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EXHIBIT 10(ii)
ASSET PURCHASE AGREEMENT
THIS AGREEMENT ("AGREEMENT"), dated as of August 21, 2000, is by and
among ELINEAR, INC., a Delaware corporation formerly known as Xxxxxxxx.xxx,
Inc., and its wholly owned subsidiary, ELINEAR CORPORATION, a Colorado
corporation, jointly and severally (hereinafter collectively referenced as
"ELINEAR"), INOBBAR, L.L.C., a Florida limited liability company ("INOBBAR"),
XXX XXXXXXX and XXXX XXXXXXXX (such individuals are together referred to as the
"MEMBERS").
R E C I T A L S
WHEREAS, Elinear is engaged in Internet consulting and transaction
management and software design and development, operating in the Denver,
Colorado, Tampa, Florida, Fort Lauderdale, Florida, and Houston, Texas markets;
WHEREAS, Elinear desires to discontinue its Tampa, Florida and Fort
Lauderdale, Florida operations because of its repeated losses with respect to
such operations and concentrate its efforts and resources in the Denver,
Colorado and Houston, Texas markets;
WHEREAS, Inobbar has been formed by the Members to engage in Internet
consulting and transaction management and software design and development;
WHEREAS, the Members are currently employed by Elinear;
WHEREAS, Elinear desires to sell, transfer and assign, and Inobbar
desires to purchase and assume, certain of Elinear's assets and liabilities
relating to Elinear's operations in Tampa, Florida (the "TAMPA OPERATIONS"); and
WHEREAS, in furtherance of Elinear's plan to exit the Tampa, Florida
and Fort Lauderdale, Florida markets, Elinear and the Members desire to
terminate the Members' employment relationships with Elinear and execute mutual
releases upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants set forth
herein, and intending to be legally bound hereby, the parties hereto hereby
agree as follows:
SECTION 1. BASIC TRANSACTION.
(a) PURCHASE AND SALE OF ASSETS. Effective as of the Effective Date (as
defined in Section 1(c) hereof), Elinear agrees to sell, transfer, convey and
deliver to Inobbar on the terms and subject to the conditions set forth herein,
and Inobbar agrees to purchase from Elinear, the assets set forth on SCHEDULE
1(a) hereto (the "ASSETS"), which Assets shall be free and clear of any liens or
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encumbrances except as otherwise set forth herein. It is acknowledged and agreed
that Elinear is retaining all accounts receivable outstanding as of the
Effective Date.
(b) ASSUMPTION OF LIABILITIES. Effective as of the Effective Date,
Elinear shall assign to Inobbar, and Inobbar shall assume and become responsible
for: (i) the Office Lease and Service Agreement entered into by Elinear for the
office premises located at 2 Urban Centre, 0000 Xxxx Xxxxxxx, Xxxxx 000, Xxxxx,
Xxxxxxx 00000 (the "TAMPA OFFICE"), (ii) the Office Service Agreement for the
office premises located at 000 Xxxxx Xxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000 (the "PLANTATION OFFICE"), (iii) each lease obligation for
equipment currently utilized in or by the Tampa Office or the Plantation Office
(together, the "FLORIDA OFFICES") to which Elinear is a party; provided,
however, that Inobbar's rights and obligations with respect to the DataReturn
server shall be limited as described below, (iv) each contract or other
obligation entered into by Elinear or Inobbar for services or equipment used in
connection with the Florida Offices, (v) all obligations with respect to the
Employees (as defined in Section 1(e) hereof) for paid time off ("PTO"), if any,
accrued prior to the Effective Date, and all obligations with respect to the
Employees arising from and after the Effective Date including severance, if any,
and (vi) all other obligations and liabilities relating to the Florida Offices
arising from and after the Effective Date. Inobbar and the Members on the one
hand and Elinear on the other hand, shall provide all information to the other
party(ies) necessary to set forth with specificity the assumed obligations on a
schedule to the Assignment and Assumption Agreement to be delivered at Closing
in accordance with Section 1(f) hereof.
