Exhibit 1.0
ASSET PURCHASE AGREEMENT
by and among
MRG California LLC, a Nevada Limited Liability Company
And
Pacel Corp., a Virginia Corporation
Dated February 18, 2003
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is dated February 18, 2003, by and
among Pacel Corp., a Virginia corporation ("Buyer"); and MRG California LLC, a
Nevada limited liability company (Seller").
RECITALS
Seller desires to sell, and Buyer desires to purchase, specific Assets of Seller
for the consideration and on the terms set forth in this Agreement.
The parties, intending to be legally bound, agree as follows:
1. Sale and Transfer of Assets
1.1 ASSETS TO BE SOLD. Upon the terms and subject to the conditions set
forth in this Agreement, at the Closing, Seller shall sell, convey, assign,
transfer and deliver to Buyer, and Buyer shall purchase and acquire from
Seller, free and clear of any encumbrances other than any permitted herein,
all of Seller's right, title and interest in and to Seller's assets as
specifically outlined in the "Seller's Closing Documents" (as defined under
paragraph 2.2) and defined categorically as contracts (the "Assets") with
customers as specifically listed in Seller's Closing Documents and not to
exceed one hundred million dollars ($100,000,000) in aggregate value as
calculated based upon forecasted annual gross revenue proceeds from Assets.
The transfer of the Assets pursuant to this Agreement shall not include the
assumption of any liability related to the Assets unless Buyer expressly
assumes that liability herein.
1.2 EXCLUDED ASSETS: Notwithstanding anything to the contrary contained in
Section 1.1 or elsewhere in this Agreement, any assets of Seller not
specifically listed in the Seller's Closing Documents (collectively, the
"Excluded Assets") are not part of the sale and purchase contemplated
hereunder, are excluded from the Assets and shall remain the property of
Seller after the Closing.
1.3 CONSIDERATION: The consideration for the Assets (the "Purchase Price")
will be calculated as a multiple of three (3) times annualized current net
profit margin as disclosed in Seller's Closing Documents. At the Closing,
the Purchase Price shall be delivered by Buyer to Seller by cash or
cashier's check or Pacel, Corp. free trading stock. In addition, Buyer
shall pay towards the Buyer's broker's fees a fee calculated at five
percent (5%) of the Purchase Price as provided in Paragraph 13.1, below.
2. Closing
2.1 TIME AND PLACE. The purchase and sale provided for in this Agreement
(the "Closing") will take place at the discretion of Buyer and Seller at
multiple times and multiple locations and for discretionary amounts to be
agreed upon two (2) weeks before anticipated Closing Date, but within a
twelve (12) month period of time from the date of this agreement, unless
Buyer and Seller otherwise agree.
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2.2 CLOSING OBLIGATIONS. At the Closing:
(a) Seller shall deliver to Buyer (together referred to as "Seller's
Closing Documents"):
(i) a ▇▇▇▇ of sale for all of the specified Assets in the form of
Exhibit "A" (the "▇▇▇▇ of Sale") executed by Seller;
(ii) an itemized list of specific Assets to be sold to Buyer including
calculation of forecasted annual gross revenue proceeds from Assets;
(iii)all contracts and related material pertaining to specified
Assets;
(iv) a certificate executed by a managing partner of the Seller as to
the accuracy of Seller's representations and warranties as of the date
of this Agreement and as of the Closing, and as to Seller's compliance
with and performance of Seller's covenants and obligations to be
performed or complied with at or before the Closing; and
(b) Buyer shall deliver to Seller (together referred to as "Buyer's
Closing Documents"):
(i) consideration as defined by paragraph 1.3 in the form of cash or
cashier's check or stock certificate;
(ii) a certificate executed by an officer of the Buyer as to the
accuracy of Buyer's representations and warranties as of the date of
this Agreement and as of the Closing, and as to Buyer's compliance
with and performance of Buyer's covenants and obligations to be
performed or complied with at or before the Closing; and
(iii) a certificate of the Secretary of Buyer certifying, all
requisite resolutions or actions of Buyer's board of directors and
shareholders approving the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein and
certifying to the incumbency and signatures of the officers of Buyer
executing this Agreement and any other document relating to the
transactions contemplated herein.
