ASSET, PURCHASE AND SALES AGREEMENT
This Agreement made this 1st day of September, 1998, between XXXXXX
XXXXXX t/a GB CONSULTING, whose address is 000 X. Xxxx Xxxxxx, Xxxxxxxxx, XX
00000 (the "Seller"), and EDUMEDIA, INC., whose address is 000 Xxxxxxxxx Xxxx.,
Xxxxx 000, Xxxxxxx, XX 00000 (the "Purchaser").
1. Sale of Assets. The Seller shall sell to the Purchaser and the
Purchaser shall purchase from the Seller, free from all liabilities and
encumbrances, the following described property: The assets owned and operated by
the Seller at the store premises known as GB Consulting, including customer
lists, good will and Seller's contract with the State of New Jersey. This
contract does not include any accounts receivable.
2. Purchase Price and Allocation. The purchase price for all of the
business and property referred to in paragraph 1 shall be as indicated below.
Purchase price shall be adjusted, as of the date of closing, for prorations of
insurance premiums, utilities, rent and payroll and payroll taxes. The net
amount of the foregoing adjustments shall be added to or subtracted from the
purchase price, as the case may be. The purchase price shall be allocated as
follows:
Covenant not to compete $ 15,000
Goodwill $ 20,000
3. Payment of Purchase Price. Purchaser will pay the purchase price as
follows: Purchaser shall immediately make a deposit of $5,000 as a deposit
towards the purchase of the above described business. Beginning 30 days
following settlement, the purchaser shall pay to seller $5,000 per month until a
total of $35,000 has been paid. All deposit monies will be held in trust by
Xxxxxxxxx, Xxxxxxxx & Xxxxxxxx until the time and place of final settlement in a
non-interest bearing account.
4. Place of Property. The Seller represents that all of the items of
property listed in the attached schedule of property are located at the store
premises referred to in paragraph 1. The Seller will not remove any such
property from such location without the written consent of the Purchaser, except
as may be required in the ordinary course of trade or business up to the date of
closing.
5. List of Creditors, Schedule of Assets. The Seller shall immediately
furnish to the Purchaser, in accordance with the requirements of the Uniform
Commercial Code, a list of the existing creditors, signed and sworn to by the
Seller, and containing the names and business addresses of all existing
creditors of the Seller, with the amounts due to each creditor, and also the
names of all persons who are known to the Seller to assert claims against them
even though such claims are disputed. The Seller and Purchaser have prepared a
schedule of property to be transferred, sufficient to identify such property, in
accordance with the requirements of the Uniform Commercial Code. If any conflict
exist between the schedule of property and the terms of this Agreement, the
terms of this Agreement shall prevail, and the schedule of property shall be
amended accordingly.
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6. Business Name. The Seller represents that within the past three
years they have used no other business name and have had no business address
other than the name and address set forth in paragraph 1. At closing, Seller
shall execute and deliver to Purchaser an assignment of this name. In the event
that these or any other similar names have been registered as alternate names
with the New Jersey Secretary of State or as trade names with the office of the
Atlantic County Clerk or any other county clerk, then Seller shall execute any
assignments reasonably requested by Purchaser in order to transfer the use of
those names to Purchaser. The Purchaser shall, to the exclusion of Seller, be
entitled to the use of the name "GB Consulting" on and after the closing date.
7. Notice to Creditors. The Seller understands that, in accordance with
the provisions of the Uniform Commercial Code, the Purchaser intends to deliver
or send appropriate notice to all of the persons shown on the list of creditors
furnished by the Seller and to other persons, is any, who are known to the
Purchaser to hold or assert claims against the Seller. The Seller will cooperate
with the Purchaser in all matters relating to such notice and will furnish any
additional information that may be required by the Purchaser to satisfy the
statutory provisions in this regard. Such additional information shall include,
but not be limited to, the names and business addresses of persons who become
creditors of the Seller before the closing of this Agreement, together with all
account numbers, as well as persons who assert claims against the Seller even
though disputed. The Seller's Federal Tax ID number is 00-0000000. Seller has
been in business since 1990.
8. Covenant not to Compete. If this transaction closes at the time
specified, or any adjourned date, the Seller will refrain, directly or
indirectly from carrying on a business similar to that involved in this
transaction in the following Counties: Atlantic, Burlington, Camden, Cumberland,
Gloucester and Salem, for a period of five years from the date of closing. This
provision also applies individually to Xxxxxx Xxxxxx.
