Exhibit 10.1
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT
ARTICLE I DEFINITIONS ...................................................... 1
1.1 "Assets" ........................................................ 1
1.2 "Excluded Receivables" .......................................... 1
1.3 "Contracts" ..................................................... 1
1.4 "Books and Records" ............................................. 2
1.5 "Intellectual Property Rights" .................................. 2
1.6 "Closing Date" .................................................. 2
1.7 "Liabilities and Obligations" ................................... 2
ARTICLE II PURCHASE AND SALE ............................................... 2
2.1 Purchase Price .................................................. 2
2.2 Assumption of Liabilities ....................................... 2
2.3 Indemnification against Non-Assumed Liabilities ................. 3
2.4 Non-Compete and Non-Solicitation ................................ 4
2.5 Payment of Purchase Price ....................................... 4
2.6 Accounts Receivable ............................................. 4
ARTICLE III DELIVERIES BY PARTIES .......................................... 4
3.1 Seller's Deliveries ............................................. 4
3.2 Purchaser's Deliveries .......................................... 5
ARTICLE IV CLOSING ......................................................... 5
ARTICLE V REFERRAL OF CUSTOMERS; INVESTIGATION ............................ 6
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE SELLER .................... 6
6.1 Seller .......................................................... 6
6.2 Title ........................................................... 6
6.3 Liabilities ..................................................... 7
6.4 Non-Breach, Etc. ................................................ 7
6.5 Contracts ....................................................... 7
6.6 Hardware/Software ............................................... 7
6.7 Litigation ...................................................... 7
6.8 Material Change ................................................. 7
6.9 Disclosure ...................................................... 8
6.10 Intellectual Property Matters ................................... 8
6.11 Sufficiency of Assets ........................................... 8
ARTICLE VII REPRESENTATIONS AND WARRANTIES BY PURCHASER .................... 8
7.1 Organization and Standing ....................................... 8
7.2 No Conflict ..................................................... 8
7.3 Authority ....................................................... 8
ARTICLE VIII COVENANTS OF THE SELLER ....................................... 9
-i-
8.1 Action by Seller ............................................... 9
8.2 Fees ........................................................... 9
8.3 Further Assurances ............................................. 9
8.4 Best Efforts ................................................... 9
8.5 Co-Lease Agreement ............................................. 9
8.6 Notification of Breaches or Potential Breaches ................. 10
ARTICLE IX NO BROKERS OR FINDERS ........................................... 10
ARTICLE X CONDITIONS PRECEDENT OF PURCHASER ................................ 10
10.1 Representations and Warranties True at Closing ................. 10
10.2 Compliance with the Agreement .................................. 11
10.3 Seller's Certificate ........................................... 11
10.4 Deliveries ..................................................... 11
10.5 Injunction ..................................................... 11
10.6 Casualty ....................................................... 11
10.7 Assignment of Contracts ........................................ 11
10.8 Employee Arrangements .......................................... 11
10.9 Hiring of Employees ............................................ 11
10.10 Investigations ................................................. 11
10.11 Contingent Obligation Pursuant to Section 2.5(b) ............... 11
10.12 Contingent Obligations Under Section 2.5(c) .................... 12
ARTICLE XI CONDITIONS PRECEDENT OF THE SELLER .............................. 12
11.1 Representations and Warranties True at Closing ................. 12
11.2 Purchaser's Compliance with the Agreement ...................... 12
11.3 Purchaser's Certificate ........................................ 12
11.4 Deliveries ..................................................... 13
11.5 Injunction ..................................................... 13
11.6 Employee Arrangements .......................................... 13
ARTICLE XII NATURE AND SURVIVAL OF REPRESENTATIONS ......................... 13
ARTICLE XIII NOTICES ....................................................... 13
ARTICLE XIV MODIFICATION ................................................... 14
ARTICLE XV EXPENSES ........................................................ 14
ARTICLE XVI ASSIGNMENT; PURCHASER'S BEST EFFORTS ........................... 14
ARTICLE XVII DELAWARE LAW TO GOVERN ....................................... 14
ARTICLE XVIII COUNTERPARTS ................................................. 15
ARTICLE XIX HEADINGS ....................................................... 15
LIST OF EXHIBITS ........................................................... 16
-ii-
ASSET PURCHASE AGREEMENT
------------------------
AGREEMENT, (hereinafter, together with the Exhibits annexed hereto the
"Agreement") made and entered into as of the 16th day of October, 2001, by and
among Nextron Communications, Inc., a California corporation ("Purchaser"), and
Xxxx Interactive Services, Inc., a Colorado corporation, ("Seller").
WITNESSETH:
WHEREAS, Seller has granted Purchaser a license to software used in
Seller's AccelX business.
WHEREAS, Seller has elected to terminate and cease its AccelX business
operations due to Seller's inability to continue to fund this business without
incurring unacceptable dilution with respect to Seller's other business.
WHEREAS, Purchaser desires to purchase and acquire certain of the assets
used in the AccelX business and Seller is willing to sell said assets to
Purchaser, upon the terms and conditions hereinafter set forth.
WHEREAS, Purchaser is willing to assume maintenance and support obligations
for existing licensees of Seller's AccelX business.
NOW, THEREFORE, in consideration of the purchase and sale of the assets and
of the premises and the mutual promises, covenants and conditions hereinafter
set forth, Seller and Purchaser hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
As used herein, the following terms shall have the meanings set forth
below, and where said meanings are intended, said terms shall be capitalized:
1.1 "Assets" shall mean only the assets of Seller listed on Exhibit A
------ ---------
attached hereto.
1.2 "Excluded Receivables" shall mean Seller's accounts receivable arising
--------------------
in connection with Seller's AccelX business in the ordinary course of Seller's
business prior to October 15, 2001, listed on Exhibit B attached hereto.
---------
1.3 "Contracts" shall mean all of Seller's rights and obligations in and to
---------
all contracts, commitments and agreements listed on Exhibit B attached hereto.
---------
Seller has delivered to Purchaser either the original or, if the original is not
available, true, correct and complete copies of each of the Contracts, which
contain all amendments, modifications, terminations and revisions thereof.
1.4 "Books and Records" shall mean, with respect to Seller's discontinued
-----------------
AccelX business, lists of customers and suppliers, and records with respect to
pricing, payment history, cost, mailing lists, sales, purchasing and materials,
and including any such records which are maintained on computer.
1.5 "Intellectual Property Rights" shall mean only those copyrights,
----------------------------
trademarks, trade names, trade secrets, proprietary information and know-how
utilized by Seller in its discontinued AccelX business listed on Exhibit C
---------
attached hereto.
