EXHIBIT 10.5
PARTNERSHIP PURCHASE AGREEMENT
THIS PARTNERSHIP PURCHASE AGREEMENT (this "AGREEMENT") is made as of
September 22, 2000 by and among Providential Holdings, Inc. ("Buyer") and Xxxxxx
X. Xxxxxxx, Inc. ("X. Xxxxxxx"), Xxxxxx X. Xxxxxxxxxx, Inc. ("Bankovitch"), the
Estate of Xxxxxx X. Xxxxxxx, ("X. Xxxxxxx"), Xxxxxx Xxxxxx, Xx. ("Xxxxxx") and
Xxxxxx X. Xxxxx ("Solon"), hereinafter collectively called "Sellers" or
"Partners."
BASIC TRANSACTION
The Sellers have been and now are Partners doing business under the
firm name of Xxxx & Xxxxxxx, hereinafter referred to as "the Partnership," with
principal place of business at Bayside Plaza, 000 Xxx Xxxxxxxxxxx, Xxxxx 000,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000. Sellers entered into and have continued in
the Partnership under the provisions of a written Restated General Partnership
Agreement made on January 1, 1982. A copy of that agreement is attached as
Exhibit 1. Except as provided herein, Sellers represent and warrant that no
other person or entity has any interest or claim of right to a partnership
interest in the partnership. The percentage interest of each partner is set
forth in attached Exhibit 2. This Agreement contemplates a transaction in which,
pursuant to the terms and subject to the conditions set forth herein, Buyer will
purchase from the Sellers, and the Sellers will sell to Buyer, all of their
interest in their Partnership, except as provided in this agreement, in exchange
for cash, as set forth below. This Agreement also contemplates that the Buyer
will assume and become liable for all of the debts, liabilities and
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obligations of the Partnership, whether accrued, absolute or contingent, except
as provided in this Agreement. The partners have the duty to disclose all debts,
liabilities, and obligations of the partnership, and the Buyer will not assume
any debts, liabilities and obligations of the Partnership unless they have been
fully disclosed by the time of the definitive agreement signing.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
SECTION 1. PURCHASE AND SALE OF PARTNERSHIP.
(a) PURCHASE AND SALE. Pursuant to the terms and subject to the
conditions set forth herein, at the Closing (as defined below), the Sellers
shall sell and transfer to Buyer and Buyer shall purchase from the Sellers the
Partner's interest in the Partnership for an aggregate purchase price as
determined pursuant to Section 1(c) below.
(i) EXCLUDED ASSETS. Notwithstanding the foregoing, the assets
of the Partnership not included in the transaction are listed in Exhibit 3
hereto. In addition, it is expresly agreed that the Partners, subsequent to the
closing of the transaction but not earlier than December 31, 2000, shall retain
the right to the name of the Partnership, i.e. Xxxx & Xxxxxxx and the Partners'
respective retail customers and customers lists which shall be assigned to
Partners effective on or before December 31, 2000.
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(b) THE CLOSING.
(i) THE CLOSING DATE. The closing of the purchase and sale of
the Partnership (the "CLOSING") shall take place at the offices of Xxxxxx,
Xxxxxxxxx & Xxxxxx at 8:00 a.m. local time on or before November 1, 2000, or as
extended pursuant to this agreement, but no later than January 31, 2001. The
date of the Closing hereunder is referred to herein as the "CLOSING DATE."
(ii) CLOSING PROCEDURES. Subject to the conditions set forth
in this Agreement:
(A) at Closing, the Sellers shall deliver to Buyer
possession of the assets of Xxxx & Xxxxxxx transferred to
Buyer under this agreement; and
(B) at Closing, Buyer shall deliver to the Sellers a
cashier's or certified check, or wire transfer of immediately
available funds to an account designated by the Sellers at
least 2 days prior to the Closing Date, in the amount of
$1,500,000.00 plus an amount equal to the net worth of Xxxx &
Xxxxxxx as calculated on May 31, 2000 or on the date of the
most recently filed Focus Report on file with the
NASD-Washington office, whichever date is later ("PRELIMINARY
NET WORTH"). This payment will be reduced by any
non-refundable deposits paid to Partners prior to closing.
