Xxxx Systems, Inc.
0000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxx, X.X. 00000
September ___, 2003
Goldtech Mining Corporation
0000 000xx Xxxxxx X.X. Suite 000
Xxxxxxxx, Xxxxxxxxxx 00000
Re: Letter Agreement for the Purchase of the Assets of Goldtech Mining
Corporation
Gentlemen:
This letter agreement (the "Agreement") contains the terms and conditions upon
which Xxxx Systems, Inc., a Delaware corporation ("Buyer"), is willing to
acquire the assets of Goldtech Mining Corporation, ("Seller").
1. Assets. On the Closing Date (as hereinafter defined) and subject to the terms
and conditions of this Agreement, Xxxxx agrees to purchase and Seller agrees to
sell all of the assets, properties, interests and rights of Seller, real and
personal, tangible and intangible, owned or leased by Seller which are used or
held for use in the business of Seller including, but not limited to, all the
following:
All of the items set forth on Exhibit A attached hereto, and all right,
title and interest in and to all of the other assets of the Company, including,
but not limited to, all of the Company's:
(a) real property, leaseholds and subleaseholds therein,
improvements, fixtures and fittings thereon, and easements, rights-of-way and
other appurtenances thereto;
(b) tangible personal property (such as machinery, equipment,
inventories of materials and supplies, goods or works in process and finished
goods, and furniture);
(c) intellectual property, goodwill associated therewith,
licenses and sublicenses granted and obtained with respect thereto, and rights
thereunder, remedies against infringements thereof, and rights to protection of
interests therein under the laws of all jurisdictions;
(d) leases, subleases and rights thereunder;
(e) the asset value or benefit of the agreements, contracts, indentures,
mortgages, instruments, guaranties, and other similar arrangements and rights
thereunder, set forth on Exhibit B attached hereto (but not including any rights
under contracts not being assumed hereunder, (the "Assumed Contracts");
(f) accounts, notes and other receivables;
(g) securities;
(h) claims, deposits, prepayments, refunds, cause of action, rights of recovery,
rights of set off and rights of recoupment;
(i) franchises, approvals, certificates, variances, and similar rights; and
(j) books, records, ledgers, files, documents, correspondence, lists, plats,
architectural plans, drawings and specifications, creative materials,
advertising and promotional materials, studies, reports and other printed or
written materials;
but excluding contracts or agreements to which Seller is a party (other
than the Assumed Contracts set forth on Exhibit B attached hereto), tangible and
intangible personal property disposed of or consumed in the ordinary course of
business from the date of this Agreement until the Closing Date. The assets
conveyed (the "Assets") will include all replacements and additions thereto
between the date of this Agreement and the date on which the transactions
contemplated hereby are consummated (the "Closing Date"). Seller agrees that it
shall convey the Assets to Buyer free and clear of all liens, encumbrances and
debts of any kind except to the extent expressly assumed by Xxxxx.
2. Purchase Price.
(a) The purchase price received for Assets (the "Purchase Price") shall
be paid in Buyer's restricted Common Stock.
(b) Subject to the adjustments set forth in Paragraph 4, the Buyer
agrees to pay to the Seller 11,000,000 shares of its post reverse split common
stock. As used in this Agreement, "Buyer Common Stock" shall mean the common
stock of the Buyer, par value of $0.001 per share.
3. Allocation. Within 30 days after the Closing Date, Seller and Xxxxx
shall negotiate in good faith an allocation of the Purchase Price among the
Assets (as well as liabilities assumed by Buyer) that complies with Section 1060
of the Code (as hereinafter defined). If the allocation is not agreed upon
within 30 days after the Closing Date, then Buyer and Seller agree that the
allocation shall be made and consistently reported by Xxxxx and Seller in
compliance with Section 1060 based upon an asset valuation provided by an
independent appraisal company jointly selected and retained by the parties which
engages in the business of providing valuations for internet service providers
(the "Appraisal Firm"). Buyer will request such appraisal from the Appraisal
Firm promptly after such date as Buyer and Seller have selected and retained the
Appraisal Firm. The Appraisal Firm's determination shall be binding upon Buyer
and Seller. The cost of the Appraisal Firm shall be shared equally by Xxxxx and
Seller. The appraisal, if required, shall be provided to Seller within 45 days
after the request of such appraisal.
