ASSET PURCHASE AND SALE AGREEMENT
THIS ASSET PURCHASE AND SALE AGREEMENT (the "Agreement") dated April
13, 1998, is between Internet Tracking & Security Ventures, ("Seller"), of 00
Xxxxxxx Xxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxxx, Xxx Xxxx, and Computer Concepts
Corp., of 00 Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx, ("Xxxxxxxxx").
Whereas, Seller is the owner of certain software and related sales and
marketing rights and has developed a viable national marketing program for the
promotion and marketing of said software including rights to certain name usage
and promotion based thereon (the "Assets"); and,
Whereas, Purchaser and Seller believe the Software has the capacity to
enable computer owners who are non-computer literate, to be able in most
instances, to quickly and easily determine what data, pictures or graphic
materials have been accessed on a computer via the internet thereby enabling the
user to take appropriate action, which the parties believe has significant
market demand; and,
Whereas, the Seller desire to sell the Assets and Purchaser desires to
purchase such Assets in the manner and upon the terms and conditions hereinafter
set forth.
In consideration of the mutual benefits to be derived and the
representations and warranties, conditions and covenants herein contained, and
subject to the terms and conditions herein set forth, Seller and Purchaser
hereby adopt and approve this agreement and agree as follows:
PART I
PURCHASE AND SALE OF THE ASSETS
1.1 Subject to the terms and conditions contained in this agreement,
the Seller agrees to sell, transfer, assign and deliver to Purchaser, and
Purchaser agrees to purchase from the Seller, the assets, rights, and privileges
of every kind and nature, tangible or intangible (the property to be acquired by
the Purchaser being referred to herein collectively as the "Assets"), including
without limitation the following:
(a) any and all rights, including licensing rights, regarding the
software of Seller, commercial or otherwise, including source and object code,
documentation and related materials including without limitation the data
tracking software known as "Computer Cop" and/or "Xx Xxxxx'x One Tough Computer
Cop" (the "Software");
(b) Seller's rights, pursuant to contract or otherwise, to the
use of the name, "One Tough Computer Cop" and the rights to use of Xxxxxxx "Bo"
Dietl's name in conjunction with promotion of Purchaser and the Software, and
the rights to those agreements between Seller and Xxxxx for regional and
national marketing exposure;
(c) Seller's rights to materials and concepts developed for the
promotion, sales and marketing of the Software'
(d) all Seller' rights under warranties and guarantees, express
or implied, which relate to the Assets;
All the Assets shall be made available to or delivered to Purchaser
on the Closing Date, except that all intangible Assets shall be delivered to
Purchaser pursuant to such documentation and the transfer of such instruments as
counsel for Purchaser shall reasonably request.
1.2 Purchase Consideration; Restricted Securities; Limitations on
Sales and Lock-up. The purchase consideration ("Purchase Consideration") for the
Assets, shall be 1,900,000 shares of Purchaser's restricted common stock and 200
shares of Purchaser's Softworks, Inc. subsidiary. The parties agree that the
Purchase Consideration shall be allocated in accordance with an exhibit
captioned "Allocation Exhibit" to be attached hereto as Exhibit 1.2 within 90
days following the Closing and to be addended hereto.
Seller acknowledges that it is to receive restricted securities which have
not been registered under the Securities Act of 1933, as amended (the "Act"),
and as such, such securities may not be sold or transferred without
registration, or exemption from registration, under the Act. Purchaser has not
represented that any of said securities will be registered or otherwise qualify
for an exemption, and, therefore, such securities may have to be held
indefinitely. Seller agrees that upon availability for sale of any or all of the
securities provided for hereunder that it will only sell such securities in a
manner which does not disrupt the applicable issuer's market for its securities.
