Agreement for Sale of Assets of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
This agreement is entered into on this 3rd day of April, 2000,
between ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a corporation organized under the
laws of the state of Maryland, with its principal office located
at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("seller"),
and ▇▇▇▇.▇▇▇, Inc., with its principal office located at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("buyer").
In consideration of the mutual covenants of the parties, seller
and buyer agree:
1. Sale of Business
Seller shall sell, assign, and deliver to buyer and buyer
shall purchase and accept, on the closing date, all the assets
and properties listed on the attached exhibit A.
2. Consideration; No Assumption of Liabilities
In consideration of the sale of assets and properties under
this agreement and of all other things done and agreed to be done
by seller, buyer shall pay to seller (i.) 250,000 shares of
buyer's common stock at closing and, (ii) seven equal installments
of $250,000.00 in buyer's common stock every three months from the
date of closing based on the average bid price for the five days
preceding the respective due date subject, however, to a cap of
$7.50 per share. Buyer shall assume none of seller's liabilities.
3. Instruments of Transfer
The sales, assignments, and deliveries to be made to buyer
pursuant to this agreement shall be effected by deeds, bills of
sale, indorsements, checks, and other instruments of transfer in
such form as buyer shall reasonably request. Seller shall
prepare appropriate forms of instruments of transfer and
conveyance in conformity with this agreement and shall submit them
to buyer for examination at least 10 days in advance of the
closing date. Any time and from time to time after the closing
date, on buyer's request, seller will do, execute, acknowledge,
and deliver all such further acts, deeds, assignments, transfers,
and powers of attorney as may be required in conformity with this
agreement for the adequate assigning, transferring, granting, and
confirming to buyer of the assets and properties sold to buyer.
4. Assignment of Contract Rights
If any contract, license, lease, commitment, or sales or
purchase order assignable to buyer under this agreement may not
be assigned without the consent of the other party thereto, seller
will use its best efforts to obtain the consent of the other
party to the assignment.
Ex-2; Pg. 1
5. Waiver of compliance with bulk sales laws
Buyer hereby waives its right to require compliance with any
bulk sales or similar laws and in consideration therefor, seller
agrees that seller shall indemnify and save and hold buyer
harmless from any liabilities (including without limitation
statutory penalties, damages or expenses (including reasonable
attorneys' fees), arising from the failure of buyer or seller to
comply with any bulk sales or similar law applicable to the
transactions contemplated by this agreement.
6. Closing
6.1 Closing/Closing Date. Subject to fulfillment of the
conditions to closing specified in this agreement and pursuant to
the other terms and conditions hereof, the closing of the
transactions provided for in this agreement (the "Closing") shall
take place at the offices of ▇▇▇▇.▇▇▇, Inc., located at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, at 1:00 P.M.
on April 10, 2000 or at such other date and time as may be agreed
upon in writing by the parties hereto (the "Closing Date"), such
closing to be effective as of the close of business on the Closing
Date.
6.2 Conditions to Closing. The obligations of buyer to
purchase the purchased assets, and of seller to sell, transfer and
assign the purchased assets as provided in this agreement are
subject to the satisfaction, at the Closing (except where
specifically required or permitted to be satisfied prior to or
after the Closing), of all of the respective obligations of buyer
and seller set forth below:
(a) Delivery of Purchased Assets to Buyer. Seller shall deliver
the purchased assets, by duly executed ▇▇▇▇ of Sale, Assignment
and Assumption Agreement and other appropriate assignments or
other instruments of transfer and documents which conform to the
requirements of the agreement, including executed counterparts of
all novation agreements with the United States government, its
agencies and instrumentalities, and any other persons requiring
them. Simultaneously with the consummation of the transfer,
seller, through its officers, agents, and employees, will put
buyer into full possession and enjoyment of all purchased assets
to be conveyed and transferred by this agreement.
(b) Delivery of Purchase Price. Buyer shall deliver to seller
the purchase price and other appropriate documents which conform
to the requirements of the agreement.
