ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made as of this ___ day of
January, 2002, by and between INDIGINET, INC., a Florida corporation
("Purchaser"), whose address is X.X. Xxx 00000, Xxxxxxx, Xxxxxxx 00000, and WB
CONNECT, LLC, a Colorado limited liability company ("Seller"), whose address is
X.X. Xxx 000000, Xxxxxx, Xxxxxxxx 00000.
A. Seller is engaged in the business of providing wireless data solutions
in the state of Colorado (the "Business").
B. Purchaser intends to buy, and Seller intends to sell, substantially all
of the assets of Seller that relate directly or indirectly to Seller's Business,
upon the terms and conditions set forth in this Agreement. In addition,
Purchaser desires to assume certain specific liabilities of Seller as set forth
herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, both parties agree as follows:
1. Transfer of Assets. Subject to the terms and conditions of this
Agreement, Seller agrees to sell and deliver to Purchaser, and Purchaser agrees
to purchase from Seller, as of the Closing Date (as defined herein), all of
Seller's right, title and interest to and in all assets, properties and rights
(of any kind, nature, character and description, whether tangible or intangible,
whether accrued, contingent or otherwise, wherever located) owned by Seller as
of the Closing Date that relate to or are used in, or otherwise associated with,
the Business (the "Purchased Assets"); provided, however, Seller will retain and
not transfer to Purchaser the assets described in Section 2 of this Agreement
(the "Excluded Assets"). The Purchased Assets shall include, without limitation,
the following:
1.1. Personal Property. All equipment, fixtures, furniture, supplies
and other personal property owned, utilized or held for use by Seller in
the Business, including, without limitation, the equipment and other assets
described on Schedule 1.1 (the "Personal Property").
1.2 Leases. All rights of Seller under the leases of real property and
Personal Property used in connection with Seller's Business which are
listed on Schedule 1.2 under the heading "Assumed Leases." The leases
referred to in this Section 1.2 are referred to herein as the "Assumed
Leases." The Assumed Leases shall not include, however, and Purchaser shall
not assume, any other lease that is not an Assumed Lease (collectively, the
"Excluded Leases").
1.3 Contracts. All rights of Seller (including, without limitation,
all of Seller's right to receive goods and services and to assert claims
and to take other action with respect to breaches, defaults and other
violations pursuant to such contracts) under all contracts, agreements and
commitments which are identified on Schedule 1.3.A; provided that the
assumption of such contracts, agreements and commitments by Purchaser shall
not constitute a waiver of any rights of indemnification or other rights
under this Agreement which Purchaser may have by virtue of
such contract, or any of its provisions, constituting a breach of any
representation or warranty made by Seller herein. The contracts referred to
in this Section 1.3 are referred to herein as the "Assumed Contracts." The
Assumed Contracts shall not include, however, and Purchaser shall not
assume, any other contract which is not an Assumed Contract, including,
without limitation, those contracts set forth under the heading "Excluded
Contracts" on Schedule 1.3.13 (collectively, the "Excluded Contracts").
1.4. Intangible Assets. All of Seller's right, title and interest in
and to all goodwill, licenses, trade names (including, without limitation,
the name "WB Connect," together with all derivations and variations of such
name), assumed names, trade dress, business identifiers, trademarks,
service marks, copyrights, applications and registrations for any of the
foregoing, trade secrets, confidential information, know-how, causes of
action (including all claims for infringement), claims (including
contractual claims), contractual rights or agreements granting any right,
title, license or privilege with respect to intellectual property and all
other intangible assets relating to, used in or held for use in the
operation of the Business (the "Intangible Assets"), including, without
limitation, the Intangible Assets listed on Schedule 1.4.
1.5. Records and Documents. All records, computer software and
documents, computer source codes and programs, books, supplier, dealer and
customer lists, catalogs and technical data, work orders, credit
information and correspondence, operating data, drawings, blueprints,
specifications, designs, financial information, product data and records,
account information, sales leads, sales representative information, and all
other records and documents used in connection with the operation of the
Purchased Assets, but specifically excluding Seller's Articles of
Organization (with all amendments thereto), Operating Agreement (with all
amendments thereto), minutes and documents relating to the qualification of
Seller as a domestic or foreign corporation.
1.6. Prepaid Assets. All of Seller's rights to prepaid deposits, lease
payments, insurance and other prepaid items, including, without limitation,
those prepaid items listed on Schedule 1.6 (the "Prepaid Assets").
1.7. Literature. All sales literature, promotional literature,
catalogs, sales and marketing materials and similar materials relating to
the Business, but excluding any literature that is the basis for any
pending or threatened litigation. Purchaser shall be entitled to use all
such materials in the operation of the Purchased Assets.
1.8. Vehicles. All automobiles, trucks, trailers, automotive equipment
and other vehicles owned, leased or used in connection with the operation
of the Business, including, without limitation, those listed on Schedule
1.8 (the "Vehicles").
1.9. Accounts Receivable. All of Seller's accounts receivable and all
evidences of indebtedness and rights, including contingent rights, to
receive payment from any other person or entity, including, without
limitation, those items listed on Schedule 1.9 (the "Accounts Receivable").
1.10. Inventory. All of Seller's inventory used in connection with the
Business, including, but not limited to, the inventory items listed on
Schedule 1.10 (the "Inventory").
1.11. No Encumbrances. Except as specifically assumed by Purchaser in
Section 3 of this Agreement, Seller shall transfer the Purchased Assets
free and clear of all liabilities, obligations, liens, security interests
and encumbrances.
2. Assets Excluded From Sale. There shall be excluded from sale under this
Agreement those assets specifically identified on Schedule 2 (the "Excluded
Assets").
3. Liabilities.
3.1. Excluded Liabilities. Except as specifically provided in Section
3.2, Purchaser shall not assume, and shall not be obligated to pay, perform
or discharge any debts, liabilities or obligations of Seller, whether
actual, contingent or accrued, known or unknown, including, but not limited
to, any Employee Payments (as defined in Section 8.19 of this Agreement),
which liabilities shall be retained by Seller and shall hereafter be
referred to as the "Excluded Liabilities." Seller shall indemnify and hold
Purchaser harmless (which indemnity and hold harmless shall be indefinite
and not subject to the duration or other limitations in Section 12) against
any Excluded Liabilities.
3.2. Assumed Liabilities. Subject to the terms and conditions of this
Agreement, Purchaser shall assume and pay, perform and discharge in
accordance with their terms only the following obligations and liabilities
of Seller as of the Closing Balance Sheet Date (the "Assumed Liabilities"):
(a) liabilities identified on Schedule 3.2 which arise under the
Assumed Leases and Assumed Contracts; and
(b) those liabilities which Purchaser specifically agrees to
assume and are specifically identified on Schedule 3.2.
4. Purchase Price.
4.1. Purchase Price and Manner of Payment. In consideration of
Seller's sale, assignment and transfer of the Purchased Assets and the
performance by Seller of all the terms, covenants and provisions of this
Agreement on its part to be kept and performed, Purchaser shall pay to
Seller a purchase price (the "Purchase Price") in the form of Sixty
Thousand (60,000) shares of common stock, no par value, (the "Indiginet
Stock", and together with the Additional Shares (as defined herein),
referred to herein as the "Indiginet Stock"), which Seller and Purchaser
have agreed is valued at $0.10 per share for a total of $6,000.00 and shall
be issued as follows: Purchaser shall deliver a treasury request to
Purchaser's transfer agent directing the issuance to Seller of 60,000
shares of Indiginet Stock. In order to evidence such transfer and issuance
of the Indiginet Stock, Purchaser shall deliver a copy of the treasury
request issued to Purchaser's transfer agent to Seller on the Closing Date.
The share certificate
evidencing the Indiginet Stock shall be delivered to Seller by Purchaser's
transfer agent within twenty (20) days of the Closing Date.
4.2. Allocation of Purchase Price. The Purchase Price shall be
assigned and allocated to the Purchased Assets in the manner mutually
agreed upon by the parties within twenty (20) days of the Closing Date and
in accordance with the allocation to be described in Schedule 4.2 attached
hereto.
4.3. Payments of Transfer Tax. All taxes imposed in connection with
the sale and transfer of the Purchased Assets to Purchaser shall be borne
by Seller and Seller shall indemnify and hold Purchaser harmless with
respect to any such tax which might be levied on or collected from
Purchaser.
4.4 Earnout Bonuses. Seller shall be eligible to receive the following
additional payments in the event that the applicable provisions are
attained. To be eligible for any of the following additional payments, all
sales of wireless broadband services shall be approved in advance by the
President of Purchaser:
4.4.1 Revenue Bonus. In the event that the gross revenue received
by Purchaser from sales of wireless broadband services equals or
exceeds $1,500,000 ("Revenue Threshold") at any time during the
calendar year 2002, Purchaser shall pay to Seller an amount equal to
five percent (5%) of the gross revenues received by Purchaser
("Revenue Bonus") within ninety (90) days of achieving the Revenue
Threshold. At the end of 2002, Purchaser shall pay to Seller five
percent (5%) of any additional gross revenue received by Purchaser for
sales of wireless broadband services in excess of the Revenue
Threshold and not previously paid by Purchaser. In the event that any
amounts recognized as gross revenue for purposes of calculating this
Revenue Bonus are not collectable by Purchaser at the end of 2002,
Seller agrees to adjust the Revenue Bonus amount based upon the
calculation of gross revenue excluding these uncollectable amounts and
Seller agrees to repay any amounts not earned and which have
previously been paid to Seller pursuant to this Section.
4.4.2 Gross Margin Bonus. In the event that the gross margin from
sales of wireless broadband services during the period beginning on
January 1, 2002 and ending April 30, 2002 equals or exceeds $175,000
("Gross Margin Threshold"), Purchaser shall pay to Seller an amount
equal to ten percent (10%) of the gross margin in excess of the Gross
Margin Threshold ("Gross Margin Bonus"). Payment of the Gross Margin
Bonus, if any, shall be made on or before June 30, 2002.
5. Additional Agreements. On the Closing Date, Purchaser shall enter into
employment agreements with each of (i) Xxxxx Xxxx ("Xxxx Agreement"), in
substantially the same form as Exhibit 5A attached hereto, (ii) Xxxxx Xxxxxx
("Xxxxxx Agreement"), in substantially the same form as Exhibit 5B attached
hereto and (iii) Xxx Xxxxxxx ("Xxxxxxx Agreement"), in substantially the same
form as Exhibit 5C attached hereto.
6. Closing The closing of this transaction, including the transfer of all
of the Purchased Assets and the assumption of the Assumed Liabilities, shall
take place at the offices of Seller at 10:00 am. on the date which is three (3)
business days following receipt of all consents necessary or required to
consummate the transactions contemplated by this Agreement (the "Closing Date"),
or at such other date and location as the party shall agree upon.
7. Representations and Warranties of Purchaser. As material representations
to induce Seller to enter into this transaction, Purchaser makes the following
representations and warranties to Seller, each of which is true and correct as
of the Closing Date:
7.1. Corporate Organization. Purchaser is a corporation duly organized
and existing in good standing under the laws of the State of Florida and
has filed all reports required to be filed with the Secretary of State of
the State of Florida and has all corporate power and authority to own,
operate and lease its properties and carry on its businesses as now
conducted. Purchaser is duly licensed and qualified to transact business as
a foreign corporation and is in good standing in each of the jurisdictions
in which such qualification is necessary whether by reason of the ownership
or leasing of its properties or the conduct or nature of its business.
7.2. Authorization of Agreement. Purchaser has all corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions provided for herein and the execution and delivery of this
Agreement by Purchaser and the performance of its obligations to be
performed hereunder have been duly authorized by all necessary and
appropriate action by Purchaser's Board of Directors. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby do not and will not conflict with or result in a breach
of, or constitute a default under, the terms or conditions of Purchaser's
Articles of Incorporation or Bylaws, or any order, judgment or decree or
any agreement or instrument to which Purchaser is a party or by which
Purchaser or its assets are bound or affected. This Agreement is, and each
other agreement and document to be executed by Purchaser will be when so
executed, a valid and binding obligation of Purchaser enforceable in
accordance with its terms.
