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EXHIBIT 2.1
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Asset Purchase Agreement
This Asset Purchase Agreement ("Agreement") is made and entered into
by and among ebuyxpress.com, LLC ("ebuy"), a Virginia limited liability company,
or an existing or new subsidiary entity to be formed by it (and all rights of
ebuy under any definitive agreement entered into after this letter of intent
will be freely assignable by ebuy to such a subsidiary) having its principal
place of business located at Commonwealth Center, 45600 Terminal Drive, Dulles,
VA 20166-4300, NISSCO/Sunline, Inc. ("NISSCO"), a Nevada corporation having its
principal place of business at 1023 Morales St., San Antonio, TX 78205, and
Enviro-Clean of America, Inc. ("EVCL"), a Nevada corporation having its
principal place of business at 1023 Morales St., San Antonio, TX 78205, and is
effective on the date of execution by all parties ("Effective Date"). The
following are statements of the facts giving rise to this Agreement:
(i) NISSCO desires to sell, and ebuy (or at ebuy's option, a
subsidiary of ebuy now in existence or to be formed, and in such event, for all
purposes in this Agreement, the term "ebuy" will include either ebuy or any such
subsidiary) desires to purchase, certain assets of NISSCO used by NISSCO in the
conduct of its business; and
(ii) ebuy and NISSCO desire to set forth in this Agreement their
understandings and agreements with each other for the consideration, terms and
conditions of such purchase.
Therefore, for the mutual promises and other good and valuable
consideration contained herein, the adequacy and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Recitations of Facts. The foregoing statements of the facts giving
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rise to this Agreement are hereby incorporated in this Agreement as substantive
provisions, as though the same were set forth in the numbered paragraphs hereof.
2. Sale of Assets.
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a. Assets. Upon the terms and subject to the conditions set
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forth in this Agreement and upon the representations and warranties made herein
by each of the parties to the other, on the Closing Date (later defined), NISSCO
will sell, grant, convey, assign, transfer and deliver to ebuy, and ebuy will
purchase and acquire from NISSCO, all of the tangible and intangible assets and
properties of NISSCO of every kind, nature and description (wherever located),
as the same exist on the Closing Date, except those assets and properties
specifically excluded pursuant to this Agreement (said assets and properties to
be sold to ebuy being hereinafter collectively referred to as the "Assets"),
free and clear of any liabilities or claims whatsoever, except as otherwise
specifically set
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forth and assumed by ebuy in accordance with this Agreement. Risk of loss to
the Assets by fire, damage, or other casualty will be with NISSCO until Closing.
b. Exclusions. Anything herein contained to the contrary
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notwithstanding, the following assets and properties of NISSCO are specifically
excluded from the Assets and will be retained by NISSCO:
i. All cash on hand, including bank accounts and
temporary cash investments, in excess of:
(1) The cash deducted from cost justified
discount ("CJD") payments previously made or to be made to Members for the first
two (2) calendar quarters of 2000, and intended to be held in escrow by NISSCO
until the 2001 buying conference, at which time NISSCO intends to pay out such
sums as an inducement for Members' attendance at the buying conference, in the
amount of $17,500 (which amount will be transferred by NISSCO to ebuy in the
form of a credit against, or deduction from, the Purchase Price paid by ebuy at
Closing);
(2) The revenue sharing payment liability to
Members for the first two (2) calendar quarters of 2000, in the amount of $7,500
(which amount will be transferred by NISSCO to ebuy in the form of a credit
against, or deduction from, the Purchase Price paid by ebuy at Closing); and
(3) The amount of CJD payments due to Members
and former Members for the second (2nd) calendar quarter of 2000, if any; which
amount shall be included.
ii. Claims for refunds of taxes and other
governmental charges for periods ending on or prior to the Closing Date;
iii. Claims or rights against third parties relating
to liabilities or obligations which are not assumed by ebuy hereunder;
iv. Rights under insurance policies, including
rights to any cancellation value on the Closing Date, except that NISSCO assigns
to ebuy rights under all policies (or makes the proceeds available) with respect
to claims arising out of transactions or events prior to the Closing Date for
which ebuy has agreed to be, or is responsible hereunder; and
v. All accounts receivable, notes receivable, and
open account loans receivable except those relating to or resulting from Vendor
contracts or arrangements or the payment to NISSCO of rebates or refunds based
on Member purchases.
vi. Any claim against any person or former employees
of NISSCO relating to conversion of NISSCO property, including all causes of
action relating to that claim.