(c) Certificate from Seller. Seller shall deliver to buyer a
certificate, dated the Closing Date, signed by a duly authorized
officer of seller certifying that:
(i) the representations and warranties made by seller herein or
in any Exhibit or Schedule hereto remain true in all material
respects on the Closing Date as though made on such date except
for changes contemplated by the agreement;
(ii) Seller has performed and complied in all material respects
with all agreements, covenants and conditions required by the
agreement to be performed or complied with by seller on or prior
to the Closing;
(iii) no litigation, proceedings or other actions are pending
against or affecting the seller which have resulted or reasonably
could be expected to result either in an action to enjoin or the
prevention of the consummation of the transactions contemplated by
the agreement;
Ex-2; Pg. 2
(iv) Seller has received all consents required by the federal
government, any state or local governmental body or any foreign
government to the transactions contemplated by the agreement, and
such consents are in full force and effect; and
(v) that from the date of this agreement through the Closing
Date, seller has managed and conducted the Business in the
ordinary course as heretofore managed and conducted as though no
change of ownership of the business were contemplated, and has
used commercially reasonable efforts to preserve all employee,
vendor and customer relationships.
(d) Certificate of Buyer. Buyer shall deliver to seller a
certificate, dated the Closing Date, signed by a duly authorized
officer of buyer certifying that:
(i) the representations and warranties made by buyer herein or
in any Exhibit or Schedule hereto remain true in all material
respects on the Closing Date as though made on such date except
for changes contemplated by the agreement;
(ii) Buyer has performed and complied in all material respects
with all agreements, covenants and conditions required by the
agreement to be performed or complied with by buyer on or prior
to the Closing;
(iii) no litigation, proceedings or other actions are pending
against or affecting the buyer which have resulted or reasonably
could be expected to result either in an action to enjoin or the
prevention of the consummation of the transactions contemplated by
the agreement; and
(iv) Buyer has received all consents required by the federal
government, any state or local governmental body or any foreign
government to the transactions contemplated by the agreement, and
such consents are in full force and effect.
(e) Opinions of Buyer's Counsel. Buyer shall deliver to seller
a signed copy of an opinion from ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ dated the
Closing Date and addressed to seller and substantially in the
form of Exhibit B attached hereto and hereby made a part hereof.
(f) Corporate Resolutions. Buyer and seller shall deliver to
each of the other parties hereto copies of their respective
corporate resolutions, certified by the appropriate corporate
officer, authorizing the execution and delivery of the agreement
and the consummation of the transactions contemplated hereby.
(g) Assignments and Guarantees. Seller shall deliver all
assignments and original copies of any guarantees or warranties
relating to the purchased assets.
(h) Plans, Etc. Seller shall deliver any and all plans,
permits, tests, certificates or approvals as required by this
agreement.
(i) Transfer of Licenses. Seller shall, to the extent permitted
by law, transfer to buyer all licenses necessary for the
continued conduct of the business.
(j) Other Agreements. Buyer and seller shall enter into such
other agreements, or execute and deliver such documents or items,
as may be contemplated by the agreement to effect the transactions
contemplated hereby.
(k) Government Consents. Buyer and seller shall each deliver to
the other copies of any governmental consents required to be
obtained pursuant to the agreement.
Ex-2; Pg. 3
7. Representations of Sellers
Sellers represent, warrant, and agree:
(a) ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. is a corporation duly organized,
existing, and in good standing under the laws of Maryland, and is
authorized and entitled to carry on its business in Maryland and
Virginia. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. has no subsidiaries. Its
capital stock authorized and outstanding consists of
approximately 1,000,000 shares of common stock. The execution and
the delivery of this agreement by ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., and the
consummation of the transactions contemplated by this agreement
have been duly authorized by its board of directors and
shareholders. The signatory for ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. has full
power and authority to enter into this agreement and to carry out
all the terms and provisions hereof to be carried out by him, and
all authorizations and consents necessary for the execution and
delivery of this agreement by him have been given. This
agreement, assuming due authorization, execution, and delivery by
the other parties hereto, constitutes a legal, valid, and binding
agreement of seller, enforceable against seller in accordance with
its terms (subject, as to enforcement of remedies, to applicable
bankruptcy, insolvency, moratorium, and similar laws affecting
creditors, rights generally from time to time in effect and to
equitable principles limiting the availability of the remedy of
specific performance).
(b) The financial statements of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. relating
to the twelve months ending December 31, 1999 delivered to buyer
during the course of the negotiations regarding this agreement,
fairly reflect the financial position of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
as of the end of that period and the result of operations during
that period.
(c) All assets and properties that were used in the business of
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. on the date of this agreement which are
described and set forth in Exhibit A are owned by seller, free and
clear of all mortgages, liens, and encumbrances.
(d) ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. is not in default under any contract,
agreement, lease, or other document to which it is a party, and
has complied with all laws, regulations, and ordinances
applicable to its business to the date of this agreement.
