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EXHIBIT 6.16
ACQUISITION AGREEMENT
THIS PURCHASE AGREEMENT made, entered into, and effective as of this
28th day of May, 1999, by and among MIRACOM Corporation, a Nevada corporation
("Buyer"), LIVECODE, INC., a Florida corporation and Xxxx Xxxxxxx and Xxx
Xxxxxxx, individuals, hereinafter referred to as "Xxxxxxx":
W I T N E S S E T H:
WHEREAS, Buyer wishes to acquire LIVECODE, INC. as set forth herein; and
WHEREAS, LIVECODE, INC. has agreed to sell, and Buyer has agreed to purchase
all of the assets of LIVECODE, INC. and to enter into certain other agreements
with LIVECODE, INC., and Xxxxxxx as set forth and upon the terms and conditions
set forth herein below.
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements contained herein, the parties do hereby agree as
follow:
1. DEFINITIONS.
The following definitions shall apply herein and in all other documents
executed in connection herewith unless the contract clearly requires otherwise:
a. "ACTUAL KNOWLEDGE" shall mean those specific facts and that specific
information which is and are actually known by a person or company
without independent investigation or inquiry. With regard to
LIVECODE, INC., and Xxxxxxx the term "Actual Knowledge" shall mean,
the actual knowledge of the personnel running the day to day
business of LIVECODE, INC.; provided, however, that LIVECODE, INC.,
and Xxxxxxx may rely upon certificates of such personnel as to the
knowledge of such personnel concerning LIVECODE, INC., its
operations and the representations and warranties contained in this
Agreement.
b. "ASSETS" shall mean and refer to those items set forth on Exhibit
"A" attached hereto and hereby made a part hereof.
c. "ASSUMED LIABILITIES" shall mean and refer to those liabilities and
obligations of LIVECODE, INC. referred to in paragraph 12 below.
d. "BEST KNOWLEDGE" shall mean that level of specific knowledge and
information of a person or company which either is actually known or
reasonably should have been known upon first, receiving and/or
obtaining actual knowledge of specific information and facts.
Second, making the same level of reasonable inquiry which a
reasonable person would be expected to make upon receiving the same
specific information and facts. With regard to LIVECODE, INC., the
term "Best Knowledge", shall mean to the best knowledge of the
personnel running the day to day business of LIVECODE, INC.;
provided, however, that LIVECODE, INC., and Xxxxxxx may rely upon
certificates of such personnel as to the
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knowledge of such personnel concerning LIVECODE, INC., its
operations and the representations and warranties contained in this
Agreement.
e. "BUSINESS" shall mean the business currently conducted by LIVECODE,
INC. of operating a company that develops workflow software which is
also known as document management software.
f. "BUSINESS EQUIPMENT" shall mean and refer to all equipment,
automobiles, trucks and all other machinery, equipment and personal
property regularly used in the Business on the Closing Date, whether
leased or owned by LIVECODE, INC.
g. "BUSINESS FINANCIAL STATEMENTS" shall mean and refer to those
financial Statements for the year 1998 & 1999 (or LIVECODE, INC.'s
fiscal year commencing in 1998) and each of the calendar months
thereafter ending April 31, 1999, prepared by LIVECODE, INC., copies
of which are attached hereto and made a part hereof as Exhibit "B".
h. "BUYER" shall mean and refer to MIRACOM Corporation, a Nevada
corporation.
i. "CLOSING" shall mean and refer to the consummation of the
transactions contemplated to occur on the Closing Date.
j. "CLOSING DATE" shall mean and refer to May 28, 1999 or such later
time as shall be mutually agreed by the parties.
k. "CUT OFF TIME" shall mean and refer to 11:59 P.M., May 28, 1999.
l. "XXXXXXX EMPLOYMENT AGREEMENT" shall mean and refer to that certain
Employment Agreement attached hereto and hereby made a part hereof
as Exhibit "C".
m. "LIVECODE, INC." shall mean and refer to LiveCode, Inc. a Florida
Corporation.
n. "EQUIPMENT LEASES" shall mean and refer to all leases of Business
Equipment to which LIVECODE, INC. is a party either as lessor or
lessee.
o. "GOODWILL" shall mean the goodwill associated with the Business and
shall include the Marks, if any.
p. "LEASE" shall mean and refer to that certain lease of real property
referred to in paragraph 10 hereof.
q. "MARKS" shall mean and refer to all patents, trademarks, service
marks, logos, trade names, copyrights, licenses, sublicenses,
fictitious names and agreements pertaining to any of the foregoing,
and any applications for any of the foregoing, used in the Business,
all of which are listed on Exhibit "D" attached hereto and hereby
made a part hereof.
r. "MATERIAL CONTRACTS" shall mean and refer to all agreements, whether
written or oral, which relate to the Business and which have not
been fully performed prior to the Closing, including but not limited
to media orders, licenses, leases (as landlord or tenant),
indentures, loan agreements, notes, mortgages, undertakings and any
other agreements with clients,
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suppliers, governmental entities, inter exchange carriers, local
exchange carriers, service bureaus, TV and radio stations,
publications, lenders, producers, directors, talent, employees,
independent contractors and any other person or entity.
s. "ORDINARY COURSE OF BUSINESS" shall mean and refer to the ordinary
course of conduct of the Business.
t. "PURCHASE PRICE" shall mean twenty thousand US dollars ($20,000.00)
payable to LiveCode, Inc. on December 3, 1999 and the issuance of
MIRACOM stock in the amount of 600,000 (Six Hundred Thousand) shares
issued to LiveCode, Inc. together with employment agreements and
Board seat appointment as described in Exhibit "F".
u. "RETAINED LIABILITIES" shall mean and refer to all liabilities and
obligations of LIVECODE, INC. other than the assumed Liabilities.
v. "TRADE ACCOUNTS RECEIVABLE" shall mean and refer to all accounts
receivable owed to LIVECODE, INC. as of the Closing as a trade
creditor in the Ordinary Course of the Business. Outlined in Exhibit
"E".
w. "TRADE RECEIVABLES" shall mean and refer to the Trade Accounts
Receivable listed on Exhibit "EE" attached hereto and hereby made a
part hereof, together with any and all other accounts receivable
generated by the Business.
