Exhibit 10.10
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement"), dated as of August 13,
1999, by and between XxxXXX.xxx, Inc., a Delaware corporation with a place of
business in Williston, Vermont ("Buyer"), and Xxxx Xxxxxx of Colchester, Vermont
("Seller").
This Agreement sets forth the terms and conditions upon which Buyer
agrees to purchase from Seller, and Seller agrees to sell to Buyer, free and
clear of all liabilities, obligations, claims, liens and encumbrances of
whatever nature, the property and assets of Seller known as WEBATM.
In consideration of the mutual agreements contained herein, the parties
hereto agree as follows:
I. TRANSFER OF ASSETS AND LIABILITIES
1.01 Assets to be Sold.
(a) Subject to the terms and conditions of this Agreement,
at the Closing provided for in Section 1.05 hereof (the "Closing"), Seller shall
sell, convey, assign, transfer and deliver to Buyer and Buyer shall purchase
from Seller, all of the WEBATM assets including, without limitation, the assets
described in Exhibit A annexed hereto (the "Assets").
(b) Such sale, conveyance, assignment, transfer and
delivery will be effected by delivery by Seller to Buyer of (i) a duly executed
xxxx of sale in the form of Exhibit B annexed hereto (the "Xxxx of Sale"), and
(ii) such other good and sufficient instruments of conveyance and transfer as
shall be necessary to vest in Buyer good and marketable title to the Assets
including, but not limited to, assignments of all leases, if any, necessary to
operate the Assets (equipment or otherwise), assignments of all licenses, if
any, and all other documents evidencing assignment of intangible Assets
(collectively, the "Related Instruments"), whether absolute, accrued, contingent
or otherwise, all as listed on Exhibit C annexed hereto, free and clear of all
liabilities, obligations, claims, liens and encumbrances.
1.02 No Liabilities to be Assumed. Buyer shall assume no liabilities of
Seller.
1.03 Consideration. Subject to the terms and conditions of this
Agreement, in reliance on Seller's representations, warranties and agreements
contained herein, and in consideration of the aforesaid sale, conveyance,
assignment, transfer and delivery o the Assets, Buyer shall pay, in full payment
for the aforesaid sale, conveyance, assignment, transfer and delivery of the
Assets and the Covenants, the sum of One Hundred Thousand and 00/100 Dollars
($100,000.00) (the "Purchase Price"). The Purchase Price shall be paid as
follows:
(a) The parties acknowledge that a deposit of Twenty-Five
Thousand Dollars ($25,000.00) has been paid by Buyer to
Seller;
(b) Buyer shall pay to Seller Twenty-Five Thousand Dollars
($25,000.00) at Closing; and
(c) Buyer shall pay Seller the balance on January 15, 2000.
1.04 Closing. Subject to the terms and conditions of this Agreement, the
Closing of the transactions contemplated by this Agreement shall take place
within thirty (30) days of execution of this Agreement, or approval of this
Agreement by Buyer's Board of Directors, whichever occurs later. This date or
such other date mutually agreed upon on which the Closing actually occurs is
hereinafter referred to as the "Closing Date."
1.05 Delivery by Seller. At the Closing, Seller will deliver to Buyer
(unless delivered previously) the following:
(a) The duly executed Xxxx of Sale;
(b) The Other Instruments referred to in Exhibit C, in form and
substance satisfactory to Buyer;
(c) A Non-Compete Agreement, substantially in the form attached
hereto as Exhibit D.
(d) All other previously undelivered documents, instruments and
writings related to the Assets, or required to be delivered by Seller to Buyer
at or prior to the Closing pursuant to this Agreement or otherwise required in
connection herewith.
1.06 Delivery by Buyer. At the Closing, Buyer will deliver to Seller
(unless delivered previously) all other previously undelivered documents,
instruments and writings required to be delivered by Buyer to Seller at or prior
to the Closing pursuant to this Agreement or otherwise required in connection
herewith.
1.07 Express Agreement. Except as and to the extent otherwise expressly
provided in this Agreement, Buyer has not agreed to pay, will not be required to
assume and will have no liability or obligation with respect to, any liability
or obligation, direct or indirect, absolute or contingent, of Seller or any
other person or entity. Seller shall (i) pay and discharge and (ii) indemnify
Buyer and hold it harmless from and against any such liabililty or obligation.
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II. REPRESENTATIONS AND WARRANTIES OF SELLER
2.01 No Violation. Neither the execution and delivery of this Agreement,
the Exhibits, nor any of the Related Instruments nor the consummation of the
transactions contemplated hereby or thereby will violate or be in conflict with,
or constitute a default (or an event or condition which, with notice or lapse of
time or both, would constitute a default) under, or result in the termination
of, or result in the creation or imposition of any security interest, lien,
charge or other license, lease, contract, commitment, understanding,
arrangement, agreement or restriction of any kind or character to which Seller
is a party or by which Seller may be bound or affected or to which the property
or assets of Seller may be subject, or violate any statute or law or any
judgment, decree, writ, order, injunction, regulation or rule of any court or
governmental authority.
