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EXHIBIT 10.82
ASSET PURCHASE AGREEMENT
Asset Purchase Agreement (this "Agreement"), dated as of February 12,
2001, made by and between Internet Creations, Inc. (d/b/a Internet Connections),
a Virginia corporation ("Internet Creations" or "SELLER") and Access Technology,
Inc., a Virginia corporation ("BUYER").
WHEREAS, SELLER desires to sell substantially all of its assets,
"as-is" and "where-is" to BUYER pursuant to the terms and conditions set forth
in this Agreement;
WHEREAS, BUYER is willing to purchase the Assets from SELLER pursuant
to the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, BUYER and SELLER hereby adopt this Agreement,
and hereby agree as follows:
1. SALE AND TRANSFER OF ASSETS
1.1 Subject to the terms and conditions of this Agreement, SELLER
hereby agrees to sell, convey, assign, transfer and deliver to BUYER, and BUYER
agrees to purchase, at the Closing (as hereafter defined), to the extent, but
only to the extent assignable without consent of third parties, only those
properties, assets, rights and business of SELLER which are set forth in Exhibit
A attached hereto, as they shall exist as of February 12, 2001 (the "Assigned
Assets") as follows (but, in any event, excluding all Retained Assets (as
defined in Section 1.2 hereof)):
(i) All of SELLER's existing customer base (the "Existing Customer
Base") as of the date of Closing, only to the extent set forth
on Exhibit A attached hereto, and all related files and
records relating thereto;
(ii) Accounts receivable, notes receivable and other rights of
SELLER to receive payments for products sold and/or services
rendered arising from sales after the Closing Date, based on
the date of SELLER's rendering services or date of delivery of
product, not the invoice date, only to the extent as set forth
on Exhibit A attached hereto; and
(iii) All of SELLER's equipment and software, as set forth on
Exhibit A attached hereto.
For purposes of this Agreement, the Assigned Assets are being sold,
conveyed, assigned, transferred and delivered to BUYER "AS-IS, WHERE-IS,"
without representation or warranty of any kind, express or implied, except as
specifically set forth herein.
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1.2 Anything contained in Section 1.1 above to the contrary
notwithstanding, the following properties, assets, rights and interests of the
business of SELLER (the "Retained Assets") are expressly excluded from the
purchase and sale contemplated hereby, and, as such, are not included in the
Assigned Assets:
(i) cash, cash equivalents and accounts receivable, as accrued in
the ordinary course of business, prior to the Closing Date;
and
(ii) all other assets of SELLER that are not Assigned Assets.
1.3 Subject to the terms and conditions of this Agreement, BUYER, upon
the sale and purchase of the Assigned Assets, shall hereby assume, pay and
discharge when due only the following liabilities and obligations (the "Assumed
Liabilities"):
(i) all liabilities and obligations of SELLER under any warranties
to customers with respect to goods or products sold or leased
or services provided prior to the Closing Date by SELLER or by
its predecessors in interest, based on the date of vendors'
rendering services or date of delivery of product, not the
invoice date for expenses and liabilities, as set forth or
reflected on Exhibit B attached hereto; and
(ii) all other liabilities and obligations of SELLER from and after
the Closing Date, as set forth in or reflected on Exhibit B
attached hereto.
1.4 Any provision to this Agreement to the contrary notwithstanding,
BUYER will not and does not assume the following liabilities and obligations
(the "Retained Liabilities") of SELLER even if, to any extent, they arose in
connection with, were incurred by or were related to, the operation of SELLER's
business:
(i) any liabilities or any existing employment obligations or
benefits, such as, without limitation, taxes, withholding,
deferred compensation, bonuses, vacation, sick leave or other
arrangements, and any such obligations, benefits or
arrangements existing as of the Closing Date shall either
remain the responsibility of SELLER, or terminate as the case
may be, in accordance with applicable laws;
(ii) any leases or accounts payable of SELLER; and
(iii) any liabilities or expenses relating to and incurred before
the Closing Date, based on the date of vendors' rendering
services or date of delivery of product, not the invoice date
for expenses and liabilities.
2. CONSIDERATION
2.1 The purchase price for the Assigned Assets (the "Purchase Price")
shall be $320,000, $47,000 of which shall be payable at Closing and $273,000
which shall be evidenced by the Note (as described in Section 4.1(b)).
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3. CLOSING
3.1 The closing shall take place at the offices of Access Technology,
Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ , at 10:00 a.m. on February 12, 2001
(the "Closing"), or such other place and time as may be mutually agreed. The
date of Closing is hereinafter referred to as the Closing Date.