2. PURCHASE.
At the Closing, the Assets, Goodwill and other rights set forth herein shall be
held by LIVECODE, INC. and purchased by Buyer for a purchase price as described
above in Paragraph 1 (t) above.
The Purchase Price shall be allocated as set forth on Exhibit "F" attached
hereto and hereby made a part hereof.
Each party shall file an IRS Form 8594, if applicable, containing such
allocations with its respective year end tax return, if applicable.
3. PURCHASE OF GOODWILL.
At the Closing, LIVECODE, INC. and Xxxxxxx will assign the Goodwill to Buyer.
The Goodwill shall include, but is limited to, the right of Buyer to use all
Marks associated with the business or used by LIVECODE, INC. and Xxxxxxx in
connection with the business. The Goodwill Shall include the name LIVECODE,
INC. and all other names associated with the business. All such names are
listed on Exhibit "H" attached hereto and hereby made a part hereof. LIVECODE,
INC. and Xxxxxxx will cause all other persons and entities having an interest
in such Marks to execute valid and legally binding agreements transferring all
right to the Marks to Buyer.
4. XXXXXXX EMPLOYMENT AGREEMENT; BOARD APPOINTMENTS DOCUMENTS.
(a) Xxxxxxx Agreements and Documents: It is essential and material
consideration for buyers acquisition hereunder that Xxxxxxx agree
to stay on for a period of 3 (three) years pursuant to the terms
and conditions of their Employment
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Agreement outlined in Exhibit "C". Such agreements is a material
agreement which Seller would not have entered into this agreement.
The parties agree that damage to the business of the Buyer and
Seller by virtue of the violation of this Covenant is impossible to
ascertain with any certainty at the date hereof. As a result, in
addition to any other remedy permitted by law, the Buyer and Seller
shall be entitled to the remedy of injunction, both temporary and
permanent, restraining the violating party or any other person or
entity acting in concert with them, either directly or indirectly,
from a violation of this Covenant. In addition to such injunction,
the Buyer or Seller shall have all rights and remedies at law,
equity or otherwise and all such rights and remedies shall be
cumulative and non-exclusive and the exercise of one such remedy
shall not bar the exercise of any other remedy.
5. CLOSING.
The Closing shall be held in the offices of Xxxxxxxxx Traurig (111 North Orange
Avenue, 20th Floor, Orlando, Florida 32801), or at such other place within
Florida, as shall be agreed upon by Buyer and LIVECODE, INC.
6. PAYMENTS.
All payments required to be made at Closing, or pursuant to a schedule outlined
in this agreement, shall be made by company check drawn on a banking
institution which is a member of the U.S. Federal Reserve System or by wire
transfer of funds to an account designated by LIVECODE, INC., if applicable.
Any and all securities which require transfer shall be accomplished pursuant to
all State and Federal requirements and shall be performed in a timely manner on
or within fifteen days after the Closing Date.
7. LEASE.
At the Closing, LIVECODE, INC. and Xxxxxxx will assign to Buyer all its rights
(including the security deposit) under and Buyer will assume all obligations of
LIVECODE, INC. under the Lease (if applicable). At the Closing, LIVECODE, INC.
shall furnish Buyer with an estoppel letter and consent to the assignment of
the Lease from the current lessor under the Lease in form and substance
reasonably satisfactory to Buyer.
8. EQUIPMENT LEASES.
At the Closing, LIVECODE, INC. and Xxxxxxx will (if applicable) assign to Buyer
all its rights (including the security deposit) under, and Buyer will assume
all obligations of LIVECODE, INC. under, the Equipment Leases. At the Closing,
if applicable, LIVECODE, INC. shall furnish Buyer with an estoppel letter and
consent to the assignment from each lessor under each Equipment Lease in form
and substance reasonably satisfactory to Buyer. If leases are not assignable
then Buyer hereby assumes all responsibility for same and hold seller harmless.
9. MATERIAL CONTRACTS.
At the Closing, LIVECODE, INC. and Xxxxxxx will assign to Buyer all of its
rights under, and Buyer will assume all obligations of LIVECODE, INC. under the
Material Contracts. The assignment of the Material Contracts shall be in form
and substance reasonably satisfactory to Buyer. At the Closing, LIVECODE, INC.
shall furnish Buyer with an estoppel letter and consent to the assignment from
each contracting party, if requested by Buyer.
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10. REPRESENTATIONS AND WARRANTIES OF LIVECODE, INC..
LIVECODE, INC. and Xxxxxxx represents and warrants to Buyer as follows, and
agrees that all such representations and warranties shall survive the Closing
hereunder for a period of one (1) years:
a. EXISTENCE AND GOOD STANDING. LIVECODE, INC. is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Florida; it has the requisite corporate power and
authority to own or lease its property and to conduct its business
as now being conducted. The State of Florida is the only
jurisdictions in which LIVECODE, INC. is registered to do business.
b. AUTHORITY RELATIVE TO THIS AGREEMENT AND THE ESCROW AGREEMENT.
