ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made this 1st day of
October, 1997 by and between CONVERGENT COMMUNICATIONS SERVICES, INC., a
Colorado corporation ("CCSI") whose address is 00 Xxxxxxxxx Xxxxx Xxxx, Xxxxx
000, Xxxxxxxxx, Xxxxxxxx 00000, and BIG PLANET, INC., an Oregon corporation
("BPI"), whose address is 000 X.X. Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxx 00000
(hereinafter collectively referred to as "the parties").
RECITALS
A. CCSI is desirous of buying BPI's Assets and BPI is desirous of selling
BPI's Assets to CCSI.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, both parties agree as follows:
1. IDENTIFICATION AND TRANSFER OF ASSETS.
1.1 IDENTIFICATION OF ASSETS TO BE TRANSFERRED TO CCSI. The assets
described in EXHIBIT 1.1 shall collectively constitute the "Identified Assets."
1.2 ASSUMPTION OF CERTAIN LIABILITIES. Except for those trade
liabilities set forth on EXHIBIT 1.2 (the "Assumed Liabilities"), which are
hereby expressly assumed by CCSI, CCSI shall assume no other liabilities and
obligations relating to the Identified Assets. BPI agrees to hold CCSI harmless
from any other liabilities or obligations incurred by BPI, or accruing with
respect to the Identified Assets, and all other assets of BPI, with respect to
any period prior to and including the Closing Date and from liabilities or
obligations with respect to all other assets of BPI with respect to any period
after the Closing Date.
1.3 TRANSFER OF IDENTIFIED ASSETS. BPI shall take all actions
reasonably requested by CCSI to transfer the Identified Assets to CCSI
including, but not limited to, the execution of a xxxx of sale and assignment in
the form attached hereto as EXHIBIT 1.3 ("Xxxx of Sale"), and all other bills of
sale, assignment and transfer forms, amendments, applications to governmental
agencies, licenses, and reports reasonably required by CCSI of BPI to effectuate
the transfer of the Identified Assets.
2. PURCHASE PRICE AND OFFSET.
2.1 PURCHASE PRICE. The Purchase Price shall be Two Hundred
Fifty Thousand Dollars ($250,000) paid by CCSI to BPI ("Purchase Price").
2.2 OFFSET OF SECURED NOTE. The Parties acknowledge that BPI
has executed a Senior Secured Promissory Note in the amount of $250,000 and a
Security Agreement
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granting CCSI a first priority security interest in the Collateral (as defined
therein), each dated as of September 25, 1997 (collectively the "Secured Note")
whereby CCSI has provided funding to BPI for BPI's operations. The Purchase
Price shall be paid by applying the amounts due to CCSI under the Secured Note
against the Purchase Price.
2.3 SALE OF RETAIL CUSTOMER ACCOUNTS. The parties acknowledge that
BPI is in the process of selling certain of its retail account customers to
NuSkin International, Inc. ("NuSkin"). The parties further acknowledge that all
amounts received by BPI as a result of the sale of the retail account customers
to NuSkin shall be credited to CCSI and shall become part of the Identified
Assets to be transferred and assigned to CCSI
3. CLOSING DATE DOCUMENTATION. In addition to the other documents
required hereunder, as a predicate to the closing of the transactions hereunder,
BPI shall supply CCSI with the following on or before the Closing Date.
3.1 TRANSFER DOCUMENTS. Transfer Documents, in form and substance
reasonably satisfactory to CCSI and BPI, to effect the transfer of the
Identified Assets to CCSI pursuant to the terms of this Agreement.
3.2 CONSENTS. Any and all consents, in a form and substance
reasonably satisfactory to CCSI and BPI, from any person or entity not a party
to this Agreement whose consent is necessary or desirable for the execution and
performance of this Agreement by CCSI and BPI.
3.3 COMPLIANCE CERTIFICATE. All corporate and other proceedings,
including approval by the directors and shareholders of BPI, required to be
taken by or on the part of BPI to authorize BPI to execute, deliver and carry
out this Agreement shall have been duly and properly taken. CCSI shall have
received a certificate of authorized individuals of BPI in the form of EXHIBIT
3.3, dated as of the Closing, certifying to the fulfillment of the conditions
specified in this Agreement.
4. REPRESENTATIONS OF BPI. As material representations to induce CCSI to
enter into this transaction, BPI represents to CCSI as follows:
4.1 OWNERSHIP. The Identified Assets transferred pursuant hereto
are owned by BPI, free and clear of all liens, encumbrances, agreements and
claims with or of third parties except the first priority security interest
granted to CCSI pursuant to the Secured Note.