7.3. Disclosure. No representation or warranty by Purchaser contained
in this Agreement or in any writing to be furnished pursuant hereto or
previously furnished to Seller contains or will contain any material untrue
statement of fact or omits or will omit to state any fact required to make
the statements therein contained not misleading. All statements and
information contained in any certificate, instrument, disclosure schedule
or document delivered by or on behalf of Purchaser shall be deemed
representations and warranties by Purchaser.
7.4. Consents. Purchaser shall have delivered to Seller copies of all
consents from any person or entity not a party to this Agreement whose
consent is necessary or desirable for the execution and performance of this
Agreement by Purchaser, on or prior to the Closing Date.
7.5. Purchase Price Allocation. Purchaser represents, warrants and
covenants to Seller to report the transaction contemplated by this
Agreement as a sale and purchase of the Purchased Assets in the specific
amounts to be described on Schedule 4.2 for purposes of federal, state and
local taxes or filings required to be made under the Securities Exchange
Act of 1934, as amended, after the Closing Date and shall not take any
position to the contrary in any tax return or
proceeding before any taxing authority. Purchaser shall cooperate fully
with Seller, shall execute any documents reasonably requested by Seller,
and shall furnish appropriate information and testimony, upon request, with
respect to any liability asserted by taxing authorities, all without
payment of further consideration; provided such tax liability relates to
the Purchased Assets or Assumed Liabilities after the Closing Date.
7.6. Brokers and Finders. Neither Purchaser nor any affiliate nor any
officer or director thereof has engaged any finder or broker in connection
with the transactions contemplated hereunder.
7.7. Indiginet Stock. The Indiginet Stock will, upon issuance, be duly
authorized, fully paid and non-assessable.
8. Representations and Warranties of Seller. As material representations to
induce Purchaser to enter into this transaction, Seller makes the following
representations and warranties to Purchaser, each of which is true and correct
as of the Closing Date:
8.1. Organization. Seller is a limited liability company duly
organized and existing in good standing under the laws of the State of
Colorado and has filed all reports required to be filed with the Secretary
of State of the State of Colorado and has all corporate power and authority
to own, operate and lease its properties and carry on its businesses as now
conducted. Seller is duly licensed and qualified to transact business as a
foreign corporation and is in good standing in each of the jurisdictions in
which such qualification is necessary whether by reason of the ownership or
leasing of its properties or the conduct or nature of its business.
8.2. Authorization of reement. Seller has all corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions provided for herein and the execution and delivery of this
Agreement by Seller and the performance of its obligations to be performed
hereunder have been duly authorized by all necessary and appropriate action
by Seller's Members and Managers. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby do
not and will not conflict with or result in a breach of, or constitute a
default under, the terms or conditions of Seller's Articles of Organization
or Operating Agreement, or any order, judgment or decree or any agreement
or instrument to which Seller is a party or by which Seller or its assets
are bound or affected. This Agreement is, and each other agreement and
document to be executed by Seller will be when so executed, a valid and
binding obligation of Seller enforceable in accordance with their terms.
8.3. Financial Statements. Seller has deliv=d to Purchaser copies of
the balance sheets of Seller as of December 31, 2001 and January:3I; 2002
(the later balance sheet is referred to herein as "Seller's Balance Sheet,"
and the date of such Seller's Balance Sheet being referred to herein as the
"Seller's Balance Sheet Date"j and the related unaudited statement of
income and cash flows of Seller for the periods then ended, all of which
are complete and correct, have been
prepared from the books and records of Seller consistently maintained
throughout the periods indicated and fairly present the financial condition
of Seller as of their respective dates and the results of its operations
for the periods covered thereby. Seller's books of account are complete and
correct and have been maintained in accordance with sound business
practices, including the maintenance of an adequate system of internal
controls.
8.4. Absence of Undisclosed Liabilities. To the best knowledge of
Seller there are no liabilities or obligations, direct or indirect,
absolute or contingent, or any outstanding evidence of indebtedness,
including any open purchase orders, arising out of or relating to the
Business or the Purchased Assets, except (i) as fully reflected or as
specifically reserved against on the Seller's Balance Sheet, and (ii)
liabilities incurred in the ordinary course of business after the Seller's
Balance Sheet Date, consistent with Seller's prior practice, which, in the
aggregate, do not result in any adverse change in the financial condition
of the Business or the Purchased Assets from that set forth in Seller's
Balance Sheet.
8.5. Business Changes. Since the Seller's Balance Sheet Date, there
has not been:
(a) with respect to the Business, Seller or the Purchased Assets,
any material adverse change in condition or prospects (financial or
other); (ii) material damage, destruction or loss (whether or not
covered by insurance); or (iii) material transaction outside the
ordinary course of business;
(b) any sale, lease, transfer, assignment, abandonment or other
disposition of any asset that if owned by Seller on the Closing Date
would have been a Purchased Asset (other than in the ordinary course
of business);
(c) any notice or indication of termination or potential
termination of any other material contract, lease or relationship,
which, in any case or in the aggregate, has or may have an adverse
effect upon the Business or the Purchased Assets;
(d) any change in the rate of compensation, commission, bonus or
other direct or indirect remuneration payable or to be paid, or any
agreement or promise to pay, conditionally or otherwise, any extra
compensation to any officer, director or employee of Seller, other
than in the ordinary course of business consistent with past practice;
(e) any other change in the selling, pricing, advertising or
personnel practices of Seller inconsistent with Seller's prior
practice and prudent business practices prevailing in the industry;
(f) any payment of any liability other than those then required
to be discharged or satisfied or current liabilities shown on the
Seller's Balance Sheet and current liabilities incurred since the
Seller's Balance Sheet in the ordinary course of business and
consistent with past practices;
(g) any intercompany loans or payments, distributions or
transfers of cash or other assets by Seller out of the ordinary course
of business;
(h) any material deviation from the ordinary and usual course of
conducting the operation of the business;
(i) any mortgage, pledge or creation of any lien, charge,
security interest or other encumbrance on any of the Purchased Assets;
(j) any change or modification of Seller's accounting methods or
practices;
(k) any indebtedness incurred by Seller for money borrowed;
(1) any capital expenditures in excess of $1,000;
(m) any negotiations or contract for the sale of the Business, or
any part thereof or for the purchase of another business, whether by
merger, consolidation, exchange of membership interests or otherwise
(other than negotiations with respect to this Agreement);
(n) any declaration of payment of distributions upon or in
respect of any of its shares of membership interest, or redemption or
obligation to redeem any of its shares of membership interest or other
securities; or
(o) any encounter with any labor union organizing activity, any
actual or threatened employee strikes, works stoppages, slowdowns or
lockouts or any material change in its relations with its employees,
agents, customers and suppliers.
8.6. Title to Purchased Assets. Seller has good, indefeasible and
marketable title to all Purchased Assets, free and clear of all mortgages,
security interests, title retention agreements, options to purchase, rights
of first refusal, liens, easements, encumbrances, restrictions and other
burdens of any nature whatsoever ("Liens"). None of the Purchased Assets
are subject to any restrictions with respect to the transferability thereof
and Seller has complete and non-restricted power and right to sell, assign,
convey and deliver the Purchased Assets to Purchaser as contemplated
hereby. On the Closing Date, Purchaser will receive good and marketable
title to all the Purchased Assets, free and clear of all Liens.
8.7. Condition of Purchased Assets. To the best knowledge of Seller,
(i) no maintenance outside the ordinary course of business is needed with
respect to the Purchased Assets, and (ii) the Purchased Assets are in all
respects in good condition and working order (reasonable wear and tear
excepted).
8.8. Inventory. The inventory reflected on the Seller's Balance Sheet,
or thereafter acquired and as set forth on Schedule 1.10, is, after the
reserve for obsolete inventory, merchantable, or suitable and usable for
the production or completion of merchantable products, for sale in the
ordinary course of business as first quality goods at normal xxxx-ups, none
of such item is obsolete or below standard quality, and each item of such
inventory reflected in the Seller's Balance Sheet and the books and records
of Seller and set forth on Schedule 1.10 is valued at the lower of cost (on
a last-in, first-out basis) or market. The Purchased Assets include the
quantity of each type of such inventory to meet the normal requirements of
Seller's business and operations.
8.9. Personal Property. The Personal Property reflected on Seller's
Balance Sheet or otherwise set forth on Schedule 1.1 or delivered by Seller
pursuant to this Agreement, contains a true and complete list of all
equipment, fixtures, furniture, supplies and other personal property owned,
utilized or held for use by Seller in the Business.
8.10. Contracts and Leases. To the best knowledge of Seller: (i)
Seller does not have any oral or written rights, obligations, powers of
attorney, contracts, agreements, instruments, or leases with respect to the
Business or the Purchased Assets other than the Assumed Leases and Assumed
Contracts and the Excluded Leases and Excluded Contracts; (ii) all Assumed
Leases and Assumed Contracts are legally valid and binding and in full
force and effect with respect to the parties thereto; and (iii) neither
Seller nor any of the other parties to any of the Assumed Leases and
Assumed Contracts are in default or breach thereof and Seller has no notice
or knowledge of any claimed breach, or of the occurrence of any event which
after the passage of time or the giving of notice or both would constitute
a breach by any party to any Assumed Lease and Assumed Contract. None of
the rights of Seller under the Assumed Leases and the Assumed Contracts
will be impaired in any respect by the consummation of the transactions
contemplated by this Agreement, and the Assumed Leases and Assumed
Contracts are validly assignable and all of the rights of Seller thereunder
will be enforceable by Purchaser after the Closing Date without the consent
or agreement of any other party.
8.11. Litigation and Proceedings Product Liability; Liquidation.
(a) There is no suit, action or legal, administrative,
arbitrative or other proceeding pending or threatened against Seller
affecting the Purchased Assets, and, to the best knowledge of Seller,
Seller is not under investigation, nor has Seller received any written
notice of any proceeding which is with respect to any charge
concerning violation of any law or administrative regulation, federal,
local or state, in respect to the operation of the Purchased Assets.
(b) There have been no product liability claims and similar
claims, actions, litigation or other proceedings relating to products,
or services rendered by Seller which are presently pending or, to the
best knowledge of Seller, which are threatened, or which have been
asserted or commenced against Seller within the past two (2) years, in
which a party thereto either requested injunctive relief (whether
temporary or permanent) or alleged damages in excess of $5,000
(whether or not covered by insurance), in respect to the operation of
the Purchased Assets.
(c) Seller has not adopted any plan of liquidation or dissolution
affecting the Purchased Assets.
8.12. Government Licenses and Permits. To the best knowledge of
Seller: (i) Seller has all state, county and city governmental licenses and
permits necessary to operate the Business and own and use the Purchased
Assets as conducted, owned and used prior to the Closing Date and such
licenses and permits are in full force and effect; (ii) Seller is not aware
of any rights of Seller under such licenses and permits which are not
transferable to Purchaser under applicable law solely upon the assignment
of such licenses and permits by Seller to
Purchaser hereunder or which will not be exercisable by Purchaser after the
consummation of the transactions contemplated by this Agreement; and (iii)
Seller is not aware of and has not received any written notice of any
proceeding which is pending or threatened regarding the revocation or
limitation of any such governmental license or permit and, to the best
knowledge of Seller, there is no such basis or grounds for any revocation
or limitation of any such governmental license or permit.
8.13. Taxes. All federal, state, county and local property, income,
excise, sales, transfer, use, gross receipts, ad valorem, payroll and other
taxes, fees and assessments imposed on the Business of Seller as of the
Closing Date and payable by Seller and all federal and state payroll taxes
required to be withheld by Seller as of the Closing Date have been or will
be on the Closing Date duly, timely and fully reported, paid and discharged
except where extensions have been applied for and granted and where such
extensions have not expired. All federal, state, county, local and other
tax returns required to be filed by or on behalf of Seller have been timely
filed and, when filed, were true and correct in all respects. From the
Seller's Balance Sheet Date until the Closing Date, Seller shall pay all
taxes as and when the same become due and payable.
8.14. Intangible Assets. Schedule 1.4 contains a true and complete
list of all trademarks, trade names, trade dress, service marks, copyrights
and licenses thereof relating to the Business and all pending applications
and applications to be filed therefor used or to be used in the operation
of the Business, all of which are fully assignable and are being
transferred hereunder to Purchaser free and clear of any adverse interests.