LIVECODE, INC. has full corporate power and authority to execute and
deliver this Agreement and the other agreements delivered pursuant
hereto (the "Related Agreements") (collectively, this Agreement and
the Related Agreements are sometimes referred to herein as the
"Closing Documents") and to consummate the transactions contemplated
hereby and thereby. The execution and delivery of the Closing
Documents and the consummation of the transactions contemplated
thereby have been duly and validly adopted and approved by the Board
of Directors and shareholders of LIVECODE, INC. and no other
corporate proceedings on the part of LIVECODE, INC. are necessary to
authorize the Closing Documents or to consummate the transactions
contemplated thereby. The Closing Documents have each been duly and
validly executed and delivered by LIVECODE, INC. and each
constitutes a valid and binding agreement of LIVECODE, INC.
enforceable against LIVECODE, INC. in accordance with its respective
terms.
c. PERMIT REQUIREMENTS. Except as heretofore disclosed in writing by
LIVECODE, INC. to Buyer, to the actual knowledge of LIVECODE, INC.,
no filing with, and no permit, authorization, consent or approval
of, any public body or authority, the absence of which would, either
individually or in the aggregate, have a material adverse effect on
the Assets, or the operations or financial condition of the
Business, is necessary for the consummation by LIVECODE, INC. of the
transactions contemplated by this Agreement. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby will not (i) violate any provision of the
Certificate of Incorporation or By-Laws of LIVECODE, INC., or, to
the actual knowledge of LIVECODE, INC., any statute, rule,
regulation, order or decree of any public body or authority by which
LIVECODE, INC. or any of the Assets is bound, or to the best
knowledge of LIVECODE, INC. result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a
default under, any license, franchise, permit, indenture, agreement
or other instrument to which LIVECODE, INC. is a party, or by which
any of the Assets and rights being purchased hereunder is bound.
d. SUBSIDIARIES. LIVECODE, INC. owns no shares or securities of, and
has no ownership interest in, any corporation, partnership, joint
venture, trust, association or other enterprise, other than those
outlined in Exhibit "G", which is conducting the Business or owns or
has any interest in any of the Assets and this Business is presently
being and has heretofore been conducted by LIVECODE, INC.
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e. FINANCIAL STATEMENTS AND NO MATERIAL CHANGES. To the best knowledge
of LIVECODE, INC., date line the Business Financial Statements
fairly present the results of operation of the Business for the
periods covered in accordance with generally accepted accounting
principles consistently applied. To the best knowledge of LIVECODE,
INC., the Business Financial Statements do not contain any untrue
statements of any material fact or omit to state any material fact
necessary in order to make the statements contained in this Section
or therein not misleading. To the best knowledge of LIVECODE, INC.,
the books and records of LIVECODE, INC. relating to the Business
reflect only valid transactions. Except as set forth on Exhibit "H"
attached hereto and hereby made a part hereof, to the best knowledge
of LIVECODE, INC. there has not been any material and adverse change
in the assets or liabilities or in the condition, financial or
otherwise, of the Business and there has not been any change except
in the Ordinary Course of the Business, and, to the actual knowledge
of LIVECODE, INC., no fact or condition exists or is contemplated or
threatened which will cause such a material, adverse change in the
Business in the future.
f. THE LEASE. LiveCode is not a party to any real property lease and
has no interest, equitable or otherwise in any real property.
g. EQUIPMENT. A true, correct and complete list as of the date hereof
of all Equipment containing a description of each item (and
LIVECODE, INC.'s best estimate of the condition thereof) is set
forth on Exhibit "I" attached hereto and hereby made a part hereof.
LIVECODE, INC. has and will have on the Closing Date good and
marketable title and/or valid leasehold rights to all such property,
free and clear of all liens, claims and encumbrances.
h. EQUIPMENT LEASES. A true, correct and complete copy of all-
Equipment Leases, is attached hereto and hereby made a part hereof
as Exhibit "J." LIVECODE, INC. has no agreement with any lessor or
lessee, if applicable, other than as set forth in writing in each
respective lease. To the best knowledge of LIVECODE, INC. and except
as described in Exhibit "J": each such lease is in full force and
effect; all rents and additional rents due to date on each such
lease have been paid; in each case the lessee has been in peaceable
possession since the commencement date set forth in the Exhibit and
is not now in default thereunder; no waiver, indulgence or
postponement of the lessee's obligations thereunder has been granted
by the lessor; and to the best knowledge of LIVECODE, INC. there
exists no event of default or event, occurrence, condition or act
which, with the giving of notice, the lapse of time or the happening
of any further event or condition would become a default under any
such lease; to the best knowledge of LIVECODE, INC. neither the
lessor or the lessee has violated any of the terms or conditions
under any such lease; and to the best knowledge of LIVECODE, INC.
all of the covenants to be performed under any such lease have been
fully performed.
i. MATERIAL CONTRACTS, ETC. Attached hereto and hereby made a part
hereof as Exhibit "K" is a true, correct and complete list of all
Material Contracts, together with copies thereof to the extent the
same are in writing. To the best knowledge of LIVECODE, INC. and
Xxxxxxx, LIVECODE, INC. and Xxxxxxx is not in default under any
Material Contract and knows of no default by any other party hereto.
No consent or approval of any other party to any Material Contract
is required to transfer LIVECODE, INC.'s rights thereunder to Buyer
pursuant to this Agreement. Attached as part of said Exhibit "L" is
a list of principal suppliers of the Business.
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j. CLIENT LIST. Delivered herewith is a true, correct and complete
list of all clients of LIVECODE, INC. LIVECODE, INC. knows of no
dispute arisen in connection with any of the clients. At Closing,
LIVECODE, INC. will certify the correctness and completeness of the
Client List.
k. TRADEMARKS. Attached hereto and hereby made a part hereof as Exhibit
"L" is a true, correct and complete list of all patents, trademarks,
service marks, trade names, copyrights, licenses, sublicenses,
fictitious names, and agreements pertaining to any of the foregoing,
and any applications for any of the foregoing, used in the business.