Sellers acknowledge receipt of a non-refundable deposit of
$50,000.00 on June 2, 2000. Upon signing this Agreement, Buyer
will deposit an additional
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non-refundable deposit of $75,000.00 into an escrow account
at the Bank of San Francisco to be paid to the Xxxx &
Xxxxxxx' partners if this transaction is terminated as
provided herein. If for any reason the closing does not
occur on or before December 31, 2000 or extended to January
31, 2001 as provided herein, this contract shall terminate
and the partners shall be entitled to receive the $75,000.00
from the Bank of San Francisco and shall not be required to
refund it to Buyer. Prior to December 31, 2000, Buyer shall
have the option of extending the termination date of
December 31, 2000 to January 31, 2001 by depositing an
additional non-refundable deposit of $50,000.00 into the
escrow account at the Bank of San Francisco to be paid to
the Xxxx & Xxxxxxx' partners if this transaction is
terminated as provided herein. In the event that the Buyer
exercises the option to extend the termination date to
January 31, 2001, if for any reason the closing does not
occur on or before January 31, 2001 this contract shall
terminate and the partners shall be entitled to receive the
additional $50,000.00 from the Bank of San Francisco and
shall not be required to refund it to Buyer.
(c) THE PURCHASE PRICE. The purchase price for Partner's interest in
the Partnership is $1,500,000.00 plus the net worth of Xxxx & Xxxxxxx as of the
Closing Date.
(i) Within 30 days after the Closing Date, Buyer will cause to
be prepared and delivered to Sellers a draft statement (the "DRAFT
CLOSING STATEMENT") setting forth the Net Worth as of the Closing Date
immediately prior to giving
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effect to the transactions contemplated hereby (the "CLOSING NET
WORTH"). For purposes of this paragraph, "NET WORTH" means the total
assets of the Partnership minus the total liabilities of the
Partnership determined in accordance with generally accepted
accounting principles. Any adjustments to the "Net Worth" of the
Partnership must be agreed to in writing prior to the closing of the
transaction (e.g. payment of subordinated debt and return of stock
pledged).
(ii) If Sellers disagree with the computation of Closing Net
Worth reflected on the Draft Closing Statement, Sellers may, within 15
days after receipt of the Draft Closing Statement, deliver a written
notice (an "OBJECTION NOTICE") to Buyer setting forth Sellers'
calculation of Closing Net Worth. The Objection Notice shall
specifically state and shall only state those items or amounts as to
which the Sellers disagree and the basis of such disagreement, and
each Seller shall be deemed to have agreed with all other items and
amounts contained in the calculation of Closing Net Worth on the Draft
Closing Statement. If an Objection Notice is not delivered within such
time period, then the amount of Closing Net Worth set forth in the
Draft Balance Sheet shall be conclusive and binding upon the Parties.
(iii) If an Objection Notice is delivered within such time
period, Buyer and Sellers shall, during the 15 days following the
receipt by Buyer of such notice, use their reasonable efforts to reach
agreement on the disputed items or amounts in order to determine, as
may be required, the amount of Closing Net Worth, but if they do not
obtain a final resolution within 15 days after Buyer has received the
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Objection Notice, Buyer and Sellers will jointly retain an independent
accounting firm (the "FIRM") to resolve any remaining disagreements.
Buyer and Sellers shall direct the Firm to render a determination
within 30 days of its retention and the Parties and their respective
employees shall cooperate with the Firm during its engagement. The Firm
shall consider only those items and amounts in the Draft Balance Sheet
set forth in the Objection Notice which Buyer and Sellers are unable to
resolve. The Firm's determination shall be based on the definition of
Closing Net Worth included herein. The determination of the Firm will
be conclusive and binding upon the Parties. The cost of such review and
report by the Firm shall be borne equally by Buyer and Seller.
(iv) Buyer and Sellers agree that they will, and agree to
cause their respective independent accountants and Company to,
cooperate and assist in the preparation of the Draft Closing Statement
and the calculation of Closing Net Worth and in the conduct of the
audits and reviews referred to in this Section, including without
limitation, the making available to the extent necessary of books,
records, work papers and personnel.
(d) THE POST-CLOSING ADJUSTMENT PAYMENT.
(i) PAYMENT BY BUYER. If the Closing Net Worth is greater than
the Preliminary Net Worth, Buyer shall, within 3 days after the date
the Closing Net Worth is determined under and in accordance with the
above, deliver to the Sellers a check, or wire transfer of immediately
available funds to an account designated by the Sellers, in an
aggregate amount
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equal to the excess of the Closing Net Worth over the Preliminary Net
Worth.
