EXHIBIT 10.56
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AGREEMENT OF SALE
AGREEMENT OF SALE, made as of October 22, 2002, between ▇▇▇▇▇▇.▇▇▇, Inc., a
Delaware corporation, having an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ("Seller"), and Universal Media Holdings, Inc., a Delaware corporation,
having an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Purchaser").
W I T N E S S E T H:
WHEREAS, Purchaser desires to acquire, and Seller desires to sell, the assets of
Seller, as set forth on Exhibits A1 and A2, annexed hereto, upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants and agreements hereafter set
forth, and other valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the parties hereto agree as follows:
1. AGREEMENT TO SELL. Seller agrees to sell, transfer and deliver to Purchaser,
and Purchaser agrees to purchase, upon the terms and conditions hereinafter set
forth, the business entity known as Diversified Capital Holdings, LLC, a/k/a
Azure Capital, LLC including all of the assets thereof other than cash,
certificates of deposit, securities, and cash equivalents, and the business
entity known as CDKNet, LLC. (the "Assets" and the "Purchased Entities"),
including without limitation the following:
(a) the contracts and agreements described in Exhibit A-1 hereto (the
"Contracts");
(b) the other assets described in Exhibit A-2 hereto (the "Other
Assets"); and
(c) the goodwill of the business (the "Goodwill").
2. PURCHASE PRICE. The purchase price to be paid by Purchaser is Five Hundred
Fifty Thousand Dollars ($550,000.00), payable as follows:
(a) Five Hundred Fifty Thousand Dollars ($550,000.00) at the closing by
the execution and delivery of a Promissory Note by Purchaser to Seller
in said amount, substantially in the form of Exhibit B hereto (the
"Promissory Note"), secured by a Security Agreement substantially in
the form of Exhibit C hereto and UCC Financing Statements creating a
security interest in the assets of the Business (the "Security
Agreement").
(b) If any investment holdings of the Purchased Entities are sold, or in
the event that there are licensing revenues realized, then a minimum
of FIFTY Percent (50%) of the proceeds must be paid to seller and
applied on the outstanding balance of the Note, without any prepayment
penalties such sums shall be paid prior to the issuance of any release
of the security interests then existing on the Purchased Entities or
Assets.
3. THE CLOSING. The "closing" means the settlement of the obligations of Seller
and Purchaser to each other under this agreement, including the payment of the
purchase price to Seller as provided in Article 1 hereof and the delivery of the
closing documents provided for in Article 4 hereof. The closing shall be held at
the offices of Universal Media Holdings, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10 A.M. on or about October 22, 2002 (the "closing date").
4. CLOSING DOCUMENTS. At the closing Seller shall execute and deliver to
Purchaser:
(a) a ▇▇▇▇ of Sale and Assignment of LLC Ownership Interests that is
substantially in the form of Exhibit D hereto;
(b) certified copies of resolutions duly adopted by the Board of Directors
and shareholders of Seller authorizing the sale of the Assets and the
performance by Seller of its obligations hereunder;
(c) an opinion of Seller's counsel, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, P.C., dated as of
the closing date, stating such counsel's opinion that: (i) Seller is a
corporation duly organized, validly existing and in good standing
under the laws of Delaware; (ii) Seller has full power and authority,
corporate and otherwise, to enter into this agreement and perform its
obligations hereunder; (iii) the execution and delivery of this
agreement and the performance by Seller of its obligations hereunder
have been duly authorized by the Board of Directors and shareholders
of Seller and no further action or approval is required in order to
constitute this agreement as the binding obligation of Seller,
enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, moratorium, insolvency or other laws
affecting creditor's rights generally; (iv) the execution and delivery
of this agreement and the performance by Seller of its obligations
hereunder do not and will not violate any provision of the Certificate
of Incorporation or Bylaws of Seller; and (v) except as may be set
forth in this agreement, such counsel is not representing Seller in
any suit, action or proceeding against Seller which, if adversely
determined, would prohibit the consummation of the transactions