4.2 CORPORATE STATUS AND AUTHORITY. BPI is a corporation duly
incorporated and existing in good standing under the laws of the state of its
incorporation and is fully authorized to carry on its business as it is now
being conducted and to enter into the transactions herein set forth. BPI is
duly qualified to transact business as a foreign corporation and is in good
standing in each of the jurisdictions requiring such qualification whether by
reason of the ownership or leasing of its properties or the conduct or nature of
its business. All corporate,
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director, and stockholder approvals required have been secured to the extent
required. No consents, approvals, or filings from or with any person or entity
other than those delivered to CCSI herewith are necessary for the execution,
delivery and performance by BPI of this Agreement and the transactions
contemplated hereby. BPI has all requisite power and authority to execute this
Agreement and carry out all the actions required of it herein. This Agreement
is the legal, valid and binding agreement of BPI enforceable against BPI in
accordance with its terms.
4.3 PENDING CLAIMS. BPI is not presently subject to any claim which
would materially and adversely affect the Identified Assets such as:
litigation; disclosed or undisclosed claims or liabilities; or pending
governmental investigations or complaints of any kind or description. The
Identified Assets are subject to no contracts, claims or liens other than as set
forth in EXHIBIT 4.3.
4.4 COMPLIANCE WITH OTHER INSTRUMENTS. The execution, delivery and
performance of and compliance with this Agreement, or any agreement or
instrument contemplated hereby, by BPI will not result in any violation of its
Certificate of Incorporation or Bylaws or be in material conflict with or
constitute a default in any material respect under any term of any agreement,
instrument, judgment, decree, or, to the knowledge of BPI, any order, statute,
rule or governmental regulation applicable to BPI, or result in the creation of
any lien, charge or encumbrance of any kind or nature on the Identified Assets.
4.5 UNDISCLOSED LIABILITIES. BPI does not have, with respect to its
current operation, any material and undisclosed liabilities or obligations of
any nature affecting the Identified Assets.
4.6 ENVIRONMENTAL MATTERS. To the best knowledge of BPI, BPI has
duly complied with, and the operation of its business, equipment and other
assets in the facilities owned or leased by BPI and its subsidiaries are in
compliance with the provisions of all applicable federal, state and local
environmental, health and safety laws, statutes, ordinance, rules and
regulations of any governmental or quasi governmental authority relating to (i)
error omissions, (ii) discharges to surface water or ground water, (iii) solid
or liquid waste disposal, (iv) the use, storage, generation, handling,
transport, discharge, release or disposal of toxic or hazardous substances or
waste, (v) the emission of non-ionizing electromagnetic radiation, or (vi) other
environmental, health or safety matters, including, without limitation, the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Authorization Act of 1986; the
Occupational Safety and Health Act; the Resource Conservation and Recovery Act
of 1976, as amended; the Federal Water Pollution Control Act of 1970; the Safe
Drinking Water Act of 1974; the Toxic Substances Control Act of 1976; the
Emergency Planning and Community Right to Know Act of 1986, as amended; and the
Clean Air Act, as amended (collectively "Environmental and Health Laws") or the
Federal Communications Act, as amended ("FCC Laws"). To the best knowledge of
BPI, there are no investigations, administrative proceedings, judicial actions,
orders, claims or notices which are pending, anticipated or threatened against
BPI, relating to violations of the Environmental and Health Laws and the FCC
Laws. BPI has not received a notice of, and does not know or have
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any reason to suspect, any facts which might constitute a violation of any
Environmental or Health Laws which relate to the use, ownership or occupancy of
any property or facilities used by BPI in connection with the operation of its
business or any activity of BPI's business which would result in a violation or
threaten violation of any Environmental or Health Laws and the FCC Laws.
4.7 TAX LIENS. There are no tax liens on any of the Identified
Assets. BPI has duly filed all federal, state and local tax returns and reports
(including, without limitation, returns for estimated tax), and all returns and
reports for any other governmental units or taxing authorities having
jurisdiction with respect to any taxes required to be paid by BPI, except where
extensions have been applied for and granted, and where such extensions have not
expired; all such returns and all such reports show the correct and proper
amounts due, and all taxes shown on such returns and reports and all assessments
received by BPI have been paid to the extent that such taxes or any estimates
thereon have become due. From the date of this Agreement until the Closing, BPI
shall pay all taxes as and when the same become due and payable.
