Exhibit 2(v)
STOCK PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement"), made as of July 31, 2002 between Xxxx
Technology, Inc., a Delaware Corporation ("Seller"), and Xxxxx Xxxxxx, a citizen
and resident of Xxxxxxx County, Tennessee ("Purchaser");
WHEREAS, Seller is owner of 100% of the issued and outstanding shares
of MidSouth Sign Company, Inc., a Tennessee corporation ("MS") consisting of 100
shares of no par value stock (the "Stock");
WHEREAS, Purchaser desires to acquire all of the Stock pursuant to the
terms hereof; and
WHEREAS, the parties have agreed that the sale and purchase of the
Stock shall be pursuant to and in accordance with further representations,
warranties, covenants and agreements hereinafter made.
NOW THEREFORE, in consideration of the foregoing, the mutual covenants
and conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties do hereby
agree as follows:
1.0 Sale of Stock. Seller agrees to sell and Purchaser agrees to
purchase, pursuant to the terms of this Agreement and contingent upon the
conditions herein, the Stock for $1 and conditioned upon the following: (a) the
establishment of a line of credit from seller to buyer of a minimum of $250,000
by August 15, 2002, (b) the advancement of funds from seller to buyer, by the
Closing, for repayment of Branch Banking & Trust Company, a North Carolina
banking corporation ("BB&T"), of the payment by MS of certain debts evidenced by
(i) that certain Promissory Note made by MS in favor of BB&T pursuant to a Loan
Agreement dated July 25, 2000, and (ii) that certain Promissory Note made by MS
in favor of BB&T pursuant to a Loan Agreement dated May 27, 1999 (collectively,
the "BB&T Debt"), (c) repayment of the obligations of MS to Conseco Finance, by
Closing, and 4) Completion of the proposed sale of assets related to MS's
National Survey Associates division by August 1, 2002, a copy of the proposed
transaction which is attached as an exhibit to this agreement Upon repayment of
the BB&T Debt, Purchaser acknowledges that Seller will hold a first position
security interest in all assets of MS until such time as the line of credit and
related obligations are fully satisfied. Purchaser acknowledges that except as
specifically provided herein, Seller is not obligated to satisfy any liabilities
of MS. Purchaser shall have the unrestricted right to assign his rights under
this Agreement, in whole or in part, to any business entity that is owned or
controlled by Purchaser.
1.1 Closing. The purchase and sale of the Stock, subject
to the provisions hereof, shall be as soon as possible
but no later than December 31, 2002 (the "Closing
Date"). Notwithstanding the foregoing, the obligation
of Seller to sell the Stock pursuant to this Agreement
shall be expressly conditioned upon approval of the
sale of the Stock by the shareholders of Seller.
1.2 Shareholder Voting Agreement. Xxx Xxxxxx, Xxxx Xxxxxx,
ABMG Holdings, LLC and TLC Financial Services, LLC, all of
whom are shareholders of Seller and whose shares represent in
the aggregate a majority of the outstanding shares of Seller,
shall enter into an agreement as soon as possible pursuant to
which they shall agree to approve the sale of MS to
Purchaser.
1.3 Management Agreement. Purchaser and Seller shall enter into
Management Agreement in a form acceptable to all parties as
soon as possible pursuant to which Purchaser shall manage MS
from the Closing Date through the date of approval by the
shareholders of Seller of the sale of MS to Purchaser (the
"Management Agreement").
1.4 Option Agreement. Xxxx Technology, Inc. retains the right to
purchase up to 10% of the outstanding stock of the Company,
at the sole option of Xxxx Technology, Inc., for $1 and for a
period of ten years. Purchaser agrees to notify Seller at
least thirty days in advance of a pending sale of the stock
or substantially all the assets during this period.
2.0 Representations and Warranties of Seller. The Seller represents
and warrants as follows:
2.1 Organization, Standing and Capitalization of MS. MS
is a Tennessee corporation duly organized, validly existing and
in good standing under the laws of the State of Tennessee and has
all necessary corporate power and authority to own its properties
and to conduct its business as now owned and conducted and does
not own property or conduct business so as to make it necessary
for it to qualify to do business in any jurisdiction in which it
is not now qualified.
