PURCHASE AGREEMENT
PURCHASE
AGREEMENT
PURCHASE
AGREEMENT
(the
“Agreement”), dated as of June 11, 2008, by and among Xxxxxx, Inc., a Delaware
corporation (the “Seller”) and each of the purchasers identified on the
signature page hereto (collectively the “Purchaser”).
PREAMBLE
WHEREAS,
Regal
Medical Supply LLC, a North Carolina limited liability company (the “Company”)
is engaged in the business of providing contracture management products and
services in long-term care and other rehabilitation settings by assisting
facility personnel in product selection, order fulfillment, product fitting
and
billing services (the “Business”); and
WHEREAS,
Seller
desires to sell to the Purchaser, and the Purchaser desires to purchase from
the
Seller, all of the Company’s outstanding membership interests owned by the
Seller, all on the terms and subject to the conditions set forth
herein.
NOW,
THEREFORE,
in
consideration of the respective mutual covenants, representations and warranties
herein contained, the parties hereto hereby agree as follows:
ARTICLE
I-
DEFINITIONS
In
addition to terms defined elsewhere in this Agreement, the following terms
when
used in this Agreement shall have the meanings indicated below:
“Affiliate”
shall
mean with respect to a specified Person, any other Person which directly or
indirectly controls, is controlled by, or is under common control with such
Person.
“Closing
Date”
shall
have the meaning set forth in Section
7.1.
“Encumbrance”
shall
mean any mortgage, pledge, lien or security interest.
“Financial
Statements”
shall
mean the combined balance sheets and the combined statements of income, cash
flows and retained earnings of the Company as of and for the fiscal year ended
December 31, 2007, including the notes thereto.
“GAAP”
shall
mean United States generally accepted accounting principles.
“Indemnified
Party”
means
any Person claiming indemnification under any provision of Article V.
“Indemnifying
Party”
means
any Person against whom a claim for indemnification is being asserted under
any
provision of Article V.
“Intellectual
Property”
shall
mean any United States, foreign, international and state patents and patent
applications, industrial design registrations, certificates of invention and
utility models (collectively, “Patents”); trademarks, service marks, and
trademark or service xxxx registrations and applications, trade names, logos,
designs, slogans, and general intangibles of like nature, together with all
goodwill related to the foregoing (collectively, “Trademarks”); Internet domain
names; copyrights, copyright registrations, renewals and applications for
copyrights, including without limitation for the Content and the Software (each
as defined herein) (collectively, “Copyrights”); Content; Software, technology,
trade secrets and other confidential information, know-how, proprietary
processes, formulae, algorithms, models and methodologies (collectively, “Trade
Secrets”), rights of privacy and publicity, including but not limited to, the
names, likenesses, voices and biographical information of real persons, and
all
license agreements and other agreements granting rights relating to any of
the
foregoing.
“Losses”
shall
mean the full amount of any and all actual liabilities, damages, claims,
deficiencies, fines, assessments, losses, penalties, interest, costs and
expenses, including, without limitation, reasonable fees and disbursements
of
counsel, and shall not include consequential, indirect, special, punitive,
exemplary or other similar damages, other than compensatory damages. The amount
of any Loss shall be calculated net of any insurance proceeds on account of
a
claim relating to such Loss that are actually recovered by the Indemnified
Party
after discovery of the Loss and net of any net tax benefit received by the
Indemnified Party from such Loss to the extent received at the time of
calculation.
“Net
Worth”
shall
mean the Purchaser’s total assets, less the total liabilities of the Purchaser,
all as determined in accordance with GAAP consistently applied with prior
periods.
“Person,”
whether or not capitalized, shall mean any natural person, corporation,
unincorporated organization, partnership, limited liability company,
association, joint stock company, joint venture, trust or government, or any
agency or political subdivision of any government or any other
entity.
“Securities”
means
all the membership interests of every kind and nature in the Com-pany, including
without limitation any warrant, option or right to subscribe for or otherwise
acquire a membership interest in the Company, and any security which is
convertible into or exchangeable for, with or without the payment of additional
consideration, a membership interest in the Company.