(ii) PAYMENT BY THE SELLERS. If the Closing Net Worth is less
than Preliminary Net Worth, the Sellers shall (in proportion to their
interests sold), within 3 days after the date the Closing Net Worth is
determined under and in accordance with the above, deliver to Buyer a
check, or wire transfer of immediately available funds to an account
designated by Buyer, in an aggregate amount equal to the excess of the
Preliminary Net Worth over the Closing Net Worth.
SECTION 2. COVENANTS OF THE SELLERS.
(a) AFFIRMATIVE COVENANTS OF THE SELLERS. Prior to the Closing Date,
each of the Sellers covenant and agree as follows:
(i) The Sellers will cause the Partnership to, and the
Partnership will, conduct its business in the ordinary course of business.
Without limiting the generality of the foregoing, the Sellers will cause the
Partnership to maintain its books and records, pay expenses and payables,
xxxx customers, collect receivables, purchase inventory, perform all
maintenance and repairs necessary to maintain its facilities and equipment in
good operating condition (normal wear and tear excepted), replace inoperable,
worn out or obsolete assets with assets of comparable quality, maintain an
appropriate level of insurance, in each case, in the ordinary
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course of business in accordance with past custom and practice;
(ii) The Sellers will, and will cause the Partnership to, use
reasonable best efforts to preserve present business relationships, to the
extent such relationships are beneficial to the Partnership and its business,
and, except as otherwise directed by Buyer, to encourage the Partnership's
employees to continue their employment with the Partnership both before and
after the Closing;
(iii) The Sellers will, and will cause the Partnership and its
employees and agents (including attorneys and accountants) to, permit Buyer
employees, agents, accounting and legal representatives and its and their
representatives to have reasonable access at reasonable times to the
Partnership's books, records, invoices, contracts, leases, personnel,
facilities, equipment and other things reasonably related to the business and
assets of the Partnership, wherever located;
(iv) The Partnership and each Seller will promptly (once it
has knowledge thereof) inform Buyer in writing of any variances from the
representations and warranties contained in this Agreement or any breach of
any covenant hereunder by any of the Sellers or the Partnership;
(v) The Sellers will, and will cause the Partnership to, and
the Partnership will, cooperate with Buyer and use their reasonable best
efforts to make all filings and applications,
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to give all notices and to obtain all Consents necessary for the
consummation of the transactions contemplated by this agreement.
(b) NEGATIVE COVENANTS OF THE SELLERS. Prior to the Closing, without
Buyer's prior written consent, the Sellers will not, and will not cause
the Partnership to:
(i) except as expressly contemplated by this Agreement, take
or omit to take any action which, individually or in the aggregate, could be
reasonably anticipated to have a material adverse effect upon the business,
financial condition, operating results, employee relations, customer
relations, assets, operations, rights or business prospects of the
Partnership; and
(ii) sell, lease, license or otherwise dispose of any interest
in any of the Partnership's tangible or intangible assets other than in the
ordinary course of business, or permit any of the Partnership's assets or
property to be subjected to any Lien; and
(iii) except as expressly contemplated by this Agreement,
terminate, modify or amend any material Contract or any Consent of, with or
to any Governmental Entity or enter into any new material Contract, or amend
the Partnership's documents or agreement.
SECTION 3. CONDITIONS TO OBLIGATION OF BUYER. The obligation of Buyer
to consummate the transactions to be
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performed by it in connection with the Closing is subject to the
satisfaction of the following conditions as of the Closing:
(a) COMPLIANCE WITH LEGAL REQUIREMENTS. The consummation of the
transactions contemplated by the transaction will not be prohibited by any Legal
Requirement or subject Buyer or the Partnership to any penalty or liability or
other onerous condition arising under any Legal Requirement or imposed by any
Governmental Entity.
(b) CONSENTS. All filings, notices, licenses and other Consents of, to
or with, any regulatory entity that are required for (i) the consummation of the
transactions contemplated by the transaction; or (ii) for the conduct of the
business of Partnership as heretofore conducted, will have been duly made or
obtained by the Buyers and Sellers from, including but not limited to the
National Association of Securities Dealers, National Securities Clearing
Corporation/Depository Trust Company and Pacific Exchange. All filings, notices,
licenses and other Consents, as the case may be, must be filed within 3 business
days after the signing of this agreement. The parties will cooperate, in good
faith, in providing all information to the regulatory entity or entities as is
required. Further, it is agreed that time is of the essence in obtaining the
required regulatory approvals. It is therefore agreed that if the regulatory
entities request information and documentation from the parties, the requested
information and documentation will be provided within 30 calender days from the
date of the request from the regulatory entities. Buyer's failure to provide the
requested information within 30 days will be a breach of this agreement and in
this event, the non-refundable
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deposits of $75,000.00 and $50,000.00 referred to in Section 1(b)(ii)(B) shall
be immediately released by the Bank of San Francisco and paid to the Partners,
unless otherwise extended by the Partners.