4.8 LIQUIDATION. BPI has not adopted any plan of liquidation or
dissolution affecting the Identified Assets.
4.9 ACCURACY OF DOCUMENTS AND INFORMATION. The copies of all
instruments, agreements, other documents and written information set forth as,
or referenced in, Exhibits and attachments to this Agreement or specifically
required to be furnished pursuant to this Agreement to CCSI by BPI are and will
be complete and correct in all material respects. There have been no material
changes, and will be no material changes as of the Closing Date, in the
information set forth in the Exhibits and attachments between the date of the
Exhibits and attachments and the date of this Agreement. No representations or
warranties made by BPI in this Agreement, nor any document, written information,
statement, financial statement, certificate, Exhibit or attachment furnished to
CCSI pursuant to the requirements of this Agreement contains any untrue
statement of a material fact, or omits to state a material fact necessary to
make the statements or facts contained therein not misleading. There is no fact
which materially and adversely affects the Identified Assets known to BPI which
has not been expressly and fully set forth in this Agreement or the Exhibits and
attachments hereto.
4.10 DISCLOSURE. No representation or warranty whether contained in
this Agreement or in any certificates provided to CCSI pursuant to this
Agreement contains or will contain any materially untrue statement or omits, or
will omit, to state a material fact necessary to make any such statement(s) not
misleading.
4.11 ACCURACY OF REPRESENTATIONS. In the event that any of the
foregoing representations or warranties should be inaccurate as of the Closing
Date, BPI shall have thirty (30) days after written notice from CCSI in which to
cure such inaccuracy.
5. BPI'S EMPLOYEES AND CUSTOMERS. CCSI is not a successor business to
BPI nor any operation of BPI. CCSI shall not be liable for any obligations
which BPI has on any contracts including employment contracts, existing or
future workers compensation claims,
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employment discrimination claims, unfair labor practice claims, or compensation
claims except those obligations, if any, specifically identified on EXHIBIT 1.1,
EXHIBIT 1.2 or elsewhere in this Agreement and any obligations of which CCSI
hereby specifically assumes in writing. CCSI is purchasing the Identified
Assets only, and it is not taking over any employment contracts for any
employees or any obligations under agreements entered into by BPI in its own
right and CCSI shall not be liable for any sums owed to customers by BPI.
6. REPRESENTATIONS OF CCSI. As material representations to induce BPI to
enter into this transactions, CCSI represents to BPI as follows:
6.1 CORPORATE STATUS AND AUTHORITY. CCSI is a corporation duly
organized and existing in good standing under the laws of the state of its
incorporation and is fully authorized to carry on its business as it is now
being conducted and to enter into the transactions herein set forth. CCSI is
duly qualified to transact business as a foreign corporation and is in good
standing in each of the jurisdictions requiring such qualification whether by
reason of the ownership or leasing of its properties or the conduct or nature of
its business. All corporate approvals required have been secured. No consents,
approvals, or filings from or with any person or entity other than those
delivered to BPI herewith are necessary for the execution, delivery and
performance by CCSI of this Agreement and the transactions contemplated hereby.
CCSI has all requisite power and authority to execute this Agreement and carry
out all the actions required of it herein. This Agreement is the legal, valid
and binding agreement of CCSI enforceable against CCSI in accordance with its
terms.
6.2 DISCLOSURE. No representation or warranty whether contained in
this Agreement or in any certificates provided to BPI pursuant to this Agreement
contains or will contain any materially untrue statement or omits, or will omit,
to state a material fact necessary to make any such statement(s) not misleading.
6.3 CONSENTS. CCSI shall have delivered to BPI copies of all
consents from any person or entity not a party to this Agreement whose consent
is necessary or desirable for the execution and performance of this Agreement by
CCSI, prior to the Closing Date.
7. OBLIGATIONS PRIOR TO THE CLOSING DATE. The following conditions and
obligations shall be satisfactorily performed prior to the Closing Date.
7.1 NO OBSTRUCTIVE PROCEEDING. As of the Closing Date, no action or
proceeding shall have been instituted against, and no order, decree or judgment
of any court, agency, commission or governmental authority shall be subsisting
against BPI or CCSI that which renders or could render it unlawful to effect the
transactions contemplated hereunder in accordance with the terms hereof.
