Exhibit 10(ii)
RESELLER AGREEMENT
AGREEMENT made this 24th day of January, 2002, by and between First
National Data Bank, Inc., a Florida Corporation, with offices located at 000
Xxxxxxx Xxx., Xxxx Xxxxxx, XX 00000 (the "Purchaser") and NetMerchant, Inc., a
Delaware Corporation, located in Shreveport, LA (the "Seller").
W I T N E S S E T H
WHEREAS, Seller is engaged in a business (the "Business") which
promotes a business related website.
; and
WHEREAS, Purchaser desires to purchase from Seller, and Seller desires
to sell to Purchaser, on the terms and conditions herein set forth and in
consideration of the premises and the mutual promises and covenants contained
herein, the parties agree as follows:
ARTICLE I
PURCHASE OF NETMERCHANT, INC.
1.1 Purchase of NetMerchant, Inc. Based upon the representations,
warranties and agreements herein contained and subject to the terms and
conditions set forth in this Agreement, Seller agrees to sell to Purchaser, all
issued and outstanding shares of NetMerchant, Inc. which will include the
("Purchased Assets") listed in Schedule A, as provided for in Section 2.1.
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. In consideration for the transfer of the Purchased
Assets, as provided for in Section 7.2, Purchaser shall pay to the Seller a
total of Thirty-two Thousand ($32,000) Dollars ("Initial Purchase Price"),
subject to adjustment as provided below ("Adjusted Purchase Price"), to be paid
as follows:
(a) Twelve equal installments of One Thousand ($1,000) Dollars
("Installment Period") payable monthly on the fifteenth of
each month, with the first installment being paid on or before
January 30, 2002 and the last payment being paid by December
15, 2002.
(b) A balloon payment of Twenty Thousand ($20,000) Dollars
("Balloon Payment") payable on or before the one year
anniversary of this Agreement.
2.2 Adjustments to Purchase Price. The Initial Purchase Price is
subject to the following adjustments:
(a) Purchaser shall have the absolute right to prepay the Purchase
Agreement Price at any time during the next twelve months.
(b) In the event the Purchaser prepays the Balloon Payment, all
remaining installments described in 2.1(a) are immediately
cancelled and the Purchase Price shall be adjusted
accordingly.
Page 1 Initials: Purchaser______ Seller______
By way of example, in the event Purchaser elects to prepay the Balloon
Payment after the payment of six installments, the adjusted purchase
price shall be equal to Twenty-six Thousand ($26,000) Dollars and the
Purchaser shall not be obligated to pay any additional installments to
the Seller.
ARTICLE III
PURCHASER'S NON-ASSUMPTION OF LIABILITY
3.1 Purchaser's Non-Assumption of Liabilities. The Purchaser shall not
assume or become liable for any of Seller's obligations, liabilities, debts,
contracts or other commitments of any kind whatsoever, known or unknown, fixed
or contingent, for all of which Seller shall remain obligated. Without limiting
the effect of the preceding sentence, it is expressly agreed that Purchaser
shall not assume or become liable for any of the following debts, liabilities or
obligations of Seller:
(a) Any liabilities or obligations under contracts, leases or
agreements that are not specifically assigned to and assumed
by Purchaser;
(b) Any debt, liability or obligation existing on the Closing Date
which would constitute a breach of any representation,
warranty or covenant made by Seller herein;
(c) The expenses of Seller incurred in connection with or
resulting from the transactions contemplated by this
Agreement;
(d) Any liability by reason of or for any default, breach or
penalty under any contract, lease or agreement occurring or
arising prior to closing;
(e) Accounts payable except as otherwise expressly provided
herein;
(f) Federal, State or local income, franchise, property, sales,
value-added, employment or other taxes;
(g) Worker's Compensation claims relating to employment prior to
the Closing Date;
(h) Any severance pay that may be due or owing to employees of
Seller as of the Closing Date.
