, and not with a view to the
direct or indirect sale or distribution of any part thereof, and the Seller
has no present intention of selling, granting any participation in, or
otherwise distributing the same, except in compliance with the Securities
Act of 1933, as amended (the "SECURITIES ACT").
4.2 No Registration. The Seller understands and acknowledges that the
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Acquired Shares have not been registered under the Securities Act or any
state securities laws, are being sold in reliance upon an exemption or
exemptions from the registration and prospectus delivery requirements of
the Securities Act and applicable state securities laws, and must be held
by the Seller indefinitely unless a subsequent disposition thereof is
registered under the Securities Act and applicable state securities laws or
is exempt therefrom.
4.3 Investment Knowledge. The Seller has the knowledge, skill and
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experience in financial, business and investment matters relating to an
investment of this type and are capable of evaluating the merits and risks
of such investment and protecting the Seller's interests in connection
therewith. To the extent deemed necessary by the Seller, the Seller has
retained, at the Seller's own expense, appropriate professional advice
regarding the investment, tax and legal merits and consequences of
acquiring AND owning the Acquired Shares.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Seller as follows as of the
date hereof and as of the Closing Date, to the best of its knowledge:
5.1 Corporate Organization. The Purchaser is a corporation duly organized,
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validly existing and in good standing under the laws of its jurisdiction of
incorporation with full corporate power and authority to carry on its
business as it is now being conducted and to own, operate and lease its
properties and assets.
5.2 Capital Stock. As of MARCH 1, 2006 the entire authorized capital stock
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of Charys Holding Company, Inc. consists of THREE HUNDRED MILLION
(300,000,000) shares of Common Stock with $0.001 par value per share, of
which 15,734,019 shares are issued and outstanding,. Since FEBRUARY 28,
2005, no Common Stock has been issued other than Common Stock trading on
the OTC Bulletin Board. All issued and outstanding shares of Common Stock
having been validly issued and are fully paid and nonassessable, with no
personal liability or preemptive rights attaching to the ownership thereof.
Except as set forth on SCHEDULE 5.2, no instruments or securities of any
kind exist which are convertible into additional shares of the capital
stock of the Corporation, nor do any outstanding options, warrants, rights,
calls, commitments, plans or other arrangements or agreements of any
character exist providing for the purchase or issuance of any additional
shares of the Corporation.
5.3 Authorization. The Purchaser and the Corporation has full corporate
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power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby. The directors of the Purchaser and the
Corporation have duly authorized the execution, delivery and performance of
this Agreement and the transactions contemplated hereby, and no other
corporate proceedings on its part are necessary to authorize this Agreement
and the transactions contemplated hereby. This Agreement constitutes the
legal, valid and binding obligation of the Purchaser enforceable against it
in accordance with its terms.
5.4 No Violation. Other than as set forth in SCHEDULE 5.4, the execution
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and delivery by the Purchaser of this Agreement, and all other agreements
contemplated hereby, and the fulfillment of and compliance with the
respective terms hereof and thereof by the Purchaser do not and will not
(a) conflict with or result in a breach of the terms, conditions or
provisions of or constitute a default or event of default under (with due
notice, lapse of time or both) of any contract to which the Purchaser is a
party; b) result in the creation of any Lien upon any of the Common Stock
or assets; c) give any third party the right to accelerate any obligations
of the Purchaser; or d) result in a violation of or require any
authorization, consent, approval, exemption or other action by or notice to
any court or Authority pursuant to, the charter or bylaws of the Purchaser,
or any Regulation, Order or Contract to which the Purchaser or its
properties are subject. The Purchaser will comply with all applicable
Regulations and Orders in connection with the execution, delivery and
performance of this Agreement and the transactions contemplated hereby
5.5 Financial Statements.
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5.5.1 Audited year-end balance sheets and statements of operations,
stockholders equity of Charys Holding Company, Inc. as of April
30, 2005 and unaudited balance sheets for the period commencing
May 1,2005 and ending JANUARY 31, 2006 (the "PURCHASER FINANCIAL
STATEMENT DATE") and unaudited statements of operations,
stockholders equity and cash flow for the three (3) month period
then ended (collectively, the "PURCHASER FINANCIAL STATEMENTS")
have been delivered to the Seller. Such balance sheets and the
notes thereto fairly present the financial position of the
Purchaser as at the respective dates thereof, and such statements
of operations, stockholders equity and cash flow and the notes
thereto (a) fairly present the results of operations for the
periods therein referred to, all in accordance with GAAP (except
as stated therein or in the notes thereto) applied on a
consistent basis; (b) fairly present the financial condition of
the Purchaser at the respective date of, and for the period
covered by such statements; and (c) except as disclosed in
SCHEDULE 5.5.1, are in accordance with the required or permitted
statutory accounting requirements or practices applied on a
consistent basis under the laws of the State of Delaware. Since
the Purchaser Financial Statement Date, no change has occurred in
the condition of the Purchaser as shown in the Purchaser
Financial Statements which has or could reasonably be expected to
have a Material Adverse Effect.
5.6 Brokerage. No broker, agent or finder has rendered services to the
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Purchaser in connection with the transactions contemplated under this
Agreement.
5.7 Disclosure. Neither this Agreement nor any of the exhibits,
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attachments, written statements, documents, certificates or other items
prepared for or supplied to the
Seller by or on behalf of the Purchaser with respect to the transactions
contemplated hereby contains any untrue statement of a material fact or
omits a material fact necessary to make each statement contained herein or
therein not misleading. There is no fact which the Purchaser has not
disclosed to the Seller in writing and of which the Purchaser or its
officers, directors or executive employees is aware and which could
reasonably be anticipated to have a Material Adverse Effect.
ARTICLE VI
COVENANTS OF THE SELLER
Until the Closing Date, except as otherwise consented to or approved by the
Purchaser in writing, the Seller covenants and agrees that it shall act or
refrain from acting where required hereinafter, to comply with the following:
6.1 Regular Course of Business. The Seller shall operate its business
------------------------------
diligently and in good faith, consistent with past management practices;
shall maintain its properties in good order and condition, shall maintain
(except for expiration due to lapse of time) all leases and Contracts
described herein in effect without change except as expressly provided
herein; shall materially comply with the provisions of all Regulations and
Orders applicable to the Seller and the conduct of its business.
6.2 Consents. The Seller shall use its best efforts to obtain on or prior
---------
to the Closing Date, all consents necessary to the consummation of the
transactions contemplated hereby.
6.3 Breach of Agreement. The Seller shall not take any action prior to the
--------------------
Closing Date, would constitute a breach of this Agreement.
6.4 Bulk Sale. Seller covenants that in completing this transaction it has
----------
complied with any applicable bulk sale or transfer laws of the state of
Texas.
6.5 Confidentiality. The Seller shall, and shall cause its respective
----------------
principals and other personnel and authorized representatives to, hold in
confidence, and not disclose to any other party without the Purchaser's
prior consent, all information received by it from the Purchaser or its
officers, directors, employees, agents, counsel and auditors in connection
with the transactions contemplated hereby except as may be required by
applicable law or as otherwise contemplated herein.
ARTICLE VII
COVENANTS OF THE PURCHASER
The Purchaser hereby covenants and agrees with the Seller that:
7.1 Consents. The Purchaser shall use its best efforts to obtain on or
---------
prior to the Closing Date, all consents necessary to the consummation of
the transactions contemplated hereby.
7.2 Breach of Agreement. The Purchaser shall not take any action which, if
--------------------
taken prior to the Closing Date, would constitute a breach of this
Agreement.
7.3 Confidentiality. The Purchaser shall, and shall cause its principals,
----------------
officers and other personnel and authorized representatives to, hold in
confidence, and not disclose to any other party without the Seller's prior
consent, all information received by it from the Seller or its officers,
directors, employees, agents, counsel and auditors in connection with the
transactions contemplated hereby except as may be required by applicable
law or as otherwise contemplated herein.
7.4 Purchaser covenants that in completing this transaction it has or will
comply with any applicable bulk sale or transfer laws of the state of
Georgia.
7.5 Purchaser covenants to pay immediately when due all attorneys' fees and
costs incurred on behalf of Seller, Purchaser and any successors and
assigns thereof, in the ongoing litigation styled Elite Communications, et
al. x. Xxxx Xxxxx Xxxxx, Aeon Technologies, LLC, Aeon Management Ltd., Xxxx
& Xxxxxxxx Xxxxx Irrevocable Trust, et al., In the 95h Judicial District
Court of Dallas County, Texas, referred to as Cause No. 05-12812.
