ASSET PURCHASE AGREEMENT
AGREEMENT dated as of June 20, 2000 (the "Agreement"), by and among
Frontline Communications Corp. a Delaware corporation, having an address at Xxx
Xxxx Xxxx Xxxxx, Xxxxx 0000, Xxxxx Xxxxx, Xxx Xxxx ("Purchaser"); DelaNET, Inc.,
a Delaware corporation, with a principal place of business at 000 Xxxxxxx
Xxxxxxxxx, Xxx Xxxxxx Xxxxxxxx, 00000 ("Seller"); Xxxxxxx Xxxxx, a 45.05%
shareholder in Seller with an address at 0 Xxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000
and Xxxxxx XxXxxxxx, a 45.05% shareholder in Seller with an address at 000
Xxxxxxx Xxx., Xxxxxx'x Xxxxx, Xxx Xxxxxx 00000 (Xxxxx and XxXxxxxx are
collectively referred to herein as the "Shareholders").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Seller is in the business of, inter alia, providing dial-up,
leased-line access, DSL, wireless access, web hosting services and co-location
space to individuals and businesses in the states of Delaware, New Jersey,
Pennsylvania and Maryland (the "Business"); and
WHEREAS, Seller wishes to sell to Purchaser, and Purchaser wishes to
purchase from Seller, all of the Business and assets of Seller, upon the terms
and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereto do hereby agree as follows:
1. Purchase and Sale.
1.1. Purchase and Sale Agreement. Subject to the terms and conditions
set forth in this Agreement and in reliance upon the representations,
warranties, covenants and conditions herein contained, on the Closing Date
(as defined in Section 2 hereof) Seller shall sell, convey, assign,
transfer and deliver to Purchaser and Purchaser shall purchase from Seller
the Assets (as defined in Section 1.2 hereof), free and clear of any and
all liens, claims, security interests, pledges, mortgages, charges and
encumbrances of any nature whatsoever other than those reflected on
Schedule 1.1.
1.2. Purchased Assets. As used in this Agreement, the term "Purchased
Assets" shall mean all of the properties and assets listed in Schedule 1.2,
which are owned by the Seller or otherwise employed, used or available for
use in the Business, real and personal, tangible and intangible, of every
kind and nature, wherever located, including: 1) all assets, trademarks,
trade names, service marks, patents, contracts and other similar rights; 2)
all dial-up, corporate and similar accounts (including approximately 9,300
internet service subscribers, and a current annualized revenue base of
approximately $1.93 Million); 3) all other customer and client bases; 4)
all rights and interest to all potential and actual future dial-up and
dedicated subscribers, including those contacting Seller for the purpose of
obtaining dial-up Internet access, web development and hosting; 5) all
hardware and equipment (including but not limited to routers, servers and
modems), software and related assets, including e-mail servers, systems and
addresses; 6) all web servers, systems and addresses; 7) all telephone
numbers, services, contracts and leases; 8) all rights and interest in all
current marketing and advertising contracts, materials and efforts,
including but not limited to the current telephone yellow page ads; 9) all
rights to Seller's name and logos; 10) the domain name "xxxxxxx.xxx" and
any other domain names registered to the Seller; 11) all accounts and notes
receivable, cash and cash equivalents; 12) two year non-compete agreements
entered into by the Shareholders and the Seller, as set forth in Section
6.2; and 13) two year consulting agreements entered into by the
Shareholders, as set forth in Exhibit A.
1.3. Assumed Liabilities. Subject to the terms and conditions set
forth in this Agreement and in reliance upon the representations,
warranties, covenants and conditions herein contained, on the Closing Date
(as defined in Section 2 below), Purchaser shall assume, and shall only
assume Seller's obligations which are set forth on Schedule 1.3 (the
"Assumed Liabilities"); provided, however, that anything in this Agreement
contained to the contrary notwithstanding, liabilities and obligations of
Seller, the existence of which constitutes a breach of any of the
representations or warranties made by Seller in this Agreement or in any
document delivered by it pursuant hereto, including, without limitation,
any liability for income or other taxes, penalties and interest thereon,
accrued or assessed against the Seller by any governmental authority prior
the Closing Date, shall not constitute Assumed Liabilities. All liabilities
which are not included among the Assumed Liabilities are deemed "Retained
Liabilities". As of the Closing Date, the Assumed Liabilities should not
exceed the total tangible assets as set forth in Schedule 1.2.
1.4. Consideration. Subject to Section 1.5 below, the consideration to
be paid by Purchaser to Seller for the Assets will be Three Million Fifty
Thousand Dollars ($3,050,000) (the "Purchase Price") to be paid as follows:
a. One Million Seven Hundred and Fifty Thousand Dollars ($1,750,000)
cash shall be paid to Seller on the Closing Date in immediately
available funds (the "Cash Consideration"), plus an additional;
b. Two Hundred Fifty Thousand Dollars ($250,000) cash, shall be
placed in escrow on the Closing Date (the "Escrowed Amount") and
distributed in accordance with the Escrow Agreement attached
hereto as Exhibit B;
c. Two Hundred Thousand (200,000) shares of the Purchaser's
unregistered Common Stock, par value $0.01 per share (the "Share
Consideration") valued (solely for the purposes of determination
of the amount of the Note, as defined below) based upon the
average closing bid price as reported by the American Stock
Exchange for the twenty (20) trading days prior to the Closing
Date. The Share Consideration shall be subject to certain lock-up
limitations as set forth in the Lock-Up Agreement annexed hereto
as Exhibit C.
d. The remainder of the Purchase Price (i.e., the Purchase Price
less the Cash Consideration less the Escrowed Amount less the
value of the Share Consideration at Closing) shall be paid
pursuant to the terms of the convertible note (the "Note")
annexed hereto as Exhibit D.
e. The Purchase Price shall be allocated as set forth in Schedule
1.4.