1.6 "Closing Date" shall mean the date on which the Closing hereunder is
------------
held. The Closing shall be held at 10:00 a.m., then current Denver, Colorado
time, on or before October 26, 2001, or at such other time or date as the
parties may mutually agree upon in writing, unless delayed by a party for
failure to satisfy conditions precedent to said party's obligations hereunder,
in which case Closing shall be held as soon as practicable after such conditions
are satisfied.
1.7 "Liabilities and Obligations" means any direct or indirect liability,
---------------------------
indebtedness, obligation, expense, claim, deficiency, guaranty or endorsement of
or by any person (other than endorsements of notes, bills and checks presented
to banks for collection or deposit in the ordinary course of business) of any
type, whether accrued, absolute, contingent or other and whether or not
appropriately reflected or reserved for on financial statements prepared in
accordance with generally accepted accounting principles.
ARTICLE II
PURCHASE AND SALE
-----------------
2.1 Purchase Price. On the Closing Date, subject to the terms and
--------------
conditions set forth in this Agreement, Seller agrees to sell assign, transfer
and convey to Purchaser, and Purchaser agrees to purchase, the Assets, for an
amount (the "Purchase Price") equal to a minimum of $500,000 and a maximum of
$1,250,000 plus the amount of the assumed liabilities for those employees listed
on Exhibit D hereto who are offered and who accept employment with Purchaser.
---------
2.2 Assumption of Liabilities. (a) Except solely as expressly set forth in
-------------------------
Section 2.2(b), Purchaser shall not assume or become liable for any Liabilities
and Obligations of Seller, including without limitation, (i) any product
liability or similar claim for injury to person or property, regardless of when
made or asserted, which arises out of or is based upon any express or implied
representation, warranty, agreement or guarantee made by Seller, or alleged to
have been made by Seller, or which is imposed or asserted to be imposed by
operation of law, in connection with any service performed or product sold or
leased by or on behalf of Seller on or prior to the Closing, including without
limitation any claim relating to any product delivered in connection with the
performance of such service and any claim seeking recovery for consequential
damage, lost revenue or income; (ii) any federal, state or local income or other
tax payable with respect to the business, assets, properties or operations of
Seller or any member of any affiliated group of which Seller is a member for any
period prior to the Closing Date, or incident to or arising as a consequence of
the negotiation or consummation by Seller or any member of any affiliated group
of which Seller is a member of this Agreement and the transactions contemplated
hereby, or (iii) any liability or obligation to any
employees, agents or independent contractors of Seller, whether or not employed
by Purchaser after the Closing, or under any benefit arrangement with respect
thereto.
(b) Purchaser shall assume and discharge only the following Liabilities and
Obligations of Seller ("Assumed Liabilities"): (i) Seller's liability with
------------------
respect to the accrued vacation pay for the employees of Seller's AccelX
business not to exceed the amount for each such employee set forth on Exhibit D
hereto who are offered and accept employment with Purchaser, (ii) for
liabilities arising under the Contracts after the Closing Date, but only with
respect to actions and transactions occurring under the Contracts from and after
the Closing Date (the "Post-Closing Contract Liabilities"), and (iii) for
liabilities arising under assumed leases for certain of the Assets.
Without limiting the generality of the foregoing, it is specifically
understood and agreed as follows:
(a) Although Purchaser is contemplating hiring most of the employees
of Seller relating to the Seller's discontinued AccelX business, Purchaser
has no obligation to hire any of Seller's employees.
(b) Purchaser has no obligation with respect to warranties for
software delivered or services rendered by Seller before the Closing Date.
Seller shall satisfy all such obligations at its expense. If requested by
Seller, and if Purchaser has available personnel, Purchaser will provide
service on Seller's behalf at Purchaser's then standard charge for such
service.
ARTICLE I 2.3 INDEMNIFICATION AGAINST NON-ASSUMED LIABILITIES. SELLER
-----------------------------------------------
HEREBY AGREES TO INDEMNIFY PURCHASER, ITS EMPLOYEES, OFFICERS, DIRECTORS AND
SHAREHOLDERS AGAINST AND AGREES TO HOLD EACH OF THEM HARMLESS FROM ANY AND ALL
LIABILITIES, LOSSES, CLAIMS, DAMAGES, PUNITIVE DAMAGES, CAUSES OF ACTION,
LAWSUITS, ADMINISTRATIVE PROCEEDINGS (INCLUDING INFORMAL PROCEEDINGS),
INVESTIGATIONS, AUDITS, DEMANDS, ASSESSMENTS, ADJUSTMENTS, JUDGMENTS, SETTLEMENT
PAYMENTS, DEFICIENCIES, PENALTIES, FINES, INTEREST (INCLUDING INTEREST FROM THE
DATE OF SUCH DAMAGES) AND COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION
REASONABLE EXPENSES OF INVESTIGATION AND REASONABLE ATTORNEYS' FEES AND
DISBURSEMENTS OF EVERY KIND, NATURE AND DESCRIPTION) ("DAMAGES") INCURRED OR
-------
SUFFERED BY THEM ARISING OUT OF:
(a) any breach of any representation or warranty of Seller set forth
in this Agreement or any Schedule, Exhibit or certificate, delivered by or
on behalf of Seller in connection herewith; or
(b) any nonfulfillment of any covenant or agreement by Seller under
this Agreement; or
(c) the business, operations or assets and liabilities of Seller
either accrued, absolute, contingent, mature, unmatured or otherwise and
whether known or unknown, fixed or unfixed, xxxxxx or inchoate, liquidated
or unliquidated, secured or unsecured, which occurred or existed prior to
or at the Closing Date, excluding solely the Assumed Liabilities.
2.4 Non-Compete and Non-Solicitation. At the closing, Purchaser and
--------------------------------
Seller shall enter into a Non-Compete and Non-Solicitation Agreement in the form
of Exhibit E attached hereto, pursuant to which Seller will agree not to compete
---------
with Purchaser nor to solicit its employees for a period of five (5) years after
the Closing.
2.5 Payment of Purchase Price. The Purchase Price shall be paid as
-------------------------
follows:
(a) Subject to the satisfaction of the conditions set forth in
Article X, by payment of $500,000 at the Closing (the payment to be
made by wire transfer in accordance with instructions provided by
Seller).
(b) Subject to the satisfaction of the conditions set forth in
Article X, by payment of $750,000 within five (5) business days of the
satisfaction of the conditions for the payment of such amount set forth
in Section 10.10 (the payment to be made by wire transfer in accordance
with instructions provided by Seller).
(c) Subject to the satisfaction of the conditions set forth in
Article X, and assuming no payment pursuant to paragraph (b) above, by
payment made by wire transfer in accordance with instructions provided
by Seller of $375,000 within five (5) business days of the satisfaction
of the conditions for payment of such amount set forth in Section 10.11
(the payment to be made by wire transfer in accordance with
instructions provided by Seller).