As of the date hereof, the authorized capitalization of MS
consists of 100 shares of no par value stock of which 100 shares are
issued and outstanding. All such outstanding shares are duly and
validly issued, fully paid and non-assessable.
There are not outstanding any other options, warrants,
convertible securities or subscriptions to acquire stock or securities
of MS nor is it obligated to issue any such options, warrants,
convertible securities or subscriptions.
2.2 Shareholders. Seller is the only existing shareholder of
MS.
2.3 Financial Statements and Conditions. Seller has furnished
to Purchaser the financial statements of MS for the period April 1,
2001 to March 31, 2002 and interim financial statements of MS for the
period April 1, 2002 to June 30, 2002 prepared by its internal
accountant including the operating statement and balance sheet (the "MS
Financial Statements"). The MS Financial Statements have been prepared
from the books and records of MS on a consistent basis throughout the
period indicated and fairly present the financial position, assets and
liabilities of MS as of the date of the balance sheet included therein
and fairly present the results of its operations and contain and
reflect such reserves for liabilities
or obligations whether absolute or contingent or otherwise, and for
all reasonably anticipated losses and costs in excess of expected
receipts as required for a fair presentation of the information
reflected therein and contain and reflect all necessary adjustments as
to fairly present the financial condition and results of operations of
MS. As of the Closing Date, MS does not have any liabilities or
obligations not fully and properly reflected or reserved against in
the balance sheet except liabilities and obligations incurred by MS in
the ordinary course of business since July 1, 2002 or otherwise
reflected in schedules attached hereto.
2.4 Absence of Certain Changes. Except as may be described in
Schedule 2.4 attached, since June 30, 2002 there has not occurred:
(a) any materially adverse change in the assets,
liabilities, capitalization, condition (financial or otherwise),
business or prospects of MS;
(b) any damage, destruction or loss (whether or not covered
by insurance) having a material adverse effect on the assets,
condition (financial or otherwise), business or prospects of MS
or;
(c) any event or condition or threat thereof which does or
reasonably might have a materially adverse effect on the assets,
condition (financial or otherwise), business or prospects of MS.
Since June 30, 2002, MS has not, directly or indirectly
except as may be described in Schedule 2.4;
(i) made any loan or any advance other than in the
ordinary course of business;
(ii) declared or paid any dividends on its capital
stock or redeemed, purchased or otherwise acquired any
shares of its capital stock;
(iii) subjected any of its assets to any mortgage,
deed or trust, security interest, lien, pledge, conditional
sales contract, lease, encumbrance or charge;
(iv) sold, leased or otherwise transferred any of
its assets other than in the ordinary course of business;
(v) except for those agreements related to the
transaction contemplated herein and except for those
agreements referred to in Schedule 2.4, entered into any
agreement which is not in the ordinary course of business
or which involves consideration given or to be given by MS
in excess of Five Thousand Dollars ($5,000.00);
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(vi) incurred any obligation or liability for
borrowed money, or incurred any other obligation or
liability except in the ordinary course of business except
for those agreements referred to in Schedule 2.4.
2.5 Accounts Receivable. Except as may be described in Schedule
2.5, the accounts receivable reflected in the June 30, 2002 Financial
Statements, as well as the accounts receivable arising between that
date and the Closing Date, subject to trade discounts, allowances and
returns in the ordinary course of business, are and will be valid and
enforceable, incurred in the ordinary course of the business, and
payable to and collectible in full by MS without any set-off or
counterclaim or any reduction except for reserves for bad debts
reflected in such financial statements.
2.6 Inventory. Except as set forth on Schedule 2.6, MS has good
and marketable title to all of its inventories and work in process
free and clear of all liens, leases, encumbrances, equities,
conditional sales contracts, security interests, charges and
restrictions.