Effective as of the Effective Date, Elinear shall sublicense and assign
to Inobbar, on a non-exclusive basis, Elinear's rights to use the DataReturn
server pursuant to that certain agreement by and between the owner of the
DataReturn server and Elinear (the "DATARETURN AGREEMENT"), which rights of use
shall be shared with Elinear and its clients and shall be to the extent
permitted under the DataReturn Agreement and/or as permitted by the owner of the
DataReturn server. Such rights of use shall extend from the Effective Date until
the expiration date of the DataReturn Agreement. During such period, Inobbar
shall be responsible for fifty percent (50%) of the monthly base fee for the
DataReturn server and fifty percent (50%) of the cost of any maintenance
charges, sales taxes or other fees, taxes, charges or expenses not tied to
server usage due to the DataReturn server's owner pursuant to the DataReturn
Agreement, and Elinear shall be responsible for the remaining fifty percent
(50%) of such base fee, charges, taxes and expenses. In the event that (and for
so long as) Elinear, Inobbar or their respective clients use available space on
the DataReturn server in excess of the available space provided as part of the
base rate, each of the parties shall pay a percentage of the aggregate fees,
taxes, charges and expenses due under the DataReturn Agreement for the
applicable billing period equal to the percentage share of space utilized by
such party or its clients on the server during such billing period and the other
party shall pay the balance of such aggregate fees, taxes, charges and expenses
due under the DataReturn Agreement. All payments due from Inobbar with respect
to its use of DataReturn server shall be paid within five (5) days of invoice of
the same by Elinear. In the event that the parties hereto or their clients
utilize space on the DataReturn server in excess of the available space provided
as part of the base rate, Elinear shall in good faith make the determination as
to the proportionate use of the server by the parties and shall provide to
Inobbar all back up documentation concerning its determination (including the
DataReturn xxxx) along with its invoice described in the immediately preceding
sentence. All fees, taxes, charges and expenses due under the DataReturn
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Agreement for the month of August, 2000 shall be prorated from the Effective
Date through August 31, 2000 and Inobbar shall reimburse Elinear such amount at
the Closing.
It is the parties' understanding that no leases for equipment are
currently in effect with respect to equipment currently located or to be located
in the future at the Florida Offices. In the event that any of the Members or
the Employees (as defined in Section 1(e) hereof) have caused Elinear to become
a party to such equipment lease arrangements, Inobbar shall indemnify and hold
Elinear harmless from such lease obligations and shall use its best efforts to
cause each lessor of equipment to release Elinear from any further obligations
or liabilities under such equipment leases, which best efforts shall include,
without limitation, the personal guaranties of the Members if requested by the
lessors. At Closing, Inobbar shall reimburse Elinear in an amount equal to the
aggregate of any security deposits held by the real property or equipment
lessors and not returned to Elinear at the time of Inobbar's assumption of the
lease obligations.
(c) CLOSING AND EFFECTIVE DATE. The transactions contemplated by this
Agreement shall close (the "CLOSING") when all closing deliveries set forth in
Section 1(f) hereof are fully executed and/or delivered by the parties, but no
later than September 21, 2000. The effective date of the Closing of the
transactions contemplated by this Agreement shall be August 21, 2000 (the
"EFFECTIVE DATE").
(d) CONSIDERATION. In addition to the assumption of liabilities set
forth above, the consideration to be given by Inobbar to Elinear in connection
with the purchase of the Assets, the releases set forth in this Agreement and
the licenses granted pursuant to this Agreement, shall be Xxx Xxxxxxx' options
to acquire Nine Hundred Thirty-Three Thousand Three Hundred Thirty-Three
(933,333) shares of Elinear's common stock (the "OPTION CONSIDERATION") granted
pursuant to that certain Stock Option Agreement dated as of April 4, 2000, by
and between Xxx Xxxxxxx and Elinear (the "XXXXXXX OPTION AGREEMENT"). For
purposes of this Agreement, the parties have set a value of Two Hundred Fifty
Thousand and No/100 Dollars ($250,000.00) with respect to the Option
Consideration.
