EXHIBIT 10.26
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"),
HIGHBOURNE CORPORATION, a Illinois corporation ("HBC"), XXXXXXX XXXXXX, an
individual residing in __________ County, Illinois ("Xx. Xxxxxx") and XXXXXX
XXXXXX, an individual residing in __________ County, Illinois ("Xx. Xxxxxx").
XRG, HBC, and Xx. Xxxxxx 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 HBC in consideration of HBC and/or
Xx. Xxxxxx 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).
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"Purchased Assets" means all right, title, and interest in and to (a) all
HBC shipper contacts and owner-operator contacts and accounts, and any written
agreements and contracts that are listed in Exhibit A and all rights thereunder;
(b) all of the customer and supplier lists, creative materials, advertising,
promotional materials, studies, reports, business plans and marketing plans of
HBC ; (c) all of HBC's Intellectual Property; and (d) 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 HBC as a
corporation, (ii) any of the rights of HBC under this Agreement (or under any
side agreement between HBC on the one hand and XRG on the other hand entered
into on or after the date of this Agreement), (iii) HBC's cash and accounts
receivable or other assets, or (iv) any liabilities.
"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 HBC,
and HBC 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.
(a) Consideration - Issuance of XRG Stock. At Closing and subject to
compliance with all applicable securities laws and regulations, XRG will issue
to Xx. Xxxxxx and/or to Xx. Xxxxxx 200,000 shares of XRG common stock ("XRGC
Shares").
(b) Lease of facility. At the Closing, XRG shall execute and deliver to
Xx. Xxxxxx a 24- month lease for the facility (terminal and trailer parking
lot), and furniture, fixtures and equipment currently used in the operation of
HBC's business. The lease shall be payable in twenty-four monthly installments
of an amount equal to $2,000 per month, with the first payment being due at the
Closing, and subsequent payments due on the first day of each month thereafter.
(c) Commission payment. At the Closing, XRG shall execute and deliver to
Xx. Xxxxxx an agreement to pay 2% of the gross revenue billed each year by Xx.
Xxxxxx'x operation in the form of XRG common stock valued at market on the date
of payment. This commission will be paid for three consecutive years following
the closing and will be due no later than 30 days after the close of each year.
(d) Bonus agreement. At the Closing, XRG shall execute and deliver to Xx.
Xxxxxx a bonus agreement based on 85% of the gross revenue billed each year by
Xx. Xxxxxx'x operation.
(e) 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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(f) Deliveries at the Closing. At the Closing (i) HBC will deliver to XRG
the various certificates, instruments, and documents referred to in Section 6(a)
below; (ii) XRG will deliver to HBC the various certificates, instruments, and
documents referred to in Section 6(b) below; (iii) HBC will execute and deliver
to XRG a Xxxx of Sale in the form attached hereto as Exhibit B, an Assignment of
Contracts in the form attached hereto as Exhibit C and such other instruments of
sale, transfer, conveyance, and assignment as XRG and its counsel reasonably may
request; (iv) XRG will deliver to Xx. Xxxxxx and Xx. Xxxxxx certificates for the
stock specified in Section 2(a) above; (v) XRG will deliver to Xx. Xxxxxx and
Xx. Xxxxxx documents as specified in Sections 2(b,c,d) above; and (vi) HBC 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 HBC AND XX. XXXXXX AND XX. XXXXXX.
HBC and Xx. Xxxxxx 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 HBC. HBC is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Illinois.
(b) Authorization of Transaction. HBC 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 HBC and HBC's
stockholders have duly authorized the execution, delivery, and performance of
this Agreement by HBC. This Agreement constitutes the valid and legally binding
obligation of HBC and Xx. Xxxxxx 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 HBC or Xx. Xxxxxx and Xx. Xxxxxx is/are subject or any provision
of the charter or bylaws of HBC, 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 HBC or Xx. Xxxxxx 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). HBC and Xx.
Xxxxxx 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. HBC and Xx. Xxxxxx 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) Legal Compliance. HBC 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 HBC alleging any failure so to comply.