All payments made hereunder are subject to the terms and conditions
herein set forth, and will be made by Purchaser in reliance upon the
representations, warranties, covenants and agreements contained herein.
2.6 Accounts Receivable. Seller is retaining the Excluded Receivables.
-------------------
Seller agrees that any actions taken to collect the Excluded Receivables shall
be taken in a manner intended to minimize problems or disruption in any ongoing
customer relationships Purchaser has with the parties to the Contracts assigned
to Purchaser.
ARTICLE III
DELIVERIES BY PARTIES
---------------------
3.1 Seller's Deliveries. On the Closing Date, subject to the terms
-------------------
and conditions set forth in this Agreement, Seller shall make the following
deliveries:
(a) Xxxx of Sale, Assignments and other instruments of
conveyance reasonably requested by Purchaser;
(b) A current certified search showing all financing
statements on file against the Assets, together with the delivery on or
before October 26, 2001 of appropriate releases or termination
statements for any security interests in the Assets;
(c) Non-Compete and Non-Solicitation Agreement duly executed by
Seller;
(d) Consents to assignment of those contracts for which the
consents are to be obtained prior to the Closing as indicated on
Exhibit B. The consents will be in a form reasonably acceptable to
Purchaser;
(e) License Agreement between the Seller and Purchaser dated
October 16, 2001 (the "License Agreement") duly executed by Seller;
(f) An opinion of counsel of Seller in form and substance
reasonably acceptable to Purchaser; and
(g) All other items or documents necessary or appropriate
hereunder.
3.2 Purchaser's Deliveries. Subject to the terms and conditions
----------------------
set forth in this Agreement, Purchaser shall make the following deliveries:
(a) Payment of the Purchase Price in accordance with
Section 2.5 hereof;
(b) Non-Compete and Non-Solicitation Agreement duly
executed by Purchaser;
(c) All other items or documents necessary or appropriate
hereunder;
(d) Copies of employment agreements between Purchaser and
Xxxxx Xxxxx and Xxxxx Xxxxxx; and
(e) License Agreement duly executed by Purchaser,
ARTICLE IV
CLOSING
-------
The Closing hereunder shall take place at the offices of Purchaser on
or before October 26, 2001, or at such other place as may be mutually agreed
upon in writing by Purchaser and Seller.
ARTICLE V
REFERRAL OF CUSTOMERS; INVESTIGATION
------------------------------------
As of the date of this Agreement, Seller is ceasing its AccelX
operations, including without limitation, the AccelX SiteBuilder, the AccelX
Consent and the AccelX Request products and all related AccelX services
including professional, client and technical support services. From and after
the date hereof and through the Closing Date thereafter, Seller shall refer to
Purchaser any potential customers for the products and services previously
offered in connection with its AccelX business or for other similar web-site
development and communication needs that are intended to attract customers,
generate leads, increase buyer-seller interaction or strengthen customer
relationship management, shall provide reasonable assistance to Purchaser in
connection with such referrals and Purchaser's efforts to market to such
referred potential customers, and afford to the officers and representatives of
Purchaser free
access to the properties and records of Seller as they relate to Seller's AccelX
business in order that Purchaser may have full opportunity to make such
investigation at reasonable times as it shall desire of the Assets, and Seller
shall provide to Purchaser reasonable assistance in the conduct of said
investigation by Purchaser.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
------------------------------
OF THE SELLER
-------------
Seller represents and warrants to Purchaser that, except as
specifically set forth on Exhibit F attached hereto, entitled Representations
--------- ---------------
and Warranties: Exceptions and Disclosures, the following statements are true
------------------------------------------
and correct as of the date of this Agreement and will be true and correct on the
Closing Date as if made on said Date:
6.1 Seller. Seller is a corporation duly organized and existing and in
------
good standing under the laws of the state of Colorado and is entitled to own or
lease its properties and to carry on its business as and in the places where
such properties are now owned, leased or operated, or such business is now
conducted. Seller has full power and authority to sell, convey, assign, transfer
and deliver the Assets as herein provided, and all corporate, shareholder and
other proceedings necessary to be taken by Seller in connection with the
transactions provided for by this Agreement and necessary to make the same
effective have been duly and validly taken, and this Agreement has been duly and
validly executed and delivered by Seller and constitutes a valid and binding
obligation of Seller enforceable in accordance with its terms.
6.2 Title. Except as set forth on Exhibit F Seller has good and
----- ---------
marketable title to the Assets, free and clear of any mortgages, liens, security
interests, pledges, easements or encumbrances of any kind or nature whatsoever.
At the Closing, Seller will convey good and marketable title to the Assets to be
sold hereunder, free and clear of any and all mortgages, liens, security
interests, pledges, easements, or encumbrances of any kind or nature whatsoever.
6.3 Liabilities. As of the date of this Agreement, Seller is not
-----------
subject to and does not have any Liabilities and Obligations with respect to the
Assets, except as disclosed in Exhibit F.
---------
6.4 Non-Breach, Etc. The execution and delivery of this Agreement and
---------------
the consummation of the transactions contemplated hereby by Seller will not (a)
violate or breach Seller's Articles of Incorporation or Bylaws, (b) result in a
breach of any of the terms or conditions of, or constitute a default under, any
mortgage, note, bond, indenture, agreement, license or other instrument or
obligation (including any "Contracts") to which Seller is now a party or by
which it or any of its properties or assets may be bound or affected, or (c)
violate any order, writ, injunction or decree of any court, administrative
agency or governmental body.
6.5 Contracts. Except as identified in Exhibit B, Seller has performed
--------- ---------
all obligations required to be performed by it to date under, and Seller and, to
Seller's knowledge, each other party to each Contract is not in default under,
each of the Contracts, all of which are in full force and effect and enforceable
by Seller in accordance with their terms. There is no event, which after notice
or lapse of time or both, which would constitute a default under any such
Contracts. The consummation of the
transactions contemplated under this Agreement will not give rise to any
violation or any default or event or condition which, after notice or lapse of
time or both, would constitute a default under any such Contracts on the part of
Seller. Furthermore, no such Contract, in the reasonable opinion of Seller,
contains any contractual requirement with which there is a reasonable likelihood
Seller or any other party thereto will be unable to comply. Upon request of
Purchaser, Seller shall assign to Purchaser, from time to time at or after the
Closing, any or all of the Contracts. Except as stated on Exhibit B each of said
---------
Contracts requires the consent of the parties. The Contracts include all
customer contracts with respect to the AccelX business which are currently
providing, or which in the future are reasonably likely to provide, revenues to
Seller (or after the Closing to Purchaser).