ARTICLE VIII
OTHER AGREEMENTS
As a condition to the Parties' obligation to consummate the transactions
contemplated hereby:
8.1 Employment. Non-Com-petition and Incentive Compensation Agreements.
----------------------------------------------------------------------
Xxxx Xxxxx, and Xxxxx Xxxxxxxxx (collectively, the "MANAGERS") shall at the
Closing, execute and deliver the Employment, Non-Competition and Incentive
Compensation Agreements in the forms of EXHIBIT "I" and EXHIBIT "J" hereto,
respectively (each an "EMPLOYMENT AGREEMENT").
8.2 Further Assurances. Subject to the terms and conditions of this
--------------------
Agreement, each of the Parties hereto shall use its best efforts to take,
or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable Regulations to
consummate and make effective the transactions contemplated by this
Agreement. If at any time after the Closing Date the Purchaser shall
consider or be advised that any further deeds, assignments or assurances in
law or in any other things are necessary, desirable or proper to vest,
perfect or confirm, of record or otherwise, in the Purchaser, the title to
any property or rights of any of the Seller acquired or to be acquired by
reason of, or as a result of, the acquisition, the Seller agrees that the
Seller shall execute and deliver all such proper deeds, assignments and
assurances in law and do all things necessary, desirable or proper to vest,
perfect or confirm title to such property or rights in the Purchaser and
otherwise to carry out the purpose of this Agreement.
ARTICLE IX
CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER
Each and every obligation of the Purchaser under this Agreement shall be
subject to the satisfaction, on or before the Closing Date, of each of the
following conditions unless waived in writing by the Purchaser:
9.1 Representations and Warranties; Performance. The representations and
----------------------------------------------
warranties of the Seller contained in this Agreement and all information
contained in any exhibit, schedule or attachment hereto or in any writing
delivered by, or on behalf of, the Seller shall be true and correct in all
material respects when made and shall be true and correct in all material
respects on the Closing Date as though then made, except as expressly
provided herein. The Seller shall have performed and complied in all
material respects with all agreements, covenants and conditions required by
this Agreement to be performed and complied with by them prior to the
Closing Date. The Seller shall have delivered to the Purchaser a
certificate (which shall be addressed to the Purchaser), dated the Closing
Date, in the form of EXHIBIT "K" hereto, ("Seller's Certificate"),
certifying to the foregoing.
9.2 Consents and Approvals. The Seller shall have obtained any and all
-----------------------
material consents, approvals, orders, qualifications, licenses, permits or
other authorizations, required by all applicable Regulations, Orders and
Contracts of the Seller or binding on their respective properties and
assets, with respect to the execution, delivery and performance of the
Agreement and the consummation of the transactions contemplated hereby,
including, without limitation, any consents required from any Bank or
Financial institution utilized by Seller.
9.3 Opinion of the Seller's Counsel. The Purchaser shall have received an
---------------------------------
opinion of the Seller's outside counsel addressed to the Purchaser, dated
the Closing Date, in the form set forth on SCHEDULE 9.3.
9.4 No Material Adverse Change. There shall have been no Material Adverse
---------------------------
Change to the Assets since the date of this Agreement, which representation
shall be attested to in the Seller's Certificate.
9.5 No Proceeding or Litigation. No preliminary or permanent injunction or
----------------------------
other Order, decree or ruling issued by any Authority, or any Regulation
promulgated or enacted by any Authority shall be in effect, which would
prevent the consummation of the transactions contemplated hereby.
9.6 Proceedings and Documents. All proceedings in connection with the
----------------------------
transactions contemplated hereby and all documents and instruments incident
to such transactions shall be reasonably satisfactory in substance and form
to the Purchaser and the Purchaser's counsel, and the Seller shall have
made available to the Purchaser for examination the originals or true,
complete and correct copies of all records and
documents relating to the assets of the Seller which the Purchaser may
reasonably request in connection with said transaction.
9.7 Employment Agreements. The Seller shall have executed and delivered the
----------------------
Employment Agreements.
9.8 Other Documents. The Seller shall furnish the Purchaser with such other
----------------
and further documents and certificates as the Purchaser shall reasonably
request to evidence compliance with the conditions set forth in this
Agreement.
ARTICLE X
CONDITIONS TO THE OBLIGATIONS OF THE SELLER
Each and every obligation of the Seller under this Agreement shall be
subject to the satisfaction, on or before the Closing Date, of each of the
following conditions unless waived in writing by the Seller, as applicable:
10.1 Representations and Warranties; Performance. The representations and
---------------------------------------------
warranties of the Purchaser contained in this Agreement and all information
contained in any exhibit, schedule or attachment hereto shall be true and
correct in all material respects when made and shall be true and correct in
all material respects on the Closing Date as though then made, except as
expressly provided herein. The Purchaser shall have performed and complied
in all material respects with all agreements, covenants and conditions
required by this Agreement to be performed and complied with by it prior to
the Closing Date. An officer of the Purchaser, shall have delivered to the
Seller a certificate, dated the Closing Date, in the form of EXHIBIT "L"
hereto, certifying to the foregoing.
10.2 Consents and Approvals. The Purchaser shall have obtained any and all
-----------------------
material consents, approvals, subordinations, orders, qualifications,
licenses, permits or other authorizations with respect to the execution,
delivery and performance of the Agreement and the consummation of the
transactions contemplated hereby.
10.3 Opinion of the Purchaser's Counsel. The Seller shall have received an
-----------------------------------
opinion of the Purchaser's outside counsel addressed to the Seller, dated
the Closing Date, in the form set forth on SCHEDULE 10.3.
10.4 No Proceeding or Litigation. No preliminary or permanent injunction or
----------------------------
other Order, decree or ruling issued by any Authority, or any Regulation
promulgated or enacted by any Authority shall be in effect, which would
prevent the consummation of the transactions contemplated hereby.
10.5 Proceedings and Documents. All proceedings in connection with the
----------------------------
transactions contemplated hereby and all documents and instruments incident
to such transactions shall be reasonably satisfactory in substance and form
to the Seller and its counsel, and the Purchaser shall have made available
to the Seller for examination the originals or true, complete and correct
copies of all records and documents relating to the business
and affairs of the Purchaser which the Seller may reasonably request in
connection with said transaction.
10.6 Secretary's Certificate. The Seller shall have received a certificate,
------------------------
substantially in the form of EXHIBIT "M" hereto, of the secretary of the
Purchaser, as to the charter and bylaws of the Purchaser, the resolutions
adopted by the directors and stockholders of the Purchaser in connection
with this Agreement and the incumbency of the Purchaser's officers.
10.7 Certificate of Good Standing. At the Closing, the Purchaser shall have
-----------------------------
delivered to the Seller a certificate issued by Georgia Secretary of State
evidencing the good standing, with respect to both the conduct of business
and the payment of all franchise taxes, of the Purchaser as of a date not
more than thirty (30) days prior to the Closing Date
10.8 Employment Agreements. The Managers shall have executed and delivered
----------------------
the Employment Agreements.
10.9 Indemnification Agreement. The Purchaser shall have executed and
--------------------------
delivered the Indemnification Agreement.
10.10 Registration Rights Agreement. The Purchaser shall have executed and
------------------------------
delivered the Registration Rights Agreement attached hereto as EXHIBIT "H".
10.11 Other Documents. The Purchaser shall furnish the Seller with such
-----------------
other and further documents and certificates including certificates of the
Purchaser's officers and others as Seller shall reasonably request to evidence
compliance with the conditions set forth in this Agreement.
ARTICLE XI
CLOSING
11.1 Closing. Unless this Agreement shall have been terminated or abandoned
--------
pursuant to the provisions of ARTICLE XI, a closing of the transactions
contemplated by this Agreement (the "CLOSING") shall be held on the 30th
day of April, 2006, or on such other mutually agreed to date (the "CLOSING
DATE").
11.2 Intervening Litigation. If, prior to the Closing Date, any preliminary
-----------------------
or permanent injunction or other Order issued by a court of competent
jurisdiction or by any other Authority shall restrain or prohibit this
Agreement or the consummation of the transactions contemplated herein for a
period of fifteen (15) days or longer, the Closing shall be adjourned at
the option of either party for a period of thirty (30) days. If at the end
of such thirty-day period such injunction or Order shall not have been
favorably resolved, either party may, by written notice thereof to the
other, terminate this Agreement, without liability or further obligation
hereunder.
