Exhibit 2.1
ASSET PURCHASE AGREEMENT, dated September 13, 2004 (the "Agreement")
by and among Clixtix, Inc. a New York corporation, ("Seller"), and Aisle Seats,
Inc., a New York corporation ("Buyer").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller has engaged in, among other things, through Maxwell
Group Entertainment, Inc., Seller's wholly owned subsidiary (the "Subsidiary"),
the business of providing entertainment and theatre ticket sales services (the
"Theatre Ticket Business") to its customers (the "Clixtix Customers"); and
WHEREAS, Seller has entered into an agreement of even date herewith,
to purchase all of the issued and outstanding common stock of Medeorex, Inc., a
Delaware corporation (the "Medeorex Acquisition"); and
WHEREAS, in connection with the Medeorex Acquisition, Seller and
Phyllis Maxwell, Seller's former President and Chief Executive Officer, have
entered into a stock purchase agreement of even date herewith, pursuant to which
Mrs. Maxwell has agreed to sell to First Jemini Trust and/or its designees
("First Jemini") 5,086,600 shares of the Seller's issued and outstanding common
stock owned of record by Mrs. Maxwell (the "First Jemini Agreement"); and
WHEREAS, following the consummation of the Medeorex Acquisition,
Seller no longer desires to engage in the Theatre Ticket Business, but rather,
will engage in business in the health-care industry; and
WHEREAS, Seller wishes to sell, and Buyer wishes to purchase, all of
the Seller's assets, properties (real and personal), capabilities, experience
and, rights in and relating to the Theatre Ticket Business on the terms and
subject to the conditions set forth herein; and
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
SECTION 1. PURCHASE AND SALE OF ASSETS.
1.1 Assets to be Transferred. On the terms and subject to the
conditions of this Agreement, and in reliance upon the representations,
warranties and covenants hereinafter set forth except for the Excluded Assets,
as defined below, at the Closing, Seller shall, sell, assign, transfer, convey
and deliver to Buyer, free and clear of any and all Encumbrances (as defined in
Section 7 hereof), except for the Assumed Liabilities (as defined in Section 2.1
hereof), and Buyer shall purchase from Seller, all Seller's right, title and
interest in and to in and to all of Seller's property and assets, real, personal
or mixed, tangible and intangible, of every kind and description, wherever
located, including the following (but excluding the Excluded Assets):
(a) all of the issued and outstanding capital stock of the Subsidiary;
(b) all of Seller's Tangible Personal Property, Accounts Receivable and
Post Closing Receivables;
(c) all cash on hand, bank accounts and certificates of deposit used in
connection with or related to the Theatre Ticket Business;
(d) the Lease;
(e) all Assumed Contracts (as defined in Section 4.5 hereof);
(f) all Authorizations and all pending applications therefor or renewals
thereof, in each case to the extent transferable to Buyer;
(g) the Other Assets;
(h) all of the intangible rights and property of Seller, including
Intellectual Property, going concern value, goodwill, telephone, telecopy and
e-mail addresses, websites and listings;
(i) all insurance benefits, including rights and proceeds, arising from or
relating to the Purchased Assets or the Assumed Liabilities (as defined in
Section 2.1 hereof) prior to the Effective Time (as defined in Section 7
hereof), unless expended in accordance with this Agreement;
(j) all claims of Seller against third parties relating to the Purchased
Assets, whether choate or inchoate, known or unknown, contingent or
non-contingent; and
(k) all rights of Seller relating to deposits and prepaid expenses, claims
for refunds and rights to offset in respect thereof.
Notwithstanding the foregoing, the transfer of the Purchased Assets
pursuant to this Agreement shall not include the assumption of any Liability
related to the Purchased Assets unless Buyer expressly assumes that Liability
pursuant to Section 2.1 hereof.
1.2 Excluded Assets. Buyer and Seller expressly understand and agree
that there shall be excluded from the Purchased Assets those assets owned
directly or indirectly by Medeorex, Inc. and/or otherwise acquired by Seller as
a result of the consummation of the Medeorex Acquisition (collectively, the
"Excluded Assets"). The Excluded Assets shall remain the property of Seller, and
Buyer shall have no liability or other responsibility with respect to the
Excluded Assets.
SECTION 2. ASSUMPTION OF LIABILITIES.
2.1 Liabilities Assumed by Buyer. As consideration for the transfer
of the Purchased Assets by Seller to Buyer, Buyer agrees, upon the terms and
subject to the conditions and limitations set forth herein, to assume, at the
Closing, the Liabilities of Seller set forth on the Interim Balance Sheet (as
defined in Section 4.4 hereof), those contracts to which Clixtix is a party
(other than this Agreement or agreements pertaining to the Related Transactions)
related to the Theatre Ticket Business (the "Assumed Contracts"), and those
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Liabilities of Seller arising out of Seller's activities related to the Theatre
Ticket Business prior to the Closing Date and/or related to the preparation and
negotiation of this Agreement (other than those expenses related hereto and set
forth in Section 2.2 hereof). All of the Liabilities of Seller being assumed by
Buyer under this Agreement are hereinafter collectively referred to as the
"Assumed Liabilities."