6.6 Hardware/Software. Except as may be set forth on Exhibit F, all
----------------- ---------
Hardware and Software included in the Assets are in good condition and repair,
ordinary wear and tear excepted. The software transferred pursuant to this
Agreement and subject to the License Agreement includes all software required to
service the Contracts and to operate and maintain the Software (as defined in
the License Agreement).
6.7 Litigation. There are no claims, actions, suits, proceedings or
----------
investigations (whether or not purportedly on behalf of Seller) pending or
threatened against or affecting the Assets or Seller's AccelX business, at law
or in equity or admiralty or before or by any federal, state, municipal or other
governmental department, commission, board, agency or instrumentality, domestic
or foreign, nor has any such action, suit, proceeding or investigation been
pending during the 12-month period preceding the date hereof. There is no
reasonable basis for any claim, action, suit, proceeding or investigation
against or affecting the Assets. Seller is not operating under or subject to, or
in default with respect to, any order, writ, injunction or decree of any court
or federal, state, municipal or other governmental department, commission,
board, agency or instrumentality, domestic or foreign.
6.8 Material Change. Since the date of this Agreement, other than as
---------------
contemplated in this Agreement, there has been no material change in the
condition of the Assets or Seller's AccelX business, except changes occurring in
the ordinary course of business, which changes have not materially adversely
affected the Assets or Seller's AccelX business.
6.9 Disclosure. Prior to the Closing and for a period of six (6)
----------
months thereafter, Purchaser shall be given access to the Books and Records
during Seller's normal business hours. No representation or warranty made by
Seller herein or in any agreements, certificates or documents delivered in
connection with this Agreement contains any untrue statement of a material fact
or omits to state a material fact necessary to make such representation or
warranty not misleading.
6.10 Intellectual Property Matters. Seller in the conduct of its AccelX
-----------------------------
business (i) did not and does not utilize any patent, trademark, trade name,
service xxxx, copyright, software, trade secret or know-how (the "Intellectual
Property"), which infringes upon or unlawfully or wrongfully uses any patent,
trademark, trade name, service xxxx, copyright or trade secret owned or claimed
by another, and (ii) is not in default under, and has not received any notice of
any claim of infringement or any other claim or proceeding relating to any such
Intellectual Property. No present or former employee of Seller and no other
person owns or has any proprietary, financial or other interest, direct or
indirect, in whole or in part, in any patent, trademark, trade name, service
xxxx or copyright, or in any application therefore, or in any trade secret,
which the Company owns, processes or uses in its AccelX business.
6.11 Sufficiency of Assets. The Assets and the Software, as defined in the
---------------------
License Agreement, include all rights and property necessary to service the
Contracts.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES BY PURCHASER
-------------------------------------------
Purchaser represents and warrants to Seller that the following statements
are true and correct as of the date of this Agreement and will be true and
correct on the Closing Date as if made on said date:
7.1 Organization and Standing. Purchaser is a corporation duly organized,
-------------------------
existing and in good standing under the laws of the State of California.
7.2 No Conflict. The execution and delivery of this Agreement and the
-----------
consummation of the transactions contemplated hereby will not (a) result in a
breach of any of the terms or conditions of, or constitute a default under, any
mortgage, note, bond, indenture, agreement, license or other instrument or
obligation to which Purchaser is a party or by which it or any of its properties
or assets may be bound or affected, or (b) violate any order, writ, injunction
or decree of any court, administrative agency or governmental body, or (c)
conflict with or result in the breach of the terms, conditions or provisions of
the Articles of Incorporation or By-Laws of the Purchaser.
7.3 Authority. Purchaser has full power and authority to enter into this
---------
Agreement and to carry out the transactions contemplated hereby, and all
corporate and other proceedings required to be taken by Purchaser in connection
with this Agreement and the transactions contemplated hereby and necessary to
make the same effective have been duly and validly taken. This Agreement
constitutes a valid and binding obligation of Purchaser and is enforceable in
accordance with its terms.
ARTICLE VIII
COVENANTS OF THE SELLER
-----------------------
8.1 Action by Seller. Seller will not take or permit to be taken any
----------------
action or do or permit to be done which would be contrary to or in breach of any
of the terms, conditions or provisions of this Agreement, or which would cause
any of the representations and warranties of Seller to be untrue as of the
Closing Date or any time thereafter.
8.2 Fees. Seller shall pay all fees and disbursements of counsel and
----
accountants for Seller arising in connection with this Agreement and the
transactions contemplated hereby.
8.3 Further Assurances. On the Closing Date, and from time to time
------------------
thereafter, at the request of Purchaser, Seller will execute and deliver to
Purchaser all such assignments, endorsements and other documents, and take such
other action as Purchaser may reasonably request in order more effectively to
transfer and assign to Purchaser the Assets transferred to Purchaser pursuant to
this Agreement, to confirm the title of Purchaser thereto and to assist
Purchaser in exercising its rights with respect thereto and under this
Agreement. Seller will not offer or sell any of the assets, including
Intellectual Property, of its AccelX business which have not been sold or
licensed to Purchaser to a
person or business which competes with Purchaser or its successors and assigns
without Purchaser's prior written consent.
8.4 Best Efforts. Seller shall use its best efforts to obtain at the
------------
earliest practical date after the date hereof, all necessary consents to the
transactions contemplated in this Agreement, including consents from parties to
the Contracts for whom consents were not required to be obtained prior to the
Closing.
8.5 Co-Lease Agreement. Purchaser hereby agrees, commencing immediately
------------------
upon completion of the Closing and for a period of up to twelve (12) months
thereafter, to lease from Seller and the space within Seller's corporate offices
located at 0000 Xxxxxxx, Xxxxxx, Xxxxxxxx 00000, described on Exhibit G attached
hereto, at a monthly rent of $8,126, which shall be paid by the first business
day of the month for which the payment relates. In addition, Purchaser shall pay
$198 per month times the number of Purchaser's employees utilizing the space for
the shared services set forth in Exhibit G. Purchaser shall be billed separately
---------
for (i) long distance telephone charges incurred by Purchaser's employees, such
charges to be equal to Seller's costs thereof, (ii) parking costs for
Purchaser's employees, (iii) the cost of providing IT support services which
will be billed on a time (at $70 per hour) and cost of materials basis, and iv)
at the rate of $6,500 per month for use of Seller's hosting services for so long
as Purchaser chooses to use such services. Seller may terminate the original
term of this co-lease Agreement by giving Purchaser sixty (60) days written
notice of the termination of this co-lease Agreement and of all of Seller's
co-lease obligations hereunder. In the event that Seller and its Jabber, Inc.
subsidiary cease to use Seller's corporate offices at 0000 Xxxxxxx, Xxxxxx,
Xxxxxxxx, Purchaser may terminate this co-Lease Agreement. Purchaser shall be
responsible for insuring its property located in Seller's facilities. In no
event shall Seller have any liability to Purchaser with respect to this co-lease
agreement, except for Seller's gross negligence and in the event of any such
liability, such liability shall be limited to the amount paid by Purchaser to
Seller pursuant to this co-lease agreement. In no event will Seller be liable
pursuant to this co-lease agreement for indirect damages, including, without
limitation, consequential damages or lost profits.
