EXHIBIT 10.40
ASSET AND MEMBERSHIP PURCHASE AGREEMENT
---------------------------------------
ASSET AND MEMBERSHIP PURCHASE AGREEMENT (this "Agreement") is dated as
of December 28, 2001, by and between Junum Incorporated, a Delaware corporation
("Junum" or "Seller"), and Emergent Financial Group, Inc., a Delaware
corporation ("Purchaser" or "Emergent").
WITNESSETH:
-----------
WHEREAS, Seller owns 100% of the outstanding capital stock (the
"NextTech Shares") of NextTech, Inc., a Nevada corporation ("Next Tech");
WHEREAS, Next Tech's systems and business plan have been designed to
market a credit card-based credit solution to consumers (the "Next Tech
Business");
WHEREAS, Next Tech has completed licensing agreements and operating
relationships to initiate and maintain a credit card program, including
contracting with a regulated financial institution in good standing with the
FDIC or other regulatory body and which is a principal member of VISA or
MasterCard, and an agreement in principle with Net 1st Bank (the "Net 1st
Agreement");
WHEREAS, Junum's patent pending systems, in part, serve to optimize
consumer credit rating through a series of automated and other processes which
are marketed as a membership based, monthly subscription service (as such
service may be modified, amended, increased or decreased from time to time, with
Next Tech's prior written consent if such modification, amendment, increase or
decrease materially effects the Junum Memberships purchased by Purchaser,
Junum's "Credit Management Service");
WHEREAS, Junum desires to acquire new customers for its services;
WHEREAS, Purchaser desires to purchase 1,200,000 months of Junum's
Credit Management Service as such services are offered and provided as of the
date hereof (the "Junum Memberships") for the purpose of reselling such Junum
Memberships to third parties, including customers of Next Tech, in any
denomination (such as 100,000 memberships for 12 months each, or 200,000
memberships for 6 months each, or any other combination);
WHEREAS, Emergent desires to acquire Junum Memberships at a fixed,
discounted purchase price, through a prepayment for such services, and Emergent
also desires to acquire control of the facilities and contracts for marketing
credit cards through the purchase of all of the outstanding Next Tech Shares;
1
WHEREAS, the Seller desires to sell, and Purchaser desires to purchase,
the Next Tech Shares and the Junum Memberships (together, the "Assets").
NOW, THEREFORE, IT IS AGREED:
ARTICLE I
PURCHASE AND SALE OF ASSETS AND JUNUM MEMBERSHIP
------------------------------------------------
Section 1.1 SALE OF ASSETS. Subject to the terms and conditions herein
stated, Seller hereby agrees to sell, assign, transfer and deliver to Purchaser
on the Closing Date, and Purchaser agrees to purchase from Seller on the Closing
Date, all of the Assets (the "Sale"). All customer relationships arising from
the resale of the Junum Memberships by Next Tech shall be the sole and exclusive
property of Next Tech, and all information pertaining to such customer
relationships shall be the sole and exclusive property of Next Tech.
Section 1.2 PRICE. On the Closing Date, Purchasers shall pay to Sellers
a purchase price of $5,000,000 (the "Purchase Price"), payable in the form of
8,333,333 shares of the restricted common stock of Emergent Financial Group,
Inc. (the "Emergent Common Stock"). Such shares shall not be transferrable for a
period of two years from the Closing Date without the written consent of
Emergent, and shall be subject to the Repurchase Rights, as set forth in Section
1.3 below. It is agreed by all parties that the Purchase Price shall be
allocated $200,000 for the Next Tech Shares, and $4,800,000 for the Junum
Memberships. Each party agrees not to take any position on its financial
statements or tax returns that is inconsistent with this allocation, except as
may be required by law or by generally accepted accounting principals as
determined by independent certified public accountants.
