Exhibit 10.65
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), made and entered into
this 1st day of March, 2001 (the "Effective Date"), by and between, Lognet 2000,
Inc., a company registered in the State of Delaware ("Lognet"), Lognet Systems
Ltd, a company registered in Israel ("Seller"), Paynet Electronic Billing Ltd.,
a company registered in Israel ("Purchaser"), and xxxxx-xxxxxxxxxx.xxx, Inc. a
company registered in the State of Delaware ("Insci");
WHEREAS, Seller is engaged in the development, marketing and sale, and is
the sole owner of certain software products in the terminal emulation and
printing solution industry, being the software and hardware product lines and/or
technologies known as "Billminer" ("Billminer"), "Oneprint", and "Emulation"
(the latter two shall be referred to jointly as the "Existing Product Lines")
(Billminer and the Existing Product Lines shall be referred to collectively as
the "Product Lines"), all as further identified and described in Exhibit A.
WHEREAS, Seller is a wholly-owned subsidiary of Lognet; and
WHEREAS, Lognet is a wholly-owned subsidiary of Insci; and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to buy
from Seller, all the assets of Seller relating to the Product Lines, as well as
other assets related to the conduct of Seller's business, only as set forth in
this Agreement and Exhibit A hereto (the "Assets") all upon the terms and
conditions and subject to the exceptions set forth herein;
WHEREAS, Seller expects to terminate its employment of a number of
employee involved with its business, and Purchaser desires to hire certain of
these employees, all upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, and agreements of the parties hereinafter set forth, the
parties hereto, intending to be legally bound, do hereby agree as follows:
1. Purchase and Sale of Assets
Subject to the terms and conditions of this Agreement, Purchaser agrees to
purchase from Seller, and Seller agrees to sell, transfer, assign, and deliver
to Purchaser, at the Closing, all right, title, and interest of Seller in and to
all of the Assets as owned or held by Seller for the Consideration set forth in
Section 3 below. Purchaser shall not be granted and shall not receive any rights
from Seller of any kind, known or unknown, contingent or otherwise, except as
explicitly set forth herein.
2. Assumption of Liabilities
Purchaser shall not assume any liabilities and obligations of Seller of any
kind, known or unknown, contingent or otherwise, in connection with the Assets
except those liabilities and obligations expressly identified herein.
Without derogating from the generality of the aforesaid, Purchaser shall not
assume or be responsible for:
2.1 Any tax or related liability or obligation of Seller in any
jurisdiction, whether or not related to the transactions contemplated
herein;
2.2 Any liability or obligation resulting from violations of any
applicable laws or regulations by Seller prior to the Closing Date or
infringement of third-party rights or interests;
2.3 Any liabilities or obligations relating to present and past employees
of the Seller, except with respect to certain liabilities and
obligations certain employees of Seller who are to be employed by
Purchaser, for which the Purchaser shall be liable to the extent, and
only to the extent, explicitly set forth in Exhibit B;
2.4 Any liability or obligation for product liability or warranty claims
or damage claims arising out of defects in or failures of any
product, program, or material of Seller or of the Product Lines
provided, distributed, licensed, or delivered prior to the Closing
Date except as explicitly set forth in Exhibit B.
2.5 Any litigation pending or threatened against Seller or the Assets.
3. Consideration
In consideration of the transfer of the rights, title and interest in the Assets
as set forth herein, the Purchaser shall pay to the Seller at the Closing, a
cash payment in the amount of one hundred thousand U.S. dollars ($100,000) (the
"Cash Payment"). Furthermore, the Purchaser shall, subsequent to the Closing,
issue to Insci 844,445 fully paid and non-assessable ordinary shares in the
Purchaser, representing 20% of the share capital of the Purchaser on a
fully-diluted basis ("Shares") as of the date of issuance of the Shares, subject
to the terms and restrictions applying to the Shares as set forth in Exhibit E
attached hereto. In addition, the Purchaser shall undertake the payment of
certain royalty obligations to Insci, in accordance with the terms and
conditions set forth in Section 11 below ("Royalty Obligations"). The Cash
Payment, the Shares and the Royalty Obligations shall be referred to herein as
the "Consideration".