Except as set forth on Schedule 1.4, all other trade secrets, confidential
information, and know-how used in the operation of the Business are fully
assignable and are being transferred hereunder free and clear of any
adverse claims or interests, and no licenses, sublicenses, covenants or
agreements have been granted or entered into by Seller relating to any such
trademarks, trade names, service marks, licenses, applications trade
secrets, know-how, and other confidential information and intangible
assets. To the best knowledge of Seller, the Business and the use of its
products by customers have not involved any infringement, and there exists
no basis for any claim of infringement, of any trademarks, trade names,
service marks, copyrights, licenses, or intangible assets of others. Seller
does not require any of such rights or intangible assets that it does not
already have (and which are being transferred to Purchaser) in order to
conduct its business as currently being conducted or proposed to be
conducted. There are no inquiries, investigations or claims or litigation
challenging or threatening to challenge Seller's right, title and interest
with respect to its continued use and right to preclude others from using
any such trade rights or intangible assets. To the best knowledge of
Seller, all such trade rights or intangible assets of Seller are valid and
enforceable and there are no equitable defenses to enforcement based on any
act or omission of Seller, and no other person is infringing on the trade
rights and intangible assets of Seller.
8.15. Compliance with Law. To the best knowledge of Seller, Seller and
the operations of the Business and the use of the Purchased Assets are in
compliance with all applicable federal, state, local and international laws
or ordinances and any other rule or regulation of any international,
federal, state or local agency or body, including, without limitation, all
energy, safety, environmental, zoning, health, trade practice,
anti-discrimination, antitrust, wage, hour and price control laws, orders,
rules or regulations. There have been no
citations issued to Seller in the past two (2) years from any city, state
or federal agency. Seller has not received any written notice of any
proceeding which is from any governmental body claiming any violation or
alleged violation of any law, ordinance, code, rule or regulation or
requiring, or calling attention to the need for, any work, repairs,
construction, alterations or installation on or in connection with the
Purchased Assets or the Business with which Seller has not complied. To the
best knowledge of Seller, Seller has no liability (whether accrued,
absolute, contingent, direct or indirect) for past or continuing violations
of any law, ordinance, code, rule or regulation. All reports and returns
required to be filed by Seller with any governmental authority have been
filed and were accurate and complete when filed.
To the best of Seller's knowledge, no payments of cash or other
consideration have been made to any person, entity or government by Seller
or by any agent, employee, officer, director, Shareholder or other person
or entity on behalf of Seller which were unlawful under the laws of the
United States or any state or other governmental authority.
8.16. Accounts Receivable. Set forth on Schedule 1.9 is a complete and
accurate list of all Accounts Receivable of Seller as of the Seller's
Balance Sheet Date. All of the Accounts Receivable reflected on the
Seller's Balance Sheet arose in the ordinary course of business and
represent amounts payable by a buyer for goods actually sold or services
actually performed and are currently collectible at the aggregate recorded
amounts thereof, less the reserve for bad debts reflected on the Seller's
Balance Sheet, and are not subject to any counterclaims or setoffs (other
than Purchaser's right to setoff under the terms of this Agreement).
Accounts Receivable arising after the Seller's Balance Sheet Date through
the Closing Date, have arisen in the ordinary course of business and
represent amounts payable by a buyer for goods actually sold or services
actually performed and are current and collectible at the aggregate
recorded amounts thereof, less a reserve for bad debts consistent with the
reserve stated on the Seller's Balance Sheet.
8.17. Environmental Matters. To the best knowledge of Seller: (i)
Seller has duly complied with, and the operation of the Business, equipment
and other assets in the facilities owned or leased by Seller are in
compliance with the provisions of all applicable federal, state and local
environmental, health and safety laws, statutes, ordinances, rules and
regulations of any governmental or quasi governmental authority relating to
(a) error omissions, (b) discharges to surface water or ground water, (c)
solid or liquid waste disposal, (d) the use, storage, generation, handling.
transport, discharge, release or disposals of toxic or hazardous substances
or waste, (e) the emission of non- ionizing electromagnetic radiation, or
(f) other environmental, health or safety matters, including, without
limitation, the Comprehensive Environmental Response Compensation Liability
Act of 1980, as amended by the Superfund Amendments and Authorization Act
of 1986, the Occupational Safety and Health Act, the Resource Conservation
and Recovery Act of 1976, as amended, the Federal Water Pollution Control
Act of 1970, the Safe Drinking Water Act of 1974, the Toxic Substances
Control Act of 1976, the Emergency Planning and Community Right to Know Act
of 1986, as amended, and the Clean Air Act, as amended (collectively
"Environmental and Health Laws") or the Federal Communications Act, as
amended ("FCC Laws"); (ii) there are no investigations, administrative
proceedings, judicial actions. orders, claims or notices which are pending,
anticipated or threatened against Seller relating to violations of the
Environmental and Health Laws or FCC
Laws, and (iii) Seller has not received notice of, and does not know or
have any reason to suspect, any facts which might constitute a violation of
any Environmental and Health Laws or FCC Laws which relate to the use,
ownership or occupancy of any property or facilities used by Seller in
connection with the operation of Seller's Business or any activity of
Seller's Business which would result in a violation or threatened violation
of any Environmental and Health Laws or FCC Laws.
8.18. Labor Matters.
(a) Seller is not a party to or bound by any union collective
bargaining agreements or other labor contracts. Seller is not, with
respect to the operation of the Business, a party to any pending
arbitration or grievance proceeding or other claim relating to any
labor contract. Seller has no knowledge of any such action in respect
to the operation of the Purchased Assets.
(b) Seller is not bound by any court, administrative agency,
tribunal, commission or board decree, judgment, decision, arbitration
agreement or settlement relating to collective bargaining agreements,
conditions of employment, employment discrimination or attempts to
organize a collective bargaining unit which in any case may materially
and adversely affect Seller, the Business or the Purchased Assets, and
Seller has no notice or knowledge of any employment discrimination,
safety or unfair labor practice or other employment-related
investigation, claim or allegation against or in respect of the
operation of the Purchased Assets.
(c) Seller has made all required payments to the appropriate
governmental authorities with respect to applicable unemployment
compensation reserve accounts for Seller's employees.
8.19. Employment Contracts. Seller has no employment contract with any
person, nor any contract with any employee, involving termination,
retirement or severance pay, deferred compensation, profit sharing or
pension plans, employee benefit plans or other employee benefits or
post-employment benefits of any kind. Purchaser shall not assume any
liabilities of Seller to any former or current employee of Seller for
compensation, bonus, severance, vacation, employee benefits or any other
fee or wage payment of any kind or nature, including, but not limited to,
any payments under COBRA or any disability or unemployment insurance
policies (collectively. "Employee Payments").
8.20. Insurance. Seller is insured by reputable insurers and through
the Closing Date will be adequately insured against all liabilities and
risks and in at least such amounts as are usually carried by prudent
business persons engaged in the same or similar lines of business (and in
the case of property casualty insurance, at least at replacement cost). All
premiums on policies due to the Closing Date have been paid, and no notice
has been received nor does Seller have any reason to believe, that any such
insurance is in default, will be canceled or not renewed, or will be
renewed at premium rates materially in excess of the premiums used in
preparing the financial statements of the Business.
8.21. Subsidiaries. Seller has no subsidiaries. The Business has not
been operated through any other direct or indirect subsidiary or affiliate
of Seller.
8.22. Disclosure. To the best of Seller's knowledge, there exists no
fact, condition or threatened development of any nature not otherwise
disclosed in this Agreement, or the Exhibits, Schedules and attachments
hereto, that would be materially adverse to the Purchased Assets or the
operation of the Business. No warranty or representation by Seller
contained in this Agreement, including any exhibit, schedule (including any
attachment to any schedule), financial statement or certificate prepared or
furnished in connection hereto, or in any writing to be furnished pursuant
hereto or previously furnished to Purchaser, contains or will contain any
material untrue statement of fact or omits or will omit to state any fact
required to make the statements therein contained not misleading. All
statements and information contained in any certificate, instrument,
disclosure schedule or documents delivered by or on behalf of Seller shall
be deemed representations and warranties by Seller.
8.23. Accuracy of Documents and Information. The copies of all
instruments, agreements, other documents and written information set forth
as, or referenced in, Exhibits, Schedules and attachments to this Agreement
or specifically required to be furnished pursuant to this Agreement to
Purchaser by Seller are complete and correct in all material respects.
8.24. Purchase Price Allocation. Seller represents, warrants and
covenants to Purchaser to report the transaction contemplated by this
Agreement as a sale and purchase of the Purchased Assets in the specific
amounts to be described on Schedule 4.2 for purposes of federal, state and
local taxes or filings required to be made under the Securities Exchange
Act of 1934, as amended, after the Closing Date, and shall not take any
position to the contrary in any tax return or proceeding before any taxing
authority. Seller shall cooperate fully with Purchaser, shall execute any
documents reasonably requested by Purchaser and shall furnish appropriate
information and testimony, upon request, with respect to any liability
asserted by taxing authorities, all without payment of further
consideration; provided such tax liability relates to the Purchased Assets
or Assumed Liabilities as conducted by Seller prior to the Closing Date.
8.25. Brokers and Finders. Neither Seller nor any affiliate nor any
member, manager, officer or director thereof has engaged any finder or
broker in connection with the transactions contemplated hereunder.
8.26. Records and Documents. To Seller's knowledge, the records and
documents required to be provided pursuant to Section 1.5 constitute all of
the records and documents used in connection with, or which are necessary
or desirable to operate, the Purchased Assets.
8.27. Stock Representations. Seller: (i) intends to acquire the shares
of Indiginet Stock solely for the purpose of investment and not for the
resale and distribution thereof; and has no present intention to offer,
sell, pledge, hypothecate, assign or otherwise dispose of the same; (ii)
understands and acknowledges that the sale of such shares of Indiginet
Stock will not be registered under the Securities Act of 1933, as amended
(the "Securities Act"), and that the Indiginet Stock being acquired
pursuant to this Agreement constitute "restricted securities" as
that term is defined under Rule 144 promulgated under the Securities Act
and may not be sold except pursuant to a registration statement under the
Securities Act or pursuant to an exemption available under federal and
applicable state Securities laws, and such shares of Indiginet Stock may be
required to be held indefinitely unless the shares of Indiginet Stock are
subsequently registered under the Securities Act or an exemption from such
registration is available, (iii) agrees that it will not offer, sell,
pledge, hypothecate, transfer, assign or otherwise dispose of any such
shares of Indiginet Stock unless such shares of Indiginet Stock and such
offer, pledge, hypothecation, transfer, assignment or other disposition
shall be registered or exempt from registration under the Securities Act
and shall comply with all applicable federal and state securities laws, and
(iv) agrees and acknowledges that the stock certificates representing the
shares of Indiginet Stock will contain a legend restricting the
transferability of the shares as provided herein and that stop order
instructions may be imposed by Purchaser's transfer agent restricting the
transferability of the Indiginet Stock.
9. Seller's Employees and Customers. Purchaser is not a successor business
to Seller nor any operation of Seller. Purchaser shall not be liable for any
obligations which Seller has on any contracts, including employment contracts,
existing or future workers compensation claims, employment discrimination
claims, unfair labor practice claims, compensation or Employee Payments, except
those obligations, if any, specifically identified in Section 1 and on Schedule
3.2, and any other obligations which Purchaser specifically assumes in writing.
Purchaser is purchasing the Purchased Assets only, and is not assuming any
employment contracts for any employees or any obligations under agreements
entered into by Seller in its own right and Purchaser shall not be liable for
any sums owed to customers by Seller, except those obligations, if any,
specifically identified in Section l and on Schedule 3.2, and any other
obligations which Purchaser specifically assumes in writing.
10. Representations, Covenants and Agreements of Purchaser. Purchaser
hereby represents, covenants and agrees that:
10.1. Accuracy of Representations and Warranties. Each of the
representations and warranties of Purchaser contained in this Agreement or
in any schedule, certificate or other document delivered by Purchaser is
true and correct in all respects, and Purchaser has performed and satisfied
all of its covenants, conditions and agreements and shall have delivered to
Seller all documents and agreements required by this Agreement to be
performed, satisfied or delivered by Purchaser on or prior to the Closing
Xxxx.