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c. Title Documents. At the Closing, NISSCO will execute and
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deliver to ebuy:
i. A Bill of Sale in standard form ("Bill of
Sale"), under the terms of which NISSCO will convey the Assets to ebuy, and
ii. Such other bills of sale, deeds, instruments of
assignment and other appropriate documents as may be reasonably requested by
ebuy in order to carry out the intentions and purposes of this Agreement.
d. Third Parties. Nothing in this Agreement will be construed
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as an attempt or agreement to assign any contract, agreement, license, lease,
sales order, purchase order or other commitment which is nonassignable without
the consent of the other party or parties thereto unless such consent has been
given, and if none are given, then NISSCO warrants that none are required.
3. Purchase Price; Payment.
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a. Purchase Price. Upon the terms and subject to the
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conditions set forth in this Agreement, in reliance upon the representations,
warranties, covenants and agreements of NISSCO contained herein, and in exchange
for the sale, grant, conveyance, assignment, transfer and delivery of the
Assets, ebuy agrees to pay to NISSCO the sum of One Hundred Thousand Dollars
($100,000.00) ("Purchase Price"). NISSCO and ebuy hereby agree that the Purchase
Price will be allocated to and among the Assets as set forth in a separate
document to be signed by the parties at Closing. Each party covenants and agrees
that the transaction contemplated hereby will be reported for tax purposes using
said allocation of the Purchase Price.
b. Payment of Purchase Price. The Purchase Price will be
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payable by ebuy to NISSCO in the firm of wired cleared funds sent directly by
ebuy's bank to EVCL's bank account at EVCL's bank in accordance with the written
instructions of NISSCO given to ebuy at least twenty-four (24) hours prior to
the Closing, and will include the good faith earnest money deposit earlier paid
by ebuy to EVCL or EVCL's counsel in the amount of $25,000.
4. Nonassumption of Liabilities. ebuy is not assuming, and will not be
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deemed to have assumed, any liabilities or obligations of NISSCO of any kind or
nature whatsoever, except as expressly provided in this Agreement, and except
for the AT&T telephone capital lease and the Pitney Bowes postage equipment
lease, which ebuy acknowledges and agrees to assume for all liabilities
commencing with the Closing Date. ebuy and NISSCO agree that without further
action, as of the Closing, all contracts between ebuy and NISSCO for the
management of NISSCO's business are canceled.
5. Closing. The closing of the purchase and sale of the Assets
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("Closing") will take place as promptly as practicable after satisfaction of the
latest to occur, or, if permissible, waiver, of the closing conditions set forth
in this Agreement, at such place, date, and time as NISSCO and ebuy may mutually
agree, and will occur by September 30, 2000. Such date and time of Closing are
herein referred to as the "Closing Date."
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6. Representations; Warranties.
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a. Of NISSCO.
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i. Title to Assets. NISSCO warrants and represents
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to ebuy that (i) NISSCO owns and has good and marketable title to all of the
Assets; (ii) there are no liens or claims against the Assets; (iii) NISSCO is
the rightful owner of the Assets and the business conducted therewith, with full
power and right to transfer, convey and assign them.
ii. Existence; Good Standing; Corporate Authority;
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Compliance With Law. NISSCO and EVCL are corporations duly organized, validly
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existing and in good standing under the laws of Nevada, and have the requisite
power and authority to own, operate, lease and otherwise to hold and operate
their assets and properties and to carry on their business as now being
conducted and as proposed to be conducted, and to perform the terms of this
Agreement and the transactions contemplated hereby. NISSCO and EVCL are duly
qualified to conduct their business, and are in good standing, in each
jurisdiction in which the character of their properties owned, operated or
leased or the nature of their activities makes such qualification necessary. The
transaction contemplated by this Agreement has been properly approved and
authorized by NISSCO and EVCL, and the completion thereof by NISSCO or EVCL does
not violate any law or statute to which they are subject.
iii. Authorization. The execution and delivery of
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this Agreement and all agreements and documents contemplated by NISSCO, and the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all requisite corporate action.
iv. Financial Statements. NISSCO has furnished to
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ebuy (i) a management-prepared, internally generated balance sheet of NISSCO as
of June 30, 2000 ("Balance Sheet"), and (ii) a management-prepared, internally
generated state of operations of NISSCO for the period ending on June 30, 2000,
copies of which are attached hereto as Exhibit A (collectively, "Financial
Statements"). Except as set forth in the Seller's Disclosure Memorandum, the
Financial Statements fully and fairly set forth the financial condition of
NISSCO as of the dates indicated, and the results of its operations for the
periods indicated, in accordance with GAAP consistently applied, except as
otherwise stated therein and in the related reports of independent accountants,
copies of which are attached as part of Exhibit A.
v. Undisclosed Liabilities. NISSCO has no known
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liabilities or obligations whatsoever, either accrued, absolute, contingent or
otherwise, which are not reflected or provided for in the Financial Statements
except (i) those arising after the date of the Financial Statements which are in
the ordinary course of business, in each case in normal amounts and none of
which is materially adverse, and (ii) as and to the extent specifically
described in the Seller's Disclosure Memorandum.