4. Closing of Transfer and Purchase
4.1 Closing. The sale, assignment, transfer and delivery of the Assets,
the purchase and acceptance thereof by the Purchaser, the Cash
Payment, and other items listed below in Section 4.2 shall take place
at a closing (the "Closing") to be held at the offices of Xxxxx Xxxxx
& Co., 00 Xxxxxx Xxxxxx, Xxxxxxxxx, on the the date of execution of
this Agreement.
4.2 Transactions at Closing. At the Closing, the following transactions
shall occur, which transactions shall be deemed to take place
simultaneously and no transaction shall be deemed to have been
completed or any document delivered until all such transactions have
been completed and all required documents delivered:
4.2.1 The Seller shall sell, transfer, convey, assign and deliver
the Assets to the Purchaser, including a master copy of each
of the Product Lines (in both source code and object code
form) and third party software used in connection therewith.
4.2.2 The Purchaser shall cause the transfer of the Cash Payment by
wire transfer to an account designated by Seller, or by
banker's check or such other form of payment as is mutually
agreed.
4.2.3 The Purchaser shall deliver to Insci an unexecuted form of
resolutions of the Purchaser's Board of Directors issuing the
Shares to Insci, attached hereto as Exhibit C, together with
an unexecuted form of notice of issuance of the Shares to the
Israel Registrar of Companies, attached hereto as Exhibit C1,
the registration of the Shares in the name of Insci in the
share transfer register of the Purchaser
4.2.4 The Purchaser and Insci shall execute the Pledges, in the
forms attached hereto as Exhibits D1 and D2.
4.2.5 The Purchaser and Insci shall execute the Share Repurchase
Agreement , in the form attached hereto as Exhibit E.
4.2.6 The Seller, Lognet and Insci shall deliver to the purchaser
duly executed copies of the Letter of Undertaking regarding
Non-Competition and Non-Solicitation of Employees in the form
attached hereto as Exhibits G.
5. Representations And Warranties Of Seller, Lognet and Insci. The Seller,
Lognet and Insci hereby represent and warrant, jointly and severally, to the
Purchaser, and acknowledge that the Purchaser is entering into this Agreement in
reliance thereon, as follows:
5.1 Title. The Seller is the sole beneficial owner of the Assets, and
upon the consummation of the transactions contemplated herein, the
Purchaser will acquire from the Seller, good and marketable title to
the Assets free and clear of all liens, charges, encumbrances, debt,
restrictions, rights, claims, calls and commitments of any kind,
except for the third party software detailed in Exhibit A, for which
the Purchaser will be subject to the terms of license for such
software
5.2 Authority and Enforceability. The Seller has full and unrestricted
legal right, power and authority to enter into and perform all of its
obligations under this Agreement, and to sell and transfer the Assets
to the Purchaser as provided herein. This Agreement, when executed
and delivered by the Seller, shall constitute the valid and legally
binding obligation of the Seller, legally enforceable against the
Seller in accordance with its terms.
5.3 Consents. No consent, approval, order, license, permit, action or
authorization by any governmental authority (including, without
limitation, the Office of the Chief Scientist) or any third party is
required that has not been, or will not have been, obtained by the
Seller prior to the Closing in connection with the valid execution,
delivery and full performance of this Agreement and the Exhibits
hereto.
5.4 No Breach. Neither the execution and delivery of this Agreement nor
compliance by the Seller, Lognet or Insci with the terms and
provisions hereof and thereof, will conflict with, or result in a
breach or violation of, any of the terms, conditions and provisions
of: (i) any judgment, order, injunction, decree, or ruling of any
court or governmental authority, domestic or foreign, to which the
Seller, Lognet or Insci is subject, (ii) any agreement, contract,
lease, license, order or commitment to which the Seller, Lognet or
Insci is a party or to which it is subject, and which would impair
the ability of the Seller, Lognet or Insci to execute, deliver or
perform this Agreement, or (iii) applicable law.
5.5 Intellectual Property Rights. Except for the rights and licenses
validly and effectively established by agreements with customers of
the Seller, the Assets include and the Seller owns all patents,
trademarks, service marks, trade names, and copyrights (including
registrations, licenses, and applications pertaining thereto) and all
other intellectual property rights, trade secrets, and other
proprietary information, processes, and formulae necessary for the
ownership and use of the Assets (if and to the extent such items
currently exist) (the "Intellectual Property"). The Purchaser shall
receive all of the Intellectual Property at the Closing, free and
clear of all pledges, liens, encumbrances and third party rights. No
claims have been asserted by any person or entity in connection with
the Intellectual Property, and Seller, Lognet and/or Insci do not
know of any valid basis for any such claim. The use of the
Intellectual Property by the Seller does not infringe on the rights
of any third party. The Intellectual Property includes the source
code, system documentation, statements of principles of operation,
and schematics for all of the Product Lines, as well as any pertinent
commentary or explanation that may be necessary to render such
materials understandable and usable by a trained computer programmer
for the development, maintenance, and implementation thereof. Seller
has validly and effectively obtained the right and license to use,
copy, modify, and distribute any third-party programming, software
and materials contained in the Product Lines.