2
1.5. Purchase Price Adjustment. The Escrowed Amount shall be adjusted
in accordance with the Escrow Agreement attached hereto as Exhibit B. To
the extent that on the ninetieth (90th) day following the Closing Date (the
"Transition Period") the number of internet service subscribers of the
Seller is less than 9,250 (the "Customer Shortfall") (including, for the
purposes of this Section 1.5, any subscriber whose service is provided on a
complimentary basis), the Escrowed Amount shall be reduced by $150 for each
internet service subscriber less than 9,250 (the "Purchase Price
Adjustment"). Purchaser agrees not to raise customer rates during the
Transition Period. For the purpose of this Section 1.5, an "Internet
Service Subscriber" shall be defined for the purposes of this Section 1.5
as each service billed for by Seller to a customer, including, for purposes
of illustration only, dial up access; domain e-mail (to the extent that
Seller currently bills for such services); web site hosting; dedicated line
services; and Real Audio accounts. It is recognized that individual
customers may purchase more than one of such services, in which case such
customer shall be counted for purposes of this Agreement and the Escrow
Agreement as more than one "Internet Service Subscriber."
Any Escrowed Amount pursuant to paragraph I.4(b) above remaining
on the 91st day following the Closing Date shall be immediately
delivered to the Seller in accordance with the terms of the Escrow
Agreement. To the extent the aggregate Purchase Price Adjustment as
determined above exceeds the Escrowed Amount, the excess amount due
shall be delivered by the Seller to the Purchaser on the 91st day
following the Closing Date.
1.6. Pre-Paid Accounts. Purchaser agrees to accept the Seller's
pre-paid accounts as of the Closing Date.
1.7. Accounts Payable. As of the Closing Date, the total accounts
payable to be assumed by the Purchaser (the "Accounts Payable"), as set
forth on Schedule 1.7, shall not exceed $646,930.23 The parties acknowledge
that the Accounts Payable set forth on Schedule 1.7 include certain
disputed invoices in the amount of $223,302.00, as indicated on Schedule
1.7. The Shareholders agree, subsequent to the Closing Date, to continue to
dispute such invoices in an attempt to reduce the Accounts Payable, which
savings shall inure to the benefit of the Purchaser.
2. The Closing. The closing of the transactions contemplated by this
Agreement will take place at the offices of the Purchaser as soon as
practicable, but in no event later than June 20, 2000 (the "Closing Date") or
such later date as shall be agreed to by the parties.
2.1. Deliveries by Purchaser at the Closing. At the Closing, Purchaser
shall deliver the following:
(a) copies of resolutions adopted by the Board of Directors of
Purchaser authorizing Purchaser to execute and deliver the Purchaser
Documents (defined in Section 4.2 hereof) to which it is a party and
to perform its obligations thereunder, upon the terms and subject to
the conditions set forth therein, which shall be duly certified by the
Secretary or Assistant Secretary of Purchaser;
3
(b) certificate of the Secretary or Assistant Secretary of
Purchaser certifying as to (i) the performance of the Purchaser's
obligations hereunder and under the Purchaser Documents; (ii) the
accuracy of the Purchaser's representations and warranties hereunder
and under the Purchaser Documents and (iii) the incumbency and
specimen signatures of the officers of Purchaser executing the
Purchaser Documents on behalf of such corporation;
(c) the Cash Consideration as set forth in Section 1.4(a);
(d) $250,000 in immediately available funds to the escrow agent
under the Escrow Agreement;
(e) 200,000 duly authorized issued shares of Common Stock, par
value $.01, of Purchaser;
(f) the Note as set forth in Section 1.4(c);
(g) two year Consulting Agreements between Purchaser and Xxxxx
and XxXxxxxx (the "Consulting Agreements"), in the form annexed hereto
as Exhibits E and F;
(h) Escrow Agreement in the form annexed hereto as Exhibit B;
(i) A Registration Rights Agreement in the form annexed hereto as
Exhibit G; and
(j) Closing Side Letter relating to bank account access and
collection of accounts receivable in the form annexed hereto as
Exhibit H.
2.2. Deliveries by Seller at the Closing. At the Closing, Seller shall
deliver to Purchaser, the following:
(a) Copies of resolutions adopted by the Seller authorizing
Seller to execute and deliver the Seller Documents (defined in section
3.3 hereof) to which it is a party and to perform its obligations
thereunder, upon the terms and subject to the conditions set forth
therein, duly certified by the Secretary or Assistant Secretary of
Seller;
(b) Certificate of the Secretary or Assistant Secretary of Seller
certifying as to (i) the performance of the Seller's obligations
hereunder and under the Seller Documents; (ii) the accuracy of the
Seller's representations and warranties hereunder and under the Seller
Documents and (iii) the incumbency and specimen signatures of the
officers of Seller executing the Seller Documents on behalf of such
corporation;
(c) Legal opinion of Xxxxxxxx, Xxxxxx & Finger, counsel for
Seller in the form and substance attached hereto as Exhibit I;
4
(d) Duly executed "Registrant Name Change Agreement Version
3.0-Transfers" with proof of submission to Network Solutions, Inc.,
authorizing the transfer of domain name(s) set forth in Schedule 3.12
to Purchaser;
(e) Xxxx of Sale and Assignment pursuant to Section 6.7 in the
form attached hereto as Exhibit J;
(f) A current customer count certified as accurate by the Seller
in the form attached hereto as Exhibit K;
(g) Duly executed Lock-Up Agreements on behalf of the Seller in
the form attached hereto as Exhibit C; and
(h) Documentation sufficient to transfer authority and all
control of Seller's bank account(s) to Purchaser.
2.3. Other Deliveries. In addition, the parties shall execute and
deliver such other documents as may be required by this Agreement and as
either of them or their respective counsel may reasonably require in order
to document and carry out the transactions contemplated by this Agreement.
3. Representations and Warranties as to Seller. Seller and Shareholders
each represent and warrant to Purchaser as follows:
3.1. Organization, Standing and Power. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
state of Delaware, with full power and authority to (i) own, lease and
operate its properties, (ii) carry on the Business as currently conducted
by it and (iii) execute and deliver, and perform under this Agreement and
each other agreement and instrument to be executed and delivered by it
pursuant hereto. There are no states or jurisdictions in which the
character and location of any of the properties owned or leased by Seller,
or the conduct of the Business makes it necessary for Seller to qualify to
do business as a foreign entity except where such failure to qualify would
not, in the aggregate, have a material adverse effect on the Business.
3.2. Interests in Other Entities. There are no direct or indirect
subsidiaries of Seller.