10.2. Deliveries on the Closing Date. Purchaser shall have delivered
or caused to be delivered to Seller the following documents on or prior to
the Closing Date:
(a) An executed original of this Agreement:
(b) A copy of the treasury request issued to Purchaser's transfer
agent.
(c) Certified copies of resolutions adopted by the Board of
Directors of Purchaser authorizing the execution of this Agreement,
the purchase of the Purchased Assets
and the assumption of the Assumed Liabilities and the issuance of the
Indiginet Stock in accordance with the terms hereof.
(d) An Officer's Certificate executed by an authorized officer of
Purchaser certifying that all of Purchaser's representations and
warranties contained in Section 7 are true and correct on the Closing
Date.
(e) An executed original of each of the Xxxx Agreement, Xxxxxx
Agreement and Xxxxxxx Agreement.
10.3. Access to Books and Records After the Closing Date. For a period
of two (2) years following the Closing Date, Purchaser agrees to maintain
in a reasonably accessible place any books and records relating to the
Purchased Assets and delivered to Purchaser pursuant to this Agreement, to
provide Seller and its representatives reasonable access to such books and
records during normal business hours and to provide copies of such books
and records to Seller or its representatives, at Seller's expense.
11. Representations, Covenants and Agreements of Seller. Seller hereby
represents, covenants and agrees that:
11.1. Accuracy of Representations and Warranties. Each of the
representations and warranties of Seller contained in this Agreement or in
any schedule, certificate or other document delivered by Seller is true and
correct in all respects, and Seller has performed and satisfied all of its
covenants, conditions and agreements and shall have delivered to Purchaser
all documents and agreements required by this Agreement to be performed,
satisfied or delivered by Seller on or prior to the Closing Date.
11.2. Deliveries on the Closing Date. Seller shall have delivered or
caused to be delivered to Purchaser the following documents at or prior to
the Closing Date, unless otherwise specified herein:
(a) An executed original of this Agreement and the Xxxx of Sale,
Assumption of Liabilities and Assignment of Contracts in the form
attached hereto as Exhibit 11.2(a).
(b) Certified copies of resolutions adopted by the Members and
Managers of Seller authorizing the execution of this Agreement and the
sale of the Purchased Assets to Purchaser in accordance with the terms
hereof.
(c) Certificate of status or good standing of Seller issued by
the Secretary of State of the State of Colorado, dated within two
weeks of the Closing Date.
(e) An Officer's Certificate executed by an authorized officer of
Seller certifying that all of Seller's representations and warranties
contained in Section 8 are true and correct on the Closing Date.
(f) All necessary governmental approvals, permits and licenses
required for the performance by Seller for the closing of the
transactions contemplated by this Agreement.
(g) Written consents to the transfer or assignment to Purchaser
of the Purchased Assets, including the Assumed Contracts and Assumed
Leases, in a form and substance reasonably satisfactory to Purchaser.
(h) Such other documents as Purchaser reasonably deems necessary
or appropriate to vest in it good and marketable title to all or any
part of the Purchased Assets, free and clear of all liens,
encumbrances and other rights as provided in this Agreement
11.3. Access to Books and Records After the Closing Date. For a period
of two (2) years following the Closing Date, Seller agrees to maintain in a
reasonably accessible place any books and records not delivered to
Purchaser hereunder relating to the Business, to provide Purchaser and its
representatives reasonable access to such books and records during normal
business hours and to provide copies of such books and records to Purchaser
or its representatives, at their expense. Seller agrees to notify Purchaser
prior to disposing of any such books and records and, upon request made
within sixty (60) days after receipt of such notice, to deliver such books
and records to Purchaser at Purchaser's expense.
11.4. Continued Assistance. Seller shall refer to Purchaser in
writing, as promptly as practicable, any letters, orders, notices,
requests, inquiries and other communications relating to the Business,
together with notice of any telephone calls received with respect to the
Business. Seller shall use its reasonable efforts to refer any such
contacts or inquiries to Purchaser by instructing the inquiring party to
contact Purchaser at the address and phone number provided by Purchaser.
Seller shall use its reasonable best efforts to cooperate in an orderly
transfer of the Business and to assist Purchaser in the successful
continuation of the operation of the Business. After the Closing Date,
Seller shall promptly transfer and deliver to Purchaser upon Seller's
receipt any cash or other property that Seller may receive in respect of
any Assumed Contract or Assumed Lease. From time to time, Seller shall
execute, acknowledge and deliver such documents, instruments or assurances
and take such other actions as Purchaser may reasonably request to more
effectively assign, convey and transfer the Purchased Assets.
11.5. Change of Name. As of the Closing Date, Seller shall immediately
cease to use, and thereafter refrain from using, the name "WB Connect" and
shall file any and all documents required to allow Purchaser to use such
name or any variation thereof, if any.
11.6. Limitations on Certain Corporate Actions. Seller agrees that
from and after the Closing Date and for a period of two (2) years, Seller
will not (a) dissolve or otherwise terminate its legal existence, or (b)
merge or consolidate with any other corporation in a merger consolidation
in which it is not the surviving or resulting corporation.
12. Indemnification by Purchaser.
12.1. Indemnification. Purchaser and its successors shall indemnify,
defend and hold Seller, each of Seller's subsidiaries, affiliates, members,
managers, officers, directors, employees, agents, successors and assigns
(Seller and such persons, collectively, "Seller's Indemnified Persons")
harmless from and against any demand, claim, damage, liability, loss (which
shall include any diminution in value), cost, deficiency or expense
(including, but not limited to, interest, penalties, costs of preparation
and investigation, and the reasonable fees, disbursements and expenses of
attorneys, accountants and other professional advisors (collectively, the
"Seller's Losses") imposed or incurred by Seller's Indemnified Persons,
directly or indirectly, arising out of, resulting from or relating to:
(a) any inaccuracy in or breach of any representation or warranty
of Purchaser pursuant to this Agreement in any respect, whether or not
Seller's Indemnified Persons relied thereon or had knowledge thereof,
including schedules and documents delivered pursuant hereto;
(b) any failure of Purchaser to duly perform or observe any term,
provision, expectation, covenant or agreement to be performed or
observed by Purchaser pursuant to this Agreement or any of the
documents contemplated by this Agreement;
(c) the operation of the Purchased Assets after the Closing Date;
(d) any action, suit, investigation, proceeding, demand,
assessment, audit, judgment and claim resulting from the operation of
the Purchased Assets and discharge of the Assumed Liabilities by
Purchaser after the Closing Date; or
(e) acts or omissions in connection with business activities
conducted or to be conducted by Purchaser, including, without
limitation, the sale of goods or provision of services after the
Closing Date.
12.2. Procedures. The procedural rules set forth in Section 13.2 shall
apply with respect to indemnification by Purchaser except that the parties'
respective obligations under Section 13.2 shall be reversed as appropriate.
12.3. Survival of Indemnification. The obligations of Purchaser to
indemnify and hold Seller's Indemnified Persons harmless shall survive for
a period of two (2) years following the Closing Date.
12.4. Remedies Cumulative. The remedies provided by this Section shall
be cumulative and shall not preclude the assertion by Seller's Indemnified
Persons of any other rights or the seeking of any other remedies against
Purchaser.
12.5 Limitation. Notwithstanding anything contained herein to the
contrary, Purchaser shall not have any liability or obligation to indemnify
Seller for any Seller's Losses unless and until Seller's Losses equal or
exceed $5,000 in the aggregate for all of Seller's Losses,
and in that case, only to the extent that Seller's Losses exceed such
amount. In no event shall Purchaser's liability for Seller's Losses exceed
the Purchase Price.
13. Indemnification by Seller.
13.1. Indemnification. Seller and its successors shall indemnify,
defend and hold Purchaser, each of Purchaser's subsidiaries, shareholders,
affiliates, officers, directors, employees, agents, successors and assigns
(Purchaser and such persons, collectively, "Purchaser's Indemnified
Persons") harmless from and against any demand, claim, damage, liability,
loss (which shall include any diminution in value), cost, deficiency or
expense (including, but not limited to, interest, penalties, costs of
preparation and investigation, and the reasonable fees, disbursements and
expenses of attorneys, accountants and other professional advisors)
(collectively, the "Purchaser's Losses") imposed or incurred by Purchaser's
Indemnified Persons, directly or indirectly, arising out of, resulting from
or relating to:
(a) any inaccuracy in or breach of any representation or warranty
of Seller pursuant to this Agreement in any respect, whether or not
Purchaser's Indemnified Persons relied thereon or had knowledge
thereof, including schedules and documents delivered pursuant hereto;
(b) any failure of Seller to duly perform or observe any tern,
provision, expectation, covenant or agreement to be performed or
observed by Seller pursuant to this Agreement or any of the documents
contemplated by this Agreement;
(c) any and all liabilities or obligations of Seller other than
the Assumed Liabilities, including, but not limited to, any fines,
penalties, interest or other changes that may be imposed as a result
of any tax returns of Seller that have been or were required to be,
filed on or prior to the Closing Date, including, without limitation,
tax returns for which extensions have been granted and tax returns for
liabilities accruing prior to the Closing Date;
(d) any material misrepresentations in or omissions from any
Exhibit, Schedule or other attachment to this Agreement;
(e) any action, suit, investigation, proceeding, demand,
assessment, audit judgment, claim, including any employment-related
claim relating to the time period on or prior to the Closing Date
(collectively "Claims"), even though such claims may not be filed or
come to light until after the Closing Date;
(f) acts or omissions in connection with business activities
conducted or to be conducted by Seller, including, without limitation,
the sale of goods or provision of services prior to the Closing Date;
or
(g) any failure to comply with the laws of any jurisdiction
relating to bulk transfers which may be applicable in connection with
the transfer of the Purchased Assets to Purchaser other than
nonpayment of the Assumed Liabilities.
13.2. Procedures. Purchaser's Indemnified Persons shall give Seller
prompt written notice of any written claim, demand, assessment, action,
suit or proceeding to which the indemnity set forth in this Section applies
(the "Indemnification Notice"). If the document evidencing such claim or
demand is a court pleading, Purchaser shall give such notice within ten
(10) days of receipt of such pleading, otherwise, Purchaser shall give such
notice within thirty (30) days of the date it receives written notice of
such claim. Failure to give timely notice, including the Indemnification
Notice, of a matter which may give rise to an indemnification claim shall
not affect the rights of Purchaser's Indemnified Persons to collect such
Loss from Seller so long as such failure to so notify does not materially
adversely affect Seller's ability to defend such Loss against a third
party.
If Purchaser's Indemnified Persons' request for indemnification
arises from the claim of a third party, the written notice, including
the Indemnification Notice, shall permit Seller to assume control of
the defense of any such claim, or any litigation resulting from such
claim. Failure by Seller to notify Purchaser's Indemnified Persons of
its election to defend a complaint by a third party within ten (10)
days shall be a waiver by Seller of its right to respond to such
complaint and within thirty (30) days after notice thereof shall be a
waiver by Seller of its right to assume control of the defense of such
claim or action. If Seller assumes control of the defense of such
claim or litigation resulting therefrom, Seller shall take all
reasonable steps necessary in the defense or settlement of such claim
or litigation resulting therefrom and Seller shall hold Purchaser's
Indemnified Persons, to the extent provided in this Section, harmless
from and against all Seller's Losses arising out of or resulting from
any settlement approved by Seller or any judgment in connection with
such claim or litigation. Notwithstanding Seller's assumption of the
defense of such third-party claim or demand, Purchaser's Indemnified
Persons shall have the right to participate in the defense of such
thirdparty claim or demand at its own expense. Seller shall not, in
the defense of such claim or litigation, consent to entry of any
judgment or enter into any settlement, except in either case with
written consent of Purchaser's Indemnified Persons, which consent
shall not be unreasonably withheld. Purchaser's Indemnified Persons
shall furnish Seller in reasonable detail all information Purchaser's
Indemnified Persons may have with respect to any such third-party
claim and shall make available to Seller and its representatives all
records and other similar materials which are reasonably required in
the defense of such third-party claim and shall otherwise cooperate
with and assist Seller in the defense of such third-party claim.
