ASSET PURCHASE AGREEMENT
by and among
DATALOGIC INTERNATIONAL, INC.,
IPN COMMUNICATIONS, INC.
and
HURON HOLDINGS, INC.
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of June 30, 2006 (this "Agreement"),
by and between DataLogic International, Inc., a Delaware corporation
("DataLogic"), IPN Communications, Inc., a California corporation (and
together with DataLogic, "Sellers") and Huron Holdings, Inc., a Nevada
corporation ("Buyer").
WITNESSTH:
WHEREAS, Sellers conduct a business which manufactures, sells and
distributes vehicle and mobile asset management solutions; and
WHEREAS, Buyer desires to purchase certain inventory and other assets
from Sellers, and Sellers desire to sell certain inventory and other assets of
to Buyer, upon the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
(a) The following terms, as used herein, have the following meanings:
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
"Note" means a promissory note of Buyer in the principal amount of
$250,000, in substantially the form of Exhibit A hereto.
"Other Transaction Documents" means the Note and the Sellers License.
"Permitted Lien" means (a) any Lien disclosed on Sellers Disclosure
Schedule, (ii) Liens for taxes not yet due or being contested in good faith,
or (iii) Liens which do not materially detract from the value of the Purchased
Assets as now used, or materially interfere with any present or intended use
of such Purchased Asset.
"Person" means an individual, a corporation, a partnership, an
association, a trust or other entity or organization, including a government
or political subdivision or an agency or instrumentality.
"Sellers License" means the license with respect to certain intellectual
property of Sellers to be granted to Buyer, in substantially the form of
Exhibit B hereto.
"Taxes" means all taxes, assessments and governmental charges imposed by
any federal, state, county, local or foreign government, taxing authority,
subdivision or agency thereof, including interest, penalties or additions
thereto.
1
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
----- -------
Assumed Liabilities 2.02
Closing 2.05
Damages 7.02
Governmental Entity 3.03
Material Adverse Effect 3.01
Purchased Assets 2.01
Purchase Price 2.04
ARTICLE II
PURCHASE AND SALE
Section 2.01 Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, Buyer agrees to purchase from Sellers and
Sellers agree to sell, transfer, assign and deliver, or cause to be sold,
transferred, assigned and delivered, to Buyer at Closing, free and clear of
all Liens, other than Permitted Liens, the assets identified on Schedule A
hereto (the "Purchased Assets").
Section 2.02 Assumption of Liabilities. Upon the terms and subject to
the conditions of this Agreement, Buyer agrees, effective at the time of the
Closing to assume the liabilities identified on Schedule B hereto (the
"Assumed Liabilities").
Section 2.03 Assignment of Contracts and Rights. Anything in this
Agreement to the contrary notwithstanding, this Agreement shall not constitute
an agreement to assign any Purchased Asset or any claim or right or any
benefit arising thereunder or resulting therefrom if an attempted assignment
thereof, without the consent of a third party thereto, would constitute a
breach or other contravention thereof to in any way adversely affect the
rights of Buyer or any Seller thereunder. Sellers and Buyer will use their
best efforts (but without any payment of money by Sellers or Buyer) to obtain
the consent of the other parties to any such Purchased Asset or any claim or
right or any benefit arising thereunder for the assignment thereof to Buyer as
Buyer may request. If such consent is not obtained, or if an attempted
assignment thereof would be ineffective or would adversely affect the rights
of a Seller thereunder so that Buyer would not in fact receive all such
rights, Sellers and Buyer will cooperate in a mutually agreeable arrangement
under which Buyer would obtain the benefits and assume the obligations
thereunder in accordance with this Agreement, including subcontracting,
sublicensing, or subleasing to Buyer, or under which Sellers would enforce for
the benefit of Buyer, with Buyer assuming Sellers' obligations, any and all
rights of Sellers against a third party thereto. Sellers will promptly pay to
Buyer when received all monies received by any Seller under any Purchased
Asset or any claim or right or any benefit arising thereunder.