4. Closing. Subject to the satisfaction or waiver of the conditions
contained in this Agreement, the Closing will take place at (a) the offices of
Presidential Air Corporation at 10:00 a.m. local time, on (i) the 10th business
day after the execution of this agreement or (ii) the second business day after
which all of the conditions to closing have been met, or (b) at such place and
at such time as Buyer and Seller may agree. In addition to any other conditions
specifically contained in this Agreement, unless waived by Buyer, the obligation
of Buyer to effect the transactions contemplated hereby is subject to Seller
having performed in all material respects all obligations required to be
performed by it under this Agreement prior to the Closing Date, and, unless
waived by Seller, the obligation of Seller to effect the transactions
contemplated hereby, including without limitation title commitments and surveys
obtained at the sole cost and expense of Seller.
5. Representations and Warranties of Buyer. Buyer hereby represents and warrants
to Seller as follows, and Xxxxx and Seller hereby agree that Xxxxxx's
obligations hereunder are subject to these representations and warranties being
true, correct and complete as of the Closing Date:
(a) Buyer is a corporation duly organized, validly existing and in good standing
in the Delaware and has all necessary corporate power and authority to execute
this Agreement and the other documents to be executed by it in connection
herewith (collectively with this Agreement, "Buyer's Agreement") and to
consummate the transactions contemplated hereby and thereby.
(b) Buyer's execution, delivery and performance of Xxxxx's Agreements and the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary action on its part and, assuming the due execution
and delivery of Seller's Agreements (as hereinafter defined) by Seller, will
constitute the valid and binding obligations of Buyer, enforceable against it in
accordance with their respective terms, except as limited by laws affecting
creditor's rights or equitable principles generally.
(c) The execution, delivery and performance of Buyer's Agreements by Xxxxx does
not require the consent of a governmental entity or a third party not affiliated
with Buyer.
(d) Buyer represents and warrants that the shares of Buyer Comon Stock issued
pursuant to the Purchase Price are restricted securities under the Securities
Act of 1933, as amended and are subject to substantial restrictions upon
transfer. The certificates for shares of Common Stock will bear the following
legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER
HEREOF, BY ACCEPTING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE
ISSUER THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED ONLY (A) TO THE ISSUER, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN COMPLIANCE WITH
APPLICABLE STATE SECURITIES LAWS, (C) IN ACCORDANCE WITH RULE 144 UNDER
THE SECURITIES ACT AND IN COMPLIANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS, OR (D) IN ACCORDANCE WITH ANY OTHER EXEMPTION UNDER
THE SECURITIES ACT AND IN COMPLIANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS UPONO THE DELIVERY OF A LEGAL OPINION, REASONABLY
SATISFACTORY TO THE ISSUER, TO THE FOREGOING EFFECT.
(e) To the best of Buyer's knowledge after reasonable investigation, all reports
or other documents filed by the Buyer with the Securities and Exchange
Commission ("Commission") pursuant to Sections 12, 13, 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), at the time
they were filed, complied with the requirements of the Securities Act of 1933,
as amended, the Exchange Act and the rules and regulations adopted under such
Acts and did not include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein not
misleading.
(f) Buyer is subject to the reporting requirements under Sections 12,13,14 or
15(d) of the Exchange Act. To the best of theBuyer's knowledge after reasonable
investigation, the Buyer has filed all reports with the Commission as required
by the Exchange Act.
6. Representations and Warranties of Seller. Subject to the matters set
forth in the disclosure schedule contained on Exhibit F attached hereto (the
"Disclosure Schedule"), Seller hereby represents and warrants to Buyer as
follows, and Xxxxx and Seller agree that Xxxxx's obligations hereunder are
subject to these representations and warranties being true, correct and complete
as of the Closing Date:
(a) Seller is a California General Partnership and has all
necessary power and authority to execute this Agreement and the other documents
to be executed by it in connection herewith (collectively with this Agreement,
"Seller's Agreements"), to conduct its business and operations as presently
conducted and to consummate the transactions contemplated hereby and thereby.
(b) Seller's execution, delivery and performance of Sellers'
Agreements and the transactions contemplated hereby and thereby have been duly
and validly authorized by all necessary action on its part and, assuming the due
execution and delivery of Buyer's Agreements by Buyer, will constitute the valid
and binding obligations of Seller, enforceable against it in accordance with
their respective terms, except as limited by laws affecting creditor's rights or
equitable principles generally. No person other than Seller has any interest in
any of the Assets.
