ASSET ACQUISITION AGREEMENT
EXHIBIT
2.1
ASSET
ACQUISITION AGREEMENT
THIS ASSET PURCHASE AGREEMENT
(this “Agreement”), is entered into
as of July 1, 2009, by and between Blindspot Alert, Inc., a Nevada corporation
(“Buyer”), and WQN,
Inc., a Delaware corporation (“Seller”).
WITNESSETH
WHEREAS, Seller is the owner of
assets, intellectual property, products, services, and general intangibles
related to the software program “WebSafety” (the “Assets”).
WHEREAS, Seller desires to
sell to Buyer, and Buyer desires to acquire from the Seller, the Purchased
Assets (as defined below), all subject to the terms and conditions hereinafter
set forth; and
NOW, THEREFORE, in
consideration of the mutual covenants contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE
I
PURCHASE
AND SALE OF ASSETS
1.1 Purchased
Assets To Be Transferred. Subject to the terms and conditions
of this Agreement, at the Closing (as defined below), Seller shall sell,
transfer, convey, assign, and deliver to Buyer, and Buyer shall purchase and
accept, the Purchased Assets, free and clear of any mortgage, security interest,
pledge, lien, charge or other encumbrance (each, an “Encumbrance”). The
Seller expressly agrees that the sale of the Purchased Assets constitutes a
transfer of all of the Seller’s rights with respect to the Purchased Assets, and
that the Seller neither reserves, nor has granted, nor is aware of, any rights
to market or otherwise transfer the Purchased Assets. The “Purchased Assets” shall mean,
and consist of the name WebSafety, all source and object code versions of the
WebSafety software, the content of the website xxx.xxxxxxxxx.xxx, and any code,
modules, libraries, routines, functions, applications, databases, interfaces,
filters, and components included or related to any of the foregoing, including,
without limitation, the software identified in Schedule 1.1(a) (the “Software”), the Uniform
Resource Locator on the world wide web for WebSafety (the “URL”), and all of the rights,
claims and assets (of every kind, nature, character and description, whether
real, personal or mixed, whether tangible or intangible, whether accrued,
contingent or otherwise, and wherever situated) that relate to the Software,
including the following:
(a) Documentation. All
right, title and interest in or to any end user or design documentation,
specification, or description of the Software, including, without limitation,
the documentation identified in Schedule 1.1(a) hereto (the “Documentation”).
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(b) Intellectual Property
Rights. All right, title and interest in or to any of Seller's
(a) United States patents, patent applications, continuations,
continuations-in-part, divisions, reissues, patent disclosures, inventions
(whether or not patentable) and improvements thereto, (b) United States
trademarks, service marks, logos, trade dress and trade names or other
source-identifying designations or devices, (c) United States copyrights, works
of authorship and design rights, whether registered or unregistered, and pending
applications to register the same, (d) Internet domain names and registrations
thereof, and (e) confidential ideas, trade secrets, computer software, including
source code, know-how, works-in-progress, concepts, methods, processes,
inventions, invention disclosures, formulae, reports, data, customer lists,
mailing lists, business plans or other proprietary information relating to the
Software or the Assets (the “Intellectual Property
Rights”).
(c) Records And
Files. All records, files, invoices, copies of accounting
records, copies of business records, and other data related to the Assets,
Software, or the Contracts.
1.2 Liabilities
Not Assumed. Except as set forth on Schedule 1.3, Buyer is not
assuming, and will not assume or perform any liabilities or obligations of
Seller.
ARTICLE
II
PURCHASE
PRICE AND INVENTORY COUNT
2.1 Purchase
Price. At the Closing (as defined below), Buyer shall (a) pay
to the Seller an amount equal to __________ shares of Buyer’s unregistered and
restricted common stock, par value $0.001 USD per share (the “Common
Stock”) (such amount as it may be increased or decreased
pursuant to the terms hereof, being, the “Purchase Price”).