Section 1.3 TERM. The term of this Agreement shall be for a period of
two years, subject to extension as set forth below (the "Term"). Emergent agrees
that it will use the purchased Junum Memberships during the Term, provided that
if Emergent has not used all of such Junum Memberships during the Term, Emergent
shall have the right to extend the Term for an additional two years. Junum
agrees that Junum will perform such services for members and customers
introduced by Emergent for the Term, and Junum will continue to provide services
for then existing members after the expiration of the Term for as long as the
member is not in default under Junum's services agreement (including, without
limitation, the payment of monthly subscription fees and service unit fees after
the expiration of the Term).
Section 1.4 EXCLUSIVITY. During the Term, Junum shall not enter into
any business relationship that will compete with the business of Next Tech in
the acquisition of new members who are residents of the United States with
respect to the sale and marketing of Junum Memberships bundled in combination in
any form with a newly issued, unsecured VISA or MasterCard.
2
Notwithstanding the foregoing, however, (1) Junum may continue to market its
secured card products and marketing program currently in operation with Sterling
Bank or any other banking relationship so long as such relationship pertains
only to secured credit cards, and (2) Junum may continue any sales or marketing
programs in conjunction with Capital One, its affiliates and/or their respective
subsidiaries for the distribution of Junum Memberships to Capital One
cardholders. In the event that Next Tech and/or Emergent have not activated at
least 25,000 memberships within six months following the date that all
agreements with third parties necessary to sell the Junum Memberships bundled
with an unsecured Next Tech credit card are executed and fully in force (the
"Launch Date"), and at least 50,000 memberships within one year following the
Launch Date, and after such one year period, not less than 50,000 active and
paying memberships continue to be maintained, then this exclusivity provision
shall be terminated.
Section 1.5 REPURCHASE RIGHTS. Emergent shall have the right to
repurchase all or any portion of the Emergent Common Stock at any time and from
time to time for a purchase price of $0.60 per share during the Term. Such right
shall be exercised by written notice to Junum, along with a cashier's check in
the amount of the purchase price. Upon tender of such notice and cashier's
check, the Emergent Common Stock so purchased shall be immediately transferred
to Emergent or cancelled, at Emergent's option. This repurchase right may be
assigned by Emergent.
Section 1.6 CHANGE OF CONSIDERATION. Junum may elect to exchange, at
its option, all or any portion of the shares of Emergent Common Stock
constituting the Purchase Price for cash in the amount of $0.60 per such share;
PROVIDED, HOWEVER, that Junum may only make this election with respect to a
maximum aggregate number of shares which would require Emergent to pay to Junum
$4.00 per month for each Junum Membership activated by Emergent or any of its
affiliates (including, without limitation, Next Tech after the Closing Date),
for so long as each such Junum Membership remains active and the customer pays
for such services, including service unit fees (fees charged for disputes and
deletions from the customer's credit reports) and monthly subscription fees. The
election hereunder shall, if at all, be accomplished by written notice to
Emergent of such election by Junum, including the number of shares of Emergent
Common Stock to be tendered to Emergent, along with a statement showing the
number of Junum Memberships activated hereunder, and the combined number of
months all such Junum Memberships have at such time been active. Junum shall
provide a detailed calculation showing that it is entitled to make such election
under the provisions of this paragraph.
Section 1.7 JUNUM MEMBERSHIPS. Notwithstanding anything to the contrary
herein, the term "Junum Memberships" shall include only the monthly subscription
fees payable by customers, and shall not include any charges for additional
services or service unit charges for disputes and deletions. Accordingly, Junum
shall not be entitled to receive payment of monthly subscription fees with
respect to the Junum Memberships purchased by Purchaser hereunder, but Junum
shall be entitled to payment of its standard charges for disputes and deletions.
As of the date hereof Junum currently charges $5.00 per item disputed per credit
reporting agency, and $15.00 for each item removed from each consumer credit
report. Upon activation of any Junum Membership, as a condition to such
3
activation, Junum must be provided with valid billing information for a credit
card and authorization to charge the service unit fees to such credit card.
Section 1.8 CLOSING. The closing of the Sale referred to in Section 1.1
(the "Closing") shall take place as of December 31, 2001 at the offices of
Purchaser. Such time and date are herein referred to as the "Closing Date." The
Emergent Common Stock shall be delivered to Seller as soon as possible on or
after the Closing Date.
