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Exhibit 10.1
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is entered into as of
May 1, 2000 (the "Effective Date"), among 2AlertMe, Inc. an Illinois
corporation having its principal offices at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx
Xxxx, Xxxxxxxx 00000, (the "Company"), and SpectraFAX Corp., a Florida
corporation having its principal office at Xxxxx 000, 0000 Xxxxx Xxxxxxxxx
Xxxxx, Xxxxxx, Xxxxxxx 00000, (the "Buyer"), Xxxxx XxXxxxxx, Xxxxx Xxxxxx and
Xxxxxxx Xxxxxx who, collectively, hold 1,185,000 of the common stock of the
Company (each a "Shareholder" and collectively, the "Shareholders"). Certain
other capitalized terms used herein are defined in Article X and throughout
this Agreement.
RECITALS
Buyer and the Company have determined that it is in the best interests
of their respective shareholders for Buyer to acquire the assets of the Company
as provided herein. The Company will be paid cash, shares of Buyer's .001 par
value common stock ("Stock") and warrants to acquire Stock in exchange for the
assets of the Company being transferred hereby (the "Asset Purchase").
TERMS OF AGREEMENT
In consideration of the mutual representations, warranties, covenants
and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF
ASSETS; PURCHASE PRICE; CLOSING
1.1 PURCHASED ASSETS. The Company agrees to and hereby sells,
conveys, transfers, assigns and delivers to Buyer concurrently herewith on the
terms and subject to the conditions set forth in this Agreement, all of its
assets, properties, goodwill and business of every kind and description,
whether real, personal or mixed, tangible or intangible, wherever located as
exists as of the date hereof (collectively, the "Purchased Assets"). Without
limiting the generality of the foregoing, the Purchased Assets shall include
the following:
(a) all inventories of the Company;
(b) all work in process, of whatsoever kind or nature of
the Company;
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(c) all of the interests, rights and benefits accruing
to the Company under any licenses, service agreements, equipment
leases franchise contracts, sales orders, sales contracts, supply
contracts, service agreements, insurance policies, purchase orders,
purchase commitments and Material Contracts (as defined herein) made
by the Company in the ordinary course of business, all other
agreements to which the Company is a party or by which it is bound in
the ordinary course of business and all choses in action, causes of
action and other rights of every kind of the Company;
(d) all operating data and records of the Company,
including all customer lists;
(e) all cash and cash equivalents of the Company;
(f) all intangibles of the Company, including, but not
limited to, all source-codes, object-codes, manuals and other
documentation and materials (whether or not in written form) and all
versions thereof, together with all other intellectual property
patents (and applications therefor), licenses, trademarks (and
applications therefor), service marks, tradenames (whether registered
or unregistered), domain names (and any derivations thereof),
copyrights (and applications therefor), proprietary computer software,
programming code (e.g., HTML) or scripts, proprietary inventions or
proprietary technology assigned to the Company, technical information
and data, discoveries, designs, proprietary rights and non-public
information, trade secrets, business strategies and techniques,
business proposals, client and prospective client information, and
know-how, in each case whether or not patentable (including, without
limitation all licenses, rights, software and computer code necessary
to operate the 2AlertMe web site in the manner currently operated and
including, without limitation, the rights and properties listed on
Schedule 1.1(f) hereto) (collectively, the "Intellectual Property");
and
(g) all prepaid expenses.
1.2 CLOSING. Subject to the satisfaction or waiver by the
appropriate party of all of the conditions precedent to Closing specified in
Article VIII hereof (the "Conditions"), the Closing shall take place at the
offices of Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, A Professional Limited Liability
Company, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000-0000 on or
before June 1, 2000 or at such later date or at such other location as the
parties hereto may mutually designate in writing (the "Closing Date"). The
Closing shall be effective as of 12:01 a.m. on the Closing Date. If the
Conditions are not waived or satisfied by June 1, 2000, the Closing Date shall
be on the third (3rd) business day after the last of all such Conditions have
been satisfied or waived and notice of such waiver or satisfaction is provided
to the other party, in writing; provided, however, that the Closing Date shall
not be later than six months after the Effective Date (the "Outside Closing
Date").
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1.3 INSTRUMENTS OF TRANSFER. On the Closing Date, the Company
will deliver to Buyer, or will cause to be delivered to Buyer, duly executed
instruments of transfer and assignment in form and substance reasonably
satisfactory to Buyer and its counsel, sufficient to assign to Buyer the
contracts and liabilities set forth in Schedule 1.6(a) and (b) and to vest in
Buyer good and valid title to, and all of the Company's right, title and
interest in and to, the Purchased Assets, including, without limitation, one or
more of each of the following:
(a) a xxxx of sale and assignment;
(b) instruments of transfer and assignment of the
Intellectual Property; and
(c) such other instruments of transfer and assignment as
may be reasonably necessary to transfer and assign the Purchased
Assets to Buyer.
1.4 ASSIGNMENT OF CONTRACTS. Notwithstanding anything in this
Agreement to the contrary, this Agreement shall not constitute an assignment of
any claim, contract, or other right or benefit if an attempted assignment
thereof, without the consent of a third party thereto, would constitute a
breach thereof or in any way adversely affect the rights of Buyer thereunder.
If any attempt at an assignment thereof would be ineffective so that Buyer
would not in fact receive all such rights, the Company shall cooperate with
Buyer to the extent necessary to provide for Buyer the benefits under such
claim, contract, or other right or benefit.
1.5 PURCHASE PRICE. As consideration for the Purchased Assets,
Buyer shall concurrently herewith, on the terms and subject to the conditions
and limitations set forth herein, (a) issue to the Company 200,000 shares of
Stock (the "Spectrafax Shares"), (b) issue to the Company or to the Company's
designee, an option, substantially in the form of Exhibit A to acquire 200,000
shares of Stock for $3.50 a share (the "Option") and (c) pay to the Company one
hundred twenty-five thousand dollars ($125,000) less the difference between (i)
$14,771 and (ii) the amount of cash which is a Purchased Asset.
1.6 EXCLUDED LIABILITIES. Notwithstanding anything else to the
contrary contained in this Agreement, the parties expressly agree that Buyer
does not assume or otherwise become liable for, and the Company and/or the
Shareholders shall remain unconditionally liable for, all of the obligations
and liabilities of the Company or the Shareholders other than the contracts set
forth on Schedule 1.6(a) and the liabilities set forth or Schedule 1.6(b)
(collectively, the "Assumed Liabilities").