3.3. Authority. The execution and delivery by Seller of this Agreement
and of all of the agreements to be executed and delivered by Seller
pursuant hereto (collectively, the "Seller Documents"), the performance by
Seller of its obligations hereunder and thereunder, and the consummation of
the transactions contemplated hereby and thereby, have been duly and
validly authorized by all necessary action on the part of Seller and Seller
has all necessary power and corporate authority with respect thereto. This
Agreement is, and when executed and delivered by Seller and the
Shareholders, and each of the other agreements to be delivered by them
pursuant hereto will be, the valid and binding obligations of the Seller
and the Shareholders, in accordance with their respective terms except as
the same may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the rights of creditors generally and
5
subject to the rules of law governing (and all limitations on) specific
performance, injunctive relief, and other equitable remedies.
3.4. Noncontravention. Except as provided in Schedule 3.4 to the best
of the Seller's knowledge, neither the execution and delivery by Seller of
this Agreement or of any other Seller Documents to be executed and
delivered by them, nor the consummation of any of the transactions
contemplated hereby or thereby, nor the performance by them of any of their
obligations hereunder or thereunder, will (nor with the giving of notice or
the lapse of time or both would) (a) give rise to a default, or any right
of termination, cancellation or acceleration, or otherwise be in conflict
with or result in a loss of contractual benefits to Seller, under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, agreement or other instrument or obligation to which it is a party
or by which it may be bound, or except as set forth in Schedule 3.4,
require any consent, approval or notice under the terms of any such
document or instrument, or (b) violate any order, writ, injunction, decree,
law, statute, rule or regulation of any court or governmental authority
which is applicable to Seller, or (c) result in the creation or imposition
of any lien, adverse claim, restriction, charge or encumbrance upon any of
the Purchased Assets, or (d) interfere with or otherwise adversely affect
the ability of Purchaser to carry on the Business after the Closing Date on
substantially the same basis as is now conducted by Seller except as the
same would not, in the aggregate, have a material adverse effect on the
Business. To the best of Seller's knowledge, no consent, approval or
authorization of, or declaration, filing or registration with any
government or regulatory authority is required to be made or obtained in
order to permit the execution, delivery or performance of this Agreement by
the Seller or the consummation of the transactions contemplated by this
Agreement.
3.5. Absence of Undisclosed Liabilities. Except as provided in
Schedule 3.5, Seller has no material liabilities or obligations of any
nature whatsoever, whether accrued, matured, unmatured, absolute,
contingent, direct or indirect or otherwise, which have not been (a) in the
case of liabilities and obligations of a type customarily reflected on a
corporate balance sheet, prepared in accordance with GAAP, set forth on the
balance sheet dated March 31, 2000, or (b) incurred in the ordinary course
of business since March 31, 2000, or (c) in the case of other types of
liabilities and obligations, expressly described in Schedule 1.3, or (d)
incurred, consistent with past practice, in the ordinary course of business
of Seller (in the case of liabilities and obligations of the type referred
to in clause (a) above).
3.6. Accounts and Notes Receivable. To the best of Seller's knowledge,
the accounts and notes receivable set forth on Schedule 3.6 are good and
collectible in the ordinary course of business at the aggregate recorded
amounts thereof, less the respective amount of the allowances for doubtful
accounts receivable, if any, reflected thereon, and are not subject to
offsets other than in the ordinary course of business. To the best of
Seller's knowledge, the accounts receivable of Seller which were added
after March 31, 2000, are good and collectible in the ordinary course of
business, less the amount of the allowance(s) for doubtful notes
receivable, if any, reflected thereon (which allowances were established on
a basis consistent with prior practice), and are not subject to offsets
other than in the ordinary course of business. The intangible assets
reflected on the balance sheet dated March 31, 2000 and thereafter added
consist of items which have
6
been written down to net realizable value or adequately reserved against on
the books and records of Seller. For purposes hereof, subscriber accounts
are not deemed to be intangible assets.
3.7. Absence of Changes. Except as provided in Schedule 3.7, since
March 31, 2000, there have not been (a) any adverse change (other than in
the ordinary course of business) in the condition (financial or otherwise),
assets, liabilities, business, results of operations or cash flows of
Seller (including, without limitation, any such adverse change resulting
from damage, destruction or other casualty loss, whether or not covered by
insurance), (b) any waivers by Seller of any right, or cancellation of any
debt or claim, of substantial value, or (c) any changes in the accounting
principles or methods which are utilized by Seller which, in the aggregate,
would have a material adverse effect on the Business.
3.8. Litigation. Except as set forth in Schedule 3.8, there are no
claims, suits or actions, or administrative, arbitration or other
proceedings or governmental investigations, pending or, to the best
knowledge of Seller, threatened, against or relating to Seller (solely as
it may relate to the Business), the transactions contemplated hereby or any
of the Purchased Assets. Except as provided in Schedule 3.8, there are no
judgments, orders, stipulations, injunctions, decrees or awards in effect
which relate to Seller, this Agreement, the transactions contemplated, the
Business or any of the Purchased Assets, the effect of which is (a) to
materially limit, restrict, regulate, enjoin or prohibit any business
practice of Seller in any area, or the acquisition by Seller of any
properties, assets or businesses, or (b) otherwise materially adverse to
the Business or any of the Purchased Assets.
3.9. No Violation of Law. To the best of the Seller's knowledge,
Seller has not engaged and is not engaging in any activity or omitting to
take any action as a result of which it is in violation of any law, rule,
regulation, zoning or other ordinance, statute, order, injunction or
decree, or any other requirement of any court or governmental or
administrative body or agency, applicable to Seller, the Business or any of
the Purchased Assets that would, in the aggregate, have a material adverse
effect on the Business.
3.10. Properties. All structures and equipment which are utilized in
the Business, and are material to the condition (financial or otherwise) of
Seller are owned or leased by Seller and are in good operating condition
and repair (ordinary wear and tear excepted), and are adequate and suitable
for the purposes for which they are used. Schedule 3.10(a) sets forth all
real property which is owned, leased (whether as lessor or lessee) or
subject to contract or commitment of purchase or sale or lease (whether as
lessor or lessee) by Seller, or which is subject to a title retention or
conditional sales agreement or other security device. Schedule 3.10(b) sets
forth all tangible personal property which is owned, leased (whether as
lessor or lessee) or subject to contract or commitment of purchase or sale
or lease (whether as lessor or lessee) by Seller.