3. Representations and Warranties of Seller. Seller represents and warrants to
Buyer as follows:
3.1 ORGANIZATION AND GOOD STANDING. Seller is a limited liability company
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, with full corporate power and authority to
conduct its business as it is now being conducted, to own or use the
properties and assets that it purports to own or use, and to perform all
its obligations under the Contracts. Seller is duly qualified to do
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business as a foreign corporation and is in good standing under the laws of
each state or other jurisdiction in which either the ownership or use of
the properties owned or used by it, or the nature of the activities
conducted by it, requires such qualification.
3.2 ENFORCEABILITY; AUTHORITY; NO CONFLICT
(a) This Agreement, and all other agreements related hereto, constitute
the legal, valid and binding obligation of Seller, enforceable against
it in accordance with its terms. Seller has the absolute and
unrestricted right, power and authority to execute and deliver this
Agreement and the Seller's Closing Documents and to perform its
obligations under this Agreement and the Seller's Closing Documents,
and such action has been duly authorized by all necessary action by
Seller's managing partners.
(b) Neither the execution and delivery of this Agreement nor the
consummation or performance of any of the transactions contemplated
herein will, directly or indirectly (with or without notice or lapse
of time):
(i) breach any provision of any of the governing documents of Seller
or any resolution adopted by the managing partners of the Seller;
(ii) breach or give any governmental body or other person or entity
the right to challenge any of the transactions contemplated herein or
to exercise any remedy or obtain any relief under any legal
requirement or any order to which Seller or any of the Assets may be
subject;
(iii) contravene, conflict with or result in a violation or breach of
any of the terms or requirements of, or give any governmental body the
right to revoke, withdraw, suspend, cancel, terminate or modify, any
Governmental Authorization that is held by Seller or that otherwise
relates to the Assets or to the business of Seller;
(iv) cause Buyer to become subject to, or to become liable for the
payment of, any tax;
(v) Breach any provision of, or give any person or entity the right to
declare a default or exercise any remedy under, or to accelerate the
maturity or performance of, or payment under, or to cancel, terminate
or modify, any Contract;
(vi) result in the imposition or creation of any encumbrance upon or
with respect to any of the Assets; or
(c) Seller is not required to give any notice to or obtain any consent
from any person or entity in connection with the execution and
delivery of this Agreement or the consummation or performance of any
of the transactions contemplated herein.
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3.3 LEGAL PROCEEDINGS; ORDERS. There is no pending or, to Seller's
knowledge, threatened proceeding (i) by or against Seller or that otherwise
relates to or may affect the business of, or any of the Assets owned or
used by, Seller; or (ii) that challenges, or that may have the effect of
preventing, delaying, making illegal or otherwise interfering with, any of
the transactions contemplated herein. To the knowledge of Seller, other
than the events leading to the incurring of the Assumed Liabilities, no
event has occurred or circumstance exists that is reasonably likely to give
rise to or serve as a basis for the commencement of any such proceeding.
3.4 CONTRACTS; NO DEFAULTS.
(a) As it pertains to specific assets purchased by Buyer, Seller agrees to
deliver to Buyer as part of Seller's Closing Documents accurate and
complete copies, of:
(i) each Contract that involves performance of services by Seller of
an amount or value in excess of one hundred dollars ($100.00);
(ii) each Contract (however named) involving a sharing of profits,
losses, costs or liabilities by Seller with any other person or
entity;
(iii) each Contract containing covenants that in any way purport to
restrict Seller's business activity or limit the freedom of Seller to
engage in any line of business or to compete with any person or
entity;
(iv) each Contract providing for payments to or by any person or
entity based on sales, purchases or profits, other than direct
payments for goods or services;
(b) Seller represents that each Contract identified in Seller's Closing
Documents is in full force and effect and is valid and enforceable in
accordance with its terms. Each Contract identified or required to be
identified is assignable by Seller to Buyer without the consent of any
other Person. To the knowledge of Seller, no Contract identified or
required to be identified will upon completion or performance thereof
have a material adverse affect on the business, assets or condition of
Seller or the business to be conducted by Buyer with the Assets.
(c) There are no renegotiations of, attempts to renegotiate or outstanding
rights to renegotiate any material amounts paid or payable to Seller
under current or completed Contracts with any person or entity having
the contractual or statutory right to demand or require such
renegotiation and no such person or entity has made written demand for
such renegotiation.