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vi. Absence of Certain Business Changes. Except as
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set forth in the Seller's Disclosure Memorandum, since the date of the Financial
Statements through the Closing Date, NISSCO has not been subject to or incurred
any material adverse business change.
vii. Taxes. NISSCO has duly and timely filed or
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caused to be filed all federal, state, local and foreign tax returns (including,
without limitation, consolidated and/or combined tax returns) required to be
filed by it prior to the Effective Date which relate to NISSCO or with respect
to which NISSCO or the Assets or liable or otherwise in any way subject, and has
paid or, if not yet due, will pay when due, all taxes shown to be due and
payable on such returns (which taxes are all the taxes due and payable under the
laws and regulations pursuant to which such returns are filed). No deficiency in
payment of taxes for any period has been asserted by any taxing body and remains
unsettled at the Effective Date.
viii. Personal Property Condition. All tangible
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personal property included within the Assets is sold as is.
ix. Business Property Rights. No person or
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corporation has made or threatened to make any claims that the operation of the
business of NISSCO is in violation of or infringes any proprietary or trade
rights of any third party.
x. No Breach or Default. Except as set forth in
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the Seller's Disclosure Memorandum, NISSCO is not in default under any contract
to which it is a party or by which it is bound, nor has any event occurred
which, after the giving of notice or the passage of time or both, would
constitute a default under any such contract, and NISSCO has no reason to
believe that the parties to such contracts will not fulfill their obligations
under such contracts in all material respects or are threatened with insolvency.
xi. Litigation. Except as set forth in the Seller's
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Disclosure Memorandum, (i) there are no known actions, suits or proceedings with
respect to NISSCO involving claims by or against NISSCO or the Assets which are
pending or threatened against NISSCO or the Assets, at law or in equity, or
before or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, and (ii) no basis for any
such action, suit or proceeding exists, and there are no orders, judgments,
injunctions or decrees of any court or governmental agency with respect to which
NISSCO or the Assets have been named or to which NISSCO is a party, which apply,
in whole or in part, to the business of NISSCO, or to the Assets or which would
result in any material adverse change in the business or prospects of NISSCO.
xii. Stock. EVCL owns all of the shares of the
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common capital stock of NISSCO. All of such shares are fully paid and
nonassessable and are free and clear of liens, and all of the voting power of
NISSCO's common capital stock resides in the shares owned by EVCL.
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xiii. Names. Immediately after the Closing, EVCL will
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dissolve NISSCO or take all steps required to officially and legally change
NISSCO's corporate name to a name which does not contain "NISSCO" or "Sunline,"
and is not, in the reasonable opinion of ebuy or its counsel, otherwise
confusingly similar to NISSCO's name on the date of this Agreement.
xiv. Vendor Payments Received by NISSCO. After the
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Closing, if NISSCO receives any rebates or other payments from any Vendors
relating to Member purchases, NISSCO will immediately account for and remit the
same to ebuy.
xv. Transition Assistance. For a reasonable period
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after the Closing NISSCO and EVCL will assist ebuy in the orderly transition of
the business from NISSCO to ebuy, and will comply with ebuy's reasonable
requests for joint telephone contact with Vendors and Members, signatures on
correspondence, and other like transition assistance.
xvi. EVCL as Member. So long as ebuy can deliver
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relationships with the vendors or manufacturers and deliver specific products
which EVCL requires and deliver the specific products at competitive pricing,
EVCL, for itself and its subsidiaries, operating divisions, and affiliates, and
will be and remain a distributor member of NISSCO under ebuy ownership, and
Cleaning Ideas Corporation will become and remain a member, and cause their
purchasing to be done through NISSCO owned by ebuy.
b. Of ebuy. Provided that NISSCO transfers the funds to
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ebuy as NISSCO is required to do under the terms of this Agreement, ebuy will
pay the Members the CJDs due to them for purchases made during the second
calendar quarter of 2000. ebuy intends to pay the Members for the second quarter
of 2000 within thirty (30) days after the Closing, and ebuy agrees that any of
such funds not paid to such Members within sixty (60) days after the Closing
will be immediately returned to NISSCO or EVCL at the direction of EVCL, along
with a full report and accounting of funds received, Members paid, date of
payments, and funds remaining to be paid or withheld from Members. ebuy is a
Virginia limited liability company, duly and properly organized and authorized
to complete all transactions contemplated by this Agreement.