1.7 EMPLOYMENT AGREEMENT. Upon the Closing, Buyer and Xxxxx
XxXxxxx shall execute an employment agreement and stock option agreement
substantially in the form of Exhibit A (the "Employee Agreements").
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF BUYER
As a material inducement to the Company and the Shareholders to enter
into this Agreement and to consummate the transactions contemplated hereby,
Buyer makes the following representations and warranties to the Company and the
Shareholders:
2.1 CORPORATE STATUS. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has the requisite power and authority to own or lease its
properties and to carry on their business as presently conducted.
2.2 CORPORATE POWER AND AUTHORITY. Buyer has the corporate power
and authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. Buyer has
taken all corporate action necessary to authorize its execution and delivery of
this Agreement, the performance of its obligations hereunder and the
consummation of the transactions contemplated hereby.
2.3 ENFORCEABILITY. This Agreement has been duly executed and
delivered by Buyer and constitutes a legal, valid and binding obligation of
Buyer, enforceable against it in accordance with its terms, except as the same
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally and
general equitable principles regardless of whether such enforceability is
considered in a proceeding at law or in equity.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY AND THE SHAREHOLDERS
As a material inducement to Buyer to enter into this Agreement and to
consummate the transactions contemplated hereby, the Company and each of the
Shareholders, jointly and severally, make the following representations and
warranties to Buyer:
3.1 CORPORATE STATUS. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Illinois and has the requisite power and authority to own or lease its
properties and to carry on its business as now being conducted. The Company is
legally qualified to do business as a foreign corporation in each of the
jurisdictions where the nature of its properties and the conduct of its
business requires such qualification (all of which
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jurisdictions are set forth in Schedule 3.1), which represent all jurisdictions
where the nature of its properties and the conduct of its business requires
such qualification, and is in good standing in each of the jurisdictions in
which it is so qualified. The Company has fully complied with all of the
requirements of any statute governing the use and registration of fictitious
names, and has the legal right to use the names under which it operates its
businesses. There is no pending or threatened proceeding for the dissolution,
liquidation, insolvency or rehabilitation of the Company. All names under which
the Company does business as of the date hereof are specified on Schedule 3.1.
Except as otherwise disclosed in Schedule 3.1, the Company has not changed its
name or used any assumed or fictitious name, or been the surviving entity in a
merger, acquired any business or changed its principal place of business or
chief executive office, within the past three years.
3.2 POWER AND AUTHORITY. The Company has the corporate power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The Company
has taken all corporate action necessary to authorize the execution and
delivery of this Agreement, the performance of its obligations hereunder and
the consummation of the transactions contemplated hereby. Each of the
Shareholders has the requisite competence and authority to execute and deliver
this Agreement, to perform their respective obligations hereunder and to
consummate the transactions contemplated hereby.
3.3 ENFORCEABILITY. This Agreement has been duly executed and
delivered by the Company and each of the Shareholders, and constitutes the
legal, valid and binding obligation of each of them, enforceable against each
of them in accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and general equitable
principles regardless of whether such enforceability is considered in a
proceeding at law or in equity. The delivery of the instruments of transfer set
forth in Section 1.3 of this Agreement will grant Buyer good and marketable or
merchantable title in the Purchased Assets free and clear of all Liens, except
as set forth on Schedule 3.3.
3.4 NO VIOLATION; CONSENTS AND APPROVALS. Except for any
approvals or consents required under the Material Contracts (as defined in
Section 3.14) identified in Schedule 3.14 as requiring the consent of third
parties, the execution and delivery of this Agreement by the Company and the
Shareholders, the performance by the Company and the Shareholders of their
obligations hereunder and the consummation by them of the transactions
contemplated by this Agreement will not (a) contravene any provision of the
Articles of Incorporation or Bylaws of the Company, (b) violate or conflict
with any law, statute, ordinance, rule, regulation, decree, writ, injunction,
judgment or order of any Governmental Authority or of any arbitration award
which is either applicable to, binding upon or
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enforceable against the Company or any of the Shareholders, (c) conflict with,
result in any breach of, or constitute a default (or an event which would, with
the passage of time or the giving of notice or both, constitute a default)
under, or give rise to a right of payment or right to terminate, amend, modify,
abandon or accelerate, any Contract which is applicable to, binding upon or
enforceable against the Company or the Shareholders, (d) result in or require
the creation or imposition of any Lien upon or with respect to any of the
properties or assets of the Company, (e) give to any individual or entity a
right or claim against the Company or the Shareholders or (f) require the
consent, approval, authorization or permit of, or filing with or notification
to, any Governmental Authority, any court or tribunal or any other Person.
3.5 RECORDS OF THE COMPANY. The copies of the articles of
incorporation, bylaws, and other documents and agreements of the Company which
were provided to Buyer are true, accurate and complete and reflect all
amendments made through the date of this Agreement. The minute books for the
Company made available to Buyer for review were correct and complete in all
material respects as of the date of such review, no further entries have been
made through the date of this Agreement, such minute books contain the true
signatures of the persons purporting to have signed them, and such minute books
contain an accurate record of all material corporate actions of the
shareholders and directors (and any committees thereof) of the Company taken by
written consent or at a meeting since incorporation. All material corporate
actions taken by the Company have been duly authorized or ratified. All
accounts, books, ledgers and official and other records of the Company are
substantially complete and fairly, fully and accurately reflect all matters
contained therein. The stock ledgers of the Company, as previously made
available to Buyer, contain accurate and complete records of all issuances,
transfers and cancellations of shares of the capital stock of the Company.
3.6 SUBSIDIARIES. The Company does not own, directly or
indirectly, any outstanding voting securities of or other interests in, or have
any control over, any other corporation, partnership, joint venture or other
business entity.
3.7 LIABILITIES OF THE COMPANY. The Company does not have any
liabilities or obligations, whether accrued, absolute, contingent or otherwise.
3.8 LITIGATION. There is no action, suit, or other legal or
administrative proceeding or governmental investigation pending, anticipated,
or, to the knowledge of the Company or the Shareholders, threatened, or
contemplated against, by or affecting the Company or the Shareholders, or any
of the Company's properties or assets, or which question the validity or
enforceability of this Agreement or the transactions contemplated hereby, and
there is no basis for any of the foregoing. There are no outstanding orders,
decrees or stipulations issued by any Governmental Authority in any proceeding
to which the Company is or was a party which have not been complied with in
full or which continue to impose any material obligations on the Company.