ARTICLE II
REPRESENTATIONS OF SELLER
-------------------------
As of the date hereof and the Closing Date, Seller represents and
warrants, as follows:
Section 2.1 AUTHORIZATION AND VALIDITY OF AGREEMENT. Seller has the
absolute and unrestricted right, power, authority, and capacity to execute and
deliver this Agreement and the Closing Documents and to perform its obligations
under this Agreement and the Closing Documents. The execution, delivery and
performance by Seller of this Agreement and the Closing Documents are within its
power and have been duly authorized. Upon execution hereof, this Agreement and
the Closing Documents shall constitute valid and binding agreements and
obligations of Seller, enforceable against Seller in accordance with their
respective terms.
Section 2.2 CONSENTS AND APPROVALS: NO VIOLATIONS. The execution and
delivery of this Agreement by the Sellers and the consummation by the Sellers of
the sale of the Assets as contemplated herein and the other transactions
contemplated hereby (a) will not violate any statute, rule, regulation, order or
decree of any public body or authority by which any Seller is bound or by which
any of their respective properties or assets are bound, (b) will not require any
filing with, or permit, consent or approval of, or the giving of any notice to,
any United States governmental or regulatory body, agency or authority on or
prior to the Closing Date, and (c) will not result in a violation or breach of,
conflict with, constitute (with or without due notice or lapse of time or both)
a default (or give rise to any right of termination, cancellation, payment or
acceleration) under, or result in the creation of any Encumbrance upon any of
the properties or assets of any Seller under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, franchise, permit,
agreement, lease, franchise agreement or any other instrument or obligation to
which any Seller is a party, or by which they or any of their respective
properties or assets may be bound.
Section 2.3 EXISTENCE AND GOOD STANDING. Seller is a corporation duly
organized, validly existing and in good standing under the laws of its state of
incorporation and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being conducted,
and is duly qualified or licensed as a foreign corporation to conduct its
4
business, and is in good standing in each jurisdiction in which the character or
location of the property owned, leased or operated by it or the nature of the
business conducted by it makes such qualification necessary.
Section 2.4 TITLE TO PROPERTY AND ASSETS. (a) The Seller owns and has
good title, free and clear of all Encumbrances, to the Assets. There are no
liabilities, obligations, contracts, agreements or rights which are binding upon
Next Tech, and no rights in favor of any third party which provide any
ownership, profit participation, bonus or other right to compensation,
royalties, reimbursement or other remuneration from Next Tech to any third party
or to Junum, other than an agreement with Net 1st. For purposes hereof; an
"Encumbrance" means any security interest, mortgage, lien, charge, claim,
condition, equitable interest, pledge, right of first refusal, option, adverse
claim or restriction of any kind, including, but not limited to, any restriction
on the use, transfer, receipt of income or other exercise of any attributes of
ownership.
(b) The Next Tech Shares constitute all of the shares of capital stock
of Next Tech, and there are no other securities of any kind or nature whatsoever
which are presently outstanding which provide the holder thereof or any other
party the right to acquire any capital stock of Next Tech. Upon the Closing
Date, Purchaser shall acquire 100% of the ownership interest of Next Tech, free
and clear of any Encumbrances.
Section 2.5 COMPLIANCE WITH LAW. Seller is and at all times has been in
full compliance in all respects with all Legal Requirements and Orders
applicable to the Assets. Seller has received no notice of any violation of any
applicable Legal Requirement or Order. No event has occurred or circumstance
exists that (with or without notice or lapse of time or both) may constitute or
result in a violation by Seller or Next Tech of, or a failure by Seller or Next
Tech to comply with, any applicable Legal Requirement or Order. For purposes of
this Section 2.5, "Legal Requirement" or "Law" means any federal, state, local,
municipal or other administrative order, constitution, law, code, rule,
directive, ordinance, principle of common law, regulation, statute and similar
provisions having the force or effect of law, and "Order" means any award,
decision, summons, writ, injunction, judgment, order, ruling, subpoena,
citation, notice, demand letter, directive, decree or verdict entered, issued,
made, given or rendered by any court, administrative agency or other
governmental body or by any arbitrator.