LIVECODE, INC. and Xxxxxxx is not in default under any agreement
relating to the Marks and knows of no default by any other party
thereto. No consent or approval of any other party is required to
transfer the Marks to Buyer.
l. EMPLOYEE AGREEMENTS AND EMPLOYEE BENEFITS. To the best knowledge of
LIVECODE, INC., and except as set forth in the Business Financial
Statements and on Exhibit "M". (i) LIVECODE, INC. has no obligation,
whether contingent or otherwise, under any employment contract,
consulting agreement, collective bargaining agreement, executive
compensation agreement, personal, services agreement, deferred
compensation agreement, pension plan, retirement plan,
profit-sharing plan, stock purchase plan, stock option plan, group
life insurance, hospitalization insurance, vacation pay plan,
severance pay plan or any other similar agreements or employee
benefit plans or any other arrangement or understanding, whether
written or otherwise, with any employee, independent contractor,
agent, stockholder, or any other person relating to the Business;
(ii) No labor unions are representing or attempting to represent
employees of LIVECODE, INC. or any alleged bargaining unit thereof;
and (iii) LIVECODE, INC. has not agreed to pay any bonuses or made
or agreed to make any increase in the rate of wages, salaries, or
other remuneration of any of its employees, which has not already
become effective without written consent of Miracom Corporation.
m. LIABILITIES. To the best knowledge of LIVECODE, INC. and Xxxxxxx and
except as set forth on Exhibit "N" attached hereto and hereby made a
part hereof and except for the "Retained Liabilities, LIVECODE, INC.
has no outstanding or threatened claims against it, or liabilities
or indebtedness, whether fixed, contingent (including potential
product liability claims) or otherwise relating to the Business,
other than liabilities incurred in connection with this transaction.
n. LITIGATION. To the best knowledge of LIVECODE, INC. and Xxxxxxx and
except as set forth on Exhibit "P" attached hereto and hereby made a
part hereof, LIVECODE, INC. is not engaged in or a party to, or
threatened with, any legal action or other proceeding before any
court, tribunal or administrative agency, or by any action of any
local or inter exchange carrier or service bureau. To the best
knowledge of LIVECODE, INC., LIVECODE, INC. has complied in all
material respects with all federal, local, state or foreign laws,
rules, regulations and orders applicable to the Business. To the
best knowledge of LIVECODE, INC., LIVECODE, INC. is not under
investigation with respect to any charge concerning any violation of
any law, order, rule, policy or regulation, whether federal, local,
state or foreign, in respect of the Business.
o. INSURANCE. A true and correct list of all policies of insurance
covering any of the Assets
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or otherwise relating to the Business owned by LIVECODE, INC. or in
which LIVECODE, INC. is named as the insured party, including the
amounts thereof, hereto and hereby made a party hereof as Exhibit
"O." Knowledge of LIVECODE, INC. and except as disclosed in Exhibit
"O," all such policies are valid, outstanding and enforceable and
issued by financially sound and responsible insurance companies, and
will remain in full force and effect through the Closing Date;
LIVECODE, INC. maintains insurance of the type and amount adequate
for the conduct of the Business; LIVECODE, INC. has not been refused
any insurance, nor has its coverage been limited, by any insurance
carrier to which it has applied for insurance or with which it has
carried insurance during the last five years.
p. NO DISPOSITION OF ASSETS OR OTHER CHANGES. There has not been since
December 31st, 1998, a sale or any other disposition or distribution
of any Assets of LIVECODE, INC. except those which were made in the
Ordinary Course of Business or which were not, individually or in
the aggregate, material to the Business.
q. COMPENSATION OF EMPLOYEES, ETC. Attached hereto and hereby made a
part hereof as Exhibit "C" is a true, correct and complete list of
all employees, agents and independent contractors who are presently
rendering services with respect to the Business, together with a
statement of the full amount paid to such persons during calendar
year 1998, 1999, a statement of all amounts payable to each such
person in the future, and a statement of the nature of the services
rendered by each such person.
r. LIVECODE, INC. STOCKHOLDERS. Xxxxx Xxxxxxx and Xxxxx Xxxxxxx, his
wife, and Xxxxxx Xxxxxxx and Gigi Halo, his wife, collectively own
one hundred (100%) percent of all classes of issued outstanding
stock of LIVECODE, INC.. All Xxxxxxx'x ownership interest, if any,
directly or indirectly, in whole or in part, in any and all Assets,
Goodwill and other rights which are required to be conveyed
hereunder are in fact being conveyed to Buyer.
s. OPERATIONS. Except as set forth in Exhibit "L" attached hereto and
hereby made a part hereof, to the Actual Knowledge of LIVECODE,
INC., no labor disputes or work stoppages involving the Business are
pending or, threatened. To the Actual Knowledge of LIVECODE, INC.,
no customer or supplier of the Business is involved in, or
threatened with or affected by, any labor dispute, arbitration,
lawsuit or administrative proceeding which will adversely affect, or
might reasonably be expected to adversely affect the Business
(financial or otherwise).
t. NO MISLEADING STATEMENTS. Neither the representations of LIVECODE,
INC. and Xxxxxxx in this Agreement nor any exhibit, financial
statement, list or other document delivered by LIVECODE, INC. and
Xxxxxxx pursuant hereto contain any untrue material statement or
omit to state a material fact necessary in order to make the
statements contained therein or herein not misleading. No
information material to this transaction necessary to make any of
the representations and warranties herein contained not misleading
has been from, or has not been disclosed in writing to, Buyer.
11. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer represents and warrants to LIVECODE, INC. as follows, and agrees that all
such representations and warranties shall survive the Closing hereunder.