7. Bulk Sales Laws. ebuy waives compliance with the applicable bulk
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sales laws of any state in which NISSCO does business and where such laws may
apply to the transaction contemplated by this Agreement.
8. Indemnification.
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a. General Indemnification by NISSCO. NISSCO and EVCL covenant
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and agree to indemnify, defend, protect and hold harmless ebuy and its members,
officers, directors, employees, stockholders, assigns, successors and affiliates
(individually, "ebuy Indemnified Party" and collectively, the "ebuy Indemnified
Parties") from, against and in respect of:
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i. All liabilities, losses, claims, damages,
punitive damages, causes of action, lawsuits, administrative proceedings
(including informal proceedings), investigations, audits, demands, assessments,
adjustments, judgments, settlement payments, deficiencies, penalties, fines,
interest (including interest from the date of such damages), costs and expenses
(including, without limitation, reasonable attorneys' fees and disbursements of
every kind, nature and description) (collectively, "Damages") suffered,
sustained, incurred or paid by ebuy Indemnified Parties in connection with,
resulting from or arising out of, directly or indirectly:
(1) Any breach of any representation or
warranty of NISSCO set forth in this Agreement or any Exhibit or certificate
delivered by or on behalf of NISSCO in connection herewith;
(2) Any nonfulfillment of any covenant or
agreement by NISSCO under this Agreement;
(3) The assertion against any ebuy Indemnified
Party of any Damages relating to claims of third parties arising from the
business, operations or assets of NISSCO prior to the Closing Date or the
actions or omissions of the directors, officers, stockholders, employees or
agents of NISSCO prior to the Closing Date, whether the same are stated as tort,
contract, equity, or other causes of action, and whether arising under common
law or federal statutory or regularly law or the law of any state or local
jurisdiction, other than:
(a) Damages arising from matters
expressly disclosed in the Financial Statements or this Agreement;
(b) Claims for payment of CJDs to
Members for products purchased by Members during or after the third quarter of
2000, so long as NISSCO or EVCL has not improperly withheld from ebuy the Vendor
rebates or payments to which such CJDs relate; and
(c) Damages arising from ebuy's actions
with respect to the management or operations of NISSCO's business prior to the
Closing Date.
(4) Any claim asserted by any Member or any
other person against NISSCO for non payment of CJDs for the second calendar
quarter of 2000 if ebuy has returned to NISSCO the funds therefor under and in
accordance with Paragraph 6b, above; or
(5) Any claim asserted by Thomas Haines or
other former employees of NISSCO based on events occurring, or NISSCO's breach
of agreements entered into by NISSCO, prior to the Closing Date.
b. Limitation on NISSCO's Liability. The maximum
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cumulative amount of NISSCO's or EVCL's liability to ebuy for Damages related to
any of the matters described in Paragraph 8.a.i.(1) and (2) above is limited to
the Purchase Price.
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c. General Indemnification by ebuy. ebuy covenants and agrees
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to indemnify, defend, protect and hold harmless NISSCO and its members,
officers, directors, employees, stockholders, assigns, successors and affiliates
(individually, a "NISSCO Indemnified Party" and collectively, the "NISSCO
Indemnified Parties") from, against and in respect of:
i. All liabilities, losses, claims, damages,
punitive damages, causes of action, lawsuits, administrative proceedings
(including informal proceedings), investigations, audits, demands, assessments,
adjustments, judgments, settlement payments, deficiencies, penalties, fines,
interest (including interest from the date of such damages), costs and expenses
(including, without limitation, reasonable attorneys' fees and disbursements of
every kind, nature and description) (collectively, "Damages") suffered,
sustained, incurred or paid by NISSCO Indemnified Parties in connection with,
resulting from or arising out of, directly or indirectly:
(1) Any breach of any representation or
warranty of ebuy set forth in this Agreement or any Exhibit or certificate
delivered by or on behalf of ebuy in connection herewith; and
(2) Any nonfulfillment of any covenant or
agreement by ebuy under this Agreement.