2.2 Liabilities Not Assumed by Buyer. Except as expressly provided
in Section 2.1, Buyer shall not purchase or take title to the Purchased Assets
subject to, or in any way agree to pay, perform, discharge or indemnify Seller
against or otherwise be liable or responsible for, any liabilities or
obligations of Seller, whether or not referred to in any Exhibit or Schedule
hereto and whether claims in respect of any such liabilities or obligations
arise or are instituted before, on or after the Closing Date, or directly or
indirectly arising out of or related to(collectively, the "Retained
Liabilities"):
(i) liabilities related to Medeorex and/or the activities of
Medeorex whether arising prior to or after the Closing or the consummation of
Medeorex Acquisition;
(ii) the cost of the preparation and filing of the quarterly report
on Form 10QSB for the period ended June 30, 2004 in the amount of $5,000;
(iii) any liabilities or obligations in respect of or arising in
connection with the breach of any covenant, agreement, representation or
warranty of Seller contained herein or arising from, out of, or in connection
with, the transactions contemplated by this Agreement;
(iv) any liabilities or obligations in respect of or arising in
connection with any default or event of default of Seller which shall have
occurred and is continuing as of the Closing Date;
(v) any liability incurred by Seller as a result of or arising from
its execution of this Agreement and its consummation of the transactions
contemplated hereby;
(vi) those expenses enumerated in Section 6.2 hereof;
(vii) liabilities related to finders fees including, but not limited
to the DB Fees (as defined in Section 5.4);
(viii) liabilities arising after the Closing, except to the extent
that any such Liabilities have been assumed pursuant to Section 2.1 hereof; and
(ix) finders fees, if any, due and payable as a result of the
consummation of the transactions contemplated hereby.
SECTION 3. CLOSING; CLOSING DATE; CLOSING OBLIGATIONS.
3.1. Time and Place of Closing. The consummation of the transactions
contemplated hereby (the "Closing") shall take place at the offices of Sierchio
Greco & Greco, LLP. 720 Fifth Avenue, Suite 1301, New York, New York 10019, New
York City simultaneously with the execution and delivery of this Agreement or
such other time and place
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as Buyer and Seller shall mutually agree in writing. The date upon which the
Closing occurs is hereinafter referred to as the "Closing Date."
3.2 Obligations of Seller at Closing. At the Closing (or prior
thereto, as indicated below), Seller shall deliver to Buyer the following:
(a) Duly executed bills of sale and assignments, substantially in the form
of Exhibit 3.2(a) hereto.
(b) Certificate(s) representing all of the issued and outstanding shares
of capital stock of the Subsidiary duly endorsed for transfer to Buyer.
(c) Copies of resolutions of Seller's shareholders authorizing and
approving the consummation of the transactions contemplated hereby, certified by
Seller's officers as being true and complete, and in full force and effect on
the Closing Date.
(d) Evidence satisfactory to the Buyer that the Related Transactions (as
defined in Section 7, hereof) have been consummated.
(e) The Assignment and Assumption Agreement substantially in the form of
Exhibit 3.3(a) hereto.
(f) The Assignment of Lease substantially in the form Exhibit 3.2(f)
hereto.
(g) All other documents, instruments and writings required to be delivered
by Seller at or prior to the Closing pursuant to this Agreement or otherwise
reasonably required in connection herewith.
3.3 Obligations of Buyer at Closing.
At the Closing (or prior thereto, as indicated below), Buyer shall
deliver to Seller the following:
(a) Payment of purchase price by delivery of the Assignment and Assumption
Agreement substantially in the form of Exhibit 3.3(a) hereto.
(b) All other documents, instruments and writings required to be delivered
by Buyer at or prior to the Closing pursuant to this Agreement or otherwise
reasonably required in connection herewith
3.4 Effectiveness. The consummation of the transactions contemplated
by this Agreement shall be deemed to have occurred immediately after all, but
not less than all, of the matters specified in this Section 3 hereof shall have
occurred or been waived in writing by the relevant party. All documents required
to be delivered at the Closing shall be in form and substance reasonably
satisfactory to Buyer and Seller.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SELLER.
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The Seller represents and warrants to Buyer as follows:
4.1 Due Incorporation and Qualification. To the best of Seller's
knowledge, Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of New York, and has the corporate power
and authority to own, lease and operate its assets and properties, and to carry
on its business as now being conducted.
4.2 Corporate Power of Seller, Consents. Seller has the requisite
corporate power and authority to execute and deliver this Agreement, and to
perform its obligations hereunder. The execution, delivery and performance of
this Agreement by Seller and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of Seller and no other authorization or consent of the Seller or its
shareholders is necessary. This Agreement has been duly and validly executed and
delivered by Seller and constitutes the legal, valid and binding obligation of
Seller, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors rights generally.
