EXHIBIT 2.1
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ASSET PURCHASE AGREEMENT
BETWEEN
FTS APPAREL, INC.
AND
SIMPLY CELLULAR, INC.
Dated as of February 14, 2003
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement, dated as of February 14, 2003 (the
"Agreement"), by and between FTS APPAREL, INC., a Colorado corporation
("Buyer"), and Simply Cellular, Inc. , a Florida corporation ("Seller").
WHEREAS, Seller is engaged in the business of selling cellular phone
services and accessories (the "Business"); and
WHEREAS, upon the terms and subject to the conditions set forth herein,
Buyer desires to purchase and assume from Seller, and Seller desires to sell,
transfer, assign, convey and deliver to Buyer, substantially all of the assets
of Seller, together with certain obligations and liabilities of Seller relating
thereto; and
WHEREAS The Board of Directors of each of Buyer and Seller,
respectively, believe the acquisition is in the best interests of such company
and its respective shareholders and, in furtherance thereof, have approved this
Agreement and the transactions contemplated thereby.
NOW, THEREFORE, in consideration of the covenants, representations, warranties
and mutual agreements hereinafter set forth, the parties hereto agree as
follows:
ARTICLE 1
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PURCHASE AND SALE
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1.1 Purchase and Sale of Assets. Subject to the terms and conditions set
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forth in this Agreement, Seller hereby agrees to sell, convey, transfer and
assign to Buyer, and Buyer hereby agrees to purchase from Seller at the Closing
all of Seller's right, title and interest in and to the items listed in Schedule
A attached hereto free and clear of any and all liens (such assets referred to
collectively as the "Acquired Assets").
1.2 Delivery of Acquired Assets. On the "Closing Date", February 14, 2003,
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Seller shall make available to Buyer all of the Acquired Assets at Seller's
facilities in Tampa, Florida, and anywhere else the Acquired Assets are located.
1.3 Closing Deliveries by Seller and Buyer. Without limiting the foregoing,
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at the Closing, (i) Seller shall deliver to Buyer, duly executed by Seller, a
Xxxx of Sale and General Assignment substantially in the form attached hereto
(the "Xxxx of Sale") and an assignment of lease agreement (the instruments
referred to in this Section being referred to herein as the "Ancillary
Agreements").
1.4 Liabilities. Except as disclosed on the financial statements of
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Seller, dated December 31, 2002, provided to Buyer by Seller, Seller does not
have any material, direct or indirect, indebtedness, liability, claim, loss,
damage, deficiency, obligation or responsibility, fixed or unfixed, xxxxxx or
inchoate, liquidated or unliquidated, secured or unsecured, accrued, absolute,
contingent or otherwise (collectively, the "Liabilities"), that are not fully
and adequately reflected or reserved against on the financials. As of the
Closing, Seller hereby represents that there Seller has no liabilities. Buyer
shall not assume or shall not be responsible for any debt, liability, duty or
obligation, whether fixed or contingent, of Seller, including without limitation
Seller's obligations arising out of or relating to the facilities in Tampa,
Florida.
1.5 Closing. The closing of the transactions contemplated by this Agreement
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(the "Closing") shall take place concurrently with the execution hereof to be
held on the date hereof at the offices of the Seller, Simply Cellular, Inc.,
located at 00000 Xxxxxxxx Xxxx, Xxxxx, Xxxxxxx, 00000 (the "Closing Date").
Payment to Seller.
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Payment of Purchase Price. The aggregate cash purchase price to be paid by
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Buyer to Seller for the Acquired Assets (the "Purchase Price") shall be Sixty
Seven Thousand ($67,000) to be paid on the date hereof by Buyer to Seller via
electronic funds transfer, such sum in immediately available funds in U.S.
Dollars to an account or accounts designated by Seller.
ARTICLE 2
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REPRESENTATIONS AND WARRANTIES OF SELLER
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Except as disclosed in the disclosure schedule attached hereto as an inducement
to Buyer to enter into this Agreement, Seller hereby represents and warrants to
Buyer, as follows:
2.1 Organization of Seller. Seller is a corporation duly organized, validly
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existing and in good standing under the laws of the State of Florida. Seller
has all requisite corporate power and authority to own and use the properties
owned and used by it and to carry on its business as currently conducted.
Seller is duly qualified or licensed to do business and in good standing in each
juris-diction in which the failure to be so qualified or licensed would have a
Material Adverse Effect.
