STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE by and among Halberd Corporation a Nevada Corporation and Sellmybusinessnow.com, Inc. A Michigan Corporation
Exhibit
10.6
STOCK
PURCHASE AGREEMENT AND SHARE EXCHANGE
by
and among
Halberd
Corporation
a Nevada
Corporation
and
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇,
Inc.
A
Michigan Corporation
effective
as of January 28, 2009
STOCK PURCHASE AGREEMENT AND SHARE
EXCHANGE
THIS STOCK PURCHASE AGREEMENT AND
SHARE EXCHANGE, made and entered into this 28th day of
January, 2009 (the “Agreement”), by and
among Halberd Corporation, a Nevada corporation (“Halberd”) with its
principal executive offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇; ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. (“SellMyBusiness”), an Michigan
Corporation with its principle places of business at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and the shareholders of SellMyBusiness named on
the Annex I of
this Agreement (individually, a “Stockholder”, and
collectively, the “Stockholders”).
Premises
A. This Agreement provides for the
acquisition of SellMyBusiness whereby SellMyBusiness shall become a wholly owned
subsidiary of Halberd and in connection therewith
B. The boards of directors of
SellMyBusiness and Halberd have determined, subject to the terms and conditions
set forth in this Agreement, that the transaction contemplated hereby is
desirable and in the best interests of their stockholders, respectively. This
Agreement is being entered into for the purpose of setting forth the terms and
conditions of the proposed acquisition.
Agreement
NOW, THEREFORE, on the stated premises
and for and in consideration of the mutual covenants and agreements hereinafter
set forth and the mutual benefits to the parties to be derived here from, it is
hereby agreed as follows:
ARTICLE
I
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇,
INC.
As an inducement to and to obtain the
reliance of Halberd, SellMyBusiness represents and warrants as
follows:
Section 1.1 Organization. SellMyBusiness
is a corporation duly organized, validly existing, and in good standing under
the Michigan and has the corporate power and is duly authorized, qualified,
franchised and licensed under all applicable laws, regulations, ordinances and
orders of public authorities to own all of its properties and assets and to
carry on its business in all material respects as it is now being conducted,
including qualification to do business as a foreign corporation in the
jurisdiction in which the character and location of the assets owned by it or
the nature of the business transacted by it requires qualification. Included in
the Schedules attached hereto (hereinafter defined) are complete and correct
copies of the articles of incorporation, bylaws and amendments thereto as in
effect on the date hereof. The execution and delivery of this Agreement does not
and the consummation of the transactions contemplated by this Agreement in
accordance with the terms hereof will not violate any provision of
SellMyBusiness's articles of incorporation or bylaws. SellMyBusiness has full
power, authority and legal right and has taken all action required by law, its
articles of incorporation, bylaws or otherwise to authorize the execution and
delivery of this Agreement.
Section 1.2 Capitalization. The authorized
Capitalization of SellMyBusiness consists of 60,000 Common Shares, with no par
value per share and no Preferred Shares. As of the date hereof, SellMyBusiness
has 12,529 shares of common stock outstanding.
All issued and outstanding shares are
legally issued, fully paid and nonassessable and are not issued in violation of
the preemptive or other rights of any person. SellMyBusiness has no securities,
warrants or options authorized or issued.
Section 1.3 Subsidiaries.
SellMyBusiness has no subsidiaries.
Section 1.4 Tax Matters: Books
and Records.
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(a)
The books and records, financial and others, of SellMyBusiness are in all
material respects complete and correct and have been maintained in
accordance with good business accounting practices;
and
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(b)
SellMyBusiness has no liabilities with respect to the payment of any
country, federal, state, county, or local taxes (including any
deficiencies, interest or
penalties).
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(c)
SellMyBusiness shall remain responsible for all debts incurred by
SellMyBusiness prior to the date of
closing.
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Section 1.5 Litigation and Proceedings.
There are no actions, suits, proceedings or investigations pending or threatened
by or against or affecting SellMyBusiness or its properties, at law or in
equity, before any court or other governmental agency or instrumentality,
domestic or foreign or before any arbitrator of any kind that would have a
material adverse affect on the business, operations, financial condition or
income of SellMyBusiness. SellMyBusiness is not in default with respect to any
judgment, order, writ, injunction, decree, award, rule or regulation of any
court, arbitrator or governmental agency or instrumentality or of any
circumstances which, after reasonable investigation, would result in the
discovery of such a default.
Section 1.6 Material Contract Defaults.
SellMyBusiness is not in default in any material respect under the terms of any
outstanding contract, agreement, lease or other commitment which is material to
the business, operations, properties, assets or condition of SellMyBusiness, and
there is no event of default in any material respect under any such contract,
agreement, lease or other commitment in respect of which SellMyBusiness has not
taken adequate steps to prevent such a default from occurring.