“Software”
shall
mean any and all (i) computer programs, including any and all software
implementations of algorithms, models and methodologies, whether in source
code
or object code form, (ii) databases, compilations, and any other electronic
data
files, including any and all collections of data, whether machine readable
or
otherwise, (iii) descriptions, flow-charts, technical and functional
specifications, and other work product used to design, plan, organize, develop,
test, troubleshoot and maintain any of the foregoing, and (iv) all
documentation, including technical, end-user, training and troubleshooting
manuals and materials, relating to any of the foregoing.
ARTICLE
II-
PURCHASE
OF SECURITIES; CONSIDERATION
2.1 Purchase
of Securities. Upon the terms and subject to the conditions of this
Agreement, the Seller shall sell to the Purchaser, and the Purchaser shall
purchase from the Seller, all of the Seller’s right, title and interest in and
to the Securities, which shall collectively constitute one hundred percent
(100%) of the issued and outstanding membership interests of the Company. At
the
Closing, the Seller shall deliver to Purchaser a certificate representing the
Securities, together with a membership unit transfer power separate from the
certificate duly executed by the Seller in blank and sufficient to convey to
the
Purchaser title to the Securities free and clear of any and all Encumbrances
(other than restrictions on transferability under federal and state securities
laws) and together with all accrued benefits and rights attaching
thereto.
2.2 Consideration.
The
aggregate purchase price to be paid by the Purchaser for the Securities shall
be
$501,000 (the “Purchase Price”), which shall be paid by the Purchaser to the
Seller on the Closing Date by wire transfer of immediately available funds
to
such account(s) as shall be designated by the Seller prior to the Closing
Date.
ARTICLE
III-
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
In
order
to induce the Purchaser to enter into this Agreement and to consummate the
transactions contemplated hereby, the Seller, as of the date hereof, makes
the
representations and warranties set forth below to the Purchaser. No
representation or warranty of the Seller contained in this Agreement will be
deemed violated or breached if either (i) Xxxx Xxxxx had knowledge, after due
inquiry; or (ii) disclosure is contained in the Seller’s filings with the
Securities and Exchange Commission prior to or as of the date of this Agreement,
of the facts, circumstances, action or inaction which gives rise to any
violation or breach of such representation or warranty.
3.1 Organization;
Authorization; Enforceability.
The
Company is a limited liability company duly formed, validly existing and to
the
Seller's knowledge after due inquiry, in good standing under the laws of the
state of North Carolina. The Seller is a corporation duly formed and validly
existing in good standing under the laws of the state of Delaware and has all
requisite right, corporate power and corporate authority to execute, deliver
and
perform this Agreement and the agreements or other documents contemplated hereby
to which it is a party. This Agreement and all other agreements or documents
executed and delivered by the Seller pursuant to this Agreement have been duly
authorized by the Seller, do not require any further authorization or consent
of
the Seller, and have been and will be duly executed and delivered and constitute
the legal, valid and binding obligations of Seller enforceable in accordance
with their respective terms, except to the extent that their enforcement is
limited by bankruptcy, insolvency, reorganization or other laws relating to
or
affecting the enforcement of creditors’ rights generally and by general
principals of equity.
3.2 No
Violation or Conflict.
The
execution, delivery and performance of this Agreement and the other agreements
and documents pursuant hereto by the Seller and the consummation by the Seller
of the transactions contemplated hereby: (a) do not violate or conflict with
any
provision of applicable law or any writ, order or decree of any court or
governmental authority; (b) do not violate or conflict with any provision of
the
Seller’s Certificate of Incorporation or Bylaws; and (c) do not, with or without
the passage of time or the giving of notice, result in the breach of, or
constitute a default, give rise to a right of termination, cancellation, or
acceleration of performance or loss of benefit or require any consent under,
or
result in the creation of any Encumbrance upon any property or assets of the
Seller pursuant to any instrument, material agreement to which the Seller is
a
party or by which the Seller or its properties may be bound or affected, other
than instruments or agreements as to which consent shall have been obtained
at
or prior to the Closing.