If requested, Seller agrees to effect its sales through a broker or brokers
designated by Purchaser in a manner not disruptive to the market. Seller agrees
that if a registration of any or all of the securities is proposed by Purchaser
or its Softworks, Inc. subsidiary, that it will cooperate fully in providing
required information and indemnification agreements considered standard in the
registration process. Seller further agrees that in conjunction with a public
offering, it will agree to a contractual lock-up period not in excess of one
year in regard to the any of the shares, however, such lock-up period shall not
be longer than is imposed on other selling shareholders..
1.3 Payment of Purchase Consideration.
(a) Within ten days of Closing, Purchaser shall deliver to Seller
stock certificates representing the appropriate numbers of shares of common
stock as specified in section 1.2, above.
1.4 No Liabilities Assumed by Purchaser. Purchaser shall not assume
any liabilities of Seller unless expressly agreed in a writing signed by both
parties hereto.
PART II
CLOSING
2.1 Closing Date. The closing of the purchase and sale contemplated by
the agreement ("Closing") shall take place after all conditions specified in
Part V hereof have been fulfilled but in any event not later than July 15, 1998.
2.2 Place of Closing. The Closing shall take place at a location to be
agreed upon by the parties.
2.3 Agreement Termination. If the contemplated transaction has not
been closed on or before July 15, 1998, this Agreement shall become null and
void .
PART III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Seller. Seller represents and
warrants to Purchaser as follows and acknowledges and confirms that Purchaser is
relying upon such representations and warranties in connection with the
execution, delivery and performance of this agreement, not withstanding any
investigation made by Purchaser or on its behalf.
(a) Organization and Standing.
i) Seller is a joint venture in good standing under the laws of its
jurisdiction; if Seller elects to transfer the Assets into a formal entity prior
to Closing, then such entity shall be validly formed and in good standing under
the laws of its jurisdiction, and all representations by Seller herein shall be
deemed to be the representations of such entity.
ii) Seller has the right, power and authority to own and operate its
business and to carry on its business as now conducted and as proposed to be
conducted.
iii) Seller has the legal ownership rights to the Software and has the
authority to enter into this transaction and to transfer the assets and rights
being purchased hereunder.
(b) Authorization.
i) The execution, delivery and performance of this agreement by Seller has
been duly authorized by its partners and this agreement has been duly executed
and delivered by Seller and constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms except as may be limited by bankruptcy,
reorganization, insolvency and similar laws of general application relating to
or affecting the enforcement of rights of creditors.
ii) All joint venture/partnership proceedings required for the execution
and delivery of this agreement and for the consummation of the transactions
contemplated hereunder have been duly taken, including without limitation the
approval of the transactions contemplated under this agreement by Seller's
partners.
iii) Seller may execute and deliver this agreement and perform its
obligations hereunder without the necessity of Seller obtaining any consent,
approval, authorization or waiver or giving any notice.
(c) No Affiliation. Neither Seller, nor any of its partners, are
affiliates or related in any way to Purchaser.
(d) No Violation. The execution, delivery and performance of this
agreement by Seller and the consummation of the transactions contemplated
hereunder will not
(i) constitute a violation of, conflict with or constitute a default under
any term or provision of the Joint Venture Agreement of Seller,
(ii) conflict with, result in the breach of, constitute a default under or
cause the acceleration of maturity of any debt or other obligations pursuant to
which Seller is a party or by which any may be bound or affected,
(iii) constitute a violation of any statute, material ordinance, judgment,
order, decree, regulation or rule of any court, governmental authority or
arbitrator applicable to or relating to the assets or the business of Seller, or
(iv) result in the creation of any lien, mortgage, pledge, security
interest, restriction, claim, charge, option, encumbrance or interest or right
of third parties of any kind or nature (each a "Lien" and collectively "Liens")
upon any of the Assets of Seller or upon any of the capital stock of Seller or
its subsidiary.