(c) EMPLOYMENT OR INDEPENDENT CONTRACTOR AGREEMENTS. The partners of
Xxxx & Xxxxxxx and Buyer will execute, on closing, agreements retaining the
partners as employees or independent contractors of Buyer pursuant to the terms
and conditions agreed to between the parties prior to closing.
(d) APPROVAL OF BOARD OF DIRECTORS OF BUYER. The board of directors of
Buyer shall have approved the consummation of the transactions contemplated by
this Agreement.
(e) DUE DILIGENCE. Buyer is satisfied in all material respects with the
results of its business, legal, and accounting due diligence investigation and
review of the Partnership.
SECTION 4. CONDITIONS TO OBLIGATION OF SELLERS. The obligation of the
Sellers to consummate the transactions to be performed by them in connection
with the Closing is subject to satisfaction of the following conditions as of
the Closing:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Buyer set forth in Section 6 shall be true and correct at and as of the
Closing Date.
(b) PERFORMANCE OF COVENANTS. Buyer shall have performed in all
material respects all of the covenants and agreements required
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to be performed by it under this Agreement on or prior to the Closing Date.
(c) OFFICER'S CERTIFICATE. Buyer shall have delivered to the Sellers a
certificate to the effect that each of the conditions specified in Section 4(a)
and 4(b) have been satisfied.
(d) ASSUMPTION AGREEMENT. Buyer shall deliver to Seller an Assumption
Agreement in the form of Exhibit 4 hereto.
The Sellers may waive any condition specified in this Section 4 if it executes a
writing so stating at or prior to the Closing.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. As a material
inducement to Buyer to enter into and perform its obligations under this
Agreement, Sellers jointly and severally represent and warrant to Buyer that the
statements contained in this Section 5 are true and correct as of the date
hereof and will be true and correct as of the Closing Date.
(a) ORGANIZATION OF PARTNERSHIP. The Partnership is a California
general partnership, duly organized and validly existing under the laws of the
State of California.
(b) AUTHORIZATION; NO BREACH. The execution, delivery and performance
of the transaction to which the Partnership or any of the Sellers is a party,
have been duly authorized by the Partnership or the Sellers, as the case may be.
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(c) FINANCIAL STATEMENTS. Attached hereto as Exhibit 5 is the unaudited
balance sheets of the Partnership as of December 31, 1999 and March 31, 2000.
The foregoing financial statements are consistent with the books and records of
the Partnership (which, in turn, are accurate and complete in all material
respects) and present fairly the financial condition of the Partnership in
accordance with GAAP. Since the date of the Latest Balance Sheet, there has not
been any material change in the business, assets, financial condition, operating
results, employee relations, customer or manager relations or business prospects
of the Partnership not otherwise disclosed.
(d) ABSENCE OF UNDISCLOSED LIABILITIES. Except as set in Exhibit 6, the
Partnership has no Liability and, to the knowledge of the Partnership and the
Sellers, there is no basis for any proceeding, hearing, investigation, charge,
complaint or claim with respect to any Liability, except for (i) Liabilities
reflected on the face of Latest Balance Sheet, and (ii) Liabilities which have
arisen since the date of the Latest Balance Sheet in the ordinary course of
business (none of which relates to breach of contract, breach of warranty, tort,
infringement, violation of or liability under any Legal Requirements, or any
action, suit or proceeding and none of which is material individually or in the
aggregate).
(e) ASSETS. Except as set forth on the attached Exhibit 7, the
Partnership has good and marketable title to, or a valid leasehold interest in,
the properties and assets used by it, located on its premises or shown on the
Latest Balance Sheet or acquired thereafter, free and clear of all Liens, except
for properties and assets disposed of in the ordinary course of
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business since the date of the Latest Balance Sheet for fair value and except
for Liens disclosed on the Latest Balance Sheet (including any notes thereto)
and Liens for current property taxes not yet due and payable.
(f) CONTRACTS AND COMMITMENTS.
(i) Except as expressly contemplated by this Agreement or as
set forth on the attached Exhibit 8, the Partnership is not a party
to or bound by any written or oral contract in excess of $10,000
individually or in the aggregate exceeding $50,000.
