Exhibit 10.1
Agreement of Sale and Purchase Of Assets
This Agreement of Sale and Purchase Of Assets ("Agreement") is entered into as
of the 26th day of July 1996, and becoming effective on the date hereafter
referred to as the Closing Date, by and between Xxxxx X. Xxxxxxx, dba The
Xxxxxxx Group, a sole proprietorship located at 0000 Xxxxx 000 Xxxx, Xxxxx 000,
Xxxxxx, XX 00000 (801) 268- 3232 ("Seller"), and Envision Enterprises, L.L.C., a
Utah Limited Liability Company, ("Purchaser").
Whereas, Seller owns and operates a career-outplacement consulting business
located in the Salt Lake City area;
Whereas, Seller is the author and owner of all rights in a copyrighted work
currently entitled "The Job Seeker's Bible";
Whereas, Purchaser desires to purchase from Seller, and Seller desires to sell
to Purchaser the Seller's Assets connected with the Seller's business upon the
terms described in this and related Agreements;
Whereas, Purchaser desires to purchase the copyright to "The Job Seeker's Bible"
and all previous versions of the work (hereunder jointly referred to as the
"Work") together with exclusive rights to publish, promote, reproduce and
distribute the Work, and Seller desires to sell to Purchaser the copyright to
the Work together with exclusive rights to publish, promote, reproduce and
distribute the Work, upon the terms described in this and related Agreements.
Now, Therefore, in consideration of the mutual agreements set forth herein, the
parties agree as follows:
1. Sale and Purchase of Business
a. Assets. Seller shall sell to Purchaser, and Purchaser shall purchase from
Seller all of Seller's interest in all the business assets, goodwill and rights
owned by Seller and used in the operation of Seller's business, including (i)
the right to use Seller's business name, (ii) the assets listed in the Xxxx of
Sale and Assignment attached as Exhibit "A", and (iii) all memberships,
proprietary information, licenses, service marks, service names, trade names,
and copyrights, including the copyright to the Work. Seller shall transfer the
assets free and clear of all liabilities and liens except as provided by this
Agreement.
b. Consulting. Seller shall provide consulting and training services to
Purchaser as requested by Purchaser at its offices, including but not limited to
marketing, advertising, career counseling, financial counseling, consulting
skills, and all other abilities, skills and strategies of Seller relating to its
business in order to facilitate the most effective and efficient transfer of
successful business operations and administration, upon the terms and conditions
described in the Consulting Services Agreement attached as Exhibit B.
c.Transfer of Copyright. Seller shall sell to Purchaser the copyright to the
Work with exclusive rights to publish, promote, reproduce and distribute the
Work, upon the terms and conditions described in the Marketing, Royalty and
Publishing Agreement attached as Exhibit "C".
2. Payment for Seller's Assets
As full payment for Seller's assets, Purchaser shall, at the Closing, pay to
Seller the sum of $35,000.00 for those assets listed in the Xxxx of Sale and
Assignment attached as Exhibit "A".
3. Payment for Seller's Consulting
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As full payment for Seller's consulting, Purchaser shall, on or before November
1,1996, pay to Seller the sum of $15,000.00 for consulting services provided to
Purchaser according to the terms and conditions described in the Consulting
Services Agreement attached as Exhibit "B". All payments may be made by
Purchaser to Seller by personal or certified check or money order, and shall be
mailed to Seller's address at 0000 Xxxx Xxxxx Xxxxxx, Xxxx Xxxx Xxxx, XX 00000,
or such other address as may be provided by Seller to Purchaser.
4. Payment of Advanced Royalties
In consideration for the sale and purchase of the copyright to the Work with
exclusive rights to publish, promote, reproduce and distribute the Work,
Purchaser shall, on or before January 1,1997, pay to Seller the sum of
$26,500.00 in advanced royalties relating to the sale of the Work. On or before
April 1,1997, Purchaser shall pay to Seller the sum of $26,500.00 in additional
advanced royalties, according to the terms and conditions described in the
Marketing, Royalty and Publishing Agreement attached as Exhibit "C". All
payments may be made by Purchaser to Seller by personal or certified check or
money order and shall be mailed to Seller's address at 0000 Xxxx Xxxxx Xxxxxx,
Xxxx Xxxx Xxxx, XX 00000, or such other address as may be provided in writing by
Seller to Purchaser.