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3.9 REAL ESTATE. The Company does not own any real property or
any interest therein (including without limitation any option or other right or
obligation to purchase any real property or any interest therein).
3.10 GOOD TITLE TO AND CONDITION OF ASSETS.
(a) The Company is the true and lawful owner of the
Purchased Assets free and clear of all Liens.
(b) The Purchased Assets constitute all the properties,
assets and rights forming a part of, used, held or intended to be used
in, and all such properties, assets and rights as are necessary in the
conduct of the current business of the Company and/or to perform all
functions and processes described on the Company's web site (the
"Business").
(c) The Company has the complete and unrestricted power
and unqualified right to sell, assign, transfer, convey and deliver
the Purchased Assets to Purchaser without penalty or other adverse
consequences free and clear of all Liens.
3.11 COMPLIANCE WITH LAWS. The Company and Affiliates of the
Company are and have been in compliance with all laws, regulations and orders
applicable to them, their business and operations (as conducted by it now and
in the past), the Purchased Assets and any other properties and assets (in each
case owned or used by it now or in the past). The Company has not been cited,
fined or otherwise notified of any asserted past or present failure to comply
with any laws, regulations or orders and no proceeding with respect to any such
violation is pending or threatened. Neither the Company, the Shareholders nor
any of their respective employees or agents, has made any payment of funds in
connection with their business which is prohibited by law, and no funds have
been set aside to be used in connection with their business for any payment
prohibited by law. Neither the Company nor the Shareholders is subject to any
Contract, decree or injunction in which it is a party which restricts the
continued operation of any business or the expansion thereof to other
geographical areas, customers and suppliers or lines of business.
3.12 LICENSES AND PERMITS. The Company possesses all licenses,
approvals, permits or authorizations from governmental authorities
(collectively, the "Permits") for the operation of the Business, and Schedule
3.12 sets forth a true, complete and accurate list of all such Permits and all
applications for Permits. All such Permits are valid and in full force and
effect, the Company is in full compliance with the respective requirements
thereof, and no proceeding is pending or threatened to revoke or amend any of
them.
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3.13 INTELLECTUAL PROPERTY.
(a) Schedule 1.1(f) contains a true and complete list of
the Company's patents, patent applications, trademarks, trademark
applications, service marks, service xxxx applications, trade names,
Internet domain names (registered and reserved), copyrights and
copyright registrations and applications and other filings and formal
actions made or taken pursuant to federal, state, local and foreign
laws by the Company to protect its interests in the Intellectual
Property.
(b) The Intellectual Property consists solely of items
and rights which are: (i) owned Intellectual Property or (ii) in the
public domain. The Purchased Assets include all rights in Intellectual
Property necessary to conduct the Business, including without
limitation, to the extent required to make, use, reproduce, modify,
adopt, create derivative works based on, translate, distribute
(directly and indirectly), transmit, display and perform publicly,
license, rent and lease and assign and sell, the Intellectual
Property. No payments are required for the continued use of the
Intellectual Property.
(c) The Company's reproduction, manufacturing,
distribution, licensing, sublicensing, sale or the exercise of any
other rights in any Intellectual Property or product, work, technology
or process as now used in the conduct of the Business or offered or
proposed for use in the conduct of the Business, does not infringe on
any copyright, trade secret, trademark, service xxxx, trade name,
trade dress, firm name, Internet domain name, logo, trade dress of any
person or the patent of any person. No claims have been asserted or
are, to the knowledge of the Company and/or Shareholders, threatened
by any person, nor are there any valid grounds for any bona fide claim
(i) challenging the validity, effectiveness or ownership by the
Company of any of the Intellectual Property, or (ii) to the effect
that the Company's use, distribution, licensing, sublicensing, sale or
any other exercise of rights in any product, work, technology or
process as now used or offered or proposed for use in the conduct of
the Business, infringes or will infringe on any intellectual property
or other proprietary right of any person. All registered, granted or
issued patents, trademarks, Internet domain names and copyrights held
by the Company are enforceable and subsisting. There is no
unauthorized use, infringement or misappropriation of any of the
Intellectual Property owned by the Company by any third party,
employee or former employee.
(d) All personnel, including employees, agents,
consultants and contractors, who have contributed to or participated
in the conception and development of the Intellectual Property owned
by the Company on behalf of the Company (i) have been a party to a
"work-for-hire" arrangement or agreements with the Company in
accordance with applicable national and state law that has accorded
the Company full, effective, exclusive and
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original ownership of all tangible and intangible property thereby
arising, or (ii) have executed appropriate instruments of assignment
in favor or the Company as assignee that have conveyed to the Company
effective and exclusive ownership of all tangible and intangible
property thereby arising.
(e) The Company is not, nor as a result of the execution
or delivery of this Agreement or performance of the Company's
obligations hereunder, will the Company be, in violation of any
license, sublicense, agreement or instrument to which the Company is a
party or otherwise bound, nor will execution or delivery of this
Agreement, or performance of the Company's obligations hereunder,
cause the diminution, termination or forfeiture of any Intellectual
Property.
(f) Schedule 3.13(f) contains a true and complete list
of all of the Company's software programs, modifications to third
party software programs, programming code (e.g., HTML) and scripts
(collectively the "Software Programs"). The Company owns full and
unencumbered right and good, valid and marketable title to such
Software Programs free and clear of all mortgages, pledges, liens,
security interests, conditional sales agreements, encumbrances or
charges of any kind.
(g) The source code and system documentation relating to
the Software Programs (i) have at all times been maintained in strict
confidence, (ii) have been disclosed by the Company only to employees
who have a "need to know" the contents thereof in connection with the
performance of their duties to the Company and who have executed the
nondisclosure agreements referred to in Section 3.13(d), and (iii)
have not been disclosed to any third party.
(h) All software sold or licensed by the Company to end
users, or used by the Company, has been duly licensed by the owner of
such software and is set forth on Schedule 3.13(h).