(ii) With respect to the Partnership's obligations thereunder
and, with respect to the obligations of the other parties thereto, all
of the Contracts set forth or required to be set forth on the attached
Exhibit 8 or any other Schedule hereto are valid, binding and
enforceable in accordance with their respective terms. The Partnership
has performed all material obligations required to be performed by it
under such Contracts and is not in default under or in breach of nor in
receipt of any claim of default or breach under any such Contracts; no
event has occurred which with the passage of time or the giving of
notice or both would result in a default, breach or event of
noncompliance by Partnership under any such Contracts; and, to the
knowledge of Partnership and the Sellers, the Partnership is not a
party to any Contract requiring it to purchase or sell goods or
services or lease property above or below (as the case may be)
prevailing market prices and rates.
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(iii) A true, correct and complete copy of each of the written
Contracts referred to on the attached Exhibit 8 have been made
available to Buyer.
(g) LITIGATION, ETC. Except as set forth on the attached Exhibit 9 and
except where the liability of which is fully covered by Partnership's insurance
policies or programs, there are no actions, suits, proceedings, orders,
investigations or claims pending or threatened against or affecting the Sellers
or the Partnership (or pending or threatened against or affecting any of the
employees of the Partnership with respect to the Partnership's businesses or
proposed business activities), or pending or threatened by the Partnership or
the Sellers against any third party, at law or in equity, or before or by any
Governmental Entity (including any actions, suits, proceedings or investigations
with respect to the transactions contemplated by the transaction); neither the
Sellers nor the Partnership are subject to any arbitration proceedings under
collective bargaining Contracts or otherwise or, any governmental investigations
or inquiries; and, there is no valid basis for any of the foregoing. Neither the
Sellers nor the Partnership are subject to any judgment, order or decree of any
court or other Governmental Entity, and neither the Sellers nor the Partnership
have received any opinion or memorandum or legal advice from legal counsel to
the effect that it is exposed, from a legal standpoint, to any liability or
disadvantage which may be material to its business.
(h) INSURANCE. The attached Exhibit 10 lists and briefly describes each
insurance policy maintained for or on behalf of the Partnership with respect to
its properties, assets and business.
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All of such insurance policies are in full force and effect, and no default
exists with respect to the obligations of the Partnership or the Sellers under
any such insurance policies and neither the Sellers nor the Partnership has
received any notification of cancellation of any of such insurance policies. The
insurance coverage of the Partnership is of a type and amount customary for
entities of similar size engaged in similar lines of business.
(i) EMPLOYEES. Except as set forth on the attached Exhibit 11 neither
the Partnership nor the Sellers is aware that any executive or key employee of
the Partnership or any group of employees of the Partnership has any plans to
terminate employment with the Partnership. Neither the Partnership nor, to the
Partnership's and the Sellers' knowledge, any of the Partnership's employees is
subject to any noncompete, nondisclosure, confidentiality, employment,
consulting or similar Contracts relating to, affecting or in conflict with the
present or proposed business activities of the Partnership.
(j) COMPLIANCE WITH LAWS. Except as set forth on the attached Exhibit
12, the Partnership has complied with and is currently in compliance with all
applicable laws, ordinances, codes, rules, requirements, regulations and other
Legal Requirements of all Governmental Entities relating to the operation and
conduct of its businesses or any of its properties or facilities, including all
Legal Requirements relating to employment of labor, and neither the Partnership
nor any Seller has received notice of any violation of any of the foregoing.
(k) REAL PROPERTY. The Partnership does not own any Real
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Property. The attached Exhibit 13 lists all real property leased by the
Partnership (such property is referred to herein as the "LEASED PREMISES"). The
Leased Premises is the only real estate leased by The Partnership. The lease
under which Partnership leases the Leased Premises is in full force and effect
has been reviewed by Buyer, and which Buyer agrees to assume prior to the
closing of this transaction.
(l) LEGAL COMPLIANCE. The items described on Exhibit 14 constitute all
of the permits, filings, notices, licenses, consents, authorizations,
accreditation, waivers, approvals and the like of, to or with any Governmental
Entity or any other Person (collectively, the "CONSENTS") which are required for
the consummation of the transactions contemplated by the transaction or the
ownership of the assets or the conduct of the business of the Partnership.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF BUYER. As a material
inducement to the Sellers to enter into and perform their respective obligations
under this Agreement, Buyer represents and warrants that the statements
contained in this Section 6 are true and correct as of the date hereof and will
be true and correct as of the Closing Date.