3.11. Intangibles/Inventions. Schedule 3.11 identifies (by a summary
description) the Intangibles (as defined below) the ownership thereof and,
if applicable, Seller's authority for use of the same, which Schedule is
complete and correct and encompasses: (A) all United States and foreign
patents, trademark and trade name
7
registrations, trademarks and trade names, brandmarks and brand name
registrations, servicemarks and servicemark registrations, assumed names
and copyrights and copyright registrations, owned in whole or in part or
used by Seller, and all applications therefor (collectively, the "Marks"),
(B) all inventions, discoveries, improvements, processes, formulae,
technology, know-how, processes and other intellectual property,
proprietary rights and trade secrets relating to the Business
(collectively, the "Inventions") and (C) all licenses and other agreements
to which Seller is a party or otherwise bound which relate to any of the
Intangibles or the Inventions or Seller's use thereof in connection with
the Business (collectively, the "Licenses", and together with the Marks and
the Inventions, the "Intangibles"). To the best of Seller's knowledge, no
violations of the terms of any of the aforesaid licenses and/or agreements
have occurred. Except as disclosed on Schedule 3.11, (A) Seller owns or is
authorized to use in connection with the Business all of the Intangibles;
(B) no proceedings have been instituted, are pending, or to the best
knowledge of the Shareholers, is threatened which challenge the rights of
Seller with respect to the Intangibles or its use thereof in connection
with the Business and/or the Purchased Assets or the validity thereof and,
there is no valid basis for any such proceedings except as would not, in
the aggregate, have a material adverse effect on the Business; (C) neither
Seller's ownership of the Intangibles nor their use thereof in connection
with the Business and/or the Purchased Assets violates, to the best of
Shareholders' knowledge, any laws, statutes, ordinances or regulations, or
has at any time infringed upon or violated any rights of others, or is
being infringed by others except as would not, in the aggregate, have a
material adverse effect on the Business; (D) none of the Intangibles, or
Seller's use thereof in connection with the Business and/or the Purchased
Assets is subject to any outstanding order, decree, judgment, stipulation
or any lien, security interest or other encumbrance except as would not, in
the aggregate, have a material adverse effect on the Business; and (E)
Seller has not granted any license to third parties with regard to its
Intangibles.
3.12. Domain Names. Schedule 3.12 sets forth each and every domain
name registered to the Seller and utilized by the Seller in the operation
of the Business. Except as set forth as Schedule 3.12, there are no other
domain names utilized by Seller .
3.13. Systems and Software. Seller owns or has the right to use
pursuant to lease, license, sublicense, agreement, or permission all
computer hardware, software and information systems necessary for the
operation of the businesses of Seller as presently conducted (collectively,
"Systems"). Except as set forth in Schedule 3.13, to the best of Seller's
knowledge, each System owned or used by Seller immediately prior to the
Closing Date will be owned or available for use by Purchaser or its
subsidiaries on identical terms and conditions immediately subsequent to
the Closing Date. With respect to each System owned by a third party and
used by Seller or its subsidiaries pursuant to lease, license, sublicense,
agreement or permission, to the best of Seller's knowledge (a) the lease,
license, sublicense, agreement or permission covering the System is legal,
valid, binding, enforceable, and in full force and effect; (b) the lease,
license, sublicense, agreement or permission will continue to be legal,
valid, binding, enforceable, and in full force and effect on identical
terms following the Closing Date; (c) no party to any such lease, license,
sublicense, agreement or permission is in material breach or default, and
no event has occurred which with notice or lapse of time would constitute a
material breach or default, and permit termination, modification or
acceleration thereunder; (d) no
8
party to any such lease, license, sublicense, agreement or permission has
repudiated any provision thereof; (e) Seller has not granted any
sublicense, sublease or similar right with respect to any such lease,
license, sublicense, agreement or permission; (f) Seller's use and
continued use of such Systems does not and will not interfere with,
infringe upon, misappropriate, or otherwise come into conflict with, any
intellectual property rights of third parties as a result of the continued
operation of the Business, except as would not, in the aggregate, have a
material adverse effect on the Business.
3.14. Certain Business Matters. Except as is set forth in Schedule
3.14, (a) Seller is not a party to or bound by any agreement which relates
to the sale or distribution of any of the products and services of the
Business, (b) Seller has no sole-source supplier of significant goods or
services (other than utilities) with respect to which practical alternative
sources are not available on comparable terms and conditions, (c) there are
no pending or, to the best knowledge of the Seller, threatened labor
negotiations, work stoppages or work slowdowns involving or affecting the
Business, and no union representation questions exist, and there are no
organizing activities, in respect of any of the employees of Seller, (d)
the product and service warranties given by Seller or by which it is bound
(complete and correct copies or descriptions of which have heretofore been
delivered by Seller to Purchaser) entail no greater obligations than are
customary in the Business, (e) other than as contemplated by this
Agreement, Seller is not a party to or bound by any agreement which limits
its freedom to compete in any line of business or with any person, or which
is otherwise materially burdensome to Seller, and (f) other than
contemplated by this Agreement, Seller is not a party to or bound by any
agreement in which any officer, director or stockholder of Seller (or any
affiliate of any such person) has, or had when made, a direct or indirect
material interest.
3.15. Approvals/Consents. To the best of Seller's knowledge, except as
set forth on Schedule 3.15, Seller currently holds all governmental and
administrative consents, permits, appointments, approvals, licenses,
certificates and franchises which are necessary for the operation of the
Business, all of which are in full force and effect and are transferable
pursuant to the transaction contemplated hereby without the payment of any
penalty or the incurrence of any additional debt, liability or obligation
of any nature whatsoever or the change of any term. Schedule 3.15 is a
complete and correct list of all such governmental and administrative
consents, permits, appointments, approvals, licenses, certificates and
franchises.
3.16. Suppliers. Schedule 3.16 sets forth all suppliers and vendors
whose services are necessary to the continued operation of the Business.
Seller does not have any reason to believe that the suppliers set forth in
Schedule 3.16 will not continue to provide service to Purchaser on the same
terms and conditions subsequent to the Closing Date.