3.3 Title
to Securities.
The
Securities owned by the Seller constitute all the outstanding membership
interests in the Company of every kind and nature and upon execution of this
Agreement by the Seller, the Purchaser will be the owner of all the Securities
free of all Encumbrances other than Encumbrances created by the Purchaser or
the
Company.
3.4 Litigation;
Disputes.
There
are no actions, suits, investigations, claims or proceedings (“Litigation”)
pending or to the Seller’s knowledge threatened before any court or by or before
any governmental authority or arbitrator, (a) affecting the Company (as
plaintiff or defendant) or (b) relating to the transactions contemplated by
this
Agreement, and there exist no facts or circumstances creating any reasonable
basis for the institution of any such action, suit, investigation, claim or
proceeding described above.
3.5 Brokers.
The
Seller has not employed any financial advisor, broker or finder, has not
incurred and will not incur any other broker’s, finder’s, investment banking or
similar fees, commissions or expenses in connection with the transactions
contemplated by this Agreement. The Seller shall be solely responsible for
all
fees, commissions, and expenses of any Person hereto incurred by it in
connection with the transactions contemplated by this Agreement.
3.6 Compliance.
Except
as otherwise known to Xxxx Xxxxx or disclosed in the Seller’s filings with the
Securities and Exchange Commission prior to or as of the date of this Agreement,
there are no material violations (or any investigation or allegation of any
material violation) of any applicable law by or with respect to the Company,
and
to the Seller’s knowledge no investigation or an allegation of violation of any
applicable law by or with respect to the Company is threatened or contemplated.
3.7 Title
to and Condition of Personal Property.
Schedule
3.7
sets
forth all personal property owned by the Company and the location of such
personal property, including, without limitation, plant, machinery, equipment,
furniture, leasehold improvements, fixtures, vehicles, structures, any related
capitalized items and other tangible property used in the business of the
Company and which is treated by the Company as depreciable or amortizable
property (“Tangible Property”). The Company has good title or right to use each
item of Tangible Property, free and clear of any Encumbrances, except as set
forth in Schedule 3.7 hereto. There is no material Tangible Property owned
by
any third party which is used in the operation of the business of the Company,
as presently conducted.
3.8 Intellectual
Property Rights.
Schedule
3.8
includes
a complete list of all of the Intellectual Property owned or licensed by the
Company, or which the Company has a valid right to use, that relates to or
is
used or useful in the Business. The Intellectual Property owned by the Company
is solely and exclusively owned by the Company free and clear of all
Encumbrances, and the Company is listed in the records of the appropriate United
States, state or foreign agency as the sole owner of record for each
registration and application for any Patent, Trademark, Internet domain name
and
Copyright. All of such registrations are valid and subsisting, in full force
and
effect, and have not been cancelled, expired, or abandoned. There is no pending
or, to the Seller’s knowledge, threatened opposition, interference or
cancellation proceeding before any court or registration authority in any
jurisdiction against any of the Intellectual Property, directly or indirectly,
owned by the Company or against any Intellectual Property not owned by the
Company.
3.9 Financial
Statements.
Attached
hereto as Schedule 3.9(a) are true and complete copies of (i) the
Financial Statements, (ii) the Company’s balance sheet and profit and loss
statements for the three months ended March 31, 2008 (the “Quarter Statement”);
and (iii) the Company’s balance sheet and profit and loss statements for the two
months ended May 31, 2008 (the “Closing Statement”). Except as set forth on
Schedule 3.9(b), the Financial Statements, the Quarter Statement, the
Closing Statement are correct and complete in all material respects and have
been prepared in accordance with the books of account and records of the
Company.
The
parties hereto hereby agree that any intercompany receivables and payables
between Company and Seller or Seller’s subsidiaries reflected in the Closing
Statement shall be deemed not owed and are zero for purposes of the closing
of
the transactions contemplated by this Agreement.