If Seller does not assume control of the defense of any such
third-party claim or litigation resulting therefrom, Purchaser's
Indemnified Persons may defend against such claim or litigation in
such manner as it may reasonably deem appropriate, and Seller shall
indemnify Purchaser's Indemnified Persons from any Purchaser's Loss
indemnifiable under this Section incurred in connection therewith.
All statements of fact contained in any written statement,
certificate, schedule, exhibit, or other document delivered to
Purchaser by or on behalf of Seller pursuant to Section 7 of this
Agreement shall be deemed representations and warranties of Seller
hereunder.
13.3. Survival of Indemnification. The obligations of Seller to
indemnify and hold Purchaser's Indemnified Persons harmless shall survive
for a period of two (2) years following the Closing Date.
13.4. Remedies Cumulative. The remedies provided by this Section shall
be cumulative and shall not preclude the assertion by Purchaser's
Indemnified Persons of any other rights or the seeking of any other
remedies against Seller.
13.5. Limitation. Notwithstanding anything contained herein to the
contrary, Seller shall not have any liability or obligation to indemnify
Purchaser for any Purchaser's Losses unless and until Purchaser's Losses
equal or exceed one percent (1%) of the Purchase Price. At such time as
Purchaser's Losses equal or exceed this amount, Purchaser shall be entitled
to indemnification for all Purchaser's Losses.
14. Covenant Not to Compete; Non-Solicitation. Seller understands that
Purchaser shall be entitled to protect and preserve the value of the
Business and that Purchaser would not have entered into this Agreement
absent the provisions of this Section 14, and therefore agrees that it will
not for a period of three (3) years after the Closing Date: (i) directly or
indirectly, own, manage, operate, control or participate in the ownership,
management, operation or control of a business that provides products or
services similar to the Business within any area or at any location
constituting a Relevant Area The "Relevant Area" shall be defined for the
purposes of this Agreement as any area located within one hundred (100)
miles of the legal boundaries or limits of any city within which Purchaser
or any affiliate is providing products or services, has commenced obtaining
appropriate licenses or authorizations for the purpose of providing
products or services or has announced the intention to provide products or
services, (ii) directly or indirectly induce any former employee of Seller
hired by Purchaser to leave the employ of Purchaser or to accept any other
position of employment (provided, however, that general solicitations such
as general advertisements, participation in job fairs and other such
activities shall not be prohibited), and (iii) at any time communicate or
divulge any confidential information, knowledge or data related to the
Business, all of which Seller agrees to hold in a fiduciary capacity for
the benefit of Purchaser, to any party other than Purchaser.
Notwithstanding the foregoing, any confidential information, knowledge or
data related to the Business shall not be subject to the restrictions of
this Section if the information, knowledge or data (a) is generally known
to the public and did not become so known through any violation of law, (b)
became known to the public through no fault of Seller, (c) is required to
be disclosed by order of court or government agency with subpoena powers,
(d) is disclosed in the course of any litigation between any of the parties
hereto or (e) is conveyed by a party to a party's accountants, attorneys,
brokers or advisors solely for purposes of consummating the transactions
contemplated by this Agreement, provided that those entities are obligated
to keep the information, knowledge or data confidential.
For purposes of this Section 14, the phrase "directly or
indirectly engage in" shall include having a direct or indirect
ownership interest (other than ownership of less than five percent of
the outstanding voting securities of an entity which is registered
under Section 12 of the Securities Exchange Act of 1934, as amended)
in any entity that engages in the business in question,
15. Miscellaneous.
15.1. Amendment and Severabilitv. This Agreement may be amended,
modified or altered only by the express written agreement executed by
Purchaser and Seller. If any provision of this Agreement or the application
thereof to any party or circumstances shall for any reason be held invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provisions of this Agreement
and this Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been part of this Agreement. Furthermore,
in lieu of each such illegal, invalid, or unenforceable provision, there
shall be added automatically as part of this Agreement a provision as
similar in terms to such illegal, invalid, or unenforceable provision as
may be possible and be legal, valid, and enforceable.
15.2. Definition of Knowledge. In this Agreement, any reference to the
knowledge or awareness of Seller shall mean the knowledge of any of the
members or managers of Seller after each of them individually shall have
made the inquiry that a reasonably prudent business person would have made
with respect to such matters.
15.3. Definition of Material Adverse Effect. In this Agreement, any
reference to a material adverse effect shall mean any event, change or
effect that is materially adverse to the condition (financial or
otherwise), properties, assets, liabilities, business, operations or
results of operations, taken as a whole, and is specific to the Seller and
not an effect arising from or in connection with changes in Seller's
industry.
15.4. Waiver. The failure of Seller or Purchaser to insist, in any or
more instances, upon performance of any of the terms or conditions of this
Agreement, shall not be construed as a waiver or relinquishment of any
rights granted hereunder or the future performance of any such term,
covenant or condition. Moreover, Purchaser's or Seller's decision to close
this transaction notwithstanding its constructive or actual knowledge of
the breach by Seller or Purchaser of one or more of their representations,
warranties or obligations hereunder shall not relieve such parties of their
indemnification obligations hereunder with respect to such breach; in such
case, Purchaser and Seller specifically are relying upon each other's
indemnification obligation, as well as the underlying representation,
warranty or contractual obligation. All rights and remedies granted in this
Agreement to Purchaser and Seller shall be cumulative and nonexclusive of
all other rights and remedies that Purchaser and Seller may have.
15.5. Notices. Any notices under this Agreement shall be in writing,
signed by the party giving the same and transmitted by registered or
certified United States Mail or by a generally accepted national courier
service providing confirmation of delivery, and addressed to the party to
receive the notice at the address set forth below or such other address as
any party may specify by notice to the other party, and shall be deemed
properly given and received when actually given and received:
If to Purchaser Xxxxxxx Xxxxxx
President
0000 X. Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
with a copy to: Xxxxxx X. Xxxxxxx, Esq.
M.E. Xxxxxxx & Associates, LLC
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxx 00000-0000
if to Seller: Xxxxx X. Xxxx
Xxxxxx Xxxxxxx
P.O. Box 460873
Xxxxxx, Xxxxxxxx 00000
or to such other address as Seller or Purchaser may designate by notice in
writing to the other.
15.6. Benefit. This Agreement shall be binding upon and inure to the
benefit and burden of the parties hereto, their successors and assigns.
This Agreement may not be assigned by any party without the express written
consent of the other party, which consent may be withheld in the sole
discretion of the party requiring such consent; provided, that Purchaser
shall have the right to assign this Agreement to any wholly owned
subsidiary or controlled affiliate of Purchaser.
15.7. No Third Party Beneficiaries. This Agreement shall be for and
inure to the benefit of Purchaser and Seller and there shall be no third
party beneficiaries thereto. Specially excluded from any beneficial status
hereunder are Seller's creditors, employees, customers and suppliers.
15.8. Expenses; Taxes. All expenses incurred by Seller or Purchaser in
connection with the transactions contemplated hereby, including, without
limitation, legal and accounting fees, shall be the responsibility of and
for the account of the party who ordered the particular service or incurred
the particular expense, except (a) as otherwise provided herein, and (b)
any and all federal, state or local income, sales, use or other taxes or
charges arising out ot resulting from or relating to Seller's sale of the
Purchased Assets, and any and all real or personal property taxes or
assessments applicable to the period before the Closing Date, shall be paid
by Seller.
15.9. Governine Law and Forum This Agreement shall be construed under
the laws of the state of Colorado.
15.10. Arbitration. Notwithstanding anything to the contrary herein,
any dispute arising pursuant to or in any way related to this Agreement or
the transactions contemplated hereby shall be settled by arbitration at a
mutually agreed upon location in Denver, Colorado; provided however, that
nothing in this Section shall restrict the right of any party to apply to a
court of competent jurisdiction for emergency relief pending final
determination of a claim by arbitration in accordance with this Section.
All arbitration shall be conducted in accordance with the rules and
regulations of the American Arbitration Association, in force at the time
of any
such dispute. Each party shall pay its own expenses associated with such
arbitration, provided that the prevailing party in any arbitration shall be
entitled to reimbursement of reasonable attorneys' fees and expenses
(including, without limitation, arbitration expenses) relating to such
arbitration. The decision of the arbitrator(s), based upon written findings
of fact and conclusions of law, shall be binding upon the parties; and
judgment in accordance with that decision may be entered in any court
having jurisdiction thereof.
15.11. Entire Agreement. This Agreement, together with the Exhibits,
the Schedules and other documents to be delivered pursuant hereto,
constitutes the entire agreement among the parties hereto and there are no
agreements, representations or warranties which are not set forth herein.
All prior negotiations, agreements and understandings are superseded
hereby. All parties being represented by counsel, no one party shall be
deemed the drafter of this Agreement with respect to its interpretation.
15.12. Paragraph Headings. The Section and paragraph headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
15.13. Time of the Essence. Time is of the essence of this Agreement
and the obligations of the parties hereunder.
15.14. Survival of Representations and Warranties. The representations
and warranties of Purchaser and Seller provided herein shall survive after
the Closing Date for a period of two (2) years following the Closing Date.
15.15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
15.16. Confidentiality. Seller and Purchaser agree to not disclose the
terms and conditions of this Agreement except (i) as may be required to
fulfill obligations hereunder; (ii) as may be required by law, regulation,
custom or judicial or administrative proceeding; or, (iii) as and to the
extent such information becomes known to the general public through no
fault of either party in tangible, demonstrable form Both parties shall
take reasonable precautions to insure that their respective employers,
employees and agents also treat such information in a confidential manner.
The obligations of confidentiality shall survive the consummation of the
transactions herein set forth.
15.17. Public Announcement. Each party acknowledges and agrees that
either party may make a public announcement of the transactions
contemplated by this Agreement any time after the Closing Date provided
that the other party approves the form and substance of any such public
announcement prior to its release, which approval shall not be unreasonably
withheld.
15.18. Attachments. All Exhibits, Schedules and attachments to this
Agreement are made a part of this Agreement by this reference. Any
information disclosed in an Exhibit,
Schedule or attachment shall be deemed to be disclosed and incorporated
into any other Exhibit, Schedule or attachment where such disclosure would
be appropriate.
15.19. Additional Documentation. Seller shall from time to time,
subsequent to the Closing Date, at Purchaser's request and without further
consideration, execute and deliver such other instruments of conveyance,
assignment and transfer and take such other action as Purchaser reasonably
may require in order more effectively to effectuate the transfer of the
Purchased Assets.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives on the day and year first above
written.
INDIGINET, INC., a Florida corporation
By: /s/
Title:
WB CONNECT, LLC, a Colorado limited liability
company
By: /s/
Title:
SCHEDULES
Schedule 1.1 Personal Property
Schedule 1.2 Assumed Leases
Schedule 1.3.A. Assumed Contracts
Schedule 1.3.B Excluded Contracts
Schedule 1.4 Intangible Assets
Schedule 1.6 Prepaid Assets
Schedule 1.8 Vehicles
Schedule 1.9 Accounts Receivable
Schedule 1.10 Inventory
Schedule 2 Excluded Assets
Schedule 3.2 Assumed Liabilities
Schedule 4.2 Allocation of Purchase Price
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDigiNet, Inc and WBConnect, LLC
Dated January 29, 2001
Schedule 1.1 - Personal Property
The following list describes the equipment, fixtures, furniture, supplies and
other personal property being transferred to InDigiNet under this agreement:
- none -
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDigiNet, Inc and WBConnect, LLC
Dated January 29, 2001
Schedule 1.2 - Assumed Leases
The following lists the current leases of WBConnect being assumed by InDigiNet
as a part of this transaction:
- none -
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDigiNet, Inc and WBConnect, LLC
Dated January 29, 2001
Schedule 1.3.A - Assumed* Contracts
The following list describes the current WBConnect "contracts" being assumed* by
InDigiNet as a part of this transaction:
Manufacturers
-------------
AVAYA (contract)
Compaq (letter)
Lucent (letter)
Cisco (letter)
SolutionInc (letter)
Western Multiplex (contract)
Distributors
------------
Catalyst
TechData
* WBConnect currently has partnership/relationship agreements with vendors,
suppliers, etc that it will work with expeditiously to "transfer" to InDigiNet,
if so desired. Contracts/letters are available upon request.