contemplated by this agreement; and
(d) such other instruments as may be necessary or proper to transfer to
Purchaser all other ownership interests in the Assets to be
transferred under this agreement
At the closing Purchaser shall execute and deliver to Seller:
(a) the Promissory Note, Security Agreement and UCC Financing
Statements provided for in Article 2 hereof;
(b) certified copies of resolutions duly adopted by the Board of
Directors and shareholders of Purchaser authorizing the purchase of
the Assets and the performance by Purchaser of its obligations
hereunder;
(c) An opinion of Purchaser's counsel, dated as of the closing date,
stating such counsel's opinion that: (i) Purchaser is a corporation
duly organized, validly existing and in good standing under the laws
of Delaware; (ii) Purchaser has full power and authority, corporate
and otherwise, to enter into this agreement and perform its
obligations hereunder; (iii) the execution and delivery of this
agreement and the performance by Purchaser of its obligations
hereunder have been duly authorized by the Board of Directors and
shareholders of Purchaser and no further action or approval is
required in order to constitute this agreement as the binding
obligation of Purchaser, enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, moratorium,
insolvency or other laws affecting creditor's rights generally; (iv)
the execution and delivery of this agreement and the performance by
Purchaser of its obligations hereunder do not and will not violate
any provision of the Certificate of Incorporation or Bylaws of
Purchaser; and (v) except as may be set forth in this agreement, such
counsel is not representing Purchaser in any suit, action or
proceeding against Purchaser which, if adversely determined, would
prohibit the consummation of the transactions contemplated by this
agreement
5. THE SECURITY AGREEMENT. The Security Agreement shall create a security
interest in the goods, chattels and all other personal property included in this
sale and all other personal property acquired after the closing by Purchaser and
used in connection with the business, together with all proceeds thereof and all
increases, substitutions, replacements and additions thereto.
Purchaser agrees to perfect the security interest of the Security Agreement by
executing and delivering to Seller appropriate Financing Statements and
extensions and renewals thereof, in accordance with the provisions of the
Uniform Commercial Code, and all other instruments or documents as may be
reasonably requested by Seller. All filing fees in connection therewith shall be
paid by Purchaser.
6. WAIVER OF BULK TRANSFER REQUIREMENTS. The parties waive compliance with the
bulk transfer provisions of the Uniform Commercial Code which may be applicable
to this transaction. Seller agrees to indemnify Purchaser against all claims
made by the creditors of Seller.
7. USE OF PURCHASE PRICE TO PAY ENCUMBRANCES. If there is any lien or
encumbrance against the Assets, or anything else affecting this sale, which
Seller is obligated to pay and discharge at the closing, Seller may use any
portion of the balance of the purchase price to discharge it, or Seller may
allow to Purchaser the amount thereof as a credit at the closing. Purchaser
agrees to provide separate certified checks as reasonably requested to assist in
clearing up these matters.
8. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to
Purchaser as follows:
(a) Seller is a corporation duly organized and validly existing under
the laws of Delaware, and is duly qualified to do business in New
York. Seller has full power and authority to conduct its business as
now carried on, and to carry out and perform its undertakings and
obligations as provided herein. The execution and delivery by Seller
of this agreement and the consummation of the transactions
contemplated herein have been duly authorized by the Board of
Directors of Seller and will not conflict with or breach any
provision of the Certificate of Incorporation or Bylaws of Seller.
(b) No action, approval, consent or authorization of any governmental
authority is necessary for Seller to consummate the transactions
contemplated hereby.
(c) Seller is the owner of and has good and marketable title to the
Assets, free of all liens, claims and encumbrances, except as may be
set forth herein.
(d) There are no violations of any law or governmental rule or
regulation pending against Seller or the Assets.
(e) There are no judgments, liens, suits, actions or proceedings
pending against Seller or the Assets.