3.14 CONTRACTS. All Material Contracts (as defined below) are
listed on Schedule 1.6(a). Schedule 1.6(a) identifies certain Material
Contracts identified therein that require the consents of third parties to the
transactions contemplated hereby. All consents set forth on Schedule 1.6(a)
have been obtained. The copy of each Material Contract furnished to Buyer is a
true, correct and complete copy of the document it purports to represent and
reflects all amendments thereto made through the date of this Agreement. The
Company has not violated any of the terms or conditions of any Material
Contract or any term or condition which would permit termination or material
modification of any Material Contract, all of the covenants to be performed by
any other party thereto have been fully performed, and there are no claims for
breach or indemnification or notice of default or termination under any
Material Contract. No event has occurred which constitutes, or after notice or
the passage of time, or both, would constitute, a default by the Company or any
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other party under any material Contract. The Company is not subject to any
liability or payment resulting from renegotiation of amounts paid under any
Material Contract. As used in this Section 3.14 "Material Contracts" shall mean
formal or informal, written or oral, (a) loan agreements, indentures,
mortgages, pledges, hypothecations, deeds of trust, conditional sale or title
retention agreements, security agreements, equipment financing obligations or
guaranties, or other sources of contingent liability in respect of any
indebtedness or obligation to any other Person, or letters of intent or
commitment letters with respect to same; (b) contracts obligating the Company
to provide or obtain products or services; (c) leases of real property; (d)
leases of personal property; (e) distribution, sales agency or franchise or
similar agreements; (f) agreements providing for an independent contractor's
services; (g) employment agreements, management service agreements, consulting
agreements, confidentiality agreements, non-competition agreements, employee
handbooks, policy statements and any other agreements relating to any employee,
officer or director of the Company; (h) licenses, assignments or transfers of
trademarks, trade names, service marks, patents, copyrights, trade secrets or
know how, or other agreements regarding proprietary rights or intellectual
property; (i) contracts relating to pending capital expenditures by the
Company; (j) non-competition agreements restricting the Company or any
Shareholder in any manner, (k) any contracts obligating the Company to make
payments in excess of $7,500, in the aggregate, over the remaining term of such
contract; and (l) all other Contracts or understandings which are material to
the Company, or the Business, assets or properties, irrespective of subject
matter and whether or not in writing. The continuation, validity and
effectiveness of all the Material Contracts will not be effected by their
transfer to Buyer under this Agreement.
3.15 NO COMMISSIONS. Neither the Company nor the Shareholders have
incurred any obligation for any finder's or broker's or agent's fees or
commissions or similar compensation in connection with the transactions
contemplated hereby.
3.16 BANK ACCOUNTS; BUSINESS LOCATIONS. Schedule 3.16(a) sets
forth all accounts of the Company with any bank, broker or other depository
institution, and the names of all persons authorized to withdraw funds from
each such account. As of the date hereof, the Company has no office or place of
business other than as identified on Schedule 3.16(b) and the Company's
principal places of business and chief executive offices are indicated on
Schedule 3.16(b). All locations where the equipment, inventory, chattel paper
and books and records of the Company are located as of the date hereof are
fully identified on Schedule 3.16(b).
3.18 ACCURACY OF INFORMATION FURNISHED. No representation,
statement or information made or provided by the Company and/or any of the
Shareholders contained in this Agreement (including, without limitation, the
various Schedules attached hereto) or any agreement executed in connection
herewith or in any certificate delivered pursuant hereto or thereto, contains
or shall contain any untrue statement of a material fact or omits or shall omit
any material fact
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necessary to make the information contained therein not misleading. The Company
has provided Buyer with true, accurate and complete copies of all documents
listed or described in the various Schedules attached hereto.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 FURTHER ASSURANCES. Each party shall execute and deliver such
additional instruments and other documents and shall take such further actions
as may be necessary or appropriate to effectuate, carry out and comply with all
of the terms of this Agreement and the transactions contemplated hereby,
including, but not limited to, all such further deeds, bills of sale,
assignments, transfers, conveyances, powers of attorney and assurances as may
be required or appropriate to convey and transfer to and vest in Buyer and
protect its right, title and interest in all of the Purchased Assets.
4.2 COMPLIANCE WITH COVENANTS. The Shareholders shall cause the
Company to comply with all of the covenants of the Company under this
Agreement.
4.3 CONFIDENTIALITY; PUBLICITY.
(a) The Company and each Shareholder understands and
acknowledges that it possesses information that is proprietary to, or
confidential to the Business that concerns the operation, methodology
and plans of the Business, including, without limitation, business
strategy and plans, financial information, protocols, proposals,
manuals, clinical procedures and guidelines, technical data, computer
source codes, programs, software, know-how and specifications,
copyrights, trade secrets, market information, Developments (as
hereinafter defined), information regarding acquisition and other
strategic partner candidates, and customer information (collectively,
"Proprietary Information"). The Company and each Shareholder agrees
that, at all times, the Company, the Shareholders and the
representatives of each will keep confidential and will not disclose
directly or indirectly any such Proprietary Information to any third
party, except as required to fulfill its duties hereunder, and will
not misuse, misappropriate or exploit such Proprietary Information in
any way. The restrictions contained herein shall not apply to any
information which the Company or a Shareholder can demonstrate (i) was
already available to the public at the time of disclosure, or
subsequently becomes available to the public, otherwise than by breach
of this Agreement by the Company or a Shareholder or (ii) was the
subject of a court order for the Company or a Shareholder to disclose.
On the date hereof, the Company shall deliver to Buyer all copies of
any Proprietary Information in its possession. For purposes of this
Agreement, the term "Developments" shall mean all data, discoveries,
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findings, reports, designs, inventions, improvements, methods,
practices, techniques, developments, programs, concepts, and ideas,
whether or not patentable, relating to the present or planned
activities, or future activities, or the products and services of the
Business.
(b) Except as may be required by law or as otherwise
permitted or expressly contemplated herein, no party to this Agreement
or their respective Affiliates, employees, agents and representatives
shall disclose to any third party this Agreement, the subject matter
or terms hereof or any confidential information or other proprietary
knowledge concerning the business or affairs of the other party which
it may have acquired from such party in the course of pursuing the
transactions contemplated by this Agreement without the prior consent
of the other party hereto; provided, that any information that is
otherwise publicly available, or has been obtained from a third party,
without breach of this provision, shall not be deemed confidential
information. No press release or other public announcement related to
this Agreement or the transactions contemplated hereby shall be issued
without the prior approval of Buyer and the Company, except as
permitted in Section 11.13.