Section 1.7 Information.
The information concerning SellMyBusiness as set forth in this Agreement and in
the attached Schedules is complete and accurate in all material respects and
does not contain any untrue statement of a material fact or omit to state a
material fact required to make the statements made in light of the circumstances
under which they were made, not misleading.
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Section 1.8 Title and Related
Matters. SellMyBusiness has good and marketable title to and is the sole
and exclusive owner of all of its properties, inventory, interest in properties
and assets, real and personal (collectively, the “Assets”) free and clear of all
liens, pledges, charges or encumbrances. SellMyBusiness owns free and clear of
any liens, claims, encumbrances, royalty interests or other restrictions or
limitations of any nature whatsoever and all procedures, techniques, marketing
plans, business plans, methods of management or other information utilized in
connection with SellMyBusiness business. No third party has any right to, and
SellMyBusiness has not received any notice of infringement of or conflict with
asserted rights of other with respect to any product, technology, data, trade
secrets, know-how, proprietary techniques, trademarks, service marks, trade
names or copyrights which, singly on in the aggregate, if the subject of an
unfavorable decision ruling or finding, would have a materially adverse affect
on the business, operations, financial conditions or income of SellMyBusiness or
any material portion of its properties, assets or rights.
Section 1.9 Contracts On
the closing date:
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(a)
There are no material contracts, agreements franchises, license
agreements, or other commitments to which SellMyBusiness is a party or by
which it or any of its properties are
bound:
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(b)
SellMyBusiness is not a party to any contract, agreement, commitment or
instrument or subject to any charter or other corporate restriction or any
judgment, order, writ, injunction, decree or award materially and
adversely affects, or in the future may (as far as SellMyBusiness now
foresee) materially and adversely affect, the business, operations,
properties, assets or conditions of SellMyBusiness;
and
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(c)
SellMyBusiness is not a party to any material oral or written: (I)
contract for the employment of any officer or employee; (ii) profit
sharing, bonus, deferred compensation, stock option, severance pay,
pension benefit or retirement plan, agreement or arrangement covered by
Title IV of the Employee Retirement Income Security Act, as amended; (iii)
agreement, contract or indenture relating to the borrowing of money; (iv)
guaranty of any obligation for the borrowing of money or otherwise,
excluding endorsements made for collection and other guaranties, of
obligations, which, in the aggregate exceeds $1,000; (v) consulting or
other contract with an unexpired term of more than one year or providing
for payments in excess of $10,000 in the aggregate; (vi) collective
bargaining agreement; (vii) contract, agreement or other commitment
involving payments by it for more than $10,000 in the
aggregate.
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Section 1.10 Compliance
With Laws and Regulations. To the best of SellMyBusiness’s knowledge and
belief, SellMyBusiness has complied with all applicable statutes and regulations
of any federal, state or other governmental entity or agency thereof, except to
the extent that noncompliance would not materially and adversely affect the
business, operations, properties, assets or condition of SellMyBusiness or would
not result in SellMyBusiness incurring material liability.
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Section
1.11 Insurance.
All of the insurable properties of SellMyBusiness are insured for
SellMyBusiness’s benefit under valid and enforceable policy or policies
containing substantially equivalent coverage and will be outstanding and in full
force at the Closing Date.
Section
1.12 Approval of
Agreement. The directors of SellMyBusiness have authorized the execution
and delivery of the Agreement by and have approved the transactions contemplated
hereby.
Section 1.13 Material
Transactions or Affiliations. There are no material contracts or
agreements of arrangement between SellMyBusiness and any person, who was at the
time of such contract, agreement or arrangement an officer, director or person
owning of record, or known to beneficially own ten percent (10%) or more of the
issued and outstanding Common Shares of SellMyBusiness and which is to be
performed in whole or in part after the date hereof. SellMyBusiness has no
commitment, whether written or oral, to lend any funds to, borrow any money from
or enter into material transactions with any such affiliated
person.
Section
1.14 No Conflict With Other
Instruments. The execution of this Agreement and the consummation of the
transactions contemplated by this Agreement will not result in the breach of any
term or provision of, or constitute an event of default under, any material
indenture, mortgage, deed of trust or other material contract, agreement or
instrument to which SellMyBusiness is a party or to which any of its properties
or operations are subject.
Section
1.15 Governmental Authorizations.
SellMyBusiness has all licenses, franchises, permits or other governmental
authorizations legally required to enable it to conduct its business in all
material respects as conducted on the date hereof. Except for compliance with
federal and state securities and corporation laws, as hereinafter provided, no
authorization, approval, consent or order of, or registration, declaration or
filing with, any court or other governmental body is required in connection with
the execution and delivery by SellMyBusiness of this Agreement and the
consummation of the transactions contemplated hereby.