4.3 Ownership of the Purchased Assets. Seller has not taken any
action or committed to take in any action which affects its title to the
Purchased Assets or which in any manner whatsoever preclude it from conveying,
good and marketable title to, all of the Purchased Assets to the Buyer, in each
case free and clear of any Encumbrance except for the Assumed Liabilities.
4.4 Financial Statements.
Seller has delivered to Buyer and Buyer acknowledges receipt of: (a)
an audited balance sheet of Seller as at December 31, 2003 (including the notes
thereto, the "Balance Sheet"), and the related audited statements of income,
changes in shareholders' equity and cash flows for the fiscal year then ended,
including in each case the notes thereto, together with the report thereon of
Livingston, Wachetll & Co., LLP, independent certified public accountants
("LWP")as included in the Seller's Annual Report on Form 10KSB, as amended, for
the period ended December 31, 2003; and (b) an unaudited balance sheet of Seller
as at June 30, 2004, (the "Interim Balance Sheet") and the related unaudited
statement[s] of income, changes in shareholders' equity, and cash flows, for the
three months then ended, as included in the Seller's Quarterly Report on Form
10QSB, as amended, for the period ended June 30, 2004, including in each case
the notes thereto certified by Seller's chief financial officer.
4.5 No Broker. Except for the DB Fees (as defined in Section 5.4),
to Seller's knowledge, no broker, finder, agent or similar intermediary has
acted for or on behalf of Seller in connection with this Agreement or the
transactions contemplated hereby, and no broker, finder, agent or similar
intermediary is entitled to any broker's, finder's or similar fee or other
commission in connection therewith based on any contract, arrangement or
understanding with Seller or any action taken by Seller after consummation of
the Medeorex Acquisition.
4.6 Authorization by the Board of Directors and Shareholders . At
least a majority of the members of the Board of Directors of Seller and its
shareholders entitled to
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vote thereon, have approved the transactions contemplated by this Agreement and
have duly authorized Seller to execute and deliver this Agreement, and their
written consent, in lieu of meeting, to the execution and delivery of this
Agreement and the consummation of the transactions contemplated thereby has been
obtained.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer represents and warrants to Seller as follows:
5.1 Due Incorporation and Qualification. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York, and has the corporate power and authority to own, lease and operate
its assets and properties, and to carry on its business as now being conducted.
5.2 Corporate Power of Buyer, Consents. Except for the approval of
Buyer's stockholders with respect to those certain matters contemplated by the
transactions described in this Agreement, Buyer has the requisite corporate
power and authority to execute and deliver this Agreement, and to perform its
obligations hereunder. The execution, delivery and performance of this Agreement
by Buyer and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of Buyer or its
shareholders. This Agreement has been duly and validly executed and delivered by
Buyer and constitutes the legal, valid and binding obligation of Buyer,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors rights generally.
5.3 No Default. Neither the execution or delivery of this Agreement
nor the consummation of the transactions contemplated herein, will conflict with
or result in a breach of, or give rise to a right of termination of, or
accelerate the performance required by, any terms of any indenture, mortgage,
deed of trust, lease, agreement, insurance policy or other instrument to which
Buyer is a party, or constitute a default thereunder, or result in the creation
or imposition of any lien, claim or encumbrance upon any of Buyer's assets, nor
will it violate any of the provisions of Buyer's Certificate of Incorporation or
By-Laws.
5.4 No Broker. Except for commissions or fees in the amount of
$25,000 due Dwain Brannon (the "DB Fees") which fees constitute part of the
Retained Liabilities, no broker, finder, agent or similar intermediary has acted
for or on behalf of Seller in connection with this Agreement or the transactions
contemplated hereby, and no broker, finder, agent or similar intermediary is
entitled to any broker's, finder's or similar fee or other commission in
connection therewith based on any contract, arrangement or understanding with
Seller or any action taken by Seller.
5.5 Authorization by the Board of Directors and Shareholders . At
least a majority of the members of the Board of Directors of Seller and its
shareholders entitled to vote thereon, have approved the transactions
contemplated by this Agreement and have duly authorized Seller to execute and
deliver this Agreement, and their written consent, in lieu of meeting, to the
execution and delivery of this Agreement and the consummation of the
transactions contemplated thereby has been obtained.
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5.6 Financial Statements. Seller has delivered to Buyer and Buyer
acknowledges receipt of: (a) the Balance Sheet, and (b) the "Interim Balance
Sheet."
SECTION 6. Covenants and Agreements of Both Buyer and Seller.
6.1 Further Assurances. Each of the parties shall execute such
agreements, instruments and other documents and perform such further acts as may
be reasonably required or desirable to carry out the provisions hereof and the
transactions contemplated hereby, including using all commerciallly reasonable
efforts: (a) to effect all necessary filings with the SEC as a result of the
consummation of the transactions contemplated hereby; (b) to defend any lawsuits
or other legal proceedings, whether judicial or administrative, whether brought
derivatively or on behalf of third parties (including governmental agencies or
officials), challenging this Agreement or the consummation of the transactions
contemplated hereby, (c) to furnish to each other such information and
assistance as reasonably may be requested in connection with the foregoing, and
(d) to obtain all necessary approvals, consents and assignments and to execute
such other documents and to take any and all such other actions as may be
necessary or reasonably requested by Buyer to vest or more effectively vest in
Buyer, full and marketable title to the Purchased Assets free and clear of any
and all claims, liabilities, obligations, liens, pledges, mortgages,
encumbrances, charges and restrictions of every kind, nature and description.