(c) Except as set forth in the Disclosure Schedule, the
execution, delivery and performance of Seller's Agreements by Seller does not
require the consent of any governmental entity or third party, will not conflict
with or violate the provisions of Seller's corporate provisions or any
applicable law or any judgement, order or ruling of any government authority
having jurisdiction over Seller, will not, directly or indirectly, conflict with
or constitute a breach or default under any agreement, license or permit to
which Seller is a party or is subject, and will not result in the creation of
any lien or encumbrance on the Assets.
(d) Except as set forth in the Disclosure Schedule Seller is
the authorized legal holder of all licenses, permits and authorizations from
governmental and regulatory authorities which are required for the lawful
conduct and operation of the business of Seller as presently conducted and
operated and all of such licenses, permits or authorizations are in full force
and effect and are not subject to any restrictions or conditions limiting or
restricting the continued conduct and operation of the business of Seller as
presently conducted. Except as otherwise disclosed, there are no pending or
threatened proceedings which could result in the revocation, modification or
nonrenewal of such licenses, permits and authorizations, and Seller has no
reason to believe that such licenses, permits and authorizations will not be
renewed in their ordinary course.
(e) Except as set forth in the Disclosure Schedule Seller is
in compliance with all laws, regulations, rules and governmental orders
applicable to its business and the Assets and the conduct and operation of its
business, and Seller has not violated such laws, regulations, rules or
governmental orders in the conduct and operation of its business and no such
violations have occurred which would affect Sellers' ability to perform its
obligations hereunder.
(f) Except as set forth in the Disclosure Schedule, Seller is not
subject to any judgement, injunction, order or arbitatration decision relating
to the Assets or the conduct and operation of its business and there is no
litigation or administrative proceeding pending or threatened against Seller or
its business relating to the Assets or the conduct and operation of its business
or which would affect Seller's ability to perform its obligations hereunder.
(g) Seller has, and following the Closing, Buyer will have, full and
unrestricted legal and equitable title free and clear of any encumbrances to the
Assets. All of the personal property to be transferred to Buyer is free of any
defects and is in good and technically sound operating condition and repair,
normal wear and tear excepted, is suitable for the purposes for which they are
presently being used and have been maintained in a manner consistent with
generally accepted standards of good engineering practice. Except as set forth
in the Disclosure Schedule, each lease included in the Assets is a valid and
binding obligation of Seller and is in full force and effect, and Seller, is
not, and, to the knowledge of Seller, no other party is, in default in any
material respect under any such lease.
(h) All domain names, trade names, service marks, copyrights and other
intellectual property used by Seller in the conduct and operation of its
business is licensed to or owned by Seller, and all of Seller's rights thereto
shall be fully assignable to Buyer on the Closing Date. All licenses of such
intellectual property are valid and uncontested, and Seller has received no
notice of infringements or unlawful use of such intellectual property in
connection with the conduct and operation of its business.
(i) Seller has complied and is in compliance with all Environmental Laws (as
hereinafter defined.
(i) Seller has no liability under any Environmental law, nor
is Seller responsible (including, but not limited to, by contract or by
operation of law) for any liability of any other person under any
Environmental Law. There are no pending or threatened actions, suits,
orders, claims, legal proceedings or other proceedings based on, and
Seller, nor any officer, director or shareholder thereof has directly
or indirectly received any formal or informal notice of any complaint,
order, directive, citation, notice of responsibility, notice of
potential responsibility, or information request from any governmental
authority or any other person or entity or knows or suspects any
fact(s) which might reasonably form the basis for any such actions or
notices pursuant to Environmental Laws or otherwise arising out of or
relating in any way to Hazardous Materials (as hereinafter defined).
(ii) No authorization, notification, recording, filing, consent, waiting
period, remediation, investigation, or approval is required under any
Environmental Law in order to consummate the transaction contemplated
hereby.
(iii) "Environmental Laws" means any laws (including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act)
and decrees, relating to the generation, production, installation, use,
storage, treatment, transportation, release, threatened release, or
disposal of Hazardous Materials, noise control, or the protection of
human health or safety, natural resources, or the environment.
(iv) "Hazardous Materials" means any wastes, substances, radiation, or
materials (whether solids, liquids or gases) (i) which are defined as
"pollutants," contaminants," "hazardous wastes", "hazardous
substances", "solid wastes", or other similar designations in, or
otherwise listed or subject to regulation under, any Environmental
Laws; (ii) which contain PCBs, asbestos, asbestos-containing materials,
lead-based paints, urea-formaldehyde foam insulation, petroleum or
petroleum products (including, without limitation, crude oil or any
fraction thereof) or (iii) which pose a hazard to human health, safety,
natural resources, industrial hygiene, or the environment.