Section 2.6 DISCLOSURE. As of the date hereof, all filings of Junum
with the United States Securities and Exchange Commission (the "SEC") since
November 15, 2000 are true, complete and correct, do not contain any material
misstatement of fact, and do not omit to state a material fact necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading. Junum has delivered or made available copies of all such filings
to Emergent. Junum has not failed to disclose or report any information in any
such filing which, in light of the circumstances, would be required to be
disclosed or reported under any federal or state securities laws and
regulations.
5
Section 2.7 LITIGATION. There are no (i) actions, suits or legal,
equitable, arbitrative or administrative proceedings pending, or to the
knowledge of Seller, threatened against Seller which would or could result in an
Encumbrance against the Assets which would be enforceable against Next Tech or
the Purchaser after the Closing Date, or (ii) judgements, injunctions, writs,
rulings or orders by any governmental person against any Seller which could in
any way restrict Seller's ability to consummate the transactions contemplated
herein, or which could result in any Encumbrance on the Assets which would exist
after the Closing Date.
Section 2.8 BROKER'S OR FINDER'S FEES. No agent, broker, firm or other
Person acting on behalf of Sellers is, or will be, entitled to any commission or
broker's or finder's fees from the Purchaser in connection with any of the
transactions contemplated herein.
Section 2.9 ACCURACY OF INFORMATION. None of the representations and
warranties of Junum contained herein or in the documents furnished by Junum
pursuant hereto contain any material misstatement of fact, or omit to state any
material fact necessary to make the statements herein or therein in light of the
circumstances in which they were made not misleading.
ARTICLE III
REPRESENTATIONS OF PURCHASER
----------------------------
As of the date hereof and the Closing Date, Purchaser represents and
warrants as follows:
Section 3.1 COMMON STOCK. Upon the execution and delivery of this
Agreement, and the issuance of the shares of Emergent Common Stock which
constitute the Purchase Price, such shares shall be duly authorized, validly
issued, fully paid and nonassessable.
Section 3.2 AUTHORIZATION AND VALIDITY OF AGREEMENT. Purchaser has full
power and authority (corporate or otherwise) to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Purchaser and, assuming the due execution of this Agreement by
Seller, is a valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms, except to the extent that its
enforceability may be subject to applicable bankruptcy, insolvency,
reorganization and similar laws affecting the enforcement of creditors' rights
generally and to general equitable principles.
Section 3.3 CONSENTS AND APPROVALS: NO VIOLATIONS. The execution and
delivery of this Agreement by Purchaser and the consummation by Purchaser of the
purchase of the Assets as contemplated herein and the other transactions
6
contemplated hereby (a) will not violate the provisions of the Certificate of
Incorporation or Bylaws of Purchaser, (b) will not violate any statute, rule,
regulation, order or decree of any public body or authority by which Purchaser
is bound or by which any of their respective properties or assets are bound, (c)
will not require any filing with, or permit, consent or approval of; or the
giving of any notice to, any United States governmental or regulatory body,
agency or authority on or prior to the Closing Date, and (d) will not result in
a violation or breach of, conflict with, constitute (with or without due notice
or lapse of time or both) a default (or give rise to any right of termination,
cancellation, payment or acceleration) under, or result in the creation of any
Encumbrance upon any of the properties or assets of the Purchaser under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, franchise, permit, agreement, lease, franchise agreement or any other
instrument or obligation to which Purchaser is a party, or by which they or any
of its properties or assets may be bound.
Section 3.4 EXISTENCE AND GOOD STANDING. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted. Purchaser is duly qualified or licensed as a foreign corporation to
conduct its business, and is in good standing in each jurisdiction in which the
character or location of the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification necessary,
except where the failure to be so duly qualified or licensed would not have a
Material Adverse Effect. The term "Material Adverse Effect" means any
circumstance, change in or effect on Purchaser that is materially adverse to the
business, operations, properties, financial condition or results of operations
of Purchaser, taken as a whole.