11.3 Obligations of Seller. On the Closing Date, the Seller shall execute
-----------------------
and deliver to the Purchaser the following:
(a) A Xxxx of Sale substantially in the form attached to this
Agreement as EXHIBIT "N" transferring and conveying the Assets to the
Purchaser and any such other documents or instructions of conveyance,
transfer or assignment as shall be necessary or appropriate to vest in the
Purchaser full, complete and good title to the Assets.
(b) A certificate of the General Partner of the Seller confirming the
accuracy as of the Closing Date of the warranties and representations of
the Seller contained in this Agreement and the performance of ALL covenants
and agreements of the Seller to be performed on or before the Closing Date;
(c) An Assignment, Assumption and Consent Agreement authorizing the
assignment of the Contracts to the Purchaser in the form attached to this
Agreement as EXHIBIT "O".
11.4 Obligations of Purchaser. On the Closing Date, the Purchaser shall pay
-------------------------
the Purchase Price as described in Article I1 and shall execute and deliver
to the Seller the following:
(a) A certificate of a duly authorized officer of the Purchaser
confirming the accuracy as of the Closing Date of the warranties and
representations of the Purchaser contained in this Agreement and the
performance of all covenants and agreements of the Purchaser to be
performed on or before the Closing Date;
ARTICLE XII
TERMINATION PRIOR TO CLOSING
12.1 Methods of Termination. This Agreement may be terminated and the
-------------------------
transactions herein contemplated may be abandoned at any time:
12.1.1 By mutual consent of the Purchaser and the Seller;
12.1.2 By the Seller in writing, without liability, if the Purchaser
shall (a) fail to perform in any material respect its agreements
contained herein required to be performed by it on or prior to
the Closing Date; or (b) materially breach any of its
representations, warranties or covenants contained herein, which
failure or breach is not cured within ten (10) days after the
Seller has notified the Purchaser of its intent to terminate this
Agreement pursuant to this Section 12.1.2;
12.1.3 By the Purchaser in writing, without liability, if the Seller
shall (a) fail to perform in any material respect their
agreements contained
herein required to be performed by them on or prior to the
Closing Date; or (b) materially breach any of their
representations, warranties or covenants contained herein, which
failure or breach is not cured within ten (10) days after the
Purchaser has notified the Seller of its intent to terminate this
Agreement pursuant to this Section 12.1.3;
12.1.4 By either the Seller or the Purchaser in writing, without
liability, if there shall be any order, writ, injunction or
decree of any court or governmental or regulatory agency binding
on the Purchaser, the Seller which prohibits or restrains the
Purchaser, the Seller from consummating the transactions
contemplated hereby, provided that the Purchaser, the Seller
shall have used their reasonable, good faith efforts to have any
such order, writ, injunction or decree lifted and the same shall
not have been lifted within (thirty) 30 days after entry, by any
such court or governmental or regulatory agency.
12.2 Termination of Obligations. Termination of this Agreement pursuant to
----------------------------
this ARTICLE XII shall terminate all obligations of the Parties
hereunder, except for the obligations under Sections 2.1.3, 6.5, 7.3,
12.2, and 13.13 hereof; provided, however, that termination pursuant
to Sections 12.1 -2, 12.1.3 or 12.1.5 hereof shall not relieve a
defaulting or breaching party from any liability to the other party
hereto.
ARTICLE XIII
INDEMNIFICATION
13.1 The Seller's Amendment to Indemnify. Subject to the terms and
----------------------------------------
conditions set forth herein, from and after the Closing, the Seller shall
indemnify and hold harmless the Purchaser, their Affiliates, any of their
respective successors or assigns and their respective directors, officers
or employees (each a "PURCHASER INDEMNIFIED PARTY") from and against all
liability, assessments, losses, charges, costs and expenses (including,
without limitation, interest, court costs, reasonable attorneys7 fees and
expenses) (collectively "PURCHASER DAMAGES") incurred by a Purchaser
Indemnified Party as a result of or arising out of (a) a breach of any
representation or warranty contained in ARTICLE II or ARTICLE III of this
Agreement; or (b) any breach of or noncompliance by the Seller with any
covenant or agreement contained in this Agreement.
13.2 The Purchaser's Agreement to Indemnify. Subject to the terms and
-------------------------------------------
conditions set forth herein, from and after the Closing, the Purchaser
shall indemnify and hold harmless the Seller and its Affiliates, any of
their respective successors or assigns and their respective directors,
officers or employees (each a "SELLER INDEMNIFIED PARTY") from and against
all liability, assessments, losses, charges, costs and expenses (including,
without limitation, interest, court costs, reasonable attorneys' fees and
expenses) (collectively "SELLER DAMAGES") incurred by a Seller Indemnified
Party as a result of or arising out of (a) a breach of any representation
or warranty contained in ARTICLE III and ARTICLE IV of this Agreement; (b)
any breach of or noncompliance by the Purchaser with any covenant or
agreement contained in this Agreement; and (c) any liability of the Seller.
(The Purchaser Indemnified Parties and Seller Indemnified Parties are
sometimes referred
to collectively herein as the "INDEMNIFIED PARTIES," "PURCHASER DAMAGES"
and "SELLER DAMAGES" are sometimes referred to collectively herein as
"DAMAGES.").
13.3 Limitations on Indemnification. The Seller's obligation to indemnify
--------------------------------
Purchaser Indemnified Parties pursuant to Section 13.1 hereof and the
obligations of the Purchaser to indemnify Seller Indemnified Parties
pursuant to Section 13.2 are subject to the following limitations, as well
as the other limitations set forth in this ARTICLE XIII:
13.3.1 No claim for indemnification shall be made against the Seller
unless the aggregate amount of Purchaser Damages exceeds $100,000
and, in such event, indemnification shall be made by the Seller
only to the extent that the aggregate amount of Purchaser Damages
exceeds $100,000.
13.3.2 In no event (a) shall the Seller's aggregate obligation to
indemnify Purchaser Indemnified Parties exceed $2,000,000, (b)
shall the Purchaser's aggregate obligation to indemnify the
Seller Indemnified Parties exceed $2,000,000 .
13.3.3 The amount of any Purchaser Damages or Seller Damages, as the
case may be, shall be reduced by (a) any amount actually received
by the Indemnified Parties with respect thereto under any
insurance coverage or from any other party responsible therefor;
and (b) the amount of any Tax benefit actually received by the
Indemnified Parties relating thereto. The Indemnified Parties
shall use all reasonable efforts to collect any amounts available
under such insurance coverage and from such other party alleged
to have responsibility. If the Indemnified Parties receive AN
amount under insurance coverage or from such other party with
respect to Purchaser Damages or Seller Damages, as the case may
be, at any time subsequent to any indemnification provided
pursuant to this ARTICLE XIII, then the Indemnified Party shall
promptly reimburse the Indemnifying P a . for any payment made or
expense incurred by the Indemnifying Party in connection with
providing such indemnification up to such amount received by the
Indemnified Party.
13.3.4 No party shall be entitled to seek indemnification to the
extent it was aware of the matter giving rise to such claim prior
to Closing.
13.3.5 The Seller may, at its option, pay any Purchaser Damages in
cash or by transfer of Common Stock having an aggregate fair
market value equal to such Purchaser Damages. For purposes of
this Section 13.3.5, the "fair market value" of third party
shares shall be the Market Price for such shares on the date of
any final judgment is entered or settlement is reached setting
forth the total amount of the Purchaser Damages. The "fair market
value" of shares in the Corporation shall be the then existing
issuance value.
13.4 Third Party Indemnification. The obligations of the Seller, or the (as
----------------------------
applicable, the "INDEMNIFYING PARTY") to indemnify Indemnified Parties
under Section 13.1 or Section 13.2 hereof, respectively, with respect
to Damages resulting from the assertion of liability by third parties
(each, as the case may be, a "CLAIM"), shall be subject to the
following terms and conditions:
13.4.1 Promptly after receipt by an Indemnified Party of notice by a
third party of any complaint or the commencement of any action or
proceeding with respect to which such Indemnified Party may be
entitled to receive payment from the other party for Damages,
such Indemnified Party shall, within ten (10) days, notify the
Seller, or the Purchaser as the appropriate Indemnifying Party,
of such complaint or of the commencement of such action or
proceeding; provided, however, that the failure to so notify the
Indemnifying Party shall relieve the Indemnifying Party from
liability under this Agreement with respect to such claim only
if, and only to the extent that, such failure to notify the
Indemnifying Party results in the forfeiture by the Indemnifying
Party of material rights and defenses otherwise available to the
Indemnifying Party with respect to such claim. In addition, the
Indemnified Party shall provide to the Indemnifying Party as
promptly as practicable thereafter such information and
documentation as may be reasonably requested by the Indemnifying
Party to support and verify. the claim asserted, so long as such
disclosure would not violate the attorney-client privilege of the
Indemnified Party. The Indemnifying Party may at its option
undertake the defense thereof by representatives of its own
choosing; provided, that any Indemnified Party may, in any event,
at its own expense, monitor and participate in, but not control,
the defense of such claim. If the Indemnifying Party within
thirty (30) days after notice of any such Claim fails to assume
the defense of such Claim, the Indemnified Parties will (upon
further notice to the Indemnifying Party) have the right to
undertake the defense, compromise or settlement of such claim on
behalf of and for the account and risk, and at the expense, of
the Indemnifying Party; provided, however, that as long as the
Indemnifying Party is reasonably contesting any claim in good
faith, the Indemnified Parties shall not pay or settle any such
claim.