2.2 Authority. Seller has all requisite power and authority to enter into
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this Agreement and each Ancillary Agreement, to perform its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement and the Ancillary
Agreements and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by all necessary corporate action on the part
of Seller, and no further action is required on the part of Seller to authorize
this Agreement and the Ancillary Agreements and the transactions contemplated
hereby and thereby. This Agreement and the Ancillary Agreements constitute
valid and binding obligations of Seller, enforceable in accordance with their
respective terms, except as such enforceability may be limited by principles of
public policy and subject to the laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies.
2.3 No Conflict. The execution and delivery by Seller of this Agreement and
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the Ancillary Agreements, and the consummation of the transactions contemplated
hereby and thereby, do not and will not conflict with or result in any violation
of, or default under, or give rise to a right of termination, cancellation,
modification or acceleration of any obligation or loss of any benefit (any such
event, a "Conflict") under (i) any provision of Seller's Certificate of
Incorporation or Seller's Bylaws, each as currently in effect, (ii) any
material mortgage, indenture, lease, contract, covenant or other agreement,
instrument or commitment, permit, concession, franchise or license or any
Transferred Contract (each a "Material Contract" and collectively the "Material
Contracts") to which Seller or any of its properties or assets is subject, or
(iii) any judgment or any order or decree issued by a Governmental Entity, or to
Seller's knowledge, any other order or decree, statute, law, ordinance, rule or
regulation applicable to Seller or any of its properties or assets (tangible and
intangible).
2.4 Consents. No consent, waiver, approval, order or authorization of, or
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registration, declaration or filing with any Governmental Entity, or a party to
any Material Contract with Seller (so as not to trigger any Conflict) is
required by or with respect to Seller in connection with the execution and
delivery of this Agreement or any Ancillary Agreement or the consummation of the
transactions contemplated hereby or thereby.
2.5 Title to Properties; Absence of Liens and Encumbrances. Seller has good
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and marketable title to the Acquired Assets, free and clear of any Liens. The
location of all of the Acquired Assets shall be at the Seller's leased
facilities located at 00000 Xxxxxxxx Xxxx, Xxxx, Xxxxxxx, 00000.
2.6 Real Estate. Seller represents that it maintains only one leased
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premise located at 00000 Xxxxxxxx Xxxx, Xxxxx, Xxxxxxx 00000. Seller currently
pays a monthly rent of $____ . Seller represents that the lease
agreement, provided to Buyer is true, correct and complete copies of which have
been delivered or made available to Buyer, are in full force and effect and
Seller has not received any notice of any default thereunder, nor does Seller
anticipate any such notice of default. The undersigned parties, post Closing,
intend to obtain the written consent of the landlord to permit the assignment of
such lease.
2.7 Litigation. There is no action, suit, claim, proceeding, arbitration,
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hearing, demand or cause of action or investigation of any nature pending or
threatened against Seller relating to the Acquired Assets, nor is there any
reasonable basis therefor. There is no investigation or other proceeding
pending or threatened relating to the Acquired Assets by or before any
Governmental Entity, nor is there any reasonable basis therefor. There are no
judgments and no orders or decrees issued by any Governmental Entity, and to
Seller's knowledge, there are no other orders or decrees, citations, fines or
penalties heretofore assessed against Seller affecting the Acquired Assets under
any foreign, federal, state or local law.
2.8 Compliance With Law. Seller has complied and is in compliance with all
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applicable federal, state and local laws, statutes, licensing requirements,
rules and regulations, and judicial or administrative decisions applicable to
the Acquired Assets or the Assumed Liabilities. There is no order issued,
investigation or proceeding pending or, to Seller's knowledge, threatened, or
notice served with respect to any violation of any law, ordinance, order, writ,
decree, rule or regulation issued by any Governmental Entity applicable to the
Acquired Assets or the Assumed Liabilities.
2.9 Intellectual Property.
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Schedule A of the Disclosure Schedule, together with listing the Acquired
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Assets, shall list all Transferred Intellectual Property Rights that are
Registered Intellectual Property Rights. All such Registered Intellectual
Property Rights are currently in compliance with formal legal requirements
(including payment of filing, examination and maintenance fees and proofs of
use) and are not subject to any unpaid maintenance fees or actions falling due
within thirty (30) days after the Closing Date. The Transferred Intellectual
Property Rights does not infringe or misappropriate the Intellectual Property
Rights of any Person, and Seller has not received notice from any Person
claiming that the Transferred Technology constitutes unfair competition or trade
practices under the laws of any jurisdiction. To the Seller's Knowledge, no
Person is infringing or misappropriating the Transferred Intellectual Property
Rights. The Transferred Intellectual Property Rights are not subject to any
proceedings or actions before any court, tribunal (including the PTO or
equivalent authority anywhere in the world) to which Seller is a party thereto.