3.17. Certain Contracts. Schedule 3.17 is a complete and correct list
of all contracts, commitments, indentures, mortgages, guarantees, debts,
obligations, agreements and understandings which relate to the Business to
which the Seller is a party or otherwise bound, not otherwise listed on any
other schedule hereto. Complete and correct copies of all such contracts,
commitments, indentures, mortgages, guarantees, debts, obligations,
agreements and undertakings have been furnished by the Seller to
9
Purchaser, and except as expressly stated on Schedule 3.17, to the best of
Seller's knowledge, (1) each of them is in full force and effect, no person
or entity which is a party thereto or otherwise bound thereby is in
material default thereunder, and no event, occurrence, condition or act
exists which does (or which with the giving of notice or the lapse of time
or both would) give rise to a material default or right of cancellation,
acceleration or loss of contractual benefits thereunder; (2) there has been
no threatened cancellations thereof, there are no outstanding disputes
thereunder and all amounts due thereunder have been paid in full as of the
Closing Date; (3) none of them is materially burdensome to the Seller; and
(4) except as set forth on Schedule 3.17, each of them is fully assignable
without the consent, approval, order or any waiver by, or any other action
of or with any individual or individuals, without the payment of any
penalty, the incurrence of any additional debt, liability or obligation of
any nature whatsoever or the change of any term. To the best of Seller's
knowledge, none of the material provisions of such contracts, commitments,
indentures, mortgages, guarantees, debts, obligations, agreements and
understandings violates any existing applicable law, rule, regulation,
judgment, order or decree of any governmental agency or court having
jurisdiction over the Seller, the Business or the Purchased Assets which
would, in the aggregate, have a material adverse effect on the Business.
3.18. Guarantees. Schedule 3.18 hereto is a complete and accurate list
and summary description of all written guarantees currently in effect
heretofore issued by any of the Shareholders to any bank or other lender in
connection with any credit extended by such creditors to the Seller or
issued by the Shareholders in connection with any other contracts or
agreements, including the name of such creditor and the amount of the
indebtedness, together with any interest and fees currently owing.
3.19. Insurance. Schedule 3.19 is a complete and correct list and
summary description of all contracts and policies of insurance relating to
any of the Purchased Assets or the Business, in which Seller or any
Shareholder is an insured party, beneficiary or loss payable payee. To the
best of Seller's knowledge, such policies are in full force and effect as
of the date hereof, and shall remain in effect through the Closing Date,
all premiums due and payable with respect thereto have been paid as of the
Closing Date, and no notice of cancellation or termination has been
received by Seller with respect to any such policy.
3.20. Banks; Powers of Attorney. Schedule 3.20 is a complete and
correct list showing (a) the names of each bank in which Seller has an
account or safe deposit box and the names of all persons authorized to draw
thereon or who have access thereto, and (b) the names of all persons, if
any, holding powers of attorney from Seller.
3.21. Employee Arrangements. To the best of Seller's knowledge,
Schedule 3.21 is a complete and correct list and summary description of all
current employees of Seller engaged in the Business, together with title
and salary information. Except as disclosed in Schedule 3.21, to the best
of Seller's knowledge, there are no (a) union, collective bargaining,
employment, management, termination and consulting agreements to which
Seller is a party or otherwise bound; (b) compensation plans and
arrangements; bonus and incentive plans and arrangements; deferred
compensation
10
plans and arrangements; pension and retirement plans and arrangements;
profit-sharing and thrift plans and arrangements; stock purchase and stock
option plans and arrangements; hospitalization and other life, health or
disability insurance or reimbursement programs; holiday, sick leave,
severance, vacation, tuition reimbursement, personal loan and product
purchase discount policies and arrangements; or (c) other plans or
arrangements providing for benefits for employees of Seller. As of the
Closing Date, all outstanding obligations to Seller employees, including
without limitation payment for unused vacation, sick or personal time,
bonuses, salaries, stock options, have been satisfied in full by the
Seller.
3.22. ERISA. Seller neither maintains nor, to the best of its
knowledge, is obligated to contribute to an "employee pension benefit plan"
("Seller Pension Plan"), as such term is defined in Section 3(2) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
Seller's "welfare benefit plan" (collectively called "Seller Welfare
Plans") as such term is defined in Section 3(1) of ERISA.
3.23. Environmental Matters. Seller has obtained and, to the best of
its knowledge, is in compliance with the terms and conditions of all
required permits, licenses, registrations and other authorizations required
under Environmental Laws (as hereinafter defined). To the best of its
knowledge, Seller has not released, discharged or disposed of on, under or
about any facility currently or previously, owned, leased or controlled by
Seller, any Hazardous Substance (as hereinafter defined), and to the best
of Seller's knowledge, no third party has released, discharged or disposed
of on, under or about any facility currently or previously owned, leased or
controlled by Seller, any Hazardous Substances (as hereinafter defined). To
the best of its knowledge, Seller is in compliance with all applicable
Environmental Laws. To be best of its knowledge, Seller has fully disclosed
to Purchaser all past and present noncompliance with, or liability under,
Environmental Laws, and all past discharges, emissions, leaks, releases or
disposals by it of any substance or waste regulated under or defined by
Environmental Laws that have formed or could reasonably be expected to form
the basis of any claim, action, suit, proceeding, hearing or investigation
under any applicable Environmental Laws. Seller has not received notice of
any past or present events, conditions, circumstances, activities,
practices, incidents, actions or plans of Seller that have resulted in or
threaten to result in any common law or legal liability, or otherwise form
the basis of any claim, action, suit, proceeding, hearing or investigation
under, any applicable Environmental Laws. For purposes of this Section
3.23, (a) "Environmental Laws" mean applicable federal, state, local and
foreign laws, regulations and codes relating in any respect to pollution or
protection of the environment and (b) "Hazardous Substances" mean any
toxic, caustic or otherwise dangerous substance (whether or not regulated
under federal, state or local environmental statutes, rules, ordinances, or
orders), including (i) "hazardous substance" as defined in 42 U.S.C.
Section 9601, and (ii) petroleum products, derivatives, byproducts and
other hydrocarbons.