13.4.2 Anything in this Section 13.4 to the contrary notwithstanding,
the Indemnifying Party shall not enter into any settlement or
compromise of any action, suit or proceeding or consent to the
entry of any judgment (a) which does not include as an
unconditional term hereof the delivery by the claimant or
plaintiff to the Indemnified Parties of a written release fkom
all liability in respect of such action, suit or proceeding; or
(b) for other than monetary damages without the prior written
consent of the Indemnifying Party, which consent shall not be
unreasonably withheld or delayed.
13.5 Survival; Time to Assert Claims.
------------------------------------
13.5.1 The representations, warranties, covenants and agreements
contained herein, except for covenants and agreements to be performed
by the Parties prior to the Closing, will not be extinguished by the
Closing but will survive the Closing, subject to the limitations set
forth in Section 13.5.2 below with respect to the time periods within
which claims for indemnity must be asserted. The covenants and
agreements to be performed by the parties prior to the Closing shall
expire at the Closing.
13.5.2 All claims for indemnification under this ARTICLE XIII which
are not extinguished by the Closing in accordance with Section 13.5.1
must be asserted no later than one (1) year after the indemnified
party receives notice of accrual; provided, however, that claims with
respect to losses arising out of or related in any way to the matters
described in Sections 2.3, 12.1(i), 12.2(ii) or 12.2(iii) may be made
without limitation, except as limited by law.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 Amendment and Modification. Subject to applicable law, this Agreement
---------------------------
may be amended, modified and supplemented only by written agreement of the
parties hereto.
14.2 Entire Agreement. This Agreement, including the schedules and exhibits
-----------------
hereto and the documents, certificates and instruments referred to herein,
embodies the entire agreement and understanding of the parties hereto in
respect of the transactions contemplated by this Agreement and supersedes
all prior agreements, representations, warranties, promises, covenants,
arrangements, communications and understandings, oral or written, express
or implied, between the parties with respect to such transactions,
including, without limitation, the letter of intent executed by the
parties, dated March 6, 2006. There are no agreements, representations,
warranties, promises, covenants, arrangements or understandings between the
parties with respect to such transactions, other than those expressly set
forth or referred to herein.
14.3 Certain Definitions.
---------------------
"Authority" means any governmental, regulatory or administrative body,
---------
agency, arbitrator or authority, any court or judicial authority, any
public, private or industry regulatory agency, arbitrator authority,
whether international, national, federal, state or local.
"Average Issue Price Per Share" means the average price per share at
-------------------------------
which a11 Common Stock was issued to the Seller hereunder.
"Base Value" means, with respect to Common Stock issued to the Seller,
-----------
the value of such stock determined by taking the price per share at which
such stock was issued to the Seller and multiplying by the number of shares
issued.
"Claim" means any action, claim, obligation, liability, expense,
-----
lawsuit, demand, suit, inquiry, hearing, investigation, notice of a
violation, litigation, proceeding, arbitration, or other dispute, whether
civil, criminal, administrative or otherwise, whether pursuant to
contractual obligations or otherwise.
"Common Stock" means the common stock, $0.001 par value per share, of
-------------
Charys Holding Company, Inc.
"Contract" means any agreement, contract, commitment, instrument or
--------
other binding arrangement or understanding, whether written or oral.
"Determination Date" means the date which is 365 days from the
-------------------
Effective Date.
"GAAP" means United States generally accepted accounting principles.
----
"Guarantee" means any guarantee or other contingent liability (other
---------
than any endorsement for collection or deposit in the ordinary course of
business), direct or indirect with respect to any obligations of another
Person, through an agreement or otherwise, including, without limitation,
(a) any endorsement or discount with recourse or undertaking substantially
equivalent to or having economic effect similar to a guarantee in respect
of any such obligations; and (b) any Contract (i) to purchase, or to
advance or supply funds for the payment or purchase of, any such
obligations; (ii) to purchase, sell or lease property, products, materials
or supplies, or transportation or services, in respect of enabling such
other Person to pay any such obligation or to assure the owner thereof
against loss regardless of the delivery or nondelivery of the property,
products, materials or supplies or transportation or services; or (iii) to
make any loan, advance or capital contribution to or other investment in,
or to otherwise provide funds to or for, such other Person in respect of
enabling such Person to satisfy an obligation (including any liability for
a dividend, stock liquidation payment or expense) or to assure a minimum
equity, working capital or other balance sheet condition in respect of any
such obligation.
"Indebtedness" with respect to any Person means any obligation of such
------------
Person for borrowed money, but in any event shall include (a) any
obligation incurred for all or any part of the purchase price of property
or other assets or for the cost of property or other assets constructed or
of improvements thereto, other than accounts payable included in current
liabilities and incurred in respect of property purchased in the ordinary
course of business; (b) the face amount of all letters of credit issued for
the account of such Person and all drafts drawn thereunder; (c) obligations
(whether or not such Person has assumed or become liable for the payment of
such obligation) secured by Liens; (d) capitalized lease obligations; and
(e) all Guarantees of such Person.
"Lien" means any security interest, lien, mortgage, pledge,
----
hypothecation, encumbrance, Claim, easement, restriction or interest of
another Person of any kind or nature.
"Market Price" shall be determined on the basis of: (a) the weighted
-------------
average sale price of the Common Stock on the principal stock exchange, or
the National Association of Securities Dealers' Automated Quotation
National Market System ("NASDAQ/NMS"), as the case may be, on which such
Common Stock is then listed or admitted to trading; (b) if the Common Stock
is not then listed or admitted to trading on any stock exchange or the
NASDAQNMS, as the case may be, then the average of the last reported
closing bid and asked prices on such day in the over-the-counter market, as
furnished by the NASDAQ system or the National Quotation Bureau, Inc.; (c)
if neither NASDAQ nor the National Quotation Bureau is at the time engaged
in the business of reporting such prices, then as furnished by any similar
firm then engaged in such business; or (d) if there is no such FM, as
furnished by any member of the National Association of Securities Dealers
("NASD) selected by the Purchaser, with the consent of the Seller (which
consent shall not be unreasonably refused or delayed), and which is not an
affiliate of the Purchaser.
"Material Adverse Change" means any developments or changes which
-------------------------
would have a Material Adverse Effect.
"Material Adverse Effect" means any circumstances, state of facts or
-------------------------
matters which might reasonably be expected to have a material adverse
effect on the business, operations, properties, assets, condition
(financial or otherwise), results, plans, strategies or prospects of a
Person.
"Occurrence" means any accident, happening or event which occurs or
----------
has occurred at any time prior to the Closing Date, which results in or
could result in a claim against the Seller or creates or could create a
liability or loss for the Seller.
"Order" means any decree, judgment, award, order, injunction, rule,
-----
consent of or by an Authority.
"Person" means any corporation, partnership, joint venture,
------
organization, entity, Authority or natural person.
"Proprietary Rights" means any patent, patent application, copyright,
-------------------
trademark, trade name, service xxxx, service name, trade secret, know-how,
confidential information or other intellectual property or proprietary
rights.
"Regulation" means any law, statute, rule, regulation, ordinance,
----------
requirement, announcement or other binding action of or by an Authority.
"Subsidiaries" means with respect to a Person, any business entity of
------------
which more than fifty percent (50%) of the voting stock or other equity
interests is owned or controlled, directly or indirectly, by such Person.
"Trading Day" means any day of the week when the U.S. stock markets
------------
are open for business.
