ASSET PURCHASE AGREEMENT EXHIBIT 2.1
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THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into on the
date and between the parties set forth immediately below:
DATE: February 4, 2000
PARTIES: FULLNET COMMUNICATIONS, INC., a corporation organized under the
laws of Oklahoma with its principal office located at 000 Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxx Xxxx, Xxxxxxxx 00000 (the "Buyer");
XXXXX XXXXXX, dba FullNet of Bartlesville, a sole proprietorship
with its principal office located at Xx. 0 Xxx 000, Xxxxxxxxx,
Xxxxxxxx 00000, and a mailing address of X.X. Xxx 0000,
Xxxxxxxxxxxx, Xxxxxxxx 00000 ("Seller").
RECITALS
WHEREAS, Seller is an Internet service provider ("ISP");
WHEREAS, Seller desires to sell, assign, transfer and deliver to Buyer,
and Buyer desires to purchase, the assets comprising Seller's ISP business (the
"Business") on the terms and subject to the conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements, the receipt and sufficiency of which are
hereby acknowledged, and upon the terms and subject to the conditions
hereinafter set forth, the parties hereby agree as follows:
ARTICLE I
SALE OF BUSINESS
1.1 Purchase and Sale of Assets. Subject to and upon the terms and
conditions contained herein, Seller shall sell, assign, transfer and deliver to
Buyer and Buyer shall purchase, accept and acquire from Seller, on the Closing
Date, all of the right, title and interest of the Seller in and to the following
assets of the Seller used in or incidental to the Seller's Business, free and
clear of all liens, agreements, restrictions, security interests, pledges,
charges, claims and other encumbrances of any nature (hereinafter collectively
referred to as the "Assets"):
1.1.1 Three hyper DSP modem cards which are described as follow:
(i) DSP NIC:11X9BA57U1CQ69-001826-00R:B
DSP NAC:110QBAJ7WDRQ69-001914-00R:A
(ii) DSP NIC:11X9B6T8WQJU69-001826-00R:1
DSP NAC:110QB7D8X9A969-001914-00R:A
(iii) DSP NIC:41X9B6P96FG3
DSP NAC:610QB6R97H4R
1.1.2 All of Seller's ISP customer lists, prepaid assets and all
of the Seller's rights, powers and remedies under all contracts,
including ISP contracts, to which the Seller is a party or by or to
which the Seller or any of the Assets is subject or bound.
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1.1.3 All of Seller's accounts receivables outstanding or
written off as uncollectable prior to the Closing Date.
1.1.4 All of Seller's warranties, rights and claims of the
Seller under all existing warranties relating to any and all of the
Assets sold, assigned and transferred hereunder.
1.1.5 Cash in an amount equal to Seller's unearned subscriptions
at the Closing Date, attributable to prepaid subscriber accounts.
1.2 Assumption of Liabilities. On and subject to the terms and
conditions of this Agreement, the Buyer agrees to assume and become responsible
for all of the "Assumed Liabilities" (as hereinafter defined) at the Closing.
The Buyer will not assume or have any responsibility, however, with respect to
any other obligation or liability of the Seller not included within the
definition of Assumed Liabilities. For purposes of this Agreement, "Assumed
Liabilities" means (a) all liabilities of the Seller attributable to the Assets
which may arise after the Closing Date in the ordinary course of business (other
than any liability resulting from, arising out of, relating to, in the nature
of, or caused by any breach of contract, breach of warranty, tort, infringement,
violation of law, or environmental matter, including without limitation those
arising under environmental, health, and safety requirements); (b) all
obligations of the Seller under the agreements, contracts, leases, licenses, and
other arrangements referred to in the definition of Assets either (i) to furnish
goods, services, and other non-cash benefits to another party after the Closing
Date or (ii) to pay for goods, services, and other non-cash benefits that
another party will furnish to it after the Closing Date; and (c) all obligations
of Seller with Southwestern Xxxx Telephone Co. for the Frame Relay circuit
between Bartlesville and Tulsa and for the three (3) incoming digital T-1 trunk
lines, prorated as of the Closing Date with the Seller remaining obligated for
such obligations that are incurred before and as of the Closing Date and the
Buyer assuming such obligations that are incurred after the Closing Date;
PROVIDED, HOWEVER, that the Assumed Liabilities shall not include (i) any
liability of the Seller for taxes, (ii) any obligation of the Seller to
indemnify any person (including any of the Seller's stockholders) by reason of
the fact that such person was a manager, officer, employee, or agent of the
Seller or was serving at the request of any such entity as a partner, trustee,
director, officer, employee, or agent of another entity (whether such
indemnification is for judgments, damages, penalties, fines, costs, amounts paid
in settlement, losses, expenses, or otherwise and whether such indemnification
is pursuant to any statute, articles of association, operating agreement,
agreement, or otherwise), (iii) any liability of the Seller for costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby, or (iv) any liability or obligation of the Seller under
this Agreement.
1.3 Transfer and Conveyance. Seller shall execute and deliver to
Buyer at the Closing, (i) a xxxx of sale (the "Xxxx of Sale"); and (ii) the
Assignment and Assumption Agreement; in each case in substantially the forms
attached hereto as EXHIBITS "A" and "B," respectively; and (iii) all such
assignments, endorsements and instruments of transfer, if any, as shall be
necessary or appropriate to carry out the intent of this Agreement and as shall
be sufficient to vest in Buyer title to the Assets and all right, title and
interest of Seller thereto. Seller shall execute and deliver to Buyer at the
Closing the Assignment and Assumption Agreement. Seller shall prepare
appropriate forms of instructions of transfer and conveyance in conformity with
this Agreement and shall submit them to Buyer for examination twenty-four (24)
hours prior to the Closing Date. Any time and from time to time after the
Closing Date, on Buyer's request, Seller will do, execute, acknowledge, and
deliver all such further acts, deeds, assignments, transfers, and powers of
attorney as may be required in conformity with this Agreement for the adequate
assigning, transferring, granting, and confirming to Buyer of the Assets sold to
Buyer.
1.4 Assignment of Contract Rights. If any contract, license, lease,
commitment, or sales or purchase order assignable to Buyer under this Agreement
may not be assigned without the consent of the other party thereto, Seller shall
obtain, prior to Closing, the consent of the other party to the assignment.
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1.5 Accounts Receivable. After the Closing Date, Buyer shall have
the authority to collect all of Seller's receivables, outstanding or written off
as uncollectible prior to the Closing Date, being transferred to Buyer as an
Asset under this Agreement and to endorse without recourse and without
warranties of any kind the name of Seller on any checks or evidence of
indebtedness received by Buyer on account of any such pre-Closing receivables
included in the Assets. Seller will transfer and deliver to Buyer any cash or
other property that Seller may receive in respect to any receivables that are
transferred to Buyer.
1.6 Books and Records. Seller shall have the right to retain minute
books, stock transfer books, income tax returns and other corporate records of
Seller relating to the Business having exclusively to do with organization or
capitalization. All other records, files, manuals, computer tapes or discs or
other forms of electronic media and books of account of every kind and nature
shall be delivered to, and become the property of, Buyer. Each party, at its own
expense, shall have reasonable access to and the right to make copies of all
books, records, files, and documents referred to in this Agreement that are in
the possession of the other party.
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. The purchase price for the Assets shall, except
as may be adjusted as set forth in Section 2.4, be an aggregate consideration of
ONE HUNDRED SEVENTY EIGHT THOUSAND FOUR HUNDRED DOLLARS ($178,400) (the
"Purchase Price"), plus assumption of the liabilities as set forth in Section
1.2.
