EXHIBIT 10.31
ASSET ACQUISITION AGREEMENT
This Asset Acquisition Agreement is entered into as of the ___ day of
February, 2004, by and among XRG, INC., a Delaware corporation ("XRG"), CAROLINA
TRUCK CONNECTION, INC., a North Carolina corporation ("CTC"), XXXXX XXXXXXXXX,
an individual residing in __________ County, North Carolina ("Xx. Xxxxxxxxx")
and XXXXXX XXXXXX, an individual residing in __________ County, North Carolina
("Xx. Xxxxxx") . XRG, CTC, and Xx. Xxxxxxxxx and Xx. Xxxxxx are referred to
herein individually as "Party" and collectively as "Parties." This Agreement
contemplates a transaction in which XRG will acquire certain assets of CTC in
consideration of CTC and/or Xx. Xxxxxxxxx and Xx. Xxxxxx receiving shares of
common stock of XRG.
Now, therefore, in consideration of the respective representations,
promises, warranties and covenants of the Parties set forth herein, the Parties,
intending to be legally bound, agree as follows.
1. DEFINITIONS.
"Closing" has the meaning set forth in Section 2(g) below.
"Closing Date" has the meaning set forth in Section 2(g) below.
"Disclosure Schedule" has the meaning set forth in Section 3 below.
"Intellectual Property" means (a) all trademarks, service marks, trade
dress, logos, trade names, and company names, together with all translations,
adaptations, derivations, and combinations thereof and including all goodwill
associated therewith, and all applications, registrations, and renewals in
connection therewith, (b) all copyrightable works, all copyrights, and all
applications, registrations, and renewals in connection therewith, (c) all trade
secrets and confidential business information (including ideas, research and
development, know-how, customer and supplier lists, pricing and cost
information, and business and marketing plans and proposals), (d) all other
proprietary rights, and (e) all copies and tangible embodiments thereof (in
whatever form or medium).
"Liability" or "Liabilities" or "liability" or "liabilities" means any
liability (whether known or unknown, whether asserted or unasserted, whether
absolute or contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due), including any liability for
taxes.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof).
"Purchased Assets" means all right, title, and interest in and to (a) the
furniture, fixtures, equipment, vehicles, computers and other items listed in
Exhibit A; (b) all CTC shipper contacts
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and owner-operator contacts and accounts, and any written agreements and
contracts that are listed in Exhibit B and all rights thereunder; (c) all
claims, deposits, prepayments, refunds, causes of action, rights of recovery,
rights of set off, and rights of recoupment (including any such item relating to
the payment of taxes) associated with the Purchased Assets; (d) all of CTC's
operating authorities, franchises, approvals, permits, licenses, leases,
registrations, certificates, variances, and similar rights obtained from
governments and governmental agencies; (e) all of the customer and supplier
lists, creative materials, advertising, promotional materials, studies, reports,
business plans and marketing plans of CTC ; (f) all of CTC's Intellectual
Property; and (g) all goodwill associated with the foregoing; provided, however,
that the Purchased Assets SHALL NOT INCLUDE (i) the corporate charter, taxpayer
and other identification numbers, seals, minute books, stock transfer books,
blank stock certificates, and other documents relating to the organization,
maintenance, and existence of CTC as a corporation, (ii) any of the rights of
CTC under this Agreement (or under any side agreement between CTC on the one
hand and XRG on the other hand entered into on or after the date of this
Agreement), (iii) CTC's cash and accounts receivable, or (iv) any liabilities
other than the liabilities listed in Exhibit C.
"Security Interest" means any mortgage, pledge, lien, encumbrance, charge,
or other security interest.
2. BASIC TRANSACTION.
(a) Purchase of Assets. Subject to the terms and conditions of this
Agreement, XRG (or a wholly-owned subsidiary of XRG) shall purchase from CTC,
and CTC shall sell, transfer, convey, and deliver to XRG (or to such subsidiary
of XRG), all of the Purchased Assets at the Closing for the consideration
specified below in this Section 2.