ARTICLE
II
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF
HALBERD
CORPORATION
As an inducement to, and to obtain the
reliance of SellMyBusiness, Halberd represents and warrants as
follows:
Section 2.1 Organization. Halberd is a
corporation duly organized, validly existing and in good standing under the laws
of Nevada and has the corporate power and is duly authorized, qualified,
franchised and licensed under all applicable laws, regulations, ordinances and
orders of public authorities to own all of its properties and assets and to
carry on its business in all material respects as it is now being conducted,
including qualification to do business as a foreign entity in the country or
states in which the character and location of the assets owned by it or the
nature of the business transacted by it requires qualification. Included in the
Attached Schedules (as hereinafter defined) are complete and correct copies of
the articles of incorporation, bylaws and amendments thereto as in effect on the
date hereof. The execution and delivery of this Agreement does not and the
consummation of the transactions contemplated by this Agreement in accordance
with the terms hereof will not, violate any provision of Halberd's certificate
of incorporation or bylaws. Halberd has full power, authority and legal right
and has taken all action required by law, its articles of incorporation, bylaws
or otherwise to authorize the execution and delivery of this
Agreement.
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Section 2.2 Capitalization. The authorized
Capitalization of Halberd consists of 120,000,000 Common Shares, $0.001 par
value per share and 10,000,000 Preferred Shares, par value $0.001. As of the
date of the Agreement, there were ______ common shares outstanding.
All issued and outstanding common
shares have been legally issued, fully paid, are nonassessable and not issued in
violation of the preemptive rights of any other person. Halberd has no other
securities, warrants or options authorized or issued.
Section 2.3 Subsidiaries. Halberd has no
subsidiaries.
Section 2.4 Tax Matters; Books
& Records
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(a)
The books and records, financial and others, of Halberd are in all
material respects complete and correct and have been maintained in
accordance with good business accounting practices;
and
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(b)
Halberd has no liabilities with respect to the payment of any country,
federal, state, county, local or other taxes (including any deficiencies,
interest or penalties).
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(c)
Halberd shall remain responsible for all debts incurred prior to the
closing.
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Section 2.5 Information. The information
concerning Halberd as set forth in this Agreement and in the attached Schedules
is complete and accurate in all material respects and does not contain any
untrue statement of a material fact or omit to state a material fact required to
make the statements made, in light of the circumstances under which they were
made, not misleading.
Section 2.6 Title and Related Matters.
Halberd has good and marketable title to and is the sole and exclusive owner of
all of its properties, inventory, interests in properties and assets, real and
personal (collectively, the "Assets") free and clear of all liens, pledges,
charges or encumbrances. Except as set forth in the Schedules attached hereto,
Halberd owns free and clear of any liens, claims, encumbrances, royalty
interests or other restrictions or limitations of any nature whatsoever and all
procedures, techniques, marketing plans, business plans, methods of management
or other information utilized in connection with Halberd's business. Except as
set forth in the attached Schedules, no third party has any right to, and
Halberd has not received any notice of infringement of or conflict with asserted
rights of others with respect to any product, technology, data, trade secrets,
know-how, proprietary techniques, trademarks, service marks, trade names or
copyrights which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a materially adverse affect on the
business, operations, financial conditions or income of Halberd or any material
portion of its properties, assets or rights.
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Section 2.7 Litigation and Proceedings.
There are no actions, suits or proceedings pending or threatened by or against
or affecting Halberd, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign or before any
arbitrator of any kind that would have a material adverse effect on the
business, operations, financial condition, income or business prospects of
Halberd. Halberd does not have any knowledge of any default on its part with
respect to any judgment, order, writ, injunction, decree, award, rule or
regulation of any court, arbitrator or governmental agency or
instrumentality.
Section 2.8 Contracts. On the Closing
Date:
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(a)
There are no material contracts, agreements, franchises, license
agreements, or other commitments to which Halberd is a party or by which
it or any of its properties are
bound;
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(b)
Halberd is not a party to any contract, agreement, commitment or
instrument or subject to any charter or other corporate restriction or any
judgment, order, writ, injunction, decree or award which materially and
adversely affects, or in the future may (as far as Halberd can now
foresee) materially and adversely affect, the business, operations,
properties, assets or conditions of Halberd;
and
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(c)
Halberd is not a party to any material oral or written: (i) contract for
the employment of any officer or employee; (ii) profit sharing, bonus,
deferred compensation, stock option, severance pay, pension, benefit or
retirement plan, agreement or arrangement covered by Title IV of the
Employee Retirement Income Security Act, as amended; (iii) agreement,
contract or indenture relating to the borrowing of money; (iv) guaranty of
any obligation for the borrowing of money or otherwise, excluding
endorsements made for collection and other guaranties of obligations,
which, in the aggregate exceeds $1,000; (v) consulting or other contract
with an unexpired term of more than one year or providing for payments in
excess of $10,000 in the aggregate; (vi) collective bargaining agreement;
(vii) contract, agreement, or other commitment involving payments by it
for more than $10,000 in the
aggregate.