2.2 Payment of Purchase Price. The Purchase Price shall be payable at
Closing as follows:
2.2.1 $50,168 by Buyer's delivery to Seller of a promissory note
in the principal amount of FIFTY THOUSAND ONE HUNDRED SIXTY EIGHT
DOLLARS ($50,168), which promissory note shall be in the form attached
hereto as EXHIBIT "D" and incorporated herein by reference (the
"Note"). The Note shall bear interest at eight percent (8%) per annum
with the principal and interest thereon payable on the earlier to
occur of (x) the closing of any private equity placement of Buyer's
common stock, par value $.00001 per share ("FullNet Common Stock") in
excess of $351,000, (y) the closing of any underwritten offering of
FullNet Common Stock, or (z) one year from the Closing Date; and
2.2.2 $128,232 by Buyer's delivery to Seller of FORTY TWO
THOUSAND SEVEN HUNDRED FORTY-FOUR (42,744) shares of FullNet Common
Stock (the "Shares"), valued at a price per share of $3.00; provided,
however, that 9,864 Shares shall be subject to the Escrow Agreement
more fully described in Section 2.3. Seller acknowledges that the
Shares have not been registered under the Securities Act of 1933, as
amended (the "Act"), or any state securities laws and neither the
Shares nor any interest therein may be sold, transferred, assigned,
pledged, hypothecated or otherwise disposed of in the absence of such
registration or any exemption under the Act. Seller agrees not to
sell, transfer, assign, pledge, hypothecate, or otherwise dispose of,
whether or not for consideration, directly or indirectly, the Shares
from the Closing Date until the date that is the later of (i) six (6)
months after Buyer consummates an initial public offering of its
securities (the "Lock-up Period"), or (ii) the termination of any
permissible holding period under Rule 144 of the Act. The Shares shall
bear a restrictive legend substantially setting forth the restrictions
in the two preceding sentences. After the completion of the Lock-up
Period, if (but without any obligation to do so) the Buyer proposes to
register (including for this purpose a registration effected by the
Buyer for shareholders other than Seller) under the Act any of its
stock or other securities in connection with the public offering of
such securities solely for cash, Buyer shall give written notice to
Seller at least thirty (30) calendar days prior to the anticipated
filing date of such registration statement. Upon the written request
of Seller within twenty (20) days after mailing of such notice by
Buyer, Buyer shall use its best efforts to register under the Act all
of the Shares that Seller has requested to be registered.
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2.3 Stock Pledge and Escrow Agreement. At Closing, Seller will grant
Buyer a security interest in, and escrow with Buyer, 9,864 shares (the "Escrowed
Shares") of the Shares acquired by Seller pursuant to Section 2.2.2 for purposes
of satisfying any obligations Seller may have upon the occurrence of an
adjustment to the Purchase Price pursuant to Section 2.4 or an indemnification
obligation pursuant to Article XI. Fourteen months from the date of Closing, the
security interest and escrow will terminate for the Escrowed Shares not
otherwise foreclosed or subject to a then existing claim upon the terms and
conditions set forth in the Stock Pledge and Escrow Agreement attached hereto as
EXHIBIT "E" and incorporated by reference to be executed by Seller at Closing
(the "Escrow Agreement").
2.4 Adjustment to Purchase Price. The Purchase Price shall be
adjusted downward if gross revenues of the Business for the twelve-month period
immediately following the Closing (the "Adjustment Period"), as determined by
Buyer, do not equal or exceed 50% of the aggregate Purchase Price as set forth
in Section 2.1 (the "Adjustment Event"). Upon the occurrence of the Adjustment
Event, the Purchase Price shall be adjusted downward by an amount (the "Purchase
Price Adjustment") equal to two times the difference between $98,640 and the
actual gross revenues of the Business for the Adjustment Period. The Purchase
Price Adjustment shall be paid by Seller to Buyer within ten (10) days of
Buyer's written notice to Seller. Such notice shall include (i) a statement that
an Adjustment Event has occurred, (ii) the amount of the Purchase Price
Adjustment, and the basis for such determination, and (iii) the method by which
Buyer elects to collect the Purchase Price Adjustment, which shall be made by
(a) the transfer to Buyer of such number of Escrowed Shares as shall equal the
Purchase Price Adjustment, based on the same $3.00 per share valuation under
which such shares were originally issued to Seller; (b) payment in cash in the
amount of the Purchase Price Adjustment; (c) an offset against the amount
otherwise payable to Seller pursuant to the terms of the Note, or (d) any
combination of the foregoing. Notwithstanding the foregoing, nothing contained
herein is intended to, nor should it be construed to, preclude Buyer from
pursuing any and all other remedies provided by law or otherwise as a means of
enforcing its rights in respect of such Purchase Price Adjustment.
2.5 Failure to Pay Note in Full. If Buyer fails to pay in full the
Note (as may be adjusted pursuant to the provisions of Section 2.4 or Section
11.7 hereof) when due and payable, Buyer agrees to return the Assets to Seller
within ninety (90) days; provided, however, that Seller shall first provide
written notice to Buyer that the Note is in default and Buyer shall have thirty
(30) days from receipt of such notice to cure such default prior to being
obligated to return possession and ownership of the Assets to Seller. If Buyer
is required to return the Assets pursuant to this Section 2.5, Seller agrees
that Seller will return the consideration set forth in Section 2.2 of this
Agreement to Buyer and all related agreements entered into with respect to this
Agreement shall become void and of no effect and that the parties are to be
returned to their original position as if such related agreements were never
entered into.
2.6 Allocation of Purchase Price. The Purchase Price shall be
allocated among the Assets as set forth on IRS Form 8594 a copy of which is
attached hereto as EXHIBIT "F".
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ARTICLE III
REPRESENTATIONS OF WARRANTIES OF SELLER
Seller hereby makes the following representations and warranties to
Buyer:
3.1 Title. Seller has, and upon conveyance of the Assets to Buyer by
Seller at the Closing, Buyer will acquire and hold, good and marketable title in
all Assets, free and clear of any and all liens, agreements, restrictions,
claims, security interest, pledges, charges, equities and other encumbrances.
3.2 Compliance with Laws. Seller (i) has complied with all laws,
regulations, licensing requirements and orders applicable to its business or
personnel the breach or violation of which could have a material adverse effect
on said business, (ii) has filed with the proper authorities all statements and
reports required by the laws, regulations, licensing requirements and orders to
which it or any of its employees (because of their activities on behalf of their
employer) is subject, and (iii) possesses all necessary licenses, franchises,
permits and governmental authorizations to conduct its business in the manner in
which and in the jurisdictions and places where such business is now conducted.
3.3 Contracts. Set forth on SCHEDULE 3.3 is a listing of all of the
Seller's ISP customer accounts whether residential or commercial (which
contracts, together with all the other contracts which compose the Assets are
herein collectively referred to as the "Contracts"). Except for the Contracts
and other arrangements previously disclosed in writing by Seller to Buyer,
neither Seller nor any of the Assets is a party to or is bound or affected by
any contract, lease, arrangement or commitment, whether oral or written relating
to: (i) the employment of any person other than personnel employed at will by
Seller in the ordinary course of its business at rates of compensation and on
terms consistent with past business practice; (ii) collective bargaining with,
or any representation of any employees by, any labor union or association; (iii)
the acquisition of services, supplies, equipment or other personal property
involving more than $5,000 or which is not terminable by Seller upon not more
than 30 days' notice without obligation on the part of Seller; (iv)
distribution, agency or construction; (v) lease of real or personal property as
lessor or lessee or sublessor or sublessee; (vi) lending or advancing of funds
(other than the receivables); (vii) borrowing of funds or receipt of credit
(other than the payables); (viii) incurring any obligation or liability (except
for the payables); (ix) the sale of personal property; and (x) any matter or
transaction not in the ordinary course of the business of Seller or inconsistent
with past business practice of Seller.