(b) Purchase Consideration. As full and complete consideration for the
purchase of the Purchased Assets, XRG (or a wholly-owned subsidiary of XRG)
shall assume the liabilities of CTC as of the Closing Date as set forth in
section 2(c) below.
(c) Consideration - Assumption of CTC liabilities. At the Closing, XRG
expressly acknowledges that CTC and XRG shall be responsible for the pre-Closing
obligations, including without limitation, CTC's, Xx. Xxxxxxxxx'x and Xx.
Xxxxxx'x obligations under Schedule 2( c), which XRG agrees to pay off or
refinance as soon as practical following the Closing; provided, however, that
such pay-off or refinancing must occur no later than 45 days following Closing
unless Xx. Xxxxxxxxx and Xx. Xxxxxx consents to an extension. Failure to
accomplish the removal of personal guarantees shall be a default under the Stock
Pledge and Security Agreement below. Prior to accomplishing the pay-off or
refinance, neither RSV nor XRG may further encumber any of the stock of CTC or
any assets of CTC.
(d) Lease of facility. At the Closing, XRG shall execute and deliver to
Puckridge Properties, LLC. a 24- month lease for the facility (terminal and
trailer parking lot) currently used in the operation of CTC's business. The
lease shall be payable in twenty-four monthly installments of an amount equal to
the current monthly lease payment made by CTC, with the first payment being due
at the Closing, and subsequent payments due on the first day of each month
thereafter.
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(e) Issuance of XRG Stock. At Closing and subject to compliance with all
applicable securities laws and regulations, XRG will issue to Xx. Xxxxxxxxx
350,000 shares of XRG common stock ("XRGC Shares") and XRG will issue to Xx.
Xxxxxx 250,000 shares of XRG common stock ("XRGC Shares").
(f) Adjustment of XRGC Shares. XRG guarantees to Xx. Xxxxxxxxx and Xx.
Xxxxxx the per-share value for the XRGC Shares set forth below as of one (1)
year following the Closing Date. The number of XRGC Shares is subject to
adjustment one (1) year after the Closing Date ("Adjustment Date") based on the
then market price of the XRGC Shares. For purposes of this section 2(f), the
"market value" of XRG's common stock shall be the average of the closing prices
for the XRG common stock on the 20 trading days immediately preceding the
Adjustment Date, as reported by the principal stock exchange or other automated
quotation system on which the XRG common stock is then traded, or if it is not
then traded, as reported by the OTC Bulletin Board or other reporting agency.
(i) On the Adjustment Date, in the event the XRGC Shares held
by Xx. Xxxxxxxxx and Xx. Xxxxxx do not have a market value equal to or greater
than $1.00 per share, then XRG shall be obligated to issue to Xx. Xxxxxxxxx and
Xx. Xxxxxx such number of additional shares of XRG common stock that are
sufficient to result in the market value of the XRGC Shares initially issued to
Xx. Xxxxxxxxx and Xx. Xxxxxx on the Closing Date plus such additional shares to
equal $600,000.00.
(ii) Notwithstanding the above, no adjustment shall be made if
as of the Adjustment Date Xx. Xxxxxxxxx and Xx. Xxxxxx has sold all XRGC Shares
initially issued to him on the Closing Date. If, as of the Adjustment Date, Xx.
Xxxxxxxxx and Xx. Xxxxxx has sold a portion of the XRGC Shares issued to him on
the Closing Date, the number of shares issuable to Xx. Xxxxxxxxx and Xx. Xxxxxx
on the Adjustment Date shall be adjusted pro rata based on the number of initial
XRGC Shares still held by Xx. Xxxxxxxxx and Xx. Xxxxxx.