5.6 No Material Adverse Change. Seller has not removed or disposed of any
Assets except in the ordinary course of business. There has been no
material adverse change in the condition of the Assets since January
30th, 2001, with the exception of the sale of the domain name known
as "XxxXxxxx.xxx".
5.7 Taxation Matters. The Seller, Lognet and Insci hereby declare,
confirm, represent and warrant that any and all taxation which may be
imposed on the Seller, Lognet or Insci as a result of this Agreement
and the transactions contemplated thereby shall be solely for the
Seller's, Lognet's or Insci's liability, and the Seller, Lognet or
Insci (as applicable) shall be solely responsible for effecting
payment of the same and shall not have any recourse to the Purchaser
in respect thereof.
5.8 No Broker. No agent, broker, person or firm acting in a similar
capacity on behalf of or under the authority of the Seller, Lognet or
Insci is or will be entitled to any broker's or finder's fee or any
other commission or similar fee, directly or indirectly, on account
of any action taken by Seller, Lognet of Insci in connection with any
of the transactions contemplated under this Agreement.
5.9 Litigation; Claims. No action, proceeding, or government inquiry or
investigation is pending or threatened against the Seller or Insci in
connection with the Assets, nor the knowledge of Seller or Insci, is
there any basis for the foregoing. The foregoing includes, without
limiting its generality, actions pending or threatened involving the
prior employment of any of the employees of the Seller or use by any
of them in connection with the Seller's or business of any
information, property or techniques allegedly proprietary to any of
their former employers. The Seller is not a party to or subject to
the provisions of any order, writ, injunction, judgment or decree of
any court or governmental agency or instrumentality. There is no
action, suit, proceeding or investigation by the Seller currently
pending or that the Seller intends to initiate.
5.10 Capitalization. All of the issued and outstanding shares (including
all options, warrants or other securities convertible into shares) in
the Seller are owned exclusively by Lognet, and all of the issued and
outstanding shares (including all options, warrants or other
securities convertible into shares) in Lognet are owned exclusively
by Insci.
5.11 Material Contracts. Exhibit A contains a true and complete list of
all material contracts and agreements relating to the Assets which
the Purchaser shall assume as of the Closing (the "Agreements"). Each
of such contracts and agreements is in full force and effect, and
neither the Seller nor any other party thereto is in material breach
thereof. The Purchaser shall not be under any obligation to any third
party in connection with the Assets, which is not explicitly provided
for in the Agreements. True and complete copies of all the Agreements
have been delivered to the Purchaser.
5.12 Full Disclosure. Neither this Agreement nor any Exhibit hereto, or
certificates made or delivered in connection herewith contains any
untrue statement of a material fact or omits to state a material fact
necessary to make the statements herein or therein not misleading, in
view of the circumstances in which they were made. Seller, Lognet and
Insci are not aware of any fact that would prevent a reasonable
purchaser from purchasing the Assets.
5.13 Effectiveness; Survival. Each representation and warranty contained
in this Section 5 is deemed to be made on the date of this Agreement
and at the Closing, and shall survive and remain in full force and
effect after the Closing, subject to the provisions of Section 12
below.
6. Representations And Warranties Of Purchaser. Purchaser hereby
represents and warrants to Seller as follows:
6.1 Authority and Enforceability. The Purchaser has full and unrestricted
legal right, power and authority to enter into and perform all of its
obligations under this Agreement and to purchase and receive the
Assets as provided herein. This Agreement, when executed and
delivered by the Purchaser, shall constitute the valid and legally
binding obligation of the Purchaser, legally enforceable against the
Purchaser in accordance with its terms.
6.2 Shares. The Shares, when issued in accordance with this Agreement,
will be duly authorized, validly issued, fully paid, non-assessable
and free of any preemptive rights, and will be free and clear of any
liens, encumbrances, claims or third party rights of any kind.