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDIgiNet, Inc and WBConnect, LLC
Dated January 29, 2001
Schedule 1.3.13 - Excluded Contracts
The following active WBConnect contracts are specifically excluded from this
agreement and transaction:
- none -
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDigiNet, Inc and WBConnect, L LC
Dated January 29, 2001
Schedule 1.4 - Intangible Assets
The following list describes the trademarks, trade names, trade dress, service
marks, copyrights and licenses being transferred to InDigiNet under the terms of
this agreement:
Wireless Broadband Connection, LLC
- and -
Wireless Broadband Connection
- and -
WBConnect, LLC
- and -
WBConnect (dba) - and -
logo:
[LOGO]
as well as any other intellectual property developed by WBConnect prior to the
date of closing of this transaction.
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDigiNet, Inc and WBConnect, LLC
Dated January 29, 2001
Schedule 1.6 - Prepaid Assets
The following lists the prepaid assets of WBConnect as of January 25, 2002:
- none -
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDigiNet, Inc and WBConnect, LLC
Dated January 29, 2001
Schedule 1.8 - Vehicles
The following list describes the vehicles being transferred from WBConnect to
InDigiNet through this transaction:
- none -
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDigiNet, Inc and WBConnect, LLC
Dated January 29, 2001
Schedule 1.9 - Accounts Receivable
The following attached (invoices) report dated as shown on the report,
represents the current state of accounts receivable by WBConnect [attached].
Company First Last Invoice Total Total Total Total Total
Name Name Name Invoice# Date Invoice Tax Parts Labor Shipping
---- ---- ---- -------- ---- ------- --- ----- ----- --------
TransVidia Communications Xxxx Xxxx 2000 6/13/2001 $ 200.00 $ 0.00 $ 0.00 $ 200.00 $ 0.00
TransVidia Communications Xxxx Xxxx 2001 6/13/2001 $ 150.00 $ 0.00 $ 0.00 $ 150.00 $ 0.00
United States Olympic Committee Xxxx Xxxxxx 2002 6/20/2001 $ 5,759.45 $ 0.00 $ 4,552.15 $ 1,125.00 $ 82.30
Xxxx Xxxxxxx 2003 6/25/2001 $ 385.32 $ 28.70 $ 347.90 $ 0.00 $ 8.72
United States Olympic Committee Xxxx Xxxxxx 2004 7/6/2001 $ 3,808.70 $ 0.00 $ 3,808.70 $ 0.00 $ 0.00
l ransVidia Communications Xxxx Xxxx 2005 7/6/2001 $ 2,423.60 $ 163.51 $ 2,239.85 $ 0.00 $ 20.24
United States Olympic Committee Xxxx Xxxxxx 2006 7/12/2001 $ 900.00 $ 0.00 $ 0.00 $ 900.00 $ 0.00
United States Olympic Committee Xxxx Xxxxxx 2007 7/12/2001 $ 1,400.00 $ 0.00 $ 0.00 $ 1,400.00 $ 0.00
united States Olympic Committee Xxxx Xxxxxx 2008 7/12/2001 $ 900.00 $ 0.00 $ 0.00 $ 900.00 $ 0.00
Void Void Void 2009 Void $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00
N/A Xxxxx Xxxxxxxx 2010 7/31/2001 $ 255.25 $ 8.20 $ 241.20 $ 0.00 $ 5.85
N/A Xxxx Xxxxxxx 2011 8/1/2001 $ 144.08 $ 10.66 $ 129.20 $ 0.00 $ 4.22
TransVidia Communications Xxxx Xxxx 2012 8/13/2001 $ 2,490.09 $ 166.99 $ 2,287.55 $ 0.00 $ 35.55
Colorado State Universit Xxxxxx Xxx 2013 8/17/2001 $ 3,367.63 $ 0.00 $ 3,296.26 $ 0.00 $ 71.37
Void Void Void 2014 Void $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00
Universit of Denver A1 Xxxxxxxx 2015 8/21/2001 $ 2,330.69 $ 0.00 $ 360.69 $ 0.00 $ 1,970.00
Colorado State Universi Xxxxxx Xxx 2016 8/27/2001 $ 847.40 $ 0.00 $ 847.40 $ 0.00 $ 19.40
Colorado Sl:~t~tJniversit Xxxxxx Xxx 2017 8/28/2001 $ 869.28 $ 0.00 $ 847.40 $ 0.00 $ 21.88
t ~~I~i,~h~'~latelliiiversit Xxxxxx Xxx 2018 8/28/2001 $ 879.12 $ 0.00 $ 847.40 $ 0.00 $ 31.62
Colorado State Universit Xxxxxx Xxx 2019 8/29/2001 $ 877.11 $ 0.00 $ 847.40 $ 0.00 $ 29.71
Swisslo Translo is Xxx Xxxxxxx 2020 8/29/2001 $ 3,256.35 $ 215.35 $ 2,950.00 $ 0.00 $ 91.00
United States Olympic Committee Xxxx Xxxxxx 2021 9/4/2001 $ 4,865.63 $ 0.00 $ 4,830.00 $ 0.00 $ 35.63
Colorado State Universit Xxxxxx Xxx 2022 9/5/2001 $ 868.13 $ 0.00 $ 847.40 $ 0.00 $ 20.73
Colorado State Universi Xxxxxx Xxx 2023 9/10/20.01 $ 2,571.64 $ 0.00 $ 2,519.78 $ 0.00 $ 51.86
N/A Xxx Xxxxxx 2024 9/17/2001 $ 336.32 $ 10.74 $ 290.40 $ 0.00 $ 35.18
N/A Xxxxx Xxxxxx 2025 9/19/2001 $ 227.46 $ 7.78 $ 210.40 $ 0.00 $ 9.28
Ava a, Inc. Xxxxx Xxxxxxx 2026 9/19/2001 $ 152.38 $ 9.48 $ 135.20 $ 0.00 $ 7.70
United States Olympic Committee Xxxx Xxxxxx 2027 9/25/2001 $ 5,419.92 $ 0.00 $ 5,405.50 $ 0.00 $ 14.42
United States Olympic Committee Xxxx Xxxxxx 2028 9/28/2001 $ 14,079.24 $ 0.00 $13,945.00 $ 0.00 $ 134.24
Rad S ecialt Grou Xxxx Xxxxxxxx 2029 10/4/2001 $ 1,370.59 $ 80.79 $ 1,188.08 $ 0.00 $ 101.72
United States Olympic Committee Xxxx Xxxxxx 2030 9/28/2001 $ 3,071.07 $ 0.00 $ 3,061.65 $ 0.00 $ 9.42
IadSpecialt Group Xxxx Xxxxxxxx 2031 10/4/2001 $ 1,619.79 $ 99.85 $ 1,468.45 $ 0.00 $ 51.49
United States Olympic Committee Xxxx Xxxxxx 2032 10/26/2001 $ 5,434.22 $ 0.00 $ 5,405.50 $ 0.00 $ 28.72
N/A Xxxx Xxxxxxxx 2033 10/26/2001 $ 278.36 $ 18.94 $ 259.42 $ 0.00 $ 0.00
JHL Construction (Void) Void Void 2034 Void $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00
JHL Construction (Void) Void Void 2035 Void $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00
IHL Construction (Void) Void Void 2036 Void $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00
IHL Construction (Void) Void Void 2037 Void $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00
Rad Specialty Grou Xxxx Xxxxxxxx 2038 10/30/2001 $ 329.60 $ 19.76 $ 290.66 $ 0.00 $ 19.18
Universit of Denver Xxxx Xxxxxx 2039 10/31/2001 $ 5,833.36 $ 0.00 $ 3,818.00 $ 1,944.00 $ 71.36
United States Olympic Committee Xxxx Xxxxxx 2040 11/2/2001 $ 900.00 $ 0.00 $ 0.00 $ 900.00 $ 0.00
IHLConstruction Xxxxx Jurkohok 2041 11/2/2001 $ 7,248.34 $ 207.39 $ 2,840.95 $ 4,200.00 $ 0.00
Data Business Systems Xxxxxxxx Xxxxxxx 2042 11/6/2001 $ 165.05 $ 5.89 $ 159.16 $ 0.00 $ 0.00
Son Microsystems Xxx Xxxxxxx 2043 11/9/2001 $ 725.58 $ 0.00 $ 725.58 $ 0.00 $ 0.00
United StatesnlymniCCnmmlttee Xxxx Xxxxxx 2044 11/12/2001 $ 27,366.35 $ 0.00 $27,291.35 $ 0.00 $ 75.00
United States Olympic Committee Xxxx Xxxxxx 2045 11/12/2001 $ 9,103.80 $ 0.00 $ 9,053.80 $ 0.00 $ 50.00
United States Olympic Committee Xxxx Xxxxxx 2046 11/12/2001 $ 3,168.57 $ 0.00 $ 3,118.57 $ 0.00 $ 50.00
University of Denver Xxx Xxxxxxxx 2047 11/19/2001 $ 616.23 $ 0.00 $ 604.48 $ 0.00 $ 11.75
United States Olympic Committee Xxxx Xxxxxx 2048 11/19/2001 $ 3,002.15 $ 0.00 $ 2,986.00 $ 0.00 $ 16.15
Suites eed Inc. Xxxx Xxxxxxxx 2049 11/20/2001 $ 500.00 $ 0.00 $ 0.00 $ 500.00 $ 0.00
Data Business'; stems Xxxxxxxx Terhush 2050 11/28/2001 $ 84.31 $ 3.01 $ 81.33 $ 0.00 $ 0.00
The Bonham Group Xxxx Xxxxxx 2051 1l/17/2001 $ 173 .96 $ 0.00 $ 173.96 $ 0.00 $ 0.00
The Bonham Crou Xxxx Xxxxxx 2052 11/21/2001 $ 2,274.75 $ 105.75 $ 1,429.00 $ 600.00 $ 140.00
The Bonham Group Xxxx Xxxxxx 2053 11/15/2001 $ 250.00 $ 0.00 $ 0.00 $ 250.00 $ 0.00
Microsource Inc. N/A N/A 2054 12/3/2001 $ 365.61 $ 0.00 $ 40.61 $ 325.00 $ 0.00
University of Denver Xx Xxxxxxxx 2055 12/7/2001 $ 62.23 $ 0.00 $ 62.23 $ 0.00 $ 0.00
Mile High Oncology PC Xxxxxx Xxxxx 2056 12/14/2001 $ 594.13 $ 35.71 $ 489.20 $ 0.00 $ 00.00
Xxxxxx Xxxxxx Olympic Committee Xxxx . Xxxxxx 2057 12/14/2001 $ 2,789.30 $ 0.00 $ 2,760.30 $ 0.00 $ 29.00
United States Olympic Committee Xxxx Xxxxxx 2058 12/14/2001 $ 1,022.71 $ 0.00 $ 1,005.56 $ 0.00 $ 17.15
University of Denver Xxx Xxxxxxxx 2059 12/14/2001 $ 737.72 $ 0.00 $ 724.92 $ 0.00 $ 12.80
Mile High Oncology Xxxxxxx Xxxxxx 2060 12/31/2001 $ 594.13 $ 35.71 $ 489.20 $ 0.00 $ 69.22
Mile -High Oncology PC Xxxxxxx Xxxxxx 2061 12/31/2001 $ 13,074.89 $ 871.83 $11,443.91 $ 699.00 $ 60.15
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDigiNet, Inc and WBConnect, LLC
Dated January 29, 2001
Schedule 1.10 - Inventory
The attached "WBConnect Final Asset Report 1-2002" lists the detail of the
available inventory for resale of $4,767. Additional assets are also described
in this report; however, representations are not made for salability [attached].