(e) Title and Condition of Assets. Seller has good and marketable
title to the Assets, personal, tangible, intangible and mixed, and the
unqualified right to sell, convey, assign, transfer and deliver the Assets to
Purchaser, free and clear of any Liens. The tangible Assets are in good
operating condition as of the Closing Date and Seller know of no hidden defects
with respect to such Assets. The Assets are suitable for the purposes for which
they are presently being used, and constitute all the assets necessary and/or
related to the Software and the sales and marketing concepts and plans as
developed by Seller. The Business of Seller is not conducted under (i) any
restriction imposed upon it (which is not imposed upon other persons conducting
similar businesses or operating similar assets for similar purposes in the
localities where its respective Business and Assets are located), or (ii) any
regulatory variance or special permit issued under any zoning, anti-pollution,
health or other law, ordinance or regulation.
(g) Software. The Software of Seller is in good and usable
condition, and/or properly licensed, in accordance with its intended, proper and
customary use.
(h) Insurance. Seller may maintain policies of fire and casualty,
product and other liability and other forms of insurance in such amounts and
against such risks and losses as are sufficient for compliance with all
requirements of law and of all agreements to which it is a party. There are no
claims pending or, to the best knowledge of Seller, threatened, under any of
said policies, no disputes with underwriters are pending or threatened, and all
premiums due and payable in respect of such policies have been paid. Such
policies are in full force and effect in accordance with their respective terms
and Seller will cause all such policies to remain in full force and effect
through the Closing Date.
(i) Litigation and Compliance. There is no action, suit, lien,
claim, order, judgment, proceeding (including without limitation any
foreclosure, condemnation or eminent domain proceeding), whether in law or
equity, or governmental or administrative investigation (all of the foregoing
items in this paragraph being referred to herein individually as a "Proceeding"
or collectively as "Proceedings"), pending or, to the best knowledge of Seller,
threatened against Seller or with respect to Seller's employees or Seller'
property or assets or any assets or property of others leased or used by Seller
in connection with the transactions contemplated by this agreement, and Seller
has no knowledge or any basis for any Proceeding. To the best of Seller'
knowledge, Seller is in compliance with, is not in default or violation under,
and to Seller' knowledge no valid basis exists for any claim of noncompliance,
default or violation with respect to, any law, ordinance, requirement,
regulation, policy, guideline, decree or order applicable to the Assets. Neither
Seller nor any of Seller's employees is subject to any judgment, order or decree
entered in any lawsuit or proceeding which has or may have an adverse effect
upon the Assets. Seller has duly filed or had filed on its behalf all reports
and returns required to be filed by them with governmental authorities. All
governmental licenses, consents, authorizations and permits required in
connection with the Assets, if any, have been obtained and are in full force and
effect.
(j) Taxes and Other Payments. Seller has paid, or made adequate
provision on its applicable books and records for the payment of, all Federal,
state, local and foreign taxes, including without limitation, sales, use, real
property and personal property taxes, penalties and other payments required, as
the case may be, to be paid or currently due in respect of the Assets; the
payment of any such tax is not in default and Seller has duly filed all tax
reports and returns required to be filed by them. Seller has not received notice
of and has no knowledge of any tax deficiency outstanding, proposed or assessed
against it, nor has Seller executed any waiver of any statute of limitations on
the assessment or collection of any tax. There are no tax liens upon, pending
against or, to the best knowledge of Seller, threatened, against Seller or the
Assets. Seller has made and transmitted to the appropriate taxing authorities
all required employee withholding payments, if any.
(k) Suppliers and Customer. Seller have no knowledge of any loss
or threatened loss of any material supplier or customer of Seller in regard to
the Assets.
(l) Product Claims. No material product or service liability
claim is pending, threatened or, to the best of Seller' knowledge, imminent
against Seller with respect to the Software/Assets.
3.2 Representations and Warranties of Purchaser. Purchaser represents
and warrants to Seller as follows, and acknowledges and confirms that Seller is
relying upon such representations and warranties in connection with the
execution, delivery and performance of this agreement, notwithstanding any
investigation made by Seller or on its behalf.