The Transferred Intellectual Property Rights are not subject to any outstanding
decree, order, judgment, agreement or stipulation that restricts in any manner
the use, transfer or licensing thereof.
2.10 Employee Matters.
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(a) Seller is not a party to, and there does not otherwise exist, any agreements
with any labor organization or collective bargaining or similar agreement with
respect to the employees. Seller is not a party to any outstanding contract,
commission agreement, settlement agreement, or compensation agreement with any
employee. To the knowledge of Seller, there are no complaints, grievances,
arbitrations, employment-related proceedings or administrative proceedings,
either pending or threatened orally or in writing, involving any employee;
during the past five years, the business has not suffered or sustained any labor
dispute resulting in any work stoppage and no such work stoppage is, to the
knowledge of Seller, threatened.
(b) There is no litigation brought by any of the employees currently pending
against Seller in any municipal, state or federal court or agency.
ARTICLE 3
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REPRESENTATIONS AND WARRANTIES OF BUYER
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As an inducement to Seller to enter into this Agreement, Buyer hereby represents
and warrants to Seller:
3.1 Organization of Buyer. Buyer is a corporation duly organized, validly
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existing, and in good standing under the laws of Colorado. Buyer has all
requisite corporate power and authority to own and use the properties owned and
used by it and to carry on its business as currently conducted and as currently
contemplated to be conducted. Buyer is duly qualified or licensed to do
business and in good standing in each juris-diction in which the failure to be
so qualified or licensed would have a Material Adverse Effect.
3.2 Authority. Buyer has all requisite corporate power and authority to enter
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into this Agreement, each Ancillary Agreement to which it is a party, to perform
its obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement
and the Ancillary Agreements and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action on the part of Buyer, and no further action is required on the
part of Buyer to authorize this Agreement or the Ancillary Agreements and the
transactions contemplated hereby or thereby. This Agreement and the Ancillary
Agreements have been duly executed and delivered by Buyer and constitute the
valid and binding obligations of Buyer, enforceable in accordance with their
respective terms, except as such enforceability may be limited by principles of
public policy and subject to the laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies.
3.3 No Conflict. The execution and delivery of this Agreement and the
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Ancillary Agreements to which Buyer is a party, and the consummation of the
transactions contemplated hereby and thereby, do not and will not conflict with,
or result in any violation of, or default under, or give rise to a Conflict
under (i) any provision of Buyer's Certificate of Incorporation or Buyer's
Bylaws, each as currently in effect, (ii) any Material Contract to which Buyer
or any of its properties or assets are subject, or (iii) any judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to Buyer or its
properties or assets.
3.4 Consents. No consent, waiver, approval, order or authorization of, or
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registration, declaration or filing with, any Governmental Entity, or any third
party, including a party to any Material Contract with Buyer (so as not to
trigger any Conflict), is required by or with respect to Buyer in connection
with the execution and delivery of this Agreement or the Ancillary Agreements or
the consummation of the transactions contemplated hereby or thereby.
3.5 Compliance with Laws. To Buyer's knowledge, Buyer has complied with, is
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not in violation of, and has not received any notices of violation with respect
to, any foreign, federal, state or local statute, law or regulation with respect
to the conduct or operation of its business.
ARTICLE 4
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COVENANTS AND AGREEMENTS
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4.1 Additional Documents and Further Assurances.
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(a) Each party hereto, at the request of another party hereto, shall execute
and deliver such other instruments and do and perform such other acts and things
as may be reasonably necessary or desirable for effecting completely the
consummation of this Agreement and the transactions contemplated hereby.
(b) Following the Closing, Seller will afford Buyer, its counsel and its
accountants, during normal business hours, reasonable access to the books,
records and other data, if any, relating to the Acquired Assets in Seller's
possession with respect to periods prior to the Closing and the right to make
copies and extracts there from, to the extent that such access may be reasonably
required by Buyer in connection with: (i) the preparation of Tax Returns; (ii)
compliance with the requirements of any Governmental Entity; and (iii) in
connection with any actual or threatened action or proceeding by a third party.