3.10 Absence
of Undisclosed Liabilities.
Except
for Liabilities (as defined below) incurred in the ordinary course of business
consistent with past practice since January 1, 2008, the Company does not have
any direct or indirect indebtedness, liability, claim, loss, damage, deficiency,
obligation or responsibility, known or unknown, fixed or unfixed, xxxxxx or
inchoate, liquidated or unliquidated, secured or unsecured, accrued, absolute,
contingent or otherwise, including, without limitation, liabilities on account
of Taxes, other governmental charges or lawsuits brought, whether or not of
a
kind required by GAAP to be set forth on a financial statement (“Liabilities”),
which were not fully and adequately reflected on (i) the Financial Statements,
(ii) the Quarter Statement, (iii) the Closing Statement, or (iv) Schedule
3.10. There are no circumstances, conditions, events or arrangements which
may hereafter give rise to any Liabilities of Company except in the ordinary
course of business or as otherwise set forth on Schedule
3.10.
3.11 Tax
Matters.
The
Company has timely prepared and filed all federal, state and local tax returns
and reports as are and have been required to be filed (or appropriate extensions
have been obtained). All income, profits, franchise, sales, use, value added,
occupancy, property, excise, payroll, withholding, income, FICA, FUTA and other
taxes (including interest and penalties) (“Taxes”), if any, collectible or
payable by the Company or relating to or chargeable against the Company through
the date hereof, were fully collected and paid, or provided for by adequate
reserves, as the case may be, whether or not any such taxes were reported or
reflected in any tax returns or filings.
ARTICLE
IV- REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
In
order
to induce the Seller to enter into this Agreement and to consummate the
transactions contemplated hereby, the Purchaser, as of the date hereof, makes
the representations and warranties set forth below to the Seller.
4.1 Capacity;
Enforceability. Each Purchaser has all requisite capacity to execute,
deliver, and perform this Agreement and the agreements or other documents
contemplated hereby to which it is a party. This Agreement and the agreements
or
other documents contemplated hereby to which it is a party have been and will
be
duly executed and delivered and constitute the legal, valid and binding
obligations of each Purchaser, enforceable in accordance with their respective
terms, except to the extent that their enforcement is limited by bankruptcy,
insolvency or other laws relating to or affecting the enforcement of creditors'
rights generally and by general principles of equity.
4.2 No
Violation or Conflict.
The
execution, delivery and performance of this Agreement and
the
agreements or other documents contemplated hereby by
each
Purchaser: (a)
does
not materially violate or conflict with any provision of law or regulation
(whether federal, state or local), or any writ, order or decree of any court
or
governmental or regulatory authority, and (b) does not, with or without the
passage of time or the giving of notice, result in the breach of, or constitute
a default, cause the acceleration of performance or require any consent
hereunder.
4.3 Brokers.
The
Purchaser has not employed any financial advisor, broker or finder and has
not
incurred and will not incur any broker’s, finder’s, investment banking or
similar fees, commissions or expenses, in connection with the transactions
contemplated by this Agreement.
4.4 Litigation.
The
Purchaser is not a party to any, and there is no pending or, to the knowledge
of
Purchaser, threatened, Litigation against Purchaser challenging the validity
of
the transactions contemplated by this Agreement which, if determined adversely,
would reasonably be expected to prevent the consummation of this Agreement
or
the ability of Purchaser to perform its obligations under this Agreement and
the
other agreements contemplated hereby.
4.5 Net
Worth. As of the Closing Date, the Purchaser has a Net Worth equal to not
less than the Purchase Price.
ARTICLE
V-
INDEMNIFICATION
5.1 Survival
of the Representations and Warranties.
The
representations and warranties of the Seller and the Purchaser set forth in
this
Agreement shall survive the Closing Date through the twelve months after the
Closing Date.