6.3 No Broker. No agent, broker, person or firm acting in a similar
capacity on behalf of or under the authority of the Purchaser is or
will be entitled to any broker's or finder's fee or any other
commission or similar fee, directly or indirectly, on account of any
action taken by the Purchaser in connection with any of the
transactions contemplated under this Agreement.
6.4 Consents. No consent, approval, order, license, permit, action or
authorization by any governmental authority or any third party is
required that has not been, or will not have been, obtained by the
Purchaser prior to the Closing in connection with the valid
execution, delivery and full performance of this Agreement and the
Exhibits hereto.
6.5 No Breach. Neither the execution and delivery of this Agreement nor
compliance by the Purchaser with the terms and provisions hereof and
thereof, will conflict with, or result in a breach or violation of,
any of the terms, conditions and provisions of: (i) any judgment,
order, injunction, decree, or ruling of any court or governmental
authority, domestic or foreign, to which the Purchaser is subject,
(ii) any agreement, contract, lease, license, order or commitment to
which the Purchaser is a party or to which it is subject, and which
would impair the ability of the Purchaser to execute, deliver or
perform this Agreement, or (iii) applicable law.
6.6 Full Disclosure. The Purchaser has not made in this Agreement any
untrue statement of a material fact or knowingly omitted to state a
material fact known to the Purchaser which is necessary to make the
statements herein not misleading, in view of the circumstances in
which they were made, and which the Purchaser might reasonably expect
to have a material adverse effect on the transactions contemplated
hereunder.
6.7 Effectiveness; Survival. Each representation and warranty contained
in this Section 6 is deemed to be made on the date of this Agreement
and at the Closing, and shall survive and remain in full force and
effect after the Closing, subject to the provisions of Section 12
below.
7. Conditions of Closing of the Purchaser. The obligations of the Purchaser to
purchase the Assets and transfer the Consideration pursuant hereto are subject
to the fulfillment of the following conditions precedent, any one or more of
which may be waived in whole or in part by the Purchaser, which waiver shall be
at the sole discretion of the Purchaser:
7.1 Representations and Warranties. The representations and warranties
made by the Seller and the Company in this Agreement shall have been
true and correct when made, and shall be true and correct as of the
Closing.
7.2 Covenants. All covenants, agreements, and conditions contained in
this Agreement to be performed or complied with by the Seller prior
to the Closing shall have been performed or complied with by the
Seller, prior to or at the Closing.
7.3 Consents, etc. The Seller shall have secured all permits, consents
and authorizations that shall be necessary or required lawfully to
consummate this Agreement and to transfer the Assets to be purchased
by the Purchaser at the Closing, including without limitation, from
the Investment Center of the Ministry of Industry and Trade and other
regulatory bodies, as applicable, provided however that the approval
of the Office of the Chief Scientist to the transfer of the Existing
Product Lines shall be obtained and delivered to the Purchaser in
accordance with Section 9 below.
7.4 Due Diligence. The Purchaser's due diligence review in connection
with the transactions contemplated herein shall have been completed
to the sole and complete satisfaction of the Purchaser.
7.5 Absence of Adverse Changes. There will have been no material adverse
change in the legal, financial or business condition or prospects of
the Seller and/or the Assets, in the sole judgment of the Purchaser.
7.6 Delivery of Documents. All of the documents to be delivered by the
Seller pursuant to Section 4.2 shall be in a form and substance
satisfactory to the Purchaser and its counsel, and shall have been
delivered to the Purchaser.
8. Conditions of Closing of the Seller. The Seller's obligations to sell and
transfer the Assets at the Closing are subject to the fulfillment at or before
the Closing of the following conditions precedent, which conditions may be
waived in whole or in part by the Seller, and which waiver shall be at the sole
discretion of the Seller: that (a) all covenants, agreements and conditions
contained in this Agreement to be performed, or complied with, by the Purchaser
prior to the Closing shall have been performed or complied with by the Purchaser
prior to or at the Closing, (b) the representations and warranties made by the
Purchaser in this Agreement shall have been true and correct when made, and
shall be true and correct as of the date of the Closing, and (c) all corporate
and other proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such transactions shall
be satisfactory in substance and form to the Purchaser and its counsel, and the
Purchaser and their counsel shall have received all such copies of such
documents as the Purchaser or their counsel may reasonably request.