4.2 Taxes.
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(a) To the extent relevant to the Acquired Assets, each party shall (i) provide
the other with such assistance as may reasonably be required in connection with
the preparation of any Tax Return and the conduct of any audit or other
examination by any taxing authority or in connection with judicial or
administrative proceedings relating to any liability for Taxes and (ii) retain
and provide the other with all records or other information that may reasonably
be relevant to the preparation of any Tax Return, or the conduct of any audit or
examination, or other proceeding relating to Taxes for so long as the applicable
statute of limitations has not expired. Seller shall provide Buyer with copies
of all documents, including prior years' Tax Returns, supporting work schedules
and other records or information with respect to all sales, use, property and
employment tax returns, absent the receipt by Seller of the relevant tax
clearance certificates. The parties hereto agree to keep all such information
confidential.
4.3 Bulk Sales. Seller covenants to pay all of its vendors in accordance with
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the terms of its obligations. Seller represents that such transfer of assets is
not a fraudulent conveyance.
4.4 Covenant Not to Compete.
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(a) Each Party acknowledges that the non-compete terms, the limitations of
time, geography and scope of activity agreed to in this Agreement are
reasonable.
(b) During a Non-Compete Period of twelve months, Seller shall not, without the
prior written consent of Buyer, engage or participate anywhere in the world
directly or indirectly (e.g. license a third party), in a "Competing Business."
(c) The covenants contained in the preceding paragraph shall be construed as a
series of separate covenants, one for each country, province, state, city or
other political subdivision of the world in which Seller or Buyer, as the case
may be, is currently engaged in business or otherwise sells its products.
Except for geographic coverage, each such separate covenant shall be identical
in terms to the covenant contained in the preceding paragraphs. If, in any
proceeding, a court refuses to enforce any of such separate covenants (or any
part thereof), then such unenforceable covenant (or such part) shall be
eliminated from this Agreement to the extent necessary to permit the remaining
separate covenants (or portions thereof) to be enforced. In the event that the
provisions of this Section 4.12 are deemed to exceed the time, geographic or
scope limitations permitted by applicable law, then such provisions shall be
reformed to the maximum time, geographic or scope limitations, as the case may
be, permitted by applicable laws. Notwithstanding, in the event one of the
covenants set forth above is not enforceable in whole or part, the other
covenant shall also terminate.
4.5 No Solicitation. For a period of twelve months following the Closing
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Date, the Seller (nor any affiliate, officer, director or representative
thereof) shall indirectly or directly solicit or contact for the purpose of
soliciting for employment any current or future employee of the Buyer, except
for any solicitation made through general advertisement.
4.6 Transition Services Agreement. Buyer expressly agrees to comply with all
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its obligations, including without limitation, to vacate the Facilities (as
defined in the Transition Services Agreement) by not later than 5:00 PM E.S.T
time on February 14, 2003.
ARTICLE 5
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SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNIFICATION
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5.1 Survival of Representations, Warranties and Covenants. The
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representations, warranties and covenants of Seller contained in this Agreement,
or in any certificate or other instrument delivered pursuant to this Agreement,
shall terminate on the one year anniversary of the Closing Date. The
representations, warranties and covenants of Buyer contained in this Agreement,
or in any certificate or other instrument delivered pursuant to this Agreement,
shall terminate on the one year anniversary of the Closing Date.
5.2 Indemnification.
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(a) Seller hereby agrees to indemnify and hold harmless Buyer, its affiliates,
officers, directors, counsel, employees and agents from and against any and all
losses, liabilities, damages, demands, claims, suits, actions, judgments or
causes of action, assessments, costs and expenses, including, without
limitation, interest, penalties, reasonable attorneys' fees, any and all
expenses incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation (collectively, "Damages"),
asserted against, resulting to, imposed upon, or incurred or suffered by Seller,
its affiliates, officers, directors, employees or agents, directly or
indirectly, as a result of or arising from any of the following ("Buyer
Indemnifiable Claims"):
(i) Any inaccuracy in or breach or nonfulfillment of any of the
representations, warranties, covenants or agreements made by Buyer in this
Agreement and the Ancillary Agreements;
(ii) Any Assumed Liabilities; and
(iii) Any Claim by any Person for brokerage or finders' fees or commissions or
similar payments based upon any agreement or understanding alleged to have been
made by such Person directly or indirectly with Buyer or any of its officers,
directors or employees in connection with any of the transactions contemplated
by the Agreement or the Ancillary Agreements.