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(d) Each Contract relating to the sale or provision of products or
services by Seller has been entered into in the ordinary course of
business of Seller and has been entered into without the commission of
any act alone or in concert with any other person or entity, or any
consideration having been paid or promised, that is or would be in
violation of any legal requirement.
3.5 DISCLOSURE.
(a) No representation or warranty or other statement made by Seller in
this Agreement, or the certificates delivered pursuant to this
Agreement or otherwise made in connection with the transactions
contemplated herein contains any untrue statement or omits to state a
material fact necessary to make any of them, in light of the
circumstances in which it was made, not misleading.
(b) Seller does not have knowledge of any fact that has specific
application to Seller (other than general economic or industry
conditions) and that may materially adversely affect the assets,
business, prospects, financial condition or results of operations of
Seller that has not been set forth in this Agreement or the related
documents.
4. Representations and Warranties of Buyer. Buyer represents and warrants to
Seller as follows:
4.1 ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Virginia, with full corporate power and authority to conduct its business
as it is now conducted.
4.2 AUTHORITY; NO CONFLICT
(a) This Agreement, and the related documents delivered by Buyer at the
Closing, constitute the legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with their terms. Buyer has
the absolute and unrestricted right, power and authority to execute
and deliver this Agreement and the related documents delivered by
Buyer at the Closing and to perform its obligations under such
Agreement and related documents, and such action has been duly
authorized by all necessary corporate action.
(b) Neither the execution and delivery of this Agreement by Buyer nor the
consummation or performance of any of the transactions contemplated
herein by Buyer will give any person or entity the right to prevent,
delay or otherwise interfere with any of the transactions contemplated
herein pursuant to:
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(i) any provision of Buyer's governing documents;
(ii) any resolution adopted by the board of directors or the
shareholders of Buyer;
(iii) any legal requirement or order to which Buyer may be subject; or
(iv) any Contract to which Buyer is a party or by which Buyer may be
bound.
(c) Buyer is not and will not be required to obtain any consent from any
person or entity in connection with the execution and delivery of this
Agreement or the consummation or performance of any of the
transactions contemplated herein.
4.3 CERTAIN PROCEEDINGS. There is no pending proceeding that has been
commenced against Buyer and that challenges, or may have the effect of
preventing, delaying, making illegal or otherwise interfering with, any of
the transactions contemplated herein. To Buyer's knowledge, no such
proceeding has been threatened.
5. Covenants of Seller
5.1 REQUIRED APPROVALS. As promptly as practicable after the Closing,
Seller shall make all filings required by legal requirements to be made by
it in order to consummate the transactions contemplated herein. Seller also
shall cooperate with Buyer and its representatives with respect to all
filings that Buyer elects to make or, pursuant to legal requirements, shall
be required to make in connection with the transactions contemplated
herein.
5.2 BEST EFFORTS. Seller shall use its best efforts to cause the conditions
in Article 7 to be satisfied.
6. Covenants of Buyer
6.1 REQUIRED APPROVALS. As promptly as practicable after the Closing, Buyer
shall make, or cause to be made, all filings required by legal requirements
to be made by it to consummate the transactions contemplated herein. Buyer
also shall cooperate with Seller (a) with respect to all filings Seller
shall be required by legal requirements to make and (b) in obtaining all
consents identified in Schedule 3.2(c), provided, however, that Buyer shall
not be required to dispose of or make any change to its business, expend
any material funds or incur any other burden in order to comply with this
Section 6.1.
6.2 BEST EFFORTS. Buyer shall use its best efforts to cause the conditions
in Article 8 to be satisfied.
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7. Conditions Precedent to Buyer's Obligation to Close. Buyer's obligation to
purchase the Assets and to take the other actions required to be taken by
Buyer at the Closing is subject to the satisfaction, at or prior to the
Closing, of each of the following conditions (any of which may be waived by
Buyer, in whole or in part):
7.1 ACCURACY OF REPRESENTATIONS. All of Seller's representations and
warranties in this Agreement (considered collectively), and each of these
representations and warranties (considered individually), shall be accurate
in all material respects.
7.2 SELLER'S PERFORMANCE. All of the covenants and obligations that Seller
is required to perform or to comply with pursuant to this Agreement at or
prior to the Closing (considered collectively), and each of these covenants
and obligations (considered individually), shall have been duly performed
and complied with in all material respects.