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Section 2.9 No Conflict With Other
Instruments. The execution of this Agreement and the consummation of the
transactions contemplated by this Agreement will not result in the breach of any
term or provision of, or constitute an event of default under, any material
indenture, mortgage, deed of trust or other material contract, agreement or
instrument to which Halberd is a party or to which any of its properties or
operations are subject.
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Section
2.10 Material Contract Defaults. To
the best of Halberd's knowledge and belief, it is not in default in any material
respect under the terms of any outstanding contract, agreement, lease or other
commitment which is material to the business, operations, properties, assets or
condition of Halberd, and there is no event of default in any material respect
under any such contract, agreement, lease or other commitment in respect of
which Halberd has not taken adequate steps to prevent such a default from
occurring.
Section
2.11 Governmental Authorizations.
To the best of Halberd’s knowledge, Halberd has all licenses, franchises,
permits and other governmental authorizations that are legally required to
enable it to conduct its business operations in all material respects as
conducted on the date hereof. Except for compliance with federal and state
securities or corporation laws, no authorization, approval, consent or order of,
or registration, declaration or filing with, any court or other governmental
body is required in connection with the execution and delivery by Halberd of the
transactions contemplated hereby.
Section
2.12 Compliance With Laws and
Regulations. To the best of Halberd's knowledge and belief, Halberd has
complied with all applicable statutes and regulations of any federal, state or
other governmental entity or agency thereof, except to the extent that
noncompliance would not materially and adversely affect the business,
operations, properties, assets or condition of Halberd or would not result in
Halberd's incurring any material liability.
Section
2.13 Insurance. All of the
insurable properties of Halberd are insured for Halberd‘s benefit under valid
and enforceable policy or policies containing substantially equivalent coverage
and will be outstanding and in full force at the Closing Date.
Section
2.14 Approval of Agreement. The
directors of Halberd have authorized the execution and delivery of the Agreement
and have approved the transactions contemplated hereby.
Section
2.15 Material Transactions or
Affiliations. As of the Closing Date, there will exist no material
contract, agreement or arrangement between Halberd and any person who was at the
time of such contract, agreement or arrangement an officer, director or person
owning of record, or known by Halberd to own beneficially, ten percent (10%) or
more of the issued and outstanding Common Shares of Halberd and which is to be
performed in whole or in part after the date hereof except with regard to an
agreement with the Halberd shareholders providing for the distribution of cash
to provide for payment of federal and state taxes on Subchapter S income.
Halberd has no commitment, whether written or oral, to lend any funds to, borrow
any money from or enter into any other material transactions with, any such
affiliated person.
ARTICLE
III
EXCHANGE PROCEDURE AND OTHER
CONSIDERATION
Section 3.1 Share Exchange/Delivery of Halberd
Securities. On the Closing Date, the holders of all of the SellMyBusiness
Common Shares shall deliver to Halberd (i) certificates or other documents
evidencing all of the issued and outstanding SellMyBusiness Common Shares, duly
endorsed in blank or with executed power attached thereto in transferable form.
On the Closing Date, all previously issued and outstanding Common Shares of
SellMyBusiness shall be transferred to Halberd, so that SellMyBusiness shall
become a wholly owned subsidiary of Halberd.
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Section 3.2 Issuance of Halberd
Common Shares. In exchange for Halberd acquiring all of the
SellMyBusiness Common Shares tendered pursuant to Section 3.1, Halberd shall
issue to the SellMyBusiness shareholders a total of 25,058,000 shares of Halberd
common stock according to Schedule A. Such shares are restricted in accordance
with Rule 144 of the 1933 Securities Act.
Section 3.3 Events Prior to Closing. Upon
execution hereof or as soon thereafter as practical, management of
SellMyBusiness and Halberd shall execute, acknowledge and deliver (or shall
cause to be executed, acknowledged and delivered) any and all certificates,
opinions, financial statements, schedules, agreements, resolutions rulings or
other instruments required by this Agreement to be so delivered, together with
such other items as may be reasonably requested by the parties hereto and their
respective legal counsel in order to effectuate or evidence the transactions
contemplated hereby, subject only to the conditions to Closing referenced herein
below.
Section 3.4 Closing. The closing
("Closing") of the transactions contemplated by this Agreement shall be January
28, 2009.
Section 3.5 Termination.