3.4 Contract Defaults. Seller is not in default in any material
respect under any of the Contracts, the Contracts are legal, valid and binding
obligations of the Seller in accordance with their terms and have not been
amended, no defenses, offsets or counterclaims thereto have been asserted by any
party thereto other than Seller, and Seller has waived no substantial rights
thereunder.
3.5 Litigation. There are no actions, suits, proceedings,
investigations or grievances pending against Seller or the Assets or, threatened
against Seller or the Assets, Seller's business or any property or rights of
Seller, at law or in equity or before or by any court or federal, state
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign (each an "Agency"). Seller is not subject
to any continuing court or Agency order, writ, injunction or decree applicable
specifically to the Assets, the business operations of Seller or employees of
Seller, or in default with respect to any order, writ, injunction or decree of
any court or Agency with respect to the Assets, its business, operations or
employees.
3.6 Employee Benefits and Agreements. Seller is not a party to any
employment agreement, labor union agreement, pension, profit-sharing, or
retirement plan or agreement, that relates to any period beyond the Closing
Date, whether written or oral.
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3.7 Enforceability; No Conflicts. This Agreement constitutes, and all
other agreements by and among the parties, when executed and delivered in
accordance with the terms thereof, will constitute the legal, valid and binding
obligations of Seller, enforceable in accordance with their terms (subject, as
to the enforcement of remedies, to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights from
time to time in effect). Seller has full power, authority and legal right to
enter into this Agreement, and all other agreements by and among the parties,
and to consummate the transactions contemplated hereby and thereby. The making
and performance of this Agreement, and all other agreements by and among the
parties, and the consummation of the transactions contemplated hereby and
thereby in accordance with the terms hereof and thereof will not (i) conflict
with the certificate of incorporation or bylaws of Seller, (ii) result in any
breach or termination of, or constitute a default under, or constitute an event
which with notice or lapse of time, or both, would become a default under, or
result in the creation of any Encumbrance upon any of the Assets under, or
create any rights of termination, cancellation or acceleration in any person
under, any contract, lease, arrangement or commitment, or violate any order,
writ, injunction or decree, to which Seller is a party, by which any of the
Assets, business or operations of Seller may be bound or affected or under which
any of the Assets, business or operations of Seller receive benefits, (iii)
result in the loss or adverse modification of any material license, franchise,
permit or other authorization granted to or otherwise held by Seller or
otherwise used in connection with the operation of the Business, or (iv) result
in the violation of any provision of law applicable to Seller, the violation of
which could have a material adverse effect upon the Assets, business or
operations of Seller.
3.8 True, Correct and Complete Information. The information furnished
to Buyer by Seller in writing prior to or on the date of this Agreement is true,
correct and complete in all material respects. Such information states all
material facts required to be stated therein or with respect thereto or
necessary to make the statements therein or with respect thereto, in light of
the circumstances under which such statements are made, true, correct and
complete. This Agreement (including the Exhibits hereto) does not contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements contained herein not misleading. There is no fact known
to Seller which is not disclosed in this Agreement which materially adversely
affects the accuracy of the representations and warranties contained in this
Agreement or Seller's financial condition, results of operations, business or
prospects.
3.9 Availability of Documents. Seller has made available for
inspection by Buyer, at the offices of Seller, true, correct and complete copies
of its certificate of incorporation and bylaws and all contracts, leases,
arrangements, commitments and documents referred to herein in each case together
with all amendments and supplements thereto.
3.10 Consents. No consent, approval, authorization or order of any
court, Agency or any other person is required in order to permit Seller to
consummate the transactions contemplated by this Agreement.
3.11 Financial Condition and Result of Operations. Seller has
previously delivered to Buyer true, correct and complete copies of the balance
sheet, income statement and statement of cash flows of Seller as of and for the
dates set forth therein (the "Financial Statements"). The Financial Statements
(i) are in accordance with the books and records and accounting methods of
Seller, and (ii) present fairly the financial position and results of operations
of Seller as of the dates and for the periods indicated. Except as disclosed in
the Financial Statements, and as disclosed in this Agreement, Seller has no
liabilities or obligations of any nature or kind, known or unknown, whether
accrued, absolute, contingent or otherwise.
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3.12 Taxes. Seller has duly filed all federal, state, county, local
and other excise, franchise, property, payroll, income, capital stock, sales and
use and other tax returns which are required to be filed by it and such returns
are true, correct and complete in all material respects. Seller has paid all
taxes that have become due or have been assessed against it and all taxes,
penalties and interest that any taxing authority has proposed or asserted to be
owing. All tax liabilities to which the properties of Seller may have been
subjected have been discharged except for taxes assessed but not yet payable. To
the best of Seller's knowledge, there are no tax claims presently being asserted
against Seller and Seller knows of no basis for any such claim. Seller has not
granted any extension to any taxing authority of the limitation period during
which any tax liability may be asserted thereby.
3.13 Absence of Certain Changes or Events. Since the date of the
Financial Statements, Seller has not (i) suffered any extraordinary losses or
waived any rights of substantial value; (ii) made any change in its mode of
management or any change in its method of operation or method of accounting;
(iii) made or become obligated to make any capital expenditures other than such
expenditures or commitments not exceeding $10,000 in the aggregate; (iv)
experienced or suffered any adverse change in its business, operations or assets
(whether or not covered by insurance) condition, financial or otherwise, or
results of operations; (v) entered into any transaction, except in the ordinary
course of its business consistent with past business practice; (vi) received any
notice of any claim asserted against it by any Agency which could have a
material adverse effect on the business or financial condition of Seller; (vii)
issued any stock, bonds, or other corporate securities or declared or made any
payment or distribution to stockholders or purchased or redeemed any shares of
capital stock; (viii) cancelled any debts or claims except in the ordinary
course of business; (ix) sold, assigned, or licensed any intellectual property
rights; (x) incurred any substantial loss of value in any of the physical assets
or properties of Seller used in the Seller's business, ordinary wear and tear
excepted; or (xi) incurred or agreed to incur any material obligation outside
the ordinary course of business which has not heretofore been disclosed in
writing to Buyer.
3.14 Broker's and Finder's Fees. Seller has not made any agreement
with any person, or taken any action, which would cause any person to become
entitled to an agent's, broker's or finder's fee or commission in connection
with the transactions contemplated by this Agreement.
3.15 Receivables. Seller has previously provided Buyer a list of all
receivables showing the name of the account debtor, maker or obligor, the unpaid
balance, the age of the receivable and, if applicable, the maturity date, the
interest rate and the collateral securing the obligation. All receivables are
legal, valid and binding obligations of the obligors and Seller has no knowledge
of any fact impairing the collectibility of such receivables in accordance with
their terms. The reserves for doubtful receivables and uncollectible accounts
reflected in the Financial Statements are sufficient to provide for any losses
which may arise in connection with the collection of such receivables. Seller
has not committed or become obligated to cancel or write off any receivables or
acquired or permitted to be created any receivables except in the ordinary
course of its business consistent with past practice.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties to
Seller:
4.1 Due Organization and Qualification. Buyer, an Oklahoma
corporation, is a corporation duly organized, validly existing and in good
standing under the laws of the State of Oklahoma, and has all requisite
corporate power and authority to own or lease its properties and to carry on its
business as it is presently being operated and in the place where such
properties are owned or leased and such business is conducted.