(e) EMPLOYEES. Effective as of the Effective Date, the Members and each
of the other employees of Elinear set forth on SCHEDULE 1(E) hereto which
Elinear employed to provide services for Elinear's Tampa, Florida and
Plantation, Florida locations (collectively, the "EMPLOYEES") shall be deemed
terminated without cause as employees of Elinear and hired as employees of
Inobbar. From and after the Effective Date, Inobbar shall be responsible for
paying salaries, providing fringe benefits and for withholding, as required by
law, any sums for income tax, unemployment insurance, social security, or other
withholding required by applicable law or governmental requirement. Elinear
shall remain liable for salary and required withholding that accrued prior to
the Effective Date and for fringe benefits, other than PTO, that accrued prior
to the Effective Date. Effective as of the Effective Date, Inobbar shall
maintain appropriate workers' compensation coverage for all of the Employees and
other personnel employed by Inobbar and comprehensive general liability
insurance covering Inobbar and all of the Employees and all of its other
personnel. Elinear shall satisfy any salary or fringe benefit obligations, other
than PTO, accrued prior to the expiration of the Effective Date and Inobbar
shall use its best efforts to obtain from each of the Employees a release in the
form attached as EXHIBIT 1 (collectively, the "EMPLOYMENT RELEASES") of Elinear
from all of such liabilities and from any and all other liabilities of any kind
or nature related to Elinear's employment of the Employees. In the event that
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Inobbar does not obtain an Employment Release with respect to any particular
Employee: (i) such Employee shall be considered an individual which Inobbar may
not hire or engage pursuant to Section 9(a) hereof, and (ii) if in fact Inobbar
does hire such individual in violation of this Section and Section 9(a) hereof,
Inobbar shall indemnify and hold Elinear harmless from any claims, demands,
liabilities, costs, expenses, actions and causes of action of whatsoever kind or
nature brought by such Employee; such relief to be in addition to any other
remedies in equity or at law available to Elinear. Upon Closing, any
non-competition, non-disclosure and non-solicitation covenants between and among
Elinear and the Employees (who sign the Employment Releases) set forth in their
employment agreements shall be terminated and shall be of no further force or
effect.
(f) DELIVERIES AT CLOSING.
(1) At the Closing, Elinear shall deliver to Inobbar and
the Members the following:
(a) A Xxxx of Sale in the form attached to this
Agreement as EXHIBIT 2;
(b) Assignments and Assumptions of Leases\Office
Service Agreements for the Florida Offices
in the forms attached to this Agreement as
EXHIBIT 3 and EXHIBIT 4;
(c) Consents of the lessors or sublessors of the
Florida Offices in the forms attached to
this Agreement as EXHIBIT 5 and EXHIBIT 6;
(d) An Assignment and Assumption Agreement in
the form attached to this Agreement as
EXHIBIT 7;
(e) An Amendment to the Xxxxxxx Option Agreement
cancelling the options constituting the
Option Consideration in the form attached to
this Agreement as EXHIBIT 8;
(f) A Software and Service Xxxx License for the
use by Inobbar of the WebCAS software in the
form attached to this Agreement as EXHIBIT
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(g) A reconciliation of amounts owed to and from
each of the parties;
(h) Such other instruments of sale, transfer,
conveyance and assignment as Inobbar may
reasonably request; and
(i) Such other documents as may be necessary to
effectuate the transactions contemplated
hereby.
(2) At the Closing, Inobbar and the Members shall deliver
to Elinear the following:
(a) The Assignments and Assumptions of
Leases\Office Service Agreements for the
Florida Offices.
(b) The Assignment and Assumption Agreement;
(c) The Employment Releases;
(d) The reimbursement for security deposits
contemplated by Section 1(b) hereof;
(e) The Amendment to the Xxxxxxx Option
Agreement;
(f) The Software and Service Xxxx License;
(g) A reconciliation of amounts owed to and from
each of the parties;
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(h) Such other instruments of assumption as
Elinear may reasonably request; and
(i) Such other documents as may be necessary to
effectuate the transactions contemplated
hereby.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES OF ELINEAR. Elinear hereby
represents and warrants to Inobbar and the Members that the following are true
and correct as of the Closing:
(i) Elinear is duly authorized to execute, deliver and perform
this Agreement and any other agreement contemplated hereby, and to consummate
the transactions contemplated hereby. The Agreement and each other agreement
contemplated hereby are the legal, valid and binding obligations of Elinear,
enforceable against it in accordance with their respective terms.