(A) ORGANIZATION OF BUYER. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Nevada.
(B) AUTHORIZATION OF TRANSACTION. Buyer has full corporate power and
authority to execute and deliver this Agreement and to perform
its obligations hereunder. This Agreement
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constitutes the valid and legally binding obligation of Buyer,
enforceable in accordance with its terms and conditions.
(c) NONCONTRAVENTION. The execution, delivery and performance of the
transaction to which Buyer is a party do not and will not (i)
conflict with or result in a breach of the terms, conditions or
provisions of, (ii) constitute a default under, (iii) result in a
violation of, or (iv) require any authorization, consent,
approval, exemption or other action by or declaration or notice
to any Governmental Entity pursuant to, the charter or bylaws of
Buyer or any material agreement, instrument or other document, or
any material Legal Requirement, to which Buyer or its assets is
subject.
SECTION 7. ADDITIONAL AGREEMENTS.
(a) EXPENSES. Except as otherwise provided herein, Buyer shall pay its
own, and the Partnership shall prior to Closing pay the Seller's expenses
(including fees and expenses of legal counsel, or other representatives and
consultants) incurred in connection with or related to the sales process, the
negotiation of this Agreement, the performance of its (and in the case of the
Sellers, the Partnership's) obligations hereunder and thereunder, and the
consummation of the transactions contemplated by this Agreement.
(b) ASSUMED LIABILITIES. Notwithstanding anything to the contrary in
this Agreement, Buyer shall assume and become liable for all of the debts,
liabilities or obligations of Seller, whether
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accrued, absolute or contingent, whether known or unknown, whether due or to
become due and regardless of when or by whom asserted (including but not limited
to (i) the Lease at Bayside Plaza, 000 Xxx Xxxxxxxxxxx, Xxxxx 000, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, which is hereby assigned by Seller and assumed by
Buyer and (ii) accounts payable and other current liabilities as of the Closing
Date incurred in the ordinary course of business of Partnership including,
without limitation any debt, liability or obligation of Partnership arising out
of or related to facts, events, transactions, circumstances or occurrences
arising on or prior to the Closing Date.
(c) CONFIDENTIALITY. Each Party and each of its shareholders, partners,
officers, directors and Affiliates shall keep confidential all information and
materials regarding this Agreement and shall not be disclosed to anyone except
to a required regulatory body as required herein.
SECTION 8. REMEDIES FOR BREACHES OF THIS AGREEMENT.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of the Parties contained in this Agreement shall
survive the Closing.
(b) INDEMNIFICATION PROVISIONS. Except as provided herein, the partners
of Xxxx & Xxxxxxx will agree to protect, save, defend, indemnify, and hold
harmless Buyer from and against any and all expenses, damages, claims, suits,
action, judgments, and/or costs whatsoever, including attorney's fees, arising
out of, or in any
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way connected with, any claim or action arising out of Xxxx & Xxxxxxx business
activities prior to closing and/or performance under this Agreement. The
provisions of this section shall survive any termination or expiration of this
Agreement.
Buyer will agree to protect, save, defend, indemnify, and hold
harmless the partners from and against any and all expenses, damages, claims,
suits, action, judgments, and/or costs whatsoever, including attorney's fees,
arising out of, or in any way connected with, any claim or action arising out of
the Buyer's business activities of Xxxx & Xxxxxxx subsequent to closing and/or
performance under Agreement. The provisions of this section shall survive any
termination or expiration of this Agreement.
(c) MANNER OF PAYMENT. Any indemnification of the Buyer Parties or the
Sellers pursuant to this Section 8 shall be effected by cashier's or certified
check or by wire transfer of immediately available funds from Buyer or the
Sellers, as the case may be, to an account designated by Sellers or the Buyer,
as the case may be, within 10 days after the determination of indemnification
amounts. Any such indemnification payments shall include interest at the rate of
8% per annum from the date any such Adverse Consequence is suffered or sustained
to the date of such payment is due pursuant to this Section 8.2(c) and interest
at a rate of 10% thereafter until such Adverse Consequences are fully paid.
Interest on any such unpaid amount shall be compounded semi-annually, computed
on the basis of a 360-day year. Any indemnification payments made pursuant to
this Agreement shall be deemed to be adjustments to the Purchase Price for tax
purposes.
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SECTION 9. DEFINITIONS.
