Exhibit 10.2
EXECUTION COPY
PURCHASE AGREEMENT
This
PURCHASE AGREEMENT (this “ Agreement ”)
is made as of the 26th day of May, 2009 by and among CADENCE II,
LLC DBA NETWORK CADENCE, a Colorado limited liability company
(“ Company ”), and MR. PAT BURKE and MS. ANN
BURKE, individual residents of the State of Colorado (collectively,
“ Sellers ”).
WITNESSETH
WHEREAS
,Company wishes to purchase from
Sellers, and Sellers wish to sell and transfer to Company, one
hundred percent (100%) of Sellers’ collective limited
liability company interests (the “ Interests ”)
of Company, on the terms and conditions hereinafter set forth (the
“ Transaction ”).
NOW,
THEREFORE , in
consideration of the foregoing premises and the mutual agreements
hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1.
Definitions . In
addition to the other defined terms herein, the following terms
shall have the following meanings for the purposes of this
Agreement:
“
Closing ” shall mean the date set forth above in the
preamble of this Agreement.
“
Lien ” shall mean any mortgage, lien (except for any
lien for taxes not yet due and payable), charge, restriction,
pledge, security interest, option, lease or sublease, claim, right
of any third party, easement, encroachment or
encumbrance.
“
Person ” means any individual, organization,
corporation, partnership, joint venture, entity, enterprise, firm
or business.
“Business
Day” means any day
other than a Saturday, Sunday or day which shall be in the State of
Colorado a legal holiday or day on which banking institutions are
required or authorized to close.
ARTICLE II
SALE AND PURCHASE
2.1.
Sale and Purchase of the Interests . At Closing, Company shall purchase from
Sellers, and Sellers shall sell and transfer to Company, the
Interests, free and clear of all Liens. As consideration for
Sellers’ Interests, Company shall pay Sellers a sum of
$3,400,000 (the “ Purchase Price ”). The
Purchase Price shall consist of $600,000 cash due at Closing and a
$2,800,000 promissory note (the “ Note ”)
delivered to Sellers at Closing, a copy of which Note is attached
hereto as Exhibit A .
2.2.
Transfer of Certain Assets . At Closing, Sellers shall sell transfer and
assign to Company, all Seller’s right, title and interest in
the contracts described on Schedule A (the “
Assigned Contracts ”), which are contracts of the
Company, but for administrative convenience, are held in the name
of Sellers. Company hereby assumes and shall pay, discharge and
perform when due all obligations and liabilities of Sellers under
the Assigned Contracts. Company shall pay all fees, costs and
expenses as may be necessary and appropriate to transfer the
Assigned Contracts to Company, including the cost of obtaining
third-party consents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers,
jointly and severally, hereby represent and warrant to Company the
following as of Closing:
3.1.
Due Authorization; Enforceability . Sellers have full power and authority to enter
into this Agreement, perform this Agreement and consummate the
Transaction contemplated hereby. Sellers have duly and validly
executed and delivered this Agreement. This Agreement constitutes
the legal, valid and binding obligation of Sellers, enforceable in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect which affect the
enforcement of creditors’ rights generally and by equitable
limitations on the availability of specific remedies.
3.2.
Capitalization .
Upon the consummation of the Transaction (and assuming the
retirement or cancellation of the Interests), John McCawley will
own 100% of the outstanding limited liability company membership
interests in Company and, to Sellers’ knowledge, no other
Person will have any right to acquire or otherwise obtain any
limited liability company membership interests or other equity
interests in Company.
3.3.
Title . Sellers
have exclusive legal and valid title to the Interests. At Closing,
the Interests will be transferred and sold to Company, free and
clear of all Liens, and such transfer and sale is sufficient to
transfer Sellers’ entire interest (legal and beneficial) in
the Interests to Company, free and clear of all Liens. The
Interests are not certificated.
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3.4.
Commitments . Sellers have not made any commitments to any
Person of Company resources (including cash or services) in an
amount (individually or in the aggregate) in excess of $10,000, of
which they have not notified Company in writing or reflected on
Company’s books and records.
3.5.
Brokers . Sellers
have not used any broker or finder in connection with the
transactions contemplated hereby, and Company shall have no
liability as a result of or in connection with any brokerage or
finder’s fee or other commission of any Person retained by
Sellers in connection with the Transaction.
3.6.
No Violations . The execution and delivery of this Agreement and
the performance by Sellers of their obligations hereunder do not
and will not (a) conflict with or result in a breach of the terms,
conditions or provisions of, (b) constitute a default under, (c)
result in the creation of any Lien upon Sellers’ Interests
pursuant to, (d) give any third party the right to modify,
terminate or accelerate any obligation under, (e) result in a
violation of, or (f) require any authorization, consent, approval,
exemption or other action by or notice to any court or
administrative, arbitration or governmental body or other third
party pursuant to, any law, statute, rule or regulation or any
contract or agreement of Sellers, judgment or decree to which
Sellers are subject or by which Sellers’ Interests are
bound.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF COMPANY
Company
hereby represents and warrants to Sellers the following as of
Closing:
4.1.
Due Authorization; Enforceability . Company has full power and authority to enter
into this Agreement and the Note, perform this Agreement and the
Note and consummate the Transaction. Company has duly and validly
executed and delivered this Agreement and the Note will be duly and
validly executed and delivered at the Closing. This Agreement and
the Note constitute legal, valid and binding obligations of
Company, enforceable in accordance with their terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws in effect which affect
the enforcement of creditors’ rights generally and by
equitable limitations on the availability of specific
remedies.
4.2.
Brokers . Company
has not used any broker or finder in connection with the
transactions contemplated hereby, and the Company shall have no
liability as a result of or in connection with any brokerage or
finder’s fee or other commission of any Person retained by
Company in connection with the transactions contemplated by this
Agreement.
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ARTICLE V
COVENANTS
5.1.
Resignation . At
Closing, Sellers will submit their resignations from all offices
and positions with Company in a form reasonably acceptable to
Company. At Closing, Sellers shall be obligated to immediately
return all Company property in their possession, including, but not
limited to: (i) personal computers or other electronic devices
provided by Company; (ii) all memoranda, notes, records, files or
other documentation of information (in whatever form or media);
(iii) all proprietary or other information of Company (originals
and all copies) which is in the control or possession of Sellers;
and (iv) any and all other property of Company that is in the
control or possession of Sellers; provided, however, that Sellers
shall be entitled to retain the cell phones provided by Company,
and Company hereby transfers and assigns its rights and interest in
the same to Sellers. As of Closing, Sellers will transfer the
service plan from Company to Seller’s account or cancel the
service plan. Except as specifically provided herein, Sellers
acknowledge