(ii) The information provided by Elinear with respect to the
assumed liabilities to be set forth in the Assignment and Assumption Agreement
to be delivered at Closing will be true and correct in all respects.
(iii) Elinear owns and has marketable title to the Assets, and
the Assets shall be transferred to Inobbar at Closing free and clear of all
liens and encumbrances whatsoever.
(b) REPRESENTATIONS AND WARRANTIES OF INOBBAR AND THE MEMBERS. Inobbar
and the Members jointly and severally hereby represent and warrant to Elinear
that the following are true and correct as of the Closing:
(i) Inobbar is duly authorized to execute, deliver and perform
this Agreement and any other agreement or instrument contemplated hereby, and to
consummate the transactions contemplated hereby. The Agreement and each other
agreement contemplated hereby are the legal, valid and binding obligations of
Inobbar and the Members, enforceable against each such party in accordance with
their respective terms.
(ii) Except as set forth on SCHEDULE 2(b)(ii) hereto: (a)
there are no prepaid expenses, unbilled accounts receivable, unbilled services
or similar items relating to the Florida Offices or the operations of Elinear in
the Tampa, Florida or Fort Lauderdale/Plantation, Florida markets, (b) none of
the Members or any individuals acting at the direction of the Members have
deposited or otherwise disposed of any revenue collected by or on behalf of
Elinear other than in Elinear's bank accounts, and (c) all ledger entries and
other information provided by or on behalf of the Members to Elinear with
respect to any revenue collected by or on behalf of Elinear since the date of
the opening of the Tampa Office, have been complete and accurate in all
respects.
(iii) Except as set forth in the Assignment and Assumption
Agreement delivered in accordance with Section 1(f) hereof, none of Inobbar or
the Members have incurred any commitments, obligations or liabilities on behalf
of or in the name of Elinear which remain unsatisfied or unfulfilled since the
date of the opening of the Tampa Office, except for: (a) the sublease
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arrangement for the office premises located at 000 Xxxxx Xxxx Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxx, 00000 on the fourth floor by and between Elinear and
American Superior Insurance Company, and (b) such other commitments, obligations
and liabilities disclosed to Xxx Xxxxxx or Xxxxxxx Xxxxx prior to the Closing or
of which Xxx Xxxxxx or Xxxxxxx Xxxxx are otherwise aware by the Closing.
(iv) The information provided by the Members and Inobbar with
respect to the assumed liabilities to be set forth in the Assignment and
Assumption Agreement to be delivered at Closing will be true and correct in all
respects.
SECTION 3. NONDISPARAGEMENT COVENANTS. Elinear, Inobbar and the Members
mutually agree that they shall not at any time make or publish any negative,
critical or disparaging comments or statements, whether written or oral, about
Elinear, Inobbar or the Members, or their respective officers, directors,
employees, shareholders, members or managers.
SECTION 4. ELINEAR STOCK OPTIONS.
(a) MEMBERS' STOCK OPTIONS. All Stock Option Agreements between Elinear
and the Members shall be deemed to be terminated as of the Effective Date,
except as provided in the Xxxxxxx Option Agreement (which shall be amended
pursuant to the Amendment to Stock Option Agreement described in Section 1(f)
hereof).
(b) STOCK OPTIONS OF EMPLOYEES. All Stock Option Agreements, if any,
between Elinear and any Employees other than the Members shall be deemed to be
terminated as of the Effective Date.
SECTION 5. INDEMNIFICATION.