6.2 Expenses of Sale. Seller and Buyer agree that each of them shall
bear its own direct and indirect expenses incurred in connection with the
negotiation, preparation and performance of this Agreement and, unless otherwise
provided for herein, the consummation and performance of the transactions
contemplated hereby. Without limiting the generality of the preceding sentence,
all transfer, documentary, gross receipts, sales and use taxes, recording and
filing fees, survey costs, title insurance premiums and similar liabilities, if
any, resulting from the sale, assignment, transfer and delivery hereunder of the
Purchased Assets shall be paid for in full by Seller.
6.3 Confidentiality. (a) Each party hereto recognizes and
acknowledges that secret or confidential information, knowledge or data of
various kinds may exist, from time to time, with respect to the business of the
other party. Accordingly, each party covenants that, except with the prior
written permission of the other party, it shall at all times keep confidential
and not divulge, furnish or make accessible to any one, any secret or
confidential information, knowledge or data concerning or relating to the
business or financial affairs of the other party or any affiliate of such party
to which the first party has been or shall become privy by reason of this
Agreement, discussions or negotiations relating to this Agreement, the
arrangement between the parties created hereby, or a party's performance of its
obligations under this Agreement.
(b) Seller shall not directly or indirectly divulge furnish or make
accessible to any one, any secret or confidential information, knowledge or data
concerning or relating to the Theatre Ticket Business or the Purchased Assets.
(c) The provisions of this Section 6.3 shall not apply to any
information, knowledge or data to the extent, and only to the extent, that (i)
the disclosure of the same by a party to a particular third party is reasonably
required in connection with the fulfillment of such
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party's obligations hereunder and such third party shall enter into an agreement
to keep such information, knowledge or data confidential, (ii) such information,
knowledge or data shall become generally known to the public or the trade
through no violation of this Section 6.3 by the disclosing party or (iii) such
information, knowledge or data was known to the party prior to disclosure.
SECTION 7. DEFINITIONS.
The terms defined in this Section, whenever used in this Agreement
(including the Exhibits and Schedules hereto), shall have the following meanings
for all purposes of this Agreement, and such meanings are equally applicable to
both the singular and the plural forms of the terms defined. References to any
gender include, unless the context otherwise requires, references to all
genders, and references to the singular include, unless the context otherwise
requires, references to the plural and vice versa.
"Accounts Receivable"--(a) all trade accounts receivable and other
rights to payment from Clixtix Customers and the full benefit of all security
for such accounts or rights to payment, including all trade accounts receivable
representing amounts receivable in respect services rendered to Clixtix
Customers, (b) all other accounts or notes receivable of Seller pertaining to or
arising out of the Theatre Ticket Business and the full benefit of all security
for such accounts or notes and (c) any claim, remedy or other right related to
any of the foregoing.
"Authorizations" shall mean all licenses, Permits, Environmental
Permits, approvals, authorizations, qualifications, concessions or the like,
issued by any United States federal, state, local or foreign regulatory or
governmental authorities, relating to the Purchased Assets, Assumed Liabilities
or the Theatre Ticket Business.
" Business Day" shall mean any day other than a Saturday, Sunday or
other day on which banks are closed or are authorized to be closed in New York,
New York.
"Claim" means claims, demands, charges, complaints, actions, causes
of action, suits, proceedings, hearings and administrative proceedings.
"Consent" means any consent, approval, authorization, qualification,
waiver or notification of a Governmental Authority or any other Person.
"Contract" shall mean any agreement, contract, Lease, consensual
obligation, promise or undertaking (whether written or oral and whether express
or implied), whether or not legally binding Relating to the Theatre
"Effective Time" shall mean the Closing of the transactions
contemplated by this Agreement.
"Encumbrance" means any charge, Claim, conditional sale agreement,
easement restrictions, liability, pledge, obligation, security interest, or
other title retention agreement, lease, mortgage, security agreement, third
party rights of any kind, including, options and right of first refusal,
restriction, license, covenant, or other lien (including title defects of any
kind
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whatsoever, or the filing of, or agreement to give any financing statement under
the Uniform Commercial Code or statute or law of any jurisdiction of any kind
whatsoever).
"Financial Statements" shall mean the Balance Sheet and the Interim
Balance Sheet.
"Intellectual Property " means all intellectual property owned or
licensed (as licensor or licensee) by Seller in which Seller has a proprietary
interest, including:
(i) Seller's name, all assumed fictional business names, trade names,
registered and unregistered trademarks, service marks and applications;
(ii) all patents, patent applications and inventions and discoveries that
may be patentable;
(iii) all registered and unregistered copyrights in both published works
and unpublished works;
(iv) all know-how, trade secrets, confidential or proprietary information,
customer lists, Software, technical information, data, process technology,
plans, drawings and blue prints; and
(v) all rights in internet web sites, web site content, and internet
domain names presently used by Seller.