2.02 Absence of Certain Changes. With respect to the Business, since May
4, 1999, Seller has not:
(a) Sold, transferred or otherwise disposed of any portion of the
Assets;
(b) Taken any other action not either in the ordinary course of
business and consistent with past practice or provided for in this Agreement;
and
(c) Agreed, whether in writing or otherwise, to take any of the
actions set forth in this Section 2.02.
2.03 Title to Properties, Encumbrances. Seller has good, valid and
marketable title to all the Assets which it purports to own (tangible and
intangible), as of the date of this Agreement.
2.04 Good Title Conveyed, Etc. Seller has complete and unrestricted
power and the unqualified right to sell, assign, transfer and delivery to Buyer,
and upon consummation of the transactions contemplated by this Agreement, Buyer
will acquire good, valid and marketable title to the Assets to be transferred to
Buyer hereunder, free and clear of all mortgages, pledges, liens, security
interests, conditional sales agreements, encumbrances or charges of any kind.
The Related Instruments will be duly and validly executed and delivered by
Seller to Buyer at the Closing, and when so executed and delivered, will be
valid and binding obligations of Seller, enforceable in accordance with their
respective terms, and will effectively vest in Buyer good, valid and marketable
title to all of the Business Assets.
2.05 Disclosure. No representation or warranty by Seller contained in
this Agreement, any Exhibit or any other document, list, certificate, financial
statement or record, tax return or other writing furnished or to be furnished by
or on behalf of Seller to Buyer or any of its representatives in connection with
the transactions contemplated hereby, contains or will contain any untrue
statement of a material fact, or omits or will omit to state any material fact
necessary, in light of the circumstances under which it was or will be made, in
order to make the statements herein or therein not misleading, or necessary in
order to fully
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and fairly provide the information required to be provided in any such document,
list, certificate, financial statement or record, tax return or other writing.
2.06 Creditor's Rights. Neither the transactions contemplated hereby nor
the application of the proceeds arising hereunder nor any action or statement
made by Buyer or Seller or any other party in connection herewith will, directly
or indirectly, result in any claim or liability against Buyer nor violate any
rights of any creditor or any law dealing with bankruptcy, insolvency or any law
affecting creditors' rights including, but not limited to, Sections 547 and 548
of the United States Bankruptcy Code and any similar state or federal law.
III. CONDITIONS TO OBLIGATIONS OF BUYER
The obligations of Buyer under this Agreement are subject to the
satisfaction, at or before the Closing, of each of the following conditions:
3.01 Representations and Warranties. The representations and warranties
of Seller contained herein, and the statements contained in any schedule,
instrument, list, financial statement or record, tax return, certificate or
writing delivered by Seller pursuant to this Agreement shall be true, complete
and accurate as of the date when made and at and as of the Closing Date as
though such representations and warranties were made at and as of such date,
except for any changes expressly permitted by the terms of this Agreement.
3.02 Performance. Seller shall have performed, complied with and entered
into all agreements, obligations, covenants and conditions required or
contemplated by this Agreement to be so performed, complied with and entered
into at or prior to the Closing.
3.03 No Proceeding or Litigation. There shall not be threatened,
instituted or pending any suit, action, investigation, inquiry or other
proceeding by or before any court or governmental or other regulatory or
administrative agency or commission requesting or looking toward an order,
judgment or decree which (a) restrains or prohibits the consummation of the
transactions contemplated hereby, (b) in the reasonable judgment of Buyer might
have a material adverse effect on Buyer's ability to exercise control over or
manage the Business after the Closing, (c) in the reasonable judgment of Buyer,
might have a material adverse effect on Buyer, or (d) in the reasonable judgment
of Buyer, might have a material adverse effect on Buyer's prospects for use of
the Assets.
3.04 No Injunction. There shall be no effective injunction, writ,
preliminary restraining order or any order of any nature issued by a court of
competent jurisdiction directing that the transactions provided for herein or
any of them not be consummated as so provided or imposing any conditions on the
consummation of the transactions contemplated hereby which Buyer deems
unacceptable in its sole discretion.
3.05 Documents. The Related Instruments and all other documents to be
delivered by Seller to Buyer at the Closing shall be in form and substance
satisfactory to Buyer.
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3.06 Consents and Approvals. All licenses, permits, consents, approvals
and authorizations of all third parties, and governmental bodies and agencies
shall have been obtained which, in the sole judgment of counsel for Buyer, are
necessary in connection with (a) the consummation of the purchase of the
Business Assets and other transactions contemplated hereby, (b) the ownership by
Buyer of the Business Assets and the operation and management by Buyer of the
Business, and (c) the conduct by Buyer after the Closing of the Business as
conducted by Seller (and its relevant subsidiaries) on the date hereof.
3.07 Inspection. Buyer or Buyer's designee shall have conducted all
reasonable inspections of the Business premises and operations deemed necessary
by Buyer and all such inspections must be completed to Buyer's satisfaction, as
determined in its sole discretion. Said inspections must b conducted no later
than 8/12/99 (1) day prior to the Closing.