WBConnect Final Asset Report 1-2002
Location of Equipment Total Value on Hand
--------------------- -------------------
WBConnect "Internal", Demo Equip $ 8,444.50
Xxxx'x Home Office $ 6,314.29
Xxxxxx'x Home Office $ 1,910.36
Qwest Demo Equipment $ 1,281.34
Fixed Assets of WBConnect $17,950.00
Total Inventory on Hand for Resale $ 4,767.00
Total Assets On Hand $22,717.00
WBConnect Final Asset Report 1-2002
Name of Product Serial # PurchasedBy Purchase Price Current Location DateRecordUpdate Notes
--------------- -------- ----------- -------------- ---------------- ---------------- -----
Solutiontnc. Demo Box P0126024 WBConnect $ 3,490.00 Xxxx Residence 12/1/2001 AuthenticationDemo
0XXX Xxxxxxxx Xxxxxx XXXX000000 WBConnect $ 199.00 Xxxx Residence 12/1/2001 Used for Demo's
Orinoco ROR-1000 OlUT13270156 WBConnect $ 996.00 Xxxx Residence 12/1/2001 PtP Demo Board
Orinoco ROR-1000 OOUT46251249 WBConnect $ 996.00 Xxxx Residence 12/1/2001 PtP Demo Board
Flat Panel Antenna (Electro-Comm N/A WBConnect $ 49.00 Xxxx Residence 12/1/2001 PtP Demo Board
Flat Panel Antenna (Electro-Comm N/A WBConnect $ 49.00 Xxxx Residence 12/1/2001 PtP Demo Board
Pigtail (Electro-Comm) N/A WBConnect $ 26.00 Xxxx Residence 12/1/2001 PtP Demo Board
Pigtail (Electro-Comm) N/A WBConnect $ 26.00 Xxxx Residence 12/1/2001 PtP Demo Board
Orinoco Silver PC Card 0lUT13366445 WBConnect $ 75.00 Xxxx Residence 12/1/2001 PtP Demo Board
Orinoco Silver PC Card OlUT13366455 WBConnect $ 75.00 Xxxx Residence 12/1/2001 PtP Demo Board
Orinoco Silver PC Card OlUT13368197 WBConnect $ 79.00 Xxxx Residence 12/1/2001 PtP Demo Board
Orinoco Silver PC Card OlUT10378562 WBConnect $ 75.00 Xxxx Residence 12/1/2001 PtP Demo Board
AP-1000 Processor Module OlUT25251000 WBConnect $ 555.00 Xxxx Residence 12/1/2001 Site Survey Equip.
Orinoco Silver PC Card OlUT13366301 WBConnect $ 75.00 Xxxx Residence 12/1/2001 Site Survey Equip.
Orinoco SilvefPCCard 01tJ 113366915 WBConnect $ 75.00 Xxxx Residence 12/1/2001 Site Survey Equip.
AP-1000 Processor Module 0lUT25251009 WBConnect $ 555.00 Xxxx Residence 12/1/2001 Site Survey Equip.
Orinoco Silver PC Card OlUT13366898 WBConnect $ 75.00 Xxxx Residence 12/1/2001 Site Survey Equip.
Orinoco Silver PC Card 01UT13366905 WBConnect $ 75.00 Xxxx Residence 12/1/2001 Site Survey Equip.
10' I'M R 400 (Mille/ Femille) Cable N/A WBConnect $ 67.50 Xxxx Residence 12/1/2001 Cable either for
Resale or Demo
Purposes
Net,Screen 5x -001 VPN Box 18(18200100326 WBConnect $ 396.00 Xxxx Residence 12/1/2001 PtP Demo Board
NetScreen Remote VPN Client N/A WBConnect $ 76.00 Xxxx Residence 12/1/2001 Used for Demo's
NetScreen 5x Annual Maintenanc N/A WBConnect $ 120.00 Xxxx Residence 12/1/2001 N/A
NetScreen Unlimited Tech Support N/A WBConnect $ 240.00 Xxxx Residence 12/1/2001 N/A
Total Value of Equipment $8,445
WBConnect Final Asset Report 1-2002
Name of Product Serial # PurchasedBy Purchase Price Current Location DateRecordUpdate Notes
--------------- -------- ----------- -------------- ---------------- ---------------- -----
HP N5310 Pavilion Laptop (DH) TW11709362 WBConnect $ 1,821.24 Xxxx Residence 9/17/2001
HP OfficeJet G85XI Print/Copy/Scan/Fax SGG16E06P4 WBConnect $ 469.00 Xxxx Residence 12/28/2001 Originally for
Mile High
Oncology
Stinger Wet/Dr Vac 2 Gallon N/A WBConnect $ 39.95 Xxxx Residence 11/23/2001
Tool Kit (Testers,Crimpers,Cutters,etc.) N/A WBConnect $ 400.00 Xxxx Residence 11/23/2001 Used for
Installations
Stapler with Insulations Stales N/A WBConnect $ 50.00 Xxxx Residence 11/23/2001 Used for
Installations
100' Fish Tape N/A WBConnect $ 50.00 Xxxx Residence 11/23/2001 Used for
Installations
Brother PT 310 Personal Touch Label Make Need to Update WBConnect $ 30.00 Xxxx Residence 12/1/2001 Used for
Labels
Compaq Proliant PL1600R/6600 Server Need to Update WBConnect $ 2,501.81 Xxxx Residence 12/1/2001 Used for Email
Server
Omniview SE 4PT PS/2 KVM SWBX Switc Need to Update WBConnect $ 127.25 Xxxx Residence 12/1/2001 Used for Email
Server
Netscreen 5XP Elite VPN Box Need to Update WBConnect $ 796.00 Xxxx Residence 12/1/2001 VPN For
Internal Use
(4) 6 Ft. Omniview PS/2 Cable Kits N/A WBConnect $ 29.04 Xxxx Residence 12/1/2001 Used for KVM
SWBX Switch
RIM Credit Card Machine 3010US01GRYB13 WellsFargo $ - Xxxx Residence 9/17/2001 Monthly Lease
fromWellsFargo
Total Value of Equipment $6,314
WBConnect Final Asset Report 1-2002
Name of Product Serial # PurchasedBy Purchase Price Current Location DateRecordUpdate Notes
--------------- -------- ----------- -------------- ---------------- ---------------- -----
HP N5420 Pavilion Laptop TW12601167 WBConnect $ 1,310.36 Xxxxxx Home Xxxxxx 00/0/0000
Xxx XXXXX Xxxxxxxxx Xxx X/X WBConnect $ 150.00 Xxxxxx Home Office 12/1/2001
Wag Handheld Computer G16DW3hHON WBConnect $ 450.00 Xxxxxx Home Office 12/1/2001
Total Value of Equipment $1,910
WBConnect Final Asset Report 1-2002
Name of Product Serial # PurchasedBy Purchase Price Current Location DateRecordUpdate Notes
--------------- -------- ----------- -------------- ---------------- ---------------- -----
Orinoco Starter Kit 7 WBConnect $ 750.00 Qwestdex 10/04/01 Demo to Qwestdex Direct
01UT1336823 10/23/01
Orinoco Silver PC Card 01UT1037688 WBConnect $ 75.00 Qwestdex 10/04/01 Demo to Qwestdex Direct
10/23/01
Orinoco Silver PC Card OlUT1037859 WBConnect $ 75.00 Qwestdex 10/04/01 Demo to Qwestdex Direct
10/23/01
Pigtail (Electro-Comm) N/A WBConnect $ 26.00 Qwestdex 10/4/2001 No Box
Lucent Omni-Directional N/A WBConnect $ 250.00 Qwestdex 10/4/2001 Demo to Qwestdex Direct
10/23/01
3' Tri-Pod N/A WBConnect $ 12.00 Qwestdex 10/4/2001 Demo to Qwestdex Direct
10/23/01
1 1/4" galvanized pipe mast 5' Lon N/A WBConnect $ 4.34 Qwestdex 12/1/2001 Demo to Qwestdex Direct
10/23/01
Lightening Arrestor (Electro-Comn N/A WBConnect $ 35.00 Qwestdex 10/4/2001 Demo to Qwestdex Direct
10/23/01
LMR 24010' Cable (Male/Male) N/A WBConnect $ 54.00 Qwestdex 10/4/2001 Demo to Qwestdex Direct
10/23/01
Total Value of Equipment $1,281
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDigiNet, Inc and WBConnect, LLC
Dated January 29, 2001
Schedule 2 - Excluded Assets
The following list describes assets of WBConnect being excluded from this
transaction:
- none -
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDIgiNet, Inc and WBConnect, LLC
Dated January 29, 2001
Schedule 3.2 - Assumed Liabilities
The 3 "Promissory Notes"
"InDigiNet - Xxxxxxx" [attached and made a part hereof],
"InDigiNet - Xxxx" [attached and made a part hereof], and
"InDigiNet - Xxxxxx" [attached and made a part hereof]
shall be executed and complied with by InDigiNet to each of the named parties
for reimbursement of accrued personal investments and/or reimbursable expenses
by principals of WBConnect according to prior negotiation and agreement with
InDigiNet according to the terms and conditions contained within each of the
promissory notes.
In addition to the above, it is agreed that InDigiNet will reimburse the
above-named principals of WBConnect at least monthly for all personal and family
health insurance premiums paid for coverage from I' Jan2002 until such time as
the InDigiNet health insurance program becomes effective and for incurred
business reimbursable expenses from the date of prior personal expense reports.
Further, InDigiNet acknowledges and agrees to accrue and reimburse each of the
above principals for payroll "arrearage" accruing from Jan 7, 2002 to the date
of closing or until "regular" payroll takes effect, according to the terms and
rates agreed upon and contained in each employment agreement (it is anticipated
that this will be paid through the initial payroll of February, 2002).
The following list describes liabilities to be assumed by InDigiNet for
WBConnect customers:
- none anticipated -
PROMISSORY NOTE [InDigiNet - Xxxx]
$33,929.69 Date: January 29, 2002
For value received, the undersigned InDigiNet, Inc. [a Florida corporation] (the
"Borrower"), at X X Xxx 00000, Xxxxxxx, XX 00000, promises to pay to the order
of Xxxxx X. Xxxx, his heirs and/or assigns, (the "Lender"), at 0000 X Xxxxxxxxxx
Xx, Xxxxxxxxx Xxxxx, XX 00000 (or at such other place as the Lender may
designate in writing) the sum of $33,929.69 (1) plus interest accruing daily
from January 01, 2002 on the unpaid principal at the rate of 8.00% per annum.
The unpaid principal and dcrued interest shall be payable in full on or b fore
February 28, 2002 or ft s'~ &22--the "Due Date" whi h ver occurs later (if a
date is written in, bo parties to, this document must initial her,
All payments on this Note shall be applied first in payment of accrued interest
and any remainder in payment of principal.
If any payment obligation under this Note is not paid when due, the remaining
unpaid principal balance and any accrued interest shall become due immediately
at the option of the Lender.
The Borrower reserves the right to prepay this Note by making payment in full of
the then remaining unpaid principal and accrued interest.
If anY payment obligation under this Note is not paid when due, the Borrower
promises to pay all costs of collection, including reasonable attorney fees,
whether or not a lawsuit is commenced as part of the collection process.
If any of the following events of default occur, this Note and any other
obligations of the Borrower to the Lender, shall become due immediately, without
demand or notice:
1) the failure of the Borrower to pay the principal and any accrued
interest in full on or before the Due Date;
2) the death of the Borrower or Lender;
3) the filing of bankruptcy proceedings involving the Borrower as a debtor;
4) the application for the appointment of a receiver for the Borrower;
5) the making of a general assignment for the benefit of the Borrower's
creditors;
6) the insolvency of the Borrower;
7) a misrepresentation by the Borrower to the Lender for the purpose of
obtaining or extending credit.
Includes FirstUSA mileage Plus VISA liability of $15,070.57 as shown on the
WBConnect Balance Sheet dated 1/28/2002 incurred on personal credit card.
If any one or more of the provisions of this Note are determined to be
unenforceable, in whole or in part, for any reason, the remaining provisions
shall remain fully operative.
All payments of principal and interest on this Note shall be paid in the legal
currency of the United States. The Borrower waives presentment for payment,
protest, and notice of protest and nonpayment of this Note.