ARTICLE
III
CLOSING
3.1 Closing
Date. The closing (“Closing”) of the transactions
contemplated hereby shall occur on June __, 2009 (the “Closing Date”).
3.2 Deliveries
by Seller. At the Closing, Seller shall deliver the following
to Buyer:
A. This
fully executed Asset Purchase Agreement;
B. A
fully executed Xxxx of Sale in the form of Exhibit
A;
C. Fully
executed third party consents and/or approvals, as may be necessary;
and
D. Title
to and possession of the Purchased Assets.
3.3 Deliveries
by Buyer. At the Closing, Buyer shall deliver the following to
Seller:
A. The
Purchase Price, constituting a certificate representing the shares of common
stock in the Buyer described in Section 2.1; and
B. Such
other agreements, documents, certificates and instruments as Buyer may
reasonably request as being necessary in order to effectuate the transactions
contemplated by this Agreement.
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ARTICLE
IV
CONDITIONS
TO CLOSING
The obligations of the parties to
effect the transactions contemplated hereby are subject to the satisfaction at
or prior to the Closing of the following conditions:
4.1 Board
Approval. Buyer shall have obtained all board of
director approval necessary to consummate the transactions contemplated by this
Agreement.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF SELLER
5.1 Representations
and Warranties of Seller. As of the Closing Date, Seller
represents and warrants to Buyer as follows: (a) Seller is duly
organized, validly existing and (if applicable) in good standing under the laws
of its jurisdiction of organization and Seller has all requisite corporate power
and authority to own and operate the Purchased Assets, to carry on its business
as now conducted and to enter into this Agreement and any other agreement to
which it is a party; (b) this Agreement is, and the other agreements when
executed and delivered will be, the legal, valid and binding obligations of
Seller, each enforceable against Seller in accordance with their respective
terms, except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors’ rights and by equitable principles; (c)
Seller has taken all action and obtained all consents necessary to authorize the
execution, delivery and performance of this Agreement; (d) Seller has good and
marketable title to the Purchased Assets, free and clear of all liens, claims,
and encumbrances of any kind; (e) the execution and performance of this
Agreement and the other agreements to which it is a party do not conflict with,
or constitute a default under, any agreement to which Seller is party or by
which Seller is bound; (f) except as disclosed to Buyer in writing, Seller is
not party to any litigation related to the Purchased Assets and is not, to its
knowledge, the subject of any government investigation, and Seller has no
knowledge of any pending litigation or investigation or the existence of
circumstances that reasonably could be expected to give rise to such litigation
or investigation related to the Purchased Assets; (g) Seller does not have any
obligation or liability (whether accrued, absolute, contingent, unliquidated or
otherwise, whether due or to become due and regardless of when asserted)
required to be disclosed in a balance sheet prepared in accordance with GAAP
(including the notes thereto) arising out of transactions entered into at or
prior to the Closing Date, or any action or inaction at or prior to the Closing
Date, or any state of facts existing at or prior to the Closing Date in any way
related to the Purchased Assets other than: (A) liabilities set forth
on the latest financial statements (including any notes thereto) provided to the
Buyer (the “Financial
Statements”) and (B) liabilities and obligations which have arisen after
the date of the Financial Statements in the ordinary course of business (none of
which is a liability resulting from breach of contract, breach of warranty,
tort, infringement, claim or lawsuit, unless such liability is either fully
covered by insurance (subject to normal deductibles or retentions) or is not,
individually or in the aggregate with all such other liabilities, material); (h)
all of the Purchased Assets are in good operating condition; and (i) no
representation or other statement made by Seller to Buyer in this Agreement or
any certificate or instrument delivered by Seller to Buyer in connection
herewith (taken together with all such representations, statements, certificates
and instruments delivered by Seller) contains any untrue statement of a material
fact or omits to state a material fact necessary to make any statements made to
Buyer not misleading.
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5.2 Intellectual
Property Rights.
(a) No
Intellectual Property Rights of any third party are necessary to conduct the
sale of the Purchased Assets. All of the Seller’s Intellectual
Property Rights are subsisting, valid, and enforceable.