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(a)
This Agreement may be terminated by the board of directors or majority
interest of Shareholders of either SellMyBusiness or Halberd,
respectively, at any time prior to the Closing Date
if:
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(i)
there shall be any action or proceeding before any court or any
governmental body which shall seek to restrain, prohibit or invalidate the
transactions contemplated by this Agreement and which, in the judgment of
such board of directors, made in good faith and based on the advice of its
legal counsel, makes it inadvisable to proceed with the exchange
contemplated by this Agreement; or
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(ii)
any of the transactions contemplated hereby are disapproved by any
regulatory authority whose approval is required to consummate such
transactions.
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In the event of termination pursuant to
this paragraph (a) of this Section 3.5, no obligation, right, or liability shall
arise hereunder and each party shall bear all of the expenses incurred by it in
connection with the negotiation, drafting and execution of this Agreement and
the transactions herein contemplated.
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(b)
This Agreement may be terminated at any time prior to the Closing Date by
action of the board of directors of SellMyBusiness if Halberd shall fail
to comply in any material respect with any of its covenants or agreements
contained in this Agreement or if any of the representations or warranties
of Halberd contained herein shall be inaccurate in any material respect,
which noncompliance or inaccuracy is not cured after 20 days written
notice thereof is given to Halberd. If this Agreement is terminated
pursuant to this paragraph (b) of this Section 3.5, this Agreement shall
be of no further force or effect and no obligation, right or liability
shall arise hereunder.
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(c)
This Agreement may be terminated at any time prior to the Closing Date by
action of the board of directors of Halberd if SellMyBusiness shall fail
to comply in any material respect with any of its covenants or agreements
contained in this Agreement or if any of the representations or warranties
of SellMyBusiness contained herein shall be inaccurate in any material
respect, which noncompliance or inaccuracy is not cured after 20 days
written notice thereof is given to SellMyBusiness. If this Agreement is
terminated pursuant to this paragraph (d) of this Section 3.5, this
Agreement shall be of no further force or effect and no obligation, right
or liability shall arise hereunder.
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In the event of termination pursuant to
paragraph (b) and (c) of this Section 3.5, the breaching party shall bear all of
the expenses incurred by the other party in connection with the negotiation,
drafting and execution of this Agreement and the transactions herein
contemplated.
Section 3.6 Directors of Halberd After
Acquisition. After the Closing Date, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
shall remain the members of the Board of Directors of Halberd. Each director
shall hold office until his successor shall have been duly elected and shall
have qualified or until his earlier death, resignation or removal.
Section 3.7 Officers of Halberd. Upon the
closing, the following persons shall remain the officers of
Halberd:
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NAME
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POSITION
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▇▇▇▇
▇▇▇▇▇▇
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President
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▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Vice
President
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▇▇▇▇▇▇
▇▇▇▇▇▇
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Advisory
Board, Member
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▇▇▇▇▇▇▇▇
▇▇▇▇▇
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Advisory
Board, Chief of Staff
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ARTICLE
IV
SPECIAL
COVENANTS
Section 4.1 Access to Properties and
Records. Prior to closing, SellMyBusiness and Halberd will each afford to
the officers and authorized representatives of the other full access to the
properties, books and records of each other, in order that each may have full
opportunity to make such reasonable investigation as it shall desire to make of
the affairs of the other and each will furnish the other with such additional
financial and operating data and other information as to the business and
properties of each other, as the other shall from time to time reasonably
request.
Section 4.2 Availability of Rule 144.
SellMyBusiness and Halberd shareholders holding “restricted securities,” as that
term is defined in Rule 144 promulgated pursuant to the Securities Act will
remain as “restricted securities”. SellMyBusiness is under no obligation to
register such shares under the Securities Act, or otherwise. The stockholders of
SellMyBusiness and Halberd holding restricted securities of SellMyBusiness and
Halberd as of the date of this Agreement and their respective heirs,
administrators, personal representatives, successors and assigns, are intended
third party beneficiaries of the provisions set forth herein. The covenants set
forth in this Section 4.2 shall survive the Closing and the consummation of the
transactions herein contemplated.
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Section 4.3 Special Covenants and Representations
Regarding the SellMyBusiness Common Shares to be Issued in the Exchange.
The consummation of this Agreement, including the issuance of the SellMyBusiness
Common Shares to the Shareholders of Halberd as contemplated hereby, constitutes
the offer and sale of securities under the Securities Act, and applicable state
statutes. Such transaction shall be consummated in reliance on exemptions from
the registration and prospectus delivery requirements of such statutes which
depend, inter alia, upon the circumstances under which the Halberd Shareholders
acquire such securities.
Section 4.4 Third Party Consents.