14.4 Notices. Any notice, consent, approval, request, demand or other
--------
communication required or permitted hereunder must be in writing to be
effective and shall be deemed delivered and received (a) if sent by hand
delivery, upon delivery; (b) if sent by registered or certified mail,
return receipt requested, on the date on which such mail is received as
indicated in such RETURN receipt, or returned, if delivery is not accepted;
(c) if delivered by a nationally recognized courier, one business day AFTER
deposit with such courier; and (d) if sent by facsimile or electronic
transmission, in each case upon telephone or further electronic
communication from the recipient acknowledging receipt (whether automatic
or manual from recipient), as applicable, addressed as follows:
IF TO THE SELLER:
Xx. Xxxx Xxxxx
Aeon Technologies, Ltd.
00000 X. Xxxxxx Xxxx Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxx, I11
Xxxxxxxxx, Xxxxxxx and Xxxxxxx, P.C.
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
IF TO THE PURCHASER:
Xxxxx X. Xxx, Xx.
Contemporary Constructors Nevada, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx X0 00
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
WITH A COPY TO (WHICH WILL NOT CONSTITUTE NOTICE):
Xxxxxxx Xxxxxxx
Attorney at Law
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx 00000
Facsimile: (000) 000-0000
(or to such other address as any party shall specifjr by written
notice so given).
The evidence of forwarding of the notice provided hereinabove shall be
conclusive of such proper notice and any changes of address must be given in the
manner provided for notice herein.
14.5 Assignment. This Agreement and all of the provisions hereof shall be
-----------
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by
any of the parties hereto without the prior written consent of the other
parties.
14.6 Governing Law. This Agreement shall be governed by and construed in
---------------
accordance with the internal laws of the State of Nevada, without regard to
such state's principles of conflicts of laws
14.7 Dispute Resolution. Any action or proceeding seeking to enforce any
--------------------
provision of, or based on any right arising out of, this Agreement, whether
before or after the Closing, shall be brought in the courts of the State of
Nevada, County of Xxxxx, or in the United States District Court for the
Northern District of Nevada, and each of the parties consents to the
jurisdiction of such courts (and the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence
may be served on any party anywhere in the world. Each party to this
Agreement hereby knowingly, voluntarily and intentionally waives any rights
it may have to a trial by jury in respect of any litigation (whether as a
claim, counter-claim, affirmative defense, or otherwise) in connection with
this Agreement and the transactions contemplated hereby. The prevailing
party to any such litigation shall be entitled to payment of all its
reasonable legal fees and costs by the non-prevailing party. For purposes
of the foregoing sentence, the determination of which party is the
"prevailing party" shall be made in accordance with federal law.
14.8 Counterparts. This Agreement may be executed in two or more
-------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14.9 Headings. The article and section headings contained in this Agreement
---------
are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
14.10 Binding Effect. This Agreement shall not be construed so as to confer
---------------
any right or benefit upon any Person other than the signatories to this
Agreement and each of their respective successors and permitted assigns.
14.11 Delays or Omissions. No delay or omission to exercise any right,
-----------------------
power or remedy accruing to any party hereto, upon any breach or default of
any other party under this Agreement, shall impair any such right, power or
remedy of such party nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or of or in any similar
breach or default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the party of any party hereto of any
breach or default under this Agreement, or any waiver on the part of any
party of any provisions or conditions of this Agreement must be made in
writing and shall be effective only to the extent specifically set forth in
such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to any party, shall be cumulative and not alternative.
14.12 Severability. Unless otherwise provided herein, if any provision of
-------------
this Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any
way be effected or impaired thereby.
14.13 Expenses. Except AS otherwise set forth herein, the Purchaser and the
---------
Seller shall each bear its own expenses, including without limitation,
legal fees and expenses, with respect to this Agreement and the
transactions contemplated hereby.
[Signatures on Following Page]
IN WITNESS WHEREOF, the parties hereto have made and entered into this
Agreement the date first hereinabove set forth.
PURCHASER:
CONTEMPORARY CONSTRUCTORS
NEVADA, INC., A NEVADA CORPORATION
By:
---------------------------------
Name: Xxxxx X. Xxx. Jr.
-----------------
Title:
---------------------------------
CHARYS HOLDING COMPANY, INC., A
GEORGIA CORPORATION
By:
---------------------------------
Name: Xxxxx X. Xxx, Xx.
-----------------
Title:
---------------------------------
SELLER: AEON TECHNOLOGIES, LTD., A TEXAS
LIMITED PARTNERSHIP
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: General Partner
EXHIBIT A
EQUIPMENT AND SUPPLIES
EXHIBIT B
CONTRACTS
EXHIBIT C
LEASES
EXHIBIT D
ACCOUNTS RECEIVABLE
EXHIBIT E
SECURED PROMISSORY NOTE
EXHIBIT F
SECURITY AGREEMENT
EXHIBIT G
PURCHASE PRICE FORMULA
Estimated Purchase Price
Projected 12 month EBITDA $ 522,000
Multiple 4
------------
ESTIMATED PURCHASE PRICE $ 2,088,000
BASIS FOR INITIAL PAYMENT
INTRINSIC VALUE
Shareholder Equity $ 600,000
Multiple 2
------------
Maximum Initial Payment $ 1,200,000
MODIFICATION BASED ON
QUALITY OF BALANCE SHEET
Total Assets $ 990,000
Adjustments (from)
Accounts Receivable over 90 $ 100,000
days
Receivables from related $ 138,000
parties
Refundable Deposit $ -
50% of Unbilled Revenue $ -
60% of Work in process $ 100,000
Prepaid expenses $ 6,000
10% of A/P over 90 days $ 20,000
------------
Subtotal $ 626,000
Adjustments (to)
Loans from related parties to $ 121,000
be eliminated/deferred at
acquisition
50% of Xxxxxxxx in excess of $ -
cost
50 % of Unearned Revenue $ 1,200
------------
Total Adjusted Assets $ 748,200
============
Quality ratio (can not exceed)
100%)
Total Adjusted Assets/Total 75.58%
Assets
------------
Initial Payment $ 906,909 $ 906,909
------------
Balance of Estimated $ 1,181,091
Purchase Price
Actual EBITDA for $ 531,000
Determination Period
Multiple 4
------------
Final Purchase Price $ 2,124,000
Less: Initial Payment $ 906,909
110.00%
--------------------------
Balance due (limited to 110% $ 1,217,091 $ 1,299,200
of Balance of Estimated
Purchase Price)
==========================
BALANCE PAID $ 1,219,091
------------
Total Purchase Price Paid- $ 2,124,000
Cash/Stock Payout terms to
be negotiated
============
EARN OUT CALCULATION
Revenue-Projection $10,000,000 $18,000,000 $ 24,000,000
EBITDA- Projection 10.00% $ 1,000,000 $ 1,800,000 $ 2,400,000
Net Earnings - Projection 6.00% $ 600,000 $ 1,080,000 $ 1,440,000
EARNOUT GOAL $ 300,000 $ 540,000 $ 720,000
TOTAL EARNOUT GOAL $ 1,560,000
ACTUAL RESULTS
Revenue $11,000,000 $18,000,000 $ 22,000 000
EBITDA $ 1,000,000 $ 1,900,000 $ 2,200,000
Net Earnings $ 300,000 $ 1,100,000 $ 1,400,000
PERCENTAGE OF GOAL MET
Revenues 110.00% 100.00% 91.67%
EBITDA 100.00% 105.56% 91.87%
Net Earnings 90.00% 101.85% 97.22%
WEIGHTED CALCULATION FACTOR
Revenues 10.00% 11.00% 10.00% 9.17%
EBITDA 60.00% 60.00% 63.33% 55.00%
Net Earnings 30.00% 15.00% 30.56% 29.17%
Calculation Factor 86.00% 103.89% 93.33%
Earnout - Cash/Stock Payout terms $ 258,000 $ 561,000 $672,000
to be negotiated
TOTAL EARNOUT ACHIEVED $ 1,491,000
------------
TOTAL PURCHASE PRICE $ 3,615,000
INCLUDING EARNOUT
============
PURCHASE PRICE PAYOUT
Cash/Stock payout terms
Estimated purchase price $ 2,088,000
Initial payment $ 906,909
Initial Cash portion (4 yr $ 226,727 $ 226,727 $ 226,727 $ 226,727 $ 906,909
spread)
Stock portion (Stock value $4/ shares 295,273
share)
Earn out
50% cash $ 129,000 $ 280,500 $ 336,000 $ 972,227
50% stock (at year end market shares (at$4) $ 32,250 70,125 84,000 481,648
value)
EXHIBIT H
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is entered into as of , 2006, by and between CHARYS HOLDING
COMPANY, INC., a Delaware corporation (the "Company"), and AEON TECHNOLOGIES,
LTD., a Texas limited partnership (the "Holder").