(f) Seller has not entered into, and the Assets are not subject to,
any: (i) written contract or agreement for the employment of any
employee of the business; (ii) contract with any labor union or
guild; (iii) pension, profit-sharing, retirement, bonus, insurance,
or similar plan with respect to any employee of the business; or (iv)
similar contract or agreement affecting or relating to the Assets.
(g) At the time of the closing, there will be no creditors of Seller.
(h) The Contracts are in full force and effect and without any
default by Seller thereunder. All copies of the Contracts provided by
Seller to Purchaser are true and complete copies of the original
Contracts. Seller is not indebted under any executory Contracts,
except as may be set forth in Exhibit A-1 hereto.
9. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Seller as follows:
(a) Purchaser is a corporation duly organized and validly existing
under the laws of Delaware, and is duly qualified to do business in
New York. Purchaser has full power and authority to carry out and
perform its undertakings and obligations as provided herein. The
execution and delivery by Purchaser of this agreement and the
consummation of the transactions contemplated herein have been duly
authorized by the Board of Directors of Purchaser and will not
conflict with or breach any provision of the Certificate of
Incorporation or Bylaws of Purchaser.
(b) No action, approval, consent or authorization of any governmental
authority is necessary for Purchaser to consummate the transactions
contemplated hereby.
(c) There are no judgments, liens, suits, actions or proceedings
pending or, to the best of Purchaser's knowledge, threatened against
Purchaser or its property.
10. NO OTHER REPRESENTATIONS. Purchaser acknowledges that neither Seller nor any
representative or agent of Seller has made any representation or warranty
(expressed or implied) regarding the Assets or the business, or any matter or
thing affecting or relating to this
agreement, except as specifically set forth in this agreement. Seller shall not
be liable or bound in any manner by any oral or written statement,
representation, warranty, agreement or information pertaining to the Assets or
the business or this agreement furnished by any broker, agent or other person,
unless specifically set forth in this agreement. Purchaser has inspected the
Assets, Purchaser agrees to take the Assets "as is" and in their present
condition, subject to reasonable use, wear, tear and deterioration between now
and the closing date.
11. CONDUCT OF THE BUSINESS. Seller, until the closing, shall:
(a) conduct the business in the normal, useful and regular manner;
(b) use its best efforts to preserve the business and the goodwill of
the customers and suppliers of the business and others having
relations with Seller; and
(c) give Purchaser and its duly designated representatives reasonable
access to Seller's premises and the books and records of the
business, and furnish to Purchaser such data and information
pertaining to Seller's business as Purchaser from time to time
reasonably may request.
Unless and until the closing shall take place, Purchaser shall hold in
confidence all information obtained in connection with this agreement, and, if
for any reason the closing shall not take place, Purchaser shall return to
Seller all documents received hereunder.
12. EXPENSES BEFORE AND AFTER THE CLOSING. Except as otherwise provided in this
agreement, Seller shall be liable for the payment of all bills for merchandise,
goods and inventory delivered to the business before the closing; and Purchaser
shall be liable for the payment of all bills for merchandise, goods and
inventory delivered to the business after the date of the closing.
Seller shall be liable for the payment of all salaries, payroll deductions and
taxes levied upon the employer in connection with the employee's work performed
before the closing. Purchaser shall be responsible for the payment of all
salaries, payroll deductions and taxes levied upon the employer in connection
with the employee's work performed after the closing.
13. CONDITIONS TO CLOSING. The obligations of the parties to close hereunder are
subject to the following conditions:
(a) All of the terms, covenants and conditions to be complied with or
performed by the other party under this agreement on or before the
closing shall have been complied with or performed in all material
respects.
(b) All representations or warranties of the other party herein are
true in all material respects as of the closing date.
(c) On the closing date, there shall be no liens or encumbrances
against the Assets, except as may be provided for herein.