(a) Organization and Standing. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation.
(b) Authorization. The execution, delivery and performance of
this agreement by Purchaser has been duly authorized and this agreement has been
duly executed and delivered by Purchaser and constitutes the legal, valid and
binding obligation of Purchaser enforceable in accordance with its terms, except
as may be limited by bankruptcy, reorganization, insolvency and similar laws of
general application relating to or affecting the enforcement of rights of
creditors. All corporate proceedings required by the Certificate of
Incorporation or Bylaws of Purchaser or otherwise for the execution and delivery
of this agreement and for the consummation of the transactions contemplated
hereunder have been duly taken. Purchaser may execute and deliver this agreement
and perform its respective obligations hereunder without the necessity of
obtaining any consent, approval, authorization or waiver or giving any notice.
(c) No Violation. The execution, delivery and performance of this
agreement by Purchaser and the consummation of the transactions contemplated
hereunder will not constitute a violation of, conflict with, or constitute a
default under any term or provision of the Certificate of Incorporation or
Bylaws of Purchaser.
PART IV
CONDUCT AND TRANSACTIONS PRIOR
TO CLOSING DATE
4.1 Access to Assets, Records and Cooperation. Seller agrees to make
available to Purchaser the Software and all related materials including the
sales and marketing materials for review, and if desired by Purchaser, further
development pending the Closing. Seller agrees to cooperate with reasonable
requests for assistance and to continue its development of the designs, plans
and concepts included within the Assets pending the Closing.
4.2 Operation of Business.
(a) Seller agrees that from the date hereof through the Closing
Date, except as expressly contemplated by this agreement or to the extent that
Purchaser shall otherwise consent in writing, Seller will operate its' business
as presently operated and only in the ordinary course, and, consistent with such
operation, it will preserve intact relationships with parties with which it may
have business dealings. Seller shall comply with, and shall not knowingly be in
default or in violation in any respect under any law, ordinance, requirement,
regulation, policy, guideline, decree or order applicable to the Assets of
Seller. Seller shall not permit or allow and shall refrain from taking or
failing to take any action which would render any representation or warranty
contained in this agreement or in any instrument or other document delivered in
connection with the agreement inaccurate as of the Closing Date, and shall
promptly advise Purchaser of any breach of any representation, warranty,
covenant, condition or obligation of Seller hereunder. Seller shall duly file
all reports and returns required to be filed by it with governmental authorities
and make such payments as are required in connection therewith. Seller shall
obtain and maintain all governmental consents, approvals and authorizations
which are required in connection with their respective operation, and shall
preserve the Assets in good operating condition, order and repair.
4.3 Consents and Notices. Seller shall use its best efforts to
obtain all consents, waivers, amendments, modifications, approvals,
authorizations, permits and licenses which may be necessary to effectuate this
agreement and to consummate the transactions contemplated hereby in accordance
with the terms hereof and shall give all notices, if any, to third parties
required to be given by it in contemplation and as a result of the transactions
contemplated by this agreement.
4.4 Confidentiality. The Purchaser covenants and agrees to keep
all information provided by the Seller or its representatives to the Purchaser
in strict confidence and not to use any such information for any purpose other
than in connection with the transactions contemplated herein, except for
information which is part of the public domain or hereafter becomes part of the
public domain through no fault of the Purchaser, or which was acquired by the
Purchaser from an independent third party who had no confidentiality obligation
to any of the Seller or which the Purchaser may be required by law to disclose
(provided that the Purchaser gives reasonable prior notice thereof to the Seller
under the circumstances).