2.7 Income Taxes. Federal income tax and state franchise,
excise and income tax returns with respect to MS and its shareholders
have been filed through March 31, 2000. Federal income tax and state
franchise, excise and income tax returns for the years ended March 31,
2001 and 2002 have not been filed. All employment tax returns that are
required to be filed with respect to MS have been filed through March
31, 2002. To the best of Seller's knowledge, information and belief
and except as set forth on Schedule 2.7, Seller knows of no subsequent
events or decisions that would result in a material assessment by the
tax authorities on returns that have been filed as of the closing
date.
2.8 Agreements. Attached as Schedule 2.8 is a true and complete
list of all indentures, contracts, agreements, arrangements or other
material obligations, if any, written or oral ("Agreements"), to which
MS is, as of the date of this Agreement, a party, or by which it is
bound, except those agreements which individually involve less than
$5,000 in consideration. The agreements listed in Schedule 2.8 are
valid and binding obligations of the parties hereto in accordance with
their respective terms and, to the best of Seller's knowledge and,
except as set forth on Schedule 2.8, there are no liabilities of MS
arising from any breach or default prior to the date of this Agreement
under any provisions of such Agreements and, to the best of Seller's
knowledge and, except as set forth on Schedule 2.8, no event has
occurred which through the passage of time or the giving of notice, or
both, would constitute a breach or default of MS under any such
agreement. Seller has no reason to believe that any agreement by which
MS is bound is materially adverse to MS's business, assets or future
condition (financial or otherwise).
2.9 Real Property. MS owns no real property.
2.10 Tangible Personal Property. Schedule 2.10 is a correct and
complete list of all substantial tangible personal property used in
the business of MS and owned as of June 30 2002, except for
inventories of raw material, work in process, finished goods and
tooling.
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2.11 Insurance. Schedule 2.11 contains a list of all insurance
policies held by MS. MS has not, during the last three fiscal years,
been denied or had revoked or rescinded any policy of insurance.
2.12 Labor, Benefit and Employment Agreements. Schedule 2.12
is a correct and complete list of all employment agreements, collective
bargaining and other labor agreements, and pension, bonus and profit
sharing agreements, deferred compensation, retainer, consulting or
other agreements to which MS is a party by which it is bound. To the
best knowledge of Seller, there is not pending or threatened any labor
dispute, strike or work stoppage that may disrupt the continued
operation of MS.
2.13 Employees, Officers and Directors. Schedule 2.13 is a
correct and complete list of all salaried employees and their current
rate of remuneration (including wages and fringe benefits). Such
Schedule also includes a correct and complete list of all commission
salesmen and manufacturers' representatives who have received
commissions or salaries during the last fiscal year naming each and
setting forth the gross salary and/or commission paid to each in
respect of the prior calendar year of MS and the rate of salary and
commission payable to each. Such Schedule also contains a correct and
complete list of all of the officers and directors of MS and the rate
of compensation payable to each such person in any and all capacities.
2.14 Litigation. Except as set forth in Schedule 2.14, there
is no legal, administrative, arbitration or other proceeding or
governmental investigation pending or to the best knowledge of Seller,
threatened against or otherwise affecting MS or its assets. MS is not
presently engaged in any legal action to recover claims for monies due
it or damages sustained by it except as indicated in such Schedule. MS
is not a party to any order, writ, injunction or decree of any local or
foreign court, department, agency or instrumentality, except as set
forth in such Schedule.
2.15 Violation of Applicable Law or Other Instruments. Neither
the execution of this Agreement nor the consummation of the
transactions contemplated hereby requires any government or
governmental agency approval nor will such result in a breach of any
term or provision of or constitute a default or an event which with
notice or lapse of time or both could constitute a default under any
lease, license, contract, commitment, indenture, mortgage, deed of
trust, instrument or other agreement to which MS is a party or by which
MS or its properties are bound or constitute an event which would
permit any party to any such agreement to terminate such agreement or
to accelerate the maturity of any indebtedness or other obligation
evidenced or incurred pursuant to such agreement or result in the
creation or imposition of any lien, charge or encumbrance upon any
asset of MS.