(b) Neither
the Seller, nor the use or the intended use of the Purchased Assets, infringes,
misappropriates or otherwise violates the Intellectual Property Rights of any
third party and, to the knowledge of Seller, no Person has asserted any claim of
the foregoing or challenging the ownership, validity, or enforceability of any
Intellectual Property Rights owned, licensed, or used by the
Seller. Immediately subsequent to the Closing, any Intellectual
Property Rights owned or used by the Seller immediately prior to the execution
hereof will be owned by or available for use by such Seller on terms and
conditions identical to those under which such Seller owned or used the
Intellectual Property Rights immediately prior to the execution
hereof. The Closing hereof shall not terminate or alter (or give rise
to any right to terminate or alter) any Contract granting rights to any
Intellectual Property Rights or give rise to or allow any third party to
exercise any additional right or impose any additional restriction on Seller
under any Contract granting rights to any Intellectual Property
Rights.
(c) Seller
does not license, use, or distribute any open source software, free source
software, freeware, or any other software copied, downloaded, licensed, or
otherwise obtained pursuant to terms, notices, or other commitments or
understandings that would: (i) prevent Seller from obtaining a patent on any
Proprietary Software; or (ii) require Seller to disclose, license, distribute or
otherwise make available any Proprietary Software, without material
consideration, or the source code of any Proprietary Software, whether with or
without consideration, to any third party. "Proprietary Software" shall
mean software developed by or for Seller or for which a Seller owns or holds an
exclusive license to the copyright or any patentable invention embodied by such
software, in each case whether or not such copyright or patentable invention is
registered or perfected.
(d) Seller
owns and possesses the entire and exclusive right, title and interest in and to
any Intellectual Property Rights free and clear of any encumbrance or
restriction.
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES OF BUYER
6.1 Representations
and Warranties of Buyer. Buyer represents and warrants to
Seller as follows:
A. Organization. Buyer
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Nevada, and has all requisite corporate power and authority
to carry on its business as presently conducted, to own and operate the
properties owned by it and to enter into this Agreement and perform its
obligations hereunder.
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B. Authority
Relative to Agreement. The execution, delivery and performance
by Buyer of this Agreement have been duly and effectively authorized by all
necessary corporate action. This Agreement has been duly executed and
delivered by Buyer and is a legal, valid and binding obligation of Buyer
enforceable against it in accordance with its terms.
C. Brokers,
Finders, Etc. All
negotiations relating to this Agreement and the transactions contemplated hereby
and thereby have been carried on without the intervention of any person acting
on behalf of Buyer in such manner as to give rise to any valid claim against
Seller for any brokerage of finder’s commission, fee or similar
compensation.
ARTICLE
VII
COVENANTS
OF SELLER
7.1 Use of
Names. Seller covenants that as of the Closing Date, Seller
shall abandon and cease use of the name “WebSafety.” Additionally,
Seller covenants to perform such actions and execute such documents as shall be
required or requested to immediately transfer the URL to Buyer after
Closing.