In the event that this agreement is terminated by any party for
any reason, the Purchaser shall deliver to the Seller all software, documents,
work papers and other material (and all copies thereof) (a) obtained by the
Purchaser from he Seller or its representatives, whether before or after the
date hereof, and (b) prepared by or for the Purchaser which incorporate
information contained in any documents, work papers or other material provided
by the Seller or its representatives to the Purchaser. The Purchaser shall also
deliver to the Seller upon request a certificate of an authorized officer
certifying that the requirements of this Section have been fully satisfied. If
this agreement is terminated by Purchaser without good cause, then any materials
it has developed related to the Assets, including modifications to the Software
which may be made, if any, shall become the property of Seller.
4.5 Tax Covenants for Article IV. The Seller shall duly and
timely complete and attach Internal Revenue Service Form 8594 to the Seller's
Federal income tax return for the year in which the purchase and sale
contemplated hereunder occurs, as required by Section 1060 of the Internal
Revenue Code of 1986, as amended, and the Temporary Treasury Regulations
promulgated thereunder, setting forth the purchase price allocation as agreed
upon with Purchaser.
The Purchaser shall duly and timely complete and attach Internal
Revenue Service Form 8594 to the Purchaser's Federal income tax return for the
tax year in which the sale contemplated hereunder occurs, as required by Section
1060 of the Internal Revenue Code of 1986, as amended, and the Temporary
Treasury Regulations promulgated thereunder, setting forth the purchase price
allocation as agreed upon with Seller.
Seller and Purchaser shall agree upon the required allocations no
later than 90 days following the Closing. In the event the parties are unable to
reach agreement on such allocation, the parties agree to adopt an allocation as
determined to be appropriate in good faith by Purchaser's independent public
accountants.
PART V
CONDITIONS TO CLOSING
5.1 Conditions to Obligations of Purchaser. The obligation of
Purchaser to perform this agreement is subject to the satisfaction of the
following conditions, each of which may be waived by Purchaser:
(a) Representations and Warranties; Performance of Obligations.
The representations and warranties of Seller set forth in this agreement and in
any certificate or other instrument delivered to Purchaser hereunder shall be
true and correct in all respects at all times commencing with the date of this
agreement and on the Closing Date as though made on and as of the Closing Date.
Seller shall not have violated any covenants or agreements in this agreement and
shall have performed the obligations required to be performed under this
agreement prior to or on the Closing Date.
(b) Authorization of Agreement. All action necessary to authorize
the execution, delivery and performance of this agreement by Seller shall have
been duly and validly taken, and Seller shall have full power and right to
consummate the transactions hereunder on the terms provided herein.
(c) Receipt of Satisfactory Asset Valuation Analysis and Approval
of Instruments of Transfer. Purchaser shall receive an Asset valuation analysis
from an independent third party wherein the Assets are collectively valued at no
less than $14,000,000. Purchaser shall be responsible for costs associated with
such analysis. Seller agrees to cooperate with all reasonable requests related
to such analysis. All instruments of transfer and other documents delivered in
connection with this agreement shall be satisfactory in form and substance to
Purchaser and its counsel.
(d) Acknowledgment and Confirmation of Seller's Principal's
(Xxxxxxx "Bo" Xxxxx) Obligations and Satisfactory Agreement for Additional
Services Between Purchaser (or a new subsidiary to be formed) and Seller.
Seller's Principal, Xxxxxxx "Bo" Xxxxx, shall provide confirmation of the
production of and proposed release of a motion picture, tentatively titled "One
Tough Cop," based on his life and book, "One Tough Cop, the Xx Xxxxx Story," and
shall execute this Agreement in his individual capacity in acknowledgment and
confirmation of certain marketing and promotional obligations related to the
Assets to be fulfilled following the Closing. In addition, a satisfactory
agreement shall have been reached prior to Closing continuing and expanding the
involvement of Xx. Xxxxx in the continuing development and marketing of the
Software and the Purchaser in local, regional and national media.
(e) No Adverse Change. None of the Assets shall have been
materially affected by any collision, fire, explosion, accident, embargo, act of
God or any other casualty that impairs the Assets or that has an adverse effect
upon their prospects.