2
Section 2.04 Purchase Price; Allocation of Purchase Price.
(a) The purchase price for the Purchased Assets (the "Purchase
Price") is (a) $450,000 in cash and (b) the Note. The Purchase Price shall
be paid as provided in Section 2.05.
(b) The Sellers and Buyer agree to report an allocation of the
Purchase Price among the Purchased Assets in a manner entirely consistent with
the allocation set forth on Schedule A hereto, and agree to act in accordance
with such allocation in the preparation of financial statements and filing of
all tax returns and in the course of any tax audit, tax review or tax
litigation relating thereto.
Section 2.05 Closing. The closing (the "Closing") of the purchase and
sale of the Purchased Assets and the assumption of the Assumed Liabilities
hereunder shall take place at the offices of DataLogic in Irvine, California
as soon as possible, but in no event later than three business days, after the
satisfaction of the conditions set forth in Article VI, or at such other time
or place as Buyer and Seller may agree. At the Closing,
(a) Buyer shall deliver to Sellers:
(i) $450,000 in immediately available funds by wire transfer
to an account(s) of Seller(s) with a bank(s) designated by Sellers, by notice
to Buyer, no later than two business days prior to the Closing Date; and
(ii) the Note.
(b) Each Seller and Buyer shall enter into an Assignment and
Assumption Agreement substantially in the form attached hereto as Exhibit C.
(c) Sellers and Buyer shall enter into the Sellers License.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers hereby represent and warrant to Buyer that:
Section 3.01 Organization. Each of DataLogic and IPN is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all requisite power and authority to
own, lease and operate its properties and to carry on its business as now
being conducted. Each of DataLogic and IPN is duly qualified or licensed and
in good standing to do business in each jurisdiction in which the property
owned, leased or operated by it or the nature of the business conducted by it
makes such qualification or licensing necessary, except in such jurisdictions
where the failure to be so duly qualified or licensed and in good standing
would not in the aggregate have a material adverse effect on the Purchased
Assets (a "Material Adverse Effect").
3
Section 3.02 Corporate Authorization. The execution, delivery and
performance by DataLogic and IPN of this Agreement and the Sellers License and
the consummation by them of the transactions contemplated hereby are within
their respective corporate powers and have been duly authorized by all
necessary corporate action of DataLogic and IPN. This Agreement has been duly
and validly executed and delivered by each of DataLogic and IPN and
constitutes a valid and binding agreement of DataLogic and IPN, enforceable
against them in accordance with its terms. The Sellers License, when executed
and delivered, will constitute a valid and binding obligation of DataLogic and
IPN, enforceable against them in accordance with its terms.
Section 3.03 Governmental Authorization; Consents.
(a) The execution, delivery and performance by each of DataLogic
and IPN of this Agreement and the Sellers License require no action by or in
respect of, or filing with, any governmental body, agency, official or
authority (a "Governmental Entity").
(b) Except as set forth on Section 3.03 of the Sellers Disclosure
Schedule, no consent, approval, waiver or other action by an Person (other
than any governmental body, agency, official or authority referred to in (a)
above) under any contract, agreement, indenture, lease, instrument, or other
document to which DataLogic or IPN is a party or by which either of them is
bound is required or necessary for the execution, delivery and performance of
this Agreement or the Sellers License by DataLogic and IPN or the consummation
of the transactions contemplated hereby or thereby.
Section 3.04 Non-Contravention. The execution, delivery and
performance by Seller of this Agreement and the Sellers License do not and
will not (i) contravene or conflict with the certificate of incorporation or
bylaws of DataLogic or IPN, (ii) contravene or conflict with or constitute a
violation of any provision of any law, regulation, judgment, injunction, order
or decree binding upon or applicable to DataLogic or IPN; (iii) constitute a
default under or give rise to any right of termination, cancellation or
acceleration of any right or obligation of DataLogic or IPN or to a loss of
any benefit to which DataLogic or IPN is entitled under any provision of any
agreement, contract, or other instrument binding upon DataLogic or IPN or any
license, franchise, permit or other similar authorization held by DataLogic or
IPN or (iv) result in the creation or imposition of any Lien on any Purchased
Asset.