4. CONDITIONS TO CLOSING
4.1 BUYERS obligation to purchase the Assigned Assets pursuant to this
Agreement is subject to the fulfillment, at the Closing, of the following
conditions:
(a) BUYER shall make a cash payment to SELLER in the amount of $47,000
in immediately available funds (the "Closing Payment"). Additionally,
BUYER shall issue a senior promissory note to SELLER (the "Note") in
the principal amount of $273,000, bearing interest at a rate of nine
(9%) percent per annum. Principal and interest on the Note shall be
payable in equal payments every month for thirty-six (36) months
beginning one month following the Closing Date for 36 payments in
amounts of $8,681.35 each. BUYER shall ▇▇▇▇▇ ▇ ▇▇▇▇ on and security
interest in all of its assets as collateral security for the due
payment and performance of all indebtedness, liabilities and
obligations under the Note, as set forth in a security agreement
between SELLER and BUYER, attached hereto as Exhibit C, and execute one
or more financing statements pursuant to the Uniform Commercial Code
thereunder.
(b) At the Closing, SELLER shall execute and deliver to BUYER an
Assignment, the form of which is attached as Exhibit D hereto,
assigning to BUYER all of the Assigned Assets, and ▇▇▇▇ of Sale, the
form of which is attached hereto as Exhibit E, which vests title to the
Assigned Assets in BUYER to the extent provided by this Agreement.
(c) The representations and warranties of SELLER and BUYER contained in
this Agreement shall be true and correct when made, and shall be true
and correct at the Closing with the same force and effect as if they
had been made at and as of such time; and each SELLER and BUYER shall
have performed all obligations and conditions herein required to be
performed or observed by it at or prior to the Closing.
5. REPRESENTATIONS AND WARRANTIES OF SELLER
5.1 SELLER hereby represents, warrants and agrees to BUYER as follows:
(a) SELLER are corporations duly organized, validly existing and in
good standing under the laws of their respective states. SELLER has all
necessary corporate power and authority to own and conduct its business
as is currently being conducted.
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(b) SELLER has full corporate power and authority to execute and
deliver this Agreement and each instrument contemplated hereunder and
to otherwise consummate the transactions contemplated hereunder. The
board of directors of SELLER have duly approved and authorized the
execution and delivery of this Agreement and each of the instruments
and transactions contemplated hereunder. This Agreement and each of the
instruments contemplated hereunder to which SELLER is a party
constitutes, or will constitute when executed and delivered, a valid
and binding agreement of SELLER enforceable in accordance with its
terms.
6. REPRESENTATIONS AND WARRANTIES OF BUYER
6.1 BUYER represents, warrants and agrees to SELLER as follows:
(a) BUYER is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Virginia. BUYER has all
necessary corporate power and authority to own and conduct its business
as is currently being conducted.
(b) BUYER has full corporate power and authority to execute and deliver
this Agreement and each instrument contemplated hereunder and to
otherwise consummate the transactions contemplated hereunder. The board
of directors of BUYER has duly approved and authorized the execution
and delivery of this Agreement and each of the instruments and
transactions contemplated hereunder. This Agreement and each of the
instruments contemplated hereunder to which BUYER is a party
constitutes, or will constitute when executed and delivered, a valid
and binding agreement of BUYER enforceable in accordance with its
terms.
(c) Neither the execution and delivery of this Agreement by the BUYER,
nor compliance with the terms and provisions of this Agreement, on the
part of BUYER will: (a) violate any statute or regulation of any
governmental authority, domestic or foreign, affecting the BUYER; (b)
require the issuance of any authorization, license, consent or approval
of any federal or state governmental agency; (c) conflict with or
result in a breach of any of the terms, conditions or provisions of any
judgment, order, injunction, decree, note, indenture, loan agreement or
any agreement or instrument to which BUYER is a party, or by which
BUYER is bound, or constitute a default thereunder; or (d) require the
approval, ratification or consent of any third party.
(d) BUYER represents that it is a solvent corporation and the
consummation of this Agreement and the terms thereunder will not render
BUYER insolvent.
7. COVENANTS
7.1 SELLER hereby indemnifies and holds BUYER harmless from and
against, and agrees to defend promptly BUYER from and reimburse BUYER for, any
and all losses, including attorneys' fees, that BUYER or any officer, director
or shareholder thereof may at any time suffer or incur, or become subject to, as
a result of or in connection with (i) any breach or inaccuracy of any of the
representations and warranties made by SELLER in or pursuant to this
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Agreement; (ii) any failure by SELLER to carry out, perform, satisfy and
discharge any of its covenants, agreements, undertakings, liabilities or
obligations under this Agreement or under any of the documents and instruments
delivered by SELLER pursuant to this Agreement; and (iii) claims by third
parties against BUYER relating to the operation and ownership by SELLER of the
Assigned Assets before the Closing Date.