9. Post Closing Covenants
9.1 Within twenty-one (21) days of the date of the Closing, the Purchaser
shall deliver to Insci copy of resolutions of the Purchaser's Board
of Directors issuing the Shares to Insci, in the form attached hereto
as Exhibit C, together with a duly completed notice of issuance of
the Shares to the Israel Registrar of Companies, in the form attached
hereto as Exhibit D.
9.2. Within twenty-one (21) days of the date of the Closing, the Seller
shall deliver to the Purchaser:
9.2.1 A Waiver and Release, in the form attached hereto as Exhibit
F, from each of the employees listed in Exhibit B.
9.2.2 The Financial Statements described in Section 11.2.1 below,
and the parties shall execute a document setting forth the
Maximum Royalties for the Existing Product Lines (as defined
in Section 11.2.1).
9.2.3 Approval of the Chief Scientist of the transfer of the
Existing Product Lines to the Purchaser as contemplated
hereunder.
9.3 Further Assurances. Without derogating from the foregoing, at and
after the Closing, without further consideration, the parties hereto
shall take all such other action and shall procure or execute,
acknowledge, and deliver all such further certificates, conveyance
instruments, consents, and other documents as shall be requested by a
party hereto in writing and which is necessary or desirable (a) to
vest in Purchaser, and perfect and protect Purchaser's right, title,
and interest in, and enjoyment of, the Assets, or (b) to ensure more
effectively the compliance of the parties hereto with their
agreements, covenants, warranties, and representations under this
Agreement. The Seller and/or Lognet and/or Insci undertake to
promptly refer all business opportunities relating to the Assets to
the Purchaser for a period of three (3) years from the date of the
Closing.
10. Employees. It is the parties intention that at the Closing or shortly
thereafter, certain employees of the Seller, as set forth in Exhibit B, shall
cease to be employed by the Seller and shall be hired by the Purchaser. The
Seller shall use its best efforts to enable Purchaser to hire said employees, on
such terms as Purchaser may reasonably establish, as Purchaser may specify.
Except as explicitly provided herein and in Exhibit B, the Seller shall be
liable for payment of all salary and employment related expenses relating to the
employment of said employees, and for any claims, demands and expenditures of
such employees in connection with their employment with the Seller, and shall
use its best efforts to procure the execution by each of said employees of a
Waiver and Release in the form set forth in Exhibit F.
11. Royalty Obligations; Pledges.
11.1 Royalty Obligations for Billminer. The Purchaser undertakes to pay
royalties to Insci in the amount of 20% of:
(a) Revenues (less cost of goods sold, including all third party
commissions, third party fees, shipping and handling charges
and custom duties, and all other payments directly required to
be made to third parties in connection with the sale or
license of Billminer and net of taxes) received from the sale
and licensing of products following the Closing (including for
installation and maintenance) based on the Billminer
technology ;
(b) Proceeds raised by the Purchaser following the Closing from
equity investments in the Purchaser by any third party other
than the existing shareholders of the Purchaser as of the
Closing,
subject to the following:
11.1.1 With respect to any sale or license of a complete Billminer
system, the minimum royalty payment shall be $20,000, per sale
or license, irrespective of whether the royalty payable under
Section 11.1(a) would be less than this amount;
11.1.2 The total amount (ceiling) of royalties payable under this
Section 11.1 shall be seven hundred thousand U.S. dollars
($700,000);
11.1.3 All payments hereunder shall be made within thirty (30) days
from the end of the calendar quarter in which the revenues
under Section 11.1(a) and/or Payment shall be made in U.S.
dollars, via direct bank transfer transfer to a bank account
designated by Insci.
the proceeds under Section 11.1(b) have been received by the
Purchaser;
11.1.4 In the event that the amount set forth in Section 11.1.2 will
not have been fully paid upon completion of two years from the
date of Closing, the Purchaser shall be obligated to either:
(a) pay upon that date all outstanding amounts required for
payment in full of the total amount set forth in Section
11.1.2; or (b) transfer upon that date, without any further
consideration, free and clear of all liens, charges,
encumbrances, debt, and restrictions, claims, calls and
commitments of any kind all right, title and interest in the
Billminer technology acquired in this Agreement, as well as
all of Purchaser's rights in any enhancements or modifications
thereof and any trademarks registered by Purchaser in
connection with the Billminer technology acquired in this
Agreement, to Insci, in which case the Purchaser shall have no
further obligation towards the Seller or Insci in connection
with the Billminer technology;
11.1.5 Performance by the Purchaser of its obligations under this
Section 11.1 shall be secured by a Pledge on the Billminer
technology in favor of Insci, in the form attached hereto as
Exhibit D1.