5.2 Indemnification.
(a) The
Seller, agrees to be responsible for, pay, indemnify and hold harmless, the
Purchaser and its respective directors, officers, employees, agents, successors
and assigns (the “Purchaser Indemnified Parties”) from, against and in respect
of any and all Losses arising from, in connection with, or relating
to:
(i) any
breach or inaccuracy of any of the representations or warranties of the
Seller contained in Article III of this Agreement;
(ii) any
breach by the Seller of any covenants or agreements contained in this
this
Agreement; and
(iii) any
and
all Taxes and related penalties, interest or other charges for any unaccrued
or
unreported Tax liabilities with respect to the Seller, the Securities, or the
Company for all periods prior to or including the Closing Date.
(b) Purchaser
agrees to, indemnify and hold harmless the Seller and its respective directors,
officers, employees, agents, successors and assigns (the “Seller Indemnified
Parties”) from, against and in respect of, any and all Losses arising from, in
connection with, or relating to:
(i)
any
breach or inaccuracy of any of the representations or warranties of
the
Purchaser contained in Article IV of this Agreement;
(ii)
any
breach by the Purchaser of any covenants or agreements contained
in this Agreement; and
(iii) any
and
all Taxes and related penalties, interest or other charges for any unaccrued
or
unreported Tax liabilities with respect to the Purchaser, the Securities, or
the
Company for all periods subsequent to the Closing Date.
(c) An
Indemnified Party under this Agreement shall, with respect to claims asserted
against such party by any third party, give written notice to the Indemnifying
Party of any liability which might give rise to a claim for indemnity under
this
Agreement as soon as is reasonably practicable; provided,
however,
that
any failure to give such notice will not waive any rights of the Indemnified
Party. The Indemnifying Party shall have the right, at its election, to take
over the defense or settlement of such claim by giving written notice to the
Indemnified Party at least ten (10) days prior to the time when an answer or
other responsive pleading or notice with respect thereto is required. In the
event the Indemnifying Party elects and diligently contests or defends any
such
claim in good faith, the Indemnifying Party will not be responsible for the
fees
of separate legal counsel to the Indemnified Party; provided,
however,
that
the Indemnifying Party will not settle any such claim without the written
consent of the Indemnified Party, which shall not be unreasonably withheld.
(d)
With
regard to claims of third parties for which indemnification is payable
hereunder, such indemnification shall be paid by the Indemnifying Party upon
the
earlier to occur of: (i) the entry of a judgment against the Indemnified Party
and the expiration of any applicable appeal period, or if earlier, five (5)
days
prior to the date that the judgment creditor has the right to execute the
judgment; (ii) the entry of an unappealable judgment or final appellate decision
against the Indemnified Party; or (iii) a settlement of the claim. With regard
to other claims for which indemnification is payable hereunder, such
indemnification shall be paid promptly by the Indemnifying Party upon demand
by
the indemnified party.
5.3 Limitations
on Indemnification.
The
Seller shall not be obligated to indemnify or hold harmless the Purchaser
Indemnified Parties in respect of any Losses suffered, incurred or sustained
by
the Purchaser Indemnified Parties as a result of this Agreement, until the
Purchaser Indemnified Parties have suffered Losses by reason of all such
breaches in excess of $37,500 (the “Deductible”) (at which point the Seller will
be obligated to indemnify the Purchaser Indemnified Parties for the amount
of
such Losses in excess of the Deductible). In no event shall the aggregate
liability of the Seller for all obligations under this Agreement exceed one
hundred percent (100%) of the Purchase Price. The Seller shall have no liability
under this Article V to the extent that an allowance or provision or reserve
in
respect of the matter to which the Loss relates has been made in the Financial
Statements.
5.4
Exclusive Remedy.