(iii) In addition, neither Xx. Xxxxxxxxx and Xx. Xxxxxx nor
XRG or XRG's officers, directors or any affiliates may purchase or sell shares
of XRG's common stock during the twenty (20) trading days prior to the
Adjustment Date. If Xx. Xxxxxxxxx and Xx. Xxxxxx shall sell shares of XRG common
stock during such period, no adjustment shall be made with respect to the XRGC
Shares on the Adjustment Date. If any officer, director or affiliate of XRG
shall purchase shares of XRG common stock during such period, the market value
shall be determined for purposes of this section 2(f) based on the average of
the closing prices for the XRG common stock on the 20 trading days immediately
prior to the first date such purchase occurs. If Xx. Xxxxxxxxx and Xx. Xxxxxx
shall purchase XRG common stock or any officer, director or affiliate of XRG
shall sell XRG common stock during such period, no change shall be made in the
adjustment provisions set forth herein.
(g) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of XRG, 0000 X.
Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 on _______________, 2004, or on
such other date as agreed to by the Parties following the satisfaction or waiver
of all pre-closing conditions to the obligations of the Parties to consummate
the transactions contemplated hereby ("Closing Date").
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(h) Deliveries at the Closing. At the Closing (i) CTC will deliver to XRG
the various certificates, instruments, and documents referred to in Section 6(a)
below; (ii) XRG will deliver to CTC the various certificates, instruments, and
documents referred to in Section 6(b) below; (iii) CTC will execute and deliver
to XRG a Xxxx of Sale in the form attached hereto as Exhibit D, an Assignment of
Contracts in the form attached hereto as Exhibit E and such other instruments of
sale, transfer, conveyance, and assignment as XRG and its counsel reasonably may
request; (iv) XRG will execute and deliver to CTC such instruments of assumption
as CTC and its counsel reasonably may request; (v) XRG will deliver to Xx.
Xxxxxxxxx and Xx. Xxxxxx certificates for the stock specified in Section 2(e)
above; and (vi) CTC will deliver to XRG keys to all locks on the business
premises or for any items of the Purchased Assets requiring keys and the codes
and passwords to all security and password systems on the business premises or
for any items of the Purchased Assets.
3. REPRESENTATIONS AND WARRANTIES OF CTC AND XX. XXXXXXXXX AND XX. XXXXXX.
CTC and Xx. Xxxxxxxxx and Xx. Xxxxxx, jointly and severally, represent and
warrant to XRG that the statements contained in this Section 3 are correct and
complete as of the date of this Agreement and will be correct and complete as of
the Closing Date except as set forth in the disclosure schedule accompanying
this Agreement (the "Disclosure Schedule"). The Disclosure Schedule will be
arranged in paragraphs corresponding to the lettered and numbered paragraphs
contained in this Section 3.
(a) Organization of CTC. CTC is a corporation duly organized, validly
existing, and in good standing under the laws of the State of North Carolina.
(b) Authorization of Transaction. CTC has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. Without limiting the
generality of the foregoing, the board of directors of CTC and CTC's
stockholders have duly authorized the execution, delivery, and performance of
this Agreement by CTC. This Agreement constitutes the valid and legally binding
obligation of CTC and Xx. Xxxxxxxxx and Xx. Xxxxxx, enforceable in accordance
with its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which CTC or Xx. Xxxxxxxxx and Xx. Xxxxxx is/are subject or any
provision of the charter or bylaws of CTC, or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument, or other
arrangement to which CTC or Xx. Xxxxxxxxx and Xx. Xxxxxx is/are a party or by
which it or he is bound or to which any of its or his assets are subject (or
result in the imposition of any Security Interest upon any of its or his
assets). CTC and Xx. Xxxxxxxxx and Xx. Xxxxxx do not need to give notice to,
make any filing with, or obtain any authorization, consent, or approval of any
governmental agency or any other Person in order for the Parties to consummate
the transactions contemplated by this Agreement.
(d) Brokers' Fees. CTC and Xx. Xxxxxxxxx and Xx. Xxxxxx have no liability
or obligation to pay any fees or commissions to any broker, finder, or agent
with respect to the transactions contemplated by this Agreement for which XRG
could become liable or obligated.
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(e) Title to Assets. CTC has good and marketable title to the Purchased
Assets, free and clear of any Security Interest or restriction on transfer, and
has the full, unrestricted right to sell and transfer the Purchased Assets to
XRG.