7.2 Confidentiality,
Non-Compete and Non-Solicitation. The Seller, each principal
of Seller, and any Affiliate of Seller (individually, each a “Security Holder”) acknowledges
that it has or may have access to Confidential Information (as defined) and that
such Confidential Information does and will constitute valuable, special and
unique property of Buyer from and after the Closing Date. The Seller
and each Security Holder agrees that (a) for a period of three (3) years after
the Closing Date, in the case of the Seller, and (b) for a period of the later
of (i) three (3) years after the Closing Date or (ii) two (2) years after the
last day of employment with the Buyer, in the case of the Security Holders,
neither it nor any of its affiliates, will, directly or indirectly (i) own,
manage, operate, control or participate in the ownership, management, operation
or control of any business, whether in corporate, proprietorship or partnership
form or otherwise, engaged in the design, manufacturing or marketing of products
that are competitive with the Assets or that otherwise competes with Buyer, (ii)
solicit, influence or attempt to influence any employee, customer, supplier,
vendor or referral source of Buyer to terminate his or her employment or other
contractual relationship with Buyer for any reason or (iii) disclose, reveal,
divulge or communicate to any person other than authorized officers, directors,
partners, and employees of Buyer, or use or otherwise exploit for its own
benefit or for the benefit of anyone other than Buyer, any Confidential
Information. Neither the Seller nor any Security Holder shall have
any obligation to keep confidential any Confidential Information if and to the
extent disclosure thereof is specifically required by law; provided, however,
that in the event disclosure is required by applicable law, such person shall,
to the extent reasonably possible, provide Buyer with prompt notice of such
requirement prior to making any disclosure so that Buyer may seek an appropriate
protective order. After the Closing, the parties to this Agreement
agree that they will not publicly disparage Buyer, its business or any activity
related thereto. For purposes of this Section 7.2, “Confidential Information”
shall mean any confidential information with respect to the Assets, including,
without limitation, methods of operation and manufacture, referral sources,
customers and customer lists, terms of the Seller’s relationships with its
senior fellow, products or services, proposed products or services, former
products or services, proposed, pending or completed acquisitions of any Seller,
division, product line or other business unit, prices, fees, costs, plans,
designs, technology, inventions, trade secrets, know-how, software, marketing
methods, policies, plans, personnel, suppliers, competitors, markets or other
specialized information or proprietary matters. The term
“Confidential Information” does not include, and there shall be no obligation
hereunder with respect to, information that (a) is generally available to the
public on the date of this Agreement, or (b) becomes generally available to the
public other than as a result of a disclosure by the Seller, the Seller
Representative or a Security Holder not otherwise permissible thereunder, or (c)
the Seller, the Seller Representative or a Security Holder learns from other
sources where such sources have not violated their confidentiality obligation to
Buyer. The parties hereto specifically acknowledge and agree that the
remedy at law for any breach of the foregoing will be inadequate and that Buyer,
in addition to any other relief available to it, shall be entitled to temporary
and permanent injunctive relief without the necessity of proving actual damage
or posting any bond whatsoever. In the event that the provisions of
this Section 7.2 should ever be deemed to exceed the limitation provided by
applicable law, then the parties hereto agree that such provisions shall be
reformed to set forth the maximum limitations permitted.
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7.3 Conduct
of Assets. Prior to the Closing Date, except as otherwise
expressly contemplated by this Agreement, Seller shall maintain the Purchased
Assets in good working order. Seller shall preserve the goodwill and
reputation of the Assets. Without limiting the generality of the
foregoing and subject thereto, prior to the Closing Date or the termination of
this Agreement, Seller shall not, without the written consent of
Buyer:
A. sell,
lease, license or dispose of any of its assets or properties, that could impact
the value of the Purchased Assets; or
B. mortgage,
pledge or otherwise encumber any of the Purchased Assets or subject any such
Purchased Assets to any lien or encumbrance.
ARTICLE
VIII
NON-SOLICITATION
8.1 Seller
and any Affiliate of Seller hereby agree that they will not contact any Customer
(as defined below) for purposes of soliciting the sale of any products or
services competing in any manner with the Assets for a period of two
(2) years following the date hereof. “Customer” means any
individual, business, corporation, organization, group, entity or other person
who has utilized or will utilize within the next three years any of the
Intellectual Property Rights associated with the Purchased Assets.
ARTICLE
IX
INDEMNIFICATION
9.1 Survival
of Representations and Warranties.
(a) The
representations and warranties of the Seller and Buyer contained in this
Agreement, any agreement or any other certificate or other document delivered in
connection herewith or therewith shall survive for a period of twelve (12)
months after Closing. Any claim for indemnification with respect to
any of such matters which is not asserted by notice given as herein provided
relating thereto within such specified period of survival may not be pursued and
is hereby irrevocably waived after such time. Any claim for an
Indemnifiable Loss asserted within such period of survival as herein provided
will be timely made for purposes hereof.