(e) Since December 31, 1999, the date of the financial
statements delivered to buyer, there has been no substantial loss
of value in any of the physical assets or properties of sellers
used in ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.'s business, ordinary wear and tear
excepted.
9.1 Option: Buyer's Representations and Warranties
Buyer hereby represents and warrants to seller that:
(a) Buyer is a corporation duly organized, validly existing and
in good standing under the laws of Florida, with full corporate
power to enter into, and to perform its obligations under, the
agreement.
(b) The execution, delivery and performance of the agreement by
buyer have been duly authorized by all necessary corporate action
and do not, and will not, violate or conflict with the provisions
of the buyer's Certificate of Incorporation or Bylaws or the
provisions of any indenture, agreement, or other instrument to
Ex-2; Pg. 4
which Buyer is a party or by which any of its property is bound.
The agreement constitutes a legal, valid and binding obligation
of buyer.
(c) Buyer has not engaged or otherwise used the services of any
broker or finder in connection with the agreement or the
transactions contemplated hereby and buyer agrees to indemnify and
hold harmless seller from and against any liability for any fee,
compensation, commission or expense (including attorneys' fees)
arising out of any claim by any person acting or claiming to act
on behalf of buyer for fees, compensation, commission or expense
with respect to the agreement or the transactions contemplated
hereby.
(d) No authorization or approval of any governmental body is
required to be obtained by buyer in connection with the
execution, delivery or performance of the agreement, or, if so
required, all such authorizations or approvals have been or will,
prior to the Closing, be obtained by buyer.
(e) There is no action, arbitration, suit, notice, order, real
estate tax contest or legal, administrative or other proceeding
before any court or governmental agency, authority or body pending
or, to buyer's knowledge, threatened against or affecting buyer
which would prevent or interfere with the transactions
contemplated by this agreement.
10. Conditions Precedent to Buyer's Obligations
The obligations of buyer under this agreement are conditioned
on the following all having occurred on or before the closing
date:
(a) All actions, proceedings, instruments, and documents
required of seller under this agreement shall be in a form
approved by counsel for buyer, provided that such approval shall
not be unreasonably withheld.
(b) The representations and warranties made by seller in this
agreement shall be substantially correct on the Closing Date,
except as affected by transactions contemplated in this agreement
and changes occurring in the ordinary course of business, with
the same force and effect as though the representations and
warranties had been made on the closing date.
(c) The instruments executed and delivered to buyer by seller
pursuant to this agreement are valid in accordance with their
terms and effectively vest in buyer good and marketable title to
the assets and business as contemplated by this agreement, free
and clear of any liabilities, obligations, and encumbrances,
except those liabilities and obligations expressly assumed by
buyer as provided in this agreement.
11. Broker's Fees
Each party represents and warrants to the other party that
no other person or firm brought about the sale or is entitled to
compensation in respect to it.
Ex-2; ▇▇. ▇
▇▇. ▇▇▇▇▇▇▇▇ Not To Compete
For a period continuing for two years after the closing date,
neither ▇▇▇▇▇▇ ▇▇▇▇ nor ▇▇▇▇▇▇ ▇▇▇▇▇ shall, directly or
indirectly, enter the employment of, or perform any advisory or
consulting service for, or make a substantial investment in, any
company, partnership, organization, proprietorship, or other
entity that engages in any business involving seller, and neither
▇▇▇▇▇▇ ▇▇▇▇ nor ▇▇▇▇▇▇ ▇▇▇▇▇, shall make available to any other
person or firm any data, research, invention, patent, or process
relating to business of seller. ▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇
shall execute separate non-compete agreements in furtherance of
these restrictions.
14. Expenses of Negotiation and Transfer
Each party shall pay the party's own expenses, taxes, and
other costs incident to or resulting from this agreement, whether
or not the transactions contemplated hereby are consummated. The
costs of seller shall include the preparation of documents of
transfer and documentary stamp taxes. Buyer's costs shall
include fees for the filing or recording of instruments of
transfer.
15. Notices
Any notice to be given under this agreement shall be given in
writing and delivered personally or by registered or certified
mail, postage prepaid, as follows:
(a) If to buyer, addressed to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, General
Counsel, ▇▇▇▇.▇▇▇, Inc. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
(b) If to sellers, addressed to ▇▇▇▇▇▇ ▇▇▇▇▇, President,
ClubComputer, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
16. Entire Agreement
This instrument contains the entire agreement between the parties
with respect to the transaction contemplated. It may be executed
in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
17. Confidentiality and Nondisclosure
All confidential information which shall have been furnished or
disclosed by buyer or seller to the other pursuant to this
agreement shall be held in confidence pursuant to the Confidential
Nondisclosure Agreement between Buyer and Seller dated April 10,
2000, attached hereto as Exhibit C, and shall not be disclosed to
any person other than their
Ex-2; Pg. 6
respective employees, directors, legal counsel, accountants or
financial advisors, with a need to have access to such
information.