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a. EXISTENCE AND GOOD STANDING. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Nevada; it has the requisite corporate power and authority to own or
lease its property and to conduct its business as contemplated
herein.
b. AUTHORITY RELATIVE TO THIS AGREEMENT. Buyer has full corporate power
and authority to execute and deliver the Closing Documents and to
consummate the transactions contemplated hereby and thereby. The
execution and delivery of the Closing Documents and the consummation
of the transactions contemplated thereby have been duly and validly
authorized and approved by the Board of Directors of Buyer, and no
other corporate proceedings on the part of Buyer are necessary to
authorize the Closing Documents or to consummate the transactions
contemplated thereby. The Closing Documents have each been duly and
validly executed and delivered by Buyer and each constitutes a valid
and binding agreement of Buyer enforceable against Buyer in
accordance with its respective terms. The execution and delivery of
the Closing Documents and the consummation of the transactions
contemplated thereby will not (i) violate any provision of the
Certificate of Incorporation or ByLaws of Buyer, or, to the Actual
Knowledge of Buyer, any statute, rule, regulation, order or decree
of any public body or authority by which Buyer or any of the Assets
is bound, or (ii) to the Best Knowledge of Buyer result in a
violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default under, any license, franchise,
permit, indenture, agreement or other instrument to which Buyer is a
party, or by which any of the Assets is bound.
c. COMPLIANCE WITH SECURITIES LAWS. Without limitation the generality
of any of the previous representations and warranties, all of the
offers and sales of the securities of Buyer by Buyer as issuer and
its affiliates and agents, and the disclosure of all information
concerning Buyer, has been in compliance with all state and federal
securities laws, rules and regulations, including but not limited to
the Securities Act of 1933, as amended, and the Securities Exchange
Act of 1934, as amended, and Section 517, Florida statutes, and the
rules and regulations promulgated under each of the foregoing.
12. LIABILITIES.
a. Buyer shall assume and pay for the following disclosed liabilities
and obligations in a timely manner as required by law, prior
agreement between LIVECODE, INC. and third parties, and/or in the
ordinary course of Buyer's business. These disclosed liabilities and
obligations constitute the Assumed Liabilities:
i. Those accounts payable listed on Exhibit "BB" attached hereto
and hereby made a part hereof.
ii. Liabilities under Leases from and after the Cut Off Time.
iii. Liabilities under the Equipment Leases from and after the Cut
Off Time.
iv. Liabilities under the Material Contracts from and after the
Cut Off Time.
13. LIVECODE, INC. INDEMNITY.
a. INDEMNITY. LIVECODE, INC. and Xxxxxxx agree to indemnify, defend and
hold harmless Buyer from and against any and all demands, claims,
actions, causes of action, debts, dues, judgments, awards,
assessments, losses, damages, liabilities, costs and expenses,
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of any type or nature arising out of the Business, including without
limitation interest, penalties, attorneys' fees (at trial and
appellate levels) and expenses asserted against, resulting to,
imposed upon or incurred by Buyer arising out of or resulting from
(i) the breach of any representation, warranty or covenant made by
LIVECODE, INC. contained in this Agreement, (ii) the Retained
Liabilities, (iii) the failure of LIVECODE, INC. to qualify to do
business in any State in which LIVECODE, INC. is legally required to
do so, (iv) the failure of LIVECODE, INC. to comply with any Bulk
Sales Act in effect and applicable to LIVECODE, INC., and (iv) any
action, inaction, misfeasance or malfeasance of LIVECODE, INC.
attributable to the period of time ending at the Cut Off Time
whether or not damage or injury occurs prior to the Cut Off Time.
MONETARY OF INDEMNITY. Buyer shall not make a claim for indemnity
for any amount less than One Thousand ($1,000.00) Dollars in the
aggregate. The obligation of the indemnifying parties shall not
exceed in the aggregate Five Thousand ($2,500.00) Dollars.
14. BUYER'S INDEMNITY.
Buyer agrees to indemnify, defend and hold harmless LIVECODE, INC. its officers
and assigns from and against any and all demands, claims, actions, causes of
action, debts, dues, judgments, awards, assessments, losses, damages,
liabilities, costs and expenses, of any type or nature, including without
limitation interest, penalties, attorneys' fees (at trial and appellate levels)
and expenses asserted against, resulting to, imposed upon or incurred by
LIVECODE, INC., arising out of or resulting from (i) the breach of any
representation, warranty or covenant made by Buyer contained in this Agreement
(ii) the Assumed Liabilities, and (iii) the conduct of the Business by Buyer
after the Closing Date.
15. CONDITIONS OF INDEMNIFICATION.
The obligations and liabilities of either party with respect to claims for
which it is to be indemnified hereunder resulting from the assertion of by
third parties shall be subject to the following terms and conditions:
a. NOTICE. The Claimant believing itself entitled to indemnify (the
"Claimant") will give the party which it believes must "Indemnitor")
any such notice of indemnify it (the indemnifiable claim, and the
Indemnitor will undertake the defense thereof by counsel chosen by
it and will advise the Claimant concerning such defense on a timely
basis during the course thereof.
b. FAILURE TO DEFEND. In the event that the Indemnitor, within ten (10)
days from notice or any indemnifiable claim, fails to a defense, the
Claimant engage counsel and commence will, upon further notice to
the Indemnitor have the right to immediately undertake the defense,
compromise or settlement of such indemnifiable claim on behalf of
and for the account and risk of the Indemnitor.
c. SETTLEMENT BY INDEMNITOR. Indemnitor may at anytime settle any
indemnifiable claim at its sole cost and expense. Indemnitor shall
be required to obtain the prior written consent of the Claimant only
if Claimant reasonably believes that the settlement of the
indemnifiable claim may materially and adversely affect the ability
to do business of the Claimant or otherwise prejudice the Claimant
in its business operations. Notwithstanding anything contained
herein to the contrary, the consent of Claimant shall be required in
the event a settlement to be entered into the Indemnitor requires
the admission of any wrongdoing on the
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part of the Claimant or in the event that any third party in order
to settle such indemnifiable claim requires the execution of any
document by the Claimant.