ARTICLE IV
SELLER'S NON-ASSUMPTION OF LIABILITY
4.1 Seller's Non-Assumption of Liabilities. The Seller shall not assume
or become liable for any of Purchaser's obligations, liabilities, debts,
contracts, legal disputes or other commitments of any kind whatsoever, known or
unknown, fixed or contingent, for all of which Purchaser shall remain obligated.
Without limiting the effect of the preceding sentence, it is expressly agreed
that Seller shall not assume or become liable for any of the following legal
disputes, debts, liabilities or obligations of Purchaser:
(a) Any liabilities or obligations under contracts, leases or
agreements that are not specifically assigned to and assumed
by Seller;
Page 2 Initials: Purchaser______ Seller______
(b) Any debt, liability or obligation existing on the Closing Date
which would constitute a breach of any representation,
warranty or covenant made by Purchaser herein;
(c) The expenses of Purchaser incurred in connection with or
resulting from the transactions contemplated by this
Agreement;
(d) Any liability by reason of or for any default, breach or
penalty under any contract, lease or agreement occurring or
arising prior to or after closing;
(e) Accounts payable except as otherwise expressly provided
herein;
(f) Federal, State or local income, franchise, property, sales,
value-added, employment or other taxes;
(g) Worker's Compensation claims relating to employment prior to
or after the Closing Date;
(h) Any severance pay that may be due or owing to employees of
Purchaser prior to or after Closing Date.
(i) Any legal dispute that may arise during the Installment Period
or after the final Balloon Payment, resulting from the
Purchaser's use of the name NetMerchant and the use of the 5
domain names listed in Schedule A.
4.2 Clarification to Section 4.1(i). it is agreed that any challenge by
any third party of the Purchaser's use of the Service Xxxx "NETMERCHANT" will be
defended by and at the expense of the Purchaser during the Installment Period
and after the final Balloon Payment.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller, as follows:
5.1 Organization. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida.
5.2 Authorities, Etc. Purchaser has full power and authority to enter
into this Agreement and to carry out the transactions contemplated hereby. The
Board of Directors of the Purchaser has taken all action required by law, its
Certificate of Incorporation, its By-laws, or otherwise, to authorize the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby. This Agreement has been duly and validly
authorized, executed and delivered by Purchaser and no other corporate action by
it is necessary. This Agreement is a valid and binding obligation of Purchaser
enforceable against it in accordance with its terms.
5.3 No Violation. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will (a) violate
any provisions of the Certificate of Incorporation or by-laws of the Purchaser;
(b) violate, conflict with or result in the breach or termination of, or
otherwise give any other contracting party the right to terminate, or be an
event which, after the giving of notice or the passage of time or both, would
constitute a default under the terms of, any agreement or instrument to which
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Purchaser is a party or by which Purchaser or its properties or assets may be
bound which, either separately or in the aggregate, would materially and
adversely affect its business, operations or financial condition; or (c) violate
any judgment, order, injunction, decree or award against or binding upon
Purchaser or upon the assets or business of Purchaser, or any law or regulation
relating to Purchaser.
5.4 Disclosure. Neither this Agreement nor any schedule or document
delivered by or on behalf of Purchaser in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state material fact necessary to make the statements herein and therein made, in
light of the circumstances under which they were made, not misleading.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser, as follows:
6.1 Organization. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
6.2 Authority, Etc. Seller has the full right, power and authority to
enter into this Agreement and to carry out the transactions contemplated hereby.
This Agreement has been duly and validly authorized, executed and delivered by
Seller and no other corporate action by it is necessary. This Agreement is a
valid and binding obligation of Seller enforceable against it in accordance with
its terms.
6.3 Effect of Agreement. Neither Seller's execution and delivery of
this Agreement, or Seller's consummation of the transactions contemplated
hereby, will (i) violate any provision of Seller's Certificate of Incorporation
or By-Laws, (ii) violate, conflict with or result in the breach or termination
of, or otherwise give any other contracting party the right to terminate, or be
an event which, after the giving of notice or the passage of time or both, would
constitute a default under the terms of, any agreement or instrument to which
Seller is a party or by which Seller or its properties or assets may be bound
which, either separately or in the aggregate, would materially and adversely
affect its business, operations or financial condition, (iii) result in the
creation of any lien, charge or encumbrance upon the properties or assets of
Seller pursuant to the terms of any such agreement or instrument, or (iv)
violate any judgment, order, injunction, decree or award against or binding upon
Seller or upon the assets or business of Seller, or any law or regulation
relating to Seller.