Purchaser and Seller acknowledge and agree that a violation of this
covenant against competition by Seller may not be completely compensable in
money damages. Therefore, Seller agrees that, in addition to any other remedies
available at law or in equity, Purchaser shall be entitled to injunctive relief
( including temporary restraints ), from a court of equity, enjoining Seller
form engaging in the type of business referred to above, in violation of this
covenant against competition.
In the event that Seller shall violate this covenant against
competition, then in addition to any remedies available at law or in equity,
Purchaser shall be entitled to payment from Seller of all Purchaser's reasonable
attorney fees and cost incurred and/or paid in enforcing this provision. The
contents of this article specifically shall survive closing.
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9. Closing. The closing date shall occur as soon as possible upon the
execution of this Agreement. Closing shall occur at a title company of
Purchaser's choosing, or Purchaser's attorney office, or in a location required
by Purchaser's lender, or such other place and in such other manner as may
mutually be agreed upon between Purchaser and Seller.
At the time of the closing, the Seller shall execute and deliver to the
Purchaser such Bills of Sale and other instruments as may be necessary to
transfer to the Purchaser the business and property referred to in paragraph 1,
and shall deliver possession thereof to the Purchaser, together with the keys to
the store premises. All such Bills of Sale and other instruments will contain
the usual warranties and Affidavit of Title and will effectively transfer to the
Purchaser full title to the business and property referred to in paragraph 1
free and clear of all liens, security interest, and encumbrances.
10. Tax Claims. At the closing specified in this Agreement, Seller
shall deliver to Purchaser documents, Affidavits, or other evidence,
satisfactory to Purchaser's attorney, demonstrating that no taxes are
outstanding against the business or assets, other than those for which
adjustment in the purchase price are made. For this purpose, taxes shall not
include the Seller's personal income tax, but shall include any and all business
related taxes, including, but not limited to, sales tax, state and federal
employee income tax withholding, federal social security tax withholding,
employment taxes and business or license fees.
11. Representations by Seller. The Seller makes the following
representations and warranties to the Purchaser, all of which shall survive
closing:
A. The Seller is the owner of and has good and marketable title
to the business and property referred to in paragraph 1, free of all debts,
liens, security interest and encumbrances.
B. Seller has entered into no contract relating to the business
and property referred to in paragraph 1, except as shown on the attached
schedule of property.
C. There are no judgements, liens, actions, or proceedings
pending or threatened against Seller anywhere.
D. There are no violations of any kind pending or threatened
against the business and property referred in paragraph 1.
E. Seller has to their knowledge complied with all laws, rules
and regulations relating to the business and property referred to in paragraph
1.
F. Seller has paid in full, or will arrange for the payment in
full at the date of closing, all state and federal employee income tax
withholding, federal social security tax withholding, employment taxes,
unemployment insurance, sales and use taxes, business and license fees, and any
other business related taxes or governmental charges.
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G. The lease of the store premises referred to in paragraph 1 and
made available to the Purchaser for examination has not been modified in any
respect, and will be in full force and effect, and without any default by the
Seller at the time of closing.
H. Seller has not established or participated in any pension or
retirement plan or program for the benefit of any present or former employees of
the business to be transferred to the Purchaser.
I. Seller is not insolvent, and will not be rendered insolvent by
the transfer contemplated by this Agreement. Seller is able to meet the business
obligations as they become due.
J. Seller represents that the attachments hereto listed under
Exhibit "D" have been prepared and provided by the Seller to the Purchaser and
that these documents accurately and truly represent the income and assets of GB
Consulting as of June 30, 1998.
12. Conduct of Business. The Seller will conduct the business referred
to in paragraph 1 up to the date of the physical inventory provided in paragraph
3, in the normal and regular manner, and will not enter into any contract except
as may be required in the regular course of business.
13. Risk of Loss. The Seller assumes all risk of loss due to fire or
other casualty up to the time of closing. In the event any such loss occurs
prior to the date of closing, or in the event the business of the Seller is
closed or interrupted by reason of any event not in the ordinary course of
business, the Purchaser shall have the right to terminate this Agreement, on
written notice to the Seller, and upon such termination, there shall be no
further liability on the part of the Seller or the Purchaser hereunder.
14. Business Contracts and Lease. Purchaser assumes no responsibility
for any business contract made by the Seller not listed in the attached schedule
of property. As to those contracts listed in such schedule and the lease for the
store premises, the Purchaser will assume all responsibility for obligations and
amounts accruing thereunder after the date of closing, and will indemnify and
hold the Seller harmless from any and all liability under such contracts and the
lease, provided that the Seller is not in default under any such contracts or
the lease at the date of closing. Purchaser specifically does not accept any
responsibility for any warranty requirements for any software provided, or sold
by Seller.