Section 3.05 Title to Purchased Assets. Upon consummation of the
transaction contemplated hereby, Buyer will have acquired good and marketable
title in and to, or a valid leasehold interest in, each of the Purchased
Assets, free and clear of all Liens, except for Permitted Liens.
Section 3.06 Litigation. Except as set forth in Section 3.06 of the
Sellers Disclosure Schedule, there is no action, suit, investigation,
proceeding, review pending against, or to the knowledge of any Seller
threatened against or affecting, the Purchased Assets before any court or
arbitrator or any Governmental Entity which, in the aggregate, are reasonably
likely to have a Material Adverse Effect or materially delay the transactions
contemplated hereby.
Section 3.07 No Defaults. Except as set forth in Section 3.07 of the
Sellers Disclosure Schedule, the Company is not in default or violation (and
no event has occurred which with notice or the lapse of time or both would
constitute a default or violation) of any term, condition or provision of (a)
any license, contract, agreement or other instrument or obligation to which
4
constitutes a Purchased Asset or (b) any order, writ, injunction, decree,
statute, rule or regulation applicable to the Company, which defaults or
violations would, in the aggregate, reasonable be expected to have a Material
Adverse Effect or which would materially delay the consummation of the
transactions contemplated hereby.
Section 3.08 Finders' Fees. There is no investment banker, broker,
finder or other intermediary which has been retained by or is authorized to
act on behalf of DataLogic or IPN who might be entitled to any fee or
commission from Buyer or any of its respective affiliates upon consummation of
the transactions contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
BUYER
Buyer hereby represents and warrants to Sellers that:
Section 4.01 Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its incorporation and has all requisite power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
Section 4.02 Corporate Authorization. The execution, delivery and
performance by Buyer of this Agreement and the Other Transaction Documents and
the consummation by Buyer of the transactions contemplated hereby and thereby
are within Buyer's corporate powers and have been duly authorized by all
necessary corporate action of Buyer. This Agreement has been duly and validly
executed and delivered by Buyer and constitutes a valid and binding agreement
of Buyer, enforceable against Buyer in accordance with its terms. The Note
and Seller License, when executed and delivered, will constitute a valid and
binding obligation of Buyer, enforceable against it in accordance with their
respective terms.
Section 4.03 Governmental Authorization; Consents.
(a) The execution, delivery and performance by Buyer of this
Agreement require no action by or in respect of, or filing with, any
Governmental Entity.
(b) No consent, approval, waiver or other action by an Person
(other than any Governmental Entity referred to in (a) above) under any
contract, agreement, indenture, lease, instrument, or other document to which
Buyer is a party or by which it is bound is required or necessary for the
execution, delivery and performance of this Agreement by Buyer or the
consummation of the transactions contemplated hereby.
Section 4.04 Non-Contravention. The execution, delivery and
performance by Buyer of this Agreement and the Other Transaction Documents do
not and will not (i) contravene or conflict with the certificate of
incorporation or bylaws of Buyer, or (ii) contravene or conflict with or
constitute a violation of any provision of any law, regulation, judgment,
injunction, order or decree binding upon or applicable to Buyer.
5
Section 4.05 Financing. Buyer has received and furnished copies to
Sellers of a term sheet from an investor group pursuant to which the investor
group has expressed an interest, subject to the terms and conditions stated
therein, to provide Buyer with sufficient funds to purchase the Purchased
Assets.