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4.2 Corporate Power and Authority. The execution, delivery and
performance of this Agreement by Buyer, and all other agreements referred to
herein or executed in connection herewith, and the consummation by it of the
transactions contemplated hereby and thereby, have been duly authorized by all
requisite corporate action and no further corporate action or approval is
required in order to permit Buyer to consummate the transactions contemplated
hereby and thereby. This Agreement constitutes, and all other agreements by and
among the parties, when executed and delivered in accordance with the terms
thereof, will constitute, the legal, valid and binding obligations of Buyer,
enforceable in accordance with their terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights from time to time in effect). Buyer has
full power, authority and legal right to enter into this Agreement and all other
agreements by and among the parties and to consummate the transactions
contemplated hereby and thereby. The making and performance of this Agreement,
and all other agreements by and among the parties and the consummation of the
transactions contemplated hereby and thereby in accordance with the terms hereof
and thereof will not (i) conflict with the certificate of incorporation or
bylaws of Buyer, (ii) result in any breach or termination of, or constitute a
default under, or constitute an event which with notice or lapse of time, or
both, would become a default under, or result in the creation of any Encumbrance
upon any asset of Buyer under, or create any rights of termination, cancellation
or acceleration in any person under, any contract, lease, arrangement or
commitment, or violate any order, writ, injunction or decree, to which Buyer is
a party or by which Buyer or its assets, business or operations may be bound or
affected or under which Buyer or its assets, business or operations receive
benefits, (iii) result in the loss or adverse modification of any material
license, franchise, permit or other authorization granted to or otherwise held
by Buyer which is material to the business or financial condition of Buyer or
(iv) result in the violation of any provisions of law applicable to Buyer, the
violation of which could have a material adverse effect upon the business,
operations or assets of Buyer.
4.3 Consents. No consent, approval, authorization or order of any
court, Agency or any other person is required in order to permit Buyer to
consummate the transactions contemplated by this Agreement.
4.4 Litigation. There is no pending or, to the best of Buyer's
knowledge, threatened litigation in any court or any proceeding before any
Agency (i) in which it is sought to restrain, prohibit, invalidate or obtain
damages in respect of the consummation of the purchase and sale of the Assets or
the other transactions contemplated hereby, (ii) which could, if adversely
determined, result in any material adverse change in the business, operations or
assets or the condition, financial or otherwise, or results of operations of
Buyer or (iii) which could, if adversely determined, have a material adverse
effect on the right or ability of Buyer to carry on its business substantially
as now conducted.
4.5 Compliance with Laws. Buyer (i) has complied with all laws,
regulations, licensing requirements and orders applicable to its business, the
breach or violation of which could have a material adverse effect on said
business, (ii) has filed with the proper authorities all statements and reports
required by the laws, regulations, licensing requirements and order to which it
is subject and (iii) possesses all necessary licenses, franchises, permits and
governmental authorizations to conduct its business in the manner in which and
in the jurisdictions and places where such business is now conducted.
4.6 Broker's and Finder's Fees. Buyer has not made any agreement with
any person, or taken any action, which would cause any person to become entitled
to an agent's, broker's or finder's fee or commission in connection with the
transactions contemplated by this Agreement, other than pursuant to a Financial
Advisory Services Agreement dated September 17, 1999 with National Securities
Corporation, for which fees Buyer will be responsible and agrees to hold Seller
harmless therefor.
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ARTICLE V
COVENANTS OF SELLER
Seller hereby covenants and agrees with Buyer as follows:
5.1 Affirmative Covenants. Prior to the Closing Date (as hereinafter
defined), Seller will operate its Business in the usual, regular and ordinary
course of business consistent with past business practices, and will use its
best efforts to (i) preserve intact its business organization and the Assets;
(ii) maintain its properties, machinery and equipment in good operating
condition and repair; (iii) continue all existing policies of insurance (or
comparable insurance) in full force and effect up to and including the Closing
Date and will not cancel any such issuance or take (or fail to take) any action
that would enable the insurers under such policies to avoid liability for claims
arising out of any occurrence on or prior to the Closing Date without the prior
written consent of Buyer; (iv) use its best efforts to preserve its present
relationships with lending and other financial institutions, suppliers,
customers, and franchisees; and (v) maintain its books, accounts and records in
the usual, regular and ordinary manner on a basis consistently applied.
5.2 Negative Covenants. Prior to the Closing Date, Seller will
operate its Business in the usual, regular and ordinary course of business
consistent with the past business practices, and will not, without the prior
written consent of Buyer: (i) make any increase in the compensation payable or
to become payable by it to any employee or contribute or make any commitment to
contribute or represent that it will contribute any amounts to any bonus or
other employee benefit plan for employees of Seller except as required by law or
by the terms of any such plan in the ordinary course of business; (ii) make any
amendment to its certificate of incorporation, bylaws or other organizational
documents; (iii) make any material change in the character of its Business; (iv)
incur any obligation or liability (fixed or contingent) except in the ordinary
course of business; (v) discharge or satisfy any encumbrance or pay any
obligation or liability (fixed or contingent) other than in the ordinary course
of business; (vi) mortgage, pledge, transfer or otherwise dispose of or subject
to any encumbrance any of the Assets, except in the ordinary course of business;
(vii) acquire any assets or properties, except in the ordinary course of
business; (viii) cancel or compromise any material debt or claim that comprises
a part of the assets to be transferred to Buyer; (ix) waive or release any
rights of material value that comprise a part of the assets to be transferred to
Buyer; (x) transfer or grant or terminate any contract, lease, arrangement or
commitment rights under any concessions, leases, licenses, agreements, patents,
patent licenses, inventions, trademarks, trade names, service marks, trade dress
or copyrights or registrations or licenses thereof or applications therefore or
with respect to any know-how or other proprietary or trade rights; (xi) modify
or change in any material respect or terminate any Contract; (xii) undertake any
material borrowing of any nature whatsoever other than in the ordinary course of
business; (xiii) make any loans or extensions of credit, except in the ordinary
course of business; (xiv) make or become obligated to make any capital
expenditures or enter into commitments therefore exceeding $5,000; or (xv) sell,
discount or otherwise dispose of any receivables.
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5.3 Access to Properties and Records. Seller will keep Buyer advised
of all material developments relevant to the consummation of the transactions
contemplated hereby and will cooperate fully in permitting Buyer to make a full
investigation of the Business, properties, financial condition and investments
of Seller during regular business hours and upon reasonable notice and in
bringing about the consummation of the transactions contemplated hereby. Seller
will, during regular business hours and upon reasonable notice, afford to Buyer
and its representatives full access to the offices, buildings, real properties,
machinery and equipment, inventory and supplies, records, files, books of
account, tax returns, agreements and commitments, corporate record books and
personnel of Seller. Seller will furnish to Buyer all such further information
concerning the business and affairs of Seller as Buyer may reasonably request.
Seller will update by amendment or supplement any disclosure in writing from
Seller required by this Agreement to be disclosed in writing by Seller to Buyer
promptly upon any change in the information set forth in such disclosures, and
Seller hereby represents and warrants that such written disclosures, as so
amended or supplemented, shall be true, correct and complete as of the date or
dates thereof; provided, however, that the inclusion of any information in any
such amendment or supplement, not included in the original disclosure at or
prior to the date of this Agreement, shall not limit or impair any right which
Buyer might otherwise have respecting the representations or warranties of
Seller contained in this Agreement. No investigation pursuant to this Section
5.3 shall affect any representations or warranties or the conditions to the
obligations of Buyer to consummate the transactions contemplated hereby. In the
event of the termination of this Agreement, Buyer will deliver to Seller all
documents, work papers and other material (including copies thereof) obtained by
Buyer or on its behalf from Seller as a result of this Agreement or in
connection herewith, whether so obtained before or after the execution hereof
and, if the transactions contemplated hereby are not consummated, Buyer will
hold such information in strictest confidence and will not use or disclose, or
permit any other person or entity to use or disclose, such information until
such time as such information is otherwise publicly available.