"Lease" shall mean the lease pertaining to the premises located at
Suite 1807, 1501 Broadway, New York, New York, or any lease or rental agreement,
license, right to use or installment and conditional sale agreement to which
Seller is a party and any other Seller Contract pertaining to the leasing or use
of any Tangible Personal Property.
"Liability" shall mean with respect to any Person, any liability or
obligation of such Person of any kind, character or description, whether known
or unknown, absolute or contingent, accrued or unaccrued, disputed or
undisputed, liquidated or unliquidated, secured or unsecured, joint or several,
due or to become due, vested or unvested, executory, determined, determinable or
otherwise, and whether or not the same is required to be accrued on the
financial statements of such Person.
"Other Assets" shall mean, but shall not be limited to, all books
and records (or true and correct copies thereof), including all computerized
books and records and all Contracts, files, documents, lists, plats,
correspondence, invoices, forms, customer records, promotional and advertising
materials, technical data, operating records, operating manuals, instructional
documents, employee files (to the extent permitted under applicable law) and
other printed or written materials of Seller; Software; all rights under or
pursuant to all warranties, representations and guarantees, whether express or
implied, made by suppliers, manufacturers, contractors and other third parties
with respect to any of the Purchased Assets; all claims, defenses, causes of
action, chooses in action, rights of recovery, rights of set off, and rights of
recoupment related to the Theatre Ticket Business or the Purchased Assets; all
computers, office supplies and furniture; and all customer lists, supplier
lists, catalogues, sales brochures and other marketing data.
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"Party" shall mean any Person who is a Party to this Agreement.
"Person" shall mean any natural person, corporation, limited or
limited liability partnership, general partnership, joint venture, association,
joint-stock company, limited liability company, company, trust, bank, trust
company, land trust, and any "group" within , trust or other organization,
whether or not a legal entity, and any governmental unit or agency or political
subdivision thereof.
"Post Closing Receivable" shall mean all commissions due with
respect to Theatre tickets sold prior to the Closing Date with scheduled
performances after the Closing Date.
"Related Transactions" shall mean each of the Medeorex Acquisition,
the transactions contemplated by the First Jemini Agreement, and the acquisition
by designees of First Jemini of an additional aggregate of 4,490,266 shares of
Seller's issued and outstanding shares of common stock.
"SEC" shall mean the United States Securities and Exchange
Commission.
"Software" shall mean all computer software and subsequent versions
thereof, including source code, object, executable or binary code, objects,
comments, screens, user interfaces, report formats, templates, menus, buttons
and icons and all files, data, materials, manuals, design notes and other items
and documentation related thereto or associated therewith.
"Tangible Personal Property" shall mean all of Seller's tangible
personal property, of whatever kind and description, other than Excluded Assets,
located at 1501 Broadway, Suite 1807, New York, New York 10036.
SECTION 8. MISCELLANEOUS.
8.1 Severability. If at any time subsequent to the date hereof, any
term or provision of this Agreement shall be determined by a court of competent
jurisdiction to be illegal, void or otherwise unenforceable, such term or
provision shall be of no force and effect, but the illegality or
unenforceability of such term or provision shall have no effect upon and shall
not impair the enforceability of any other term or provision of this Agreement.
8.2 Notices. Any notice or other communication required or which may
be given hereunder shall be in writing and shall be delivered personally, by
private courier, telegraphed or telexed, or sent by certified, registered or
express mail (including, but not limited to, federal express), postage prepaid,
and shall be deemed given when so delivered personally, entrusted to such
private courier, telegraphed or telexed, as follows:
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(i) if to Buyer, to: Aisle Seats, Inc.
1501 Broadway
Suite 1807
New York, New York 10036
Attention: Phyllis Maxwell
Telephone: (212) 768-2383
Facsimile: (212) 768-3036
(ii) if to Seller, to: Clixtix, Inc.
825 Third Avenue
40th Floor
New York, NY 10022
or to such other address as a Party may designate by written notice
given in accordance with this Section 8.2.
8.3 Entire Agreement. This Agreement contains the entire agreement
between Buyer and Seller with respect to the purchase of the Purchased Assets
and the related transactions described herein and supersedes any and all prior
and contemporaneous contracts, arrangements or understandings, written or oral,
with respect thereto.
8.4 Waivers and Amendments. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and conditions hereof
may be waived only by a written instrument signed by Buyer and Seller or, in the
case of a waiver, the party waiving compliance.
8.5 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely within such State.
8.6 No Assignment. This Agreement is not assignable except by
operation of law.
8.7 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
8.8 Exhibits and Schedules. The Exhibits and Schedules to this
Agreement are incorporated herein and made hereby a part of this Agreement as if
set forth in full herein.