(f) Legal Compliance. CTC has complied with all applicable laws (including
rules, regulations, codes, plans, injunctions, judgments, orders, decrees,
rulings, and charges thereunder) of federal, state, local, and foreign
governments (and all agencies thereof), and no action, suit, proceeding,
hearing, investigation, charge, complaint, claim, demand, or notice has been
filed or commenced against CTC alleging any failure so to comply.
(g) Disclosure. The representations and warranties contained in this
Section 3 do not contain any untrue statement of a fact or omit to state any
material fact necessary in order to make the statements and information
contained in this Section 3 not misleading.
4. REPRESENTATIONS AND WARRANTIES OF XRG. XRG represents and warrants to
CTC that the statements contained in this Section 4 are correct and complete as
of the date of this Agreement and will be correct and complete as of the Closing
Date.
(a) Organization of XRG. XRG is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware.
(b) Authorization of Transaction. XRG has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation of XRG,
enforceable in accordance with its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which XRG is subject or any provision of its
charter or bylaws or (ii) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
XRG is a party or by which it is bound or to which any of its assets is subject.
XRG does not need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in
order for the Parties to consummate the transactions contemplated by this
Agreement.
(d) Brokers Fees. XRG has no liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which CTC could become liable or obligated.
(e) SEC Reports. XRG has filed all required reports, schedules, forms,
statements, and other documents with the Securities and Exchange Commission (the
"SEC"). In particular, but without limitation of the generality of the
foregoing, XRG has filed with the SEC, and has heretofore made available to Xx.
Xxxxxxxxx and Xx. Xxxxxx, true and complete copies of XRG's most recent annual
report on Form 10-KSB, most recent quarterly report on Form 10-QSB, most
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recent Form 8-K, and most recent proxy statement, if any. These reports, at the
time filed, (a) did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and (b) complied in all material respects with the
applicable requirements of the Securities Act of 1933 and the Securities
Exchange Act of 1934, as applicable, and the applicable rules and regulations of
the SEC thereunder. No independent auditors' report included with the audited
financial statements of XRG included in the SEC reports referenced above (the
"Audited Financial Statements") has been revoked or qualified in any manner
since its date. XRG has not, since March 31, 2003, made any material change in
the accounting practices or policies applied in the preparation of the Audited
Financial Statements. The books and records of XRG have been, and are being,
maintained in all material respects in accordance with GAAP.
5. PRE-CLOSING COVENANTS. The Parties agree as follows with respect to the
period between the execution of this Agreement and the Closing.
(a) General. Each of the Parties will use its reasonable best efforts to
take all action and to do all things necessary in order to consummate and make
effective the transactions contemplated by this Agreement.
(b) Operation of Business. CTC will not engage in any practice, take any
action, or enter into any transaction outside the Ordinary Course of Business.
(c) Preservation of Business. CTC will maintain and continue to promote
its business, its business operations, and its business relationships, and will
maintain its property, including its present operations, physical facilities,
working conditions, and relationships with its suppliers, customers, independent
contractors and employees.
(d) Full Access, Cooperation and Authorization. CTC will permit
representatives of XRG to have full access at all reasonable times, and in a
manner so as not to interfere with the normal business operations of CTC, to all
premises, properties, personnel, books, records (including tax records),
contracts, and documents of or pertaining to CTC. CTC and its officers and
employees will cooperate with XRG and facilitate XRG's due diligence
investigation of CTC. CTC's execution of this Agreement constitutes
authorization to CTC's accountants, attorneys, bankers, lenders and other
professional advisors and consultants to meet with representatives of XRG and
disclose to XRG any and all information in their possession regarding CTC.
(e) Notice of Developments. Each Party will give prompt written notice to
the other Party of any material adverse development causing a breach of any of
its own representations and warranties in Section 3 and Section 4 above. No
disclosure by any Party pursuant to this Section 5(e), however, shall be deemed
to amend or supplement the Disclosure Schedule or to prevent or cure any
misrepresentation, breach of warranty, or breach of covenant.