15. Consent to Assignments. This Agreement is contingent upon the
consent of the landlord under the lease to the assignment of that lease to the
Purchaser to the extent required by the terms of the lease. To the extent that
consent is required to the assignment or assumption of any business contract,
this Agreement is contingent upon the Purchaser obtaining such consent. Any such
consent shall be in writing and delivered at or before the closing by the Seller
to the Purchaser.
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16. Broker. The Seller and the Purchaser each represent to the other
that no broker was involved in this transaction.
17. Transition Employment. For at least 30 days following the
settlement for the purchase of the above-noted business, Xxxx Xxxxxx and Xxxxxxx
Xxxxxx shall act as contact people with the existing business clients of GB
Consulting and turn over all new leads from GB Consulting to the sales manager
of Edumedia for follw-up procurement. Xxxx Xxxxxx will continue to provide
administrative compliance requirements until a newly appointed service
coordinator is up and running within 30 days of settlement. Payment for these
services is as follows:
18. Notices. Notices under this Agreement shall be in writing and shall
be hand delivered, transmitted by facsimile with adequate proof of service, or
sent by certified mail, return receipt requested, to the parties at their
respective addresses and to their counsel, as follows:
Seller's Counsel: Xxxxx X. Xxxxx
Purchaser's Counsel: Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxxx, Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxxxx.
Xxxxxxxx Xxxx, XX 00000
Fax No. (000) 000-0000
19. Entire Agreement. This is the entire Agreement between the parties.
No other promises have been made.
20. Contingency. The Purchaser's requirements under this agreement is
subject to the Seller providing the tax returns for GB Consulting for the years
1995, 1996. These forms will be provided within ten days to review them. If the
Purchaser determines that the documents are not satisfactory to warrant the
purchase of this business, the Purchaser shall notify the Seller of the
cancellation of this Agreement.
Dated: By: /s/ XXXXXX XXXXXX
---------------------
XXXXXX XXXXXX, Seller
Dated: By: /s/ XXXX XXXXXX
-------------------
XXXX XXXXXX
(as to paragraphs 12 and 18)
Dated: EDUMEDIA,
By:----------------
Purchaser
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CONSULTING AGREEMENT
WHEREAS, XXXXXX XXXXXX has sold the assets of his business known as GB
CONSULTING to EDUMEDIA, INC., and
WHEREAS, EDUMEDIA, INC. desires to retain the services of XXXXXX XXXXXX
for the purpose of continuing with the client base of GB CONSULTING, and
WHEREAS, EDUMEDIA, INC. desires to compensate XXXXXX XXXXXX for the
service to be provided;
IT IS ON THIS day of September, 1998, hereby agreed by and between the
parties, that XXXXXX XXXXXX shall receive 2% of all sales that are generated
through the office of GB CONSULTING located at 000 X. Xxxx Xxxxxx, Xxxxxxxxx,
XX, or through the customer base provided as a result of the sale of certain
assets to EDUMEDIA, INC. from XXXXXX XXXXXX t/a GB CONSULTING. This Consulting
Contract shall have a cap of TWO HUNDRED THOUSAND ($200,000) DOLLARS for all
payments to be made to XXXXXX XXXXXX.
XXXXXX XXXXXX agrees and understands that should any claim be made
against EDUMEDIA, INC. for any debt that may have been owed by XXXXXX XXXXXX,
individually or trading as GB CONSULTING for that business, that EDUMEDIA, INC.
may deduct from any and all monies owed to XXXXXX XXXXXX, the amount of the
claim being made. No payment may be deducted unless EDUMEDIA, INC> has provided
to XXXXXX XXXXXX at least 14 days notice of their intention to make payment on
the claim from the monies that are due. Should XXXXXX XXXXXX fail to satisfy the
creditor with either the monies that are due. Should XXXXXX XXXXXX fail to
satisfy the creditor with either payment or verification that the payment is not
due, EDUMEDIA, INC. is authorized, should they desire, to make the payment
directly and to deduct those amounts from any monies that may be due either
through the sale of assets, or this Consulting Agreement.
This Agreement may be terminated upon any material breach of this
Agreement by either party, or breach of the Asset, Purchase and Sales Agreement
entered into between the parties.
By: /s/ XXXXXX XXXXXX
---------------------
XXXXXX XXXXXX, individually
And trading as GB Consulting
Dated: September 1, 1998 ------------------------------------
Edumedia, Inc.
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