8.9 Rules of Construction. This Agreement shall be construed in
accordance with the following rules of construction:
(a) Calculation of Time Period. When calculating the period of time
before which, within which or following which any act is to be done or step
taken pursuant to this Agreement, the date that is the reference date in
calculating such period shall be excluded. If the
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last day of such period is a non-Business Day, the period in question shall end
on the next succeeding Business Day.
(b) Commercially Reasonable Best Efforts. The obligation of a party
to use commercially reasonable best efforts to accomplish an objective does not
require an unreasonable expenditure of funds or the incurrence of an
unreasonable liability on the part of the obligated party.
(c) Gender and Number. Any reference in this Agreement to gender
shall include all genders, and words imparting the singular number only shall
include the plural and vice versa.
(d) Headings. The division of this Agreement into Articles, Sections
and other subDivisions and the insertion of headings are for convenience of
reference only and shall not affect or be utilized in construing or interpreting
this Agreement. All references in this Agreement to any "Section" are to the
corresponding Section of this Agreement unless otherwise specified.
(e) Herein. The words such as "herein," "hereinafter," "hereof," and
"hereunder" refer to this Agreement as a whole and not merely to a subdivision
in which such words appear unless the context otherwise requires.
(f) Including. The word "including" or any variation thereof means
"including, without limitation" and shall not be construed to limit any general
statement that it follows to the specific or similar items or matters
immediately following it.
(g) Knowledge. The word "knowledge" or any similar term shall mean
the actual knowledge of any of the senior management of Seller.
(h) Schedules and Exhibits. Any matter disclosed by Seller on any
one Schedule shall be deemed disclosed for purposes of all other Schedules to
the extent that the relevance of such matters to other Sections of this
Agreement or other applicable Schedules is reasonably apparent to a reader.
IN WITNESS WHEREOF, the parties have duly executed and delivered
this agreement on the date first above written.
Aisle Seats, Inc., Buyer
By: /s/ Phyllis Maxwell
--------------------------------
Name: Phyllis Maxwell
Title: President
Clixtix, Inc., Seller
By: /s/ Jack Kachkar
--------------------------------
Name: Jack Kachkar
Title: Chairman
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EXHIBIT 3.2(a)
To The
Asset Purchase Agreement dated September 13, 2004
By and Between
Clixtix, Inc. and Aisle Seats, Inc.
Bill of Sale and Assignment of Contract Rights
1. Sale and Transfer of Assets and Contract Rights. For good and valuable
consideration, the receipt, adequacy and legal sufficiency of which are hereby
acknowledged, and as contemplated by Section 3.2(a) of that certain Asset
Purchase Agreement dated as of August 19, 2004 (the "Purchase Agreement"), to
which Clixtix, Inc. a New York corporation (the "Seller"), and Aisle Seats,
Inc., a New York corporation (the "Buyer"), are parties, Seller hereby sells,
transfers, assigns, conveys, grants and delivers to Buyer, effective as of 12:01
a.m. (New York time) on September 13, 2004(the "Effective Time"), all of
Seller's right, title and interest in and to all of the assets (the "Assets")
and contract rights ("Rights") described on Schedule A hereto (collectively, the
Assets and the Rights being referred to as the "Transferred Items").
2. Further Actions. Seller covenants and agrees to warrant and defend the sale,
transfer, assignment, conveyance, grant and delivery of the Transferred Items
hereby made against all persons whomsoever, to take all steps reasonably
necessary to establish the record of Buyer's title to the Transferred Items and,
at the request of Buyer, to execute and deliver further instruments of transfer
and assignment and take such other action as Buyer may reasonably request to
more effectively transfer and assign to and vest in Buyer each of the
Transferred Items, all at the sole cost and expense of Seller.
3. Power of Attorney. Without limiting Section 2 hereof, Seller hereby
constitutes and appoints Buyer the true and lawful agent and attorney in fact of
Seller, with full power of substitution and resubstitution, in whole or in part,
in the name and stead of Seller but on behalf and for the benefit of Buyer and
its successors and assigns, from time to time:
(a) to demand, receive and collect any and all of the Transferred Items
and to give receipts and releases for and with respect to the same, or any part
thereof;
(b) to institute and prosecute, in the name of Seller or otherwise, any
and all proceedings at law, in equity or otherwise, that Buyer or its successors
and assigns may deem proper in order to collect or reduce to possession any of
the Transferred Items and in order to collect or enforce any claim or right of
any kind hereby assigned or transferred, or intended so to be; and
(c) to do all things legally permissible, required or reasonably deemed by
Buyer to be required to recover and collect the Transferred Items and to use
Seller's name in such manner as Buyer may reasonably deem necessary for the
collection and recovery of same,
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Seller hereby declaring that the foregoing powers are coupled with an
interest and are and shall be irrevocable by Seller.
4. Terms of the Purchase Agreement. The terms of the Purchase Agreement,
including but not limited to Seller's representations, warranties, covenants,
agreements and indemnities relating to the Transferred Items, are incorporated
herein by this reference. Seller acknowledges and agrees that the
representations, warranties, covenants, agreements and indemnities contained in
the Purchase Agreement shall not be superseded hereby but shall remain in full
force and effect to the full extent provided therein. In the event of any
conflict or inconsistency between the terms of the Purchase Agreement and the
terms hereof, the terms of the Purchase Agreement shall govern.
5. Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the State of New York applicable to agreements made and to be
performed entirely within such State.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale and Assignment
of Contract Rights as of September 13, 2004
Clixtix, Inc., a New York corporation
By: /s/ Jack Kachkar
--------------------------------
Jack Kachkar
Its: Chairman
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SCHEDULE A
To The
Bill of Sale and Assignment of Contract Rights
All of Seller's right, title and interest in and to the following assets, except
to the extent included in the Excluded Assets (as defined in the Purchase
Agreement):
(a) all of the issued and outstanding capital stock of the Subsidiary;
(b) all of Seller's Tangible Personal Property, Accounts Receivable and
Post Closing Receivables;
(c) all cash on hand, bank accounts and certificates of deposit used in
connection with or related to the Theatre Ticket Business;
(d) the Lease (as defined in the Purchase Agreement);
(e) all Assumed Contracts (as defined in the Purchase Agreement);
(f) all Authorizations and all pending applications therefor or renewals
thereof, in each case to the extent transferable to Buyer;
(g) the Other Assets(as defined in the Purchase Agreement);
(h) all of the intangible rights and property of Seller, including
Intellectual Property, going concern value, goodwill, telephone, telecopy and
e-mail addresses, websites and listings;
(i) all insurance benefits, including rights and proceeds, arising from or
relating to the Purchased Assets or the Assumed Liabilities (as defined in the
Purchase Agreement) prior to the Effective Time (as defined in the Purchase
Agreement), unless expended in accordance with this Agreement;
(j) all claims of Seller against third parties relating to the Purchased
Assets, whether choate or inchoate, known or unknown, contingent or
non-contingent; and
(k) all rights of Seller relating to deposits and prepaid expenses, claims
for refunds and rights to offset in respect thereof.
Notwithstanding the foregoing, the transfer of the Purchased Assets
pursuant to this Agreement shall not include the assumption of any Liability
related to the Purchased Assets unless Buyer expressly assumes that Liability
pursuant to Section 2.1 of the Purchase Agreement.
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Exhibit 3.2(j)
Assignment of Lease
ASSIGNMENT AND ASSUMPTION OF LEASE
This Assignment and Assumption of Lease is made as of September 13, 2004,
by and between CLIXTIX, INC., A New York corporation (the "Assignor") and AISLE
SEATS, INC., a New York corporation ("Assignee").
R E C I T A L S:
Assignor is the lessee under those certain Lease Agreements described on
Exhibit A attached hereto, a copy of which have been previously delivered to
Assignee (the "Lease"). Assignor and Assignee are parties to that certain Asset
Purchase Agreement dated of even date herewith (the "Purchase Agreement") which
Purchase Agreement requires Assignor to assign and Assignee to assume all of the
Assignor's rights, as lessee, under the Lease, first arising from and after the
date hereof.
For good and valuable consideration, Assignor desires to assign all of its
rights and interests with respect to the Leases to Assignee and Assignee desires
to accept such assignment and assume all rights and obligations of Assignor
under the Leases, first arising from and after the date hereof.
In consideration of the foregoing premises and the following covenants and
agreements, and intending to be legally bound, the parties hereby agree as
follows:
1. Assignment. Commencing on the date hereof, Assignor hereby assigns and
transfers all of its right, title, and interest in and under the Leases to
Assignee, its successors and assigns.
2. Assumption. Commencing on the date hereof, Assignee hereby assumes, and
shall continue to assume, the performance of all the terms, covenants, and
conditions of each of the Leases to be performed by Assignor as lessee under
such Lease, first arising from and after the date hereof, and for the remaining
term specified in each such Lease.
3. Proration. The parties hereby agree that any adjustments for rent,
prepayments, security deposits, and other amounts due and owing under the terms
of the Leases have been agreed upon and adjusted as between Assignor and
Assignee as of this date and that no further payments by either party to the
other are required.
[the next page is the signature page.]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Assignment and Assumption of Lease as of the date first above written.
CLIXTIX, INC.
By: /s/ Jack Kachkar
-----------------------------------
Jack Kachkar
Chairman
AISLE SEATS, INC.
By: /s/ Phyllis Maxwell
-----------------------------------
Phyllis Maxwell
President
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Exhibit A
The lease dated as of April 18, 1989 between 1499-1501 Broadway Company, c/o
Newmark & Company Real Estate, Inc. and Phyllis Maxwell's Groups, Inc. (now,
Clixtix, Inc.) pertaining to the premises located at Suite 1807, 1501 Broadway,
New York, New York, as the same has from time to time been amended and extended
and as assigned to Maxwell Group Entertainment, Inc. by notice dated August 16,
2001.
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EXHIBIT 3.3 (a)
To The
Asset Purchase Agreement dated September 13, 2004
By and Between
Clixtix, Inc. and Aisle Seats, Inc.