No renewal or extension of this Note, delay in enforcing any right of the Lender
under this Note, or assignment by Lender of this Note shall affect the liability
or the obligations of the Borrower. All rights of the Lender under this Note are
cumulative and may be exercised concurrently or consecutively at the Lender's
option.
Compliance with the terms of this note by InDigiNet, Inc. are material with
regard to the Asset Sale Agreement (and related contracts) with WBConnect;
failure to fulfill timely, the requirements of this note may jeopardize some or
all of the contractual obligations of WBConnect as defined therein. -.' -
This note may not be modified; it must be destroyed and replaced by a modified
document. This Note shall be construed in accordance with the laws of the State
of Colorado.
Signed this 291" day of January, 2002.
Borrower:
InDigiNet, Inc.
By: /s/ date 1/29/02
President
ACKNOWLEDGEMENT of SATISFACTION and PAYMENT of NOTE
Xxxxx X Xxxx (Lender) acknowledges as of this date,_______, full and complete
payment of this note including any accrued interest due.
By: date
Lender
PROMISSORY NOTE [InDigiNet - Xxxxxxx]
$18,573.74 Date: January 29, 2002
For value received, the undersigned InDigiNet, Inc. [a Florida corporation] (the
"Borrower"), at X X Xxx 00000, Xxxxxxx, XX 00000, promises to pay to the order
of Xxxxxx X Xxxxxxx, his heirs and/or assigns, (the "Lender"), at 0000 X Xxxxxx
Xx, Xxxxxx, XX 00000 (or at such other place as the Lender may designate in
writing) the sum of $18,573.74 (1) plus interest accruing daily from January 01,
2002 on the unpaid principal at the rate of 8.00(degree)!o per annum.
The unpaid principal and accrued interest shall be payable in full on or before
April 15, 2002 or ~~ t ~~ (the "Due Date")hichever occurs later (if a date is
written in, bo parties to this document must initial here ~).
All payments on this Note shall be applied first in payment of accrued interest
and any remainder in payment of principal.
If any payment obligation under this Note is not paid when due, the remaining
unpaid principal balance and any accrued interest shall become due immediately
at the option of the Lender.
The Borrower reserves the right to prepay this Note by making payment in full of
the then remaining unpaid principal and accrued interest.
If any payment obligation under this Note is not paid when due, the Borrower
promises to pay all costs of collection, including reasonable attorney fees,
whether or not a lawsuit is commenced as part of the collection process.
If any of the following events of default occur, this Note and any other
obligations of the Borrower to the Lender, shall become due immediately, without
demand or notice:
1) the failure of the Borrower to pay the principal and any accrued
interest in full on or before the Due Date;
2) the death of the Borrower or Lender;
3) the filing of bankruptcy proceedings involving the Borrower as a debtor;
4) the application for the appointment of a receiver for the Borrower;
5) the making of a general assignment for the benefit of the Borrower's
creditors;
6) the insolvency of the Borrower;
7) a misrepresentation by the Borrower to the Lender for the purpose of
obtaining or extending credit.
Includes CompUSA liability of $2,300 as shown on the WBConnect Balance
Sheet dated 1/28/2002 incurred on personal credit card.
If any one or more of the provisions of this Note are determined to be
unenforceable, in whole or in part, for any reason, the remaining provisions
shall remain fully operative.
All payments of principal and interest on this Note shall be paid in the I egal
currency of the United States. The Borrower waives presentment for payment,
protest, and notice of protest and nonpayment of this Note.
No renewal or extension of this Note, delay in enforcing any right of the Lender
under this Note, or assignment by Lender of this Note shall affect the liability
or the obligations of the Borrower. All rights of the Lender under this Note are
cumulative and may be exercised concurrently or consecutively at the Lender's
option.
Compliance with the terms of this note by InDigiNet, Inc. are material with
regard to the Asset Sale Agreement (and related contracts) with WBConnect;
failure to fulfill timely, the requirements of this note may jeopardize some or
all of the contractual obligations of WBConnect as defined therein.
This note may not be modified; it must be destroyed and replaced by a modified
document. This Note shall be construed in accordance with the laws of the State
of Colorado.
Signed this 29`" day of January, 2002.
Borrower: InDigiNet, Inc.
By: /s/ date
President
ACKNOWLEDGEMENT of SATISFACTION and PAYMENT of NOTE
Xxxxxx X Xxxxxxx (Lender) acknowledges as of this date,__________, full and
complete payment of this note including any accrued interest due.
By: date
Lender
PROMISSORY NOTE [InDigiNet - Runkelj
$6,370.47 Date: January 29, 2002
For value received, the undersigned InDigiNet, Inc. [a Florida corporation] (the
"Borrower"), at X X Xxx 00000, Xxxxxxx, XX 00000, promises to pay to the order
of Xxxxxxx X Xxxxxx, his heirs and/or assigns, (the "Lender"), at 0000 X Xxxxxx
Xx, Xxxxxxxxxx, XX 00000, (or at such other place as the Lender may designate in
writing) the sum of $6370.47 plus interest accruing daily from January 01, 2002
on the unpaid principal at the rate of 8.00% per annum.
The unpaid principal and accrued interest shall be payable in full on or before
February 28, 2002 or A,P2~(the "Due Date" whiche er occurs later (if a date is
written in, both parties to this document must initial here ,,! ).
All payments on this Note shall be applied first in payment of accrued interest
and any remainder in payment of principal.
If any payment obligation under this Note is not paid when due, the remaining
unpaid principal balance and any accrued interest shall become due immediately
at the option of the Lender.
The Borrower reserves the right to prepay this Note by making payment in full of
the then remaining unpaid principal and accrued interest.
If any payment obligation under this Note is not paid when due, the Borrower
promises to pay all costs of collection, including reasonable attorney fees,
whether or not a lawsuit is commenced as part of the collection process.
If any of the following events of default occur, this Note and any other
obligations of the Borrower to the Lender, shall become due immediately, without
demand or notice:
1) the failure of the Borrower to pay the principal and any accrued
interest in full on or before the Due Date;
2) the death of the Borrower or Lender;
3) the filing of bankruptcy proceedings involving the Borrower as a debtor;
4) the application for the appointment of a receiver for the Borrower;
5) the making of a general assignment for the benefit of the Borrower's
creditors;
6) the insolvency of the Borrower;
7) a misrepresentation by the Borrower to the Lender for the purpose of
obtaining or extending credit.
If any one or more of the provisions of this Note are determined to be
unenforceable, in whole or in part, for any reason, the remaining provisions
shall remain fully operative.
All payments of principal and interest on this Note shall be paid in the legal
currency of the United States. The Borrower waives presentment for payment,
protest, and notice of protest and nonpayment of this Note.
No renewal or extension of this Note, delay in enforcing any right of the Lender
under this Note, or assignment by Lender of this Note shall affect the liability
or the obligations of the Borrower. All rights of the Lender under this Note are
cumulative and may be exercised concurrently or consecutively at the Lender's
option.
Compliance with the terms of this note by InDigiNet, Inc. are material with
regard to the Asset Sale Agreement (and related contracts) with WBConnect;
failure to fulfill timely, the requirements of this note may jeopardize some or
all of the contractual obligations of WBConnect as defined therein.
This note may not be modified; it must be destroyed and replaced by a modified
document. This Note shall be construed in accordance with the laws of the State
of Colorado.
Signed.this 29th day of January, 2002.
Borrower: InDigiNet, Inc.
By: /s/ date
President
ACKNOWLEDGEMENT of SATISFACTION and PAYMENT of NOTE
Xxxxxxx X Xxxxxx (Lender) acknowledges as of this date,_________, full and
complete payment of this note including any accrued interest due.
By: date
Lender
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDigiNet, Inc and WBConnect, LLC
Dated January 29, 2001
Schedule 4.2 - Allocation of Purchase Price
As referenced in the APA, section 8.24 (page 13), for stock distribution
purposes, the allocation of the "purchasing stock" for WBConnect shall be as
follows:
1) for Xxx Xxxxxxx, 47.5% of the total shares, to be transferred to "Xxxxxx X.
Xxxxxxx and Xxxxxxx X. Xxxxxxx, as joint owners with rights of survivorship"
2) for Xxxx Xxxx, 47.5% of the total shares, to be transferred to "Xxxxx X. Xxxx
and Xxxxxxx Xxxx, as joint owners with rights of survivorship"
3) for Xxxxx Xxxxxx, 5% of the total shares, to be transferred as "Xxxxxxx X
Xxxxxx and Xxxxxxx X Xxxxxx. As joint owners with rights of (survivorship"
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDigiNet, Inc and WBConnect, LLC
Dated January 29, 2001
Schedule 11.2(b) -Resolution Authorizing Sale by WBConnect
The Members of WBConnect met in formal session on January 25, 2002 to discuss
and effect a decision relating to the sale of 100% of the Company's assets to
InDigiNet, Inc effective on or before January 31, 2002.
It is noted in these minutes that Members agreed said sale will be final and
effective at such time as the contemplated stock transfers have been completed
and the terms of the promissory notes have been fulfilled.
By unanimous consent, it was agreed by the Members that said "asset sale" as
described in this (and related) documents shall be authorized and executed by
the Members of WBConnect with InDigiNet according to the terms and conditions
herein stated. The Members agreed to use all reasonable efforts to accomplish
said task by January 31, 2002.
Authorized and agred-upon this date by:
Xxx Xxxxxxx /s/ Xxx Xxxxxxx
Xxxx Xxxx /s/ Xxxx Xxxx
Xxxxx Xxxxxx /s/ Xxxxx Xxxxxx
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDigiNet, Inc and WBConnect, LLC
Dated January 29, 20001
Schedule 11.2(c) - Certificate of Status of "Good Standing"
from the Colorado Secretary of State
attached
[SEAL]
DEPARTMENT OF
STATE
CERTIFICATE
I, XXXXXXX XXXXXXXX, Secretary of State of the State of Colorado, hereby
certify that, according to the records of this office,
WIRELESS BROADBAND CONNECTION LLC
(Colorado LIMITED LIABILITY COMPANY )
File #20011097669
was filed in this office on May 14, 2001 and has complied with the applicable
provisions of the laws of the State of Colorado and on this date is in good
standing and authorized and competent to transact business or to conduct its
affairs within this state.
Dated: January 16, 2002
For Validation:
Certificate ID: 530195
To validate this certificate, visit the following web site,
enter this certificate ID, then follow the instructions
displayed. www.sos.state.co.usNalidateCertificate
/s/Xxxxxxx Xxxxxxxx
-------------------
SECRETARY OF STATE
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDigiNet, Inc and WBConnect, LLC
Dated January 29, 2001
Schedule 11.2(e) - WBConnect Officer's Certificate of
Verification of Representations and Warranties
"I represent that I have read and reviewed the co~nts of this agreement and its
addendums as of )anuary~2'l;~ 02, and find its representations true and correct
to the best of my knowledge."
Xxx Xxxxxxx /s/ Xxx Xxxxxxx
Xxxx Xxxx /s/ Xxxx Xxxx
Xxxxx Xxxxxx /s/ Xxxxx Xxxxxx
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDigiNet, Inc and WBConnect, LLC
Dated January 29, 2001
Schedule 11.2(f) - List of Governmental Approvals to
Consummate Transaction
WBConnect believes that no additional government certificates or documentation
are required to effect this transaction with InDigiNet.
Xxx Xxxxxxx /s/ Xxx Xxxxxxx
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDigiNet, Inc and WBConnect, LLC
Dated January 29, 2001
Schedule 11.2(g) - Consent by WBConnect to Transfer and
Assign Purchased Assets to InDigiNet
WBConnect hereby consents to the complete transfer of all described assets of
WBConnect to InDigiNet as described in and required by this agreement. i Xxxx
Xxxx
ADDENDUM TO ASSET PURCHASE AGREEMENT
Between InDigiNet, Inc and WBConnect, LLC
Dated January 29, 2001
Schedule 11.2(h) - WB Connect Vesting of Title to InDigiNet for
Purchased Assets
WBConnect hereby vests full title and interest to all named and described assets
of WBCOnnect in InDigiNet as of the date of closing and subject ot the terms and
conditions of performance required of InDigiNet as described herein.
Xxx Xxxxxxx /s/ Xxx Xxxxxxx