(a) INDEMNIFICATION FOR BENEFIT OF ELINEAR. Inobbar and the Members,
jointly and severally, shall defend, indemnify and hold Elinear and its
officers, directors, employees and agents harmless from and shall pay all
losses, damages, fees, expenses or costs (including reasonable attorney's fees)
incurred by them based upon any claim arising out of any breach by Inobbar or
the Members of any of their representations or warranties herein, and Inobbar
and the Members shall severally defend, indemnify and hold Elinear and its
officers, directors, employees and agents harmless from and shall pay all
losses, damages, fees, expenses or costs (including reasonable attorney's fees)
incurred by them based upon any claim arising out of any breach by Inobbar or
the Members of any of their respective obligations or agreements herein.
(b) INDEMNIFICATION FOR BENEFIT OF INOBBAR AND MEMBERS. Elinear shall
defend, indemnify and hold the Members, Inobbar and its officers, managers,
members, employees and agents harmless from and shall pay all losses, damages,
fees, expenses or costs (including reasonable attorney's fees) incurred by them
based upon any claim arising out of any breach by Elinear of any of its
obligations, agreements, representations or warranties herein.
SECTION 6. MUTUAL RELEASES. Effective upon the Closing:
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(a) The Members and Inobbar, and their respective successors and
assigns do hereby release and forever discharge Elinear and its officers,
directors, shareholders, partners, agents, employees, affiliated entities,
affiliated professionals, successors and assigns, of and from any and all
claims, demands, liabilities, costs, expenses, actions and causes of action of
whatsoever kind or nature, whether in law or equity, from the beginning of time
to the date of the Closing, which the Members or Inobbar may have or claim to
have, whether known to them or not, against Elinear, except for the obligations
under this Agreement, the Xxxxxxx Option Agreement, as amended pursuant to the
Amendment contemplated by this Agreement, or the documents referenced in Section
1(f) above. Except as specifically set forth in this Section 6, this release is
a general release and the parties intend and agree that it shall be interpreted,
construed and enforced as such.
(b) Elinear and its successors and assigns do hereby release and
forever discharge each of the Members and Inobbar, and their respective
officers, directors, shareholders, partners, agents, employees, affiliated
entities, affiliated professionals, successors and assigns, of and from any and
all claims, demands, liabilities, costs, expenses, actions and causes of action
of whatsoever kind or nature, whether in law or equity, from the beginning of
time to the date of the Closing, which Elinear may have or claim to have,
whether known to them or not, against the Members or Inobbar, except for the
obligations under this Agreement or the documents referenced in Section 1(f)
above. Except as specifically set forth in this Section 6, this release is a
general release and the parties intend and agree that it shall be interpreted,
construed and enforced as such.
This Section 6 shall be of no force or effect until Closing.
SECTION 7. NO ASSIGNMENT OF CLAIMS. Each of the parties warrants and
represents that no part of any of the above asserted or assertable claims have
been assigned or transferred, and that he or it has full, exclusive and
unencumbered right, title and interest in and to them.
SECTION 8. NO PRIOR BREACH. By executing this Agreement, the parties
hereto are not acknowledging a breach of any agreement between the parties and
affirm that the parties have mutually agreed not to continue the previously
established business relationships referred to herein, except as otherwise
provided herein.
SECTION 9. COVENANTS NOT TO COMPETE.
(a) COVENANT NOT TO COMPETE OF INOBBAR. Inobbar and the Members
acknowledge and recognize the highly competitive nature of Elinear's business,
that the continued patronage of Elinear's Clients (as hereinafter defined)
constitutes a substantial asset of Elinear having been acquired through
considerable time, money and effort and that Elinear would not have entered into
this Agreement without the covenants set forth herein. Accordingly, Inobbar and
the Members agree that for a period of one (1) year after the Effective Date
(the "RESTRICTED PERIOD"), none of Inobbar or the Members shall individually or
with others, directly or indirectly: (i) compete with Elinear by soliciting,
inducing or influencing any of Elinear's Clients to discontinue or reduce the
extent of such relationship with Elinear or to conduct business with Inobbar; or
(ii) recruit, solicit or otherwise influence any existing employee, independent
contractor, computer programmer or agent of Elinear, other than the Employees,
to discontinue such employment, contractual or agency relationship with Elinear.