(f) Exclusivity. CTC will revoke any current listing of its business for
sale. CTC will not (i) solicit, initiate, or encourage the submission of any
proposal or offer from any Person relating to the acquisition of any of the
stock or assets of CTC or (including any acquisition structured as a merger,
consolidation, or share exchange) or (ii) participate in any discussions or
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negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by any
Person to do or seek the foregoing. CTC will notify XRG immediately if any
Person makes any proposal, offer, inquiry, or contact with respect to the
foregoing.
6. CONDITIONS TO OBLIGATION TO CLOSE
(a) Conditions to Obligation of XRG. The obligation of XRG to consummate
the transactions to be performed by it in connection with the Closing is subject
to satisfaction of the following conditions at or prior to Closing:
(i) the representations and warranties set forth in Section 3 above
shall be true and correct in all material respects at and as of the
Closing Date;
(ii) CTC and Xx. Xxxxxxxxx and Xx. Xxxxxx shall have performed and
complied with all of their covenants hereunder in all material respects
through the Closing;
(iii) CTC shall have procured any required third party consents;
(iv) no action, suit, or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any
federal, state, local, or foreign jurisdiction or before any arbitrator
wherein an unfavorable injunction, judgment, order, decree, ruling, or
charge would (A) prevent consummation of any of the transactions
contemplated by this Agreement, (B) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation, (C)
affect adversely the right of XRG to own the Purchased Assets;
(v) XRG shall have obtained on terms and conditions reasonably
satisfactory to it all of the financing it needs in order to consummate
the transactions contemplated hereby;
(vi) all actions to be taken by CTC and Xx. Xxxxxxxxx and Xx. Xxxxxx
in connection with consummation of the transactions contemplated hereby
and all certificates, opinions, instruments, and other documents required
to effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to XRG; and
(vii) all of the following shall have been accomplished to the
reasonable satisfaction of XRG:
(A) execution by the Parties of a lease agreement covering the
terminal and trailer parking lot;
(B) delivery of executed title certificates to titled assets
to be acquired by XRG;
(C) completion to XRG's satisfaction of its due diligence
review;
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(D) execution of a non-compete agreement by Xx. Xxxxxxxxx for
which he will not compete with XRG for a three year period following
the sale; and
(D) execution of a consulting agreement by Xx. Xxxxxxxxx for
which he will consult for CTC for a period of time following the
sale; and
(E) execution of employment agreements by such other persons
as may be required by XRG; including Xx. Xxxxxx, Xx. Xxxxxx, and Xx.
Xxxx.
XRG may waive any condition specified in this Section 6(a) if it executes
a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of CTC and Xx. Xxxxxxxxx and Xx. Xxxxxx. The
obligation of CTC and Xx. Xxxxxxxxx and Xx. Xxxxxx to consummate the
transactions to be performed by them in connection with the Closing is subject
to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 4 above
shall be true and correct in all material respects at and as of the
Closing Date;
(ii) XRG shall have performed and complied with all of its covenants
hereunder in all material respects through the Closing;
(iii) no action, suit, or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any
federal, state, local, or foreign jurisdiction or before any arbitrator
wherein an unfavorable injunction, judgment, order, decree, ruling, or
charge would (A) prevent consummation of any of the transactions
contemplated by this Agreement or (B) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation (and
no such injunction, judgment, order, decree, ruling, or charge shall be in
effect); and
(iv) all actions to be taken by XRG in connection with consummation
of the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance
to CTC and Xx. Xxxxxxxxx and Xx. Xxxxxx.
CTC and Xx. Xxxxxxxxx and Xx. Xxxxxx may waive any condition specified in
this Section 6(b) if it or they execute a writing so stating at or prior to the
Closing.
7. INVESTMENT REPRESENTATIONS.
(a) The XRGC Shares to be received by Xx. Xxxxxxxxx and Xx. Xxxxxx
pursuant to this Agreement will be held by Xx. Xxxxxxxxx and Xx. Xxxxxx for his
own account for the purpose of investment and not with a present view for sale
in connection with any distribution thereof.