6.4 Litigation. There is no litigation, governmental or administrative
proceeding, investigation, claim, complaint, or accusation, formal or informal,
pending, either in court or otherwise or before any administrative board,
agency, or commission, or any arbitration pending, or are any of the foregoing
threatened, relating to Seller, its properties, licenses and/or business
(hereinafter "Legal Proceedings"); nor does Seller know, or have reasonable
grounds to know, of any reasonable basis for any such action, arbitration, or
governmental proceeding or investigation relative thereto.
6.5 Trade names, Trademarks and Copyrights. All such Proprietary Rights
listed on Schedule A are valid and in good standing, do not knowingly conflict
with the rights of any other person, firm or entity, are subject to no liens,
charges, claims or restrictions and are adequate and sufficient to permit Seller
to conduct the Business as presently being conducted. No rights under any other
Proprietary Rights are required by Seller in connection with the conduct of
Business as presently conducted. Seller has full right to use its corporate name
and Seller does not know of any conflict or claimed conflict with respect to its
use of its Proprietary Rights. For purposes of this Agreement "Proprietary
Rights" means patents, trademarks, trade names, copyrights, service marks or
logos.
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6.6 Representations and Warranties at Closing. Except as expressly
herein otherwise provided, the representations and warranties of Seller set
forth in this Agreement shall be true on and as of the Closing Date as though
such representations and warranties were made on and as of such time.
6.7 State Taxing Authorities. No filing with or approval of any State
taxing authority is required in order to consummate the transactions
contemplated by this Agreement.
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ARTICLE VII
CLOSING
7.1 Date. The closing shall occur on January 25th, 2002 or such other
date as may be agreed to by the parties.
7.2 Transfer of Assets. Upon Closing, Seller will re-direct domain
names to Purchaser's DNS Servers and modify the domain record technical contact
to Purchaser's designated technical contact. Seller authorizes the Purchaser to
use the name NetMerchant and have exclusive use of the domain names listed on
Schedule A, during the Installment Period. Upon receipt of Balloon Payment,
Seller will transfer ownership of all assets listed on Schedule A to Purchaser.
7.3 Use of Name. Seller agrees to discontinue use of the name
NetMerchant during the Installment Period and after the Balloon Payment.
7.4 Other Documents. The parties shall each deliver to the other such
other documents as are necessary to satisfy the conditions set forth in this
Agreement.
ARTICLE VIII
INDEMNIFICATION BY PURCHASER
8.1 Indemnification by Purchaser. Purchaser shall indemnify Seller
against and hold it harmless from any and all liabilities, loss, claims,
counterclaims, cross-claims, set-offs, recoupments, damages and expenses
whatsoever, including, without limitation, all attorneys' fees and other costs
and expenses of litigation (hereinafter in this Section 8.1 "Loss") that Seller
may at any time suffer or incur by reason of (i) Purchaser's failure to pay,
discharge or perform any and all liabilities and obligations incurred or arising
from actions of Purchaser after the Closing Date pertaining in any way or
affecting the Purchased Assets that are not expressly assumed by Seller under
this Agreement; (ii) Seller's defense of any claim, suit or proceeding made or
commenced against it arising out of any liability or obligation of Purchaser
that is not expressly assumed by Seller hereunder; and (iii) any material
breaches of or inaccuracies in the agreements, covenants, representations and
warranties made by Purchaser in or pursuant to this Agreement.