7.3 NO CONFLICT. Neither the consummation nor the performance of any of the
transactions contemplated herein will, directly or indirectly (with or
without notice or lapse of time), contravene or conflict with or result in
a violation of or cause Buyer or any person related to Buyer to suffer any
adverse consequence under (a) any applicable legal requirement or order or
(b) any legal requirement or order that has been published, introduced or
otherwise proposed by or before any governmental body, excluding Bulk Sales
Laws.
7.4 GOVERNMENTAL AUTHORIZATIONS. Buyer shall have received such
governmental authorizations as are necessary or desirable to allow Buyer to
operate the Assets from and after the Closing.
8. Conditions Precedent to Seller's Obligation to Close. Seller's obligation
to sell the Assets and to take the other actions required to be taken by
Seller at the Closing is subject to the satisfaction, at or prior to the
Closing, of each of the following conditions (any of which may be waived by
Seller in whole or in part):
8.1 ACCURACY OF REPRESENTATIONS. All of Buyer's representations and
warranties in this Agreement (considered collectively), and each of these
representations and warranties (considered individually), shall be accurate
in all material respects.
8.2 BUYER'S PERFORMANCE. All of the covenants and obligations that Buyer is
required to perform or to comply with pursuant to this Agreement at or
prior to the Closing (considered collectively), and each of these covenants
and obligations (considered individually), shall have been performed and
complied with in all material respects.
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8.3 NO INJUNCTION. There shall not be in effect any legal requirement or
any injunction or other order that (a) prohibits the consummation of the
transactions contemplated herein and (b) has been adopted or issued, or has
otherwise become effective, since the date of this Agreement.
9. Termination. This Agreement may be terminated by mutual consent of Buyer
and Seller. If this Agreement is terminated, all obligations of the parties
under this Agreement will terminate, except that the obligations of the
parties in Articles 11 and 12 will survive.
10. Additional Covenants
10.1 PAYMENT OF ALL TAXES RESULTING FROM SALE OF ASSETS BY SELLER. Seller
shall pay in a timely manner all taxes resulting from or payable in
connection with the sale of the Assets pursuant to this Agreement,
regardless of the person or entity on whom such taxes are imposed by legal
requirements.
10.2 ASSISTANCE IN PROCEEDINGS. Seller will cooperate with Buyer and its
counsel in the contest or defense of, and make available its personnel and
provide any testimony and access to its books and records in connection
with, any proceeding involving or relating to (a) any transaction
contemplated herein or (b) any action, activity, circumstance, condition,
conduct, event, fact, failure to act, incident, occurrence, plan, practice,
situation, status or transaction on or before the Closing involving Seller
or its business.
10.3 CUSTOMER AND OTHER BUSINESS RELATIONSHIPS. After the Closing, Seller
will cooperate with Buyer in its efforts to continue and maintain for the
benefit of Buyer those business relationships of Seller existing prior to
the Closing and relating to the business to be operated by Buyer after the
Closing, including relationships with lessors, employees, regulatory
authorities, licensors, customers, suppliers and others.
10.4 RETENTION OF AND ACCESS TO RECORDS. After the Closing, Buyer shall
retain for a period consistent with Buyer's record-retention policies and
practices those Records of Seller delivered to Buyer. Buyer also shall
provide Seller and its representatives reasonable access thereto, during
normal business hours and on at least three days' prior written notice, to
enable them to prepare financial statements or tax returns or deal with tax
audits.
10.5 FURTHER ASSURANCES. The parties shall cooperate reasonably with each
other and with their respective representatives in connection with any
steps required to be taken as part of their respective obligations under
this Agreement, and shall (a) furnish upon request to each other such
further information; (b) execute and deliver to each other such other
documents; and (c) do such other acts and things, all as the other party
may reasonably request for the purpose of carrying out the intent of this
Agreement and the transactions contemplated herein.