4.4 RESTRICTIVE COVENANT.
(a) In order to assure that Buyer will realize the
benefits of this transaction, the Company and each Shareholder agrees
with Buyer that neither the Company nor the Shareholders will for a
period of three (3) years from the date hereof, anywhere in the United
States, directly or indirectly, without the prior written approval of
Buyer, own an interest in or, as principal, agent, consultant or
otherwise, engage in activities for or render services to, any firm or
business (i) engaged in direct or indirect competition with Buyer or
any of its Affiliates, (ii) conducting a business of the type and
character engaged in by (or contemplated by the Business Plan of) the
Company, Buyer or any of its Affiliates, including but not limited to,
the Business, (iii) developing products or services competitive with
those of the Business, Buyer or any of its Affiliates or (iv)
conducting any business in which the Company or any of its Affiliates
has been engaged (all of the businesses in clauses (i), (ii), (iii)
and (iv) collectively, "Competitive Business"). Notwithstanding the
foregoing, the Company may have an interest consisting of publicly
traded securities constituting less than 1 percent of any class of
publicly traded securities in any public company engaged in a
Competitive Business so long as he is not employed by and does not
consult with, or become a director of or otherwise engage in any
activities for, such company.
(b) During the period beginning on the date hereof and
ending on the third anniversary of the date hereof (the "Restricted
Period"), neither the Company nor any Shareholder shall, directly or
indirectly, without the prior written approval of Buyer, solicit or
contact any customer, or any prospective
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customer, of Buyer or any of its Affiliates for any commercial pursuit
which is in competition with the Business, or that is contemplated by
the Business Plan (as defined below) or take away or interfere or
attempt to interfere with any custom, trade, business or patronage of
Buyer. During the Restricted Period, neither the Company nor any
Shareholder shall, directly or indirectly, without the prior written
approval of Buyer, solicit or induce, or attempt to induce, any
employees, agents or consultants of or to Buyer or any of its
Affiliates to leave the employ of Buyer or its Affiliate or do
anything from which the Company is restricted by reason of this
Agreement nor shall the Company, directly or indirectly, offer or aid
others to offer employment to or interfere or attempt to interfere
with any employees, agents or consultants of Buyer or any of its
Affiliates. For purposes of this Agreement, "Business Plan" shall
mean, at any point in time, the then current business plan of the
Company, and or Buyer and any business plans of the Company or Buyer
in effect during the prior 18 months.
(c) For purposes of the covenant not to compete set
forth in paragraph (a) above, the Company acknowledges that the
Company, Buyer and its Affiliates presently conduct the Business and
their businesses throughout the United States. The Company agrees that
the time restriction and the geographical areas encompassed by such
covenant are necessary and reasonable in order to protect Buyer and
its Affiliates in the conduct of their businesses. The parties intend
that the foregoing covenant of the Company shall be construed as a
series of separate covenants, one for each geographic area specified
or effected. Except for geographic coverage, each such separate
covenant shall be deemed identical in terms to the covenant set forth
in paragraph (a) above. To the extent that the foregoing covenant or
any provision of this Section 4.4 shall be deemed illegal or
unenforceable by a court or other tribunal of competent jurisdiction
with respect to (i) any geographic area, (ii) any part of the time
period covered by such covenant, (iii) any activity or capacity
covered by such covenant or (iv) any other term or provision of such
covenant, such determination shall not affect such covenant with
respect to any other geographic area, time period, activity or other
term or provision covered by or included in such covenant. If any such
provision of this Section 4.4, or any part thereof, is held to be
unenforceable because of the duration of such provision or the area
covered thereby, the parties agree that the court making such
determination shall have the power to reduce the duration and/or area
of such provision, and/or to delete specific words or phrases, and in
its reduced form, such provision shall then be enforceable and shall
be enforced. The parties agree and acknowledge that the breach of this
Section 4.4 will cause irreparable damage to Buyer and upon breach of
any provision of this Section 4.4, Buyer shall be entitled to
injunctive relief, specific performance or other equitable relief;
provided, however, that, this shall in no way limit any other remedies
which Buyer
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may have (including, without limitation, the right to seek monetary
damages).
4.5 DELIVERY OF PROPERTY RECEIVED BY THE COMPANY AFTER CLOSING.
From and after the date hereof, Buyer shall have the right and authority to
collect, for the account of Buyer, all receivables and other items which shall
be transferred or are intended to be transferred to Buyer as part of the
Purchased Assets as provided in this Agreement, and to endorse with the name of
the Company any checks or drafts received on account of any such receivables or
other items of the Purchased Assets. The Company and the Shareholders agree
that they will transfer or deliver to Buyer, promptly after the receipt
thereof, any cash or other property which the Company and the Shareholders
receive after the date hereof in respect of any claims, contracts, licenses,
leases, commitments, sales orders, purchase orders, receivables of any
character or any other items transferred or intended to be transferred to Buyer
as part of the Purchased Assets under this Agreement.
4.6 BUYER APPOINTED ATTORNEY FOR THE COMPANY. The Company hereby
constitutes and appoints Buyer, and Buyer's successors and assigns, its true
and lawful attorney, in the name of either Buyer or the Company (as Buyer shall
determine in its sole discretion) but for the benefit and at the expense of
Buyer (except as otherwise herein provided), (a) to institute and prosecute all
proceedings which Buyer may deem proper in order to collect, assert or enforce
any claim, right or title of any kind in or to the Purchased Assets as provided
for in this Agreement; (b) to defend or compromise any and all actions, suits
or proceedings in respect of any of the Purchased Assets, and to do all such
acts and things in relation thereto as Buyer shall deem advisable; and (c) to
take all action which Buyer may reasonably deem proper in order to provide for
Buyer the benefits under any of the Purchased Assets where any required consent
of another party to the sale or assignment thereof to Buyer pursuant to this
Agreement shall not have been obtained. The Company acknowledges that the
foregoing powers are coupled with an interest and shall be irrevocable. Buyer
shall be entitled to retain for its own account any amounts collected pursuant
to the foregoing powers, including any amounts payable as interest in respect
thereof.
4.7 SHAREHOLDER AND DIRECTOR VOTE. Each of the Shareholders, in
executing the Agreement, consents as a director and/or shareholder (as
applicable) of the Company to the Asset Purchase and waives notice of any
meeting in connection therewith.
4.8 RELEASE BY THE COMPANY AND THE SHAREHOLDERS. Each of the
Company and the Shareholders do hereby each, for themselves and for their
respective heirs, personal representatives, successors and assigns
(collectively, the "Releasors") release, remise and forever discharge Buyer and
its subsidiaries, affiliates, officers, directors, trustees, shareholders,
agents, representatives, employees, consultants, attorneys, accountants,
successors and assigns (collectively, the "Releasees"), from any and all debts,
sums of money, accounts, claims, actions,
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causes of action, suits, damages, judgments, losses, contracts, demands,
expenses (including attorneys' fees and costs) and/or liabilities of any kind
which any of the Releasors ever had, now have or which they can, shall or may
have for, upon or by reason of any matter, cause or thing whatsoever, from the
beginning of the world to the day of this Agreement, against the Releasees.