SellMyBusiness and Halberd agree to cooperate with each other in order to obtain
any required third party consents to this Agreement and the transactions herein
contemplated.
Section 4.5 Actions Prior and Subsequent to
Closing.
(a) From and after the date of this
Agreement until the Closing Date, except as permitted or contemplated by this
Agreement, SellMyBusiness and Halberd will each use its best efforts
to:
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(i)
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maintain
and keep its properties in states of good repair and condition as at
present, except for depreciation due to ordinary wear and tear and damage
due to casualty;
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(ii)
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maintain
in full force and effect insurance comparable in amount and in scope of
coverage to that now maintained by
it;
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(iii)
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perform
in all material respects all of its obligations under material contracts,
leases and instruments relating to or affecting its assets, properties and
business;
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(b) From and after the date of this Agreement until the Closing Date, SellMyBusiness will not, without the prior consent of Halberd:
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(i)
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except
as otherwise specifically set forth herein, make any change in its
articles of incorporation or
bylaws;
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(ii)
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declare
or pay any dividend on its outstanding Common Shares, except as may
otherwise be required by law, or effect any stock split or otherwise
change its capitalization, except as provided
herein;
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(iii)
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enter
into or amend any employment, severance or agreements or arrangements with
any directors or officers;
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(iv)
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grant,
confer or award any options, warrants, conversion rights or other rights
not existing on the date hereof to acquire any Common Shares;
or
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(v)
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purchase
or redeem any Common Shares.
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Section 4.6 Indemnification.
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(a)
SellMyBusiness hereby agrees to indemnify Halberd, each of the officers,
agents and directors and current shareholders of Halberd as of the Closing
Date against any loss, liability, claim, damage or expense (including, but
not limited to, any and all expense whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened or any claim whatsoever), to which it or they may become
subject to or rising out of or based on any inaccuracy appearing in or
misrepresentation made in this Agreement. The indemnification provided for
in this paragraph shall survive the Closing and consummation of the
transactions contemplated hereby and termination of this Agreement;
and
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(b)
Halberd hereby agrees to indemnify SellMyBusiness, each of the officers,
agents, directors and current shareholders of SellMyBusiness as of the
Closing Date against any loss, liability, claim, damage or expense
(including, but not limited to, any and all expense whatsoever reasonably
incurred in investigating, preparing or defending against any litigation,
commenced or threatened or any claim whatsoever), to which it or they may
become subject arising out of or based on any inaccuracy appearing in or
misrepresentation made in this Agreement. The indemnification provided for
in this paragraph shall survive the Closing and consummation of the
transactions contemplated hereby and termination of this
Agreement.
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ARTICLE
V
CONDITIONS
PRECEDENT TO OBLIGATIONS OF SELLMYBUSINESS
The obligations of SellMyBusiness under
this Agreement are subject to the satisfaction, at or before the Closing Date,
of the following conditions:
Section 5.1 Accuracy of Representations.
The representations and warranties made by SellMyBusiness in this Agreement were
true when made and shall be true at the Closing Date with the same force and
effect as if such representations and warranties were made at the Closing Date
(except for changes therein permitted by this Agreement), and SellMyBusiness
shall have performed or compiled with all covenants and conditions required by
this Agreement to be performed or complied with by SellMyBusiness prior to or at
the Closing. Halberd shall be furnished with a certificate, signed by a duly
authorized officer of SellMyBusiness and dated the Closing Date, to the
foregoing effect.
Section 5.2 Director Approval. The Board
of Directors of SellMyBusiness shall have approved this Agreement and the
transactions contemplated herein.
Section 5.3 Officer's Certificate. Halberd
shall have been furnished with a certificate dated the Closing Date and signed
by a duly authorized officer of SellMyBusiness to the effect that: (a) the
representations and warranties of SellMyBusiness set forth in the Agreement and
in all Exhibits, Schedules and other documents furnished in connection herewith
are in all material respects true and correct as if made on the Effective Date;
(b) SellMyBusiness has performed all covenants, satisfied all conditions, and
complied with all other terms and provisions of this Agreement to be performed,
satisfied or complied with by it as of the Effective Date; (c) since such date
and other than as previously disclosed to Halberd, SellMyBusiness has not
entered into any material transaction other than transactions which are usual
and in the ordinary course if its business; and (d) no litigation, proceeding,
investigation or inquiry is pending or, to the best knowledge of SellMyBusiness,
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement or, to the
extent not disclosed in the SellMyBusiness Schedules, by or against
SellMyBusiness which might result in any material adverse change in any of the
assets, properties, business or operations of SellMyBusiness.
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Section 5.4 No Material Adverse Change.
Prior to the Closing Date, there shall not have occurred any material adverse
change in the financial condition, business or operations of nor shall any event
have occurred which, with the lapse of time or the giving of notice, may
SellMyBusinessuse or create any material adverse change in the financial
condition, business or operations of SellMyBusiness.