The
Seller and the Purchaser agree that the sole recourse of the Purchaser
Indemnified Parties for any indemnification claims under this Article V is
as
set forth in this Article V. In entering into this Agreement, the Purchaser
has
relied solely upon its own investigation and analysis and the representations
and warranties of the Seller in Article III, and the Purchaser
(i) acknowledges that, except for the specific representations and
warranties of the Seller contained in Article III, none of the Seller or
any of its Affiliates makes or has made any representation or warranty, either
express or implied, as to the accuracy or completeness of any of the information
(including any projections, estimates or other forward-looking information
provided (including in any management presentations, information memorandum,
supplemental information or other materials or information with respect to
any
of the above) or otherwise made available to the Purchaser or its Affiliates)
and (ii) agrees, to the fullest extent permitted by law, that the Seller
and its Affiliates shall not have any liability or responsibility whatsoever
to
the Purchaser or its Affiliates or any Purchaser Indemnified Parties on any
basis (including in contract or tort, under federal or state securities laws
or
otherwise) based upon any information provided or made available, or statements
made (or any omissions therefrom), to the Purchaser or its Affiliates or any
Purchaser Indemnified Party, including in respect of the specific
representations and warranties of the Seller set forth in Article III,
except as and only to the extent expressly set forth in Article III with
respect to such representations and warranties and subject to the limitations
and restrictions contained in this Agreement.
ARTICLE
VI-
ADDITIONAL AGREEMENTS
6.1 Non-competition.
The
Seller acknowledges that in order to assure the Purchaser that the Purchaser
will retain the value of the Company, the Seller agrees that, during the
Restricted Period (as defined below), the Seller shall not compete, engage
in,
or have an interest, in the United States, alone or in association with others,
as principal, officer, agent, employee, director, partner or stockholder (except
as an owner of two percent (2%) or less of the stock of any company listed
on a
national securities exchange or traded in the over-the-counter market), or
through the investment of capital, lending of money or property, rendering
of
services or capital, or otherwise, in or with any Competitive Business. During
the same period, the Seller shall not, and shall not permit any of its
employees, agents or others then under its control to, directly or indirectly,
on behalf of the Seller, or any other Person, call upon, accept Competitive
Business (as defined below) from, or solicit the Competitive Business of any
Person who is, or who had been at any time during the preceding three (3) years,
a customer of the Company. As used herein, the “Restricted Period” shall mean,
with respect to the Seller, a period equal to three (3) years beginning on
the
Closing Date. As used herein, the phrase “Competitive Business” means any
business providing contracture management services in long-term care and other
rehabilitation settings by assisting facility personnel in product selection,
product fitting and billing services. Notwithstanding any provision herein
to
the contrary, the obligations contained in this Section 6.1 shall not be
applicable to any successor in interest to all or any portion of the Seller’s
medical products and/or personal care products segments (as described in the
Seller’s Annual Report on Form 10-K for the year ended December 31, 2007, filed
with the Securities and Exchange Commission on March 31, 2008).
6.2 Continuing
Obligations; Equitable Remedies.
The
restrictions set forth in Section 6.1 are considered by the parties to be
reasonable for the purposes of protecting the value of the business and goodwill
of the Company. Each of the Seller and the Purchaser acknowledges that the
Purchaser may be irreparably harmed and that monetary damages may not provide
an
adequate remedy to the Purchaser in the event the covenants contained in
Sections 6.1 were not complied with in accordance with its terms. Accordingly,
the Seller agrees that the Purchaser shall be entitled to seek, at its sole
cost
and expense, injunctive and other equitable relief to secure the enforcement
of
these provisions, in addition to any other remedies (including damages) which
may be available to the Purchaser. If the Seller breaches the covenant set
forth
in Section 6.1, the running of the non-compete period described therein shall
be
tolled for so long as such breach continues.
6.3 Amended
Form 855S.
Within
ten days following the Closing Date the Purchaser shall provide the Seller
with
a copy of Purchaser’s proposed amended Form 855S required to be filed pursuant
to Medicare rules and will file the Form 855S, in a form reasonably satisfactory
to the Seller and in compliance with all Medicare rules, with Medicare no later
than 30 days following the Closing Date.
6.4 Taxable
Allocation.
Any tax
loss or gain for the year shall be allocated based on number of days of
ownership between the Seller and the Purchaser.
6.5 Available
Cash.