In witness whereof the parties have executed this agreement at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ on the
day and year first above written.
▇▇▇▇.▇▇▇, Inc. ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
By:_____________________ By:___________________
Name: ▇▇▇▇▇▇ ▇. Richfield Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Its: President and C.E.O. Its: President
Ex-2; Pg. 7
Exhibit A
1.) Website (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇)
2.) Perpetual license for software including source code.
Electronic commerce software platform includes all future
updates at no additional cost. (Parties shall execute a
separate license agreement setting forth in more detail the
scope of the license.)
3.) rights to user lists, all subscriber lists, names,
addresses, etc.
4.) 100,000 member list.
5.) any and all asset contracts, e.g. contracts that allow
seller to operate with ISPs
6.) URLs and trademarks.
Ex-2; Pg. 8
Exhibit B
April 10, 2000
▇▇▇▇▇▇ ▇▇▇▇▇
President
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Agreement for Sale of Assets of ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
("Purchase Agreement"), dated as of April 3, 2000
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.(the "Seller") and ▇▇▇▇.▇▇▇, Inc.
("Buyer")
Dear ▇▇. ▇▇▇▇▇:
I have represented the above-referenced Buyer in connection
with the above-referenced Purchase Agreement. This opinion is
being delivered to Seller pursuant to paragraph 6.2(e) of the
Purchase Agreement. Except as otherwise indicated, capitalized
terms used herein are defined as set forth in the Purchase
Agreement.
In connection with this opinion, I have examined and relied
upon an executed original or photocopy (certified or otherwise
identified to my satisfaction) of the Purchase Agreement together
with all attached schedules (collectively, the "Transaction
Documents").
I have also examined such corporate records and other
documents and have made such examination of law as we have deemed
necessary in connection with this opinion, including: (i) the
Articles of Incorporation of Purchaser, as filed with the Secretary
of State of Florida, as amended through the date hereof, (ii) the
Bylaws of Purchaser, (iii) resolutions of Purchaser's Board of
Directors which authorize the transactions described in the
Transaction Documents and (iv) a Certificate of the Secretary of
Purchaser which certifies the authenticity of the above listed and
appended Articles and Bylaws of Purchaser and the resolutions of
the Board of Directors of Purchaser, as amended through the date
hereof.
In connection with this opinion, I have assumed, and to my
knowledge there are no facts inconsistent with, the accuracy and
completeness of all documents and records that I have reviewed, the
genuineness of all signatures, the authenticity of the documents
submitted ▇▇▇▇▇ as originals and the conformity to authentic
original documents of all documents submitted to me as certified,
conformed or reproduced copies. I have further assumed, and to my
knowledge there are no facts inconsistent with, the following:
(i) All natural persons involved in the transaction
contemplated by the Purchase Agreement and the other
Transaction Documents (the "Transaction") have sufficient
legal capacity to enter into and perform their respective
obligations under the Purchase Agreement and the other
Transaction Documents or to carry out their roles in the
Ex-2; Pg. 9
April 3, 2000
Page 2
Transaction.
(ii) Each party to the Transaction other than the Purchaser
(collectively, the "Other Parties") has satisfied all
legal requirements that are applicable to it to the
extent necessary to make the Purchase Agreement and each
of the other Transaction Documents enforceable against
it.
(iii) Each of the Other Parties has complied with all
legal requirements pertaining to its status as such
status relates to its rights to enforce the Purchase
Agreement and each of the other Transaction Documents
against the Purchaser.
(iv) The Purchaser holds the requisite title to and rights in
any property involved in the Transaction to which it is
purported to hold title and rights.
(v) The conduct of the parties to the Transaction and, to our
knowledge, the conduct of the Purchaser and any agents
acting for or on behalf of such parties in connection
with the Transaction, complies with any requirement of
good faith, fair dealing and conscionability.
(vi) There has not been any mutual mistake of fact or
misunderstanding, fraud, duress or undue influence.
(vii) All statutes, judicial and administrative decisions,
and rules and regulations of governmental agencies,
applicable to this opinion, are generally available to
lawyers practicing in the Commonwealth of Virginia and
are in a format that makes legal research reasonably
feasible.