Section 4.06 Litigation. There is no action, suit, investigation,
proceeding, review pending against, or to the knowledge of the Buyer
threatened against or affecting, Buyer before any court or arbitrator or any
Governmental Entity which in any manner challenges or seeks to prevent,
enjoin, alter or materially delay the transactions contemplated hereby.
Section 4.07 Finders' Fees. There is no investment banker, broker,
finder or other intermediary which has been retained by or is authorized to
act on behalf of Buyer who might be entitled to any fee or commission from
Sellers or any of their affiliates upon consummation of the transactions
contemplated by this Agreement.
ARTICLE V
COVENANTS
Section 5.01 Covenants of Sellers. Sellers agree that:
(a) No Inconsistent Actions. During the period from the date of this
Agreement and continuing until the Closing Date, Sellers will not (i) take or
agree or commit to take any action that would make any representation and
warranty of Sellers inaccurate in any respect at, or as of any time prior to,
the Closing Date or (ii) omit or agree or commit to omit to take any action
necessary to prevent any such representation or warranty from being inaccurate
in any respect at any such time.
(b) Access to Information. Upon reasonable notice and subject to
restrictions contained in confidentiality agreements to which such party is
subject (from which such party shall use reasonable efforts to be released),
Sellers shall afford to the officers, employees, accountants, counsel and
other representatives of Buyer, access, during normal business hours during
the period prior to the Closing, to the Sellers' properties, books, contracts,
commitments and records to the extent relating to the Purchased Assets and,
during such period, Sellers shall furnish promptly to the other all
information concerning the Purchased Assets as Buyer may reasonably request.
Unless otherwise required by law or court order, Buyer will hold any such
information which is nonpublic in confidence until such time as such
information otherwise becomes publicly available through no wrongful act of
Buyer, and in the event of termination of this Agreement for any reason Buyer
shall promptly return all nonpublic documents obtained from Sellers, and any
copies or summaries made of such documents, to Sellers.
Section 5.02 Covenants of Buyer. Buyer agrees that:
(a) No Inconsistent Actions. During the period from the date of this
Agreement and continuing until the Closing Date, Buyer will not (i) take or
agree or commit to take any action that would make any representation and
warranty of Buyer inaccurate in any respect at, or as of any time prior to,
the Closing Date or (ii) omit or agree or commit to omit to take any action
necessary to prevent any such representation or warranty from being inaccurate
in any respect at any such time.
6
(b) Confidentiality. Prior to the Closing Date and after any
termination of this Agreement, Buyer and its affiliates will hold, an will use
best efforts to cause their respective officers, directors, employees,
accountants, counsel, consultants, advisors and agents to hold, in confidence,
unless compelled to disclose by judicial or administrative process or by other
requirements of law, all confidential documents and information concerning
Sellers or the Purchased Assets furnished to Buyer or its affiliates in
connection with the transaction contemplated by this Agreement, except to the
extent that such information can be shown to have been (i) previously known on
a nonconfidential basis by Buyer, (ii) in the public domain through no fault
of Buyer or (iii) later lawfully acquired by Buyer from sources other than
Sellers; provided that Buyer may disclose such information to its officers,
directors, employees, accountants, counsel, consultants, advisors and agents
in connection with the transactions contemplated by this Agreement and to its
lenders in connection with obtaining the financing for the transactions
contemplated by this Agreement so long as such Persons are informed by Buyer
of the confidential nature of such information and are directed by Buyer to
treat such information confidentially. The obligation of Buyer and its
affiliates to hold such information in confidence shall be satisfied if they
exercise the same care with respect to such information as they would take to
preserve the confidentiality of their own similar information. If this
Agreement is terminated, Buyer and its affiliates will, and will use best
efforts to cause their respective officers, directors, employees, accountants,
counsel, consultants, advisors and agents to, destroy or deliver to Sellers,
upon request, all documents and other materials, and all copies thereof,
obtained by Buyer and its affiliates or on their behalf from Sellers in
connection with this Agreement that are subject to such confidence.