2.16 Absence of Undisclosed Liabilities. To the best of
Seller's knowledge and except as to matters specifically referred to in
Paragraphs 2.3 through 2.14 of this Section 2, MS as of the date of
this Agreement has no other liabilities or obligations of any nature,
whether absolute or contingent, except those incurred since June 30,
2002 in the ordinary course of business, none of which, individually or
in the aggregate, are materially adverse. Except as set forth in this
agreement and in the schedules to this Agreement, Seller does not have
knowledge or any reasonable basis on which to anticipate the assertion
against MS as of
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the date hereof of any liability of any nature, or in any amount, not
fully reflected or reserved against in the June 30, 2002 Financial
Statements except those incurred since July 1, 2002 in the ordinary
course of business.
2.17 Adequacy of Representations and Warranties. None of the
warranties and representations made by Seller herein or in the
Schedules or documents related hereto or in the June 30, 2002 Financial
Statements or any certificates of memorandum furnished by Seller or on
his behalf is known to contain or will contain any untrue statement of
a material fact or omits or will omit to state a material fact
necessary in order to make the statements contained herein or therein
not misleading.
3.0 Representations and Warranties of Purchaser. Purchaser represents
and warrants to Seller as follows:
3.1 Organization and Standing. Purchaser is an individual and
has full power and authority to execute, deliver and perform his
obligations under this Agreement.
4.0 Additional Covenants and Agreements of Seller. In addition to the
covenants and agreements elsewhere set forth in this Agreement, Seller covenants
and agrees with Purchaser that Seller will:
4.1 Delivery of Schedules. To the extent he intends to furnish
but has yet to complete any of the schedules referred to in Section 2
above, Seller shall furnish such schedules to Purchaser no later than
August 15, 2002.
4.2 MS Employees. For a period of five (5) years, not employ
or offer employment to such employees so long as they are employed by
MS and shall not encourage or solicit such employees to terminate their
employment.
4.3 Information Kept Confidential By Seller. Except where, by
law or governmental regulation, Seller is required to make disclosure,
and except for disclosure to attorneys, accountants and other
professional advisors retained by Seller, Seller shall hold in strict
confidence all data and information obtained from MS or any officer,
agent or representative for MS relating to the financial condition,
results of operation, products or other attributes of MS.
4.4 Taxes On Transactions Contemplated. Seller agrees that to
the extent any of the transactions contemplated by this Agreement give
rise to or result in the imposition of any capital gains and/or
personal property tax or fees being imposed by any State, Federal
and/or local authorities imposed on the Seller, Seller shall assume and
pay such taxes.
5.0 Actions at the Closing of the Purchase of MS Stock. Subject to the
terms and conditions hereof and in exchange for the consideration hereinafter
set forth, the parties hereto agree to consummate the following transactions at
a closing on the closing date:
5.1 Transfer and Assignment of Stock By Seller. Seller shall
convey, transfer, assign and deliver, together with all such further
duly executed and acknowledged assignment or
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other instruments of transfer as may be reasonably requested by Purchaser,
the certificate or certificates representing one hundred (100) shares of
the MS Stock which will constitute 100 percent (100%) of the issued and
outstanding capital stock of MS.
5.2 New Capital - Seller. Other than the amounts advanced to Seller
to repay intercompany amounts due, to be used for the retirement
of the BB&T Debts and the debt owed Conseco Finance, and the
establishment of the $250,000 line of credit that will be secured
by a lien on all assets of MS, Seller has no obligation to
provide any additional capital to MS.
5.3 New Capital - Purchaser. Purchaser acknowledges the capital due
from Seller, and agrees to provide additional working capital if
needed. Such working capital provided by Purchaser, if any, would
be subordinate to the capital provided by Seller.