5.4 Approvals of Third Parties. As soon as practicable after the date
hereof, Seller shall secure all necessary consents, approvals and clearances of
third parties that shall be required to consummate the transactions contemplated
hereby.
5.5 Notices. Seller will timely give all notices required to be given
relating to the transactions contemplated hereby.
5.6 Access to Books and Records. Seller agrees to provide Buyer, its
accountants, counsel and other representatives, during normal business hours and
upon reasonable notice, for a period of six (6) years after the Closing Date, if
not already provided, access to the books, records, income tax returns,
contracts and other underlying data and the documentation of Seller relating to
the period prior to the Closing Date and to make available to Buyer personnel of
Seller in Buyer's review thereof for the purpose of enabling them to determine
and calculate any tax liabilities in connection with the Assets. Seller agrees
that, for such six- (6) year period, it will preserve and keep intact all such
books and records.
5.7 Covenant Not to Compete and Non-Solicitation.
5.7.1 Seller covenants and agrees that he will not, at any time
during the period of two (2) years from the Closing Date, except as
specifically directed by Buyer or acting on Buyer's behalf at Buyer's
direction, (i) directly or indirectly, in or pertaining to any
geographic area in which Seller (and subsequent to the Closing Date,
the Buyer) conducts business, own, manage, operate, join, control or
participate in the ownership, management, operation or control of, any
business which, or any businesses organization any part of which,
engages in the business of providing Internet service.
5.7.2 Seller covenants and agrees that he will not, at any time
during the period of two (2) years from the Closing Date, as a result
of information obtained hereunder or otherwise obtained in connection
with the transactions contemplated hereunder (i) divert or attempt to
divert any business or customer of Buyer; or (ii) employ or attempt to
employ any employee of Buyer.
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5.7.3 Seller acknowledges and agrees that the remedy at law for
any breach or attempted breach by Seller of any of the provisions of
this Section 5.7 will be inadequate and Buyer shall be entitled to
temporary or permanent injunctive relief against any breach or
attempted breach of such provision without the necessity of posting
bond or proving actual damages. It is the express intention of the
parties hereto to comply with all laws, which may be applicable to
this Section 5.7. If any one or more of the provisions contained in
this Section 5.7 shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this
Agreement, but any inconsistency in the provisions of this Agreement
shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. The terms and conditions of
this Section 5.7 will be governed by and construed in accordance with
the laws of the State of Oklahoma.
ARTICLE VI
COVENANTS OF BUYER
Buyer hereby covenants and agrees with Seller as follows:
6.1 Furnishing of Information. Buyer will keep Seller advised of all
material developments relevant to the consummation of the transactions
contemplated hereby and will cooperate fully with Seller in bringing about the
consummation of the transactions contemplated hereby. In the event of the
termination of this Agreement, Buyer will deliver to Seller all documents, work
papers and other materials (including copies thereof) obtained by Buyer or on
its behalf from Seller as a result of this Agreement or in connection herewith,
whether so obtained before or after the execution hereof and, if the
transactions contemplated hereby are not consummated. Buyer will hold such
information in confidence until such time as such information is otherwise
publicly available.
6.2 Approvals of Third Parties. As soon as practicable after the date
hereof, Buyer will use its best efforts to secure all necessary consents,
approvals and clearances of third parties that shall be required to enable it to
consummate the transactions contemplated hereby and will otherwise use its best
efforts to cause the consummation of such transactions in accordance with the
terms and conditions of this Agreement.
6.3 Buyer's Best Efforts. Buyer will use its best efforts, acting
in good faith, to cause the consummation of the transactions contemplated by
this Agreement in accordance with their terms and conditions.
6.4 Retention of Records. For a period of six (6) years after the
Closing, Buyer will retain all books and records that Buyer receives from
Seller. During such period, Seller and its representatives will have access to
all such books and records during normal business hours. Buyer will, upon prior
written request of Seller, furnish to Seller, at Seller's expense, copies of any
such books or records.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF BUYER
The obligations of Buyer hereunder shall be subject to the satisfaction
of each of the following conditions precedent on or prior to the Closing Date,
except such conditions as Buyer may waive in writing.
7.1 Representations and Warranties of Seller. All of the
representations and warranties of Seller contained in this Agreement and in any
writing from Seller were true and correct when made, and shall be true and
correct in all material respects on and as of the Closing Date with the same
force and effect as though such representations and warranties had been made on
and as of the Closing Date.
7.2 Covenants of Seller. All of the covenants and agreements herein
on the part of Seller to be complied with or performed on or before the Closing
Date shall have been fully complied with and performed.
7.3 Certificate of Seller. There shall be delivered to Buyer a
certificate dated as of the Closing Date and signed by Seller to the effect set
forth in Sections 7.1 and 7.2, which certificate shall have the effect of a
representation and warranty made by Seller on and as of the Closing Date.
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7.4 No Casualty Losses. The Assets shall not have suffered any
destruction or damage by fire, explosion or other casualty or any taking by
eminent domain, which has materially impaired the operation of the Assets or
otherwise had a material adverse effect upon the Business.
7.5 Litigation. At the Closing Date, there shall not be pending or
threatened any litigation in any court or any proceeding before any Agency, (i)
in which it is sought to restrain, invalidate, set aside or obtain damages in
respect of the consummation of the purchase and sale of the Assets or the other
transactions contemplated hereby, (ii) which could, if adversely determined,
result in any material adverse change in the Business, operations or Assets or
the condition, financial, or otherwise, or results of operations of Seller,
(iii) which could, if adversely determined, have a material adverse effect on
the right or ability of Seller to carry on its Business as now conducted or (iv)
as a result of which, in the reasonable judgment of Buyer, Buyer would be
deprived of the material benefits of its ownership of the Assets.
7.6 Due Diligence. Buyer shall have completed its "due diligence"
review of the Assets, books, records, files, contracts, leases, arrangements,
commitments, documents, tax returns, business operations, financial statements,
offices, buildings, and any other items or matter that Buyer deems relevant
which pertain to the Business or the transactions contemplated hereby, and the
results of such due diligence review shall be acceptable, in all respects, to
Buyer, in its sole discretion.
7.7 No Material Adverse Changes. There shall not have occurred (i)
any material adverse change in the Business or the Assets, or (ii) any material
loss or damage to any of the Assets (whether or not covered by insurance) of
Seller. Buyer shall receive a certificate from Seller, dated as of the Closing
Date and in form and substance satisfactory to Buyer, as to fulfillment of the
conditions set forth in this Section 7.7.
7.8 Consents. Seller shall have obtained all orders, approvals or
consents of third parties, including without limitation, any consents or
approvals deemed necessary by counsel to Buyer that shall be required to
consummate the transactions contemplated hereby, including, without limitation,
any landlord's consents and equipment lessor's consents.
7.9 Deliverables. Seller shall have duly executed and delivered to
Buyer the Xxxx of Sale, the Assignment and Assumption Agreement, and such other
agreements, documents and instruments as Buyer shall have reasonably requested
in order to more fully effectuate the transactions contemplated by this
Agreement.
7.10 Further Assurances. Seller shall take all such further action as
may be reasonably requested by Buyer in order to effectuate the consummation of
the transactions contemplated by this Agreement.
7.11 Agent Agreement. Xxxxx Xxxxxx shall deliver to Buyer a FullNet
Agent Agreement, a form of which is attached hereto as EXHIBIT "C".
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF SELLER
The obligations of Seller to cause the sale of the Assets and the other
transactions contemplated hereby to occur at Closing shall be subject to the
satisfaction on or prior to the Closing Date of all of the following conditions,
except such conditions as Seller may waive in writing:
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8.1 Representations and Warranties of Buyer. All of the
representations and warranties of Buyer contained in this Agreement or other
disclosures in writing from Buyer shall have been true and correct when made,
and shall be true and correct in all material respects on and as of the Closing
Date with the same force and effect as though such representations and
warranties had been made on and as of the Closing Date.