Section 3.5 DISCLOSURE. As of the date hereof, all filings of Emergent
with the SEC since June 30, 2001 are true, complete and correct, do not contain
any material misstatement of fact, and do not omit to state a material fact
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading.
Section 3.6 BROKER'S OR FINDER'S FEES. No agent, broker, firm or other
Person acting on behalf of Junum is, or will be, entitled to any commission or
broker's or finder's fees from any of the parties hereto, in connection with any
of the transactions contemplated herein, except as set forth in Section 4.4.
Section 3.7 ACCURACY OF INFORMATION. None of the representations and
warranties of Purchaser contained herein or in the documents furnished by
Purchaser pursuant hereto contain any material misstatement of fact, or omit to
state any material fact necessary to make the statements herein or therein in
light of the circumstances in which they were made not misleading.
7
ARTICLE IV
CERTAIN AGREEMENTS
------------------
Section 4.1 REASONABLE BEST EFFORTS. Each of the parties hereto agrees
to use its reasonable best efforts to take, or cause to be taken, all action to
do or cause to be done, and to assist and cooperate with the other party hereto
in doing, all things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement, including, but not limited to, (a) the obtaining
of all necessary waivers, consents and approvals from governmental or regulatory
agencies or authorities and the making of all necessary registrations and
filings and the taking of all reasonable steps as may be necessary to obtain any
approval or waiver from, or to avoid any action or proceeding by, any
governmental agency or authority, (b) the obtaining of all necessary consents,
approvals or waivers from third parties, including Net 1st and (c) the defending
of any lawsuits or any other legal proceedings, whether judicial or
administrative, challenging this Agreement or the consummation of the
transactions contemplated hereby, including, without limitation, seeking to have
any temporary restraining order entered by any court or administrative authority
vacated or reversed. In the event any such consent, approval or waiver which is
required to consummate the transactions contemplated herein, and which is
required to transfer the benefits contemplated herein, is not obtained, the
party adversely effected by the failure to obtain such consent, approval or
waiver shall have the right to rescind this agreement by tendering all
consideration and/or assets received by such party to the other party in
exchange for the consideration and/or assets paid by such party.
Section 4.2 LOCK-UP AGREEMENT.
(a) All of the Emergent Common Stock constituting the Purchase Price
shall not be transferrable for a period of 24 months following the Closing Date
without the prior written consent of Emergent; provided, however, that with the
prior written consent of Emergent, Junum shall have the right to transfer in a
private transaction in compliance with all applicable federal and state
securities laws, all or any portion of the Emergent Common Stock to any
transferee (a) who executes an agreement satisfactory to Emergent acknowledging
the lock-up and repurchase provisions contained herein, and that the Emergent
Common Stock shall be subject to Emergent's rights and claims, if any, against
Seller, and (b) who is reasonably acceptable to Emergent and not in competition
with Emergent.
(b) Each certificate representing such shares of Emergent Common Stock
shall contain a legend describing the restrictions contained in this Agreement.
Section 4.3 NO SHORT POSITIONS. Without the prior written consent of
Emergent, for a period of two years following the date hereof (the "Lock-up
Period"), Junum hereby agrees not to sell, loan, pledge, assign, transfer,
encumber, distribute, grant or otherwise dispose of; directly or indirectly,
8
or offer, contract or otherwise agree to do any of the foregoing, any rights
with respect to (a) any shares of the common stock (the "Common Stock") of
Emergent, (b) any options or warrants to purchase any shares of Common Stock or
any securities convertible into, or exchangeable for, shares of Common Stock, or
(c) any securities convertible into or exchangeable for shares of Common Stock
(collectively, the "Securities"), in each case now owned or hereafter acquired
directly or indirectly by Junum or with respect to which Junum has or hereafter
acquires the power of disposition (collectively a "Disposition"). The foregoing
restriction is expressly agreed to preclude the Junum from engaging during the
Lock-up Period in any hedging or other transaction which is designed to, or
could reasonably expected to lead to or result in a Disposition of the
Securities, even if such Securities would be disposed of by someone other than
Junum.