If Purchaser shall be entitled to decline to close the transactions contemplated
by this agreement, but Purchaser nevertheless shall elect to close, Purchaser
shall be deemed to have waived all claims of any nature arising from the failure
of Seller to comply with the conditions or other provisions of this agreement of
which Purchaser shall have actual knowledge at the closing.
14. BROKERAGE. The parties hereto represent and warrant to each other that they
have not dealt with any broker or finder in connection with this agreement or
the transactions contemplated hereby, and no broker or any other person is
entitled to receive any brokerage commission, finder's fee or similar
compensation in connection with this agreement or the transactions contemplated
hereby. Each of the parties shall indemnify and hold the other harmless from and
against all liability, claim, loss, damage or expense, including reasonable
attorneys' fees, pertaining to any broker, finder or other person with whom such
party has dealt.
15. NOTICES. All notices, demands and other communications required or permitted
to be given hereunder shall be in writing and shall be deemed to have been
properly given if delivered by hand or by Federal Express courier or by
registered or certified mail, return receipt requested, with postage prepaid, to
Seller or Purchaser, as the case may be, at their addresses first above written,
or at such other addresses as they may designate by notice given hereunder.
16. SURVIVAL. The representations, warranties and covenant contained herein
shall survive the delivery of the ▇▇▇▇ of Sale and shall continue in full force
and effect after the closing, except to the extent waived in writing.
17. FURTHER ASSURANCES. In connection with the transactions contemplated by this
agreement, the parties agree to execute and deliver such further instruments,
and to take such further actions, as may be reasonably necessary or proper to
effectuate and carry out the transactions contemplated in this agreement.
18. ENTIRE AGREEMENT. This agreement contains all of the terms agreed upon
between Seller and Purchaser with respect to the subject matter hereof. This
agreement has been entered into after full investigation. All prior oral or
written statements, representations, promises, understandings and agreements of
Seller and Purchaser are merged into and superseded by this agreement, which
alone fully and completely expresses their agreement.
19. CHANGES MUST BE IN WRITING. No delay or omission by either Seller or
Purchaser in exercising any right shall operate as a waiver of such right or any
other right. This agreement may not be altered, amended, changed, modified,
waived or terminated in any respect or particular unless the same shall be in
writing signed by the party to be bound. No waiver by any party of any breach
hereunder shall be deemed a waiver of any other or subsequent breach.
20. CAPTIONS AND EXHIBITS. The captions in this agreement are for convenience
only and are not to be considered in construing this agreement. The Exhibits
annexed to this agreement are an integral part of this agreement, and where
there is any reference to this agreement it shall be deemed to include said
Exhibits.
21. GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the laws of the State of New York. If any provisions of this
agreement shall be unenforceable or invalid, such unenforceability or invalidity
shall not affect the remaining provisions of this agreement.
22. BINDING EFFECT. This agreement shall not be considered an offer or an
acceptance of an offer by Seller, and shall not be binding upon Seller until
executed and delivered by both Seller and Purchaser. Upon such execution and
delivery, this agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors
and permitted assigns.
IN WITNESS WHEREOF, the parties have executed this agreement as of the date
first above written.
CDKNET, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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President
UNIVERSAL MEDIA HOLDINGS, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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President
EXHIBIT A-1
CONTRACTS
Licensing Agreements and Intellectual Property as follows:
Technology License Agreement between ▇▇▇▇▇▇.▇▇▇, Inc., ▇▇▇▇▇▇▇▇▇▇.▇▇▇
Incorporated, and Elbit Limited dated June 13, 2001.
EXHIBIT A-2
OTHER ASSETS AND LIABILITIES
Assets of Diversified Capital Holdings, LLC., as listed herein:
Debt Instruments in:
Panama Industries, Ltd.
Dominix, Inc.
Augrid of Nevada, Inc.
Other Assets:
Assets of CDKNet, LLC, not already listed:
CD Duplication equipment with Capital Collateral Account
Liabilities of Diversified Capital Management, LLC and CDKNet, LLC:
Note on CD Duplication equipment