8.2 Covenants of Buyer. All of the covenants and agreements herein on
the part of the Buyer to be complied with or performed on or before the Closing
Date shall have been fully complied with and performed.
8.3 Buyer's Certificate. There shall be delivered to Seller a
certificate dated as of the Closing Date and signed by the President of Buyer to
the effect set forth in Sections 8.1 and 8.2, which certificate shall have the
effect of a representation and warranty made by Buyer on and as of the Closing
Date.
8.4 Resolutions. Buyer shall have furnished to Seller a copy of the
resolutions duly adopted by the Board of Directors of Buyer duly authorizing the
transactions contemplated in this Agreement.
8.5 Deliverables. Buyer shall have duly executed and delivered to
Seller the Xxxx of Sale, the Assignment and Assumption Agreement, the Note and
such other agreements, documents and instruments as Seller shall have reasonably
requested in order to more fully effectuate the transactions contemplated by
this Agreement.
ARTICLE IX
DATE AND PLACE OF CLOSING
9.1 Date and Place of Closing. Subject to satisfaction or waiver of
the conditions to the obligations of the parties, the purchase and sale of the
Assets pursuant to this Agreement shall be consummated at a closing (the
"Closing") to be held in Oklahoma at a place and time to be mutually agreed to
by the parties (the "Closing Date"). Title to the Assets shall pass from Seller
to Buyer as of the Closing Date.
ARTICLE X
CLOSING
10.1 Seller's Performance. At the Closing, concurrently with
performance by Buyer of its obligations to be performed at the Closing:
10.1.1 Conveyances. Seller shall execute and deliver to Buyer,
in form and substance acceptable to Buyer (i) the Xxxx of Sale; (ii)
the Assignment and Assumption Agreement; and (iii) all other
assignments, endorsements and instruments of transfer as shall be
necessary or appropriate to carry out the intent of this Agreement and
as shall be sufficient to vest in Buyer title to all of the Assets and
all right, title and interest of Seller thereto. If requested by
Buyer, such documents shall be in form suitable for recording.
Simultaneously with the consummation of the transfer, Seller, through
its officers, agents, and employees, will put Buyer into full
possession and enjoyment of all Assets to be conveyed and transferred
by this Agreement.
10.1.2 Other Agreements. Buyer and Seller shall enter into such
other agreements, or execute and deliver such documents or items, as
may be contemplated by the Agreement to effect the transactions
contemplated hereby.
10.1.3 Records. In accordance with Section 1.6 of this
Agreement, Seller shall deliver to Buyer all documents, agreements,
reports, books, records and accounts pertaining specifically to the
Assets which are in Seller's possession.
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10.1.4 Certificates. Seller shall execute and deliver the
certificate referred to in Sections 7.3 and 7.7.
10.1.5 Consents. Seller shall deliver to Buyer the consents and
approvals required by Section 7.8, if any.
10.1.6 Other Actions. Seller shall take all such other steps as
may be necessary or appropriate to put Buyer in actual and complete
ownership and possession of the Assets.
10.2 Buyer's Performance. At the Closing, concurrently with the
performance by Seller of its obligations to be performed at the Closing:
10.2.1 Purchase Price. Buyer shall deliver to Seller the Shares
and Note as specified in Section 2.2.
10.2.2 Delivery of Agreements. Buyer shall execute and deliver
to Seller the Xxxx of Sale, the Assignment and Assumption Agreement
and such other agreements or items, as may be contemplated by the
Agreement to effect the transactions contemplated hereby.
10.2.3 Certificates and Resolutions. Buyer shall execute and
deliver the certificates and resolutions referred to in Sections 8.3
and 8.4.
10.3 Further Actions. In addition to the foregoing, Buyer and Seller
agree as follows:
10.3.1 Further Action by Seller. At any time, at or after the
Closing, upon request of Buyer, Seller shall do, execute, acknowledge
and deliver or shall cause to be done, executed, acknowledged and
delivered all such further acts, deeds, assignments, transfers,
conveyances, powers of attorney and assurances as may reasonably be
required in order to vest in and confirm to Buyer full and complete
title to, possession of, and the right to use and enjoy, the Assets.
10.3.2 Further Action by Buyer. At any time, at or after the
Closing, upon request of Seller, Buyer shall do, execute, acknowledge
and deliver or shall cause to be done, executed, acknowledged and
delivered all such further acts and assurances as may reasonably be
required in order to better assure and confirm to Seller the
assumption by Buyer of the obligations to render performance which are
to be assumed by Buyer pursuant to this Agreement.
ARTICLE XI
SURVIVAL AND INDEMNIFICATION
11.1 Survival. All representations, warranties, covenants and
agreements made in this Agreement shall survive the Closing, and shall not be
extinguished by the Closing or any investigation made by or on behalf of any
party hereto, for a period of two (2) years after the Closing Date; provided,
however, that there shall be no such termination of any representation,
warranty, covenant or agreement with respect to a claim asserted with respect
thereto prior to the expiration of the two (2) year period, in accordance with
the provisions regarding indemnification set forth below. All claims for
indemnification by Buyer or Seller must be made within two (2) years of the
Closing Date or shall be forever barred; provided, however, that any claims,
notice of which is made pursuant to Section 11.5 within two (2) years of the
Closing Date, may be pursued until they are finally resolved.
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11.2 Buyer's Losses. Seller hereby agrees, jointly and severally
subject to Section 11.5 below, to indemnify Buyer, and save and hold Buyer
harmless from, against, for and in respect of any and all damages (including,
without limitation, amounts paid in settlement with Seller's consent), losses,
obligations, liabilities, liens, deficiencies, costs and expenses, including,
without limitation, interest, penalties and reasonable attorneys' fees and other
costs and expenses incident to any suit, action, investigation, claim or
proceeding (hereinafter referred to collectively as "Buyer's Losses") to the
extent such claims or damages are related to or arise from the ownership,
condition, operation or conduct of the Business and Assets of Seller prior to
the Closing Date and, including without limitation, any and all of Buyer's
Losses suffered, sustained, incurred or required to be paid by Buyer by reason
of (i) the breach by Seller of any provisions of this Agreement, including any
representation or warranty made by Seller in or pursuant to this Agreement being
untrue or incorrect in any material respect; (ii) any material failure by Seller
to observe or perform its covenants and agreements set forth in this Agreement;
(iii) any liability for product warranties, defective products or medical care
related liabilities arising from the Business prior to the Closing Date; or (iv)
any failure by Seller to satisfy and discharge any other liability or obligation
not expressly assumed by Buyer pursuant to this Agreement.
11.3 Employee Compensation and Benefits. Seller hereby agrees,
jointly and severally, to indemnify and hold Buyer harmless from and against any
and all claims made by employees of Seller, regardless of when made, for
workmen's compensation, medical insurance, disability, vacation, severance, sick
benefits or other compensation arrangements to the extent the same are based on
injury or sickness occurring prior to the Closing Date or based on employment
service rendered to Seller prior the Closing Date.