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(b) Xx. Xxxxxxxxx and Xx. Xxxxxx'x financial position is such that
he can afford to bear the economic risk of holding the XRGC Shares he receives
pursuant to this Agreement for an indefinite period of time, and Xx. Xxxxxxxxx
and Xx. Xxxxxx can afford to suffer the complete loss of his investment in the
XRGC Shares.
(c) Xx. Xxxxxxxxx and Xx. Xxxxxx has been provided an opportunity to
ask questions of, and has received answers satisfactory to Xx. Xxxxxxxxx and Xx.
Xxxxxx from, XRG and its representatives regarding the business and affairs of
XRG and such other information as he desired in order to evaluate an investment
in the XRGC Shares.
(d) Xx. Xxxxxxxxx and Xx. Xxxxxx understands that the XRGC Shares
comprising the consideration to be received by him pursuant to this Agreement
have not been registered under the federal securities laws or applicable state
securities laws in reliance upon specific exemptions from registration
thereunder. Xx. Xxxxxxxxx and Xx. Xxxxxx agrees that the XRGC Shares to be
received by him pursuant to this Agreement may not be sold, offered for sale,
exchanged, transferred, pledged or otherwise disposed of except pursuant to a
registration statement under the Securities Act of 1933 or pursuant to an
exemption from the registration requirements of the Securities Act of 1933 and
in compliance with state securities laws, and the certificates for the XRGC
Shares will bear a legend to such effect. Upon registration, if any, there can
be no assurance that a public market for the XRGC Shares will exist or that
trading of such shares can commence, or if commenced can be maintained. As a
result, a holder of XRGC Shares may find it difficult to dispose of, or to
obtain accurate quotations as to the price of, the shares. In addition, XRG
securities may be subject to "xxxxx stock" rules that impose sales practice and
market making requirements on broker-dealers who sell and/or make a market in
such securities. This could affect the ability or willingness of broker-dealers
to sell and/or make a market in XRG securities and the ability of holders of XRG
securities to sell their stock in the secondary market.
(e) Xx. Xxxxxxxxx and Xx. Xxxxxx is not a foreign person subject to
withholding under Section 1445 of the Code and the regulations promulgated
thereunder.
8. TERMINATION.
(a) Termination of Agreement. This Agreement may be terminated as provided
below:
(i) XRG, CTC and Xx. Xxxxxxxxx and Xx. Xxxxxx may terminate this
Agreement by mutual written consent at any time prior to the Closing;
(ii) XRG may terminate this Agreement by giving written notice to
CTC and Xx. Xxxxxxxxx and Xx. Xxxxxx if XRG is not reasonably satisfied
with the results of its continuing due diligence review regarding CTC; or
(iii) XRG may terminate this Agreement by giving written notice to
CTC and Xx. Xxxxxxxxx and Xx. Xxxxxx at any time prior to the Closing (A)
in the event CTC or Xx. Xxxxxxxxx and Xx. Xxxxxx have breached any
material representation, warranty, or covenant contained in this Agreement
in any material respect, XRG has notified CTC or Xx. Xxxxxxxxx and Xx.
Xxxxxx, as applicable, of the breach, and the breach has continued
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without cure for a period of thirty (30) days after the notice of breach,
or (B) if the Closing shall not have occurred on or before May 1, 2004, by
reason of the failure of any condition precedent under Section 6(a) hereof
(unless the failure results primarily from XRG itself breaching any
representation, warranty, or covenant contained in this Agreement).
(b) Effect of Termination. If any Party terminates this Agreement pursuant
to Section 7(a) above, all rights and obligations of the Parties hereunder shall
terminate without any liability of any Party to any other Party (except for any
liability of any Party then in breach). If XRG terminates this Agreement
pursuant to Section 8(a)(iii) above, CTC and Xx. Xxxxxxxxx and Xx. Xxxxxx,
jointly and severally, shall be liable for XRG's costs and expenses related to
the transaction hereunder.