Upon
Closing, the Company’s checking account number 200036893726 at Wachovia Bank,
N.A. will have cash available for immediate withdrawal in an amount equal to
$50,000.
6.6 Waiver
of Non-Competition Obligations.
The
Seller hereby waives the respective non-compete obligations of each of Xxxx
Xxxxx and Xxxx Xxxxx Xxx as set forth in Section 8.1 of that certain purchase
agreement dated as of March 28, 2008, by and among the Seller, the Company,
Regal Medical, Inc., a Delaware corporation (formerly known as Regal Acquisition
Co.), and Xxx Xxxxxx, Xxxx X. Xxxxxx, Xxxxx Xxx Xxx, Xxxxxxx Xxxx Xxxx, Xxxx
Xxxxx Xxx, Xxxx Xxxx Xxxxx, and Xxxxxxx Xxxxxx Warning.
ARTICLE
VII
Closing;
Deliveries
7.1 Closing;
Effective Date.
Subject
to the terms and conditions set forth herein, the closing of the transactions
contemplated by this Agreement (the “Closing”) shall take place at the offices
of Xxxx Xxxxxxx, P.C., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or
at such other place as may be agreed to by the parties. The Closing shall be
deemed to be effective as of 11:59 p.m., New York City time on May 31, 2008,
and
such date is referred to herein as the “Closing Date”. All proceedings to be
taken and all documents to be executed at the Closing shall be deemed to have
been taken, delivered and executed simultaneously, and no proceeding shall
be
deemed taken nor documents deemed executed or delivered until all have been
taken, delivered and executed.
(a)
At
Closing, the Seller shall deliver the following documents to
Purchaser:
(i) the
certificates representing the Securities, together with membership unit powers
duly executed in blank;
(ii) the
written resignations of each of the directors and officers of the Company,
as
may be requested by Purchaser, effective upon Closing;
(iii) Articles
of Organization;
(iv) certificates
issued by the Secretary of State or other similar appropriate governmental
department, as to the good standing of the Company in its jurisdiction of
formation and certifying its Articles of Organization;
(v) a
release
of Xxxx Xxxxx by the Seller in the form attached hereto as Exhibit
7.1(a)(v);
(vi)
the
real estate license agreement in the form attached hereto as Exhibit
7.1(a)(vi);
and
(vii)
such other documents and instruments as the Purchaser may reasonably
request.
(b) At
Closing, Purchaser shall deliver the following documents and funds to the
Sellers:
(i) a
wire
transfer of immediately available funds to the Seller, in the aggregate amount
of the Purchase Price;
(ii) a
release
of the Seller by the Company and Xxxx Xxxxx, in the form attached hereto as
Exhibit
7.1(b)(ii);
(iii) the
real
estate license agreement in the form attached hereto as Exhibit
7.1(a)(vi);
and
(iv) such
other documents and instruments as the Sellers may reasonably
request.
ARTICLE
VIII
- MISCELLANEOUS
8.1 Notices.
Any
notice, demand, claim or other communication under this Agreement shall be
in
writing and shall be sent by certified mail, return receipt requested, postage
prepaid; facsimile transmission (with proof of sending) or overnight courier
to
the following addresses:
If
to the Seller:
Xxxxxx,
Inc.
000
Xxxxxxx Xx.
Xxxx
Xxxx, XX 00000
Attn.:
Chief Executive Officer
Facsimile:
(000) 000-0000
with
a copy to:
Xxxx
Xxxxxxx, P.C.
1350
Avenue of the Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attn.:
Xxxxxx X. Xxxxxxxx, Esq.
Facsimile:
(000) 000-0000
|
If
to the Purchaser:
To
the addresses set forth next to each Purchaser’s name on the signature
page hereto.
with
a copy to:
Xxx
Xxxxx & Associates, LLC
000
X. Xxxx
Xxxxxxx,
XX 00000
Attn:
Xxxx Xxxxx
Facsimile:
(000) 000-0000
|
All
such
notices and communications shall be deemed effective as follows: if mailed,
on
the third business day following deposit in the mail; if sent by facsimile
transmission when sent by facsimile transmission, or if by overnight courier,
on
the day following delivery to the courier; provided that if such day is not
a
business day, such notice or communication shall be deemed effective on the
next
succeeding business day.