(j) Attached to the Disclosure Schedule are the following financial
statements for Seller (collectively, the "Financial Statements"): (i)
audited balance sheets as of June 30, 2003 and December 31, 2002. The
financial statements present fairly the financial condition of Seller
as of such date is true, correct and complete and is consistent with
the books and records of Seller (which books and records are also true,
correct and complete).
(k) Since the Balance Sheet Date, there has not occurred, and Seller has
not incurred or suffered, any event, circumstance or fact that could
result in a material adverse effect on the business, operations,
properties, condition (financial or otherwise), results of operations,
assets, liabilities or prospects of the business ony in the ordinary
course consistent with past practice and nothing has occurred that
would have been prohibited by Paragraph 10 if the terms of such
paragraph had been in affect as of and after the Balance Sheet Date.
Since the Balance Sheet Date, there has not occurred, and Seller has
not incurred or suffered, any event, circumstance or fact that impairs
the physical assets of Seller's business.
(l) No representation or warranty made by Seller and contained in this
Agreement contains any untrue statement of fact or omits any fact required to
make any statement contained herein not misleading. Seller is not aware of any
impending or contemplated event or occurence that would cause any of the
foregoing representations not to be true, correct and complete on the date of
any such event or occurrence as if the foregoing representations were made on
the date of any such event or occurrence.
(m) Seller is not an operating company and as such has no computer software
utilized in the conduct and operation of the business of Seller. Seller has not
and has not been required to take steps to evaluate or remediate problems
relating to the proper processing or utilization of dates that span multiple
centuries because there are not computer systems in place that would require
such actions to be taken.
(n) (i) Seller has:
(a) filed all federal, state, local and foreign Tax Returns (as hereinafter
defined) required to be filed by it; (b) paid or accrued all Taxes (as
hereinafter defined) shown to be due on such Tax Returns or which are otherwise
due and payable; and
(c) paid or accrued all Taxes for which a notice of assessment or collection has
been received.
As used in this Agreement,
"Code" means the Internal Revenue Code of 1986, as amended.
"Taxes" means any and all federal, state, local, foreign or other taxes
of any kind (together with any and all interest, penalties, additions to tax and
additional amounts imposed with respect thereto) imposed by any taxing
authority, including, without limitation, taxes or other charges on or with
respect to income, franchises, windfall or other profits, gross receipts,
property, sales, use, capital stock, payroll, employment, social security,
workers' compensation, unemployment compensation, or net worth, and taxes or
other charges in the nature of excise, withholding, ad valorem or value added,
and includes, without limitation, any liability for Taxes of another person, as
a transferee or successor, under Xxxxx. Reg. Section 1.1502-6 or analogous
provision of law or otherwise; and
"Tax Return" means any return, report or similar statement (including
any attached schedules) required to be filed with respect to any Tax, including,
without limitation, any information return, claim or refund, amended return or
declaration of estimated Tax.
(ii) Neither the Internal Revenue Service nor any other taxing
authority has asserted in writing any claim for Taxes, or to the
knowledge of Seller, is threatening to assert any claims for Taxes,
against Seller. Seller has withheld or collected and paid over to the
appropriate governmental entities (or is properly holding for such
payment) all Taxes required by law to be withheld or collected. There
are no outstanding agreements or waivers extending the statuatory
period of limitation applicable to any Tax Return of Seller. Seller has
not made an election under Section 34(f) of the Code. There are no
liens for Taxes upon the assets of Seller (other than liens for Taxes
that are not yet due).
(iii) Seller:
(a) has no liability under Treasury Regulation
Section 1.1502-6 or analogous state, local or foreign
law provision, or
(b) is not a party to a Tax sharing or Tax indemnity
agreement or any other agreement of a similar
nature with any entity that remains in effect.
No claim has been made by a taxing authority in a jurisdiction where
Seller does not file Tax Returns that Seller is or may be subject to taxation by
that jurisdiction. Seller is not the subject of any currently ongoing audit or
examination with respect to Taxes, nor, to the knowledge of Seller, has any such
audit been threatened or proposed, by any taxing authority.