(f) Litigation. No litigation or proceeding shall have been
instituted or threatened which could have a material adverse effect upon the
Assets or is intended to prevent, restrain or interfere with the consummation of
the acquisition contemplated under this agreement.
(g) Sale Assets to be Free of Liens and Claims. All Assets,
rights and interests being purchased pursuant to this Agreement shall be free of
any and all liens and claims.
(h) Accuracy of Information. All information described in or set
forth or referred to in this agreement or Exhibits hereto or required to be
furnished to Purchaser or any of its representatives prior to the Closing Date
shall be true, correct and complete. No information shall have come to the
attention of Purchaser or its authorized representatives, during the conduct of
its investigation of Seller or otherwise, which could materially adversely
affect the condition (financial or otherwise), properties, assets, liabilities,
business or prospects of Seller that are the subject of this agreement, which
information is not set forth in this agreement.
(i) Compliance with Securities Laws. The issuance of the
securities provided for hereunder shall be subject to compliance with all
applicable federal and state securities laws and regulations.
(i) Other Matters. Seller shall have furnished, or cause to be
furnished, to Purchaser such certificates, instruments and other documents, in
form and substance reasonably satisfactory to Purchaser, as Purchaser may have
reasonably requested to consummate the transactions contemplated under this
agreement.
5.2 Conditions to Obligations of Seller. The obligations of Seller to
perform this agreement are subject to the satisfaction of the following
conditions, each of which may be waived by Seller and all shall be in a form
reasonably satisfactory to Seller and its attorneys:
(a) Representations and Warranties, Performance of Obligations.
The representations and warranties of Purchaser set forth in this agreement and
in any certificate or other instrument delivered to Seller hereunder shall be
true and correct in all respects at all times commencing with the date of this
agreement and ending with and on the Closing Date as though made on and as of
the Closing Date. Purchaser shall not have violated any covenants or agreements
in this agreement and shall have performed the obligations required to be
performed by it under this agreement prior to or on the Closing Date.
(b) Authorization of Agreement. All action necessary to authorize
the execution, delivery and performance of this agreement by Purchaser shall
have been duly and validly taken, and Purchaser shall have full power and right
to consummate the transactions contemplated hereunder on the terms provided
herein.
(c) Litigation. No litigation or proceeding shall have been
instituted or threatened which seeks or is intended to prevent, restrain or
interfere with the consummation of the transactions contemplated under this
agreement.
(d) Payment of Purchase Price. Purchaser shall have delivered to
Seller a certified resolution confirming the approval of the transaction and
authorization for the issuance of the requisite securities upon Closing.
PART VI
TERMINATION
6.1 In the event either party prior to the Closing shall breach,
violate or otherwise default in respect to any warranty, representation or
covenant (the "Defaulting Party"), the other party (the "NonDefaulting Party")
may at its option, at any time prior to the Closing, unless such default shall
have been fully rectified and corrected by the Defaulting Party prior thereto,
by written notice elect either:
(1) to terminate this agreement by giving the Defaulting Party
written notice of such election, in which case, all obligations of the parties
hereunder shall terminate upon the giving of such notice, or
(2) to consummate the transaction contemplated hereby.
PART VII
INDEMNIFICATION
7.1 Indemnities of Seller.
(a) Seller agree to defend, at its own expense, indemnify and
hold harmless Purchaser at all times after the Closing Date in respect of all
liability, damage, actions, causes of action, expense, (including without
limitation attorneys fees) deficiency or loss resulting from, arising out of or
connected with:
(i) any breach of the representations and warranties made in
regard to the Assets by Seller in this agreement or in any certificate or other
instrument furnished or to be furnished to Purchaser hereunder for the period
provided for the survival of representations and warranties set forth in Section
8.16 of this agreement;
(ii) the nonfulfillment of any agreement or covenant made by
Seller in or under this agreement; and
(iii) any claims, obligations, debts, demands, or
liabilities existing against Seller and/or the Assets prior to and including the
Closing Date, whether asserted prior to or subsequent to the Closing Date, and
thereafter asserted against Purchaser.