5.4 Personal Guarantees. Xxx Xxxxxx, Xxxx Xxxxxx, Xxx Xxxxx, Xxxxx
Xxxxxx and Xxxxxxx Xxxx agree to continue their personal
guarantees on debts owed by MidSouth Sign Company, Inc. until
such time they can be reasonably released. Buyers agree to use
their best efforts to remove guarantees of Xxx Xxxxxx, Xxxx
Xxxxxx, Xxx Xxxxx and Xxxxx Xxxxxx as soon as possible without
negative consequences or without damage to MidSouth's ability to
continue business in a reasonable form.
5.5 Other. Purchaser agrees to provide management services prior to
Closing for no cash compensation, and agrees to limit cash
compensation subsequent to closing to no more than $100,000 until
the working line of credit established for MS by Seller is fully
satisfied.
6.0 Conditions Precedent to Purchaser's Obligation at the Closing. The
obligation of Purchaser hereunder to deliver the consideration at the Closing is
expressly subject to the satisfaction, on or prior to the Closing Date, of all
of the following conditions (compliance with which or the occurrence of which
may be waived in whole or in part by Purchaser in writing):
6.1 Purchaser's Due Diligence. Purchaser shall have completed a due
diligence examination of MS and its business.
6.2 Representations, Warranties and Covenants.
(a) All representations and warranties of Seller contained in
this Agreement shall be true and correct as of the Closing Date.
Schedules attached hereto or subsequently delivered pursuant hereto
and all amendments thereto, if any, shall likewise be true and correct
as of the Closing Date;
(b) Seller shall have performed and satisfied all covenants and
conditions required by this Agreement to be performed or satisfied by
it on the Closing Date.
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6.3 Seller's Certificate. At Closing, Purchaser shall have received a
certificate dated the Closing Date signed by a duly authorized officer of
Seller to the effect that Seller has performed and satisfied all covenants
and conditions required by this Agreement to be performed or satisfied by
it on or prior to the Closing Date.
6.4 Approval of Documentation. The form and substance of all opinions,
covenants, certificates and other documents hereunder shall be satisfactory
in all reasonable respects to Purchaser's counsel.
6.5 Resignations as Officers and Directors. The current officers and
directors shall submit resignations effective the date of Closing.
7.0 Conditions Precedent to Seller's Obligation to Close. The obligation of
Seller hereunder to consummate the Agreements herein made is expressly subject
to satisfaction on or prior to the Closing Date of the following conditions
(compliance with which or the occurrence of which may be waived in whole or in
part in writing by Seller).
7.1 Representations, Warranties and Covenants.
(a) All representations and warranties of Purchaser (or the
assignee of Purchaser if this Agreement has been assigned) contained
in this Agreement shall be true and correct in all material respects
as of the Closing Date.
(b) Purchaser shall have performed and satisfied all covenants
and conditions required by this Agreement to be performed or satisfied
by it on or prior to the Closing Date.
7.2 Approval of Documentation. The form and substance of all
opinions, certificates and other documents hereunder shall be
satisfactory in all reasonable respects to Seller's counsel.
7.3 Approvals by Lending Institutions. Sellers will obtain necessary
approvals by MidSouth's creditors and lenders to allow for the
change of control and continuation of credit facilities.
7.4 Corporate Approvals. Seller will obtain the approval of the Board
of Directors and shareholders of Xxxx Technology, Inc. and
MidSouth Sign Company, Inc.