Claimant shall receive copies of all proposed settlement documents
and shall have a right to review and comment thereon and consult
with Indemnitor concerning the term of such proposed settlement
documents.
d. LIMITATION OF TIME. Any claim for which indemnity is sought
hereunder shall be brought within two years from the date that such
claim matures, but in no vent later than sixty (60) days following
the expiration of the representations and warranties. The date of
maturity of the claim shall be the later of (i) the date upon which
the claimant becomes aware of the claim, (ii) the date upon which
the claimant should have become aware of the claim in the exercise
of reasonable diligence, or (iii) the date upon which the last
element necessary for the assertion of the claim takes place.
16. TERMINATION.
a. WITHOUT DEFAULT. This Agreement may be terminated at any time prior
to the Closing Date without liability of any party.
i. By mutual consent of the Boards of Directors of LIVECODE, INC.
and Buyer; or
ii. If the transactions contemplated by this Agreement shall not
have been consummated on or before May 28, 1999, provided
that the transactions which were not due to the breach or
default of the party seeking to were not consummated
terminate. in the event of termination by Buyer, or by
LIVECODE, INC., or both as permitted, written notice thereof
shall forthwith be given to the other and this Agreement
shall terminate without further action by any of the parties
hereto.
If this Agreement is terminated as permitted herein:
a) Upon request therefore, each party will redeliver all
documents, work papers and other material of any other party
relating to the transactions contemplated hereby, whether
obtained before or after the execution hereof, to the party
furnishing the same; and
b) Each party hereto shall have no liability or further
obligation to the other party to this Agreement with respect
to the matters covered by this Agreement except as provided
in paragraph 17.
b. AS A RESULT OF DEFAULT. This Agreement may be terminated at any time
prior to the Closing Date as a result of the default of a party
without a prior default by the other party upon written notice to
the defaulting party by the non-defaulting party after the
expiration of any applicable cure period set forth herein. Reference
is made to paragraph 20 of this Agreement containing events of
default by the parties as well as the remedies of the parties
thereafter.
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17. COVENANTS OF THE PARTIES.
The parties covenant to one another as follows:
a. ACCESS TO INFORMATION. Between the date of this Agreement and the
Closing Date, LIVECODE, INC. and Xxxxxxx will facilitate the access
of representatives to Buyer during normal business hours and in such
a manner as not to unduly disrupt normal activities of LIVECODE,
INC..
b. GOVERNMENTAL AND OTHER APPROVALS. The parties will cooperate in the
preparation and filing by any party of such applications and/or
amendments thereto as shall be necessary or desirable in order to
consummate the transactions contemplated by this Agreement as soon
as reasonably practicable following the date of this Agreement and
will use their best efforts to have such applications and/or
amendments thereto approved.
c. ADDITIONAL AGREEMENTS. Subject to tie terms and conditions herein
provided, each of the parties hereto agrees to use its reasonable
best efforts to take, or cause to be taken, all actions, and to do,
or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement. In case at any time
after the Closing Date any further action is necessary or desirable
to carry out the purposes of this Agreement, each party shall take
all such necessary action.
d. CONSENTS. Each party will use their best efforts to obtain consents
of any third parties and governmental authorities, if any, which are
necessary for the consummation of the transactions contemplated by
this Agreement.
e. DISCLOSURE SUPPLEMENTS. From time to time prior to the Closing Date,
each party shall supplement, amend and update all Exhibits relating
to its' respective representations and warranties contained herein
with respect to any matter hereafter arising which comes to its
attention and which may effect the truth of such representation and
warranties.
f. PUBLIC ANNOUNCEMENTS. Except as may be required by law or
regulation, no public disclosure relating to the transactions
contemplated by this Agreement (including disclosure intended for
shareholders and employees of the parties other than those for whom
disclosure is necessary to carry out the proposed transactions or as
required by law, rule or regulation) shall be made by any party
prior to the Closing unless the other party shall have approved such
Disclosure in advance in writing. Except as may be required by law
or regulation, any press release approved by LIVECODE, INC. and
Buyer will not contain the price of this Agreement. LIVECODE, INC.
will cooperate with Buyer after the Closing in the issuance of
letters to suppliers, clients, media and all other persons and
entities with whom LIVECODE, INC. has been conducting business.
g. ACCOUNTS. All communications and funds received by LIVECODE, INC.
pertaining to the Business shall be referred to Buyer. Neither
LIVECODE, INC. nor Xxxxxxx shall take any act which is intended to
cause the loss of good will of a client of LIVECODE, INC. or Buyer
or which otherwise adversely affects Buyer or the Business.
h. USE OF COUNSEL. The parties confirm and agree that both intend to
utilize to be determined, as their corporate counsel for various
aspects of their business. Although they do not consider that the
use of this firm and its lawyers would be a conflict of interest
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between them, they confirm that each party may utilize the firm and
its lawyers as its counsel (other than in connection with a dispute
between them).conduct of Business Prior to the Closing.
18. DATE.
During the period from prior to the Closing Date (the "Transition Period"),
LIVECODE, INC. will conduct the Business in its ordinary and usual course.
During the Transition Period, funds sufficient to pay the payroll and Trade
Accounts Payable shall be deposited in the LIVECODE, INC. account as necessary
by Buyer. During the Transition Period, LIVECODE, INC. will convert all
accounting functions LIVECODE, INC. to Miracom. All work in progress, all
receivables, and entitlements held by LIVECODE, INC. shall be transferred to
Buyer at the Closing. Within twelve months after the closing, LIVECODE, INC.
shall execute and Buyer shall file with the Secretary of State of Florida
Articles of Amendment to the Articles of Incorporation of LIVECODE, INC.
reflecting the changes herein.