(c) The procedures for effecting the indemnification contemplated hereby shall
be as follows:
(i) If Buyer or Seller determines to seek indemnification under this Article 5
with respect to Indemnifiable Claims (the party seeking such indemnification
hereinafter referred to as the "Indemnified Party" and the party against whom
such indemnification is sought hereinafter referred to as the "Indemnifying
Party") resulting from the assertion of liability by third parties (a "Third
Party Claim"), the Indemnified Party shall give notice to the Indemnifying Party
within 30 days of the Indemnified Party becoming aware of any such Indemnifiable
Claim or of facts upon which any such Indemnifiable Claim will be based; the
notice shall set forth such material information with respect thereto as is then
reasonably available to the Indemnified Party. In case any such liability is
asserted against the Indemnified Party, and the Indemnified Party notifies the
Indemnifying Party thereof, the Indemnifying Party shall be entitled, at its
expense, to participate in any defense of such claim. The Indemnified Party
shall promptly defend any such Third Party Claim and shall have the right to
settle any Third Party Claim on reasonable terms with the written consent of the
Indemnifying Party (which consent shall not be unreasonably withheld).
Notwithstanding the foregoing, (i) the Indemnified Party shall also have the
right to employ its own counsel in any such case, and the fees and expenses of
such counsel shall be at the expense of the Indemnified Party and (ii) the
rights of the Indemnified Party to be indemnified hereunder in respect of
Indemnifiable Claims resulting from the assertion of liability by third parties
shall not be adversely affected by its failure to give notice pursuant to the
foregoing unless, and, if so, only to the extent that, the Indemnifying Party is
materially prejudiced thereby. With respect to any assertion of liability by a
third party that results in an Indemnifiable Claim, the parties hereto shall
make available to each other all relevant information in their possession
material to any such assertion.
(ii) In the event that the Indemnifying Party, within 30 days after receipt of
the aforesaid notice of an Indemnifiable Claim, fails to assume the defense of
the Indemnified Party against such Indemnifiable Claim, the Indemnified Party
shall have the right to undertake the defense of such action on behalf of and
for the account and risk of the Indemnifying Party; provided that the
Indemnifying Party must consent in writing to the settlement of any such claim
(which consent shall not be unreasonably withheld).
(iii) Notwithstanding anything in this Section to the contrary, the
Indemnified Party shall have the right to participate in such defense,
compromise or settlement and the Indemnifying Party shall not, without the
Indemnified Party's written consent (which consent shall not be unreasonably
withheld), settle or compromise any Indemnifiable Claim or consent to entry of
any judgment in respect thereof unless such settlement, compromise or consent
includes as an unconditional term thereof the giving by the claimant or the
plaintiff of the Indemnified Party a release from all liability in respect of
such Indemnifiable Claim.
(d) In the event that the Indemnified Party asserts the existence of a claim
giving rise to Damages (but excluding claims resulting from the assertion of
liability by third parties), it shall give written notice to the Indemnifying
Party. Such written notice shall state that it is being given pursuant to this
Section, specify the nature and amount of the claim asserted and indicate the
date on which such assertion shall be deemed accepted and the amount of the
claim deemed a valid claim (such date to be established in accordance with the
next sentence). If the Indemnifying Party, within 60 days after the mailing of
notice by the Indemnified Party, shall not give written notice to the
Indemnified Party announcing its intent to contest such assertion of the
Indemnified Party, such assertion shall be deemed accepted and the amount of
claim shall be deemed a valid claim. In the event, however, that the
Indemnifying Party contests the assertions of a claim by giving such written
notice to the Indemnified Party within said period, then the parties shall act
in good faith to reach agreement regarding such claim. If agreement regarding
such claim is not reached, then the matter shall be resolved by arbitration
between the parties as set forth in Section 6.6 below.
5.3 Limitation on Liability.
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Notwithstanding anything to the contrary set forth in this Agreement or any of
the Ancillary Agreements and except as expressly stated otherwise below, Buyer
shall not be liable for any amounts with respect to any inaccuracy in or breach
or nonfulfillment of any representations, warranties, covenants or agreements
set forth in this Agreement or any of the Ancillary Agreements. Notwithstanding
the foregoing, the Seller may seek indemnification for claims of fraud or
willful misconduct, claims related to the Assumed Liabilities and claims related
to Buyer's failure to fulfill the obligations set forth in Section 1.8 hereof,
without regard to the Limitation Amount. Notwithstanding the foregoing, in no
event shall Buyer's liability with respect to any inaccuracy in or breach or
nonfulfillment of any representations, warranties, covenants or agreements
(except for any liability arising out of Buyer's fraud or willful misconduct,
the Assumed Liabilities and the obligations set forth in Section 1.8 hereof) set
forth in this Agreement or any of the Ancillary Agreements exceed the $100,000
in the aggregate.