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11. Indemnification; Remedies
11.1 SURVIVAL. All representations, warranties, covenants and obligations
in this Agreement and any certificate or document delivered pursuant to
this Agreement shall survive the Closing and the consummation of the
transactions contemplated herein. The right to indemnification,
reimbursement or other remedy based upon such representations, warranties,
covenants and obligations shall not be affected by any investigation
conducted with respect to, or any knowledge acquired (or capable of being
acquired) at any time, whether before or after the Closing, with respect to
the accuracy or inaccuracy of or compliance with any such representation,
warranty, covenant or obligation. The waiver of any condition based upon
the accuracy of any representation or warranty, or on the performance of or
compliance with any covenant or obligation, will not affect the right to
indemnification, reimbursement or other remedy based upon such
representations, warranties, covenants and obligations.
11.2 INDEMNIFICATION AND REIMBURSEMENT BY SELLER. Seller will indemnify and
hold harmless Buyer, and its representatives, shareholders, subsidiaries
and related persons (collectively, the "Buyer Indemnified Persons"), and
will reimburse the Buyer Indemnified Persons for any loss, liability,
claim, damage, expense (including costs of investigation and defense and
reasonable attorneys' fees and expenses) or diminution of value, whether or
not involving a third-party claim, arising from or in connection with:
(a) any Breach of any representation or warranty made by Seller in this
Agreement or in any certificate, document, writing or instrument
delivered by Seller pursuant to this Agreement;
(b) any breach of any covenant or obligation of Seller in this Agreement
or in any other certificate, document, writing or instrument delivered
by Seller pursuant to this Agreement;
(c) any Liability arising out of the ownership or operation of the Assets
prior to the Closing other than the Assumed Liabilities;
(d) any brokerage or finder's fees or commissions or similar payments
based upon any agreement or understanding made, or alleged to have
been made, by any person or entity with Seller (or any person acting
on its behalf) in connection with any of the transactions contemplated
herein;
(e) any noncompliance with any Bulk Sales Laws or fraudulent transfer law
in respect of the transactions contemplated herein;
11.3 INDEMNIFICATION AND REIMBURSEMENT BY BUYER. Buyer will indemnify and
hold harmless Seller, and will reimburse Seller, for any Damages arising
from or in connection with:
(a) any breach of any representation or warranty made by Buyer in this
Agreement or in any certificate, document, writing or instrument
delivered by Buyer pursuant to this Agreement;
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(b) any Breach of any covenant or obligation of Buyer in this Agreement or
in any other certificate, document, writing or instrument delivered by
Buyer pursuant to this Agreement;
(c) any claim by any person or entity for brokerage or finder's fees or
commissions or similar payments based upon any agreement or
understanding alleged to have been made by such person or entity with
Buyer (or any Person acting on Buyer's behalf) in connection with any
of the transactions contemplated herein;
(d) any Assumed Liabilities.
11.4 LIMITATIONS ON AMOUNT. Buyer will have liability (for indemnification
or otherwise) with respect to claims under Section 11 only for an amount
equal to the amount of the Purchase Price paid by Buyer as of the date that
the claim for indemnification is made.
11.5 TIME LIMITATIONS. After the Closing, Buyer will have liability (for
indemnification or otherwise) with respect to any breach of (i) a covenant
or obligation to be performed or complied with prior to the Closing (other
than those in Article 12, as to which a claim may be made at any time) or
(ii) a representation or warranty, only if on or before August 30, 2003,
Seller notifies Buyer of a claim specifying the factual basis of the claim
in reasonable detail to the extent then known by Seller.
11.6 INDEMNIFICATION IN CASE OF STRICT LIABILITY OR INDEMNITEE NEGLIGENCE.
THE INDEMNIFICATION PROVISIONS IN THIS ARTICLE 11 SHALL BE ENFORCEABLE
REGARDLESS OF WHETHER THE LIABILITY IS BASED UPON PAST, PRESENT OR FUTURE
ACTS, CLAIMS OR LEGAL REQUIREMENTS (INCLUDING ANY PAST, PRESENT OR FUTURE
BULK SALES LAW, ENVIRONMENTAL LAW, FRAUDULENT TRANSFER ACT, OCCUPATIONAL
SAFETY AND HEALTH LAW OR PRODUCTS LIABILITY, SECURITIES OR OTHER LEGAL
REQUIREMENT) AND REGARDLESS OF WHETHER ANY PERSON (INCLUDING THE PERSON
FROM WHOM INDEMNIFICATION IS SOUGHT) ALLEGES OR PROVES THE SOLE,
CONCURRENT, CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OF THE PERSON SEEKING
INDEMNIFICATION OR THE SOLE OR CONCURRENT STRICT LIABILITY IMPOSED UPON THE
PERSON SEEKING INDEMNIFICATION.