(b) Seller, at its own expense, shall have the right to contest,
defend or litigate any matter in respect of which indemnification is claimed and
any proceeding or litigation which could give rise to a claim for
indemnification. Purchaser shall have the right to be represented by counsel and
accountants in any such proceeding or litigation at its own expense unless
Seller is not diligently pursuing such defense, in which case Purchaser's
counsel and accountants shall be at Seller' expense. In connection with the
defense of any proceeding or litigation covered by this Section, Purchaser shall
make available to Seller all books and records in the possession of Purchaser
relating thereto.
(c) No claim for indemnification under this Section 7 and Section
3.1 (l) by Purchaser shall be initiated at any time after the second anniversary
of the Closing Date, except for matters set forth in Section 8.16 (b), (c) and
(d) of this agreement.
7.2 Indemnities of Purchaser.
(a) Purchaser agrees to defend, at its own expense, indemnify and
hold harmless Seller at all times after the Closing Date in respect of all
liability, damage, actions, causes of action, expense (including without
limitation attorneys fees), deficiency or loss resulting from, arising out of,
or connected with:
(i) any breach of the representations and warranties made by
Purchaser in this agreement or in any certificate or other instrument furnished
or to be furnished to Seller hereunder for the period provided for the survival
of representations and warranties set forth in Section 8.16 of this agreement;
and
(ii) the nonfulfillment of any agreement or covenant made by
Purchaser in or under this agreement.
(iii) any claims, obligations, debts, demands or liabilities
against Purchaser arising from events occurring after the Closing Date.
(b) Purchaser, at its own expense, shall have the right to
contest, defend or litigate any matter in respect of which indemnification is
claimed and any proceeding or litigation which could give rise to a claim for
indemnification. Seller shall have the right to be represented by counsel and
accountants in any such proceeding or litigation at Seller' own expense, unless
Purchaser is not diligently pursuing such defense, in which case Seller' counsel
and accountants shall be at Purchaser's expense. In connection with the defense
of any proceeding or litigation covered by this Section, Seller shall make
available to Purchaser all books and records in the possession of Seller
relating thereto.
7.3 Notice. Any party hereto having notice or knowledge of a claim of
a person not a party hereto which might result in the obligation of a party
hereto to indemnify another party or parties hereto shall immediately notify
such other party in the manner set forth in Section 8.12 of this agreement.
PART VIII
MISCELLANEOUS
8.1 Further Actions. From time to time, as and when requested by a
party hereto, each party hereto will execute all documents and take such other
action as another party hereto may reasonably request, whether before, on or
after the Closing Date, in order to consummate the transactions provided for
herein and to accomplish the purposes of this agreement.
8.2 Expenses. Except as may be otherwise expressly provided herein,
Purchaser and Seller shall pay their respective expenses in connection with this
agreement and the transactions contemplated hereunder. Nothing contained in this
Section 8.3 shall release any party from liability for any breach of or default
under any term or provision of this agreement, subject to the limitations on
such liabilities contained herein.
8.3 Transfer Taxes and Prorations. Seller shall pay all transfer taxes
in connecting with the closing of this agreement, including, but not limited to
sales taxes, if any.
8.4 Time of Essence. Time is of the essence of this agreement.
8.5 Risk of Loss. Until the Closing Date, the assets shall be and
remain at the risk of Seller. If, prior to the Closing Date, all or any part of
the assets are destroyed or damaged by fire or any other casualty or shall be
appropriated, expropriated or seized by governmental or other lawful authority,
the parties shall seek to determine in good faith an appropriate adjustment to
the Purchase Price, which agreement shall set forth an express agreement as to
who shall have any right or claim for the proceeds of any insurance or
compensation for appropriation or seizure. In the event that no such agreement
can be reached, this agreement shall terminate.