(c) Access to Information. Upon reasonable notice and subject to
restrictions contained in confidentiality agreements to which such party is
subject (from which such party shall use reasonable efforts to be released),
Buyer shall afford to the officers, employees, accountants, counsel and other
representatives of Sellers, access, during normal business hours during the
period prior to the Closing, to all of the Buyer's properties, books,
contracts, commitments and records and, during such period, Buyer shall
furnish promptly to the other all information concerning Buyer's business,
properties and personnel as Sellers may reasonably request, in each case, to
the extent necessary to permit Sellers to determine any matter relating to its
rights and obligations hereunder or to any period ending on or before the
Closing Date. Unless otherwise required by law or court order, Sellers will
hold any such information which is nonpublic in confidence until such time as
such information otherwise becomes publicly available through no wrongful act
of Sellers, and in the event of termination of this Agreement for any reason
Sellers shall promptly return all nonpublic documents obtained from Buyer, and
any copies or summaries made of such documents, to Buyer.
Section 5.03 Covenants of Buyer and Sellers. Buyer and Sellers each
agree that:
(a) Best Efforts. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use its best efforts to take,
or cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
Sellers and Buyer each agree to execute and deliver such other documents,
certificates, agreements and other writings and to take such other actions as
may be necessary or desirable in order to consummate or implement
expeditiously the transactions contemplated by this Agreement.
7
(b) Certain Filings. Sellers and Buyer will cooperate with one another
(i) in determining whether any action by or in respect of, or filing with, any
Governmental Entity is require or any actions, consents, approvals or waivers
are required to be obtained from parties to any material contracts, in
connection with the transactions contemplated by this Agreement and (ii) in
taking such actions or making any such filings, furnishing information
required in connection therewith and seeking timely to obtain any such
actions, consents, approvals or waivers.
(c) Public Announcements. The parties shall consult with each other
before issuing any press releases or otherwise making public statements with
respect to the transactions contemplated hereby and in making any filings with
any federal or state governmental or regulatory agency or with any national
securities exchange with respect there
(d) Notices. Each of the parties shall give prompt notice to the other
party of: (a) any notice of, or other communication relating to, a default or
event which, with notice or the lapse of time or both, would become a default,
received by it or any of its subsidiaries subsequent to the date of this
Agreement and prior to the Closing, under any agreement, indenture or
instrument material to the financial condition, properties, businesses or
results of operations of it and its subsidiaries, taken as a whole, to which
it or any of its subsidiaries is a party or is subject; and (b) any notice or
other communication from any third party alleging that the consent of such
third party is or may be required in connection with the transactions
contemplated by this Agreement, which consent, if required, would breach the
representations contained in Articles III and IV.
ARTICLE VI
CONDITIONS
Section 6.01 Conditions to Each Party's Obligations. The obligations
of Buyer and Sellers to consummate the Closing are subject to the satisfaction
of the following conditions:
(a) All authorizations, consents, orders or approvals of, or
declarations or filings with, or expirations or terminations of waiting
periods imposed by, any Governmental Entity, and all required third party
consents (as set forth on Section 3.03 of the Sellers Disclosure Schedule),
shall have been filed, occurred or been obtained.
(b) No statute, rule, regulation, executive order, decree or
injunction shall have been enacted, entered, promulgated or enforced by any
court or governmental authority which prohibits the consummation of the
Closing and shall be in effect.
Section 6.02 Conditions to Obligation of Buyer. The obligation of
Buyer to consummate the Closing is subject to the satisfaction of the
following further conditions:
(a) The representations and warranties of Sellers set forth in
this Agreement shall be true and correct as of the date of this Agreement, and
shall also be true in all material respects (except for such changes as are
contemplated by the terms of this Agreement and such changes as would be
required to be made in the exhibits to this Agreement if such schedules were
to speak as of the Closing Date) on and as of the Closing Date with the same
force and effect as though made on and as of the Closing Date, except if and
to the extent any failures to be true and correct would not, in the aggregate,
reasonable be expected to have a Material Adverse Effect.