12. Confidentiality
12.1 DEFINITION OF CONFIDENTIAL INFORMATION
(a) As used in this Article 12, the term "Confidential Information"
includes any and all of the following information of Seller or Buyer
that has been or may hereafter be disclosed in any form, whether in
writing, orally, electronically or otherwise, or otherwise made
available by observation, inspection or otherwise by either party or
its representatives ("Disclosing Party") to the other party or its
Representatives ("Receiving Party"):
(i) all information that is a trade secret under applicable trade
secret or other law;
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(ii) all information concerning data, know-how, ideas, past, current
and planned methods, customer lists, current and anticipated customer
requirements, price lists, market studies, business plans, computer
hardware, Software and computer software and database technologies,
systems, structures and architectures;
(iii) all information concerning the business and affairs of the
Disclosing Party (which includes historical and current financial
statements, financial projections and budgets, tax returns and
accountants' materials, historical, current and projected sales,
capital spending budgets and plans, business plans, strategic plans,
marketing and advertising plans, publications, client and customer
lists and files, contracts, the names and backgrounds of key personnel
and personnel training techniques and materials, however documented),
and all information obtained from review of the Disclosing Party's
documents or property or discussions with the Disclosing Party
regardless of the form of the communication; and
(iv) all notes, analyses, compilations, studies, summaries and other
material prepared by the Receiving Party to the extent containing or
based, in whole or in part, upon any information included in the
foregoing.
(b) Any trade secrets of a Disclosing Party shall also be entitled to all
of the protections and benefits under applicable trade secret law and
any other applicable law. If any information that a Disclosing Party
deems to be a trade secret is found by a court of competent
jurisdiction not to be a trade secret for purposes of this Article 12,
such information shall still be considered Confidential Information of
that Disclosing Party for purposes of this Article 12 to the extent
included within the definition. In the case of trade secrets, each of
Buyer and Seller hereby waives any requirement that the other party
submit proof of the economic value of any trade secret or post a bond
or other security.
12.2 RESTRICTED USE OF CONFIDENTIAL INFORMATION
(a) Each Receiving Party acknowledges the confidential and proprietary
nature of the Confidential Information of the Disclosing Party and
agrees that such Confidential Information (i) shall be kept
confidential by the Receiving Party; (ii) shall not be used for any
reason or purpose other than to evaluate and consummate the
Contemplated Transactions; and (iii) without limiting the foregoing,
shall not be disclosed by the Receiving Party to any Person, except in
each case as otherwise expressly permitted by the terms of this
Agreement or with the prior written consent of an authorized
representative of Seller with respect to Confidential Information of
Seller(each, a "Seller Contact") or an authorized representative of
Buyer with respect to Confidential Information of Buyer (each, a
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"Buyer Contact"). Each of Buyer and Seller shall disclose the
Confidential Information of the other party only to its
Representatives who require such material for the purpose of
evaluating the transactions contemplated herein and are informed by
Buyer or Seller, as the case may be, of the obligations of this
Article 12 with respect to such information. Each of Buyer and Seller
shall (iv) enforce the terms of this Article 12 as to its respective
representatives; (v) take such action to the extent necessary to cause
its representatives to comply with the terms and conditions of this
Article 12; and (vi) be responsible and liable for any breach of the
provisions of this Article 12 by it or its representatives.
(b) Unless and until this Agreement is terminated, Seller shall maintain
as confidential any Confidential Information (including for this
purpose any information of Seller of the type referred to in Sections
12.1(a)(i), (ii) and (iii), whether or not disclosed to Buyer) of the
Seller or Shareholders relating to any of the Assets or the Assumed
Liabilities.
(c) From and after the Closing, the provisions of Section 12.2(a) above
shall not apply to or restrict in any manner Buyer's use of any
Confidential Information of the Seller relating to any of the Assets
or the Assumed Liabilities.