11.4 Seller's Losses. Buyer agrees, subject to Section 11.5 below, to
indemnify Seller and save and hold Seller harmless from, against, for and in
respect of any and all damages (including, without limitation, amounts paid in
settlement with Buyer's consent), losses, obligations, liabilities, claims,
deficiencies, cost and expenses, including, without limitation, interest,
penalties and reasonable attorneys' fees and other costs and expenses incident
to any suit, action, investigation, claim or proceeding (hereinafter referred to
collectively as "Seller's Losses") to the extent related to or arising from the
ownership, condition, operation or conduct of the business of Buyer after the
Closing Date and, including without limitation, any and all of Seller's Losses
suffered, sustained, incurred or required to be paid by Seller by reason of (i)
the breach by Buyer of any provision of this Agreement, including any
representation or warranty made by Buyer in or pursuant to this Agreement being
untrue or incorrect in any material respect; (ii) any material failure by Buyer
to observe or perform its covenants and agreements set forth in this Agreement;
(iii) any liability for product warranties, defective products or medical care
related liabilities arising from the business after the Closing Date; (iv) any
failure by Buyer to satisfy and discharge any liability or obligation expressly
assumed by Buyer pursuant to this Agreement; or (v) any and all claims made by
employees of Buyer regardless of when made, for workmen's compensation, medical
insurance, disability, vacation, severance, sick benefits or other compensation
arrangements to the extent the same are based on injury or sickness occurring
after the Closing Date or based on employment service rendered to Buyer after
the Closing Date.
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11.5 Notice of Loss. Notwithstanding anything herein contained Buyer
and Seller shall not have any liability under the indemnity provisions of this
Agreement with respect to a particular matter unless a notice setting forth in
reasonable detail the breach which is asserted has been given to the
Indemnifying Party (hereafter defined) and, in addition, if such matter arises
out of a suit, action, investigation or proceeding, such notice is given
promptly after the Indemnified Party (hereafter defined) shall have been given
notice of the commencement of a suit, action, investigation or proceeding. With
respect to Buyer's Losses and claims of employees pursuant to Sections 11.2 and
11.3, hereof, Seller shall be the Indemnifying Party and Buyer shall be the
Indemnified Party. With respect to Seller's Losses pursuant to Section 11.4,
hereof, Buyer shall be the Indemnifying Party and Seller shall be the
Indemnified Party. The Indemnifying Party shall have 30 days from the date the
notice is given in accordance with the notice provisions hereof (the "Notice
Period") to notify the Indemnified Party whether it disputes the liability of
the Indemnifying Party to the Indemnified Party hereunder with respect to such
losses and whether it desires, at the sole cost and expense of the Indemnifying
Party, to defend the Indemnified Party against such losses. Notwithstanding the
foregoing, any Indemnified Party is hereby authorized prior to and during the
Notice Period to file any motion, answer or other pleading that it shall deem
necessary or appropriate to protect its interests or those of the Indemnifying
Party (and of which it shall have given notice and opportunity to comment to the
Indemnifying Party) and that is not prejudicial to the Indemnifying Party.
11.6 Right to Defend. Upon receipt of notice of any suit, action,
investigation, claim or proceeding for which indemnification might be claimed by
an Indemnified Party, the Indemnifying Party shall be entitled promptly to
defend, contest or otherwise protect against such suit, action, investigation,
claim or proceeding at its own cost and expense, including the right to invoke
any arbitration proceeding available in the dispute. The Indemnified Party shall
have the right, but not the obligation, to participate at its own expense in a
defense thereof by counsel of its own choosing, but the Indemnifying Party shall
be entitled to control the defense unless the Indemnified Party has relieved the
Indemnifying Party from liability with respect to the particular matter. If the
Indemnifying Party does not notify the Indemnified Party within 30 days after
the receipt of a notice, pursuant to Section 11.5 of this Agreement, that it
elects to undertake the defense thereof and fails to defend, contest or
otherwise protect in a timely manner against any such suit, action,
investigation, claim or proceeding, the Indemnified Party shall have the right,
but not the obligation, to defend, contest or otherwise protect against the same
and make any compromise or settlement thereof, with counsel of its choosing, and
recover the entire cost thereof from the Indemnifying Party including reasonable
attorneys' fees, disbursements and all amounts paid as a result of such suit,
action, investigation, claim or proceeding or the compromise or settlement
thereof. However, if the Indemnifying Party undertakes the defense of such
matters after the Indemnified Party has began the defense, the Indemnified Party
shall be entitled to recover from the Indemnifying Party any legal or other
expenses incurred by the Indemnified Party in connection with the defense
thereof.
11.7 Payment of Buyer's Indemnification Claims. In the event of a
claim by Buyer for indemnification by Seller pursuant to the provisions of
Section 11.2 or Section 11.3 of this Agreement ("Buyer's Indemnification
Claims"), Buyer may, as an alternative to the payment in cash by Seller of
amounts in respect of Buyer's Indemnification Claims, elect to (i) have
transferred to Buyer such number of Escrowed Shares as shall equal the amount of
Buyer's Indemnification Claims, based on the same $3.00 per share valuation
under which such shares were originally issued to Seller; (ii) offset against
the amount otherwise payable to Seller pursuant to the terms of the Note the
amount of Buyer's Indemnification Claims, or (iii) any combination of the
foregoing. Notwithstanding the foregoing, nothing contained herein is intended
to, nor should it be construed to, preclude Buyer from pursuing any and all
other remedies provided by law or otherwise as a means of enforcing its rights
in respect of any of Buyer's Indemnification Claims.
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ARTICLE XII
TERMINATION
12.1 Termination. This Agreement may be terminated and abandoned at
any time on or prior to the Closing Date as follows (and, with respect to
Section 12.1.2 through Section 12.1.4, by written notice by the terminating
party to the other party):
12.1.1 By the mutual written consent of Buyer and Seller;
12.1.2 By either Buyer or Seller if the Closing shall not have
been consummated by February 15, 2000; provided, however, that the
right to terminate this Agreement under this Section 12.1.2 shall not
be available to any party whose failure to fulfill any obligation
under this Agreement has been the cause of or resulted in the failure
of the Closing to occur on or before such date;
12.1.3 By either Buyer or Seller if a court of competent
jurisdiction or other governmental entity shall have issued a
nonappealable final order, decree or ruling or taken any other action,
in each case having the effect of permanently restraining, enjoining
or otherwise prohibiting the Closing, unless the party relying on such
order, decree or ruling or other action has not complied with its
obligations under this Agreement;
12.1.3 by either Buyer or Seller, if there has been a breach of
any representation, warranty, covenant or agreement on the part of the
other party set forth in this Agreement, which breach (i) causes the
conditions set forth in Article VII (in the case of termination by
Buyer) or Article VIII (in the case of termination by Seller) not to
be satisfied and (ii) shall not have been cured within ten (10)
business days following receipt by the breaching party of written
notice of such breach from the other party.
12.2 Effect of Termination.
12.2.1 In the event of termination of this Agreement as provided
in Section 12.1, this Agreement shall be of no further force or effect
and there shall be no liability or obligation on the part of Seller or
Buyer or their respective officers, directors, or stockholders, except
to the extent that such termination results from the willful or
negligent breach by a party of any of its representations, warranties
or covenants set forth in this Agreement; provided, however, that the
provisions of Section 13.1 regarding expenses and Section 13.3
regarding confidentiality shall remain in full force and effect and
survive any termination of this Agreement.
12.2.2 If termination of this Agreement shall be determined,
pursuant to the provisions of Section 12.2.1 hereof, to have been
caused by willful or negligent breach of this Agreement, then, in
addition to other remedies at law or equity for breach of this
Agreement, the party so found to have willfully or negligently
breached this Agreement shall (i) pay the other parties' respective
costs, expenses and attorneys' fees incurred in enforcing this Section
12.2.2, and (ii) reimburse the other parties for their respective
costs, fees and expenses incident to negotiation, preparation and
execution of this Agreement and related documentation, including
without limitation costs, fees and expenses associated with
accountants, counsel and other experts and advisors.