ARTICLE 6
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GENERAL
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6.1 Notices. All notices and other communications hereunder shall be in
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writing and shall be deemed given if delivered personally or by commercial
messenger or courier service, or mailed by certified mail (return receipt
requested) or sent via nationally recognized overnight delivery service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice:
(a) if to Buyer, to:
FTS Apparel Inc.
Attention: Xxxxx Xxxxxxxxx
Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxx
(b) if to Seller, to:
Simply Cellular, Inc.
00000 Xxxxxxxx Xxxx
Xxxxx Xxxxxxx
00000
Notices sent via certified mail shall be deemed effective three postal days
after deposit in the U.S. mail and those sent via overnight delivery shall be
deemed effective upon receipt or refusal.
6.2 Entire Agreement; Assignment. This Agreement, the Ancillary Agreements,
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the Schedules and Exhibits hereto, the Disclosure Schedule, and the documents
and instruments and other agreements among the parties hereto referenced herein,
including the NDA: (i) constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings both written and oral, among the parties with respect to the
subject matter hereof; (ii) are not intended to confer upon any other person any
rights or remedies hereunder; and (iii) shall not be assigned by operation of
law or otherwise.
6.3 Severability. In the event that any provision of this Agreement or the
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application thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement will
continue in full force and effect and the appli-cation of such provision to
other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto. The parties further agree to replace such
void
or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and
other purposes of such void or unenforceable provision.
6.4 Amendment. This Agreement may be amended by the parties hereto at any
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time by execution of an instrument in writing signed on behalf of each of the
parties hereto.
6.5 Extension; Waiver. At any time prior to the Closing, Buyer, on the one
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hand, and Seller, on the other hand, may, to the extent legally allowed, (i)
extend the time for the performance of any of the obligations of the other party
hereto, (ii) waive any inaccuracies in the representations and warranties made
to such party contained herein or in any document delivered pursuant hereto, and
(iii) waive compliance with any of the agreements or conditions for the benefit
of such party contained herein. Any agreement on the part of a party hereto to
any such extension or waiver shall be valid only if set forth in an instrument
in writing signed on behalf of such party. A waiver by a party of the
performance of any covenant, agreement, obligation, condition, representation or
warranty will not be construed as a waiver of any other covenant, agreement,
obligation, condition, representation or warranty. A waiver by any party of the
performance of any act will not constitute a waiver of the performance of any
other act or an identical act required to be performed at a later time.
6.6 Dispute Resolution and Applicable Law.
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(a) The parties shall attempt in good faith to resolve any dispute arising out
of or relating to this Agreement. In particular, those executives of the
respective parties who have authority to settle the controversy and have direct
responsibility for administration of the relationships established pursuant to
this Agreement shall attempt in good faith to negotiate a settlement pursuant to
the following process:
(b) Any party having a dispute or claim shall give the other party written
notice stating the nature of the dispute in reasonable detail. Within ten
business days after delivery of the notice, the receiving party shall submit to
the other a written response also in reasonable detail. Within ten business
days after delivery of the written response, decision-makers from both parties
shall meet (in person or by telephone) at a mutually acceptable time and place
(including telephonic conference), and thereafter as often as they reasonably
deem necessary, to attempt to resolve the dispute. All reasonable requests for
information made by one party to the other shall be honored.
(c) If the matter has not been resolved by the persons referred to above within
ten days of the first meeting of such persons, the dispute shall be referred to
more senior executives of each party who have authority to settle the dispute
and who shall likewise meet (in person or by telephone) to attempt to resolve
the dispute. If after such 10 day period the dispute remains unresolved, the
parties shall participate in a mediation conducted by a mutually agreed upon
mediator. If the parties resolve such dispute either alone or with the aid of
the mediator, such resolution shall be binding on the parties and a settlement
agreement shall be signed by each party.
(d) In the event the parties are unable to resolve such dispute following the
mediation procedures provided in Section 6.6(c), either party may avail itself
of any remedies available to it, whether at law or in equity, including recourse
to any court of competent jurisdiction. Each party shall have the right to
apply to a court of competent jurisdiction at any time for a temporary
restraining order, preliminary injunction, or other interim or conservatory
relief, as necessary, notwithstanding any informal dispute resolution procedures
herein.
(e) In connection with any court proceeding relating to this Agreement or any
Ancillary Agreement, Buyer and Seller hereto irrevocably waive any jury trial.