Section 4.4 FINDER'S FEE. In consideration for introducing Purchaser
and Seller and assisting in the closing of the transactions contemplated herein,
Purchaser shall pay to Palisades Holdings, LLC, or its assignees, a fee equal to
a number of shares of Common Stock of Emergent equal to (i) the sum of $500,000,
divided by the lowest closing price of such Common Stock as reported for the ten
trading days immediately preceding the issuance of such shares of Common Stock.
Such shares shall be registered for resale within fifteen calendar days
following the Closing Date. Seller has no obligations regarding this fee payable
to Palisades Holdings, LLC or the obligations of Emergent with respect to
registering the Common Stock constituting such fee.
Section 4.5 ADDITIONAL MEMBERSHIPS. Purchaser shall have the right, at
any time and from time to time on or prior to December 31, 2003, to purchase
additional Junum Memberships for total consideration of $4.00 per Junum
Membership per month of active service, payable in cash to Junum, plus payment
in full of all service unit fees for disputes and deletions.
ARTICLE V
SURVIVAL OF REPRESENTATIONS: INDEMNIFICATION
--------------------------------------------
Section 5.1 SURVIVAL OF REPRESENTATIONS. The representations and
warranties set forth in this Agreement shall survive for two years after the
Closing Date.
Section 5.2 INDEMNITIES. (a) Seller hereby agrees to indemnify and hold
harmless Purchaser from and against any and all damages, claims, losses or
expenses (including reasonable attorneys' fees and expenses) ("Damages")
actually suffered or paid by Purchaser and/or its Subsidiaries as a result of
the breach of any representation or warranty made by such Seller in this
Agreement. To the extent that Seller's undertakings set forth in this Section
5.2(a) may be unenforceable, Seller shall contribute the maximum amount that
they are permitted to contribute under applicable law to the payment and
satisfaction of all Damages incurred by the parties entitled to indemnification
hereunder.
9
(b) Purchaser hereby agree to indemnify and hold harmless Seller
against Damages actually suffered or paid by Seller as a result of the breach of
any representation or warranty made by the Purchaser in this Agreement. To the
extent that the Purchaser's undertakings set forth in this Section 5.2(b) may be
unenforceable, the Purchaser shall contribute the maximum amount that they are
permitted to contribute under applicable law to the payment and satisfaction of
all Damages incurred by the parties entitled to indemnification hereunder.
(c) Any party seeking indemnification under this Section 5 (an
"Indemnified Party") shall give each party from whom indemnification is being
sought (each, an "Indemnifying Party") notice of any matter for which such
Indemnified Party is seeking indemnification, stating the amount of the Damages,
if known, and method of computation thereof; and containing a reference to the
provisions of this Agreement in respect of which such right of indemnification
is claimed or arises. The obligations of an Indemnifying Party under this
Section 5 with respect to Damages arising from any claims of any third party
which are subject to the indemnification provided for in this Section 5
(collectively, "Third Party Claims") shall be governed by and contingent upon
the following additional terms and conditions: if an Indemnified Party shall
receive, after the Closing Date, initial notice of any Third Party Claim, the
Indemnified Party shall give the Indemnifying Party notice of such Third Party
Claim within such time frame as is necessary to allow for a timely response and
in any event within 30 days of the receipt by the Indemnified Party of such
notice; PROVIDED, HOWEVER, that the failure to provide such timely notice shall
not release the Indemnifying Party from any of its obligations under this
Section 5 except to the extent the Indemnifying Party is materially prejudiced
by such failure. The Indemnifying Party shall be entitled to assume and control
the defense of such Third Party Claim at its expense and through counsel of its
choice if it gives notice of its intention to do so to the Indemnified Party
within 30 days of the receipt of such notice from the Indemnified Party;
PROVIDED, HOWEVER, that if there exists or is reasonably likely to exist a
conflict of interest that would make it inappropriate in the judgment of the
Indemnified Party (upon advice of counsel) for the same counsel to represent
both the Indemnified Party and the Indemnifying Party, then the Indemnified
Party shall be entitled to retain its own counsel, at the expense of the