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(b) ELINEAR'S CLIENTS. For the purposes of this Agreement "Elinear's
Clients" shall be deemed to be those individuals, associations or business
entities reflected on SCHEDULE 9(B) attached hereto, which currently do business
with Elinear or which are current prospects of Elinear.
(c) COVENANT NOT TO COMPETE OF ELINEAR. Elinear acknowledges and
recognizes the highly competitive nature of business to be conducted by Inobbar
and that none of Inobbar or the Members would have entered into this Agreement
without the covenants set forth herein. Accordingly, Elinear agrees that during
the Restricted Period it shall not individually or with others, directly or
indirectly: (i) compete with Inobbar by soliciting, inducing or influencing any
of Inobbar's Clients to discontinue or reduce the extent of such relationship
with Inobbar or to conduct business with Elinear; or (ii) recruit, solicit or
otherwise influence any employee, independent contractor computer programmer or
agent of Inobbar to discontinue such employment, contractual or agency
relationship with Inobbar.
(d) INOBBAR'S CLIENTS. For the purposes of this Agreement, Inobbar's
Clients shall be deemed to be those individuals, associations or business
entities reflected on SCHEDULE 9(D) attached hereto, which currently do business
with Inobbar or which are current prospects of Inobbar.
(e) SEVERABILITY. If any provision, or part thereof, of this Agreement
is held to be unenforceable in any respect, such unenforceability will not
affect any other provision hereof, but this Agreement will be reformed,
construed and enforced as if such unenforceable provision had never been
contained herein. If any court determines that any provision of this Section 9
is unenforceable because of the duration or scope of such provision, such court
shall have the power to reduce the scope or duration of such provision, as the
case may be, and, in its reduced form, such provision shall then be enforceable.
SECTION 10. REMEDIES. The parties agree that a breach of this Agreement
by any party shall result in immediate and irreparable harm to the other party
hereto. Accordingly, the parties agree that the non-defaulting parties may seek
and obtain injunctive or other equitable relief as against the defaulting party
hereunder, without posting bond or other security, in addition to any other
remedies available at law or in equity.
SECTION 11. GOVERNING LAW; WAIVER OF JURY TRIAL. This Agreement shall
be governed by the laws of the State of Florida without regard to such state's
rules concerning conflicts of laws. Any right to trial by jury with respect to
any claim or proceeding related to or arising out of this Agreement is waived.
SECTION 12. ENTIRE AGREEMENT; COUNTERPARTS. This Agreement reflects the
entire agreement between the parties hereto with respect to the subject matter
hereof and no provision hereof may be modified or waived unless such
modification or waiver is in writing and is signed by all of the parties hereto.
This Agreement 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 agreement.
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SECTION 13. BINDING EFFECT. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto.
SECTION 14. ATTORNEYS' FEES. In the event of any litigation arising out
of or relating to this Agreement, the prevailing party shall be entitled to
recover all costs and reasonable attorneys' fees incurred, including, but not
limited to, costs and fees incurred in any investigations, trials, bankruptcies
and appeals.
SECTION 15. EXPENSES; DOCUMENTARY TAXES. Each of the parties shall be
responsible for and will pay his or its own expenses incurred in connection with
the negotiation of the transactions contemplated hereunder.
SECTION 16. DISCLAIMER OF WARRANTIES. THE ASSETS SHALL BE TRANSFERRED
TO INOBBAR "AS IS, WHERE IS" WITH NO WARRANTIES OR REPRESENTATIONS OTHER THAN
TITLE AND OWNERSHIP. ELINEAR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
IN CONNECTION WITH THE ASSETS, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE.
SECTION 17. FURTHER ASSURANCES. From and after the Effective Date, upon
the reasonable request of any party, the other party(ies) shall execute and
deliver such instruments, documents and other writings as may be reasonably
necessary to effectuate the intent and purpose of this Agreement.
SECTION 18. FULL ACCESS. After the Effective Date, Inobbar and the
Members shall provide Elinear with access, upon prior reasonable written request
specifying the need therefor, during regular business hours, to the books of
account and records of Inobbar for the period from the date of the Tampa Office
was opened until the Effective Date, and Elinear and its representatives shall
have the right to make copies of such books and records.