Without limitation of the foregoing undertakings by Purchaser in this Article
VIII, Purchaser shall further indemnify Seller against and hold it harmless from
any and all loss that Seller may at any time suffer or incur by reason of
Purchaser's failure for whatever reason to pay, discharge or perform any and all
judgments, liabilities or obligations that may arise out of or relate in any
manner to the pending proceedings and actions against Purchaser, if any, and all
new proceedings or actions based upon, or in any way arising out of or related
to any of the facts or claims alleged in any of said pending proceedings and
actions and existing at any time after the Closing Date.
8.2 Duration of Indemnification. Any claim for indemnification under
this Article VIII shall be asserted within one (1) year following the closing
date.
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ARTICLE IX
INDEMNIFICATION BY SELLER
9.1 Indemnification by Seller. Seller shall indemnify Purchaser against
and hold it harmless from any and all liabilities, loss, claims, counterclaims,
cross-claims, set-offs, recoupments, damages and expenses whatsoever, including,
without limitation, all attorneys' fees and other costs and expenses of
litigation (hereinafter in this Section 9.1 ("Loss") that Purchaser may at any
time suffer or incur by reason of (i) Seller's failure to pay, discharge or
perform any and all liabilities and obligations incurred or arising from actions
of Seller prior to the Closing Date pertaining in any way or affecting the
Purchased Assets that are not expressly assumed by Purchaser under this
Agreement; (ii) Purchaser's defense of any claim, suit or proceeding made or
commenced against it arising out of any liability or obligation of Seller that
is not expressly assumed by Purchaser hereunder; (iii) failure of Seller to
comply with the provisions of any tax statute relating to notice of the sale of
assets hereunder and payment of taxes due upon such sale. (iv) any unpaid taxes
due and owing by Seller; and (v) any material breaches of or inaccuracies in the
agreements, covenants, representations and warranties made by Seller in or
pursuant to this Agreement.
Without limitation of the foregoing undertakings by Seller in this Article IX,
Seller shall further indemnify Purchaser against and hold it harmless from any
and all loss that Purchaser may at any time suffer or incur by reason of
Seller's failure for whatever reason to pay, discharge or perform any and all
judgments, liabilities or obligations that may arise out of or relate in any
manner to the pending proceedings and actions against Seller, if any, and all
new proceedings or actions based upon, or in any way arising out of or related
to any of the facts or claims alleged in any of said pending proceedings and
actions and existing at any time prior to the Closing Date.
9.2 Duration of Indemnification. Any claim for indemnification under
this Article XI shall be asserted within one (1) year following the closing
date.
ARTICLE X
FEES AND DEFAULT
10.1 Late fee and NSF Checks. A ten percent (10%) late fee will be
charged on all installment payments past due and not received by the 25th day of
the month. A twenty-five dollar ($25) additional charge will be assessed for all
returned (NSF) checks.
10.2 Default. In the event the Purchaser should fail to pay any monthly
installment by the past due date, the Seller will notify the Purchaser with a
written notice giving Purchaser thirty (30) days to pay past due installment
plus late fee or Seller shall have the option to terminate this Purchase
Agreement and re-take possession of all domain names.
In the event the Purchaser should fail to pay Balloon Payment by the due date,
the Seller will notify the Purchaser with a written notice giving Purchaser
thirty (30) days to make Balloon Payment or Seller shall have the option to
terminate this Purchase Agreement, and re-take possession of all domain names.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Finders and Brokers. Each party hereby represents and warrants to
the other that neither it nor its representatives have taken, nor will they
take, any action that would cause the other party to have any obligation or
liability to any person for any finders' fees, brokerage fees, agents'
commissions, or like payments in connection with the transactions contemplated
hereby. Each party shall indemnify and hold harmless the other from any claim
that is asserted by any person for a finder's fee or like payment with respect
to this Agreement arising from any act, representation or promise of the
indemnifying party or its representative.
11.2 Amendment. Subject to applicable law, this Agreement may only be
amended or supplemented by written agreement of the parties.
11.3 Expenses: Attorneys' Fees. Whether or not the transactions
contemplated by this Agreement are consummated, each party shall pay all
expenses incurred by it or on its behalf in connection with this Agreement or
any transaction contemplated hereby.