3.24. Securities Act Representation. With regard to the Share
Consideration or in the event of a conversion of the debt portion of the
Purchase Price into Frontline Common Stock pursuant to the terms of the
Note, Seller hereby represents that it is acquiring the Frontline Common
Stock solely for investment
11
purposes, with no intention of distributing or reselling any such stock or
any interest therein. The Sellers are aware that the Frontline Common Stock
will not be registered under the Securities Act of 1933, as amended (the
"Securities Act"), and that neither the Frontline Common Stock nor any
interest therein may be sold, pledged, or otherwise transferred unless the
Frontline Common Stock is registered under the Securities Act or qualifies
for an exemption under the Securities Act. Notwithstanding the foregoing,
the parties recognize that Purchaser has granted Seller certain
registration rights in the event of a conversion of the debt portion of the
Purchase Price into Frontline Common Stock pursuant to the terms of the
Note, the terms of which are set forth in the Registration Rights Agreement
annexed hereto as Exhibit G.
3.25. Taxes. Seller has made and shall continue to make current and
timely payment of all Federal and applicable State sales, payroll and other
applicable taxes which are due or may become due by reason of the operation
of the Purchased Assets for the period prior to the Closing Date,
including, but not limited to, the withholding tax liability set forth in
Schedule 3.25, which debt constitutes a Retained Liability. There is no
other outstanding tax liability except as set forth in Schedule 3.25.
3.26. Information as to Seller. None of the representations or
warranties made by Seller and the Shareholders in this Agreement is, or
contained in any of the Seller Documents to be executed and delivered
hereto will be, false or misleading with respect to any material fact, or
omits to state any material fact necessary in order to make the statements
therein contained not misleading.
4. Representations and Warranties as to Purchaser. Purchaser represents and
warrants to Seller, as follows:
4.1. Organization, Standing and Power. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware, with full corporate power and corporate authority to (i)
own, lease and operate their properties, (ii) carry on their business as
currently conducted by them and (iii) execute and deliver, and perform
under this Agreement and each other agreement and instrument to be executed
and delivered by them pursuant hereto.
4.2. Authority of Purchaser. The execution and delivery by Purchaser
of this Agreement and of each agreement to be executed and delivered by it
pursuant hereto (collectively, the "Purchaser Documents"), the performance
by Purchaser of its obligations hereunder and thereunder, and the
consummation of the transactions contemplated hereby and thereby, have been
duly and validly authorized by all necessary corporate action on the part
of Purchaser, and Purchaser has all necessary corporate power and corporate
authority with respect thereto. This Agreement is, and when executed and
delivered by Purchaser each of the other agreements to be delivered by
Purchaser pursuant hereto will be, the valid and binding obligation of
Purchaser, to the extent they are a party thereto, in accordance with their
respective terms except as the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the rights
of creditors generally and subject to the rules of law governing (and all
limitations on) specific performance, injunctive relief, and other
equitable remedies.
12
4.3. Information as to Purchaser. None of the representations or
warranties made by Purchaser in this Agreement, or contained in any of the
Purchaser Documents, to be executed and delivered hereto, is or will be,
false or misleading with respect to any material fact, or omits to state
any material fact necessary in order to make the statements therein
contained not misleading.
4.4. Due Authorization and Issuance of Share Consideration. The Share
Consideration, when issued pursuant to the terms of Section 1.4 of this
Agreement, will be duly authorized and validly issued, fully paid and
non-assessable, will be delivered hereunder free and clear of any liens,
except that such shares of Frontline Common Stock will be "restricted
securities", as such term is defined in the rules and regulations of the
SEC promulgated under the Securities Act, and will be subject to
restrictions on transfers pursuant to such rules and regulations.
5. Indemnification.
5.1. Indemnification by the Seller. Subject to the consummation of the
transactions contemplated hereby, the Seller and Shareholders hereby
indemnify and agree to defend and hold harmless Purchaser for one year
after the Closing from and against any and all losses, obligations,
deficiencies, liabilities, claims, damages, costs and expenses (including,
without limitation, the amount of any settlement entered into pursuant
hereto, and all reasonable legal and other expenses incurred in connection
with the investigation, prosecution or defense of any matter indemnified
pursuant hereto) which Purchaser may sustain, suffer or incur and which
arise out of, are caused by, relate to, or result or occur from or in
connection any misrepresentation of a material fact contained in any
representation of Seller or Shareholders and contained in, or the breach by
Seller or Shareholders of any warranty or covenant made by them, in any
Seller Documents except as same would not have a material adverse effect on
the Business. Any indemnification claims under this Section 5.1 shall not
exceed the amount of the Note, and shall be satisfied by reducing the
outstanding amount due under the Note.
5.2. Indemnification by Purchaser. Subject to the consummation of the
transactions contemplated hereby, Purchaser hereby indemnifies and agrees
to defend and hold harmless Seller and Shareholders for one year after the
Closing from and against any and all losses, obligations, deficiencies,
liabilities, claims, damages, costs and expenses (including, without
limitation, the amount of any settlement entered into pursuant hereto, and
all reasonable legal and other expenses incurred in connection with the
investigation, prosecution or defense of any matter indemnified pursuant
hereto), which it or they may sustain, suffer or incur and which arise out
of, are caused by, relate to, or result or occur from or in connection with
any misrepresentation of a material fact contained in any representation of
Purchaser contained in, or the breach by Purchaser of any warranty or
covenant made by it, in any Purchaser Documents, except that such
indemnification shall not exceed $728,600.
5.3. Third Party Claims. If a claim by a third party is made against
any party or parties hereto and the party or parties against whom said
claim is made intends to seek indemnification with respect thereto under
Subsections 5.1 or 5.2, the party or parties seeking such indemnification
shall promptly notify the indemnifying party or parties, in
13
writing, of such claim; provided, however, that the failure to give such
notice shall not affect the rights of the indemnified party or parties
hereunder except to the extent that such failure materially and adversely
affects the indemnifying party or parties due to the inability to timely
defend such action. The indemnifying party or parties shall have ten (10)
business days after said notice is given to elect, by written notice given
to the indemnified party or parties, to undertake, conduct and control,
through counsel of their own choosing (subject to the consent of the
indemnified party or parties, such consent not to be unreasonably withheld)
and at their sole risk and expense, the good faith settlement or defense of
such claim, and the indemnified party or parties shall cooperate with the
indemnifying parties in connection therewith; provided: (a) all settlements
require the prior reasonable consultation with the indemnified party and
the prior written consent of the indemnified party, which consent shall not
be unreasonably withheld, and (b) the indemnified party or parties shall be
entitled to participate in such settlement or defense through counsel
chosen by the indemnified party or parties, provided that the fees and
expenses of such counsel shall be borne by the indemnified party or
parties. So long as the indemnifying party or parties are contesting any
such claim in good faith, the indemnified party or parties shall not pay or
settle any such claim; provided, however, that notwithstanding the
foregoing, the indemnified party or parties shall have the right to pay or
settle any such claim at any time, provided that in such event they shall
waive any right of indemnification therefor by the indemnifying party or
parties. If the indemnifying party or parties do not make a timely election
to undertake the good faith defense or settlement of the claim as
aforesaid, or if the indemnifying parties fail to proceed with the good
faith defense or settlement of the matter after making such election, then,
in either such event, the indemnified party or parties shall have the right
to contest, settle or compromise (provided that all settlements or
compromises require the prior reasonable consultation with the indemnifying
party and the prior written consent of the indemnifying party, which
consent shall not be unreasonably withheld) the claim at their exclusive
discretion, at the risk and expense of the indemnifying parties. Any
indemnification claims under this Section 5.3 shall not exceed the amount
of the Note, and shall be satisfied by reducing the amount due under the
Note.