SECTION 19. ACCESS TO WEBSITE AND E-MAIL. For a period of eight (8)
weeks after the Effective Date, Elinear shall provide Inobbar, the Members and
the Employees other than the Members access to and use of Elinear's Website for
Inobbar's legitimate business purposes and access to and use of Elinear's e-mail
infrastructure by such individuals.
SECTION 20. COOPERATION. Each of the parties hereto will cooperate with
the other in all respects, and each of the parties will execute and deliver to
the other parties hereto such other instruments and documents and take such
other actions as may be reasonably requested from time to time by any other
party hereto as necessary to carry out, evidence and confirm the intended
purposes of this Agreement. Such cooperation shall include, without limitation,
assistance to Elinear by the Members and Inobbar as necessary in conjunction
with any audits of Elinear's financial statements, including the timely
completion of information requests or other inquiries as required by Elinear or
its auditors.
SECTION 21. ACKNOWLEDGMENT. Elinear, Inobbar and the Members each
acknowledge their consent to the legal representation of Elinear by Xxxxxxxx,
Loop & Xxxxxxxx, LLP in connection with this Agreement and the transactions
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contemplated hereby, and hereby waive any conflict of interest that may result
from such representation. Elinear, Inobbar and the Members each further
acknowledge that they have been advised that it may be in their best interests
to retain their own independent legal counsel to represent them in connection
with this Agreement.
The parties hereto have executed this Agreement as of the date first
above written.
ELINEAR, INC
By: /s/ Xxx Xxxxxx
--------------------------------------------
Xxx Xxxxxx, its Chief Executive Officer
ELINEAR CORPORATION
By: /s/ Xxx Xxxxxx
--------------------------------------------
Xxx Xxxxxx, its President
INOBBAR, L.L.C.
By: /s/ Xxx Xxxxxxx
--------------------------------------------
Xxx Xxxxxxx, its Manager
/s/ Xxx Xxxxxxx
--------------------------------------------
Xxx Xxxxxxx, individually
/s/ Xxxx Xxxxxxxx
--------------------------------------------
Xxxx Xxxxxxxx, individually
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SCHEDULE 1(a)
ASSETS
(a) all equipment, furniture, furnishings and fixtures listed on the
attached SCHEDULE 1(a)-A which are currently located at the Florida Offices;
(b) all supplies located at the Florida Offices;
(c) all leases of instruments, equipment, furniture, machinery and
other items of tangible personal property (including rights to any security
deposits with respect to such leases) relating primarily to the Florida Offices
to the extent that such leases are transferable;
(d) the customer accounts for the current and potential customers
listed on SCHEDULE 9(d); provided, however, that the foregoing does not include
any rights to collect or receive accounts receivable of Elinear outstanding as
of the Effective Date;
(e) to the extent permitted by applicable law, all rights under any
written or oral contract, agreement, plan, instrument, registration, license,
certificate of occupancy, other permit or approval of any nature, or other
document, commitment, arrangement, undertaking, practice or authorization held
or entered into by Elinear and relating primarily to the Florida Offices;
provided, however, that the foregoing does not include any rights to collect or
receive accounts receivable of Elinear outstanding as of the Effective Date;
(f) the rights to all telephone numbers used at the Florida Offices;
(g) all warranties and guaranties made or provided by third parties to
or for the benefit of Elinear with respect to any of the assets described in
this Schedule 1(a);
(h) copies (but not originals) of all books and records of Elinear
located at the Florida Offices, including, without limitation, all credit
records, payroll records, computer records, data bases, contracts, agreements,
operating manuals, schedules of assets, correspondence, books of account, files,
papers, books and all other public and confidential business records, whether
such records are in hard copy form or are electronically or magnetically stored;
(i) copies (but not originals) of all information, files, records,
data, plans, contracts and recorded knowledge, including supplier lists and
employee records held by Elinear related to the foregoing and the operation of
the Florida Offices or which are located at the Florida Offices; and
(j) the amounts owed by certain employees of Elinear to Elinear which
are described on the attached SCHEDULE 1(a)-B.