Indemnifying Party, provided that the Indemnified Party and such counsel shall
contest such Third Party Claims in good faith. In the event the Indemnifying
Party exercises the right to undertake any such defense against any such Third
Party Claim as provided above, the Indemnified Party shall cooperate with the
Indemnifying Party in such defense and make available to the Indemnifying Party,
at the Indemnifying Party's expense, all witnesses, pertinent records, materials
and information in the Indemnified Party's possession or under the Indemnified
Party's control relating thereto as is reasonably required by the Indemnifying
Party. Similarly, in the event the Indemnified Party is, directly or indirectly,
conducting the defense against any such Third Party Claim, the Indemnifying
Party shall cooperate with the Indemnified Party in such defense and make
available to the Indemnified Party, at the Indemnifying Party's expense, all
such witnesses, records, materials and information in the Indemnifying Party's
possession or under the Indemnifying Party's control relating thereto as is
reasonably required by the Indemnified Party. The Indemnifying Party shall not,
without the written consent of the Indemnified Party, (i) settle or compromise
any Third Party Claim or consent to the entry of any judgment which does not
10
include as an unconditional term thereof the delivery by the claimant or
plaintiff to the Indemnified Party of a written release from all liability in
respect of such Third Party Claim or (ii) settle or compromise any Third Party
Claim in any manner that may adversely affect the Indemnified Party. Finally, no
Third Party Claim which is being defended in good faith by the Indemnifying
Party or which is being defended by the Indemnified Party as provided above in
this Section 5.2(c) shall be settled by the Indemnified Party without the
written consent of the Indemnifying Party.
ARTICLE VI
MISCELLANEOUS
-------------
Section 6.1 EXPENSES. The parties hereto shall pay all of their own
expenses relating to the transactions contemplated by this Agreement, including,
without limitation, the fees and expenses of their respective counsel, financial
advisors and accountants.
Section 6.2 GOVERNING LAW: CONSENT TO JURISDICTION. (a) The
interpretation and construction of this Agreement, and all matters relating
hereto, shall be governed by the laws of the State of California applicable to
contracts made and to be performed entirely within the State of California. In
the event of litigation, the prevailing party shall be entitled to reasonable
attorneys fees and costs, including prejudgment interest, costs of experts,
costs relating to any appeals or post-trial matters, and costs of enforcement
and collection.
(b) Each of the parties agrees that any legal action or proceeding with
respect to this Agreement may be brought in the Courts of the State of
California or the United States District Court for the Central District of
California, and, by execution and delivery of this Agreement, each party hereto
hereby irrevocably submits itself in respect of its property, generally and
unconditionally, to the non-exclusive jurisdiction of the aforesaid courts in
any legal action or proceeding arising out of this Agreement. Each of the
parties hereto hereby irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement brought in the
courts referred to in the preceding sentence. Each party hereto hereby consents
to process being served in any such action or proceeding by the mailing of a
copy thereof to the address set forth opposite its name below and agrees that
such service upon receipt shall constitute good and sufficient service of
process or notice thereof. Nothing in this paragraph shall affect or eliminate
any right to serve process in any other manner permitted by law.
Section 6.3 CAPTIONS. The Article and Section captions used herein are
for reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
Section 6.4 NOTICES. Any notice or other communications required or
permitted hereunder shall be sufficiently given if delivered in person or sent
by telecopy or by registered or certified mail, postage prepaid, addressed as
follows:
11
if to Junum, to it at:
0000 Xxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: President
Tel: (000) 000-0000
Fax: (000) 000-0000
and if to Purchaser, to it at:
Emergent Financial Group, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx
Attention: President
Tel: (000) 000-0000
Fax: (000) 000-0000
or such other address or number as shall be furnished in writing by any such
party, and such notice or communication shall be deemed to have been given as of
the date so delivered, sent by telecopy or mailed.