Notwithstanding anything contained herein to the contrary, this Agreement shall
not apply to any obligations, commitments or liabilities arising out of and/or
relating to the performance by the Releasees pursuant to this Agreement.
4.9 USE OF THE INTELLECTUAL PROPERTY. Neither the Company nor the
Shareholders shall use any of the Intellectual Property after the date hereof,
except in connection with employment by Buyer.
4.10 CORPORATE NAME. On the date hereof, the Company will deliver
to Buyer any documentation requested by Buyer to transfer all rights to the
Company's corporate name to Buyer.
ARTICLE V
INDEMNIFICATION
5.1 AGREEMENT BY THE COMPANY AND THE SHAREHOLDERS FOR
INDEMNIFICATION. The Company and the Shareholders jointly and severally agree
to indemnify and hold Buyer and its stockholders, directors, officers,
employees, attorneys and Affiliates (collectively, for purposes of this Article
V, the "Buyer Indemnitees") harmless from and against of all expenses, losses,
costs, deficiencies, liabilities and damages (including, without limitation,
related reasonable counsel and paralegal fees and expenses) incurred or
suffered by the Buyer Indemnitees arising out of or resulting from (i) any
breach of a representation or warranty made by the Company or the Shareholders
in or pursuant to this Agreement, (ii) any breach of the covenants or
agreements made by the Company or the Shareholders in or pursuant to this
Agreement, (iii) any inaccuracy in any certificate, instrument or other
document delivered by the Company or the Shareholders as required by this
Agreement, (iv) any Excluded Liabilities, or (v) any transfer taxes that may be
due and owing to any Governmental Authority (collectively, "Indemnifiable
Damages"). Without limiting the generality of the foregoing, with respect to
the measurement of Indemnifiable Damages, the Buyer Indemnitees shall have the
right to be put in the same pre-tax consolidated financial position as it would
have been in had each of the representations and warranties of the Company and
the Shareholders hereunder been true and correct and had the agreements of the
Company and the Shareholders hereunder been performed in full.
5.2 SURVIVAL OF REPRESENTATIONS AND OPTIONS. Each of the
representations and options made Agreement by Buyer shall survive indefinitely.
Notwithstanding any knowledge of facts determined or determinable by any party
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by investigation, each party for Indemnification. The Buyer agrees to indemnify
and hold the Company and the shareholders, directors, officers, employees,
attorneys and Affiliates (collectively, for purposes of this Article V, the
"Buyer Indemnitees") harmless from and against of all expenses, losses, costs,
deficiencies, liabilities and damages (including, without limitation, related
reasonable counsel and paralegal fees and expenses) incurred or suffered by the
Buyer Indemnitees arising out of or resulting from (i) any breach of a
representation or warranty made by the Buyer in or pursuant to this Agreement,
(ii) any breach of the covenants or agreements made by the Buyer in or pursuant
to this Agreement or (iii) any inaccuracy in any certificate, instrument or
other document delivered by the Buyer.
5.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Company and the Shareholders shall
survive indefinitely. Notwithstanding any knowledge of facts determined or
determinable by any party by investigation, each party shall have the right to
fully rely on the representations, warranties, covenants and agreements of the
other parties hereto contained in this Agreement or in any other documents or
papers delivered in connection herewith. Each representation, warranties,
covenant and agreement contained in this Agreement is independent of each other
representation, warranties, covenant and agreement. The representations and
warranties made by Buyer shall expire upon the Closing.
ARTICLE VI
SECURITIES LAW MATTERS
The parties agree as follows with respect to the sale or other
disposition after the date hereof of the Spectrafax Shares and any Stock
deliverable upon exercise of the Options:
6.1 LEGEND. The certificates representing the Buyer Shares and
any stock delivered upon exercise of the Options shall bear the following
legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION
OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH
REGISTRATION IS NOT REQUIRED BY SAID ACT OR STATE
LAWS.
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Buyer may, unless a registration statement is in effect covering such shares,
place stop transfer orders with its transfer agents with respect to such
certificates in accordance with federal securities laws.
6.2 NO REGISTRATION. The Company and the Shareholders acknowledge
that the Spectrafax Shares being delivered hereunder and any Stock delivered
upon exercise of the Options are not, and will not be, registered shares and
that Buyer has no obligation to register the Spectrafax Shares or the Stock
delivered upon execution of the Options at any time.
6.3 INVESTMENT INTENT: ACCREDITED INVESTOR STATUS; SECURITIES
DOCUMENTS. The Company and, when and if transferred to the Shareholders, each
of the Shareholders is acquiring the Spectrafax Shares the Options and the
Stock deliverable upon exercise of the Options for his, her or its own account
for investment and not with a view to, or for the sale in connection with, any
distribution of any of the Spectrafax Shares the Options and the Stock
deliverable upon exercise of the Options, except in compliance with applicable
state and federal securities laws. Each of the Shareholders has had the
opportunity to discuss the transactions contemplated hereby with Buyer and has
had the opportunity to obtain such information pertaining to Buyer as has been
requested, including but not limited to filings made by Buyer with the SEC
under the Exchange Act. Each of the Shareholders is an "accredited investor"
within the meaning of Regulation D promulgated under the Securities Act, and
has such knowledge and experience in business or financial matters that he/she
is capable of evaluating the merits and risks of an investment in the
Spectrafax Shares. Each of the Shareholders hereby represents that he/she can
bear the economic risk of losing his/her investment in the Spectrafax Shares
and has adequate means for providing for his/her current financial needs and
contingencies. The Shareholders have received copies of all Spectrafax Reports
filed with the SEC since March 1, 2000.
ARTICLE VII
OBLIGATIONS OF THE COMPANY AND THE SHAREHOLDERS
7.1 CERTIFICATE. The Company shall deliver to Buyer (i) copies of
the Articles of Incorporation and Bylaws of the Company as in effect
immediately prior to the date hereof, (ii) copies of resolutions adopted by the
Board of Directors and shareholders of the Company authorizing the transactions
contemplated by this Agreement, and (iii) a certificate of good standing of the
Company issued by the Secretary of State of Illinois and each other state in
which it is qualified to do business as of a date not more than thirty days
prior to the date hereof, certified in each case as of the date hereof by the
Secretary of the Company as being true, correct and complete.