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(b) Unless
a specified period is set forth in this Agreement (in which event such specified
period will control), the covenants in this Agreement will survive the Closing
and remain in effect indefinitely.
9.2 Limitations
on Liability.
(a) For
purposes of this Agreement, (i) “Indemnity Payment” means any
amount of Indemnifiable Losses required to be paid pursuant to this Agreement,
(ii) “Indemnitee” means
any person entitled to indemnification under this Agreement, (iii) “Indemnifying Party” means any
person required to provide indemnification under this Agreement, (iv) “Indemnifiable Losses” means
any and all damages, losses, liabilities, obligations, costs and expenses, and
any and all claims, demands or suits (by any person, including without
limitation any governmental entity), including without limitation the costs and
expenses of any and all actions, suits, proceedings, demands, assessments,
judgments, settlements and compromises relating thereto and including reasonable
attorneys’ fees and expenses in connection therewith, and (v) “Third Party Claim” means any
claim, action or proceeding made or brought by any person who or which is not a
party to this Agreement or an affiliate of a party to this
Agreement.
(b) With
respect to Buyer’s Indemnifiable Losses relating to, or incurred as a result of,
(i) a breach of the representations and warranties of the Seller set forth in
Sections 5.1(a), 5.1(b), 5.1(c), 5.1(d), and 5.2, the maximum amount for which
Buyer shall be indemnified pursuant to the terms of this Article IX shall be the
Purchase Price. The maximum amount that Buyer shall be indemnified
hereunder for Indemnifiable Losses arising out of or related to a claim for
indemnification pursuant to Section 9.3(a)(i) for a breach of any other
representation in Article V shall be $(stock or cash)?
(c) Buyer
may not seek payment for its Indemnifiable Losses pursuant to claims for
indemnification under Section 9.3(a)(i) unless and until such losses have
exceeded $25,000. Upon the occurrence of such Indemnifiable Losses
exceeding $25,000, Buyer is entitled to seek payment directly from the Seller as
provided herein, for the entire amount of such excess.
(d) The
parties will, to the extent permitted by law, treat any payment or receipt of
Indemnifiable Losses or indemnification under this Article IX as an adjustment
to the Purchase Price on all Tax Returns.
(e) The
amount of any Indemnifiable Losses or Indemnity Payments payable pursuant to
this Article IX will be net of any insurance proceeds actually received by the
Indemnitee in connection with the circumstances giving rise to the claim but
less the amount of any increase in the premiums for the insurance policy or
policies under which the payment of insurance proceeds was made and which is
attributable to the payment of such Indemnifiable Losses or Indemnity
Payments.
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(f) Notwithstanding
anything contained herein to the contrary, Seller shall be entitled to satisfy
any Indemnity Payment owed by it arising out of an Indemnifiable Loss pursuant
to this Article IX by delivering to Buyer an amount of Buyer’s Common Stock
owned by Selleer equal to such Indemnity Payment. For purposes of
this Section 9.2(f), the computation of a share of Common Stock shall be
calculated as the greater of (x) $0.25 per share or (y) the average, for the
five trading days immediately preceding the date of the Indemnity Payment, of
the daily mean of (a) the highest bid price and (b) the highest ask price of the
Common Stock.
9.3 Indemnification.
(a) Subject
to Sections 9.1 and 9.2, the Seller and each Security Holder, jointly and
severally, agrees to indemnify, defend and hold harmless Buyer and its
directors, officers, partners, employees, agents and representatives from and
against any and all Indemnifiable Losses actually suffered or incurred to the
extent relating to, resulting from or arising out of:
(i) any
breach of representation or warranty of the Seller in Article V of this
Agreement or under any agreement, certificate or other document delivered
pursuant hereto;
(ii) any
breach or nonfulfillment of any agreement or covenant of the Seller under the
terms of this Agreement or any other agreement delivered pursuant
hereto;
(iii) the
ownership, operation, maintenance or utilization of the Purchased Assets or the
Assets prior to the Closing Date; and
(iv) the
payment and performance of any Excluded Liabilities.