11.2 Royalty Obligations for Existing Product Lines. The Purchaser
undertakes to pay royalties to Insci in the amount of 35% of the
revenues (less cost of goods sold, including all third party
commissions, third party fees, shipping and handling charges, custom
duties and all other payments directly required to be made to third
parties in connection with the sale or license of Existing Product
Lines and net of taxes) from the sale and licensing of products
(including for installation and maintenance) based on the Existing
Product Lines subsequent to the Closing, subject to the following:
11.2.1 The maximum amount of royalties payable under this Section
11.2 shall be an amount equivalent to the gross revenues
received by the Seller (and or any affiliate thereof) from the
sale and licensing of products based on the Existing Product
Lines for the 2000 calendar year, as evidenced by reviewed
consolidated financial statements for the Seller for calendar
year 2000 to be prepared by Ernst and Young, detailing inter
alia revenues received and accounts receivable in connection
with the Existing Product Lines and other Assets, which shall
be delivered to the Purchaser in accordance with Section 9
above (the "Total Royalties for the Existing Product Lines").
The amount determined as the Maximum Royalties for the
Existing Product Lines shall be recorded in a written document
and signed by both parties. Notwithstanding the aforesaid, in
no event shall the Total Royalties for the Existing Product
Lines exceed $870,000.
11.2.2 All payments hereunder shall be made within thirty (30) days
from the end of the calendar quarter in which the revenues
under Section 11.2 have been received by the Purchaser;
Payment shall be made in U.S. dollars via direct bank transfer
to a bank account designated by Insci.
11.2.3 Performance by the Purchaser of its obligations under this
Section 11.1 shall be secured by a Pledge on the existing
Product Lines in favor of Insci, in the form attached hereto
as Exhibit D2.
11.3 Reporting and Audit. Purchaser will keep true and accurate records
and books of account containing all the data reasonably required for
full computation and verification of royalty payments due under this
Agreement and shall provide Insci with a report once annually, no
later than March 1st of each calendar year, detailing revenues,
costs, and royalties payable per calendar quarter, and certified as
true and accurate by Purchaser's accountant. Purchaser shall permit
the reasonable inspection and copying of such records and books of
account by Insci or its authorized representatives at any time during
normal business hours. Fees and expenses of such inspections (such as
professional fees and expenses paid to accountants or other examiners
retained by Insci and the cost of copying records and books of
account) shall be borne by Insci, unless such inspection shall reveal
that an error of 5% or more in any royalty payment was made, in which
case the fees and expenses incurred in connection with the inspection
during which such error was discovered shall be borne by Purchaser.
All information disclosed or materials provided to Insci or its
representatives hereunder shall be maintained in strict
confidentiality.
12. Indemnification.
12.1 Seller and/or Lognet and/or Insci shall indemnify, defend, and hold
harmless Purchaser, at, and at any time after, the Closing, from and
against any and all demands, claims, actions, or causes of action,
assessments, losses, damages, liabilities, costs, and expenses,
including reasonable fees and expenses of counsel, asserted against,
resulting to, imposed upon, or incurred by the Purchaser, directly or
indirectly, by reason of, resulting from, or arising in connection
with any breach of any representation, warranty, or agreement of
Seller contained in or made pursuant to this Agreement, provided
however that Seller's and/or Lognet's and/or Insci's undertaking
hereunder shall only apply (a) with respect to demands, claims,
actions, or causes of action, assessments, losses, damages,
liabilities, costs, and expenses amounting to at least $50,000 in any
single instance or series of related instances; (b) for a period of
three (3) years from the date of the Closing.
12.2 Purchaser shall indemnify, defend, and hold harmless Seller, at, and
at any time after, the Closing, from and against any and all demands,
claims, actions, or causes of action, assessments, losses, damages,
liabilities, costs, and expenses, including reasonable fees and
expenses of counsel, asserted against, resulting to, imposed upon, or
incurred by Seller, directly or indirectly, by reason of, resulting
from, or arising in connection with any breach of any representation,
warranty, or agreement of Purchaser contained in or made pursuant to
this Agreement, provided however that Purchaser's undertaking
hereunder shall only apply (a) with respect to demands, claims,
actions, or causes of action, assessments, losses, damages,
liabilities, costs, and expenses amounting to at least $50,000 in any
single instance or series of related instances; (b) for a period of
three (3) years from the date of the Closing.