(o) Seller does not have nor has ever had any employees and as such is not
liable for any costs of employee compensation or benefits relating to the
business of Seller, including any taxes and related contributions, vacations and
sick pay or any group medical, dental or death benefits for expenses regardless
of when incurred or arising. There are no bonus, vacation, deferred
compensation, pension, retirement, profit-sharing, thrift, savings, employee
stock ownership, stock bonus, stock purchase, restricted stock and stock option
plans, favorable determination letters from the Internal Revenue Service
pursuant to any pension plan qualified under Section 401(a) of the Code,
employment or severance contracts, medical, dental, disability, health and life
insuranc plans and other employee benefit and fringe benefit plans or other
contracts maintained or contributed to by Seller for the benefit of officers,
former officers, employees, former employees, directors, former directors, or
the beneficiaries of any of the foregoing, or pursuant to which Seller may have
any liability that are contracts with, or plans maintained primarily for the
benefit of, individuals employed or rendering services in the United States and
are not multiemployer plans within the meaning of Section 4001(a)(3) of ERISA
(as defined in (o)(iii)) (collectively (whether or not material), the "Seller
Compensation and Benefit Plans"). The execution and performance of the
transactions contemplated by this Agreement will not (either alone or upon the
occurance of any additional or subsequent events) constitute an event under any
Seller Compensation and Benefit Plan, trust or loan that will or may result in
any payment (whether of severence pay or otherwise), acceleration, forgiveness
of indebtedness, vesting, distribution, increase in benefits or obligation to
fund benefits with respect to any officers and directors of Seller.
7. Covenant of Buyer. Buyer hereby covenants to Seller that it shall
not take any action which is materially inconsistent with its obligations under
this Agreement that it shall notify Seller of any litigation or administrative
proceeding pending or, to Buyer's knowledge, threatened against Buyer that
challenges the transactions contemplated hereby. Xxxxx agrees that the
compliance with this covenant in all material respects shall be a condition to
Seller's obligations hereunder.
8. Certain Seller Covenants. Sell hereby makes the following
covenants to Buyer, the compliance with which in all respects
shall be a condition to Xxxxx's obligations hereunder:
(a) Seller shall conduct and operate its business in the ordinary and
prudent course of business consistent with past practices, shall
not sell, lease or dispose of any Asset to be conveyed hereunder
and shall preserve the business of the customers, suppliers and
others having business relations with Seller's business; (b)
Seller shall operate its business in all respects in accordance
with all laws, regulations and rules applicable to such business;
(c) Seller shall not take any action that would cause any
representation or warranty contained herein to become false or
invalid, and Seller shall notify Buyer of any change in any of
Seller's representations and warranties contained herein;
provided, however, that such notice shall not operate to cure any
breach of such representations or warranties;
(d) Seller shall not take any action which is inconsistent with
Seller's obligations under this Agreement; and
(e) Seller shall notify Buyer of any litigation or administrative
proceeding or investigation pending or, to Seller's knowledge,
threatened which challenges the transactions contemplated hereby.
9. Certain Conditions to Buyer's Obligation. Xxxxx and Xxxxxx agree
that Xxxxx's obligations hereunder are specifically conditioned upon the prior
occurrence or satisfaction of the following:
(a) Buyer shall have completed to Buyer's satisfaction its business,
financial and legal due diligence investigation of Seller;
(b) Buyer shall have received the audited balance sheet and a revised
Exhibit A as close to the Closing Date as is reasonably practicable;
(c) Xxxxx shall have received a written opinion of Xxxxxxx' counsel
dated as of the Closing Date as to the matters set forth in Exhibit G attached
hereto in form and substance satisfactory to Buyer and its counsel;
(d) all instruments of conveyance and transfer and other documents
delivered by Seller to Buyer to effect the sale, transfer and conveyance of the
Assets to Buyer shall be satisfactory in form and substance to Buyer and its
counsel;
(e) Buyer shall have received evidence satisfactory to it and its
counsel of the consent, approval or authorization of each governmental and
regulatory authority whose consent, approval or authorization shall be required
in order to permit the consummation of the transactions contemplated hereby, and
such consent, approval or authorization shall be in a form and substance
satisfactory to Buyer and its counsel;
(f) no litigation or administrative proceeding or investigation
(whether formal or informal) shall be pending or, to Seller's knowledge,
threatened which challenges the transactions contemplated hereby;
(g) the representations and warranties of Seller contained herein shall
be true, correct and complete as of the Closing Date, Seller shall have
performed or complied with all covenants and agreements required by this
Agreement to be performed or complied with by Seller, and Buyer shall have
received a certificate of a duly authorized officer of Seller substantially in
the form of Exhibit H attached hereto to the effect that, as of the Closing
Date, the representations and warranties of Seller set forth herein are true and
correct as of the Closing Date and that Seller has performed or complied with
all of its covenants and agreements contained herein;
(h) Xxxxx shall have received a certified copy of the resolutions of
Seller's board of directors and shareholders authorizing the execution, delivery
and consummation of this Agreement and the transactions contemplated hereby;
(i) Xxxxx's board of directors shall have authorized the execution,
delivery and consummation of this Agreement and the transactions contemplated
hereby;
(j) Xxxxx shall have received a certificate of the secretary of Seller
substantially in the form of Exhibit I attached hereto;
10. Cooperation. Xxxxx and Seller agree to cooperate fully with one
another in taking any actions necessary or helpful to accomplish the
transactions contemplated hereby, including actions to obtain consents required
by any third party; provided, however, that no party shall be required to take
any action which would have a material adverse effect upon it or any of its
affiliates.