WHEREAS, on even date herewith Charys Technology Group, Inc., a wholly
owned subsidiary of the Company, executed and delivered to the Holder that
certain Asset Purchase Agreement (the "Asset Purchase Agreement") whereby Charys
Technology Group, Inc. agreed to have the Company issue to the Holder up to
_________ shares of the Company's common stock, $.001 par value per share (the
"Company Common Stock"), in part payment for assets purchased as described in
the Asset Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
Registration Rights Available. Pursuant to the terms and conditions contained
--------------------------------
herein, and in the Asset Purchase Agreement, the Company agrees to provide the
Holder or any permitted assignee of the Holder (collectively, the "Holder") with
the right to "piggyback" (the "Registration Rights") on a FIRM commitment
underwritten offering with respect to the Company Common Stock and any other
securities issued or issuable at any time or from time to time in respect of the
Company Common Stock as a result of a merger, consolidation, reorganization,
stock split, stock dividend, recapitalization or other similar event involving
the Company (collectively, the "Registrable Securities").
Registration Rights. With respect to the Registration Rights, the parties agree
---------------------
as follows: Subject to Paragraph 2(b), the Company will (i) promptly give
to the Holder written notice of any registration relating to an
Underwritten Public Offering, and (ii) include in such registration (and
related qualification under blue sky laws or other compliance) such of the
Holder's Registrable Securities as are specified in the Holder's written
request or requests, mailed in accordance with the terms of this Agreement
within 30 days after the date of such written notice from the Company.
The right of the Holder to registration pursuant to the Registration Rights
shall be conditioned upon the Holder's participation in such underwriting,
and the inclusion of the Registrable Securities in the underwriting shall
be limited to the extent provided herein. The Holder shall (together with
the Company) enter into an underwriting agreement in customary form with
the managing underwriter selected for the Underwritten Public Offering by
the Company. Notwithstanding any other provision of this Agreement, if the
managing underwriter determines that marketing factors require a limitation
of the number of the Registrable Securities to be underwritten, the
managing underwriter may limit some or all of the Registrable Securities
that may be included in the registration and the Underwritten Public
Offering as follows: the number of the Registrable Securities that may be
included in the registration and the Underwritten Public Offering by the
Holder shall be determined by multiplying the number of the shares of the
Registrable Securities of all selling shareholders of the Company which the
managing underwriter is
willing to include in such registration and the Underwritten Public
Offering times a fraction, the numerator of which is the number of the
Registrable Securities requested to be included in such registration and
the Underwritten Public Offering by the Holder, and the denominator of
which is the total number of the Registrable Securities which all selling
shareholders of the Company have requested to be included in such
registration and the Underwritten Public Offering. To facilitate the
allocation of shares in accordance with the above provisions, the Company
may round the number of shares allocable to any such person to the nearest
100 shares. If the Holder disapproves of the terms of any such
underwriting, it may elect to withdraw therefrom by written notice to the
Company and the managing underwriter, delivered not less than seven days
before the effective date of the Underwritten Public Offering. Any of the
Registrable Securities excluded or withdrawn from the Underwritten Public
Offering shall be withdrawn from such registration, and shall not be
transferred in a public distribution prior to 60 days after the effective
date of the Registration Statement relating thereto, or such other shorter
period of time AS the underwriters may require.
Registration Procedure. With respect to the Registration Rights, the following
------------------------
provisions shall apply: The Holder shall be obligated to furnish to the
Company and the underwriters such information regarding the Registrable
Securities and the proposed manner of distribution of the Registrable
Securities as the Company and the underwriters may request in writing and
as shall be required in connection with any registration, qualification or
compliance refined to herein and shall otherwise cooperate with the Company
and the underwriters in connection with such registration, qualification or
compliance.
With a view to making available the benefits of certain rules and
regulations of the Securities and Exchange Commission (the "SEC") which may
at any time permit the sale of any Restricted Securities AS defined in Rule
144 ("Rule 144") promulgated under the Securities Act of 1933, AS amended
(the "Securities Act") to the public without registration, the Company
agrees to use its best lawful efforts to:
Make and keep public information available. as those terms are
----------------------------------------------------------------------
understood and defined in Rule 144 at all times during which the
----------------------------------------------------------------------
Company is subject to the reporting requirements of the Securities
----------------------------------------------------------------------
Exchange Act of 1934. as amended (the "Exchange Act"); File with the
----------------------------------------------------------------------
SEC in a timely manner all reports and other documents required of the
----------------------------------------------------------------------
Company under the Securities Act and the Exchange Act (at all times
----------------------------------------------------------------------
during which the Company is subject to such reporting requirements);
----------------------------------------------------------------------
and
---
So long as the Holder owns any Restricted Securities. to furnish to
----------------------------------------------------------------------
the Holder upon request a written statement from the Company as to its
----------------------------------------------------------------------
compliance with the reporting requirements of Rule 144 and with regard
----------------------------------------------------------------------
to the Securities Act and the Exchange Act (at all times during which
----------------------------------------------------------------------
the Company is subject to such reporting requirements), a copy of the
----------------------------------------------------------------------
most recent annual or quarterly report of the Company. and such other
----------------------------------------------------------------------
reports and documents of the Company and other information in the
----------------------------------------------------------------------
possession of or reasonably obtainable by the Company as the Holder
----------------------------------------------------------------------
may reasonably request in availing itself of any rule or regulation of
----------------------------------------------------------------------
the SEC allowing the Holder to sell any Restricted Securities without
----------------------------------------------------------------------
registration.
-------------
The Company agrees that it will furnish to the Holder such number of
prospectuses meeting the requirements of Section 10(a)(3) of the Securities
Act, offering circulars or other documents incident to any registration,
qualification or compliance referred to herein as provided or, if not
otherwise provided, as the Holder from time to time may reasonably request.
All expenses (except for any underwriting and selling discounts and
commissions and legal fees for the Holder's attorneys) of any registrations
permitted pursuant to this Agreement and of all other offerings by the
Company (including, but not limited to, the expenses of any qualifications
under the blue sky or other state securities laws and compliance with
governmental requirements of preparing and filing any post-effective
amendments required for the lawful distribution of the Registrable
Securities to the public in connection with such registration, of supplying
prospectuses, offering circulars or other documents) will be paid by the
Company.
In connection with the preparation and filing of any Registration Statement
under the Securities Act pursuant to this Agreement, the Company will give
the Holder and the Holder's attorneys and accountants, the opportunity to
participate in the preparation of any Registration Statement, each
prospectus included therein or filed with the SEC, and each amendment
thereof or supplement thereto, and will give each of them such access to
its BOOKS and records and opportunities to discuss the business of the
Company with its officers and the independent public accountants who have
certified its financial statements as shall be necessary to conduct a
reasonable investigation within the meaning of the Securities Act.
The Company shall notify each Holder of Registrable Securities covered by a
Registration Statement, during the time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the happening of
any event as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
Blackout Period. At any time after the effective date of the Registration
Statement, if the Company gives to the Holder a notice pursuant to Paragraph
3(F) hereof and stating that the Company requires the suspension by the Holder
of the distribution of any of the Registrable Securities, then the Holder shall
cease distributing the Registrable Securities for such period of time (the
"Blackout Period"), not to exceed 120 days from the time notice is sent until
the Company informs the Holder that the Blackout Period has been terminated.
Upon notice by the Company to the Holder of such determination, the Holder will
(a) keep the fact of any such notice strictly confidential, (b) promptly halt
any offer, sale, trading or transfer of any of the Registrable Securities for
the duration of the Blackout Period, and (c) promptly halt any use, publication,
dissemination or distribution of each prospectus included within the
Registration Statement, and any amendment or supplement thereto by it and any of
its affiliates for the duration of the Blackout Period.
Lock-Up. In connection with any Underwritten Public Offering, the Holder agrees,
--------
if requested, to execute a lockup letter addressed to the managing underwriter
in customary form agreeing not to sell or otherwise dispose of the Registrable
Securities owned by the Holder (other than any that may be included in the
offering) for a period not exceeding 180 days.