13. Miscellaneous.
13.1 Entire Agreement. This Agreement (including the Exhibits hereto),
constitute the sole understanding of the parties with respect to the
subject matter hereof. No amendment, modification, or alteration of
the terms or provisions of this Agreement shall be binding unless the
same shall be in writing and duly executed by the parties hereto.
13.2 Successors and Assigns. The terms, conditions, and obligations of
this Agreement shall inure to the benefit of and be binding upon the
parties hereto and the respective successors and assigns thereof.
13.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall constitute the same instrument.
13.4 Headings. The headings of the Sections and paragraphs of this
Agreement are inserted for convenience only and shall not be deemed
to constitute part of this Agreement or to affect the construction
hereof.
13.5 Delays or Omissions. No delay or omission to exercise any right,
power, or remedy accruing to any party upon any breach or default
under this Agreement, shall be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit,
consent, or approval of any kind or character on the part of any
party of any breach or default under this Agreement, or any waiver on
the part of any party of provisions or conditions of this Agreement,
must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any of the parties,
shall be cumulative and not alternative.
13.6 Expenses. Each of the parties hereto shall bear its costs and
expenses incurred by it or on its behalf in connection with this
Agreement and the transactions contemplated hereby, including fees
and expenses of its own attorneys and financial advisors.
13.7 Notices. Any notice, request, instruction, or other document to be
given hereunder by any party hereto to any other party hereto shall
be in writing and delivered personally or sent by registered or
certified mail, postage prepaid,
if to Seller:
c/o Shapira & Co. Law Offices
00 Xxxxxxxxxx Xx.
Xxx Xxxx 00000
Xxxxxx
Fax: (000 0) 000 0000
Attn: Xxx Xxxxxxx
if to Purchaser:
00 Xxx Xxxxxx Xxxxxx
Xxxxx
Xxxxxx
Fax: 000 0 000 0000
With a copy to:
Xxxxx Xxxxx & Xx.
00 Xxxxxx Xxxxxx
Xxxxxxxxx 00000
Israel
Fax: (000 0) 0000000
Attn: Xxxxx Xxxxxxxxx, Adv.
if to Insci:
0 Xxxxxxxxxxx Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
X.X.X.
Fax: (000) 000 0000
Attn. Xxxx Xxxxx, CEO
With a copy to:
Xxx Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000 X.X.X.
or at such other address for a party as shall be specified by like
notice. Any notice that is delivered personally in the manner
provided herein shall be deemed to have been duly given to the party
to whom it is directed upon actual receipt by such party (or its
agent for notices hereunder). Any notice that is addressed and
mailed in the manner herein provided shall be conclusively presumed
to have been duly given to the party to which it is addressed at the
close of business, local time of the recipient, on the fourth
business day after the day it is so placed in the mail.
13.8 Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Israel, without giving
effect to the principles of conflicts of law thereof.
13.9 Severability. If any provision of this Agreement is held by a court
of competent jurisdiction to be unenforceable under applicable law,
then such provision shall be excluded from this Agreement and the
remainder of this Agreement shall be interpreted as if such provision
were so excluded and shall be enforceable in accordance with its
terms; provided, however, that in such event this Agreement shall be
interpreted so as to give effect, to the greatest extent consistent
with and permitted by applicable law, to the meaning and intention of
the excluded provision as determined by such court of competent
jurisdiction.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed on its behalf on the date indicated.
THE SELLER: THE PURCHASER:
LOGNET SYSTEMS LTD. PAYNET ELECTRONIC BILLING LTD.
by: /s/ Xxxx Xxxxx & Xxxx Xxxxx by: /s/ Xxxx Xxxxx
-------------------------- --------------------------
name: name:
-------------------------- --------------------------
title: CO-CEO's title: CEO
-------------------------- --------------------------
XXXXX-XXXXXXXXXX.XXX, INC.
by: /s/ Xxxx Xxxxx LOGNET 2000, INC.
-------------------------- by: /s/ Xxxx Xxxxx & Xxxx Xxxxx
name: --------------------------
-------------------------- name:
title: CEO & President --------------------------
-------------------------- title: CO-CEO's
--------------------------