8
(b) Sellers shall have performed in all material respects all
obligations required to be performed by it under this Agreement at or prior to
the Closing Date.
(c) Buyer shall have a received a certificate signed by the Chief
Executive Officer of DataLogic confirming Section 6.02(a) and (b).
(d) Sellers shall have executed and delivered to Buyer each of the
Sellers License.
(e) Buyer shall have received (i) resolutions duly adopted by the
Board of Directors of each of DataLogic and IPN approving the execution and
delivery of this Agreement and all other necessary or proper corporate action
to enable such Seller to comply with the terms of this Agreement, and (ii) all
other documents it may reasonably request relating to the existence of such
Seller and the authority of such Seller for this Agreement, all in form and
substance reasonable satisfactory to Buyer.
(f) Buyer shall have obtained funds sufficient to enable it to pay
the Purchase Price for the Purchased Assets.
Section 6.03 Conditions to Obligation of Sellers. The obligation of
Sellers to consummate the Closing is subject to the following further
conditions:
(a) The representations and warranties of Buyer set forth in this
Agreement shall be true and correct as of the date of this Agreement, and
shall also be true in all material respects (except for such changes as are
contemplated by the terms of this Agreement and such changes as would be
required to be made in the exhibits to this Agreement if such schedules were
to speak as of the Closing Date) on and as of the Closing Date with the same
force and effect as though made on and as of the Closing Date.
(b) Buyer shall have performed in all material respects all
obligations required to be performed by it under this Agreement at or prior to
the Closing Date.
(c) Sellers shall have a received a certificate signed by the
Chief Executive Officer of Buyer confirming Section 6.03(a) and (b).
(d) Buyer shall have executed and delivered to Sellers the Sellers
License.
(e) Sellers shall have received (i) resolutions duly adopted by
the Board of Directors of the Buyer approving the execution and delivery of
this Agreement and all other necessary or proper corporate action to enable
Buyer to comply with the terms of this Agreement, and (ii) all other documents
it may reasonably request relating to the existence of Buyer and the authority
of Buyer for this Agreement, all in form and substance reasonable satisfactory
to Seller.
9
(f) Sellers shall have received a termination and release
agreements, in form and substance satisfactory to DataLogic, from (i) each of
Xxxxx Xxxxxxx and Xxxx Xxxxx agreeing to the termination their respective
employment agreements with IPN and fully and unconditionally releasing Sellers
and their respective affiliates from any and all claims relating to such
agreements, their employment by IPN, the Asset Purchase Agreement, dated
September 15, 2005, by and among CBSi Holdings, Inc, IPN and DataLogic (the
"CBSi Agreement") or the Agreement of Non-Competition and Earn-Out
Compensation entered into in connection with the CBSi Agreement and (ii) from
7901 Property LLC agreeing to terminate Commercial Office Lease - Modified
Gross, dated April 21, 2006, between 7901 Property LLC and IPN and fully an
unconditionally releasing Sellers and their respective affiliates from any and
all claims relating thereto.
ARTICLE VII
SURVIVAL; INDEMNIFICATION
Section 7.01 Survival. The covenants, agreements, representations and
warranties of the parties hereto contained in this Agreement or in any
certificate or other writing delivered pursuant hereto or in connection
herewith shall survive the Closing until the first anniversary of the Closing
Date. Notwithstanding the preceding sentence, any covenant, agreement,
representation or warranty in respect of which indemnity may be sought under
Section 7.02 shall survive the time at which it would otherwise terminate
pursuant to the preceding sentence, if notice of the inaccuracy or breach
thereof giving rise to such right to indemnity shall have been given to the
party against whom such indemnity may be sought prior to such time.
Section 7.02 Indemnification.