9. MISCELLANEOUS.
(a) Survival of Representations and Warranties. All of the representations
and warranties of the Parties contained in this Agreement shall survive the
Closing hereunder.
(b) Press Releases and Public Announcements. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement prior to the Closing without the prior written approval of the
other Party.
(c) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(d) Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement between the Parties and supersedes any
prior understandings, agreements, letters of intent, or representations by or
between the Parties, written or oral, to the extent they relate in any way to
the subject matter hereof.
(e) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other Party or Parties; provided, however, that XRG may (i) assign any or
all of its rights and interests hereunder to one or more of its affiliates and
(ii) designate one or more of its affiliates to perform its obligations
hereunder (in any or all of which cases XRG nonetheless shall remain responsible
for the performance of all of its obligations hereunder).
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
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(h) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then three
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to CTC:
If to Xx. Xxxxxxxxx and Xx. Xxxxxx:
If to XRG:
XRG, Inc.
0000 X. Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxx, XX 00000
ATTN: Xxxxx X. Xxxxxxx
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Parties
notice in the manner herein set forth.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Florida without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Florida or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Florida.
(j) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Parties. No waiver by any Party of any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
(k) Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
Page 11
(l) Expenses. Each of XRG, CTC, and Xx. Xxxxxxxxx and Xx. Xxxxxx will bear
its or his own costs and expenses (including legal fees and expenses) incurred
in connection with this Agreement and the transactions contemplated hereby.
(m) Construction. The Parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise.
Nothing in the Disclosure Schedule shall be deemed adequate to disclose an
exception to a representation or warranty made herein unless the Disclosure
Schedule identifies the exception with reasonable particularity and describes
the relevant facts in reasonable detail. Without limiting the generality of the
foregoing, the mere listing (or inclusion of a copy) of a document or other item
shall not be deemed adequate to disclose an exception to a representation or
warranty made herein (unless the representation or warranty has to do with the
existence of the document or other item itself). The Parties intend that each
representation, warranty, and covenant contained herein shall have independent
significance.
(n) Incorporation of Exhibits. The Exhibits identified in this Agreement
are incorporated herein by reference and made a part hereof.
(o) Specific Performance. Each of the Parties acknowledges and agrees that
the other Party would be damaged irreparably in the event any of the provisions
of this Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each of the Parties agrees that the other
Party shall be entitled to an injunction to prevent any breach of the provisions
of this Agreement and to enforce specifically this Agreement and the terms and
provisions hereof in any action instituted in any court of the State of Florida
located in Hillsborough County, Florida, in addition to any other remedy to
which it may be entitled, at law or in equity.
(p) Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of the courts of the State of Florida, with venue in Hillsborough
County, Florida, in any action or proceeding arising out of or relating to this
Agreement and agrees that all claims in respect of the action or proceeding may
be heard and determined in any such court. Each party also agrees not to bring
any action or proceeding arising out of or relating to this Agreement in any
other court. Each of the Parties waives any defense of inconvenient forum to the
maintenance of any action or proceeding so brought and waives any bond, surety,
or other security that might be required of any other Party with respect
thereto. Any Party may make service on the other Party by sending or delivering
a copy of the process to the Party to be served at the address and in the manner
provided for the giving of notices in Section 9(h) above. Nothing in this
Section 9(p), however, shall affect the right of any Party to serve legal
process in any other manner permitted by law or in equity. Each Party agrees
that a final judgment in any action or proceeding so brought shall be conclusive
and may be enforced by suit on the judgment or in any other manner provided by
law or in equity.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
XRG, INC.
By:__________________________________
Title:_______________________________
CAROLINA TRUCK CONNECTION, INC.
By:__________________________________
Title:_______________________________
_____________________________________
Xxxxx Xxxxxxxxx
_____________________________________
Xxxxxx Xxxxxx
Attachments:
Exhibit A: Furniture, Fixtures, Equipment, etc.
Exhibit B: Acquired Accounts and Agreements
Exhibit C: Assumed Liabilities
Exhibit D: Xxxx of Sale
Exhibit E: Assignment of Contracts
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