(f) The parties hereto each agree to the jurisdiction of any state or federal
court sitting in the State of Delaware and waive personal service of any and all
process upon it, and consent that all services of process be made as provided in
herein and directed to it at its address as set forth in Section 6.1, and
service so made shall be deemed to be completed when received. The parties
hereto each waive any objection based on forum non convenience and waive any
objection to venue of any action instituted hereunder. Nothing in this
paragraph shall affect the right of the parties hereto to serve legal process in
any other manner permitted by law.
6.7 Construction.
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(a) For purposes of this Agreement, whenever the context requires: the singular
number will include the plural, and vice versa; the masculine gender will
include the feminine and neuter genders; the feminine gender will include the
masculine and neuter genders; and the neuter gender will include the masculine
and feminine genders.
(b) Any rule of construction to the effect that ambiguities are to be resolved
against the drafting party will not be applied in the construction or
interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and "including" and
variations thereof will not be deemed to be terms of limitation, but rather will
be deemed to be followed by the words "without limitation.
6.8 Counterparts. This Agreement may be executed in one or more counterparts,
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all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other party, it being understood that all parties need not
sign the same counterpart.
IN WITNESS WHEREOF, this Asset Purchase Agreement has been executed by the
parties hereto as of the date first above written.
SELLER
Simply Cellular, Inc
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: President
BUYER
FTS Apparel Inc.
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: President
SCHEDULE A - ASSETS
All items and contents of the store front location of 00000 Xxxxxxxx Xxxx,
Xxxxx, Xxxxxxx 00000, as of February 20, 2003 including but not limited to: all
furniture and fixtures, inventory, signage, Norstar phone system, 2 computers, a
brother printer, a fax machine, all phone numbers including 0-000-XXX-XXXX, the
web address xxx.xxxxxxxxxxxxx.xxx, the web site xxx.xxxxxxxxxxxxx.xxx and all
related internet files.
DOCUMENT OF TRANSFER / XXXX OF SALE
-----------------------------------------
This XXXX OF SALE (this "Xxxx of Sale"), dated February 14, 2003, is made and
------------
entered into by and among Simply Cellular, Inc., a Florida corporation
("Seller"), and FTS APPAREL, INC. a Colorado corporation ( the "Purchaser").
---------
WHEREAS:
Seller desires to sell, assign and transfer to Purchaser, and Purchaser desires
to purchase and acquire from Seller, all of Seller's right, title and interest
in and to each of the assets listed in Exhibit A attached hereto (collectively,
---------
the "Purchased Assets"), on the terms and subject to the conditions set forth in
----------------
this Xxxx of Sale.
Agreements:
In consideration of the mutual covenants and agreements set forth in this Xxxx
of Sale, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Transfer of Assets. Seller hereby sells, assigns and transfers to
------------------
Purchaser and its successors and assigns all of Seller's right, title and
interest in and to each and all of the Purchased Assets, free and clear of all
Encumbrances.
2. No Reservations or Qualifications. The Purchased Assets that are being
---------------------------------
sold, assigned and transferred by this Xxxx of Sale are being sold, assigned and
transferred to Purchaser without reservation or qualification, and Seller
hereby agrees to defend the sale, assignment and transfer of the Purchased
Assets made hereby to Purchaser against all persons and entities lawfully
claiming the whole or any part thereof.
3. Further Assurances. Seller hereby covenants and agrees with Purchaser
------------------
that it shall, at any time and from time to time, upon written request
therefore, duly execute and deliver all such documents, instruments, forms and
authorizations as may be necessary for Seller to vest title in and to each and
all of the Purchased Assets in Purchaser and to validly sell, assign and
transfer to Purchaser all of Seller's right, title and interest in and to each
and all of the Purchased Assets and to otherwise give effect to the terms
hereof, including any and all consents to, and releases with respect to, such
sale, assignment and transfer as may be required.
4. Miscellaneous. This Xxxx of Sale shall be governed by the internal
-------------
substantive laws of the United States of America and the State of Florida, and
it shall be deemed to have been executed within the State of Florida. All of
the terms and provisions of this Xxxx of Sale shall be binding upon, and shall
inure to the benefit of, each of the parties hereto and their respective
successors and assigns. If any provision of this Xxxx of Sale is found to be
invalid by any court having competent jurisdiction, the invalidity of such
provision shall not affect the validity of the remaining provisions of this Xxxx
of Sale, which shall remain in full force and effect. Any and all disputes
arising under or concerning this Xxxx of Sale must be brought in the state or
federal courts sitting in the State of Florida, and each party hereby consents
to the exercise of jurisdiction by such courts over any such disputes. No
waiver of any term of this Xxxx of Sale shall be deemed a further or continuing
waiver of such term or any other term. Any changes to this Xxxx of Sale must be
made in writing, signed by an authorized representative of each party hereto.