8.0 Covenant Not to Compete.
(a) In exchange for the consideration described herein, Seller
agrees, for the periods indicated below, that:
(i) During the course of being a shareholder of MS, Seller has had,
and may continue to have access to and gain knowledge of certain trade
secrets and
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confidential customer information regarding customers, accounts and
procedures of MS including, but not limited to, MS's books and records,
files, customer and account lists, and other information which has
reference to any customer or business serviced by MS, which shall
hereinafter be referred to as "Confidential Client Information." Seller
acknowledges and agrees that: Confidential Client Information is both
confidential and a trade secret, is not readily accessible to competitors
of MS and shall be used by him for the sole benefit of MS; the Confidential
Client Information has been compiled through and by use of MS's ingenuity,
time, marketing and product development strategies, policies, labor,
expense, continuous solicitation, investigation and long experience
rendering the Confidential Client Information a valuable asset of MS, owned
solely by MS and is a part of its goodwill; the Confidential Client
Information consists of, among other things, preferred customers of a
particularly profitable nature whose identities are not generally know in
the trade; the nature of MS's business relationship to any client or
customer solicited, produced, served, marketed or handled by Seller, is
such that it would normally continue unless interfered with; the nature of
MS's business is such that a customer will only patronize one business
provider; and actual use or divulging to others for their use of the
Confidential Client Information in violation of the terms of this Agreement
would be unfair use, to MS's extreme prejudice, done with an intent of the
Seller to injure MS.
(ii) For the period of five (5) years from the date of execution
hereof, Seller will not, directly or indirectly, either on his own account
or as a partner, joint venturer, consultant, broker, agent, adviser,
shareholder, member or otherwise either individually or for any other
person, firm or corporation or otherwise, use or divulge Confidential
Client Information in any manner or solicit, service, market, divert,
accept, or handle any business in any way related to the business currently
conducted by MS for current customers of MS within a three hundred (300)
mile radius of Knoxville, Tennessee.
(iii) For the period of five (5) years from the date of execution
hereof, Seller will not, directly or indirectly, either on his own account
or as a partner, joint venturer, consultant, broker, agent, adviser,
shareholder, member or otherwise either individually or for any other
person, firm or corporation or otherwise, solicit, service, market, divert,
accept, or handle any business similar to MS's business on the date of this
Agreement or operate or be affiliated in any manner whatsoever with a
business of any type engaged in the fabrication of metal products.
(iv) For the period of five (5) years from the date of execution
hereof, Seller will not, directly or indirectly, induce any person employed
by MS on the date of this Agreement to leave his or her employment with MS.
(v) For the period of five (5) years from the date of execution
hereof, Seller will not use or divulge to any other person or entity for
its use any Confidential Client Information or trade secrets of MS relating
to customers or prospects of MS, except in connection with the acquisition
of A3 Technologies, Inc. and disclosure to governmental authorities and
professional advisors as needed.
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(vi) Notwithstanding anything herein to the contrary, Seller shall be
entitled to make such disclosures as it reasonably believes are required
under federal or state securities laws and no such disclosures shall be
deemed to violate any provision of this Agreement.
(b) The covenants in paragraphs 8(a)(i)-(vi) are intended to be
separate and divisible covenants, and if, for any reason, any one or more
thereof shall be held to be invalid or unenforceable, in whole or in part,
it is agreed that the same shall not be held to affect the validity or
enforceability of any other such covenant of this Agreement.
(c) The agreement of Seller not to engage in activities prohibited
herein for the period of time agreed upon herein is a substantial
consideration of this Agreement. Seller represents and admits that the
above covenants are manifestly reasonable on their face and the parties
expressly agree that they are also reasonable as to time and otherwise and
that same are no greater than is required for the protection of MS. Seller
agrees that the remedy at law for any breach by it of the above covenants
will be inadequate and that this Agreement may be enforced by an injunction
by any competent Court enjoining and restraining any violations hereof,
including, without limitation, an injunction restraining Seller and any
other person acting in concert with him from continuance of any act in
violation of this covenant.
9.0 Transactions Affecting the MS Stock. Seller agrees that prior to the
Closing Date, Seller will take no action to transfer or encumber the Stock or
cause or permit to be caused any impairment in his ability to sell the Stock
pursuant to the terms of this Agreement and shall take all necessary actions to
preserve and protect his ability to freely transfer the Stock to Purchaser or
his assigns.
10.0 Finder's and Broker's Fees. The parties to this Agreement represent
that each has not dealt with any broker or finder or any other person who may
claim entitlement to a broker or finder's fee, commission or similar
compensation in connection with any of the transactions contemplated by this
Agreement, and that, insofar as each knows or their dealings or negotiations are
concerned, no finder, broker or other person is entitled to any finder's fee,
broker's fee, commission or similar compensation in connection with any of the
transactions contemplated hereby. Each of the parties to this Agreement agrees
to indemnify and hold harmless the other party against any liability, damage,
cost or expense incurred by reason of breach of the representation and warranty
contained in the first sentence of this Section 10.