d. Indemnification Procedures. All claims or demands for
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indemnification under this Paragraph ("Claims") will be asserted and resolved as
follows:
i. In the event that any ebuy Indemnified Party or
NISSCO Indemnified Party (collectively, "Indemnified Party") has a Claim against
any party obligated to provide indemnification pursuant to this Paragraph
(individually and collectively, the "Indemnifying Party") which does not involve
a Claim being asserted against or sought to be collected by a third party, the
Indemnified Party will with reasonable promptness notify the Indemnifying Party
of such Claim, specifying the nature of such Claim and the amount or the
estimated amount thereof to the extent then feasible ("Claim Notice"). If the
Indemnifying Party does not notify the Indemnified Party within thirty days
after the date of delivery of the Claim Notice that the Indemnifying Party
disputes such Claim, with a statement of the basis of such position, the amount
of such Claim will be conclusively deemed a liability of the Indemnifying Party
hereunder. In case an objection is made in writing in accordance with this
Paragraph, the Indemnified Party will respond in a written statement to the
objection within thirty days and, for sixty days thereafter, attempt in good
faith to agree upon the rights of the respective parties with respect to such
Claim (and, if the parties should so agree, a memorandum setting forth such
agreement will be prepared and signed by both parties).
ii. In the event that any Claim for which the
Indemnifying Party would be liable to an Indemnified Party hereunder is asserted
against an Indemnified Party by a third party ("Third Party Claim), the
Indemnified Party will deliver a Claim Notice including a copy of the claim if
such claim was made in writing to
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the Indemnifying Party. The Indemnifying Party will have thirty days from the
date of delivery of the Claim Notice to notify the Indemnified Party (i) whether
the Indemnifying Party disputes liability to the Indemnified Party hereunder
with respect to the Third Party Claim, and, if so, the basis for such a dispute,
and (ii) if such party does not dispute liability, whether or not the
Indemnifying Party desires, at the sole cost and expense of the Indemnifying
Party, to defend against the Third Party Claim, provided that the Indemnified
Party is hereby authorized (but not obligated) to file any motion, answer or
other pleading and to take any other action which the Indemnified Party will
deem necessary or appropriate to protect the Indemnified Party's interests.
iii. In the event that the Indemnifying Party timely
notifies the Indemnified Party that the Indemnifying Party does not dispute the
Indemnifying Parties' obligation to indemnify with respect to the Third Party
Claim, the Indemnifying Party will defend the Indemnified Party against such
Third Party Claim by appropriate proceedings, provided that, unless the
Indemnified Party otherwise agrees in writing, the Indemnifying Party may not
settle any Third Party Claim (in whole or in part) if such settlement does not
include a complete and unconditional release of the Indemnified Party. If the
Indemnified Party desires to participate in, but not control, any such defense
or settlement the Indemnified Party may do so at its sole cost and expense. The
Indemnified Party will cooperate with the Indemnifying Party's defense against
any third-party claim. If the Indemnifying Party elects not to defend the
Indemnified Party against a Third Party Claim, whether by failure of such party
to give the Indemnified Party timely notice as provided herein or otherwise,
then the Indemnified Party, without waiving any rights against such party, may
settle or defend against such Third Party Claim in the Indemnified Party's sole
discretion and the Indemnified Party will be entitled to recover from the
Indemnifying Party the amount of any settlement or judgment and, on an ongoing
basis, all indemnifiable costs and expenses of the Indemnified Party with
respect thereto, including interest from the date such costs Notice Date
expenses were incurred.
iv. If at any time, in the reasonable opinion of the
Indemnified Party, notice of which will be given in writing to the Indemnifying
Party, any Third Party Claim seeks material prospective relief which could have
an adverse effect on the assets, liabilities, financial condition or results of
operations of the Indemnified Party, the Indemnified Party will have the right
to control or assume (as the case may be) the defense of any such Third Party
Claim; provided, however, that the Indemnified Party will not settle any such
Third Party Claim without the prior consent of the Indemnified Party, which
consent will not be unreasonably withheld. If the Indemnified Party elects to
exercise such right the Indemnifying Party will have the right to participate
in, but not control, the defense of such Third Party Claim at the sole cost and
expense of the Indemnifying Party.
v. Subject to the provisions of this Paragraph, the
Indemnified Party's failure to give reasonably. prompt notice as required by
this Paragraph of any actual. threatened or possible claim or demand which may
give rise to a right of indemnification hereunder will not relieve the
Indemnifying Party of any liability which
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the Indemnifying Party may have to the Indemnified Party unless the failure to
give such notice materially and adversely prejudices the Indemnifying Party.
vi. The parties will make appropriate adjustments
for any tax benefits, tax detriments or insurance proceeds in determining the
amount of any indemnification obligation under this Paragraph, provided that the
Indemnified Party will be obligated to make reasonable efforts to continue
pursuing any payment pursuant to the terms of any insurance policy or to assign
its rights under such policy to the Indemnifying Party.
e. Survival of Representations and Warranties. The
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representations of each of NISSCO and ebuy will survive the Closing for a period
of eighteen (18) months.