Section 5.5 Other Items. Halberd shall
have received such further documents, certificates or instruments relating to
the transactions contemplated hereby as Halberd may reasonably
request.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF HALBERD
The obligations of Halberd under this
Agreement are subject to the satisfaction, at or before the Closing date (unless
otherwise indicated herein), of the following conditions:
Section 6.1 Accuracy of Representations.
The representations and warranties made by Halberd in this Agreement were true
when made and shall be true as of the Closing Date (except for changes therein
permitted by this Agreement) with the same force and effect as if such
representations and warranties were made at and as of the Closing Date, and
Halberd shall have performed and complied with all covenants and conditions
required by this Agreement to be performed or complied with by Halberd prior to
or at the Closing. SellMyBusiness shall have been furnished with a certificate,
signed by a duly authorized executive officer of Halberd and dated the Closing
Date, to the foregoing effect.
Section 6.2 Director
Approval. The Board of Directors of Halberd shall have approved this
Agreement and the transactions contemplated herein.
Section 6.3 Officer's Certificate.
SellMyBusiness shall be furnished with a certificate dated the Closing date and
signed by a duly authorized officer of Halberd to the effect that: (a) the
representations and warranties of Halberd set forth in the Agreement and in all
Exhibits, Schedules and other documents furnished in connection herewith are in
all material respects true and correct as if made on the Effective Date; and (b)
Halberd had performed all covenants, satisfied all conditions, and complied with
all other terms and provisions of the Agreement to be performed, satisfied or
complied with by it as of the Effective Date.
Section 6.4 No Material Adverse Change.
Prior to the Closing Date, there shall not have occurred any material adverse
change in the financial condition, business or operations of nor shall any event
have occurred which, with the lapse of time or the giving of notice, may cause
or create any material adverse change in the financial condition, business or
operations of Halberd.
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ARTICLE
VII
MISCELLANEOUS
Section 7.1 Brokers and Finders. Each
party hereto hereby represents and warrants that it is under no obligation,
express or implied, to pay certain finders in connection with the bringing of
the parties together in the negotiation, execution, or consummation of this
Agreement. The parties each agree to indemnify the other against any claim by
any third person for any commission, brokerage or finder's fee or other payment
with respect to this Agreement or the transactions contemplated hereby based on
any alleged agreement or understanding between the indemnifying party and such
third person, whether express or implied from the actions of the indemnifying
party.
Section 7.2 Law, Forum and Jurisdiction.
This Agreement shall be construed and interpreted in accordance with the laws of
the State of New Jersey, United States of America.
Section 7.3 Notices. Any notices or other
communications required or permitted hereunder shall be sufficiently given if
personally delivered to it or sent by registered mail or certified mail, postage
prepaid, or by prepaid telegram addressed as follows:
If to
SellMyBusiness: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇
If to
Halberd: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇
or such
other addresses as shall be furnished in writing by any party in the manner for
giving notices hereunder, and any such notice or communication shall be deemed
to have been given as of the date so delivered, mailed or
telegraphed.
Section 7.4 Attorneys' Fees. In the event
that any party institutes any action or suit to enforce this Agreement or to
secure relief from any default hereunder or breach hereof, the breaching party
or parties shall reimburse the non-breaching party or parties for all costs,
including reasonable attorneys' fees, incurred in connection therewith and in
enforcing or collecting any judgment rendered therein.
Section 7.5 Confidentiality. Each party
hereto agrees with the other party that, unless and until the transactions
contemplated by this Agreement have been consummated, they and their
representatives will hold in strict confidence all data and information obtained
with respect to another party or any subsidiary thereof from any representative,
officer, director or employee, or from any books or records or from personal
inspection, of such other party, and shall not use such data or information or
disclose the same to others, except: (i) to the extent such data is a matter of
public knowledge or is required by law to be published; and (ii) to the extent
that such data or information must be used or disclosed in order to consummate
the transactions contemplated by this Agreement.
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Section 7.6 Schedules; Knowledge. Each
party is presumed to have full knowledge of all information set forth in the
other party's schedules delivered pursuant to this Agreement.
Section 7.7 Third Party Beneficiaries.
This contract is solely between SellMyBusiness and Halberd and except as
specifically provided, no director, officer, stockholder, employee, agent,
independent contractor or any other person or entity shall be deemed to be a
third party beneficiary of this Agreement.
Section 7.8 Entire Agreement. This
Agreement represents the entire agreement between the parties relating to the
subject matter hereof. This Agreement alone fully and completely expresses the
agreement of the parties relating to the subject matter hereof. There are no
other courses of dealing, understanding, agreements, representations or
warranties, written or oral, except as set forth herein. This Agreement may not
be amended or modified, except by a written agreement signed by all parties
hereto.