Section 6.5 PARTIES IN INTEREST. This Agreement may not be transferred,
assigned, pledged or hypothecated by any party hereto, other than by operation
of law. This Agreement shall 1 binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
Section 6.6 WAIVER AND COURSE OF DEALING. No course of dealing or any
delay or failure to exercise any right hereunder on the part of any party
thereto shall operate as a waiver of such right or otherwise prejudice the
rights, powers or remedies of such party.
Section 6.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument. This
Agreement may be executed by facsimile, and any facsimile signature shall be
deemed an original.
Section 6.8 ENTIRE AGREEMENT. This Agreement, including the Exhibits,
Schedules and other documents referred to herein which form a part hereof,
contain the entire understanding of the parties hereto with respect to the
subject matter contained herein and therein.
Section 6.9 THIRD PARTY BENEFICIARIES. Each party hereto intends that
this Agreement shall not benefit or create any right or cause of action in or on
behalf of any Person other than the parties hereto, other than the finder set
forth in Section 4.4.
12
Section 6.10 WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, each of the parties have caused this Agreement to
be executed by their respective officers thereunto duly authorized, all as of
the day and year first above written.
SELLER PURCHASER:
JUNUM INCORPORATED, EMERGENT FINANCIAL GROUP, INC.,
a Delaware corporation a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx By:
--------------------------------- ---------------------------------
Xxxxx X. Xxxxxxx Xxxxx Xxxxxxx
President and CEO President
13
CONSENT AND RECORD OF ACTION
OF A MEETING OF THE
BOARD OF DIRECTORS OF
JUNUM INCORPORATED
DECEMBER 31, 2001
PURSUANT TO SECTION 141(F) OF THE GENERAL CORPORATION LAW OF THE STATE
OF DELAWARE WHICH PROVIDES THAT ANY ACTION PERMITTED TO BE TAKEN AT A MEETING OF
THE DIRECTORS OF A CORPORATION MAY BE TAKEN WITHOUT A MEETING IF THE DIRECTORS
SIGN AN INSTRUMENT WHICH STATES THE ACTION WAS SO TAKEN, THE DIRECTORS OF JUNUM
INCORPORATED (THE "CORPORATION") DO HEREBY ADOPT THE FOLLOWING RESOLUTION,
EFFECTIVE THE 31st DAY OF DECEMBER, 2001.
RE: APPRQVAL OF AGREEMENT WITH EMERGENT FINANCIAL GROUP, INC.
WHEREAS, THE CORPORATION DESIRES TO SELL CERTAIN OF ITS ASSETS TO
EMERGENT FINANCIAL GROUP, INC. ("EMERGENT").
RESOLVED, THAT THE OFFICERS OF THE CORPORATION ARE DULY AUTHORIZED TO
ENTER INTO AN ASSET AND MEMBERSHIP PURCHASE AGREEMENT EFFECTIVE
DECEMBER 31, 2001, FOR ITS SALE OF ALL OF THE ISSUED AND OUTSTANDING
COMMON STOCK OF ITS WHOLLY OWNED SUBSIDIARY, NEXTTECH, INC., A DELAWARE
CORPORATION, AND ITS SALE OF 1,200,000 MONTHS OF THE CORPORATION'S
CREDIT MANAGEMENT SERVICES (MEMBERSHIPS) TO EMERGENT, AND ON SUCH TERMS
AND CONDITIONS AS THE OFFICERS OF THE CORPORATION MAY DETERMINE.
THE UNDERSIGNED HEREBY CERTIFY THAT THEY ARE ALL OF THE MEMBERS OF THE
BOARD OF DIRECTORS OF JUNUM INCORPORATED, A DELAWARE CORPORATION, ENTITLED TO
VOTE ON THE FOREGOING MATTERS, AND HEREBY CONSENT AND AGREE TO THE FOREGOING
ACTIONS.
DIRECTORS:
/s/ XXXXX X. XXXXXXX
--------------------
XXXXX X. XXXXXXX
SOLE DIRECTOR