5.4. No Limitation on Direct Claims. Notwithstanding any limitation on
indemnity claims, nothing in this Section 5 shall limit Purchaser's right
to pursue a direct claim against Seller based upon any breach of this
Agreement.
5.5. Assistance. Regardless of which party is controlling the defense
of any claim, each party shall act in good faith and shall provide
reasonable documents and cooperation to the party handling the defense.
6. Covenants
6.1. Investigation.
(a) The parties hereto hereby agree that all confidential
information of a party to which the other party (or its agents,
attorneys, representatives, or employees) obtains access shall be
deemed "Confidential Information." As used in this Section, the term
"Confidential Information" shall mean any and all information (oral
and written) relating to the Business, including, but not limited to,
information relating to:
14
identity and description of goods and services used; purchasing;
costs; pricing; sources; machinery and equipment; technology;
research, test procedures and results; customers and prospects;
marketing; and selling and servicing.
(b) After the Closing Date Seller and Purchaser agrees not to, at
any time, directly or indirectly, use (except in connection with the
performance of the Shareholders' duties under their respective
Consulting Agreements), communicate, disclose or disseminate any
Confidential Information in any manner whatsoever.
6.2. Noncompete Covenant.
(a) The Seller and Shareholders hereby agree after the Closing
Date, not to, until the second anniversary of the Closing Date
directly or indirectly (A) engage or become interested in any business
(whether as owner, manager, operator, licensor, licensee, lender,
partner, stockholder, joint venturer, employee, consultant or
otherwise) engaged in any business then engaged in by Purchaser or
Seller in the States of Delaware, Virginia, Maryland, Washington D.C.,
New Jersey, Pennsylvania and New York in which Purchaser or Seller
conducts business as of the Closing Date. Notwithstanding the
foregoing, nothing in this paragraph shall prevent the Seller or the
Shareholder from becoming an owner, either directly or in directly, of
up to two percent (2%) of the publicly traded capital stock, or up to
a ten (10%) interest in a privately held company, held solely for
investment purposes, of any other corporation engaged in the same or
similar Business as the Company. For the purpose of this provision,
"the Business" is defined as outlined in the Preamble. Shareholders
and Seller further agree until the second anniversary of the Closing
Date not to take any other action which constitutes an interference
with or a disruption of the continued operation of the Business or
Purchaser's use, ownership and enjoyment of the Purchased Assets.
Purchaser agrees that the restrictions set forth above shall be null
and void if Purchaser defaults under the terms of the Note.
(b) For purposes of clarification, but not of limitation, the
Seller and the Shareholders acknowledge and agree that the provisions
of subsection 6.2 above shall serve as a prohibition against them,
during the period and geographic area described therein, directly or
indirectly, hiring, offering to hire, enticing away or in any other
manner persuading or attempting to persuade any officer, employee,
agent, lessor, lessee, licensor, licensee, customer, prospective
customer or supplier of the Business to discontinue or alter his or
its relationship with the Business.
(c) The parties hereto hereby acknowledge and agree that (i)
Purchaser would be irreparably injured in the event of a breach by the
Seller or Shareholders of any of their obligations under this Section
6.2, (ii) monetary damages would not be an adequate remedy for any
such breach, and (iii) Purchaser shall be entitled to injunctive
relief, in addition to any other remedy which it may have, in the
event of any such breach.
(d) It is the intent of the parties hereto that the covenants
contained in this Section 6.2 shall be enforced to the fullest extent
permissible under the laws of and public policies of each jurisdiction
in which enforcement is sought, hereby acknowledges that said
restrictions are reasonably necessary for the protection of
15
Purchaser. Accordingly, it is hereby agreed that if any one or more of
the provisions of Section 6.2 shall be adjudicated to be invalid or
unenforceable for any reason whatsoever, said provision shall be
construed by limiting and reducing it so as to be enforceable to the
extent permissible.
6.3. Consummation of Transaction. Each of the parties hereto hereby
agrees to use its best efforts to cause all conditions precedent to his or
its obligations (and to the obligations of the other parties hereto to
consummate the transactions contemplated hereby) to be satisfied,
including, but not limited to, using all reasonable efforts to obtain all
required (if so required by this Agreement) consents, waivers, amendments,
modifications, approvals, authorizations, novations and licenses; provided,
however, that nothing herein contained shall be deemed to modify any of the
absolute obligations imposed upon any of the parties hereto under this
Agreement or any agreement executed and delivered pursuant hereto.
6.4. Cooperation/Further Assurances.
(a) Each of the parties hereto hereby agrees for a period of not
less than ninety (90) days following the Closing Date (i) to fully
cooperate with the other parties hereto in preparing and filing any
notices, applications, reports and other instruments and documents and
(ii) to execute, acknowledge, deliver, file and/or record, or cause
such other parties to the extent permitted by law to execute,
acknowledge, deliver, file and/or record such other documents, which
may be required by this Agreement or which are desirable in the
reasonable opinion of any of the parties hereto, or their respective
legal counsel, in respect of, any statute, rule, regulation or order
of any governmental or administrative body in connection with the
transactions contemplated by this Agreement.