11.0 Survival of Representations and Indemnification.
11.1 Survival. All statements contained in any Exhibit, Schedule,
document, certificate or other instrument delivered by or on behalf of any
party hereto, or in connection with the transactions contemplated hereby,
shall be deemed to be representations and warranties made pursuant to this
Agreement and all agreements made by the parties pursuant to this Agreement
shall survive the consummation of all transactions contemplated by this
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Agreement and any investigations made by or on behalf of any of the
parties, provided that claims for damages resulting from breach of any
representation or warranty must be made on or before the second anniversary
date of the Closing Date or be deemed waived, provided further however,
that failure to make a claim based upon an intentional failure of any party
to disclose (i) any item required to be disclosed pursuant to sections 3
and 4 herein, or (ii) any item required so as not to make the items so
disclosed materially misleading on or before the second anniversary of the
Closing Date shall not be deemed waived.
11.2 Indemnification by Purchaser. Purchaser agrees to indemnify
Seller and hold him harmless against and in respects of any and all
damages, claims, losses, expenses, costs, obligations and liabilities
(including reasonable attorney's fees) which he may incur or may suffer by
reason of (i) any breach of or failure by Purchaser to perform any of his
warranties, guarantees, commitments or covenants in this Agreement; (ii)
any breach of or failure by Purchaser to perform any obligations arising
pursuant to the Management Agreement; and (iii) any act or omission of
Purchaser which constitutes a breach or default hereunder. Consummation of
the transactions hereunder shall not be deemed or construed to be a waiver
of any right or remedy of Seller, notwithstanding any facts which Seller
knew or should have known at the time of the Closing Date, nor shall this
Section or any other provision of this Agreement be deemed or construed to
be a waiver of any ground of defense by Seller.
11.3 Indemnification by Seller. Seller agrees to indemnify Purchaser
and hold him harmless against and in respect of any and all damages,
claims, losses, expenses, costs, obligations and liabilities (including
reasonable attorney's fees and unknown or unrecorded liabilities,
contingent or other) which Purchaser may incur or may suffer by reason of
(i) any breach of or failure of Seller to perform any of his warranties,
guarantees, commitments, or covenants in this Agreement and (ii) any act or
omission of Seller which constitutes a breach or default hereunder.
Consummation of the transactions hereunder shall not be deemed or construed
to be a waiver of any right or remedy of Purchaser notwithstanding any
facts which Purchaser knew or should have known at the time of the Closing
Date, nor shall this Section or any other provision of this Agreement be
deemed or construed to be a waiver of any ground of defense by Purchaser.
In no event shall the indemnification hereunder exceed the amount of
consideration received by Seller pursuant to this Agreement.
12.0 Entire Agreement; Modification; Waivers. This Agreement constitutes
the entire agreement among the parties hereto pertaining to the subject matter
hereof and supersedes all prior and contemporaneous agreements (except those
contemplated hereunder), understandings, negotiations and discussions, whether
oral or written, of the parties, and there are no warranties, representations or
agreements among the parties in connection with the subject matter hereof except
as set forth or referred to herein. No supplement, modification or waiver or
termination of this Agreement or any provisions hereof shall be binding unless
executed in writing by the parties to be bound thereby. No waiver of any of the
provisions of this Agreement shall constitute a waiver of any other provision
(whether or not similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided.
13.0 Headings. Section and subsection headings are not to be considered
part of this Agreement and are included solely for convenience and are not
intended to be full or accurate descriptions of the content thereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and date first above written.
SELLER:
Xxxx Technology, Inc.
By: /s/ Xxxxxxx X. Xxxx
---------------------
Xxxxxxx X. Xxxx
President
PURCHASER:
/s/ Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx
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