5. Notices. All notices or other communications which are required or may be
-------
given hereunder shall be in writing and shall be deemed to be sufficient if
delivered personally, telecopied, sent by nationally-recognized, overnight
courier or mailed by registered or certified mail (return receipt requested),
postage prepaid, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
If to Seller: Simply Cellular, Inc
Attention: Xxxxx Xxxxxxxx
00000 Xxxxxxxx Xxxx
Xxxxx, Xxxxxxx 00000
If to Purchaser: FTS APPAREL, INC.
Attention: Xxxxx Xxxxxxxxx
Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxx
All such notices and other communications shall be deemed to have been given and
received (i) in the case of personal delivery, on the date of such delivery,
(ii) in the case of delivery by telecopy, on the date of such delivery (if sent
on a business day, or if sent on other than a business day, on the next business
day after the date sent), (iii) in the case of delivery by
nationally-recognized, overnight courier, on the business day following
dispatch, and (iv) in the case of mailing, on the third business day following
such mailing.
IN WITNESS WHEREOF, Seller and Purchaser have caused this Xxxx of Sale to be
executed and delivered by their respective duly authorized representatives as of
the date first written above.
"PURCHASER"
FTS APPAREL, INC., a Colorado corporation
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: President
"SELLER"
SIMPLY CELLULAR, INC., a Florida corporation
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title:
ASSIGNMENT OF LEASE
-------------------
This ASSIGNMENT OF LEASE is entered into as of February 14, 2002, by and
between FTS Apparel, Inc., a Colorado corporation ("Purchaser") and Simply
Cellular, Inc., a Florida corporation ("Seller").
BACKGROUND
----------
A. Pursuant to that certain Lease dated August 1, 2001 ("Lease"),
by and between Simply Cellular, Inc. and Life Investor Inc., Co., as landlord
("Landlord"), Seller is the owner of a leasehold interest in the premises,
located at 00000 Xxxxxxxx Xxxx, Xxxxx, XX 00000 (the "Premises") as more fully
described in the Lease, a true, correct and complete copy of which is attached
hereto as Exhibit A and incorporated herein by reference; and
B. Pursuant to an Asset Purchase Agreement for the acquisition of
certain assets of Seller, dated as of February 14, 2003 ("Agreement"), Seller
has agreed to transfer, and Purchaser has agreed to acquire, certain assets of
Seller and to assume certain of the liabilities of Seller, including the Lease.
NOW, THEREFORE, in consideration of the Premises and the mutual covenants
and agreements herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby covenant and agree as follows:
1. Seller hereby assigns, transfers and sets over to Purchaser all of
Seller's right, title, interest in and to Seller's interest as lessee
under the Lease effective as of the Closing of the Acquisition
("Effective Date").
2. Purchaser hereby accepts the aforesaid assignment, and hereby assumes all
of the rights, responsibilities, liabilities and obligations of Seller, as
lessee, under the terms, conditions and covenants contained in the Lease, with
like force and effect as if Purchaser had executed the Lease in the first
instance.
3. Seller shall remain liable only for the observance and performance of its
obligations as lessee under the Lease arising prior to the Effective Date.
Purchaser shall be liable for the observance and performance of its obligations
as lessee under the Lease arising on and after the Effective Date.
4. Seller shall be responsible for and shall indemnify Purchaser, pursuant
to the Agreement, regarding the observance and performance of all of the
agreements and obligations of Seller as lessee under the Lease arising prior to
the Effective Date. Purchaser shall be responsible for and shall indemnify
Seller, pursuant to the Agreement, regarding the observance and performance of
all of the agreements and obligations of Seller as lessee under the Lease
arising on or after the Effective Date.
5. The parties agree that this Assignment will not be changed, modified,
discharged or terminated orally or in any manner other than an agreement in
writing signed by all of the parties hereto.
6. The agreements, terms and provision of this Assignment shall bind and
inure to the benefit of the parties hereto and their respective successors and
assigns. The parties shall execute and deliver such further and additional
instruments, agreements and other documents as may be necessary to evidence or
carry out the provisions of this Assignment.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Assignment of Lease to be executed as of the date first
above written.
PURCHASER:
FTS Apparel, Inc.
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: President
SELLER:
Simply Cellular, Inc.
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: President