12.3 EXCEPTIONS. Sections 12.2(a) and (b) do not apply to that part of the
Confidential Information of a Disclosing Party that a Receiving Party
demonstrates (a) was, is or becomes generally available to the public other
than as a result of a breach of this Article 12 or the Confidentiality
Agreement by the Receiving Party or its representatives; (b) was or is
developed by the Receiving Party independently of and without reference to
any Confidential Information of the Disclosing Party; or (c) was, is or
becomes available to the Receiving Party on a nonconfidential basis from a
Third Party not bound by a confidentiality agreement or any legal,
fiduciary or other obligation restricting disclosure. Seller shall not
disclose any Confidential Information of Seller relating to any of the
Assets or the Assumed Liabilities in reliance on the exceptions in clauses
(b) or (c) above.
12.4 LEGAL PROCEEDINGS. If a Receiving Party becomes compelled in any
proceeding or is requested by a governmental body having regulatory
jurisdiction over the transactions contemplated herein to make any
disclosure that is prohibited or otherwise constrained by this Article 12,
that Receiving Party shall provide the Disclosing Party with prompt notice
of such compulsion or request so that it may seek an appropriate protective
order or other appropriate remedy or waive compliance with the provisions
of this Article 12. In the absence of a protective order or other remedy,
the Receiving Party may disclose that portion (and only that portion) of
the Confidential Information of the Disclosing Party that, based upon
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advice of the Receiving Party's counsel, the Receiving Party is legally
compelled to disclose or that has been requested by such governmental body,
provided, however, that the Receiving Party shall use reasonable efforts to
obtain reliable assurance that confidential treatment will be accorded by
any person or entity to whom any Confidential Information is so disclosed.
The provisions of this Section 12.4 do not apply to any proceedings between
the parties to this Agreement.
12.5 RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION. If this Agreement
is terminated, each Receiving Party shall (a) destroy all Confidential
Information of the Disclosing Party prepared or generated by the Receiving
Party without retaining a copy of any such material; (b) promptly deliver
to the Disclosing Party all other Confidential Information of the
Disclosing Party, together with all copies thereof, in the possession,
custody or control of the Receiving Party or, alternatively, with the
written consent of a Seller Contact or a Buyer Contact (whichever
represents the Disclosing Party) destroy all such Confidential Information;
and (c) certify all such destruction in writing to the Disclosing Party,
provided, however, that the Receiving Party may retain a list that contains
general descriptions of the information it has returned or destroyed to
facilitate the resolution of any controversies after the Disclosing Party's
Confidential Information is returned.
13. General Provisions
13.1 EXPENSES. It is agreed that Buyer will pay an amount equal to five
percent (5%) of the Purchase Price toward the broker's fees incurred by
Buyer for the transactions contemplated by this Agreement; otherwise, each
party to this Agreement will bear its respective fees and expenses incurred
in connection with the preparation, negotiation, execution and performance
of this Agreement and the transactions contemplated herein, including all
fees and expense of its representatives.
13.2 PUBLIC ANNOUNCEMENTS. Any public announcement, press release or
similar publicity with respect to this Agreement or the transactions
contemplated herein will be issued, if at all, at such time and in such
manner as Buyer determines. Buyer agrees that permission to use any
information regarding Seller, including but not limited to corporate name,
place of business, contact information, etc., in any public announcement
requires permission to be granted by Seller in writing prior to public
release.
13.3 NOTICES. All notices, consents, waivers and other communications
required or permitted by this Agreement shall be in writing and shall be
deemed given to a party when (a) delivered to the appropriate address by
hand or by nationally recognized overnight courier service (costs prepaid);
(b) sent by facsimile or e-mail with confirmation of transmission by the
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transmitting equipment; or (c) received or rejected by the addressee, if
sent by certified mail, return receipt requested, in each case to the
following addresses, facsimile numbers or e-mail addresses and marked to
the attention of the person (by name or title) designated below (or to such
other address, facsimile number, e-mail address or person as a party may
designate by notice to the other parties):
Buyer: PACEL Corp.
Attention: ▇.▇.▇▇▇▇▇▇▇,
Chairman of the Board
Fax No. ▇▇▇-▇▇▇-▇▇▇▇
E-mail address: ▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Seller: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax no.: ▇▇▇-▇▇▇-▇▇▇▇
E-mail address: ▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
13.4 JURISDICTION; SERVICE OF PROCESS. Any proceeding arising out of or
relating to this Agreement or any transaction contemplated herein must be
brought in the courts of the Commonwealth of Virginia, Prince ▇▇▇▇▇▇▇
County, and each of the parties irrevocably submits to the exclusive
jurisdiction of such court in any such proceeding, waives any objection it
may now or hereafter have to venue or to convenience of forum, agrees that
all claims in respect of the proceeding shall be heard and determined only
in any such court and agrees not to bring any proceeding arising out of or
relating to this Agreement or any transaction contemplated herein in any
other court.