5. Security Interes
All payment obligations of Purchaser to Seller shall be secured by a security
interest in all assets listed in the Xxxx of Sale and Assignment attached as
Exhibit "A", and Purchaser hereby consents to the filing and signing of a UCC-1
Financing Statement, attached as Exhibit "D", and Purchaser shall pay all
filing, transfer and documentary fees payable in connection with this filing.
6. Personal Guarantees
Full payment obligations of Purchaser to Seller shall be personally guaranteed
by Xxxxxxx Xxxxx and XX Xxxxxx pursuant to the terms of the Personal Guarantee
attached as Exhibit "E".
7. Closing
The date that this Agreement becomes effective is the date that the Closing
actually takes place ("Closing Date"). The Closing Date shall be on or before
10:00 a.m. on the 1st day of August, 1996, at Seller's office. If either party
is entitled not to close on the scheduled date because a condition has not been
met, that party may postpone the Closing Date by giving at least 24 hours notice
to the other party, until the condition has been met, but in no event to a date
later than the 1st day of August, 1996.
8. Seller's
Obligations at Closing
a. Deliver to Purchaser:
signed by Seller;
(1) Agreement
of Sale and Purchase of Assets (this Agreement)
(2) Xxxx of Sale and Assignment
signed by Seller in the form attached as Exhibit "A" and attached Schedules "A",
"B" and "C":
(3) Consulting Services Agreement signed by Seller in the form
attached as Exhibit "B";
(4) Marketing, Royalty and Publishing Agreement signed by Seller in the form
attached as Exhibit "C".
(5) Any other instruments of assignment and transfer necessary to vest in
Purchaser good and marketable title to Seller's Assets;
(6) All contracts and records relating to Seller's Assets, business history and
operational statistics;
(7)All documents required by this
Agreement, including word processing or desktop publishing diskettes of the
Work.
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b. Seller shall facilitate in a timely manner the transfer of its building lease
to Purchaser under the same terms and conditions, subject to the normal
qualifications required by the building owners and property leasing managers.
c. Seller shall facilitate in a timely manner the transfer of its professional
memberships, including the Greater Salt Lake Chamber of Commerce and the Society
of Human Resource Management (SHRM) to Purchaser.
9. Purchaser's Obligations at Closing.
a. Deliver to Seller:
(1)Agreement of Sale and Purchase of Assets (this Agreement) signed by
Purchaser;
(2)Xxxx of Sale and Assignment signed by Purchaser in the form attached as
Exhibit "A" and attached Schedules "A", "B" and "C";
(3) Consulting Services Agreement signed by Purchaser in the form
(4)Marketing, Royalty and Publishing Agreement signed by Purchaser in the form
attached as Exhibit "C"; Exhibit "D";
(5) UCC-1 Financing Statement signed by Purchaser attached as
(6) Personal Guarantee signed by Xxxxxxx Xxxxx and XX Xxxxxx attached as Exhibit
"E".
(7). Deliver to Seller all documents required by this Agreement.
b. Purchaser shall cooperate in a timely manner in providing any and all
information necessary to pursue the terms and conditions of this Agreement,
including the transfer of all leases to Purchaser.
10. Representations and Warranties by Seller.
a. Organization. Standing and Qualification. Seller is an individual doing
business as a sole proprietorship under the business name "The Xxxxxxx Group."
Seller is not a corporation or a partnership. Seller is authorized to carry on
its business as now conducted and to own and operate its properties in the
places where such properties are now located; and Seller is authorized and
licensed to do business in the city of Xxxxxx. The performance of this Agreement
by Seller will not result in a default or breach of any other agreement to which
Seller is a party. Seller has the authority to enter into this Agreement.
b. Financial and Statistical Records. The copies of the financial and
statistical records given to Purchaser and prepared by Seller are complete and
correct, have been prepared from the records of Seller in accordance with
generally accepted accounting principles and fairly present the financial
condition of Seller as of their dates and the results of its operations for the
periods covered thereby.
c. Taxes and Other Costs. All taxes and assessments imposed by any taxing
authority, whether federal, state, local, or otherwise which are due or payable
by Seller, and all interest and penalties thereon, have been paid in full. All
tax returns required to be filed have been accurately prepared and filed. Seller
has not been delinquent in the payment of any tax, assessment or governmental
charge or deposit and has no tax claim outstanding or proposed against it, and
there is no basis for any such claim. Seller's federal income tax returns have
been filed with the IRS, and the state income tax returns have been filed with
the State of Utah, for all years through 1995. There is no current extension
with respect to the date on which any tax return of Seller is due, or any waiver
or agreement by Seller for the extension for the assessment of any tax.
d. Litigation. There is no claim, order, investigation or other proceeding,
against Seller, its properties, or business or the transactions contemplated by
this Agreement, and Seller knows of no basis for the same.
e. Compliance With Laws.