19. COSTS.
Whether or not the Closing is consummated, each party shall bear its own costs
and expenses in connection with the negotiation, execution and performance of
this Agreement and the transactions contemplated hereby except as provided
herein.
20. DEFAULT PRIOR TO THE CLOSING.
a. DEFAULT BY LIVECODE, INC. The failure of LIVECODE, INC. or Xxxxxxx
to comply in all material respects without a prior material breach
or default by Buyer with any provision herein or in any document
delivered in connection herewith shall be an event of default by
LIVECODE, INC. hereunder.
b. DEFAULT BY BUYER. The failure of Buyer to comely in all material
respects without a prior material breach or default by LIVECODE,
INC. with any provision herein or in any document delivered in
connection herewith shall be an event of default by Buyer hereunder.
c. REMEDIES OF LIVECODE, INC. If an event of default by Buyer shall
have occurred and shall not have been cured within five (5) days
from written notice to Buyer from LIVECODE, INC., without a prior
uncured material default by LIVECODE, INC., LIVECODE, INC. shall be
entitled to pursue all legal and equitable rights and remedies
available under law including, but not limited to rights to
terminate this Agreement, to recovery of damages, and to specific
performance of this Agreement.
d. REMEDIES OF BUYER. If an event of default by LIVECODE, INC. or
Xxxxxxx shall have occurred and shall not have been to be cured
within five (5) days from written notice to LIVECODE, INC. or
Xxxxxxx from Buyer, without a prior uncured material default by
Buyer, pursue all legal and equitable rights and remedies available
under Buyer shall be entitled to applicable law including, but not
limited to rights to terminate this Agreement, to recovery of
damages, and to specific performance of this Agreement.
21. CONSENT TO SERVICE JURISDICTION AND VENUE.
LIVECODE, INC., Xxxxxxx and Buyer consent the jurisdiction of any court
geographically situated in
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Orange County, Florida, whether state or Federal, in connection with the
subject matter of any dispute arising under this Agreement and agree further
that service of process or notice in any such action, suit or proceeding shall
be effective to confer personal jurisdiction if given in the manner permitted
in this Agreement for notices hereunder.
22. CLOSING ITEMS.
a. Buyer's Items At the Closing, Buyer shall execute and deliver to
LIVECODE, INC., Xxxxxxx the following:
i. The Purchase Price or Miracom shares as may be required.
ii. Assumption Agreement in the form attached hereto and hereby
made a part hereof as Exhibit "S" (the "Assumption
Agreement").
iii. A corporate resolution in the attached hereto and made a part
hereof as Exhibit "T".
iv. A current Certificate of Good standing of Buyer as a Nevada
corporation from the Secretary of State of Nevada.
v. A Certificate of good standing from the Secretary of State of
Florida, certifying that Buyer is authorized to do business
in Florida.
b. LIVECODE, INC. and Xxxxxxx'x items. At Closing, LIVECODE, INC. and
Xxxxxxx, as applicable, shall execute and deliver to Buyer the
following:
i. A Xxxx of Sale in the form set forth as Exhibit "U" attached
hereto and hereby made part hereof transferring all of the
Assets to Buyer.
ii. The originals of all contracts which relate to any liability
or obligation of LIVECODE, INC. and Xxxxxxx which is to be
assumed by Buyer hereunder.
iii. The (3) three employment Agreement duly executed by MIRACOM.
iv. An Omnibus Assignment in the form attached hereto and hereby
made a part hereof as Exhibit "V" together with such separate
assignments of the Marks as shall be deemed necessary by
Buyer to vest the Marks in Buyer of record.
v. A list of all Business suppliers, customers and employees
certified to be true, complete and correct by LIVECODE, INC.
and Xxxxxxx.
vi. List of all existing Material Contracts certified to be true,
complete and correct by LIVECODE, INC. and Xxxxxxx.
vii. A list of all Marks certified to be true, complete and
correct by LIVECODE, INC. and Xxxxxxx.
viii. A list of all clients of LIVECODE, INC. and Xxxxxxx certified
to be true,
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complete and correct by LIVECODE, INC. and Xxxxxxx.
ix. A corporate resolution in the form attached hereto and hereby
Made a part hereof as Exhibit "W".
x. A current Certificate of Good Standing from Secretary of
Florida.
xi. An Indemnity Agreement from LIVECODE, INC, and Xxxxxxx
Attached hereto as Exhibit "Y".
23. COOPERATION WITH EMPLOYEES.
Buyer shall be free to conduct interviews with all employees of LIVECODE, INC.
to determine which of these employees Buyer will offer employment. LIVECODE,
INC. will use its reasonable best efforts to obtain full cooperation from the
employees utilized in the Business for such interviews. Buyer shall be free to
offer employment to such of the employees of LIVECODE, INC. engaged in the
Business as Buyer shall determine. Buyer has no obligation to employ any
employees of LIVECODE, INC. and has not agreed to assume any obligations of
LIVECODE, INC. to such employees. Buyer shall not, by employing any of said
persons or as a result of anything set forth herein, assume any liabilities in
connection with the prior employment of such persons by LIVECODE, INC.
including, but not limited to, liability for pension plan payments,
unemployment compensation, salary, bonuses, commissions or any other form of
remuneration and, all of the employees of LIVECODE, INC. shall for purposes of
this Agreement be deemed to have been terminated by LIVECODE, INC. as of the
Cut Off Time.