Delay of Registration No. Holder shall have any right to obtain or seek an
-----------------------
injunction restraining or otherwise delaying any registration of the Registrable
Securities as the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
Indemnification by the Company. In the event of any registration of the
----------------------------------
Registrable Securities of the Company under the Securities Act, pursuant to the
terms of this Agreement, the Company agrees to indemnity and hold harmless the
Holder and each other person who participates as an underwriter in the offering
or sale of the Registrable Securities against any and all claims, demands,
losses, costs, expenses, obligations, liabilities, joint or several, damages,
recoveries and deficiencies, including interest, penalties and attorneys' fees
(collectively the "Claims"), to which the Holder or any such underwriter may
become subject under the Securities Act or otherwise, insofar as the Claims or
actions or proceedings, whether commenced or threatened, in respect thereto
arise out of or are based on any untrue statement or alleged untrue statement of
any material fact contained in any Registration Statement under which the
Holder's Registrable Securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse the Holder and each such underwriter for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
Claim or action or proceeding in respect thereto; provided that the Company
shall not be liable in any such CASE to the extent that any Claim or action or
proceeding in respect thereof or expense arises out of or is based on an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance on and in conformity
with written information furnished to the Company through an instrument duly
executed by the Holder specifically stating that it is for use in the
preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Holder or any such
underwriter and survive the transfer of the Registrable Securities by the
Holder.
Indemnification by the Holder. The Company may require, as a condition to
---------------------------------
including the Registrable Securities in any Registration Statement filed
pursuant to this Agreement, that the Company shall have received an undertaking
satisfactory to it from the Holder, to indemnify and hold harmless (in the same
manner and to the same extent as set forth in Paragraph 7 hereof) the Company,
each director and officer of the Company and each other person, if any, who
controls the Company within the meaning of the Securities Act, with respect to
any statement or alleged statement or alleged statement in or omission or
alleged omission from the Registration Statement, any preliminary prospectus
contained therein, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made in reliance on and in
conformity with written information furnished to the Company through an
instrument duly executed by the Holder specifically stating that it is for use
in the preparation of the Registration Statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. Notwithstanding the
foregoing, the maximum liability hereunder which the Holder shall be required to
suffer shall be limited to the net proceeds to the Holder from the Registrable
Securities sold by the Holder in any such offering. Such indemnity shall remain
in full force and effect, regardless of any investigation made by or on behalf
of the Company or any such director, officer or controlling person and shall
survive the transfer of the Registrable Securities by the Holder.
Notice of Claims. Promptly after receipt by an indemnified party of notice of
-------------------
the commencement of any action or proceeding involving a Claim, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of such action,
provided that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under this
Agreement except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnifying party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of a Claim the indemnifying party shall be entitled
to participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect of a Claim.
Indemnification Payments. The indemnification required by this Agreement shall
--------------------------
be made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
Assignment of Registration Rights. The rights to cause the Company to register
------------------------------------
Registrable Securities pursuant to this Agreement may be assigned by the Holder
to a transferee or assignee of such securities who shall, upon such transfer or
assignment, be deemed a Holder under this Agreement; provided that the Company
is furnished with written notice of the name and address of such transferee or
assignee and the Registrable Securities with respect to which the Registration
Rights are being assigned; provided, further, that such assignment shall be
effective only if immediately following such transfer the further disposition of
such securities by the transferee or assignee is restricted under the Securities
Act and that such transferee or assignee is either (a) a member of the immediate
family or a trust for the benefit of any Holder that is an individual or (B) a
transferee or assignee that after the transfer or assignment holds all of the
Registrable Securities.
Termination of this Amendment. This Agreement shall terminate with respect to
---------------------------------
the Holder when all of the Registrable Securities have been registered as
provided herein.
No Contracts, Arrangements, Understandings or Relationships with Respect to
--------------------------------------------------------------------------------
Securities. There are no contracts, arrangements, understandings or
relationships (legal or otherwise) by any party to this Agreement, or any other
person with respect to the Company Common Stock, or any other securities of the
Company, including but not limited to transfer or voting of any of the Company
Common Stock, or any other securities of the Company, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of profits,
division of profits or loss, or the giving or withholding of proxies.
Attorneys' Fees. In the event that it should become necessary for any party
-----------------
entitled hereunder to bring suit against any other party for enforcement of the
covenants contained herein, the parties hereby covenant and agree that the party
who is found to be in violation of this Agreement shall also be liable to the
other parties for all reasonable attorneys' fees and costs of court incurred by
such other parties.
Arbitration. Any controversy or claim arising out of or relating to this
------------
Agreement, or the breach, termination, or validity thereof, shall be settled by
final and binding arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association ("AAA Rules") in effect as of the
effective date of this Agreement.
The American Arbitration Association shall be responsible for (a) appointing a
sole arbitrator, and (B) administering the case in accordance with the AAA
Rules. The sites of the arbitration shall be Atlanta, Georgia. Upon the
application of either party to this Agreement, and whether or not an arbitration
proceeding has yet been initiated, all courts having jurisdiction hereby are
authorized to: (x) issue and enforce in any lawful manner, such temporary
restraining orders, preliminary injunctions and other interim measures of relief
AS may be necessary to prevent harm to a party's interest or as otherwise may be
appropriate pending the conclusion of arbitration proceedings pursuant to this
Agreement; and (y) enter and enforce in any lawful manner such judgments for
permanent equitable relief as may be necessary to prevent harm to a party's
interest or as otherwise may be appropriate following the issuance of arbitral
awards pursuant to this Agreement. Any order or judgment rendered by the
arbitrator may be entered and enforced by any court having competent
jurisdiction.
Benefit. All the terms and provisions of this Agreement shall be binding upon
--------
and inure to the benefit of and be enforceable by the parties hereto, and their
respective heirs, executors, administrators, personal representatives,
successors and permitted assigns. Notwithstanding anything herein contained to
the contrary, the Company shall have the right to assign this Agreement to any
party without the consent of the Holder.
Conflict. Notwithstanding anything herein contained to the contrary, in the
---------
event of any conflict between the terms of the Asset Purchase Agreement or this
Agreement, the terms of this Agreement shall control.
Notices. All notices, requests, demands, and other communications hereunder
--------
shall be in writing and delivered personally or sent by registered or certified
United States mail, return receipt requested with postage prepaid, by facsimile,
or by e-mail, if to the Company, addressed to Xx. Xxxxx Xxx at ________,
telecopier (___)_______ , and if to the Holder, addressed to _________ at
_______ , telecopier (___)_______ , and e-mail _________. Any party may change
its address for purposes of receiving notices pursuant to this Agreement upon 10
days written notice.
Construction. Words of any gender used in this Agreement shall be held and
-------------
construed to include any other gender, and words in the singular number shall be
held to include the plural, and vice versa, unless the context requires
otherwise. In addition, the pronouns used in this Agreement shall be understood
and construed to apply whether the party referred to is an individual,
partnership, joint venture, corporation or an individual or individuals doing
business under a firm or trade name, and the masculine, feminine and neuter
pronouns shall each include the other and may be used interchangeably with the
same meaning.
Waiver. No course of dealing on the part of any party hereto or its agents, or
-------
any failure or delay by any such party with respect to exercising any right,
power or privilege of such party under this Agreement or any instrument referred
to herein shall operate as a waiver thereof, and any single or partial exercise
of any such right, power or privilege shall not preclude any later exercise
thereof or any exercise of any other right, power or privilege hereunder or
thereunder.
Cumulative Rights. The rights and remedies contained in this Agreement shall be
------------------
cumulative and the exercise or partial exercise of any such right or remedy
shall not preclude the exercise of any other right or remedy.
Invalidity. In the event any one or more of the provisions contained in this
-----------
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
the other provisions of this Agreement or any such other instrument.
General Assurances. The parties agree to execute, acknowledge, and deliver all
--------------------
such further instruments, and do all such other acts, as may be necessary or
appropriate in order to carry out the intent and purposes of this Agreement.
Time of the Essence. Time is of the essence of this Agreement.
-----------------------
Headings. The headings used in this Agreement are for convenience and reference
---------
only and in no way define, limit, amplify or describe the scope or intent of
this Agreement, and do not effect or constitute a part of this Agreement.
Excusable Delay. The parties shall not be obligated to perform and shall not be
-----------------
deemed to be in default hereunder, if the performance of a non-monetary
obligation required hereunder is prevented by the occurrence of any of the
following, other than as the result of the financial inability of the party
obligated to perform: acts of God, strikes, lock-outs, other industrial
disturbances, acts of a public enemy, war or war-like action (whether actual,
impending or expected and whether de jure or de facto), acts of terrorists,
arrest or other restraint of governmental (civil or military), blockades,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires,
hurricanes, storms, floods, washouts, sink holes, civil disturbances,
explosions, breakage or accident to equipment or machinery, confiscation or
seizure by any government of public authority, nuclear reaction or radiation,
radioactive contamination or other causes, whether of the kind herein enumerated
or otherwise, that are not reasonably within the control of the party claiming
the right to delay performance on account of such occurrence.