(b) Buyer
agrees to indemnify, defend and hold harmless the Seller and its directors,
officers, partners, employees, agents or representatives from and against any
and all Indemnifiable Losses to the extent relating to, resulting from or
arising out of any breach of representation or warranty of Buyer under Article
VI this Agreement or under any agreement, certificate or other document
delivered pursuant hereto.
9.4 Defense
of Claims.
(a) If
any Indemnitee receives notice of assertion or commencement of any Third Party
Claim against such Indemnitee with respect to which an Indemnifying Party is
obligated to provide indemnification under this Agreement, the Indemnitee will
give such Indemnifying Party reasonably prompt written notice thereof, but in
any event not later than thirty (30) calendar days after receipt of such notice
of such Third Party Claim. Such notice will describe the Third Party
Claim in reasonable detail, will include copies of all material written evidence
thereof and will indicate the estimated amount, if reasonably practicable, of
the Indemnifiable Loss that has been or may be sustained by the
Indemnitee. The Indemnifying Party will have the right to participate
in, or, by giving written notice to the Indemnitee, to assume, the defense of
any Third Party Claim at such Indemnifying Party’s own expense and by such
Indemnifying Party’s own counsel (reasonably satisfactory to the Indemnitee),
and the Indemnitee will cooperate in good faith in such
defense.
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(b) If,
within ten (10) calendar days after giving notice of a Third Party Claim to an
Indemnifying Party pursuant to Section 9.4(a), an Indemnitee receives written
notice from the Indemnifying Party that the Indemnifying Party has elected to
assume the defense of such Third Party Claim as provided in the last sentence of
Section 9.4(a), the Indemnifying Party will not be liable for any legal expenses
subsequently incurred by the Indemnitee in connection with the defense thereof;
provided, however, that if the Indemnifying Party fails to take reasonable steps
necessary to defend diligently such Third Party Claim within ten (10) calendar
days after receiving written notice from the Indemnitee that the Indemnitee
believes the Indemnifying Party has failed to take such steps or if the
Indemnifying Party has not undertaken fully to indemnify the Indemnitee in
respect of all Indemnifiable Losses relating to the matter, the Indemnitee may
assume its own defense, and the Indemnifying Party will be liable for all
reasonable costs or expenses paid or incurred in connection
therewith. Without the prior written consent of the Indemnitee, the
Indemnifying Party will not enter into any settlement of any Third Party Claim
which would lead to liability or create any financial or other obligation on the
part of the Indemnitee for which the Indemnitee is not entitled to
indemnification hereunder. If a firm offer is made to settle a Third
Party Claim without leading to liability or the creation of a financial or other
obligation on the part of the Indemnitee for which the Indemnitee is not
entitled to indemnification hereunder and the Indemnifying Party desires to
accept and agree to such offer, the Indemnifying Party will give written notice
to the Indemnitee to that effect. If the Indemnitee fails to consent
to such firm offer within ten (10) calendar days after its receipt of such
notice, the Indemnitee may continue to contest or defend such Third Party Claim
and, in such event, the maximum liability of the Indemnifying Party as to such
Third Party Claim will not exceed the amount of such settlement offer, plus
costs and expenses paid or incurred by the Indemnitee through the end of such
ten calendar day period.
(c) A
failure to give timely notice or to include any specified information in any
notice as provided in Sections 9.4(a) or 9.4(b) will not affect the rights or
obligations of any party hereunder except and only to the extent that, as a
result of such failure, any party which was entitled to receive such notice was
deprived of its right to recover any payment under its applicable insurance
coverage or was otherwise damaged as a result of such failure.
(d) The
Indemnifying Party will have a period of thirty (30) calendar days within which
to respond in writing to any claim by an Indemnitee on account of an
Indemnifiable Loss which does not result from a Third Party Claim (a “Direct Claim”). If
the Indemnifying Party does not so respond within such thirty (30) calendar day
period, the Indemnifying Party will be deemed to have rejected such claim, in
which event the Indemnitee will be free to pursue such remedies as may be
available to the Indemnitee on the terms and subject to the provisions of this
Article IX.