ARTICLE XIII
MISCELLANEOUS
13.1 Expenses. Except as otherwise expressly provided herein, Seller
and Buyer shall each pay their own expenses in connection with the preparation
of this Agreement, and the consummation of the transactions contemplated hereby,
including, without limitation, fees of its own counsel, auditors, any brokers or
finders fees and other experts, whether or not such transactions be consummated.
Buyer shall pay any and all sales tax due in connection with the sale of the
Assets under this Agreement.
13.2 Entire Agreement. This Agreement, together with the other
agreements contemplated herein, constitutes the entire contract and shall
supersede all prior agreements and understandings, both written and oral,
between the parties hereto with respect to the subject matter hereof and no
party shall be liable or bound to the other in any manner by any representations
or warranties except as specifically set forth herein or agreement executed in
connection herewith or expressly required to be made or delivered pursuant
thereto.
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13.3 Confidentiality. Except as and to the extent required by law,
Buyer will not disclose or use, and will direct its affiliates and
representatives not to disclose or use to the detriment of Seller, any
Confidential Information (as defined below) with respect to Seller, furnished or
to be furnished by Seller or their respective representatives to Buyer or its
affiliates or representatives at any time or in any manner other than in
connection with its evaluation of the transaction proposed in this Agreement.
For purposes of this Section 13.3, "Confidential Information" means any
information about Seller stamped "Confidential" or identified in writing as such
to Buyer by Seller, unless (i) such information is already known to Buyer, its
affiliates or representatives or to others not bound by a duty of
confidentiality or such information becomes publicly available through no fault
of Buyer, its affiliates or representatives, (ii) the use of such information is
necessary or appropriate in making any filing or obtaining any consent or
approval required for the consummation of this Agreement, or (iii) the
furnishing or use of such information is required by or necessary or appropriate
in connection with legal proceedings. Upon the written request of Seller, Buyer
will promptly return to such party or destroy any Confidential Information in
its possession and certify in writing to such party that it has done so. The
parties hereto acknowledge and agree that remedy at law for any breach or
attempted breach by a party of any of the provisions of this Sections 13.3 will
be inadequate and the other party shall be entitled to temporary or permanent
injunctive relief against any breach or attempted breach of such provision
without the necessity of posting bond or proving actual damages.
13.4 Disclosure. Except as and to the extent required by law and as
set forth in Section 5.3, without the prior written consent of the other party,
neither Buyer or Seller will, and each will direct its representatives not to
make, directly or indirectly, any public comment, statement, or communication
with respect to or otherwise to disclose or to permit the disclosure of the
existence of discussions regarding this Agreement between the parties or any of
the terms, conditions, or other aspects of the transaction proposed in this
Agreement. If a party is required by law to make any such disclosure, it must
first provide to the other party the content of the proposed disclosure, the
reasons that such disclosure is required by law, and the time and place that the
disclosure will be made.
13.5 Exclusive Dealing. Until the Closing Date or the termination of
this Agreement pursuant to Article XII:
13.5.1 Seller will not directly or indirectly, through any
representative or otherwise, solicit, or entertain offers from,
negotiate with or in any manner encourage, discuss, accept, or
consider any proposal of any other person or entity relating to the
acquisition of the Assets of Seller, in whole or in part, whether
directly or indirectly, through purchase, merger, consolidation, or
otherwise other than the sale of inventory in the ordinary course of
business; and
13.5.2 Seller shall immediately notify Buyer regarding any
contact or negotiations between Seller or their respective
representatives and any other person or entity regarding any such
offer or proposal or any related inquiry into the acquisition of the
Assets of the Seller.
13.6 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties hereto. Nothing in this Agreement, express
or implied, is intended to confer upon any party, other than the parties and
their respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of such agreements.
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13.7 Identical Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall constitute the same instrument, but only one of
which need be produced.
13.8 Headings. The headings of the paragraphs and subparagraphs of
this Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof.
13.9 Use of Certain Terms. As used in this Agreement, the words
"herein," "hereof" and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular paragraph, subparagraph or
other subdivision.
13.10 Modification and Waiver. Any of the terms or conditions of this
Agreement may be waived in writing at any time, whether before or after action
thereon by the party which is entitled to the benefits thereof; and this
Agreement may be modified or amended at any time, whether before or after action
thereon by the parties. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by all of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof (whether or not similar)
nor shall such waiver constitute a continuing waiver.
13.11 Other Remedies. Except as otherwise provided herein, any and
all remedies expressly conferred upon a party will be deemed cumulative with and
not exclusive of any other remedy conferred hereby or by law on such party, and
the exercise of any one remedy will not preclude the exercise of any other.
13.12 Notices. All notices, consents, requests, instructions,
approvals and/or communications provided for herein, shall be validly given,
made or served if in writing and delivered personally or sent by registered or
certified mail, return receipt requested, postage prepaid, addressed as set
forth on page 1 hereto. The designation of the person to be so notified or the
address of such person for the purposes of such notice may be changed from time
to time by a similar notice. Any notice which is delivered personally in the
manner provided herein shall be deemed to have been duly given to the party to
whom it is directed upon actual receipt by such party (or its agent for notices
hereunder). Any notice which is addressed and mailed in the manner herein
provided shall be conclusively presumed to have been duly given to the party to
which it is addressed at the close of business, local time of the recipient, on
the third business day after the day it is so placed in the mail.
13.13 Governing Law. This Agreement will be construed and enforced in
accordance with and governed by the laws of the State of Oklahoma, without
regard to conflict of law principles. This Agreement will not be construed for
or against a party merely because that party prepared it, but will at all times
be construed according to its fair meaning.
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13.14 Binding Arbitration. Except as provided in Section 5.7 and
Section 13.3 of this Agreement, each party to this Agreement agrees that any
dispute or controversy arising between any of the parties to this agreement, or
any person or entity in privity therewith, out of the transactions effected and
relationships created pursuant to this Agreement and each other agreement
created in connection herewith, including any dispute or controversy regarding
the formation, terms, or construction of this Agreement, regardless of kind or
character, must be resolved through binding arbitration. Each party to this
Agreement agrees to submit such dispute or controversy to arbitration before the
American Arbitration Association (the "Association") in Oklahoma City, Oklahoma,
and further agrees to be bound by the determination of an arbitration panel
consisting of three (3) persons. If demand for arbitration is made, each party
will have the right to select one independent arbitrator. If the party upon whom
the demand for arbitration is served fails to select an arbitrator within twenty
days, then the Association may select a second arbitrator upon application by
either party. The two arbitrators shall select a third arbitrator. If the two
arbitrators fail to select a third arbitrator within twenty days, the third
arbitrator may be selected and appointed by the Association upon application by
either party. The arbitrators' decision concerning the claim, controversy or
dispute, including allocation among the parties of costs and expenses associated
with the arbitration, shall be final and binding on the parties and judgment on
the award may be entered in any court of competent jurisdiction. Any party to
this Agreement may bring an action, including a summary or expedited proceeding,
to compel arbitration of any such dispute or controversy in a court of competent
jurisdiction and, further, may seek provisional or ancillary remedies including
temporary or injunctive relief in connection with such dispute or controversy in
a court of competent jurisdiction, provided that the dispute or controversy is
ultimately resolved through binding arbitration conducted in accordance with the
terms and conditions of this section. For purposes of the foregoing sentence,
the parties agree that "a court of competent jurisdiction" shall mean the
Oklahoma District Court of Oklahoma County or, in the case of exclusive federal
jurisdiction, the United States District Court for the Western District of
Oklahoma.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
BUYER SELLER
FullNet Communications, Inc. Xxxxx Xxxxxx, dba FullNet of
Bartlesville
By: /s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxx Xxxxxx
-------------------------------------------- ----------------------------
Xxxxxxx X. Xxxxxxxx, President and CEO Xxxxx Xxxxxx
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