8.6 Notification of Breaches or Potential Breaches. Seller shall give
----------------------------------------------
prompt notice to Purchaser of (i) the occurrence or nonoccurrence of any event
which is likely to cause any representation or warranty contained in this
Agreement to be untrue or inaccurate, and (ii) any failure of Seller to comply
with or satisfy in any material respect any covenant, condition or agreement to
be complied with or satisfied by any of them hereunder; provided, however, that
delivery of any such notice pursuant to this section shall not limit or
otherwise affect the remedies available hereunder to the Purchaser.
ARTICLE IX
NO BROKERS OR FINDERS
---------------------
Seller has utilized the services of Xxxxxx Xxxxxxx Sutro in connection with
the transaction contemplated herein and Seller is solely responsible for any
fees due to such firm as a result of the transactions contemplated herein.
Except for this engagement, Seller and Purchaser represent and warrant to each
other that each did not directly or indirectly engage any other person,
corporation or partnership to bring about the consummation of the transactions
contemplated herein, and, that no
person, corporation or partnership is entitled to a broker's commission,
finder's fee or any similarcompensation upon the consummation of the
transactions contemplated herein. If this representation and warranty is
breached by either Seller or Purchaser, the breaching party shall indemnify and
hold harmless the other party from any and all claims, demands, liabilities and
obligations (and any and all expenses and costs incurred in connection with or
in defending against the same), which may arise due to any third party's claim
as a broker or finder.
ARTICLE X
CONDITIONS PRECEDENT OF PURCHASER
---------------------------------
The obligations of Purchaser hereunder are subject to the conditions
that, on or before the Closing Date:
10.1 Representations and Warranties True at Closing. The
----------------------------------------------
representations and warranties of Seller contained in this Agreement or in any
certificate or document delivered pursuant to the provisions hereof or in
connection with the transactions contemplated hereby shall be true on and as of
the Closing Date as though such representations and warranties were made at and
as of such date.
10.2 Compliance with the Agreement. Seller shall have performed and
-----------------------------
complied with all agreements and conditions required by this Agreement to be
performed or complied with by it prior to or at the Closing Date.
10.3 Seller's Certificate. Seller shall deliver to Purchaser a
--------------------
certificate of an officer of Seller dated the Closing Date, certifying in such
detail as Purchaser may request to the fulfillment of the conditions specified
in sections 10.1 and 10.2.
10.4 Deliveries. The documents required under Section 3.1 hereof shall
----------
be tendered by Seller for delivery to Purchaser at the Closing.
10.5 Injunction. On the Closing Date, there shall be no effective
----------
injunction, writ, preliminary restraining order or any order of any nature
issued by a court of competent jurisdiction directing that the transactions
provided for herein or any of them not be consummated as herein provided.
10.6 Casualty. Prior to the Closing Date, Seller's AccelX business and
--------
the Assets, or any portion thereof, shall not have been adversely affected in
any material way as a result of any fire, accident, flood or other casualty or
act of God or the public enemy.
10.7 Assignment of Contracts. Seller shall have obtained, in
-----------------------
conjunction and cooperation with Purchaser, all necessary consents for the
assignments of the Contracts to be assigned to Purchaser, such consents to be in
form reasonably acceptable to Purchaser.
10.8 Employee Arrangements. Purchaser shall have reached arrangements
---------------------
or employment agreements on terms satisfactory to Purchaser with Xxxxx Xxxxx and
Xxxxx Xxxxxx.
10.9 Hiring of Employees. Purchaser shall have reached agreements to
-------------------
hire such employees of Seller's discontinued AccelX business as Purchaser may
determine and on such terms and conditions
(which may include non-solicitation and non-competition provisions) as shall be
acceptable to Purchaser in its sole discretion.
10.10 Investigations. Purchaser shall be satisfied with the results of
--------------
its due diligence review of the Assets, and shall be satisfied that there are no
circumstances or matters, whether discovered in due diligence or otherwise
arising, which affect adversely the basis upon which Purchaser determined to
enter into the transactions contemplated hereby with Seller.
10.11 Contingent Obligation Pursuant to Section 2.5(b). If on or before
------------------------------------------------
January 31, 2002, Purchaser or its successors and assigns has completed either
(i) in connection with a merger, reorganization, sale of substantially all of
its assets or business the combined business shall have combined cash and cash
equivalence of at least $4 million more than the amount of Purchaser's cash and
cash equivalence at September 30, 2001 (a "Substantial Transaction"); or (ii)
Purchaser or its successors and assigns shall complete one or more financing
events resulting in gross proceeds of at least $2 million (a "Substantial
Financing Transaction"), Purchaser shall pay Seller $750,000 within five (5)
business days of the consummation of any such Substantial Transaction or
Substantial Financing Transaction if such transaction is consummated on or
before July 31, 2002, and on the same terms and conditions as were set forth in
the definitive agreement at the time the transaction was completed. If neither a
Substantial Transaction nor a Substantial Financing Transaction is completed on
or before January 31, 2002, or consummated on or before July 31, 2002, Purchaser
shall not be required to make the payment to Seller as set forth in Section
2.5(b) hereof and Purchaser shall have no further obligations with respect to
Section 2.5(b) hereof. A Substantial Transaction or Substantial Financing
Transaction shall be deemed to have been completed when Purchaser or its
successors and assigns has executed and delivered a binding agreement for such
transaction and the Transaction shall be deemed to be consummated when the
Transaction has closed.
10.12 Contingent Obligations Under Section 2.5(c). If on or before June
-------------------------------------------
30, 2002, Purchaser or its successors and assigns has completed either a
Substantial Transaction or a Substantial Financial Transaction, subject to the
other terms and conditions of this Agreement, Purchaser or its successors and
assigns shall, within five (5) business days of the consummation of the
transaction, if such transaction is consummated on or before July 31, 2002, make
the $375,000 payment provided in Section 2.5(c) hereof. If neither a Substantial
Transaction nor a Substantial Financing Transaction has been completed on or
before June 30, 2002, the total purchase price shall be the amount paid pursuant
to Section 2.5(a) hereof.
ARTICLE XI
CONDITIONS PRECEDENT OF THE SELLER
----------------------------------
The obligations of the Seller hereunder are subject to the conditions
that, on or before the Closing Date:
11.1 Representations and Warranties True at Closing. The
----------------------------------------------
representations and warranties of Purchaser contained in this Agreement or in
any certificate or document delivered pursuant to the provisions hereof or in
connection with the transactions contemplated hereby, shall be true on and as of
the Closing Date as though such representations and warranties were made at and
as of such date.