ARTICLE
X
EMPLOYMENT
MATTERS
After the
Closing, Buyer may, in its sole discretion, offer to employ former employees of
the Seller, on terms that are mutually agreeable to Buyer and such
employees.
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ARTICLE
XI
MISCELLANEOUS
11.1 Notices. Any
notice, request, instruction, correspondence or other document to be given
hereunder by either party to the other (herein collectively called “Notice”) shall be in writing
and delivered in person or by courier service requiring acknowledgment of
receipt of delivery or mailed by certified mail, postage prepaid and return
receipt requested, or by telecopier, as follows:
If to Seller, addressed
to:
WQN, Inc.
Attn: B. Xxxxxxx Xxxxx
00000
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 000000
Facsimile: (000)
000-0000
If to Buyer, addressed to:
Attn: Rowland W. Day
II
0 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile: (000)
000-0000
Notice
given by personal delivery, courier service or mail shall be effective upon
actual receipt. Notice given by telecopier shall be confirmed by
appropriate answer back and shall be effective upon actual receipt if received
during the recipient’s normal business hours, or at the beginning of the
recipient’s next business day after receipt if not received during the
recipient’s normal business hours. All Notices by telecopier shall be
confirmed promptly after transmission in writing by certified mail or personal
delivery. Any party may change any address to which Notice is to be
given to it by giving Notice as provided above of such change of
address.
11.2 Further
Assurances. After the Closing, Seller shall execute, deliver
and acknowledge all such further instruments of transfer and conveyance, obtain
such other releases and do and perform all such other acts and things as Buyer
may reasonably require to vest more effectively in Buyer, and to put Buyer in
possession of, the Assets, free and clear of any liens, claims, charges or
encumbrances.
11.3 Fees and
Expenses. Each party hereto shall bear and pay all costs and
expenses (including, without limitation, finder’s or broker’s fees or
commissions) incurred by it in connection with the transactions contemplated by
this Agreement.
11.4 Complete
Agreement. This Agreement constitutes the entire agreement of
the parties relating to the transactions contemplated by this Agreement and
supersedes all prior contracts or agreements with respect to those matters,
whether oral or written.
11.5 Assignment. This
Agreement and any rights or duties hereunder shall not be assigned by any party
hereto without the consent of the other party hereto.
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11.6 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed to be an original, and all of such counterparts together shall constitute
but one and the same instrument. This Agreement shall be effective
upon receipt of each party of a duly executed facsimile hereof. For
purposes of this Agreement, facsimile, scanned, or digitally transmitted
signatures shall be deemed to be original signatures. In addition, if
any of the parties sign facsimile or scanned copies of this Agreement, such
copies shall be deemed originals.
11.7 Governing
Law. The provisions of this Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada (excluding any
conflicts of law or other rule or principle that might refer to the laws of
another jurisdiction).
11.8 Arbitration. Any
controversy, dispute or claim of any nature whatsoever arising out of, in
connection with or in relation to this Agreement, or otherwise involving the
parties hereto, including the issue of arbitrability of any such disputes, will
be resolved by binding arbitration before a retired judge at JAMS in Santa Ana,
California. The prevailing party shall be awarded its arbitrator,
expert and attorney fees, costs and expenses. Any interim or final
award of the arbitrator may be entered in any court of competent
jurisdiction.
IN WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be executed by its authorized representative
on its behalf as of the date first above written.
|
BUYER:
|
||||
|
WQN,
INC.
|
||||
|
By:
|
By:
|
|||
|
Rowland
W. Day II,
|
||||
|
Chief
Executive Officer
|
Chief
Executive Officer
|
|||
- 11
-
EXHIBIT
A
Form
of Xxxx of Sale
Attached.
- 12
-
EXHIBIT
B
Form
of Employment Agreement
- 13
-