Seller has complied with all laws applicable to its business. The ownership and
use of Seller's Assets as well as the conduct of its business will not conflict
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with the rights of any other person or entity, and will not cause a default
under any agreement to which Seller is a party. Seller is not aware of any
proposed laws, condemnations or other proceedings which would affect its
business or Seller's Assets.
f. Title to Assets. Seller has good title to Seller's Assets. None of Seller's
Assets are subject to any lien, lease, license, or adverse claim, except the
current lease on the postage meter and postage scale. Seller's Assets are in
good operating condition and repair, are suitable for the purposes used, and are
adequate for all current operations of Seller.
g. Copyrights. Seller owns or possesses the licenses or other rights to use all
copyrights, trademarks, service marks, service names, trade names, patents,
trade secrets and other proprietary rights relating to the Work and which are
necessary to conduct Seller's business as it is presently operated. Seller
represents that Seller is not infringing upon any copyrights, trademarks,
service marks, service names, trade names, patents, licenses, trade secrets or
other proprietary rights owned by any other person relating to the Work and
Seller's business, and there is no claim or action by any such person pending,
or threatened, with respect thereto.
h. Disclosure. All of Seller's representations made in this Agreement and its
related documents are true and contain no untrue statements and do not omit
important facts.
11.Representations and Warranties by Purchaser.
Purchaser is a Limited Liability Company organized and in good standing under
the laws of Utah and has full authority to enter into this Agreement and to
carry on its business and to own and operate its properties. Purchaser agrees to
file within 30 days of Closing Date the UCC-1 Financing Statement. All other
actions required to be taken by Purchaser relating to the signing of this
Agreement shall have been taken at or prior to the Closing. The performance of
this Agreement by Purchaser will not result in a default of any Agreement to
which Purchaser is a party. Purchaser has the authority to enter into this
Agreement. There is no claim, order, investigation or other proceeding against
Purchaser relating to the transaction contemplated by this Agreement, and
Purchaser does not know or have any reason to be aware of any basis for the
same. Purchaser shall keep Seller reasonably informed of current home address
and telephone number for Xxxxxxx Xxxxx and XX Xxxxxx.
12. Access to Information and Documents.
Upon Purchaser's request, Seller shall give Purchaser access to Seller's
properties, documents and records and shall furnish copies of documents
requested by Purchaser before Closing Date.
13. Release and Use of Name.
Seller hereby exclusively assigns to Purchaser its right, title, interest,
ownership and goodwill in or to the name or trade name "The Xxxxxxx Group." At
Purchaser's request Seller shall sign whatever additional documents may be
necessary to release and allow Purchaser to use the name "The Xxxxxxx Group."
a. Seller hereby agrees that it shall not employ or
use in any manner the name or trade name "The Xxxxxxx Group."
b. Seller shall not instruct or authorize others to use, in any manner, the name
or trade name "The Xxxxxxx Group."
c. The parties understand and agree that Seller shall be authorized to use the
name or trade name "The Xxxxxxx Group" solely for the limited purpose of
collecting outstanding accounts receivable owed to Seller prior to the Closing
date until all collections of these outstanding accounts receivable are complete
and final.
d. Purchaser agrees and acknowledges that Seller may use the name "Xxxxxxx" in
connection with goods and services outside the field of career planning and job
search assistance.
14. Seller Indemnification.
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Seller hereby indemnifies and agrees to hold Purchaser harmless from:
a. Any loss suffered by Purchaser because a representation was not true, a
warranty was breached or a duty was not performed by Seller contained in this
Agreement or a related document;
b. Any loss suffered by Purchaser in connection with any of Seller's liabilities
which are not assumed by Purchaser in accordance with paragraph la of this
Agreement.
c. Any liabilities or debts of Seller, which exist as of the Closing Date or
which arise after that date but which are based upon any transaction, state of
facts or other condition which occurred on or before the Closing Date; provided
however, that Seller shall not indemnify Purchaser from any liabilities or debts
of Seller that have been assumed by Purchaser, including but not limited to,
office space lease, postage equipment lease, professional memberships, telephone
and utility expenses, liability insurance premiums, and advertising contracts.
d. Any claims, judgments and expenses, including legal fees, incurred for any of
the foregoing or for attempting to avoid or oppose the same or for enforcing
this indemnity.