11.2 Purchaser's Compliance with the Agreement. Purchaser shall have
-----------------------------------------
performed and complied with all agreements and conditions required by this
Agreement to be performed or complied with by it prior to or at the Closing
Date.
11.3 Purchasers' Certificate. Purchaser shall deliver to the Seller a
-----------------------
certificate of an officer or authorized signer of Purchaser, dated the Closing
Date, certifying in such detail as the Seller may request to the fulfillment of
the conditions specified in sections 11.1 and 11.2.
11.4 Deliveries. The documents required under Section 3.2 hereof shall
----------
be tendered by Purchaser for delivery to Seller at the Closing.
11.5 Injunction. There shall be no effective injunction, restraining
----------
order or order of any nature issued by a court of competent jurisdiction which
shall direct that this Agreement, or any of the transactions provided for
herein, not be consummated as herein provided.
11.6 Employee Arrangements. Purchaser shall have paid or assumed
---------------------
Seller's Obligations and Liabilities for accrued vacation for those employees
named in Exhibit D hereto who accept employment with Purchaser.
---------
ARTICLE XII
NATURE AND SURVIVAL OF REPRESENTATIONS
--------------------------------------
All statements contained in any documents, certificates or other
instruments delivered by or on behalf of Seller or Purchaser pursuant to this
Agreement or in connection with the transactions contemplated hereby shall be
deemed representations and warranties by Seller or Purchaser hereunder. All
representations and warranties and agreements made by Seller or Purchaser in
this Agreement or in any documents, certificates, or other instruments delivered
pursuant hereto shall survive the Closing hereunder (and any investigation at
any time made by or on behalf of Seller or Purchaser).
ARTICLE XIII
NOTICES
-------
All notices, requests, demands, and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered or
mailed first-class postage prepaid:
(a) To the Seller:
Xxxx Interactive Services, Inc.
0000 Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
(b) To Purchaser:
Nextron Communications, Inc.
0000 Xxx Xxx Xxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
with a copy thereof to:
Safeguard Scientifics, Inc.
800 The Safeguard Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, XX 00000
Attn: General Counsel
or to such other address or to such other person as Purchaser or Seller shall
have last designated by notice to the other.
ARTICLE XIV
MODIFICATION
------------
This Agreement contains the entire agreement between the parties hereto
with respect to the transactions contemplated herein and shall not be modified
or amended except by an instrument in writing signed by or on behalf of the
parties hereto.
ARTICLE XV
EXPENSES
--------
Whether or not the transactions contemplated hereby are consummated,
each of the parties hereto shall pay its own expenses incurred in connection
with the authorization, preparation, execution or performance of this Agreement
and all transactions contemplated hereby, including without limitation all fees
and expenses of agents, representatives, counsel and accountants. Seller shall
be responsible for any sales or other transfer taxes incurred in connection with
the transfer of the Assets as contemplated herein.
ARTICLE XVI
ASSIGNMENT; PURCHASER'S BEST EFFORTS
------------------------------------
This Agreement shall not be assignable by any party hereto without the
prior written consent of the other party.
ARTICLE XVII
DELAWARE LAW TO GOVERN
----------------------
This Agreement shall be governed by and construed and enforced in
accordance with the internal laws, as opposed to the choice of law rules, of the
State of Delaware.
ARTICLE XVIII
COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
ARTICLE XIX
HEADINGS
--------
The headings in this Agreement are for convenience of reference only
and shall not be deemed to alter or affect any provision thereof. Reference to
numbered "articles," "sections," "paragraphs" and "subparagraphs," and to
lettered "Exhibits" refer to articles, sections, paragraphs and subparagraphs of
--------
this Agreement and Exhibits annexed thereto.
--------
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
PURCHASER CORPORATION: SELLER:
Nextron Communications, Inc. Xxxx Interactive Services, Inc.
By ____________________________ By _______________________________
Its ___________________________ Its _____________________________
GP:830777 v8
LIST OF EXHIBITS
----------------
A. Assets
B. Receivables and Contracts
C. Intellectual Property
D. Employees
E. Non-Compete and Non-Solicitation Agreement
F. Representations and Warranties: Exceptions and Disclosures
G. Shared Services; Leased Space
EXHIBIT A
Xxxx Interactive
AccelX Assets Sold to Nextron Communications, Inc.
Server MODEL/BRAND Serial Number
--------------------------------------------------------------------------------
KVM 17" Monitor 84779-C81H0-68
Cybex BG0004712
ORACLE1 CMPQ Proliant 1600 D911BWT10655
3COM Super Stack II 7ZVB1B9EFFB
3COM Super Stack II 7ZAV101F9AB
xxxxxxx IBM Netfinity 5000 1S86598RY23ND962
xxxxxxx IBM Netfinity 5000 1S86598RY23ND927
muttley Toshiba Magnia 5010 11912519
DLT Drive Compaq 00-00000-00
sourcecontrol1 XXXX XX 0000X X000XXX0X000
spongebob Sun 220R 035H250B
squarepants Sun 220R 035H24DD
neptune Sun 250 942H331A Leased
mercury Sun 250 942H331D Leased
tweety Sun 220R 035H247D
MAC Radius 81/110 00123828-001
MAC Power MAC G3 XB82604PCY5
Test A Dell Dimmension FD4Z7
Test B Compaq DeskPro EN 6925CD470094
Test C ICON No Serial #
Test D ICON No Serial #
Test F ICON CO014396
17" Monitor Panasonic FB7155368
17" Monitor Acer M7EH1604037H1
Embarcado Developer licenses
WebLogic Developer licenses