8.6 Entire Agreement. This agreement, which includes the Exhibits
hereto, contains the entire agreement between Purchaser and Seller with respect
to the transactions contemplated by this agreement and supersedes all prior
written or unwritten arrangements or understandings with respect thereto.
8.7 Descriptive Headings. The descriptive headings of this agreement
are for convenience only and shall not control or affect the meaning or
construction of any provision of this agreement.
8.9 Notices. All notices and other communications required or
permitted hereunder shall be in writing and deemed to have been duly given when
delivered personally or sent by registered or certified mail, postage prepaid,
return receipt requested addressed as follows:
If to Purchaser:
Computer Concepts Corp.
Attn: President
00 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
If to Seller:
Internet Tracking & Security Ventures
Attn: Xx Xxxxx, Principal
00 Xxxxxxx Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000
Any party may by notice given pursuant to this Section 8.9 change the
address to which notices or other communications to it are to be delivered or
mailed thereafter.
8.10 Counterparts. This agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute one and the same
instrument.
8.11 Governing Law. This agreement shall be governed by and in
accordance with the laws of the State of New York and shall be considered
mutually drafted by the parties.
8.12 Assignability and Binding Effect. This agreement shall not be
assignable otherwise than by operation of law by either party without the prior
written consent of the other party, however, either party may assign this
agreement to another entity which is whollyowned or comprised of the same
owners. This agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
8.13 Survival. All representations and warranties contained herein or
made pursuant hereto, whether express or implied, are true and correct as of the
Closing Date and any claim for breach or claim based upon a breach thereto shall
survive the Closing Date and shall continue in full force and effect for a
period of two (2) years after the Closing Date and thereafter shall be of no
force or effect (a) unless a representation and/or a warranty shall have been
breached and the party that made the representation and/or warranty shall have
been given notice of such breach within such two-year period, in which event
such breached representation and/or warranty shall continue to survive, (b)
except that representations and/or warranties made by a party with respect to
any tax liability or tax adjustment shall survive the Closing Date for a period
equal to the period during which a claim by the taxing authority in question for
a deficiency in the tax involved would not be barred by the Federal, state or
local statute of limitations (whether voluntarily extended by the taxpayer or
otherwise) applicable to such tax, (c) except any matters including fraud or
willful misconduct on the part of Seller and (d) except that representations and
warranties contained in any instruments of transfer delivered on or after the
Closing Date, which warranties shall survive the Closing Date forever, and
nothing shall limit the representations and warranties of Seller as set forth in
this agreement respecting its respective title to and ability to transfer
unqualified ownership of the Assets, which representations and warranties shall
survive the Closing Date forever.
8.14 Waivers and Amendments. This agreement or any term hereof may be
amended, waived, discharged or terminated only in writing signed by each of the
parties hereto or their respective successors and permitted assigns. A waiver of
any breach or failure to enforce any of the terms or conditions of this
agreement shall not in any way effect, limit or waive a party's rights hereunder
at any time to enforce strict compliance thereafter with every term or condition
of this agreement.
8.15 Third Party Rights. Notwithstanding any other provision of this
agreement, this agreement shall not create benefits on behalf of any employee,
third party or other person, and this agreement shall be effective only as
between the parties hereto, their successors and permitted assigns.
8.16 Illegality. In the event that any one or more of the provisions
contained in this agreement shall be determined to be invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in any other respect and the remaining
provisions of this agreement shall not, in any way, be impaired.
IN WITNESS WHEREOF, the undersigned have caused this agreement to be
duly executed and delivered of the date first above written.
"Seller"
Internet Tracking & Security Ventures,
By s/
Xxxxxxx "Bo" Xxxxx,
Principal/Partner
"Purchaser"
Computer Concepts Corp.
By:s/
Xxxxxx Del Giorno,
Its President