In rendering this opinion, as to questions of fact material to
this opinion, I have relied to the extent I have deemed such
reliance appropriate, without investigation, on certificates and
other communications from public officials and from officers and
directors of the Purchaser and on the representations and
warranties of the Purchaser set forth in the Purchase Agreement and
the other Transaction Documents.
Wherever I indicate that my opinion with respect to the
existence or absence of facts is based on my knowledge, my opinion
is based solely on my current actual knowledge in connection with
the Transaction, and I have conducted no special investigation of
factual matters in connection with this opinion.
For purposes of my opinion as to due organization, valid
existence and qualifications of Purchaser, we have relied solely
upon a certificate of good standing issued by the Secretary of
Ex-2; Pg. 10
April 3, ▇▇▇▇
▇▇▇▇ ▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ dated April 3, 2000, and nothing has come to my
attention leading me to question the accuracy of such information.
The opinions set forth below are subject to the following
qualifications:
(i) the effects of bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting
the rights and remedies of creditors generally;
(ii) the effects of general principles of equity, whether
applied by a court of law or equity, with respect to the
performance and enforcement of the Purchase Agreement and
the other Transaction Documents;
(iii) the effects of limitations affecting the
enforceability of remedies to the extent such remedies
purport to or would have the effect of compensating any
party thereto in amounts in excess of the actual loss
suffered by such party;
(iv) the effects of principles of unconscionability;
(v) limitations based upon statutes or upon public policy
which, in either case, restrict a person's right to waive
the benefits of statutory provisions or of a common law
right;
(vi) limitations against releasing a party from or
indemnifying or exculpating a party against liability for
its own wrongful or negligent acts or where such release,
exculpation or indemnification is contrary to public
policy;
(vii) except as may be otherwise expressly provided
herein, references in this opinion letter to a document
or an agreement only refer to that document or agreement
as in effect as of the date hereof and not to any
exhibits or schedules thereto or to other documents
referred to therein or subsequent amendments thereof;
Ex-2; Pg. 11
April 3, 2000
Page 4
(viii) I express no opinion as to the enforceability of any
provision in any Transaction Documents or other document
or agreement which purports, by implication or otherwise,
to state that a failure or delay in exercising rights or
remedies will not operate as a waiver of any such right
or remedy;
(ix) I express no opinion with respect to any provision in any
Transaction Document or other document or agreement which
purports to (a) render ineffective any waiver or
modification not in writing or (b) waive a party's right
to a jury trial or other provisions purporting to affect
the jurisdiction and venue of courts;
(x) I express no opinion with respect to the enforceability
of any provision in any Transaction Document or other
document or agreement that purports to impose the laws of
any jurisdiction other than the laws of the United States
of America and the laws of the Commonwealth of Virginia;
(xi) I express no opinion as to the enforceability of any
covenant not to compete contained in any Transaction
Document or any other document or agreement;
(xii) I express no opinion as to the enforceability of any
provision in any Transaction Document or other document
or agreement which provides for the payment of another
party's attorneys' fees;
(xiii) I expresses no opinion concerning the enforceability
of any provision in the Transaction Documents prohibiting
the transfer or encumbrance of any property or any change
in the legal or beneficial interest in any entity;
(xiv) I express no opinion concerning the attachment or
the priority of liens on real or personal property; and
Based upon and subject to the foregoing and to the last
paragraph of this letter, it is my opinion that:
1. Purchaser is a duly organized and validly existing for-
profit corporation under the laws of the State of Florida and has
full power and authority to execute the applicable Transaction
Documents.
2. The Transaction Documents have been duly authorized,
executed and delivered and constitute the legal, valid and binding
obligations of Purchaser, enforceable in accordance with their
respective terms.
Ex-2; Pg. 12
April 3, 2000
Page 5
4. Purchaser's execution and delivery of, and the
performance of its obligations under the Transaction Documents (a)
will not conflict with any terms of the Articles of Incorporation
or Bylaws, (b) to my knowledge, will not violate or result in a
material breach of the provisions of, nor constitute a material
default under, any contracts or agreements to which Purchaser is a
party or by which any of them is bound and (c) to my knowledge,
will not conflict with or result in the breach of any court decree
or order of any governmental body binding upon or affecting
Purchaser or any of its properties.
5. To my knowledge, there is no litigation, arbitration, or
mediation pending before any court, arbitrator, mediator, or
administrative body, or threatened, against the Purchaser that
would prevent its performance of the Transaction Documents.