(f) 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
HBC 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 HBC 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.
Xxxxxx 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 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
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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. HBC will not engage in any practice, take any
action, or enter into any transaction outside the Ordinary Course of Business.
(c) Preservation of Business. HBC 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. HBC 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 HBC, to all
premises, properties, personnel, books, records (including tax records),
contracts, and documents of or pertaining to HBC. HBC and its officers and
employees will cooperate with XRG and facilitate XRG's due diligence
investigation of HBC. HBC's execution of this Agreement constitutes
authorization to HBC'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 HBC.
(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. HBC will revoke any current listing of its business for
sale. HBC 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 HBC or (including any acquisition structured as a merger,
consolidation, or share exchange) or (ii) participate in any discussions or
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. HBC will notify XRG immediately if any
Person makes any proposal, offer, inquiry, or contact with respect to the
foregoing.
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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) HBC and Xx. Xxxxxx and Xx. Xxxxxx shall have performed and
complied with all of their covenants hereunder in all material respects
through the Closing;
(iii) HBC 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 HBC and Xx. Xxxxxx 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, furniture, fixtures, and
equipment;
(B) completion to XRG's satisfaction of its due diligence
review;
(C) execution of a commission agreement described in Section 2
(b); and
(D) execution of a bonus agreement described in Section 2 (c);
and
(E) execution of employment agreements by such other persons
as may be required by XRG; including Xx. Xxxxxx, and Xx. Xxxxxx.
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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 HBC and Xx. Xxxxxx and Xx. Xxxxxx . The
obligation of HBC and Xx. Xxxxxx 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 HBC and Xx. Xxxxxx and Xx. Xxxxxx.
HBC and Xx. Xxxxxx 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. Xxxxxx and Xx. Xxxxxx
pursuant to this Agreement will be held by Xx. Xxxxxx and Xx. Xxxxxx for his/her
own account for the purpose of investment and not with a present view for sale
in connection with any distribution thereof.
(b) Xx. Xxxxxx and Xx. Xxxxxx'x financial position is such that
he/she 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.
Xxxxxx and Xx. Xxxxxx can afford to suffer the complete loss of his investment
in the XRGC Shares.
(c) Xx. Xxxxxx and Xx. Xxxxxx have been provided an opportunity to
ask questions of, and has received answers satisfactory to Xx. Xxxxxx 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.
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(d) Xx. Xxxxxx and Xx. Xxxxxx understand 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. Xxxxxx and Xx. Xxxxxx agree 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. Xxxxxx and Xx. Xxxxxx are not foreign persons 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, HBC and Xx. Xxxxxx 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
HBC and Xx. Xxxxxx and Xx. Xxxxxx if XRG is not reasonably satisfied with
the results of its continuing due diligence review regarding HBC; or
(iii) XRG may terminate this Agreement by giving written notice to
HBC and Xx. Xxxxxx and Xx. Xxxxxx at any time prior to the Closing (A) in
the event HBC or Xx. Xxxxxx and Xx. Xxxxxx have breached any material
representation, warranty, or covenant contained in this Agreement in any
material respect, XRG has notified HBC or Xx. Xxxxxx and Xx. Xxxxxx, as
applicable, of the breach, and the breach has continued 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, HBC and Xx. Xxxxxx and Ms.
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Kenner, 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.
(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 HBC:
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If to Xx. Xxxxxx 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.
(1) Expenses. Each of XRG, HBC, and Xx. Xxxxxx 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
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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.
[rest of page intentionally left blank]
Page 11
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
XRG, INC.
By:______________________________
Title:___________________________
HIGHBOURNE CORPORATION
By:______________________________
Title:___________________________
_________________________________
Xxxxxxx Xxxxxx
_________________________________
Xxxxxx Xxxxxx
Attachments:
Exhibit A: Acquired Accounts and Agreements
Exhibit B: Xxxx of Sale
Exhibit C: Assignment of Contracts
Page 12