No Third-Party Beneficiary. Any agreement to pay an amount and any assumption of
---------------------------
liability contained in this Agreement, express or implied, shall be only for the
benefit of the undersigned parties and their respective
successors and assigns (as herein expressly permitted), and such agreements and
assumptions shall not inure to the benefit of the obligees or any other party,
whomsoever, it being the intention of the parties hereto that no one shall be or
be deemed to be a third-party beneficiary of this Agreement.
Governing law; Jurisdiction. This Agreement shall be governed by and construed
------------------------------
in accordance with the laws of the State of Georgia without regard to any
conflicts of laws provisions thereof. Each party hereby irrevocably submits to
the personal jurisdiction of the United States District Court located in
Atlanta, Georgia, as well as of the Superior Courts of the State of Georgia in
Xxxxxx County, Georgia over any suit, action or proceeding arising out of or
relating to this Agreement. Each party hereby irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such mediation, arbitration, suit, action or
proceeding brought in any such county and any claim that any such mediation,
arbitration, suit, action or proceeding brought in such county has been brought
in an inconvenient forum.
Multiple Counterparts. This Agreement may be executed in one or more
-----------------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Entire Amendment. This instrument contains the entire understanding of the
------------------
parties with respect to the subject matter hereof, and may not be changed
orally, but only by an instrument in writing signed by each of the parties
hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above.
CHARYS HOLDING COMPANY, INC.
By
-----------------------------------------
Xxxxx Xxx, President
AEON TECHNOLOGIES, LTD.
By
--------------------
Xxxx Xxxxx, General Partner
EXHIBIT I
EMPLOYMENT AGREEMENT XXXX XXXXX
EXHIBIT J
EMPLOYMENT AGREEMENT XXXXX XXXXXXXXX
EXHIBIT K
SELLER'S CERTIFICATE
EXHIBIT L
PURCHASER'S CERTIFICATE
EXHIBIT M
PURCHASER'S SECRETARY CERTIFICATE
EXHIBIT N
STATE OF GEORGIA
COUNTY OF XXXXXX
XXXX OF SALE
------------
This Xxxx of Sale is made this ___ day of _______, 2006, by and between
AEON TECHNOLOGIES, LTD., a Texas limited partnership (the "Transferor"), and
CONTEMPORARY CONSTRUCTORS NEVADA, INC., a Nevada corporation (the "Transferee").
This Xxxx of Sale is being delivered pursuant to a Purchase and Sale
Agreement (the "Agreement") entered into by and between the Transferor and the
Transferee, on June 22, 1998. Under the terms of the Agreement, the Transferor
has agreed to sell, transfer and convey to the Transferee certain assets of the
Transferor for a purchase price set forth in the Agreement.
For and in consideration of the Purchase Price and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Transferor has sold, transferred and conveyed and by this Xxxx of Sale does
hereby sell, transfer and convey to the Transferee, its successors and assigns
forever, all of the assets of the Transferor, including but not limited to the
following:
(1) All of the Seller's rights, title and interest in and to the
equipment, fixtures and supplies described on EXHIBIT A attached to this
Agreement (the "Equipment and Supplies").
(2) All of the Seller's right title and interest to the contracts
attached hereto as EXHIBIT B to this Agreement (the "Contracts").
(3) All of the Seller's right, title and interest in and to the Leases
to which Seller is a party, copies of which are attached as EXHIBIT "C" hereto.
(4) All of the Seller's right, title and interest in and to any
accounts receivable of the Seller, specifically listed on EXHIBIT "D" hereto.
(5) All intellectual property owned by Seller and related to the above
described assets.
The Transferor does for itself and its successors and assigns hereby
covenant with Transferee that it is the lawful owner of the property hereby
sold, transferred and conveyed; that such property is the subject of no
mortgage, pledge, lien, conditional sale agreement, encumbrance or charge; that
the Transferor has the right to sell, transfer, assign and convey the same as
herein provided, and that it will warrant and defend the same against all lawful
claims and demands of all persons, firms, associates and corporations.
All of the terms and provisions of the Agreement shall survive the
execution and delivery of this Xxxx of Sale and the closing of the transactions
contemplated by the Agreement.
This Xxxx of Sale and the covenants and agreements herein contained shall
inure to the benefit of and shall bind the Transferor and Transferee and their
respective successors and assigns.
IN WITNESS WHEREOF, Transferor has CAUSED this Xxxx of Sale to be executed
and delivered by its general partner thereunto duly authorized as of the day and
year first above written.
Signed, sealed and delivered in AEON TECHNOLOGIES, LTD., a Texas limited
partnership
the presence of:
By:
---------------------------------- -------------------------------------
Witness Its: General Partner
----------------
Attest:
---------------------------------- --------------------------------
Notary Public Secretary
[CORPORATE SEAL]
EXHIBIT O
ASSIGNMENT, ASSUMPTIONANDCONSENT AGREEMENT
------------------------------------------
This Assignment made this month ________ on this day ___________, 2006,
between AEON TECHNOLOGIES, LTD., a Texas limited partnership (hereinafter called
"Assignor"), and CONTEMPORARY CONSTRUCTORS NEVADA, INC. a Nevada corporation
(hereinafter called "Assignee").
RECITALS
WHEREAS, an Asset Purchase Agreement was entered into on ________,2006 by and
between Assignor (said agreement and D exhibits and amendments thereto being
attached hereto as Exhibit "A" and hereinafter referred to as the "Contract");
and
WHEREAS, Assignor desires to assign its rights under the Contract and to have
________ consent to such assignment so that the Assignor will have no further
obligation or liability under the Contract.
ASSIGNMENT
NOW, THEREFORE, for an in consideration of Ten Dollars ($10.00) and other
good and valuable consideration the receipt of which is hereby acknowledged, and
the agreement of the Assignee, hereinafter set forth, the Assignor hereby
assigns and transfers to the Assignee and its successors and assigns, all of
Assignor's right, title and interest in and to the Contract hereinbefore
described, and the Assignee hereby agrees to and does accept the assignment and
in addition expressly assumes and agrees to keep, perform and fulfill all the
terms, covenants, conditions and obligations required to be kept, including the
making of all payments due to or payable on behalf of the Assignor under said
Contract when due and payable.
BINDING ON SUCCESSORS
This agreement shall be binding on and inure to the benefit of the parties
hereto, their successors-in-interest and assigns.
EXECUTED the day and year first above written.
ASSIGNOR:
AEON TECHNOLOGIES, LTD.
By:
------------------------------
Its: General Partner
----------------
[CORPORATE SEAL]
ASSIGNEE:
CONTEMPORARY CONSTRUCTORS NEVADA,
INC.
By:
------------------------------
Its: President
---------
[CORPORATE SEAL]
By execution below, _____ hereby consents to and accepts this Assignment, and
hereby releases Assignor from any further liability or obligation under the
Contract.
ACCEPTED BY:
By:
------------------------------
Its:
------------------------------
[CORPORATE SEAL]
SCHEDULE 2.2.2
SELLER'S SPECIAL PURPOSE FINANCIAL STATEMENT
SCHEDULE 3.3
CONTRACT DEFAULTS, LIENS, AND LEGAL AUTHORITIES OF SELLER
SCHEDULE 3.4.1
SELLER'S FINANCIAL STATEMENTS
SCHEDULE 3.4.1
SELLER'S FINANCIAL STATEMENTS
SCHEDULE 3.4.2
ADDITIONAL DEBTS AND LIABILITIES
SCHEDULE 3.5.1(A) - (D)
ADDITIONAL CONTRACTS
SCHEDULE 3.6.1
TITLE DEFECTS
SCHEDULE 3.63
LITIGATION CLAIMS
SCHEDULE 3.6.4.1
ADDITIONAL TRADE NAMES
SCHEDULE 3.6.4.2
PROPRIETARY RIGHTS CLAIMS
SCHEDULE 5.2
STOCK OPTIONS AND CONVERSION RIGHTS
SCHEDULE 5.4
CONTRACT DEFAULTS, LIENS, LEGAL AUTHORITIES OF PURCHASER
SCHEDULE 5.5.1
ACCOUNTING REQUIREMENTS
SCHEDULE 9.3
OPINION OF SELLER'S COUNSEL
SCHEDULE 10.3
OPINION OF PURCHASER'S COUNSEL