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SCHEDULE 1(e)
EMPLOYEES
See list annexed hereto.
1. Xxxx Xxxxxxx
2. Xxx Xxxxxxxx
3. Xxxxxxx Xxxxx
4. Xxxx Xxxxx
5. Xxxxxxxx Xxxxxxx
6. Xxxxx Xxxxxx
7. Xxxxx Xxxxxxx
Xxx Xxxxxxx was terminated by Xxx Xxxxxx and is not considered an Elinear
employee.
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SCHEDULE 2(b)(ii)
PREPAID EXPENSES
Description Amount
----------- ------
Xxxxx Past Draw 1,500
DigiChat Software for Shula's 495
50% of Tampa Non-Lease Costs for August 621
Xxx Expense Report 12,162
------
Total 14,778
======
13
14
SCHEDULE 9(b)
ELINEAR'S CLIENTS
PROTECTED CLIENT LIST -HOUSTON/DENVER
Academy Sports and Out... JCIT
Administaff XX Xxxxxxx
Anchor Offices Managed Storage
Athletic Link NCI Building Systems LP
AVCA NCBA
AWWA One Source (Xxxxxx Xxxxxx)*
Xxxx Corporation Pacific Union College
BMC Software Prairie View A & M University
Boulder Weekly Prologis
Chateau Communities Pulmonary Data Service
Chevron Xxxxxxxxx.Xxx
City of Houston Police Dept. Royal and Sun Alliance Royal Gold
Coastal Corporation Samsonite
Colorado State Bank Santa Xx Xxxxxx Corporation
Convergent Communications Spring Branch Independen...
Coors Stage Stores
Duke Communications State of Colorado
EDS Stevinson Automotive
Eott Energy Partners LLP STS Hotel Net
Evolving Systems SullivanHayes
e-z conference Sun Educational Services**
First Trust Tactical Marketing
Garage Door Services TeleClip
Xxxxxx County Central Tec.. Texas Procurement Center
Xxxxxx The Family Neighborhood
Highlands Insurance Com... UnitedGlobalCom
Xxxxx Universal Compression, Inc.
Hire Intelligence Western Geophysical
Holme Xxxxxxx & Xxxx Western Union Internet
Houston Community College Wild Oats
Houston Independent School District XxxxxxXxxxx.xxx
Information Handling Services (IHS)
* The inclusion of One Source and Xxxxxx Xxxxxx on Elinear's Client List does
not prohibit Inobbar from soliciting the business of, or accepting business
from, Outback Steakhouses (of which Xxxxxx Xxxxxx is affiliated).
** The inclusion of Sun Educational Services on Elinear's Client List does not
prohibit Inobbar from soliciting the business of, or accepting business
from, Sun Microsystems or its other affiliates.
14
15
SCHEDULE 9(d)
INOBBAR'S CLIENTS
Adelphia Communications Lazydays RV
Alliant Defense Electronics Palm Beach County Govt
ANC Rental Corporation Paramount Dental Plan
Xxxxxxxxxxxxxxx.xx Pediatrix Associates
Automotive Computer Technology Pinnacle
Broward County Sherrif's Productivity Point International
Broward County Govt Publix
Miami Dade County Govt Service America
C & W Leasing Show Tenders
Ceridian Benefits Xxx Xxxxx Inc
Cinnabar Xxxxx'x Steak House
City of Coconut Creek Shula's Hotel and Golf Club
City of Xxxxxxx Xxxxx'x Steak House
City of Plantation Spherion
City of St. Petersburg Xxxxxxxxxx.xxx
Comcar Industries Xxxxx Enterprises
Elcotel The Travel Xxxx.xxx
First National Bank of Florida The Travel Xxxx.xxx
Xxxxxx Companies Xxxxxxx Auctioneers
GSN Univision Holdings Inc
Home Shopping Network User Technology Group
IFC Holdings Xxxxxx Clinics
KidsNet Westminster Academy
MSE Technology
15