6. No consent, approval, authorization or other action by,
or filing with, any governmental authority is required for the
execution and delivery by Purchaser of the Transaction Documents,
and where required, the requisite consent, approval or
authorization has been obtained, the requisite filing has been
accomplished or the requisite action has been taken.
My opinions expressed above are limited to the laws of the
United States of America, the laws of the Commonwealth of Virginia
and the corporate laws of the State of Florida (but assuming for
purposes hereof that such corporate laws are identical to the
corporate laws of Virginia), and I do not express any opinion
herein concerning any other law. In addition, I express no
opinion herein concerning any statutes, ordinances, administrative
decisions, rules or regulations of any country, town, municipality
or special political subdivision (whether created or enabled
through legislative action at the federal, state or regional
level). This opinion is given as of the date hereof and I assume
no obligation to advise you of changes that may hereafter be
brought to my attention. This opinion is furnished by me as
counsel to the Purchaser solely for the information of the
addressee hereof and is not to be quoted in whole or in part or
otherwise referred to, nor is it to be filed with any governmental
agency or any other person, without my prior written consent. No
one other than the addressee hereof and any permissible successor
or assignee is entitled to rely on this opinion. This opinion is
rendered solely for purposes of the Transaction and should not be
relied upon for any other purpose.
Very truly yours,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
General Counsel
Ex-2; Pg. 13
Exhibit C
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
--------------------------------------------
This Agreement is entered into this 10th day of
April, 2000, between ▇▇▇▇.▇▇▇, Inc. ("INFE"), and
ClubComputer, Inc., ("RECIPIENT"), having offices
at: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
WHEREAS, the disclosure by the parties of
certain proprietary and trade secret information
is necessary for the purchase of assets by INFE
from RECIPIENT; and
WHEREAS, the parties desire to protect and
maintain the confidentiality of their respective
trade secrets and/or other proprietary
information (hereafter collectively referred to
as "Proprietary Information") and to control and
restrict its dissemination to prevent disclosure
to unauthorized parties; and
NOW THEREFORE, INFE and RECIPIENT agree to
the following:
1. INFE will disclose to RECIPIENT such
portions of its Proprietary Information solely to
enable RECIPIENT to determine the desirability of
selling its assets to INFE; and RECIPIENT shall
not disseminate any portions of the Proprietary
Information to any third party individual or
entity.
2. As used in this Agreement, the phrase
Proprietary Information shall include, but not be
limited to the following: (a) information
relating to trade secrets, appropriate licenses
with certain third parties, data, designs,
samples, drawings, relationships, documentation,
machinery, prototypes, processes, methods,
concepts, facilities, research, development,
patent applications, and other Proprietary
Information relating to the development, testing,
manufacture, or application of any such devices
or systems (including but not limited to system
concepts, architectures, source documents and
programming documents); and (b) all marketing or
financial plans, projections, resources,
contracts, studies, and general information
relating to the specific business opportunity
contemplated herein, whether obtained verbally or
in writing, or through observation. All
information, tangible or intangible, whether
obtained verbally or in writing, is to be
considered Proprietary Information.
4. No Proprietary Information shall be
disclosed to any third party whatsoever by
RECIPIENT without the prior written approval of
INFE and all such information shall be protected
with at least the same diligence, care, and
precaution that Recipient uses to protect its own
Proprietary Information.
5. The undertakings and obligations of
RECIPIENT under this Agreement shall not apply to
any information which: (a) is disclosed in a
printed publication available to the general
public, is described by or in a patent anywhere
in the world, or is otherwise in the public
domain at the time of disclosure other than
through the wrongful act or omission of the
receiving party; (b) is generally disclosed to
third parties by the disclosing party without
restriction on such third parties; (c) is
approved for release by prior, express, written
authorization from the disclosing party.
8. With respect to each item of Proprietary
Information disclosed, this obligation of the
parties under this Agreement shall expire three
(3) years from the date of each such disclosure
or the maximum period permitted by law if such
period is less than three (3) years.
Ex-2; Pg. 14
9. No modification, alteration, or addition to
this Agreement shall be binding unless mutually
agreed to in writing by both parties.
10. This Agreement shall be construed,
interpreted, and enforced according to the laws
of the Commonwealth of Virginia and the parties
hereto consent to jurisdiction therein.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement on the date first written
above.
▇▇▇▇.▇▇▇, Inc. RECIPIENT: ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
By:____________________ By:_________________________
Name: ▇▇▇▇▇▇ ▇. Richfield Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Its: President and CEO Its: President
Ex-2; Pg. 15