7.2 GOVERNMENTAL AGENCY APPROVALS. Any governmental agencies whose
approval is required prior to the consummation of the transactions contemplated
by this Agreement shall have approved such sale on the terms contemplated by
this Agreement.
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7.3 NOTICES TO CUSTOMERS. BPI, with the cooperation of CCSI and at
BPI's sole expense, shall have provided any notice(s) to its customers, if any,
required by its contracts, federal or state laws, rules or regulations, if any,
with respect to the transfer of the Identified Assets to CCSI. The content of
such notice(s) shall be approved by CCSI.
7.4 PERFORMANCE. Both parties shall have executed and delivered to
the other party this Agreement and the other documents required hereby and shall
have performed and complied in all material respects with all agreements and
conditions required by this Agreement to be performed or complied with by the
parties prior to the Closing Date.
7.5 OPINION OF COUNSEL FOR BPI. CCSI shall have been furnished with
an opinion of BPI's counsel, including an opinion of counsel with respect to the
repeal of Oregon's Bulk Sales Act, dated the date of the Closing, in
substantially the form of EXHIBIT 7.5 attached hereto.
7.6 NO ACTION TO PREVENT COMPLETION. There shall not have been
instituted and be continuing or threatened any claim, action or proceeding that
would materially adversely affect the Identified Assets, nor shall there have
been instituted and be continuing or threatened any claim, action or proceeding
by or before any court or other governmental body to restrain, prohibit or
invalidate, or to obtain damages in respect of, the transactions contemplated by
this Agreement or which might affect the rights of CCSI.
8. CONDUCT OF BUSINESS AND CERTAIN COVENANTS. Prior to the Closing Date,
BPI agrees that, with respect only to the Identified Assets, unless otherwise
specifically provided for in this Agreement or unless otherwise consented to in
writing by CCSI:
8.1 ORDINARY COURSE. BPI shall conduct its business in the ordinary
course.
8.2 CERTAIN CHANGES. BPI shall not: (i) grant any security
interest to or in connection with the Identified Assets; (ii) make or offer to
make any disposition, including any sale or transfer, of any of the Identified
Assets; (iii) make any change in any method of accounting, billing, rates, rate
structure, tariffs, payment of fees and expenses related in any way to the
Identified Assets; and, (iv) enter into any material contract, agreement, or
commitment relating to the Identified Assets.
9. CLOSING DATE. Closing will occur within ten (10) business days after
the completion of due diligence and the receipt of any and all necessary board,
shareholder, governmental or other approvals, but not later than October 17,
1997, and will take place at the offices of CCSI.
10. NOTICES. Notices required or allowed hereunder shall be deemed given
when hand delivered or when deposited in the United States mail, postage
prepaid, return receipt requested, to the parties at the following addresses:
If to CCSI: Convergent Communications Services, Inc.
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00 Xxxxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn.: Legal Department
If to BPI: Big Planet Inc.
000 X.X. Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Chief Executive Officer
or to such other addresses as may from time to time be supplied.
11. INDEMNITY.
11.1 BPI'S INDEMNIFICATION. Notwithstanding the Closing and
regardless of any investigation at any time made by or on behalf of CCSI or of
any information CCSI may have in respect thereof, BPI will indemnify, defend and
save and hold CCSI harmless from and against any costs, expenses, damages,
liabilities, losses or deficiencies, including, without limitation, reasonable
attorneys' fees and other costs and expenses incident to any suit, action or
proceeding (collectively "Losses") suffered or incurred by CCSI arising out of
or resulting from, and will pay CCSI on demand the full amount of any such
amounts which CCSI may pay or may become obligated to pay in respect of:
(a) any material inaccuracy in any representation or document
delivered under or pursuant to this Agreement or the material breach of any
warranty made by BPI in or pursuant to this Agreement;
(b) any misrepresentations in or omission from any Exhibit,
Schedule, or other attachment to this Agreement;
(c) any failure by BPI duly to perform or observe any term,
provision, covenant, or agreement in this Agreement to be performed or observed
on the part of BPI; or
(d) any action, suit, investigation, proceeding, demand,
assessment, audit, judgment and claim, including any employment-related claim
arising out of the foregoing (collectively "Claims"), even though such Claims
may not be filed or come to light until after the Closing Date.
(e) acts or omissions in connection with business activities
conducted or to be conducted by BPI, including, without limitation, the sale of
goods or provision of services prior to the Closing Date.