Assignment and Assumption Agreement
This Assignment and Assumption Agreement (the "Assignment and Assumption
Agreement") is made and entered into as of September 13, 2004, by and between
Clixtix, Inc., a New York corporation ("Assignor"), and Aisle Seats, Inc., a New
York corporation ("Assignee").
WHEREAS, Assignor and Assignee are parties to that certain Asset Purchase
Agreement dated as of September 13, 2004 (the "Purchase Agreement"), pursuant to
which Assignee has purchased certain assets of Assignor; and
WHEREAS, pursuant to the Purchase Agreement, Assignor has agreed to assign
certain rights and agreements to Assignee, and Assignee has agreed to assume
certain obligations of Assignor, as set forth herein, and this Assignment and
Assumption Agreement is contemplated by Article 3 of the Purchase Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt, adequacy and legal sufficiency of which are hereby acknowledged, the
parties do hereby agree as follows:
1. Capitalized Terms. Capitalized terms used but not defined herein shall have
the meanings for such terms that are set forth in the Purchase Agreement.
2. Assignment and Assumption. (a) Effective as of 12:01 a.m. (New York time) on
September 13, 2004(the "Effective Time"), Assignor hereby assigns, sells,
transfers and sets over (collectively, the "Assignment") to Assignee all of
Assignor's right, title, benefit, privileges and interest in and to, and all of
Assignor's burdens, obligations and liabilities in connection with, the
Liabilities of Seller set forth on the Interim Balance Sheet (as defined in
Section 4.4 of the Purchase Agreement), the Assumed Contracts, and those
Liabilities of Seller arising out of Seller's activities related to the Theatre
Ticket Business prior to the Closing Date and/or related to the preparation and
negotiation of this Purchase Agreement (other than those expenses related hereto
and set forth in Section 2.2 of the Purchase Agreement). All of the Liabilities
of Seller being assumed by Buyer under this Agreement are hereinafter
collectively referred to as the "Assumed Liabilities."
(b) Assignee hereby accepts the Assignment and assumes and agrees to observe and
perform all of the duties, obligations, terms, provisions and covenants, and to
pay and discharge all of the liabilities of Assignor to be observed, performed,
paid or discharged from and after the Closing, in connection with the Assumed
Liabilities.
(c) Assignee assumes no Retained Liabilities, including, but not limited to:
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(i) liabilities related to Medeorex and/or the activities of
Medeorex whether arising prior to or after the Closing or the consummation of
Medeorex Acquisition;
(ii) the cost of the preparation and filing of the quarterly report
on Form 10QSB for the period ended June 30, 2004 in the amount of $5,000;
(iii) any liabilities or obligations in respect of or arising in
connection with the breach of any covenant, agreement, representation or
warranty of Seller contained herein or arising from, out of, or in connection
with, the transactions contemplated by this Agreement;
(iv) any liabilities or obligations in respect of or arising in
connection with any default or event of default of Seller which shall have
occurred and is continuing as of the Closing Date;
(v) any liability incurred by Seller as a result of or arising from
its execution of this Agreement and its consummation of the transactions
contemplated hereby;
(vi) those expenses enumerated in Section 6.2 of the Purchase
Agreement;
(vii) liabilities related to finders fees including, but not limited
to the DB Fees;
(viii) liabilities arising after the Closing, except to the extent
that any such Liabilities have been assumed pursuant to Section 2 (a) hereof the
Purchase Agreement); and
(ix) finders fees, if any, due and payable as a result of the
consummation of the transactions contemplated hereby
(d) the parties hereto agree that all such Retained Liabilities shall remain the
sole responsibility of Assignor.
3. Terms of the Purchase Agreement. The terms of the Purchase Agreement,
including but not limited to Assignor's representations, warranties, covenants,
agreements and indemnities relating to the Assumed Liabilities, are incorporated
herein by this reference. Assignor acknowledges and agrees that the
representations, warranties, covenants, agreements and indemnities contained in
the Purchase Agreement shall not be superseded hereby but shall remain in full
force and effect to the full extent provided therein. In the event of any
conflict or inconsistency between the terms of the Purchase Agreement and the
terms hereof, the terms of the Purchase Agreement shall govern.
4. Further Actions. Each of the parties hereto covenants and agrees, at its own
expense, to execute and deliver, at the request of the other party hereto, such
further instruments of transfer and assignment and to take such other action as
such other party may reasonably request to more effectively consummate the
assignments and assumptions contemplated by this Assignment and Assumption
Agreement.
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5. Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the State of New York applicable to agreements made and to be
performed entirely within such State.
IN WITNESS WHEREOF, the parties have executed this Assignment and
Assumption Agreement as of the date first above written.
ASSIGNOR ASSIGNEE
Clixtix, Inc. Aisle Seats, Inc.
a New York corporation a New York corporation
/s/ Jack Kachkar /s/ Phyllis Maxwell
- ----------------- -------------------
By: Jack Kachkar By: Phyllis Maxwell
Its: Chairman Its: President
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