15. Purchaser Indemnification.
Purchaser hereby indemnifies and agrees to hold Seller harmless from:
a. Any loss suffered by Seller because a representation by Purchaser was not
true, a warranty was breached by Purchaser or a duty was not performed by
Purchaser contained in this Agreement or a related document;
b. Any liabilities or debts of Seller assumed by Purchaser under this Agreement
referred to in paragraph 14c; and
c. Any claims, judgments and expenses, including legal fees, incurred for any of
the foregoing or for attempting to avoid or oppose the same or for enforcing
this indemnity.
16. Notices.
Any notices described under this Agreement shall be in writing and shall be
deemed given when personally delivered or mailed by first class mail, addressed
to the parties at the addresses set forth above.
17. Legal and Other Costs.
In the event any party defaults ("Defaulting Party") in its obligations under
this Agreement and the other party ("Non-Defaulting Party") seeks to enforce its
rights against the Defaulting Party, then the Defaulting Party shall promptly
pay to the Non-Defaulting Party all expenses, including attorney's fees,
incurred in connection with such enforcement. Any payment owed to the
Non-Defaulting Party because of the Defaulting Party's default shall bear
interest at 2% per month from the time the payment should have been made until
the time it actually is paid.
18. Miscellaneous.
a. All covenants and agreements contained herein shall be binding upon and inure
to the benefit of each party, its successors and assigns, and each individual
party hereto and his/her heirs, personal representatives, successors and
assigns. This Agreement may not be assigned by either party hereto without the
prior written consent of the non- assigning party.
b. This writing contains the entire agreement and understanding of the parties
concerning the subject matter hereof, and supersedes and preempts any prior
understandings, agreements or representations by or between the parties, written
or oral, that may have related to the subject matter hereof in any way.
c. This Agreement shall not be modified, amended, waived or terminated except by
written agreement signed by all the parties.
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d. Each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be held to be invalid, illegal or unenforceable in any respect, such
provision will be ineffective only to the extent of such invalidity, illegality
or unenforceability, without invalidating the remainder of this Agreement or any
provision hereof.
e. This Agreement and any amendments shall be construed both as to validity and
performance and enforced in accordance with the laws of the State of Utah.
f. Each party shall cooperate and take such further action as may be reasonably
requested by any other party to carry out the provisions and purposes of this
Agreement.
g. No waiver of any default is valid unless in writing and signed by the waiving
party, and no such waiver shall be deemed a waiver of any subsequent default.
h. The paragraph headings are for the purposes of convenience only and are not
intended to define or limit the contents of the paragraphs.
i. Any information revealed pursuant to this Agreement or previously in the
course of negotiations shall be held in confidence and solely for the purpose of
consummating this Agreement in allowing the parties to exercise prudent care. If
this Agreement is not consummated, no further use shall be made of such
information (except to the extent such information was already known prior to
this Agreement) and the parties may be held accountable for any unauthorized
use. If this Agreement is not consummated, the parties shall return all
documents received from any party in connection with this Agreement. If this
Agreement is consummated, neither party shall disclose any information
concerning the other party's business or the terms of this Agreement except (i)
as approved by the other party, (ii) as necessary for the conduct of the
Purchaser's or Seller's business, (iii) as required by law, or (iv) as is
ascertainable from public information.
j. In the event of any action at law or equity between the parties arising out
of this Agreement, the unsuccessful party covenants and agrees to pay to the
successful party all costs and expenses thereof, including reasonable attorney's
fees and court costs, regardless of whether suit is commenced.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of
the date first above written.
SELLER:
/s/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx, doing business under the name "The Xxxxxxx Group"
PURCHASER:
Envision Enterprises, L.L.C.
/s/Xxxxxxx Xxxxx
------------------
Xxxxxxx Xxxxx, Member
/s/XX Xxxxxx
-----------------
XX Xxxxxx, Member
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