CCSI hereby covenants and agrees to immediately provide to BPI any and
all notifications or other correspondence it receives related to matters which
may affect this
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indemnity and hereby agrees to allow BPI to defend any and all actions affecting
this indemnity and shall not settle any action or dispute affecting this
indemnity without obtaining the prior written consent of BPI. However, failure
to provide any such notifications or other correspondence in a timely manner
will not relieve BPI of its obligation to indemnify CCSI under this Section
11.1. If CCSI becomes unsatisfied with the conduct of the defense of the
Claims, CCSI may defend against, and consent to the entry of any judgment or
enter into any settlement with respect to such Claims in any manner it may deem
to be appropriate and BPI shall reimburse CCSI promptly for the acts of
defending against such Claims and will otherwise remain responsible for any Loss
which CCSI may suffer from, arising out of, relating to or caused by such Claims
to the full extent provided in this Section.
All statements of fact contained in any written statement, certificate,
schedule or other document delivered to CCSI by or on behalf of BPI pursuant to
this Agreement shall be deemed representations and warranties by BPI hereunder.
11.2 CCSI'S INDEMNIFICATION. CCSI agrees that notwithstanding the
Closing and regardless of any investigation at any time made by or on behalf of
BPI or any information BPI may have in respect thereof, CCSI will indemnify and
save and hold BPI harmless from and against any Losses suffered or incurred by
BPI arising out of or resulting from, and will pay BPI on demand the full amount
of any such amounts which BPI may pay or may become obligated to pay in respect
of:
(a) any material inaccuracy in any representation or the breach
of any warranty made by CCSI in or pursuant to this Agreement; or
(b) any failure by CCSI duly to perform or observe any item,
provision, covenant or agreement in this Agreement to be performed or observed
on the part of CCSI, as applicable.
12. NO THIRD PARTY BENEFICIARIES. This Agreement shall be for and inure
to the benefit of CCSI and BPI and there shall be no third party beneficiaries
hereto. Specifically excluded from any beneficial status hereunder are BPI's
creditors, employees, customers and suppliers.
13. GOVERNING LAW AND FORUM. This Agreement shall be construed under the
laws of the state of Colorado (except as to the applicable bulk sales laws,
where it is agreed that to the extent the parties' ability to so designate is
restricted, the laws of the applicable state shall apply) and any action to
enforce, construe or modify this Agreement shall be brought in an appropriate
court of competent jurisdiction in Colorado.
14. BINDING NATURE. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors and
assigns. This Agreement shall not be assigned by either party without the
express written consent of the other party.
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15. PARAGRAPH HEADINGS. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
16. TIME OF THE ESSENCE. Time is of the essence of this Agreement and the
obligations of the parties hereunder.
17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties, indemnifications and agreements of CCSI and BPI provided herein
shall survive the Closing for a period of two (2) years following the Closing
Date.
18. WAIVER. The failure of either of the parties hereto to enforce any
provision of this Agreement shall not be construed to be a waiver of such
provision or of the right thereafter to enforce the same, and no waiver of any
breach shall be construed as an agreement to waive any subsequent breach of the
same or any other provisions.
19. EXPENSES. Except as expressly provided herein, each party will pay
their own expenses, including fees of their respective attorneys, accountants
and consultants in connection with this transaction.
20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
21. NO BROKERS OR AGENTS. BPI represents that it has not used the
services of any brokers or agents in the negotiation or consummation of this
Agreement such that any commissions or fees are due to any such broker or agent
based upon the transactions herein set forth. CCSI represents that it has not
used the services of any brokers or agents in the negotiation or consummation of
this Agreement such that any commissions or fees are due to any such broker or
agent based upon the transactions herein set forth. Should any such claim be
advanced by any such foregoing broker or agent, it is agreed that the
satisfaction of such claim shall be the sole responsibility of the party which
it is claimed utilized the services of such broker or agent.
22. CONFIDENTIALITY. BPI and CCSI agree to not disclose the terms and
conditions of this Agreement except (i) as may be required to fulfill
obligations hereunder; (ii) as may be required by law, regulation, custom or
judicial or administrative proceeding; or, (iii) as and to the extent such
information becomes known to the general public through no fault of either party
in tangible, demonstrable form. Both parties shall take reasonable precautions
to insure that their respective employers, employees and agents also treat such
information in a confidential manner. The obligations of confidentiality shall
survive the consummation of the transactions herein set forth.
23. TAXES. CCSI shall be responsible for and shall pay all federal, state
and municipal taxes or other charges, if any, on the sale of the Identified
Assets except income taxes payable by BPI on the Purchase Price.