11.4 Survival of Representations and Warranties. All representations
warranties and agreements made by Seller or Purchaser in this Agreement or
pursuant hereto shall survive the Closing, and all statements contained in any
certificate, list schedule or other instrument delivered by Seller or Purchaser
pursuant to this Agreement shall be deemed representations and warranties of
such party.
11.5 Notices. All notices, demands, and other communications required
or permitted hereunder shall be made in writing and shall be deemed to have been
duly given if delivered by hand, against receipt, or mailed, postage prepaid,
certified or registered mail, return receipt requested, and if addressed to:
Seller at: 000 Xxxxxxx Xx.
Xxxxxxxxxx, XX 00000
000-000-0000
and if to Purchaser: 000 Xxxxxxx Xxx.
Xxxx Xxxxxx, XX 00000
000-000-0000
with a copy to: Xxxx Xxxxxxxxx
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
000-000-0000
Notice of change of address shall be effective only when done in accordance with
this Section. All notices complying with this Section shall be deemed to have
been received on the date of delivery or on the fourth business day after
mailing.
11.6 Assignment, Successors and Assigns. Except as otherwise provided
herein, each party agrees that it will not assign, sell, transfer, delegate, or
otherwise dispose of, whether voluntarily or involuntarily, or by operation of
law, any right or obligation under this Agreement. Purchaser may, with the
consent of Seller, assign this Agreement to a limited partnership or corporation
formed for the purpose of carrying out the acquisition provided for in this
agreement. Any purported assignment, transfer, or delegation in violation of
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this Section shall be null and void. Subject to the foregoing limits on
assignment and delegation, this Agreement shall be binding upon and shall inure
to the benefit of the parties and their respective successors and assigns.
Except for those enumerated above, this Agreement does not create, and shall not
be construed as creating, any rights or claims enforceable by any person or
entity not a party to this Agreement.
11.7 Governing Law. The validity, interpretation, enforceability, and
performance of this Agreement shall be governed by and construed in accordance
with the law of the State of Louisiana.
11.8 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed as original, but all of which together shall constitute
one and the same instrument.
11.9 Headings. The headings of the Sections and Articles of this
Agreement and Table of Contents are for reference purposes only and shall not
constitute a part hereof or affect the meaning or interpretation of this
Agreement.
11.10 Entire Agreement. The parties intend that the terms of this
Agreement, including the Schedules and other documents referred to herein, shall
be the final expression of their agreement with respect to the subject matter
hereof and may not be contradicted by evidence of any prior or contemporaneous
agreement. The parties further intend that this Agreement shall constitute the
complete and exclusive statement of its terms and that no extrinsic evidence
whatsoever may be introduced in any judicial, administrative, or other legal
proceeding involving this Agreement.
11.11 Schedules. The Schedules constitute part of this Agreement; each
reference to this Agreement shall include a reference to the Schedules; and each
reference to a Section of this Agreement shall be a reference to the
corresponding Schedule.
11.12 Severability. If any provision of this Agreement, or the
application thereof to any person or entity, place, or circumstance, shall be
held by a court of competent jurisdiction to be invalid, unenforceable, or void,
the remainder of this Agreement and such provisions as applied to other persons
or entities, places, and circumstances shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives the date first above written.
First National Data Bank, Inc.
---------------------------------------
(Purchaser)
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxx, COO
NetMerchant, Inc.
---------------------------------------
(Seller)
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Xxxxxxx Xxxxx, President
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Schedule A - Purchased Assets
1500 shares of common stock of NetMerchant, Inc., a Delaware Corporation,
representing all of the issued and outstanding shares of NetMerchant, Inc.
The registered Service Xxxx for NETMERCHANT (Registration # 2074745, US Patent
and Trademark Office) The following domain names:
XxxXxxxxxxx.xxx
XxxXxxxxxxx.xxx
XxxXxxxxxxx.xxxx
XxxXxxxxxxx.xxx
XxxXxxxxxxx.xx
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