(b) During the Transition Period (as defined in Section 1.5
above), the Seller agrees to make available the personnel listed in
Schedule 6.4 (the "Transition Employees") to provide assistance in the
orderly transfer of customer accounts from Seller to Purchaser,
including without limitation technical support, customer service and
administrative services with respect to billing. Purchaser shall
reimburse Seller for the cost of the Transition Employees as set forth
in Schedule 6.4. Seller shall use its best efforts to obtain a written
agreement from each of the Transition Employees, in substantially the
form attached hereto as Exhibit L, in which the Transition Employee
agrees to remain in his or her current position during the Transition
Period in return for his or her hourly rate, plus a bonus equal to
four weeks pay.
(c) Seller and Shareholders agree to make all information
available to, and to cooperate fully with, Purchaser and their
accountants, legal counsel or other authorized representatives (at
Purchaser's sole expense), with respect to the preparation and
submission of audited financial statements for Seller, in accordance
with GAAP and Regulation S-X, as may be required by any government or
regulatory agency following the transactions contemplated hereby.
6.5. Name Change/Dissolution. Within ninety (90) days of the Closing
Date, Shareholders will either: (a) file a Certificate of Amendment with
the
16
Delaware Secretary of State changing the name of DelaNET, Inc. to a name
bearing no relation to DelaNET, Inc. or (b) file a certificate of
dissolution dissolving the corporation.
6.6. Broker. Each of Purchaser and Seller represents and warrants to
the other parties that no broker or finder was engaged or dealt with in
connection with any of the transactions contemplated by this Agreement, and
each of the parties shall indemnify and hold the other harmless from and
against any and all claims or liabilities asserted by or on behalf of any
alleged broker or finder for broker's fees, finder's fees, commissions or
like payments.
6.7. Bulk Sales. Seller shall either (1) comply with applicable Bulk
Sales Law pursuant to Article 6 of the Uniform Commercial Code or
applicable Delaware Bulk Sales laws (the "Bulk Sales Law") or (2) waive
compliance with the Bulk Sales Law and agree to indemnify and hold harmless
Purchaser from and against any and all claims, damages, costs, liabilities,
and similar (including without limitation, the amount of any settlement
entered into pursuant hereto, and all reasonable legal and other expenses
incurred) which arise out of, to, or are in connection with the failure to
comply with the Bulk Sales Law. Seller assumes liability for and shall pay
all New Jersey, Delaware, Maryland and Pennsylvania sales, bulk transfer
and similar taxes incurred as a result of the sale of the Purchased Assets
to Purchaser.
7. Fees, Amendment and Waiver.
7.1. Fees and Expenses. Purchaser, on the one hand, and Seller, on the
other hand, shall each bear their own expenses in connection with the
transactions contemplated hereby.
7.2. Amendment. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
7.3. Waiver. Failure by any party to enforce its rights under this
Agreement shall not be deemed a waiver of said party's rights under this
Agreement. No waiver shall be deemed valid unless in writing and signed by
all parties.
8. Survival of Representations and Warranties.
Each of the parties hereto hereby agrees that: (i) representations and
warranties made by or on behalf of him or it in this Agreement or in any
document or instrument delivered pursuant hereto with respect to
environmental compliance and ERISA matters shall be true and correct as of
the Closing Date; and (ii) all other representations or warranties made
herein shall survive the Closing Date for a period of one (1) year after
the Closing Date.
9. General Provisions.
9.1. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the
17
earlier of the date delivered or mailed if delivered personally, by
overnight courier or mailed by express, registered or certified mail
(postage prepaid, return receipt requested) or by facsimile transmittal,
confirmed by express, certified or registered mail, to the parties at the
following addresses (or at such other address for a party as shall be
specified by like notice, except that notices of changes of address shall
be effective upon receipt):
If to Purchaser: Frontline Communications Corp.
Xxx Xxxx Xxxx Xxxxx
Xxxxx 0000
Xxxxx Xxxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxx-Xxxx, Esq.
with a copy to: Blank Rome Xxxxxx Xxxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx, Esq.
If to Seller or Shareholders: DelaNET, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
With a copy to: Xxxxxxxx, Xxxxxx & Finger
0 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
9.2. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in
any manner adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are
fulfilled to the greatest extent possible.
9.3. Entire Agreement. This Agreement and the agreements referred to
herein constitute the entire agreement, and supersede all prior agreements
and undertakings, both written and oral, among the parties, or any of them,
with respect to the subject matter hereof.
9.4. No Assignment. This Agreement shall not be assigned by operation
of law or otherwise, and any assignment shall be null and void.
9.5. Headings. Headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
18
9.6. Passage of Title and Risk of Loss. Legal title, equitable title,
obligations and risk of loss with respect to the Purchased Assets and
Assumed Liabilities will not pass to Purchaser until such Purchased Assets
and Assumed Liabilities are transferred at the closing, which transfer,
once it has occurred will be deemed effective for tax, accounting and other
computational purposes as of 11:59:59 pm EST on June 20, 2000.
9.7. Certain Interpretive Matters. No provision of this Agreement will
be interpreted in favor of, or against either of the parties hereto by
reason of the extent to which either such party or its counsel participated
in the drafting thereof or by reason of the extent to which such provision
is inconsistent with any prior draft hereof.
9.8. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the law of the State of Delaware. Any controversy or
claim arising out of, or relating to this Agreement or the breach thereof
shall be settled by arbitration, in accordance with the current rules of
the American Arbitration Association, by an arbitrator mutually agreed to
by the parties or appointed by the American Arbitration Association if the
parties cannot so agree and judgment upon the award rendered may be entered
in the Delaware court of Chancery if the Seller is the prevailing party and
the United States District Court for the Southern District of New York if
Purchaser is the prevailing party. The arbitration proceedings shall be
held at a location which shall have been mutually agreed upon by the
parties, which location shall be approximately equidistant to both parties.
9.9. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original, but all
of which taken together shall constitute one and the same agreement.
AGREED TO AND ACCEPTED AS OF
THIS 20th DAY OF JUNE, 2000
FRONTLINE COMMUNICATIONS CORP.
By:
Title:
DELANET, INC.
By:
Title:
19
XXXXXXX XXXXX, SHAREHOLDER
---------------------------
XXXXXX XXXXXXXX, SHAREHOLDER
---------------------------
20