11. Bulk Sales. Buyer and Seller agree to waive compliance with all
"bulk sales" or similar laws that may be applicable to the transactions
contemplated hereby.
12. Confidentiality; Publicity. Buyer and Seller shall each keep
confidentialty all information obtained by it with respect to the other in
connection with this Agreement, will use such information solely in connection
with the transaction contemplated hereby, and shall return all such information
to the other party if such transactions are not consummated for any reason.
Neither party will issue a press release, make any disclosure or any other
announcement concerning the transactions contemplated by this Agreement without
the prior written consent of the other party, which consent shall not be
unreasonably withheld.
13. Costs and Expenses. Seller shall pay all costs incurred in
connection with the audit of Seller's financials. Except as provided herein or
as otherwise expressly set forth in this Agreement, Buyer and Seller agree that
each party shall be solely responsible for all costs and expenses incurred by it
in connection with the consummation of the transactions contemplated hereby;
provided however, that all transfer, sales or use taxes or similar charges
resulting from the transfer of the Assets contemplated hereby shall be borne by
Seller; provide further, that if Seller breaches this Agreement and Buyer
terminates this Agreement in accordance with Paragraph 17(a), Seller shall pay
costs and expenses incurred by Xxxxx, including the fees and expenses incurred
by Xxxxx's professional advisors with respect to the matters contemplated by
this Agreement. In the event of a dispute between the parties in connection with
this Agreement or the transactions contemplated hereby, each of the parties
hereto agrees that the prevailing party shall be entitled to reimbursement by
the other party of reasonable legal fees and expenses incurred in connection
with any action or proceeding.
14. Indemnification.
(a) From and after the Closing Date, Seller agrees to indemnify an hold Buyer
and its affiliates harmless from and against all costs, losses and damages
(including reasonable attorney fees) incurred by Buyer or Xxxxx's affiliates as
a result of or arising out of (i) the breach by Seller of any of its
representations and warranties contained in this Agreement, (ii) the failure by
Seller to perform or comply with all of its covenants and agreements set forth
in this Agreement, and (iii) the Excluded Liabilities.
(i) Buyer shall not be liable under this Paragraph 17 with respect to any claim
by Xxxxxx against Xxxxx for indemnification payable under this Paragraph 17
unless a written claim for indemnification is given by Seller to Buyer with
respect thereto on or before the third anniversary of the Closing Date.
(b) The indemnified party shall make no settlement, compromise,
admission or acknowledgement that would give rise to liability on the part of
the indemnifying party without the prior written consent of the indemnifying
party.
(c) The representations, warranties, covenants and agreements of Seller
contained herein shall survive the Closing in full force and effect for a period
of three (3) years from the Closing Date; provided, however, that Seller's
representation and warranties set forth in subsections (n) and (o) of Paragraph
9 shall survive the Closing in full force and effect until such time as the
applicable statute of limitations has expired; provided, further, that Seller's
representations and warranties set forth in subsections (a), (b) and (c) of
Paragraph 9 shall survive the closing in full force and effect without
limitation as to duration.
(d) The representations, warranties, covenants and agreements of Buyer
contained herein shall survive the Closing in full force and effect for a period
of three (3) years from the Closing Date.