Xxxx, Xxxxx Compaq Presario 3D06FQR3R0S0
Xxxx, Xxxxx 17" Monitor 22D003907860
Xxxx, Xxxxx Compaq DeskPro EN 6936CJN40384
Xxxx, Xxxxx 17" Monitor 2X783621
Xxxxxx, Xxxx Compaq DeskPro EN 6050DYSZ0959
Xxxxxx, Xxxx 17" Monitor FB7155367
Xxxxxxxxx, Xxxxx Compaq DeskPro EN 6910CKT3A080
Xxxxxxxxx, Xxxxx 17" Monitor FK7550730
Xxxxxxxx, Xxxxx Compaq DeskPro EN 6005CKT3A509
Xxxxxxxx, Xxxxx 17" Monitor FB6353628
Xxxxxx, Xxxxx Compaq DeskPro EN 6940CKT3K891
Xxxxxx, Xxxxx 17" Monitor 22D004206406
Xxxxx, Xxxxx Toshiba Portege 3480Ct 60742785U
Xxxxx, Xxxxx 17" Monitor FB8242658
Xxxxx, Xxxxx Compaq DeskPro EN 6036DYSZW133
Xxxxx, Xxxxx 17" Monitor AY02929424
EXHIBT A (Continued)
ASSETS
Server MODEL/BRAND Serial Number
--------------------------------------------------------------------------------
Xxxxxx, Xxx mpaq DeskPro EN 6035DYSZL813
Xxxxxx, Xxx 17" Monitor C9001175090
Xxxxxx, Xxx Toshiba Portege 7140CT 10376289U
Xxxxxxxx, Xxx Dell Latitude C600 6Z3W601 15183549793
Xxxxxxxx, Xxx Dell 17" Monitor MX088VFF4780109EH03M
Xxxxxxxxx, Xxxxxxxx Compaq DeskPro EN 6031DYSZE994
Xxxxxxxxx, Xxxxxxxx 21" Monitor Q003135924
Xxxxxxxxx, Xxxxxxxx APPLE G4 MAC XB0182MYHSG
Xxxxxxxxx, Xxxxxxxx 18" Monitor QV00637239
Xxxxxxxxx, Xxxxxxxx HP ScanJet SG991171Z1
Xxxxxx, Xxxxx Toshiba Portege 7140CT 30485949U
Xxxxxxx, Xxxx Toshiba Portege 3480Ct 80840615U
Xxxxxxx, Xxxx 17" Monitor AY00902587
Xxxx, Xxxx Dell Latitude C800 76V5J01
Xxxx, Xxxx 17" Monitor 192010986
Xxxx, Xxxx Compaq DeskPro EN 6922CLH1A058
Xxxx, Xxxx 17" Monitor AY93704953
QABUILD Compaq DeskPro EN 96907CCK4C100
QABUILD 17" Monitor 6PTA67G041555
Xxxxx, Xxxxx HP LJ 2100 TN Printer XXXX000000
xxxxxx0 XXXX PROLIANT 5500 D906CLC10034
nocweb3 CMPQ PROLIANT 5500 D906CLC10025
nocweb5 CMPQ PROLIANT XX000 X000XXX0X000
xxxxx0 XXXX PROLIANT 5500 D922CLC10044
nocmw1 CMPQ PROLIANT 5500 D908CLC10038
nocvsql-1 Fibre Array D851HUQ10321
nocvsql-2 Fibre Array D901HUQ10191
Fibre Switch Fibre Switch No Serial #
nocsql1 CMPQ PROLIANT 5500 D903CLC10033
nocsql2 CMPQ PROLIANT 5500 D903CLC10097
prodmail VA FullOn No Serial #
xxxxxxxxx Sun 220R 007H3BA9
saturn Sun 420R 0038C0BuC
saturn moon Sun A1000 028H3516
jupiter Sun E3500 945H216D Leased
jupiter moon Sun A1000 943H41CF
WebLogic Production licenses
B. DESK TOP SOFTWARE--
Micro Soft Office 2000 - 17 copies
Micro Soft Internet Explorer 5.5 - 17 copies
EXHIBT A (Continued)
ASSETS
Server MODEL/BRAND Serial Number
--------------------------------------------------------------------------------
Micro Soft Outlook - 17 copies
Norton Antivirus - 17 copies
VISIO - 17 copies Photoshop - 1 copy
Micro Soft Projects - 3 copies
Assets include the Contracts set forth on Exhibit B and the Intellectual
Property described on Exhibit C.
Note 1: Equipment noted as "Leased" are leased through Sun Microsystems Finance
and are not owned by Seller.
EXHIBIT B
C. Schedule of Accounts Receivable Retained by Seller
Customer Amount
------------------------------------- -----------------
SwissOnline, AG $ 4,100
Switchboard Incorporated 8,882 (1)
Qwest Dex, Inc. 49,446 (1)
Sympatico-Lycos, Inc. 8,922 (1)
-----------------
Total $ 71,350
=================
(1) Amount is an approximation pending final computation of last billing on day
of Closing.
CONTRACTS
Support &
Customer Contract Software Product or Service Maintenance Renewal
Date Date
------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx.xxx, Inc. (*) 10/03/01 Client Services N/A
Sympatico-Lycos, Inc. (*)(**) 03/13/00 Site Builder Included in monthly fee
Sympatico-Lycos, Inc. (*) 05/23/01 Client Services N/A
Qwest Dex, Inc. (*) 05/17/01 Connect 05/16/02
Qwest Dex, Inc. (*) 06/12/01 Client Services N/A
SwissOnline, AG (*) 02/28/01 Site Builder, Request, & Connect 5/31/02
Switchboard Incorporated (*) 07/01/99 Site Builder Included in monthly fee
Promedia GVC (VNU World Directories) 07/17/00 Site Builder, Notify, Request, & 7/16/01 - Did not renew
(*) Promote
British Telecommunications plc 06/30/00 Site Builder, Notify & Request 7/31/01 - Did not renew
(thereafter transferred to Yell,
Ltd.) (*)
(*) Agreement of assignment of the Contract has been obtained from the customer
prior to Closing.
(**) Master Publishing Product Licensing Agreement between Xxxx Interactive
Services Inc. and Xxxx ActiMedia, Inc. executed March 17, 2000 and assigned by
Xxxx ActiMedia, Inc. to Sympatico-Lycos Inc., an affiliate of ActiMedia,
effective as of May 2, 2000, as amended and the Customer Contract Service
Agreement between Sympatico-Lycos, Inc. and Xxxx Interactive Services, Inc. made
as of May 23, 2001, as amended.
EXHIBIT C
INTELLECTUAL PROPERTY
Xxxx Interactive Object and Source Code Inclusions:
Know how with respect to the "Licensed Material" as that term is
defined in the License Agreement dated October 12, 2001, between Seller and
Purchaser. All customizations developed for customers whose agreements are being
assigned under this Agreement are likewise transferred herein, and all business,
marketing and product planning and support materials are transferred for all
Licensed Materials and identified customers.
Any and all rights to the following trademarks and internet domain names.
Any trademarks or service marks associated with "AccelX", "Accelerating
Exchange", "Sales Accelerator" and "Sales Acceleration", "Conversational
Commerce" and "Commercial Conversations".
The following internet domains will be assigned and transferred to host
computers designated by Nextron. For these domains, any .net, .org and
international suffix domains owned by Xxxx will be likewise transferred.
. Xxxxxx.xxx
. Xxxxxxxxxxxxxx.xxx
. Xxxx.xxx
For a period of six months, Xxxx also agrees to maintain a link from the primary
page of its' corporate homepage of Xxxx Interactive Services to XxxxxX.xxx (or
another domain otherwise designated by Nextron, Communications, Inc.) for
purposes of sales and customer transition.