13.5 ENFORCEMENT OF AGREEMENT. Seller acknowledges and agrees that Buyer
would be irreparably damaged if any of the provisions of this Agreement are
not performed in accordance with their specific terms and that any breach
of this Agreement by Seller could not be adequately compensated in all
cases by monetary damages alone. Accordingly, in addition to any other
right or remedy to which Buyer may be entitled, at law or in equity, it
shall be entitled to enforce any provision of this Agreement by a decree of
specific performance and to temporary, preliminary and permanent injunctive
relief to prevent breaches or threatened breaches of any of the provisions
of this Agreement, without posting any bond or other undertaking.
13.6 WAIVER; REMEDIES CUMULATIVE. The rights and remedies of the parties to
this Agreement are cumulative and not alternative. Neither any failure nor
any delay by any party in exercising any right, power or privilege under
this Agreement or any of the documents referred to in this Agreement will
operate as a waiver of such right, power or privilege, and no single or
partial exercise of any such right, power or privilege will preclude any
other or further exercise of such right, power or privilege or the exercise
of any other right, power or privilege. To the maximum extent permitted by
applicable law, (a) no claim or right arising out of this Agreement or any
15
of the documents referred to in this Agreement can be discharged by one
party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; (b) no waiver that may
be given by a party will be applicable except in the specific instance for
which it is given; and (c) no notice to or demand on one party will be
deemed to be a waiver of any obligation of that party or of the right of
the party giving such notice or demand to take further action without
notice or demand as provided in this Agreement or the documents referred to
in this Agreement.
13.7 ENTIRE AGREEMENT AND MODIFICATION. This Agreement (along with
Exhibits, Schedules and other documents delivered pursuant to this
Agreement) supersedes all prior agreements, whether written or oral,
between the parties with respect to its subject matter (including any
letter of intent and any confidentiality agreement between Buyer and
Seller) and constitutes (along with Exhibits, Schedules and other documents
delivered pursuant to this Agreement) a complete and exclusive statement of
the terms of the agreement between the parties with respect to its subject
matter. This Agreement may not be amended, supplemented, or otherwise
modified except by a written agreement executed by the party to be charged
with the amendment.
13.8 ASSIGNMENTS, SUCCESSORS AND NO THIRD-PARTY RIGHTS. No party may assign
any of its rights or delegate any of its obligations under this Agreement
without the prior written consent of the other parties. This Agreement will
apply to, be binding in all respects upon and inure to the benefit of the
successors and permitted assigns of the parties. Nothing expressed or
referred to in this Agreement will be construed to give any person or
entity other than the parties to this Agreement any legal or equitable
right, remedy or claim under or with respect to this Agreement or any
provision of this Agreement, except such rights as shall inure to a
successor or permitted assignee pursuant to this Section 13.8.
13.9 SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions
of this Agreement will remain in full force and effect. Any provision of
this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or
unenforceable.
13.10 CONSTRUCTION. The headings of Articles and Sections in this Agreement
are provided for convenience only and will not affect its construction or
interpretation. All references to "Articles," and "Sections" refer to the
corresponding Articles and Sections of this Agreement.
13.11 TIME OF ESSENCE. With regard to all dates and time periods set forth
or referred to in this Agreement, time is of the essence.
13.12 GOVERNING LAW. This Agreement will be governed by and construed under
the laws of the Commonwealth of Virginia without regard to
conflicts-of-laws principles that would require the application of any
other law.
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13.13 EXECUTION OF AGREEMENT. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to
constitute one and the same agreement. The exchange of copies of this
Agreement and of signature pages by facsimile transmission shall constitute
effective execution and delivery of this Agreement as to the parties and
may be used in lieu of the original Agreement for all purposes. Signatures
of the parties transmitted by facsimile shall be deemed to be their
original signatures for all purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Buyer: Pacel Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: CEO
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Seller: MRG California LLC
By: /s/ ▇▇▇▇▇▇▇ Chmieleswski
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Its: Managing Partner
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