15. Termination. This Agreement may be terminated at any time prior to
Closing as follows:
(a) by written notice of Buyer to Seller or Seller to Buyer if the other
materially breaches any of its representations or warranties or defaults in the
performance of its covenants or agreements contained herein and such breach or
default shall not be cured within five (5) days after the date notice of such
breach or default is served by the party seeking to terminate this Agreement;
(b) by written notice of Buyer to Seller or Seller to Buyer if there shall be in
effect any judgement, decree or order that would prevent or make unlawful the
Closing of the transactions contemplated by this Agreement;
(c) by written notice of Buyer to Seller, or by Seller to Buyer if the Closing
shall not have been consummated on or before the date which is 60 days from the
date hereof;
(d) by written notice of Buyer to Seller at any time prior to the Closing, if
Xxxxx is not satisfied, in its sole discretion, with its business and legal due
diligence investigations of Seller; or
16. Specific Performance. Xxxxx and Xxxxxx recognize that if Xxxxxx
refuses to perform under the provisions of this Agreement, monetary damages
alone will not be adequate to compensate Buyer for its injury. Buyer shall
therefore be entitled, in addition to any other remedies that may be available,
to obtain specific performance of the terms of this Agreement.
17. Parties in Interest. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. No party may voluntarily or involuntarily assign its interest
under this Agreement without the prior written consent of the other parties
hereto, except for any assignment to an affiliate of Buyer in which case Buyer
shall remain fully obligated under this Agreement.
18. Amendment. No amendment, waiver of compliance with any provision or
condition hereof or consent pursuant to this Agreement shall be effective unless
evidenced by an instrument in writing signed by the party against whom
enforcement of any amendment, waiver or consent is sought.
19. Governing Law. This Agreement, including, without limitation, the
interpretation, construction, validity and enforceability thereof, shall be
governed by the laws (other than the conflict of laws rules) of the State of
Delaware but venue shall be in Xxxxxx County, Texas.
20. Notice. All notices, requests, consents, waivers, and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed to have been given: (a) if transmitted by facsimile, upon
acknowlegement of receipt thereof in writing by facsimile or otherwise; (b) if
personally delivered, upon delivery or refusal of delivery; (c) if mailed by
registered or certified United States mail, return receipt requested, postage
prepaid, upon delivery or refusal of delivery. All notices, consents, waivers or
other communications required or permitted to be given hereunder shall be
addressed to the respective party to whom such notice, consent, waiver or other
communication relates at the following addresses:
If to Seller, to: Goldtech Mining Corporation
0000 000xx Xxxxxx X.X., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Telephone (000) 000-0000
Fax (000) 000-0000
If to Buyer, to: Xxxx Systems, Inc.
0000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxx, X.X. 00000
Telephone (000) 000-0000
Fax (000) 000-0000
With a copy to (which shall not constitute notice):
Vanderkam & Associates
0000 Xxxxxx, #0000
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
21. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
22. Severability. Buyer and Seller agree that if one or more provisions
contained in this Agreement shall be deemed or held to be invalid, illegal or
unenforceable in any respect under any applicable law, this Agreement shall be
construed with the invalid, illegal or unenforceable provision deleted, and the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected or impaired thereby.
23. Entire Agreement. This Agreement and the exhibits hereto embody the entire
agreement and understanding of the parties hereto and supersedes any and all
prior agreements, arrangements and understandings relating to the matters
provided for herein.
24. No Liability. Seller agrees that no stockholder, director or officer of
Buyer or its affiliates shall have any personal or individual liability for the
obligations of Buyer under this Agreement or any other agreement entered into in
connection with this Agreement.
25. Brokers. Neither Buyer nor Seller nor any person acting on behalf of Xxxxx
or Xxxxxx has agreed to pay any commission or finder's fee in connection with
this Agreement.
26. Further Actions. After the Closing Date, Seller shall execute and deliver
such other certificates, agreements, conveyances and other documents, and take
such other action, as may be reasonably requested by Xxxxx in order to transfer
and assign to, and vest in, Buyer the Assets pursuant to the terms of this
Agreement.
[Signature xxxx follows]
Kindly sign where indicated below to indicate your acceptance of this Agreement
with the terms set forth above.
Very Truly Yours, XXXX
SYSTEMS, INC.
By:_______________________________
Name: Xxxxx Xxxxxx
Title: CEO and President
The foregoing reflects my understanding and agreement
as outlined above this ______ day of September 2003.
GOLDTECH MINING CORPORATION
By: ______________________________
Name:
Title: CEO and President