9. Taxes and Expenses. NISSCO hereby covenants and agrees to assume
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and pay all taxes on the transfer to ebuy of the Assets hereunder, including any
sales, excise, recordation, or transfer tax. Except as otherwise specifically
provided for in this Agreement, NISSCO will be responsible for and will pay all
costs, liabilities and other obligations incurred by NISSCO in connection with
the performance of and compliance with all transactions, agreements and
conditions contained in this Agreement to be performed or complied with by
NISSCO, including legal and accounting fees.
10. Noncompetition.
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a. Prohibited Activities. For a period of two (2) years
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following the Closing Date, NISSCO, EVCL, Richard Kandel ("Kandel") and Randall
K. Davis ("Davis") will not:
i. Engage, as an officer, director, stockholder,
owner, partner, member, joint venturer, or in a managerial capacity, whether as
an employee, independent contractor, consultant, advisor, or sales
representative, in any group purchasing organization selling any MRO products or
services in direct competition with the business sold by NISSCO and operated by
ebuy as it exists on the Closing Date;
ii. Call upon any person who is, at that time, an
employee of ebuy or any subsidiary of ebuy in a managerial capacity for the
purpose or with the intent of enticing such employee away from or out of the
employ of ebuy or any subsidiary of ebuy;
iii. Call upon any person who is at that time, or has
been within one year prior to that time, a Vendor or Member of the business sold
by NISSCO, for the purpose of soliciting or selling products or services in
direct competition with the business sold by NISSCO; or
Notwithstanding the above, the foregoing covenant will not be deemed to prohibit
NISSCO, EVCL, Kandel or Davis from acquiring as an investment not more than one
percent (1.0%) of the outstanding voting capital stock of a competing business
whose stock is traded on a national securities exchange or through the automated
quotation system of a registered securities association.
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b. Damages. Because of the difficulty of measuring economic
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losses to ebuy as a result of the breach of the foregoing covenant, and because
of the immediate and irreparable damage that would be caused to ebuy for which
it would have no other adequate remedy, NISSCO, EVCL, Kandel and Davis agree
that, in the event of a breach of the foregoing covenant by any of them, the
covenant may be enforced against the breaching party by ebuy by, without
limitation, injunctions and restraining orders.
c. Reasonable Restraint. It is agreed by the parties that the
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foregoing covenants in this Paragraph impose a reasonable restraint on NISSCO,
EVCL, Kandel and Davis subject to this Paragraph in light of the activities and
business of ebuy on the date of the execution of this Agreement and the current
and future plans of ebuy (as successors to the business of NISSCO).
d. Severability; Reformation. The covenants in this Paragraph
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are severable and separate, and the unenforceability of any specific covenant
will not affect the provisions of any other covenant. Moreover, in the event
that any court of competent jurisdiction will determine that the scope, time or
territorial restrictions set forth are unreasonable, then it is the intention of
the parties that such restrictions be enforced to the fullest extent which the
court deems reasonable, and the Agreement will thereby be reformed.
e. Independent Covenant. All of the covenants in this
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Paragraph will be construed as an agreement independent of any other provision
of this Agreement and the existence of any claim or cause of action of NISSCO
against ebuy, whether predicated on this Agreement or otherwise, will not
constitute a defense to the enforcement of such covenants. It is specifically
agreed that the period of two (2) years stated above will be computed by
excluding from such computation any time during which any person subject to this
Paragraph is in violation of any provision of this Paragraph and any time during
which there is pending in any court of competent jurisdiction any action
(including any appeal from any judgment) brought by any person, whether or not a
party to this Agreement in which action ebuy seeks to enforce the agreements and
covenants of the persons set forth in this Paragraph or in which any person
contests the validity of such agreements and covenants or their enforceability
or seeks to avoid their performance or enforcement; provided, however, that if
any person is found not to be in violation of the agreements or covenants in any
such activity the period during which the action was pending will not be
excluded from such computation.
f. Materiality. ebuy and NISSCO, EVCL, Kandel, and Davis
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hereby agree that the covenants set forth in this Paragraph are a material and
substantial part of the transactions contemplated by this Agreement, and that no
portion of the Purchase Price will be paid for or allocated to the covenants set
forth in this Paragraph.