"ADVERSE CONSEQUENCES" means, with respect to any Person, any
diminution in value, consequential or other damage, Liability, demand, claim,
action, cause of action, cost, damage, deficiency, Tax, penalty, fine or other
loss or expense, whether or not arising out of a third party claim, including
all interest, penalties, reasonable attorneys' fees and expenses and all amounts
paid or incurred in connection with any action, demand, proceeding,
investigation or claim by any third party (including any Governmental Entity)
against or affecting such Person or which, if determined adversely to such
Person, would give rise to, evidence the existence of, or relate to, any other
Adverse Consequences and the investigation, defense or settlement of any of the
foregoing.
"CONTRACT" means any agreement, contract, instrument,
commitment, lease, guaranty, indenture, license, or other arrangement or
understanding between parties or by one party in favor of another party, whether
written or oral.
"GAAP" means United States generally accepted accounting
principles.
"GOVERNMENTAL ENTITY" means the United States of America, any
state or other political subdivision thereof, or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
government.
"LIABILITY" means any liability, debt, obligation, deficiency,
Tax penalty, fine, claim, cause of action or other
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loss, cost or expense of any kind or nature whatsoever, whether asserted or
unasserted, absolute or contingent, accrued or unaccrued, liquidated or
unliquidated, and whether due or become due and regardless of when asserted.
"LEGAL REQUIREMENT" means any requirement arising under any
law, rule or regulation or any determination or direction of any arbitrator or
any Governmental Entity.
"ORDINARY COURSE OF BUSINESS" means the ordinary course of the
Partnership's business consistent with past custom and practice, including as to
frequency and amount.
"PARTY" means any party hereto.
SECTION 10. MISCELLANEOUS.
(a) NO THIRD PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(b) ENTIRE AGREEMENT. This Agreement (including the documents referred
to herein) constitutes the entire agreement between the Parties and supersedes
the letter of intent dated May 31, 2000, and any prior understandings,
agreements or representations by or between the Parties, written or oral, that
may have related in any way to the subject matter hereof.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their
22
respective successors and permitted assigns, but neither this Agreement nor any
of the rights or obligations hereunder may be assigned (whether by operation of
law, through a change in control or otherwise) by the Partnership or the Sellers
without the prior written consent of Buyer, or by Buyer (except as otherwise
provided in this Agreement) without the prior written consent of the Sellers.
Buyer may (at any time prior to the Closing), at its sole discretion, assign, in
whole or in part, its rights and obligations pursuant to this Agreement to one
or more of its Affiliates. For purposes hereof, Buyer's "Affiliates" include
Affiliates which may be organized subsequent to the date hereof. Buyer may
assign all or any portion of this Agreement and the other agreements
contemplated hereby (including rights hereunder and thereunder), including its
rights to indemnification, to any of its or its Affiliates' (whether prior to or
subsequent to the Closing) lenders as collateral security. After the Closing,
Buyer may assign this Agreement and its rights and obligations hereunder in
connection with a (i) merger or consolidation involving Buyer or any of its
Affiliates, (ii) a sale of stock or assets of Buyer or any of its Affiliates or
(iii) dispositions of the business of the Partnership or any part thereof.
(d) COUNTERPARTS. This Partnership Purchase 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.
(e) HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
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(f) NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand, claim
or other communication hereunder shall be deemed duly given when delivered
personally to the recipient or sent to the recipient by telecopy (receipt
confirmed) or by reputable express courier service (charges prepaid), and
addressed to the intended recipients as set forth below:
If to the Sellers:
Xxxxxx X. Xxxxxxx
000 Xxx Xxxxxxxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000-0000
Xxxxxx X. Xxxxxxxxxx
000 Xxx Xxxxxxxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000-0000
WITH A COPY TO:
Xxxxxx, Xxxxxxxxx & Xxxxxx
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
IF TO BUYER:
Providential Holdings, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxx, XX 00000
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WITH A COPY TO:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Any Party may send any notice, request, demand, claim or other communication
hereunder to the intended recipient at the address set forth above using any
other means, but no such notice, request, demand, claim or other communication
shall be deemed to have been duly given unless and until it actually is received
by the intended recipient. Any Party may change the address to which notices,
requests, demands, claims, and other communications hereunder are to be
delivered by giving the other Party notice in the manner herein set forth.
(g) GOVERNING LAW AND ARBITRATION. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without giving
effect to any choice or conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than the State of California.