7.2 BUYER hereby indemnifies and holds SELLER harmless from and
against, and agrees to defend promptly SELLER from and reimburse SELLER for, any
and all losses, including attorneys' fees, that SELLER or any officer, director
or shareholder thereof may at any time suffer or incur, or become subject to, as
a result of or in connection with (i) any breach or inaccuracy of any of the
representations and warranties made by BUYER in or pursuant to this Agreement;
(ii) any failure by BUYER to carry out, perform, satisfy and discharge any of
its covenants, agreements, undertakings, liabilities or obligations under this
Agreement or under any of the documents and instruments delivered by BUYER
pursuant to this Agreement; and (iii) claims by third parties against SELLER
relating to the operation and ownership by BUYER of the Assigned Assets after
the Closing Date.
7.3 The transactions contemplated by this Agreement shall be
consummated without compliance with the bulk sales laws of any state. If by
reason of any applicable bulk sales law any claims are asserted by creditors of
SELLER, such claims shall be the responsibility of BUYER in the case of claims
arising under any Assumed Liabilities or the responsibility of SELLER in the
case of claims arising under any other liabilities of SELLER. SELLER does not
sell inventory from stock.
7.4 BUYER is entering into this Agreement in reliance on its ability to
acquire the Assigned Assets for use in the operation of its Internet business.
In order to protect and preserve BUYER'S undertaking, SELLER hereby agrees and
covenants (and will cause its owners and affiliated companies to agree and
covenant) not to engage in the Internet service provider business, except in the
automotive vertical markets, for a period of two (2) years following the Closing
Date, in the Commonwealth of Virginia and in an area within a 250 mile radius of
BUYER.
7.5 SELLER shall use its commercially reasonable efforts to maintain
service to existing customers until BUYER can fully perform such services, but
no later than thirty (30) days after the Closing Date.
8. GOVERNING LAW; MISCELLANEOUS
8.1 This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Virginia without regard to principles of
choice of law or conflict of laws that would defer to the substantive law of
another jurisdiction. SELLER irrevocably consents to the jurisdiction of the
United States federal courts and the state courts located in the City of
Richmond in the Commonwealth of Virginia in any suit or proceeding based on or
arising under this Agreement and irrevocably agrees that all claims in respect
of such suit or proceeding shall be determined exclusively in such courts.
SELLER irrevocably waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding. SELLER
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further agrees that service of process mailed by first class mail shall be
deemed in every respect effective service of process in any such suit or
proceeding. Nothing herein shall affect the right of BUYER to serve process in
any other manner permitted by law. SELLER agrees that a final non-appealable
judgment in any such suit or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on such judgment or in any other lawful manner.
8.2 This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to the other
party. This Agreement, once executed by a party, may be delivered to the other
parties hereto by facsimile transmission of a copy of this Agreement bearing the
signature of the party so delivering this Agreement.
8.3 The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement.
8.4 If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
8.5 This Agreement and the other agreements and instruments referenced
herein contain the entire understanding of the parties with respect to the
matters covered herein and therein and, except as specifically set forth herein
or therein, neither SELLER nor BUYER makes any representation, warranty,
covenant or undertaking with respect to such matters. No provision of this
Agreement may be waived other than by an instrument in writing signed by the
party to be charged with enforcement and no provision of this Agreement may be
amended other than by an instrument in writing signed by SELLER and BUYER.
8.6 Any notices required or permitted to be given under the terms of
this Agreement shall be sent by certified or registered mail (return receipt
requested) or delivered personally or by courier or by confirmed telecopy, and
shall be effective five days after being placed in the mail, if mailed, or upon
receipt or refusal of receipt, if delivered personally or by courier or
confirmed telecopy, in each case addressed to a party. The addresses for such
communications shall be:
If to SELLER:
Internet Creations, Inc. (d/b/a Internet Connections)
Fidelity Holdings, Inc.
▇▇-▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ Book, Esq.
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With a copy to:
▇▇▇▇▇▇▇ Krooks ▇▇▇▇ & Ball P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If the BUYER:
Access Technology, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy:
Attn: ▇▇▇ ▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Each party shall provide notice to the other parties of any change in
address.
8.7 This Agreement shall be binding upon and inure to the benefit of
the parties and their successors and assigns. Except as provided herein, neither
SELLER nor BUYER shall assign this Agreement or any rights or obligations
hereunder. Notwithstanding the foregoing, BUYER may assign its rights hereunder
to any of its "affiliates," as that term is defined under the Exchange Act,
without the consent of SELLER or to any other person or entity with the consent
of SELLER, so long as each assignee agrees in writing to be bound by the terms
hereof and to make the representations and warranties set forth in Section 2
hereof.
8.8 This Agreement is intended for the benefit of the parties hereto
and their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other person.
8.9 Each party shall do and perform, or cause to be done and performed,
all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to go
into effect as of this 12th day of February, 2001.
BUYER:
By:
------------------------------------
Name:
Title:
SELLER:
Internet Creations, Inc.
By:
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Name:
Title:
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