11. ebuy's Conditions of Closing. The obligation of ebuy to purchase
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and pay for the Assets and to assume the liabilities and obligations set forth
herein will be subject to and conditioned upon the satisfaction at the Closing
of each of the following conditions which is not waived in writing by ebuy:
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a. All representations and warranties of NISSCO contained in
this Agreement and the Schedules hereto will be true and correct at and as of
the Closing Date, and NISSCO has performed all agreements and covenants and
satisfied all conditions on its part to be performed or satisfied by the Closing
Date pursuant to the terms of this Agreement and ebuy has received a certificate
of an authorized officer of NISSCO dated the Closing Date to such effect.
b. There has been no material adverse change since the date of
the Financial Statements in the financial condition, business or affairs of
NISSCO, and ebuy has received a certificate of the principal financial officer
of NISSCO dated the Closing Date to such effect.
c. NISSCO has delivered to ebuy a Certificate of the Secretary
of State (or other authorized public official) of NISSCO's jurisdiction of
incorporation certifying as of a date reasonably close to the Closing Date that
NISSCO has filed all required reports, paid all required fees and taxes, and is,
as of such date, in good standing and authorized to transact business as a
domestic corporation.
d. ebuy has received from counsel for NISSCO an opinion, dated
the Closing Date, in form and substance reasonably satisfactory to ebuy and its
counsel.
e. NISSCO has obtained all authorizations, consents, waivers
and approvals as may be required in connection with the assignment of those
contracts, agreements, licenses, leases, sales orders, purchase orders and other
commitments to be assigned to ebuy pursuant to this Agreement.
f. NISSCO has executed and delivered the Bill of Sale to ebuy.
g. NISSCO has delivered to ebuy a certificate of its corporate
Secretary certifying (i) Resolutions of its stockholders and Board of Directors
authorizing execution of this Agreement and the execution, performance and
delivery of all agreements. documents and transactions contemplated hereby; and
(ii) The incumbency of its officers executing this Agreement and all agreements
and documents contemplated hereby.
h. Neither any investigation of NISSCO by ebuy, nor the
Schedules attached hereto or any supplement thereto nor any other document
delivered to ebuy as contemplated by this Agreement have revealed any facts or
circumstances which, in the sole and exclusive judgment of ebuy and regardless
of the cause thereof, reflect in an adverse way on NISSCO or its financial
condition, assets, liabilities (absolute, accrued, contingent or otherwise),
reserves, business, operations or prospects.
i. The approval and all consents from third parties and
governmental agencies required to consummate the transactions contemplated
hereby have been obtained.
j. No suit, action, investigation, inquiry or other proceeding
by any governmental body or other person or legal or administrative proceeding
has been
<PAGE>
instituted or threatened which questions the validity or legality of the
transactions contemplated hereby.
k. As of the Closing, there will 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 is unduly burdensome
on ebuy.
12. NISSCO's Conditions of Closing. The obligation of NISSCO to sell,
------------------------------
grant, convey, assign, transfer and deliver the Assets will be subject to and
conditioned upon the satisfaction at the Closing of each of the following
conditions which is not waived in writing by NISSCO:
a. All representations and warranties of ebuy contained in this
Agreement will be true and correct at and as of the Closing Date and ebuy has
performed all agreements and covenants and satisfied all conditions on its part
to be performed or satisfied by the Closing Date pursuant to the terms of this
Agreement, and NISSCO has received a certificate of ebuy dated the Closing Date
to such effect.
b. ebuy has effected payment of the Purchase Price in
accordance with the prior written instructions of NISSCO.
c. ebuy has delivered to NISSCO a certificate of its corporate
Secretary certifying:
i. Resolutions of its Board of Directors
authorizing execution of this Agreement and the execution, performance and
delivery of all agreements, documents and transactions contemplated hereby; and
ii. The incumbency of its officers executing this
Agreement and all agreements and documents contemplated hereby.
d. The approval and all consents from third parties and
governmental agencies required to consummate the transactions contemplated
hereby have been obtained.
e. No suit, action, investigation, inquiry or other proceeding
by any governmental body or other person or legal or administrative proceeding
has been instituted or threatened which questions the validity or legality of
the transactions contemplated hereby.
f. As of the Closing, there will 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 is unduly burdensome
on NISSCO.
<PAGE>
13. General and Miscellaneous.
-------------------------
a. Successors and Assigns. This Agreement and the rights of
----------------------
the parties hereunder may not be assigned (except by operation of law) and will
be binding upon and will inure to the benefit of the parties hereto, and the
successors in interest of the parties hereto.
b. Entire Agreement; Amendment; Waiver. This Agreement sets
-----------------------------------
forth the entire understanding of the parties hereto with respect to the
transactions contemplated hereby. Each of the Schedules to this Agreement is
incorporated herein by this reference and expressly made a part hereof. Any and
all previous agreements and understandings between or among the parties
regarding the subject matter hereof, whether written or oral, are superseded by
this Agreement. This Agreement will not be amended or modified except by a
written instrument duly executed by each of the parties hereto. Any extension or
waiver by any party of any provision hereto will be valid only if set forth in
an instrument in writing signed on behalf of such party.