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24. SEVERABILITY. It is agreed and understood that should any of the
provisions of this Agreement be determined by any court of competent
jurisdiction to be invalid or void for any reason, then the parties consent that
this Agreement shall be amended retroactive to the date of its execution to
include all terms and conditions other than those found by the court to be
invalid or void in order to give effect to the parties intent.
25. PUBLIC ANNOUNCEMENT. Each party acknowledges and agrees that either
may make a public announcement of the transactions contemplated by this
Agreement any time after the date of execution of this Agreement provided that
the other party approves the form and substance of any such public announcement
prior to its release, which approval shall not be unreasonably withheld.
26. FORCE MAJEURE. This Agreement and the obligations of the parties
hereunder shall not be impaired or invalidated and a party shall not be in
breach hereof if such party is unable to fulfill any of its obligations
hereunder or is delayed in doing so by reason of strike, labor troubles, acts of
God or any other cause beyond the reasonable control of such party.
27. ATTACHMENTS. All Exhibits and attachments to this Agreement are made
a part of this Agreement by this reference. Any information disclosed in an
Exhibit or attachment shall be deemed to be disclosed and incorporated into any
other Exhibit or attachment where such disclosure would be appropriate.
28. ADDITIONAL DOCUMENTATION. BPI shall from time to time, subsequent to
Closing, at CCSI's request and without further consideration, execute and
deliver such other instruments of conveyance, assignment and transfer and take
such other action as CCSI reasonably may require in order more effectively to
effectuate the purchase of the Identified Assets.
29. ARBITRATION. Notwithstanding anything to the contrary herein, any
dispute arising pursuant to or in any way related to this Agreement or the
transactions contemplated hereby shall be settled by arbitration at a mutually
agreed upon location in Denver, Colorado; provided, however, that nothing in
this Section shall restrict the right of any party to apply to a court of
competent jurisdiction for emergency relief pending final determination of a
claim by arbitration in accordance with this Section. All arbitration shall be
conducted in accordance with the rules and regulations of the American
Arbitration Association, in force at the time of any such dispute. Each party
shall pay its own expenses associated with such arbitration, provided that the
prevailing party in any arbitration shall be entitled to reimbursement of
reasonable attorneys' fees and expenses (including, without limitation,
arbitration expenses) relating to such arbitration. The decision of the
arbitrators, based upon written findings of fact and conclusions of law, shall
be binding upon the parties; and judgment in accordance with that decision may
be entered in any court having jurisdiction thereof. In no event shall the
arbitrators be authorized to grant any punitive, incidental or consequential
damages of any nature or kind whatsoever.
30. TERMINATION.
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30.1 This Agreement may be terminated, and the transactions
contemplated hereby abandoned (i) by the mutual consent of CCSI and BPI; (ii) by
CCSI or BPI at any time after October 31, 1997 (or such later date as shall
have been agreed to in writing by the parties) if the conditions and obligations
set forth in this Agreement shall not have been fulfilled (or waived by the
party entitled to the benefit thereof) by such date, with no further liability
on the part of any party hereto; provided, however, that no party shall be
released from liability hereunder if any such condition is not fulfilled by
reason of the breach by such party of its obligations hereunder.
30.2 Notwithstanding anything contained in the foregoing to the
contrary, if this Agreement is terminated by CCSI due to a failure of BPI to
perform the conditions precedent to the Closing hereunder, the Secured Note
shall be immediately due and payable to CCSI and CCSI shall have all rights
available to it as a secured creditor pursuant to the Secured Note.
31. ENTIRE AGREEMENT; AMENDMENT. This Agreement, together with the
Exhibits and attachments hereto, contains the entire understanding between the
parties hereto with respect to the subject matter hereof and no prior or
collateral promises or conditions in connection with or with respect to the
subject matter hereof not incorporated herein shall be binding upon the parties.
No modification, extension, renewal, rescission, termination or waiver of any of
the provisions contained herein or any future representation, promise or
condition in connection with the subject matter hereof, shall be binding upon
either of the parties hereto unless made in writing and duly executed by both
the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives on the day and year first above
written.
CONVERGENT COMMUNICATIONS SERVICES, INC.,
a Colorado corporation
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Chief Executive Officer
BIG PLANET, INC., an Oregon corporation
By: /s/ Xxxxxxx Xxxxxxxx
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Title: Chief Executive Officer
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