IV. CONDITIONS TO OBLIGATIONS OF SELLER
The obligations of Seller under this Agreement are subject to the
satisfaction, at or before the Closing, of each of the following conditions:
4.01 Performance. Buyer shall have performed and complied with all
agreements, obligations and conditions required by this Agreement to be so
performed or complied with by it or prior to the time required by the applicable
provisions of this Agreement.
4.02 No Injunction. There shall be no effective injunction, writ,
preliminary restraining order or any order of any nature issued by a court of
competent jurisdiction directing that the transactions provided for herein or
any of them not be consummated as so provided.
V. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
5.01 Survival of Representations. All representations, warranties and
agreements made by any party to this Agreement or pursuant hereto shall survive
the Closing hereunder and any instigation made by or on behalf of any party
hereto.
5.02 Statements as Representations. All statements contained herein or
in any schedule, exhibit, certificate, list, description, financial statement or
record, tax return or other document delivered pursuant hereto or in connection
with the transactions contemplated hereby shall be deemed representations or
warranties within the meaning of Sections 3.01 and 5.01 hereof.
5.03 Agreements to Indemnify. Seller hereby agrees to indemnify, defend
and hold harmless Buyer, its agents and representatives, from and against all
demands, claims, actions, courses of action or liabilities arising out of
operation of the business and accruing on or prior to the Closing. Buyer hereby
agrees to indemnify, defend and hold harmless Seller, his
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agents and representatives, from and against all demands, claims, actions,
causes of action or liabilities arising out of operation of the business and
accruing subsequent of the Closing.
VI. TERMINATION OF AGREEMENT
Termination of Agreement. This Agreement may be terminated at any time
prior to the Closing:
(a) By mutual written agreement of Seller and Buyer:
(b) By Buyer, if there has been a material violation or breach by
Seller of any of the agreements, covenants, conditions, representations or
warranties contained in this Agreement which has not been waived in writing or
if there has been a material failure of satisfaction of a condition to the
obligations of Buyer which has not been waived in writing.
(c) By Seller, if there has been a material failure of
satisfaction of a condition to the obligation of Seller hereunder which has not
been waived in writing.
VII. MISCELLANEOUS
7.01 Further Assurances. From time to time, at Buyer's request and
without further consideration, Seller will execute and deliver to Buyer such
documents and take such other action as Buyer may reasonably request in order to
consummate more effectively the transactions contemplated hereby and to vest in
Buyer good and marketable title to the Business Assets.
7.02 Parties in Interest. This Agreement will be binding upon, inure to
the benefit of, and be enforceable by the respective heirs, successors and
assigns of the parties hereto.
7.03 Entire Agreement; Amendments. This Agreement, the Exhibits, the
Related Instruments and any other writings referred to herein or delivered
pursuant hereto which form a part hereof contain the entire understanding of the
parties with respect to its subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter. This Agreement may be amended only by a written instrument duly executed
by the parties. Any condition to a party's obligations hereunder may be waived
in writing by such party.
7.04 Headings. The Article and Section headings contained in this
Agreement are for reference purposes only and will not affect in any way the
meaning or interpretation of this Agreement.
7.05 Notices. All notices, claims, certificates, requests, demands and
other communications hereunder will be in writing and will be deemed to have
been duly given if delivered or mailed (registered or certified air mail,
postage prepaid, return receipt requested) as follows:
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If to Seller: Xxxx Xxxxxx
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
With a Copy to: Not Applicable
______________________________
______________________________
If to Buyer: Xxxxxxx Xxxxxxx
c/o xXxxx.xxx, Inc.
000 Xxxxx Xxxxx Xxxx
P.O. Box 1138
Williston, VT 05495
With a Copy to: M. Xxxxxxx Xxxx, Esq.
Xxxxxxx, Xxxxxx & Xxxx
000 Xxxx Xxxxxx, Xxxxx 0
Xxxxxxxxxx, XX 00000
or to such other address as the person to whom notice is to be given may have
previously furnished to the other in writing in the manner set forth above,
provided that notice of a change of address shall be deemed given only upon
receipt.
7.06 Law Governing. This Agreement will be governed by, and construed
and enforced in accordance with, the laws of the State of Vermont without regard
to its conflicts of law rules.
7.07 Third Parties. Except s specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or give to any person other than the parties hereto and their heirs,
successors or assigns, any rights or remedies under or by reason of this
Agreement.
7.08 Counterparts. This Agreement may be executed simultaneously in
several counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
7.09 Attorneys' Fees. In the event of any legal action to enforce the
provisions of this Agreement, the prevailing party in such action shall be
entitled to recover its reasonable attorneys' fees and other costs incurred in
such action.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by Buyer and Seller on the date first above written.
SELLER
/s/ /s/ Xxxx X. Xxxxxx
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Xxxx Xxxxxx
BUYER
XxxXXX.xxx, Inc.
/s/ By: /s/ Xxxxxxx X. Xxxxxxx
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Its Duly Authorized Agent
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