24. MISCELLANEOUS.
a. NOTICES. All notices which any party may be required or permitted to
give on any other cart in connection with this Agreement shall be in
writing and deemed sufficient if either mailed by registered or
certified mail postage prepaid (return receipt requested) or
delivered by hand to the party whom such notice is required or
permitted to be given at the address set forth below. Service of any
such notice shall be deemed complete on the date of actual delivery
as shown by the addressee's registry or certification receipt, or
when received if delivered by hand, or five (5) days after the post
office first notifies an intended recipient of an attempt to deliver
such notice. Any party hereto may from time to time, by notice in
writing served upon any other as aforesaid, designate a different
mailing address or a different person to whom all such notices are
thereafter to be addressed; provided that any and all such addresses
shall be street addresses, or post office boxes. All notices to
Buyer shall be addressed as follows:
To LiveCode, Inc.:
Xxxx Xxxxxxx
LiveCode Inc.
X.X. Xxx 000000
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000-0000
Xxx Xxxxxxx
LiveCode Inc.
X.X. Xxx 000000
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000-0000
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To Miracom, Inc.:
Miracom, Inc., a Nevada Corporation
0000 Xxxxxx Xxxxxx Xxxxx xxxxxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
25. MULTIPLE COUNTERPARTS. This Agreement -may be signed in multiple
counterparts on facsimile paper or with original but with facsimile transmitted
signatures. Documents with facsimile signatures shall be considered original
documents and binding on the parties to this Agreement.
With a copy to.
LIVECODE, INC., A Florida Corporation
P. 0. Box 160606
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000-0000
_______________________________By Its:__________________
Miracom, a Nevada Corporation
0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
_______________________________By Its:__________________
All notices to LIVECODE, INC. shall be addressed as follows:
Xxxx Xxxxxxx
LiveCode, Inc.
P. 0. Box 160606
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000-0000
Xxx Xxxxxxx
LiveCode, Inc.
P. 0. Box 160606
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000-0000
b. GOVERNING LAW. The laws of the State of Florida (without reference
to laws applicable to conflicts of law) shall govern the
interpretation of this Agreement.
c. MODIFICATION AND WAIVER. No provision of this Agreement shall be
amended, waived or modified except by an instrument in writing
signed by the parties hereto.
d. SURVIVAL. All covenants, agreements, representations and warranties
made herein, including but not limited to al agreements to purchase
specific portions of the Business shall be deemed to have been
material and relied upon by each party and shall survive the
execution and delivery of this Agreement.
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e. HEADINGS. All sections and headings of this Agreement are inserted
for convenience only and shall not affect the construction or
interpretation hereof.
f. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when executed and delivered, shall be
an original, but all counterparts shall together constitute one and
the same instrument.
g. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between the parties and no promises, inducements,
assurances, guaranties, warranties, representations, or
solicitations, either expressed or implied, oral or written, have
been made other than as expressly set forth herein. This Agreement
supersedes all such promises, inducements, assurances, guaranties,
warranties, representations, or solicitations, either expressed or
implied, oral or written, whenever made.
h. SEVERABILITY. Inapplicability or unenforceability of any provision
of this Agreement or any instrument executed and delivered pursuant
thereto shall not limit or impair the operation or validity of any
other provision of this Agreement or any other such instrument.
i. EXCLUSIVENESS OF AGREEMENT. This Agreement is made for the sole
benefit and protection of the parties and the and their respective
successors and assigns, and no other person or entity shall have any
right of action hereunder or right to rely hereon.
j. VENUE. The parties hereby waive the privilege of venue and agree
that the venue of all litigation arising here from shall be Orange
County, Florida, and that the courts of the State of Florida shall
have exclusive jurisdiction of all such litigation.
k. WAIVER OF DEFAULTS. The waiver by any party of any breach or default
by any other party under any of the terms of this Agreement, shall
not be deemed to be, nor shall the same constitute a waiver of any
subsequent breach or default on the part of any other party.
l. AGREEMENT NOT RECORDABLE. This Agreement is not recordable and shall
not be recorded by any party hereto.
m. INTERPRETATION OF AGREEMENT. This Agreement has been negotiated by
each of the parties both as to its substance and as to its form.
There shall not be applied a rule of law or rule of construction
whereby this Agreement or any of the terms or provisions hereof or
documents attached hereto shall be construed in favor of or against
either party by reason of the stationery upon which it was finalized
or the attorney for the party by whom it was prepared. The language
of this Agreement shall be construed according to its fair meaning
and not strictly for or against any party.
n. CONSTRUCTION OF AGREEMENT. All words in this Agreement refer to
whatever number or gender the context requires; if more than one
party or person is referred to, their obligations and liabilities
shall be joint and several. All the terms and words used in this
Agreement, regardless of the number and gender in which they are
used, shall be deemed and construed to include any other number
(singular or plural) or any other gender (masculine, feminine or
neuter) as the context or sense of this Agreement, or any section or
clause hereof may require. The locative adverbs "herein,"
"hereunder," "hereto," "hereinafter" and the like
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words wherever the same appear therein, mean and refer to this
Agreement in its entirety and not to any specific paragraph, section
or subsection hereof unless otherwise expressly designated in
context.
o. ATTORNEYS' FEES. In the event any litigation, mediation,
arbitration, or controversy between the parties hereto arise out of
or in connection with this Agreement or the related Agreements, the
prevailing party in such litigation, mediation, arbitration, or
controversy shall be entitled to recover from the other party all
reasonable attorneys' fees, expenses, and suit costs.
IN WITNESS WHEREOF, the partakes have executed this Agreement as of the date
set forth on the first page hereof.
/s/ By Its: President
-------------------------------------
LIVECODE, INC., A Florida Corporation
P. 0. Box 160606
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000-0000
/s/ By Its: President
-------------------------------------
Miracom, a Nevada Corporation
0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
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