All disputes between Buyer and the Seller hereunder shall be settled by
arbitration before a single arbitration pursuant to the rules of the American
Arbitration Association, in San Francisco, California; provided, however, that
(a) the parties shall be permitted to have discovery in accordance with the
Federal Rules of Civil Procedure and (b) any award pursuant to such arbitration
shall be accompanied by a written opinion of the arbitrator giving the reasons
for the award. A request for arbitration shall be evidenced by the party
requesting arbitration giving notice of the intention to arbitrate
25
in accordance with the provisions of Section 10(f) hereof. The arbitrator shall
be selected by the joint agreement of Buyer and Seller, but if they do not so
agree within 20 days of the date of a request for arbitration, the selection
shall be made pursuant to the rules of the American Arbitration Association. The
award rendered by the arbitrator shall be final, conclusive and binding upon the
parties hereto, and judgment upon the award rendered may be entered by a
California Court having jurisdiction. Each party waives any right of appeal it
may have. Nothing herein set forth shall prevent Buyer and Seller from settling
any dispute by mutual agreement at any time.
(h) AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Parties hereto. No waiver by any Party of any default, misrepresentation, or
breach of warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
(i) INCORPORATION OF SCHEDULES. The Exhibits identified in this Agreement
are incorporated herein by reference and made a part hereof.
(j) SEVERABILITY OF PROVISIONS. If any covenant, agreement, provision or
term of this Agreement is held to be invalid for any reason whatsoever, then
such covenant, agreement, provision or term will be deemed severable from the
remaining covenants, agreements, provisions and terms of this Agreement and will
in no way affect
26
the validity or enforceability of any other provision of this Agreement.
(k) SUCCESSOR LAWS. Any reference to any particular Code section or any
other Legal Requirement will be interpreted to include any revision of or
successor to that section regardless of how it is numbered or classified.
(l) DELIVERY BY FACSIMILE. This Agreement and any signed Contract entered
into in connection herewith or contemplated hereby, and any amendments hereto or
thereto, to the extent signed and delivered by means of a facsimile machine,
shall be treated in all manner and respects as an original Contract and shall be
considered to have the same binding legal effects as if it were the original
signed version thereof delivered in person. At the request of any party hereto
or to any such Contract, each other party hereto or thereto shall re-execute
original forms thereof and deliver them to all other parties. No party hereto or
to any such Contract shall raise the use of a facsimile machine to deliver a
signature or the fact that any signature or Contract was transmitted or
communicated through the use of facsimile machine as a defense to the formation
of a Contract and each such party forever waives any such defense.
(m) ATTORNEY FEE AND COST PROVISION. In the event that either party hereto
shall commence any action or arbitration proceeding against the other party
hereto arising out of or in connection with this Agreement, or contesting the
validity of this Agreement or any provision hereof, the prevailing party shall
be entitled to recover from the other party reasonable attorney's fees and
related costs,
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fees and expenses incurred by the prevailing party in connection with such
action or proceeding.
(n) SOFTWARE. Upon signing of the definitive agreement, Xxxx
and Xxxxxxx consents and agrees to facilitate and allow the representatives of
Providential to have access to Xxxx and Xxxxxxx technical operations system. The
purpose of the access is to test a software compatibility developed by
Providential Technology, Inc. with the currently existing Xxxx & Xxxxxxx back
office software vendor. The details of the testing will be outlined under a
separate agreement between the Parties. The closing of the transaction is not
contingent on the software and/or hardware compatibility.
* * * * *
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IN WITNESS WHEREOF, the Parties have executed this Agreement
as of the date first above written.
"Buyer": Providential Holdings, Inc.
By:___________________________
Title:________________________
"Seller": Xxxxxx X. Xxxxxxx, Inc.
By:___________________________
Title:________________________
Xxxxxx X. Xxxxxxxxxx, Inc.
By:__________________________
Title:_______________________
Estate of Xxxxxx X. Xxxxxxx
By: Xxxxxxxx X. Xxxxxxx
Title: Special Administrator
-----------------------------
Xxxxxx Xxxxxx, Xx.
-----------------------------
Xxxxxx X. Xxxxx
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LIST OF EXHIBITS
Exhibits Description
-------- -----------
1 Partnership Agreement
2 % Interest
3 Excluded Assets
4 Assumption Agreement
5 Financials
6 Liability Disclosure
7 Assets
8 Contracts
9 Litigation
10 Insurance
11 Employees
12 Compliance With Law
13 Leases
14 Permits/Licenses
30