Section 7.9 Survival; Termination. The
representations, warranties and covenants of the respective parties shall
survive the Closing Date and the consummation of the transactions herein
contemplated for 18 months.
Section
7.10 Counterparts. This Agreement
may be executed in multiple counterparts, each of which shall be deemed an
original and all of which taken together shall be but a single
instrument.
Section
7.11 Amendment or Waiver. Every
right and remedy provided herein shall be cumulative with every other right and
remedy, whether conferred herein, at law, or in equity, and may be enforced
concurrently herewith, and no waiver by any party of the performance of any
obligation by the other shall be construed as a waiver of the same or any other
default then, theretofore, or thereafter occurring or existing. At any time
prior to the Closing Date, this Agreement may be amended by a writing signed by
all parties hereto, with respect to any of the terms contained herein, and any
term or condition of this Agreement may be waived or the time for performance
hereof may be extended by a writing signed by the party or parties for whose
benefit the provision is intended.
Section
7.12 Expenses. Each party herein
shall bear all of their respective cost s and expenses incurred in connection
with the negotiation of this Agreement and in the consummation of the
transactions provided for herein and the preparation thereof.
Section
7.13 Headings; Context. The
headings of the sections and paragraphs contained in this Agreement are for
convenience of reference only and do not form a part hereof and in no way
modify, interpret or construe the meaning of this Agreement.
Section
7.14 Benefit. This Agreement shall
be binding upon and shall inure only to the benefit of the parties hereto, and
their permitted assigns hereunder. This Agreement shall not be assigned by any
party without the prior written consent of the other party.
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Section
7.15 Public Announcements. Except
as may be required by law, neither party shall make any public announcement or
filing with respect to the transactions provided for herein without the prior
consent of the other party hereto.
Section
7.16 Severability. In the event
that any particular provision or provisions of this Agreement or the other
agreements contained herein shall for any reason hereafter be determined to be
unenforceable, or in violation of any law, governmental order or regulation,
such unenforceability or violation shall not affect the remaining provisions of
such agreements, which shall continue in full force and effect and be binding
upon the respective parties hereto.
Section
7.17 Failure of Conditions;
Termination. In the event of any of the conditions specified in this
Agreement shall not be fulfilled on or before the Closing Date, either of the
parties have the right either to proceed or, upon prompt written notice to the
other, to terminate and rescind this Agreement. In such event, the party that
has failed to fulfill the conditions specified in this Agreement will liable for
the other parties legal fees. The election to proceed shall not affect the right
of such electing party reasonably to require the other party to continue to use
its efforts to fulfill the unmet conditions.
Section
7.18 No Strict Construction. The
language of this Agreement shall be construed as a whole, according to its fair
meaning and intendment, and not strictly for or against either party hereto,
regardless of who drafted or was principally responsible for drafting the
Agreement or terms or conditions hereof.
Section
7.19 Execution Knowing and
Voluntary. In executing this Agreement, the parties severally acknowledge
and represent that each: (a) has fully read and considered this Agreement; (b)
has been or has had the opportunity to be fully apprized by its attorneys of the
legal effect and meaning of this document and all terms and conditions hereof;
(c) is executing this Agreement voluntarily, free from any influence, coercion
or duress of any kind.
Section 7.20 Amendment. At any
time after the Closing Date, this Agreement may be amended by a writing signed
by both parties, with respect to any of the terms contained herein, and any term
or condition of this Agreement may be waived or the time for performance hereof
may be extended by a writing signed by the party or parties for whose benefit
the provision is intended.
Section 7.21 Conflict of
Interest. Both Halberd and SellMyBusiness understand that ▇▇▇▇▇▇ &
▇▇▇▇▇▇, LLP is representing both parties in this transaction which represents a
conflict of interest. Both Halberd and SellMyBusiness have the right to
different counsel due to this conflict of interest. Notwithstanding the above,
both Halberd and SellMyBusiness agree to waive this conflict and have ▇▇▇▇▇▇
& Jaclin, LLP represent both parties in the above-referenced transaction.
Both Halberd and SellMyBusiness agree to hold this law firm harmless from any
and all liabilities that may occur or arise due to this conflict.
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IN WITNESS WHEREOF, the
corporate parties hereto have caused this Agreement to be executed by their
respective officers, hereunto duly authorized, and entered into as of the date
first above written.
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HALBERD
CORPORATION
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇
▇▇▇▇ ▇.
▇▇▇▇▇▇
President
▇▇▇▇
▇▇▇▇▇▇▇▇▇, INC.
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇
▇▇▇▇ ▇.
▇▇▇▇▇▇
President
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