(a) DataLogic hereby indemnifies Buyer against and agrees to hold them
harmless from any and all damage, loss, liability and expense (including
without limitation reasonable expenses of investigation and reasonable
attorneys' fees and expenses in connection with any action, suit or
proceeding) ("Damages") incurred or suffered by Buyer arising out of any
misrepresentation or breach of warranty, covenant or agreement made or to be
performed by Sellers pursuant to this Agreement. Unless and until the Note
has been repaid in full, DataLogic's liability under this Section 7.02(a) will
be satisfied exclusively by reduction of the outstanding principal amount of
the Note.
(b) Buyer hereby indemnifies Seller against and agrees to hold it
harmless from any and all Damages incurred or suffered by Seller arising out
of (i) any misrepresentation or breach of warranty, covenant or agreement made
or to be performed by Buyer pursuant to this Agreement or (ii) the failure of
Buyer to perform any Assumed Liability.
Section 7.03 Procedures; Exclusivity
(a) The party seeking indemnification under Section 7.02 (the
"Indemnified Party") agrees to give prompt notice to the party against whom
indemnity is sought (the "Indemnifying Party") of the assertion of any claim,
or the commencement of any suit, action or proceeding in respect of which
indemnity may be sought under such Section. The Indemnifying Party may at the
request of the Indemnified Party participate in and control the defense of any
such suit,
10
action, or proceeding at its own expense. The Indemnifying Party shall not be
liable under Section 7.02 for any settlement effected without its consent of
any claim, litigation or proceeding in respect of which indemnity may be
sought hereunder.
(b) After the Closing, Section 7.02 will provide the exclusive remedy
for any misrepresentation, breach or warranty, covenant or other agreement
(other than those contained in the Other Transaction Documents) or other claim
arising out of this Agreement or the transactions contemplated hereby.
ARTICLE VIII
TERMINATION AND AMENDMENT
Section 8.01 Termination. This Agreement may be terminated at any time
prior to the Closing Date:
(a) by mutual consent of DataLogic and Buyer;
(b) by either DataLogic or Buyer if the Closing shall not have
been consummated before August 15, 2006 (unless the failure to consummate the
Closing by such date shall be due to the action or failure to act of the party
seeking to terminate this Agreement); or
(c) by either DataLogic or Buyer if (i) the conditions to such
party's obligations shall have become impossible to satisfy or (ii) any
permanent injunction or other order of a court or other competent authority
preventing the consummation of the Closing shall have become final and
non-appealable.
Section 8.02 Effect of Termination. In the event of the termination
and abandonment of this Agreement pursuant to Section 8.01 hereof, this
Agreement shall forthwith become void and have no effect, without any
liability on the part of any party hereto or its affiliates, directors,
officers or stockholders, other than the provisions of Section 5.02(b).
Nothing contained in this Section 8.02 shall relieve any party from liability
for any breach of this Agreement.
Section 8.03 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
Section 8.04 Extension; Waiver. At any time prior to the Closing Date,
the parties hereto may, to the extent legally allowed, (i) extend the time for
the performance of any of the obligations or other acts of the other parties
hereto, (ii) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto and (iii) waive
compliance with any of the agreements or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall
be valid only if set forth in a written instrument signed on behalf of such
party.
11
ARTICLE IX
MISCELLANEOUS
Section 9.01 Notices. All notices and other communications hereunder
shall be in writing (and shall be deemed given upon receipt) if delivered
personally, telecopied (which is confirmed) or mailed by registered or
certified mail (return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) if to Buyer, to:
Huron Holdings, Inc.
0 Xxxxxxxxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx, CEO
and
(b) if to Sellers, to
DataLogic International, Inc.
00000 Xxx Xxxxxx Xxx., Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxx, CEO
Section 9.02 Descriptive Headings. The descriptive headings herein are
inserted for convenience only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
Section 9.03 Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when two or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood
that all parties need not sign the same counterpart.