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7.2 INTELLECTUAL PROPERTY. The Company shall deliver to Buyer all
programming source codes, object codes or scripts related to the Intellectual
Property.
7.3 INSTRUMENTS OF TRANSFER. On the date hereof, the Company will
deliver to Buyer all duly executed instruments of transfer and assignment for
the Purchased Assets required pursuant to Section 1.3 of this Agreement.
ARTICLE VIII
CONDITIONS TO CLOSING
8.1 CONDITIONS TO OBLIGATIONS OF THE COMPANY AND THE SHAREHOLDERS
TO CONSUMMATE THE SALE. The obligations of the Company and the Shareholders to
consummate the sale of the Assets and the other transactions contemplated
hereby shall be subject to the fulfillment at or prior to the Closing Date of
the following conditions:
(a) Representations and Warranties. The representations
and warranties of Buyer set forth herein shall be true and correct as
of the Closing Date with the same effect as though made on and as of
such date.
(b) No Injunction, Etc. No action proceeding,
investigation or legislation shall have been instituted, threatened or
proposed before any court, governmental agency or legislative body to
enjoin, restrain, prohibit or obtain substantial damages in respect
of, or which is related to or arises out of, this Agreement or the
consummation of the transactions contemplated hereby, or which is
related to or arises out of the business or operations of Buyer, if
such action, proceeding, investigation or legislation, in the
reasonable judgment of the Company, the Shareholders or its counsel,
would make it inadvisable to consummate such transactions.
8.2 CONDITIONS TO OBLIGATION OF BUYER TO CONSUMMATE THE PURCHASE.
The obligations of Buyer to consummate the purchase of the Assets and the other
transactions contemplated by this Agreement shall be subject to the fulfillment
at or prior to the Closing Date of the following conditions:
(a) Due Diligence Review; Delivery of Schedules. Buyer
shall have completed, and in its sole discretion be satisfied with the
results of, its due diligence review of the operations and financial
condition of the Company. The Company and the Shareholders shall have
delivered to Buyer the Schedules called for by this Agreement, and
such Schedules shall be satisfactory to Buyer in its sole discretion.
(b) Representations and Warranties. The representations
and Warranties of the Company and each Shareholder contained in this
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Agreement, or any document or instrument delivered to Buyer hereunder,
shall be true and correct as of the Closing Date with the same effect
as though made on and as of such date.
(c) Agreements. Buyer shall have executed the Employee
Agreements.
(d) Performance; Document Delivery. The Company and each
Shareholder shall have performed in all material respects, at or prior
to the Closing Date, all acts in accordance with their covenants
herein.
(e) Consents and Approvals. The Company shall have
obtained all necessary consents and approvals, in form and substance
satisfactory to Buyer, required under all material agreements and
satisfying any approval or permit or licensing requirements for
consummation of this transaction and necessary to carry on the
Business of the Company as it is currently being conducted.
(f) No Injunction, Etc. No action, proceeding,
investigation or legislation shall have been instituted, threatened or
proposed before any court, governmental agency or legislative body to
enjoin, restrain, prohibit or obtain substantial damages in respect
of, or which is related to or arises out of, this Agreement or the
consummation of the transactions contemplated hereby, or which is
related to or arises out of the business or operations of the Company,
if such action, proceeding, investigation or legislation, in the
reasonable judgment of Buyer or its counsel, would make it inadvisable
to consummate such transactions.
(g) Employee Agreements. Xxxxx XxXxxxxx shall have
executed the Employee Agreements.
ARTICLE X
TERMINATION
9.1 MEANS OF TERMINATION. This Agreement may be terminated at any
time prior to the Closing in the following ways:
(a) by the mutual consent in writing of the Company and
the Buyer;
(b) by Buyer if any of the conditions set forth in
Section 8.2 hereof have not been satisfied within thirty (30) days of
the date hereof or have not been waived by Buyer in writing; or
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(c) by the Company if any of the conditions set forth in
Sections 8.1 hereof have not been satisfied within six (6) months of
the date hereof or have not been waived by the Seller in writing.
9.2 EFFECT OF TERMINATION. In the event this Agreement is
terminated in accordance with this Section 9, this Agreement shall become void
and of no further force or effect, except for the following agreements and
obligations of the parties, which shall survive the termination of this
Agreement: (a) the obligations of the parties hereto to preserve the
confidentiality of documents, certificates and information furnished to such
party pursuant hereto, (b) any obligation or liability of any party based on or
arising from any breach or default by such party with respect to its
representations, warranties, covenants or agreements contained in the
Agreement, and (c) the obligation of each party to bear its own expenses as set
forth in Section 11.3 hereof.
ARTICLE X
DEFINITIONS
10.1 DEFINED TERMS. As used herein, the following terms shall have
the following meanings:
"Affiliate" shall have the meaning ascribed to it in Rule
12b-2 of the General Rules and Regulations under the Exchange Act, as
in effect on the date hereof.
"Code" means the Internal Revenue Code of 1986 as amended.
"Closing" means the consummation of the transactions
contemplated hereby.
"Contract" means any agreement, contract, lease, note,
mortgage, indenture, loan agreement, franchise agreement, covenant,
employment agreement, license, instrument, purchase and sales order,
commitment, undertaking, obligation, whether written or oral, express
or implied.
"Effective Time" means the time when the transactions
contemplated by this Agreement are consummated.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in
effect in the United States of America from time to time.
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"Governmental Authority" means any nation or government, any
state, regional, local or other political subdivision thereof, and any
entity or official exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"Lien" means any mortgage, pledge, security interest,
collateral assignment, preemptive or refused right, equity of any kind
encumbrance, lien or charge of any kind (including, but not limited
to, any conditional sale or other title retention agreement, any lease
in the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code or comparable
law or any jurisdiction in connection with such mortgage, pledge,
security interest, encumbrance, lien or charge).
"Person" means an individual, partnership, corporation,
business trust, joint stock Company, estate, trust, unincorporated
association, joint venture, Governmental Authority or other entity, of
whatever nature.
"Register," "registered" and "registration" refer to a
registration of the offering and sale of securities effected by
preparing and filing a registration statement in compliance with the
Securities Act and the declaration or ordering of the effectiveness of
such registration statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
10.2 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the
defined meanings when used in any certificates, reports or other
documents made or delivered pursuant hereto or thereto, unless the
context otherwise requires.
(b) Terms defined in the singular shall have a
comparable meaning when used in the plural, and vice versa.
(c) All matters of an accounting nature in connection
with this Agreement and the transactions contemplated hereby shall be
determined in accordance with GAAP applied on a basis consistent with
prior periods, where applicable.
(d) As used herein, the neuter gender shall also denote
the masculine and feminine, and the masculine gender shall also denote
the neuter and feminine, where the context so permits.
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ARTICLE XI
GENERAL PROVISIONS
11.1 NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by
certified or registered mail (first class postage pre-paid), guaranteed
overnight delivery, or facsimile transmission if such transmission is confirmed
by delivery by certified or registered mail (first class postage pre-paid) or
guaranteed overnight delivery, to the following addresses and telecopy numbers
(or to such other addresses or telecopy numbers which such party shall
designate in writing to the other party):
If to the Buyer: SpectraFAX, Corp.
0000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile Number: (000) 000-0000
If to the Company: 2AlertMe
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxx XxXxxxxx
Facsimile Number: (000) 000-0000
11.2 ENTIRE AGREEMENT. This Agreement (including the Schedules
attached hereto) and other documents delivered concurrently herewith, contains
the entire understanding of the parties in respect of its subject matter and
supersedes all prior agreements and understandings (oral or written) between or
among the parties with respect to such subject matter. The Schedules constitute
a part hereof as though set forth in full above.
11.3 EXPENSES; SALES TAX. Except as otherwise provided herein, the
parties shall pay their own fees and expenses, including their own counsel
fees, incurred in connection with this Agreement or any transaction
contemplated hereby. The parties agree that the Company shall pay all sales,
transfer or similar taxes required to be paid by reason of the transfer by the
Company of the Purchased Assets pursuant to this Agreement.
11.4 AMENDMENT; WAIVER. This Agreement may not be modified,
amended, supplemented, canceled or discharged, except by written instrument
executed by all parties. No failure to exercise, and no delay in exercising,
any right, power or privilege under this Agreement shall operate as a waiver,
nor shall any single or partial exercise of any right, power or privilege
hereunder preclude the exercise of any other right, power or privilege. No
waiver of any breach of any provision shall be deemed to be a waiver of any
preceding or succeeding breach of the same or any other provision, nor shall
any waiver be implied from any course of
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dealing between the parties. No extension of time for performance of any
obligations or other acts hereunder or under any other agreement shall be
deemed to be an extension of the time for performance of any other obligations
or any other acts. The rights and remedies of the parties under this Agreement
are in addition to all other rights and remedies, at law or equity, that they
may have against each other.
11.5 BINDING EFFECT; ASSIGNMENT. The rights and obligations of
this Agreement shall bind and inure to the benefit of the parties and their
respective successors and assigns. Nothing expressed or implied herein shall be
construed to give any other person any legal or equitable rights hereunder.
Except as expressly provided herein, the rights and obligations of this
Agreement may not be assigned or delegated by the Company without the prior
written consent of Buyer. Buyer may assign all or any portion of its rights
hereunder.
11.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together
shall constitute one and the same instrument.
11.7 INTERPRETATION. When a reference is made in this Agreement to
an article, section, paragraph, clause, schedule or exhibit, such reference
shall be deemed to be to this Agreement unless otherwise indicated. The
headings contained herein and on the schedules are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement
or the schedules. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words"
without limitation." Time shall be of the essence in this Agreement.
11.8 GOVERNING LAW; INTERPRETATION. This Agreement shall be
construed in accordance with and governed for all purposes by the laws of the
State of Florida applicable to contracts executed and to be wholly performed
within such State, without regard to conflict of laws principles.
11.9 JURISDICTION. Any suit, action or proceeding against the
Company or the Shareholders arising out of, or with respect to, this Agreement
or any judgment entered by any court in respect thereof may be brought in the
courts of Xxxxxxx County, Florida, or in the U.S. District Court for the
Southern District of Florida. as Buyer (in its sole discretion) may elect, and
the Company and the Shareholders hereby irrevocably accept and consent to the
nonexclusive personal jurisdiction of those courts for the purpose of any suit,
action or proceeding. In addition, each of the Company and the Shareholders
hereby irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or any
judgment entered by any court in respect thereof brought in Xxxxxxx County,
Florida, or the U.S. District Court for the Southern District of Florida, as
selected by Buyer, and hereby further irrevocably waives any claim that any
suit, action or
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proceedings brought in Xxxxxxx County, Florida, or in such District Court has
been brought in an inconvenient forum.
11.10 ARM'S LENGTH NEGOTIATIONS. Each party herein expressly
represents and Options to all other parties hereto that (a) before executing
this Agreement, said party has fully informed itself of the terms, contents,
conditions and effects of this Agreement; (b) said party has relied solely and
completely upon its own judgment in executing this Agreement; (c) said party
has had the opportunity to seek and has obtained the advice of counsel before
executing this Agreement; (d) said party has acted voluntarily and of its own
free will in executing this Agreement; (e) said party is not acting under
duress, whether economic or physical, in executing this Agreement; and (f) this
Agreement is the result of arm's length negotiations conducted by and among the
parties and their respective counsel.
11.11 SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement or in any other instrument referred to
herein, shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
11.12 ANCILLARY AGREEMENTS. To the extent any agreement ancillary
to this Agreement contains any representation or warranties that provides for
different or conflicting rights, duties or obligations from those
representations and warranties contained herein, the provisions of this
Agreement will control.
11.13 PRESS RELEASE. All press releases, notices to customers and
suppliers and other announcements with respect to this Agreement and the
transactions contemplated by this Agreement shall be approved by both Buyer and
the Company prior to the issuance thereof; provided, that either party may make
any public disclosure it believes in good faith is required by law or
regulation (in which case the disclosing party will advise the other party
prior to making such disclosure and provide the other party a reasonable
opportunity to review the proposed disclosure).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
SPECTRAFAX CORP.,
a Florida corporation
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
2ALERTME,
an Illinois corporation
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
-------------------------------------
Xxxxx XxXxxxxx, individually
-------------------------------------
Xxxxx Xxxxxx, individually
/s/ Xxxxxxx Xxxxxx
-------------------------------------
Xxxxxxx Xxxxxx, individually
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