EXHIBIT D
Employees
XXXX PAYROLL
October 8, 2001
Payable on 10/10/01
VACATION ACCRUAL
Vacation Gross
Employee Hourly Rate Accrual Salary
$ -
$ -
Xxxx, Xxxxx $ 35.10 76.00 $ 2,667.60
Xxxxxx, Xxxx $ 40.39 112.00 $ 4,523.68
Xxxxxxxxx, Xxxxx $ 40.14 118.00 $ 4,736.52
Xxxxxxxx, Xxxxx $ 26.45 62.00 $ 1,639.90
Xxxxxx, Xxx $ 50.48 56.00 $ 2,826.88
Xxxxxxxx, Xxxxxx $ 49.55 3.00 $ 148.65
Xxxxxxxxx, Xxxxxxxx $ 25.48 19.00 $ 484.12
Xxxx, Xxxxx $ 54.81 -
Xxxxxxxxxx, Xxxxx $ 43.27 50.00 $ 2,163.50
Xxxxx, Xxxxx $ 32.70 68.00 $ 2,223.60
Xxxxxxx, Xxxxxxxx 43.27 98.00 $ 4,240.46
Xxxxx, Xxxxx 108.18 160.00 $17,308.80
Xxxxxx, Xxxxx 86.54 47.97 $ 4,151.32
FINAL TOTAL $47,115.03
EXHIBIT E
NON-COMPETE AND NON-SOLICITATION AGREEMENT
This Non-Compete and Non-Solicitation Agreement (this "Agreement") is made as of
October 16, 2001, by and between Nextron Communications, Inc., a California
corporation ("Purchaser") and Xxxx Interactive Services, Inc., a Colorado
corporation ("Seller").
RECITALS
Concurrently with the execution and delivery of this Agreement, Purchaser is
licensing technology and purchasing assets (the "Assets") from Seller pursuant
to the terms and conditions of that certain License Agreement ("License
Agreement") and Asset Purchase Agreement ("Purchase Agreement"), both dated
October 16, 2001, (together the "Agreements"). Section 2.4 of the Purchase
Agreement requires that a non-compete and non-solicitation agreement be executed
and delivered by Seller as a condition to the purchase of the Assets by
Purchaser.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
Capitalized terms not expressly defined in this Agreement shall have the
meanings ascribed to them in the Purchase Agreement.
2. NON-COMPETITION; NON-SOLICITATION
As an inducement for Purchaser to enter into the Purchase Agreement and as
additional consideration for the consideration to be paid to Seller under the
Purchase Agreement, Seller agrees that:
(a) For a period of five (5) years after the Closing:
(i) Except as provided in subsection 2(c) hereof, neither Seller nor any of its
subsidiaries will directly or indirectly, engage or invest in, own, manage,
operate, finance, control, or participate in the ownership, management,
operation, or control of any business whose products or activities compete in
whole or in part with the business of Purchaser as being conducted as of the
date hereof and as such business is expanded as a result of the License
Agreement and the Purchase Agreement; provided, however, that Seller may
purchase or otherwise acquire up to (but not more than) five percent (5%) of any
class of securities of any enterprise (but without otherwise participating in
the activities of such enterprise) if such securities are listed on any national
or regional securities exchange or have been registered under Section 12(g) of
the Securities Exchange Act of 1934. Seller agrees that this covenant is
reasonable with respect to its duration, geographical area, and scope.
(ii) Seller will not, directly or indirectly, either for itself or any other
person, (A) induce or attempt to induce any employee of the Seller's AccelX
business who becomes an employee of Purchaser to leave
the employ of Purchaser, (B) in any way interfere with the relationship between
Purchaser and any such employee, or (C) induce any customer, supplier, licensee,
or business relation of the Seller's AccelX business at the time of the Closing
or as a result of the License Agreement or the Purchase Agreement that does
business with Purchaser to cease doing business with Purchaser.
(b) In the event of a breach by Seller of any covenant set forth in Subsection
2(a) of this Agreement, the term of such covenant will be extended by the period
of the duration of such breach.
3. REMEDIES
If Seller breaches the covenants set forth in Section 2 of this Agreement,
Purchaser will be entitled to the following remedies:
(a) Damages from Seller; and
(b) In addition to its right to damages and any other rights it may have, to
obtain injunctive or other equitable relief to restrain any breach or threatened
breach or otherwise to specifically enforce the provisions of Section 2 of this
Agreement, it being agreed that money damages alone would be inadequate to
compensate the Purchaser and would be an inadequate remedy for such breach.
(c) The rights and remedies of the Purchaser pursuant to this Agreement are
cumulative and not alternative.
4. GOVERNING LAW
This Agreement will be governed by the laws of the State of Delaware without
regard to conflicts of laws principles.
5. SEVERABILITY
Whenever possible each provision and term of this Agreement will be interpreted
in a manner to be effective and valid but if any provision or term of this
Agreement is held to be prohibited by or invalid, then such provision or term
will be ineffective only to the extent of such prohibition or invalidity,
without invalidating or affecting in any manner whatsoever the remainder of such
provision or term or the remaining provisions or terms of this Agreement. If any
of the covenants set forth in Section 2 of this Agreement are held to be
unreasonable, arbitrary, or against public policy, such covenants will be
considered divisible with respect to scope, time, and geographic area, and in
such lesser scope, time and geographic area, will be effective, binding and
enforceable against Seller.
6. ENTIRE AGREEMENT
This Agreement, and the Purchase Agreement constitute the entire agreement
between the parties with respect to the subject matter of this Agreement and
supersede all prior written and oral agreements and understandings between
Purchaser and Seller with respect to the subject matter of this Agreement. This
Agreement may not be amended except by a written agreement executed by the party
to be charged with the amendment.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first above written.
XXXX INTERACTIVE SERVICES, INC.:
By ___________________
Its _______________
NEXTRON COMMUNICATIONS, INC.:
By ___________________
Its _______________
EXHIBIT F
Representations and Warranties
Exceptions and Disclosures
None, other than that certain of the Assets are leased as set forth on Exhibit A
hereto. Seller shall use its best efforts to cause such leases to be assigned to
Purchaser as soon as reasonably possible following the Closing. It is understood
that Purchaser may be required to provide to the lessor of such Assets
information regarding Purchaser's financial condition.
EXHIBIT G
D. SHARED SERVICES
PBX circuit
PBX trunk lines
Modem pool trunk lines
Modem pool
T-3 facility charge
Analog circuit
T-1 direct to Inflow
Internet access
Frame relay circuit
Soda
Coffee
Water service
Office supplies
Office maintenance
Office equipment and copier usage
Copiers supplies
Postage (Excluding overnight mailings, bulk mailings and
alike)
Leased Space
Approximately 3,500 square feet in the northeast corner of Seller's corporate
offices.