c. Counterparts. This Agreement may be executed in any number
------------
of counterparts and any party hereto may execute any such counterpart, each of
which when executed and delivered (which deliveries may be made by telefax) will
be deemed to be an original, and all of which counterparts taken together will
constitute but one and the same instrument.
d. Brokers and Agents. ebuy and NISSCO each represent and
------------------
warrant to the other that they have not employed any broker or agent in
connection with the transactions contemplated by this Agreement, and each agrees
to indemnify the other against all losses, damages or expenses relating to or
arising out of claims for fees or commission of any broker or agent employed or
alleged to have been employed by either such party.
e. Specific Performance. Each party hereto acknowledges that
--------------------
the other parties will be irreparably harmed and that there will be no adequate
remedy at law for any violation by any of them of any of the covenants or
agreements contained in this Agreement, including, without limitation, the
noncompetition provisions and the confidentiality obligations. It is accordingly
agreed that, in addition to any other remedies which may be available upon the
breach of any such covenants or agreements, each party hereto has the right to
obtain injunctive relief to restrain a breach or threatened breach of, or
otherwise to obtain specific performance of, the other parties, covenants and
agreements contained in this Agreement.
f. Notices. Any notice, request, claim, demand, waiver,
-------
consent, approval or other communication which is required or permitted
hereunder will be in writing and will he deemed given if delivered personally or
sent by telefax (with confirmation of receipt), by registered or certified mail,
postage prepaid, or by recognized courier service, as follows:
<PAGE>
If to ebuy to:
ebuyxpress.com, LLC
45600 Terminal Drive
Dulles, VA 20166-4300
(Fax: 703-707-2454)
with a required copy to:
Ralph K Polachek, Esq.
25588 Poland Road
Chantilly, VA 20152-1922
.(Fax: 703-649-3253)
If to NISSCO:
NISSCO/Sunline, Inc.
1023 Mondes St.
San Antonio, TX 78205
210-227-9161
(Fax: 210-224-2169)
with a required copy to:
William Alberts, Esq.
Akin, Gump, Straus, Hauer & Feld, LLP
300 Convent St., Suite 1500
San Antonio, TX 78205
210-281-7085
(Fax. 210-224-2035)
or to such other address as the person to whom notice is to be given may have
specified in a notice duly given to the sender as provided herein. Such notice,
request, claim, demand, waiver, consent, approval or other communication will be
deemed to have been given as of the date so delivered, faxed, mailed or
dispatched and, if given by any other means, will be deemed given only when
actually received by the addressees.
g. Governing Law. This Agreement will be governed by and
-------------
construed, interpreted and enforced in accordance with the laws of the
Commonwealth of Virginia, without giving effect to any of the conflicts of laws
provisions thereof that would require the application of the substantive laws of
any other jurisdiction.
h. Severability. If any provision of this Agreement or the
------------
application thereof to any person or circumstances is held invalid or
unenforceable in any jurisdiction, the remainder hereof, and the application of
such provision to such person or circumstances in any other jurisdiction, will
not be affected thereby, and to this end the provisions of this Agreement will
be severable.
<PAGE>
i. Absence of Third Party Beneficiary Rights. No provision of
-----------------------------------------
this Agreement is intended, nor will any provision be interpreted, to provide or
to create any third party beneficiary rights or any other rights of any kind in
any client, customer, affiliate, stockholder, employee or partner of any party
hereto or any other person or entity.
j. Further Representations. Each party to this Agreement
-----------------------
acknowledges and represents that it has been represented by its own legal
counsel in connection with the transactions contemplated by this Agreement, with
the opportunity to seek advice as to its legal rights from such counsel. Each
party further represents that it is being independently advised as to the tax
consequences of the transactions contemplated by this Agreement.
In Witness Whereof, the parties hereto have executed this Agreement as of
the day and year first above written.
[Signatures on next page]
<PAGE>
Signature Page to Asset Purchase Agreement
ebuy:
ebuyxpress.com, LLC
By: Date: September 29, 2000
----------------------------------
Chad L. MacDonald, Member
NISSCO:
NISSCO/Sunline, Inc.
By: Date: September 29, 2000
----------------------------------
Richard Kandel, President
EVCL:
Enviro-Clean of America, Inc.
By: Date: September 29, 2000
----------------------------------
Randall K. Davis, President
And for purposes of acknowledging and agreeing to the provisions of Paragraph
10, and no other purpose:
-------------------------------------
Richard Kandel
-------------------------------------
Randall K. Davis