8.2 Entire
Agreement.
This
Agreement contains every obligation and understanding between the parties
relating to the subject matter hereof and merges all prior discussions,
negotiations and agreements, if any, between them.
8.3 Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, heirs, personal representatives, legal
representatives, and permitted assigns.
8.4 Assignment.
This
Agreement may not be assigned by any party without the written consent of the
other party.
8.5 Amendment.
This
Agreement may not be amended except in a writing signed by each of the parties
hereto.
8.6 Severability.
In the
event that any one or more of the provisions contained in this Agreement shall
be declared invalid, void or unenforceable, the remainder of the provisions
of
this Agreement shall remain in full force and effect, and such invalid, void
or
unenforceable provision shall be interpreted as closely as possible to the
manner in which it was written.
8.7 Expenses.
Each
party agrees to bear its own costs in connection with the preparation of this
Agreement and the consummation of the transactions contemplated
hereby.
8.8 Counterparts;
Facsimile.
This
Agreement may be executed in any number of counterparts and via facsimile,
each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
8.9 Governing
Law; Jurisdiction.
This
Agreement has been entered into and shall be construed and enforced in
accordance with the laws of the State of New York without reference to the
choice of law principles thereof. This Agreement shall be subject to the
exclusive jurisdiction of the courts of New York County, New York. The parties
to this Agreement agree that any breach of any term or condition of this
Agreement shall be deemed to be a breach occurring in the State of New York
by
virtue of a failure to perform an act required to be performed in the State
of
New York and irrevocably and expressly agree to submit to the jurisdiction
of
the courts of the State of New York for the purpose of resolving any disputes
among the parties relating to this Agreement or the transactions contemplated
hereby. The parties irrevocably waive, to the fullest extent permitted by law,
any objection which they may now or hereafter have to the laying of venue of
any
suit, action or proceeding arising out of or relating to this Agreement, or
any
judgment entered by any court in respect hereof brought in New York County,
New
York, and further irrevocably waive any claim that any suit, action or
proceeding brought in New York County, New York has been brought in an
inconvenient forum.
8.10 Further
Assurances.
The
parties hereto shall deliver any and all other instruments or documents required
to be delivered pursuant to, or necessary or proper in order to give effect
to,
all of the terms and provisions of this Agreement.
8.11 Publicity.
No
public announcement or other publicity regarding this Agreement or the
transactions contemplated hereby shall be made prior to or after the date hereof
without the prior written consent of the Seller and the Purchaser as to form,
content, timing and manner of distribution. Notwithstanding the foregoing,
nothing in this Agreement shall preclude any party or its Affiliates from making
any public announcement or filing as required by law, rule or regulation,
including the rules and regulations of the Securities and Exchange Commission
or
the NASDAQ Global Market.
[signature
page follows]
In
Witness Whereof,
the
parties hereto have each executed and delivered this Agreement as of the day
and
year first above written.
Xxxxxx, Inc. | Purchaser | |||
By: | /s/ W. Xxxx Xxxxxxx | /s/ Xxxx Xxxxx | ||
Name: W. Xxxx Xxxxxxx |
Xxxx Xxxxx |
|||
Title: President
and CEO
|
Address:
c/o Xxx Xxxxx & Associates, LLC
000
X. Xxxx
Xxxxxxx,
XX 00000
|
/s/ Xxxx Xxxxx | ||||
Xxxx Xxxxx |
||||
Address:
000 Xxxxxx Xxxxxx Xx
Xxxx
Xxxxxxx, XX 00000
|
/s/ Xxxx Xxxxx Xxx | ||||
Xxxx Xxxxx Xxx |
||||
Address:
000 X. Xxxxxxxxx
Xxxxxxx,
XX 00000
|