Section 9.04 Entire Agreement; Assignment. This Agreement (a)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof (other than any confidentiality agreement between the
parties; any provisions of such agreements which are inconsistent with the
transactions contemplated by this Agreement being waived hereby) and (b) shall
not be assigned by operation of law or otherwise, provided that Buyer may
assign its rights and obligations to any other wholly owned subsidiary of
Buyer, but no such assignment shall relieve Buyer of its obligations hereunder
if such assignee does not perform such obligations.
Section 9.05 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware without regard
to any applicable principles of conflicts of law.
Section 9.06 Specific Performance. The parties hereto agree that if
any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached, irreparable damage would
occur, no adequate remedy at law would exist and damages would be difficult to
determine, and that the parties shall be entitled to specific performance of
the terms hereof, in addition to any other remedy at law or equity.
12
Section 9.07 Expenses. Whether or not the Closing is consummated, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
costs and expenses.
Section 9.08 Publicity. Except as otherwise required by law or the
rules of any national securities exchange, for so long as this Agreement is in
effect, neither Buyer nor Sellers shall, or shall permit any of its
subsidiaries to, issue or cause the publication of any press release or other
public announcement with respect to the transactions contemplated by this
Agreement without prior consultation with the other party.
Section 9.09 Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person or persons any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
IN WITNESS WHEREOF, DataLogic, IPN and Buyer have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the date
first written above.
DATALOGIC INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxx
--------------------------
Name: Xxxxx Xxxxx
Title: Chief Executive Officer
IPN COMMUNICATIONS, INC.
By: /s/ Xxxxx X Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: President
HURON HOLDINGS, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
13
Exhibit C
Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated as of ___
__, 2006, between [DataLogic International, Inc., a Delaware corporation][IPN
Communications, Inc., a California corporation] ("Seller"), and Huron
Holdings, Inc., a Nevada corporation ("Buyer").
WHEREAS, Seller and Buyer have concurrently herewith consummated the
purchase by Buyer of the Purchased Assets pursuant to the terms and conditions
of the Asset Purchase Agreement, dated June 30, 2006, among DataLogic
International, Inc., IPN Communications, Inc. and Huron Holdings, Inc. (the
"Asset Purchase Agreement"; terms defined in the Asset Purchase Agreement and
not otherwise defined herein being used herein as therein defined);
WHEREAS, pursuant to the Asset Purchase Agreement, Buyer has agreed to
assume certain liabilities and obligations of Seller;
NOW, THEREFORE, in consideration of the sale of the Purchased Assets and
in accordance with the terms of the Asset Purchase Agreement, Buyer and Seller
agree as follows:
1. (a) Seller does hereby sell, transfer, assign and deliver to Buyer
all of the right, title and interest of Seller in, to and under the Purchased
Assets.
(b) Buyer does hereby accept all of the right, title and interest of
Seller in, to and under the Purchased Assets and Buyer assumes and agrees to
pay, perform and discharge promptly and fully when due any and all of the
Assumed Liabilities and to perform all of the obligations of Seller to be
performed under any contracts, agreements or understandings included in the
Purchased Assets.
2. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. It shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to
conflict of laws. Any action, suit, or proceeding arising out of, based on,
or in connection with this Agreement or the transactions contemplated hereby
may be brought in Orange County, California and each party covenants and
agrees not to assert, by way of motion, as a defense, or otherwise, in any
such action, suit, or proceeding, any claim that it or he is not subject
personally to the jurisdiction of such court, that its or his property is
exempt or immune from attachment or execution, that the action, suit, or
proceeding is brought in an inconvenient forum, that the venue of the action,
suit, or proceeding is improper, or that this Agreement or the subject matter
hereof may not be enforced in or by such court.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
[DataLogic, International, Inc.][IPN Communications, Inc.]
_________________________
By:
Huron Holdings, Inc.
_________________________
By:
