Exhibit 10.1
ASSET PURCHASE AGREEMENT
by and between
CONFERENCE PLUS, INC.
and
iLINC COMMUNICATIONS, INC.
JUNE 30, 2008
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("AGREEMENT") is made as of the commencement
of business on June 30, 2008, by and between Conference Plus, Inc., (a
subsidiary of Westell Technologies, Inc.), a Delaware corporation, with its
primary place of business at 0000 X. Xxxxxxxxx Xx., Xxxxxxxxxx, Xxxxxxxx 00000
("Purchaser") and iLinc Communications, Inc., a Delaware corporation ("SELLER").
Capitalized terms not otherwise defined shall have the meaning ascribed to such
terms in Article X.
WHEREAS, Seller is engaged in the events business as an audio conferencing
service provider and wishes to sell certain assets associated with that
business;
WHEREAS, Purchaser is engaged in the audio conferencing business and
wishes to purchase from Seller certain identified assets of Seller used directly
in the EventPlus Business, all on and subject to the terms and conditions set
forth in this Agreement (the "ACQUISITION"); and at Closing Seller is to be
simultaneously engaged (through the Agent Agreement to be executed at Closing)
to solicit customers for Purchaser's event services.
NOW, THEREFORE, in consideration of the premises and mutual
representations, warranties, covenants and agreements hereinafter set forth, the
parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 ACQUIRED ASSETS. Subject to the terms and conditions set forth in this
Agreement, at the Closing, Seller shall sell, convey, assign, transfer and
deliver to Purchaser and Purchaser shall purchase, accept, acquire and take
assignment and delivery of, all right, title and interest in, to and under the
following assets of Seller related directly to the Seller's EventPlus Business
(collectively, the "ACQUIRED ASSETS") free and clear of all Encumbrances:
(a) all rights to revenues derived after Closing from the provision
of event services to accounts and customers listed on SCHEDULE 1.1(a) (the
"EVENTPLUS CUSTOMER ACCOUNTS");
(b) all the contracts with EventPlus Customer Accounts which provide
for the provisioning, use and purchase of event services to be provided on
specific dates after Closing, as identified on SCHEDULE 3.7(a)(i) (the "OPEN
EVENT CONTRACTS");
(c) the other contracts listed on SCHEDULE 3.7(a)(ii) with the
EventPlus Customer Accounts;
(d) any deposits associated with the Open Event Contracts or other
assigned contracts that have been collected prior to or on the Closing Date for
event services to be provided after the Closing Date;
(e) a worldwide royalty free perpetual license to Seller's
EventPlus(TM) software and source code (tht "EVENTPLUS SOFTWARE") used to
support the registration process for the EventPlus Customer Accounts pursuant to
the registration software license agreement in the form of Exhibit F (the
"REGISTRATION SOFTWARE LICENSE AGREEMENT");
(f) the toll free telecommunications access numbers listed on
SCHEDULE 1.1(f) associated with the EventPlus Business (the "ACCESS NUMBERS");
(g) all accounting books and records, customer files (including
customer credit and collection information), sales agent records and sales and
purchase correspondence relating directly to the EventPlus Business; PROVIDED,
that Seller may retain a copy of such records, on a confidential basis, to
support its own Web Collaboration Business and its accounting and collection
activities or any obligation arising under this Agreement or the Transition
Services Agreement;
(h) all warranties, indemnities or other rights relating directly to
the Open Event Contracts; and,
(i) all goodwill related to, arising from or used in connection with
the EventPlus Business.
1.2 EXCLUDED ASSETS. Those assets of Seller not constituting Acquired
Assets (collectively, the "EXCLUDED ASSETS"), including the following, shall be
retained by Seller, and are not being sold or assigned to Purchaser hereunder:
(a) All taxpayer and other identification numbers and minute books,
stock transfer books and other documents relating to the organization,
maintenance, and existence of Seller as a corporation;
(b) Seller's rights under this Agreement and the agreements to be
executed by Seller in connection herewith; and
(c) Any right, title, interest or asset of Seller not described in
SECTION 1.1, including but not limited to any right or asset associated with
Seller's Web Collaboration Business (and including any unrelated audio
conferencing products or services not a part of the EventPlus Business);
(d) Any accounts receivable owing by EventPlus Customer Accounts for
services provided through the Closing Date; and
(e) All intellectual property and source code associated with
Seller's Web Conferencing Software and Seller's EventPlus Software (except for
the EventPlus Software license described in SECTION 1.1(e)).
1.3 ASSUMED LIABILITIES. As part of the consideration for the Acquired
Assets, at the Closing Purchaser shall assume only those obligations of Seller
to be performed after the Closing under the Open Event Contracts and any
contracts described in SECTION 1.1(c)(other contracts which Purchaser has
elected to assume), in each case solely to the extent legally transferred or
assigned to Purchaser, but excluding any obligations or liabilities arising from
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or related to any default, breach or violation of any Open Event Contract or
such other contracts due to activities or events occurring on or prior to the
Closing (the "ASSUMED LIABILITIES").
1.4 NO OTHER LIABILITIES ASSUMED. Notwithstanding anything in this
Agreement to the contrary, neither Purchaser nor any of its Affiliates shall
assume and in no event shall be deemed to have assumed, any Liability of Seller
or any of its Affiliates whatsoever (collectively, the "RETAINED LIABILITIES"),
other than as specifically set forth in SECTION 1.3. Without limiting the
generality of the foregoing, Purchaser is assuming no obligation for, and shall
have no responsibility with respect to, Taxes, Liabilities with respect to
Seller's employees (including Liabilities with respect to employment
compensation, benefits or severance), governmental charges or assessments or any
other operating Liabilities of Seller (including accounts payable or other
obligations under any contract, lease, commitment, sales order, purchase order,
license, mortgage, note, bond or other agreement, whether written or oral (other
than as expressly set forth in SECTION 1.3)).
1.5 WAIVER OF BULK SALES COMPLIANCE. Purchaser and Seller hereby waive
compliance with the bulk sales Laws of any applicable jurisdiction, and Seller
agrees to indemnify and hold harmless Purchaser and its Affiliates from and
against any claims arising out of or due to the failure to comply with such bulk
sales Laws in accordance with SECTION 8.2.
ARTICLE II
CONSIDERATION
2.1 CONSIDERATION. The aggregate consideration for the Acquired Assets
shall be $175,000 (the "CLOSING PAYMENT"), PLUS the assumption of the Assumed
Liabilities, PLUS the right to receive the Monthly Earn-out Payments (as
determined in accordance with SECTION 2.3) (collectively, the "CONSIDERATION").
2.2 PAYMENT OF THE CONSIDERATION. The Consideration shall be paid by
Purchaser to Seller: (a) at the Closing, by assumption of the Assumed
Liabilities and delivery to Seller of the Closing Payment; and (b) at the times
and in the amounts specified in SECTION 2.3, by delivery to Seller of the
applicable payments set forth therein.
2.3 MONTHLY EARN-OUT PAYMENTS. Seller shall be entitled to receive, as
fully earned without additional conveyance or consideration, the following (the
"MONTHLY EARN-OUT PAYMENTS"):
(a) Purchaser shall pay to Seller an amount with respect to each of
the twenty-four (24) months after the Closing Date (the "MEASUREMENT PERIOD"),
equal to the greater of: (a) twenty five percent (25%) of the revenue (recorded
on an accrual basis in accordance with GAAP) derived by Purchaser from the
EventPlus Business from (i) EventPlus Customer Accounts and (ii) accounts
referred to Purchaser by Seller pursuant to the Agent Agreement (the "REFERRED
CUSTOMER ACCOUNTS" and together with the EventPlus Customer Accounts the "SELLER
GENERATED CUSTOMER ACCOUNTS") or (b) ten thousand dollars ($10,000) (the
"MINIMUM PAYMENTS"). The Minimum Payments are due from Purchaser and irrevocably
earned by Seller regardless of the amount of revenue actually earned by
Purchaser during the Measurement Period, and therefore are a floor on the amount
that will be due to Seller during the Measurement Period. (By way of example but
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not limitation, should Purchaser earn, on an accrual basis, $80,000 in revenue
from the EventPlus Business from Seller Generated Customer Accounts for August
of 2008, then the Monthly Earn-Out Payment payable to Seller for August of 2008
will be $20,000. If the Purchaser earns no revenue from the EventPlus Business
from Seller Generated Customer Accounts for September of 2008, then the total of
the Monthly Earn-Out Payment payable to Seller for September of 2008 will be
$10,000). Only revenues derived from the Seller Generated Accounts for the
EventPlus Business will be considered in determining the Monthly Earn-Out
Payments. For the avoidance of doubt, neither revenues derived by Buyer from any
Seller Generated Customer Account for Seller's resale of Seller's web
conferencing services (other than web conferencing services used during an
event), revenue derived by Buyer from any other services provided by Buyer to
Seller Generated Accounts nor EventPlus Business revenues derived from Buyer
from other than Seller Generated Accounts will be considered in determining the
Monthly Earn-Out Payments. Each Monthly Earn-Out Payment will be calculated and
due on the last day of each month during the Measurement Period and shall be
paid within fifteen (15) days after the end of each month thereof, together with
the tender of a summary report of the basis for payment providing at least the
customer name and the amount invoiced to any Seller Generated Customer Accounts.
Monthly Earn-Out Payments in excess of the Minimum Payment shall be subject to
reduction, credit or reimbursement on account of credits or other adjustments to
the amount owing by the customer based solely on defects or failures in delivery
of service with respect to the contract under which the revenue is earned, but
not for unrelated credits which Purchaser may deem appropriate to grant, and for
clarification not for any write-off of any outstanding accounts receivable (bad
debts) due to collection issues associated with a Seller Generated Customer
Account.
(b) If Seller disagrees with any Monthly Earn-Out Payment (a
"DISPUTE"), then Seller shall notify Purchaser of such Dispute in writing within
forty-five (45)) days after the end of each calendar quarter during the
Measurement Period with respect to Monthly Earn-Out Payments accrued during that
past calendar quarter. Purchaser and Seller will have sixty (60) days after
Seller has notified Purchaser in which to resolve the Dispute. At Seller's
request, Seller and its representatives shall be given access to the financial
and other books and records of Purchaser related to the EventPlus Business which
will be used to determine the Monthly Earn-Out Payment. If such Dispute is not
resolved in such amount of time, Seller and Purchaser shall immediately tender
the undisputed portion of any disputed sum to Seller and submit the issues
remaining in dispute to arbitration in accordance with SECTION 11.1
2.4 METHOD OF PAYMENT. All payments being made from one party to
another under this Agreement shall be made by wire transfer of immediately
available federal funds in United States dollars to an account previously
designated in writing by the party to receive such payment at the expense
of the party initiating the wire transfer.
2.5 ALLOCATION OF CONSIDERATION. The parties shall allocate the
Consideration among the Acquired Assets, in accordance with SCHEDULE 2.5.
Such allocation is intended to comply with the requirements of Section
1060 of the Internal Revenue Code of 1986, as amended. Seller and
Purchaser shall file Form 8594 with their respective Tax Returns
consistent with such allocation. The parties shall treat and report the
transaction contemplated by this Agreement in all respects consistently
for purposes of any federal, state or local tax, including the calculation
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of gain, loss and basis with reference to the Consideration allocation
made pursuant to this SECTION 2.5. The parties shall not take any action
or position inconsistent with the obligations set forth in this SECTION
2.5, except as may otherwise be required by applicable Law.
2.6 TAXES. Seller shall pay all Taxes and fees imposed by
Governmental Authorities and required to be paid in connection with or
arising from the sale, transfer, or assignment of the Acquired Assets.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser that the statements contained
in this ARTICLE III are true and correct on and as of the date hereof and the
Closing Date, except as set forth in the disclosure schedule accompanying this
Agreement (the "DISCLOSURE SCHEDULE"). The Disclosure Schedule will be arranged
in paragraphs corresponding to the numbered paragraphs contained in this ARTICLE
III.
3.1 DUE ORGANIZATION. Seller is a corporation, duly organized and validly
existing and in good standing under the laws of the state of its incorporation
with all requisite power and authority to own, lease and operate the Acquired
Assets. Seller is duly authorized to do business and in good standing in each
other jurisdiction in which either the nature of the activities conducted by it
or ownership of the Acquired Assets requires it to be so qualified, each of
which jurisdictions is set forth on SCHEDULE 3.1, except where the failure to be
so qualified would not have a material adverse effect on Seller or the Acquired
Assets.
3.2 DUE AUTHORIZATION. Seller has full power and authority to enter into
this Agreement and to carry out the transactions contemplated hereby to be
performed by it. The execution, delivery and performance of this Agreement have
been duly authorized by all necessary corporate action on the part of Seller's
Board of Directors ("SELLER'S BOARD OF DIRECTORS"). This Agreement has been duly
and validly executed and delivered by Seller and constitutes the legal, valid
and binding obligation of Seller, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium, reorganization and
other similar laws affecting the rights of creditors generally, and to the
exercise of a court's equitable powers. The execution, delivery and performance
by Seller of this Agreement and all other instruments, agreements, certificates
and documents contemplated hereby to be executed, delivered and performed by
Seller: (a) do not, and will not, violate or conflict with any provision of the
certificate of incorporation, bylaws or other organizational and governing
documents of Seller; (b) do not, and will not, violate or constitute a default
under any contract, lease, commitment, sales order, purchase order, license,
mortgage, note, bond or other agreement, whether written or oral, or, to
Seller's Knowledge, any Law to which Seller is a party, or by which it or any of
the Acquired Assets are bound; and (c) will not result in the creation of any
Encumbrance upon the Acquired Assets, or permit the acceleration of the maturity
of any indebtedness secured by the Acquired Assets. No notice to, filing with,
authorization of, exemption by, or Consent of any Person is required in order
for Seller to consummate the transactions contemplated hereby, except as shall
have been obtained on or prior to the Closing Date.
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3.3 NO ADVERSE CHANGE. Except as disclosed on SCHEDULE 3.3, since December
31, 2007 the EventPlus Business has been operated only in the usual, regular and
ordinary course and manner and there has not been any: (a) sale, transfer or
disposition of any of the assets of the EventPlus Business except in the
ordinary course of business; (b) Encumbrance placed on any of the Acquired
Assets; (c) contract, lease, commitment, license, mortgage, note, or bond,
whether written or oral, entered into by Seller other than in the ordinary
course of business; (d) material modification, cancellation or termination of
any material Open Event Contract; or (e) discontinuation or material reduction
in purchases from or dealings with Seller by any customer of the EventPlus
Business that was one of the top twenty (20) customers of the EventPlus Business
as measured by event revenues during the twelve (12) months ended December 31,
2007.
3.4 TITLE TO AND CONDITION OF ASSETS. Seller has good and valid title to
the Acquired Assets. At Closing Seller shall convey the Acquired Assets to
Purchaser and vest in Purchaser good and valid title to the Acquired Assets,
free and clear of any Encumbrance,
3.5 REVENUE STATEMENTS.
(a) The list of EventPlus Customer Accounts and associated gross
revenues therefrom, broken out by month for the period beginning December 1,
2007 through and including May 31, 2008 (the "REVENUE STATEMENTS") are attached
as SCHEDULE 3.5(a). The Revenue Statements: (i) are true, complete and correct;
(ii) fairly present the revenues of Seller stated therein by service and by
customer as of the dates thereof and the periods then ended, and (iii) have been
prepared in accordance with the books and records of Seller and do not reflect
any transactions that are not bonafide.
3.6 TAXES. All Taxes attributable to the Acquired Assets and the EventPlus
Business have been properly determined in all material respects in accordance
with applicable Laws and have been timely paid in full if due and if not due
will be timely paid by Seller when due. All Taxes attributable to the Acquired
Assets and the EventPlus Business that Seller is required by Law to withhold or
collect, including sales and use Taxes and amounts required to be withheld for
Taxes of employees, have been duly withheld or collected and, to the extent
required, have been paid over to the proper Governmental Authorities.
3.7 AGREEMENTS. SCHEDULE 1.1(a) contains a true and complete list of all
the accounts and customers related to the EventPlus Business.
(a) SCHEDULE 3.7(a) sets forth an accurate and complete list of the
following: (i) all Open Event Contracts, (ii) any other agreement or terms
and conditions governing Seller's relationship with the EventPlus Customer
Accounts for the Open Event Contracts or future services which may be
ordered or provided, including pricing terms and minimum purchase
requirements, and (iii) the amount owed by each EventPlus Customer
Accounts to Seller as of the Closing Date, with aging. Other than as
indicated next to each customer account on SCHEDULE 3.7(a): (v) no
EventPlus Customer Account has an agreement containing a "most favored
nation" or similar pricing adjustment provision, (w) no EventPlus Customer
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Account contains any restriction on the ability of Seller to run its
business, whether through "exclusivity", "non-competition",
"non-solicitation" or similar provisions, (x) there is no restriction on
transfer or similar provision in any contract related to any EventPlus
Customer Account that would prohibit or impair Purchaser's ability to
provide and be paid for the EventPlus Business services to any EventPlus
Customer Account following Closing, (y) no event of default by Seller has
occurred that remains uncured with respect to any such EventPlus Customer
Account, and (z) to Seller's Knowledge no event of default by the other
party or parties to such EventPlus Customer Account exists and no
circumstance exists that, with notice or lapse of time or both, would
constitute an event of default by any party thereto. Seller has provided
Purchaser with a true and complete copy of all agreements listed on
SCHEDULE 3.7(a)(i) and (ii).
(b) SCHEDULE 3.7(b) sets forth an accurate and complete list of all
employment or independent contractor agreements. There are no agreements in
effect with contain any non-competition, non-solicitation provisions currently
in effect which restrict Seller in relation to the EventPlus Business. Seller
has delivered to Purchaser a true and complete copy of all agreements listed on
SCHEDULE 3.7(b).
(c) SCHEDULE 3.7(c) sets forth an accurate and complete list of all
Reseller Agreements currently in effect relating directly to the EventPlus
Business. Seller has delivered to Purchaser a true and complete copy of all
agreements listed on SCHEDULE 3.7(c).
3.8 LITIGATION. Except as disclosed on SCHEDULE 3.8, there is no notice of
any claims, actions, suits, proceedings, or governmental investigations (each, a
"PROCEEDING") pending or, to Seller's Knowledge, threatened against or affecting
the EventPlus Business or any of the Acquired Assets. Seller is not named in any
order, judgment, decree, stipulation or consent order with any Governmental
Authority that affects the EventPlus Business, the Acquired Assets or the
transactions contemplated by this Agreement.
3.9 CUSTOMERS. Except as disclosed on SCHEDULE 3.9, no accounts receivable
of any EventPlus Customer Account is more than ninety (90) days overdue and no
EventPlus Customer Account is currently suing Seller, has ever sued Seller or is
currently in a dispute with Seller.
3.10 INTELLECTUAL PROPERTY. Seller owns all right and title necessary to
grant Purchaser the license reflected herein and in the Registration Software
License Agreement to use the EventPlus Software.
3.11 COMPLIANCE WITH LAWS. Seller has complied with all Laws applicable to
it, the EventPlus Business and the Acquired Assets. No claims have been filed
against Seller alleging a violation of any such Laws.
3.12 RELATED PARTY TRANSACTIONS AND COMPETITIVE INTERESTS. No officer or
director of Seller has any direct or indirect interest in any of the EventPlus
Customer Accounts nor does such officer or director have any direct or indirect
interest in, or derive any income from, any Person (other than Seller) in a
business which is competitive with or similar to the EventPlus Business.
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3.13 SOLVENCY. As and after giving effect to the Closing: (i) the assets of
Seller shall exceed its Liabilities; (ii) the capital of Seller shall not be
unreasonably small to conduct its business; and (iii) Seller shall not have
incurred debts, nor shall have intended to incur debts, beyond its ability to
pay such debts as they mature.
3.14 BROKERS. Seller has not incurred any Liability for brokerage or finders'
fees or agents' commission or other similar payment in connection with the
Acquisition.
3.15 DISCLOSURE. Neither this Agreement, nor any of the Schedules or Exhibits
hereto, or other agreements entered into connection with the transactions
contemplated hereby, contains any untrue statement of a material fact or omits a
material fact necessary to make the statements contained herein or therein, in
light of the circumstances in which they were made, not misleading. No
investigation or due diligence conducted by, or knowledge obtained by, Purchaser
or its Affiliates shall limit, modify or negate any of the foregoing
representations and warranties.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as of the date hereof and the
Closing Date as follows:
4.1 DUE INCORPORATION. Purchaser is a corporation duly organized and
validly existing under the laws of the State of Delaware with full corporate
authority to conduct its business as it is now conducted. Purchaser is duly
authorized to do business and in good standing in each other jurisdiction in
which either the nature of the activities intended to be conducted by it or
ownership of the Acquired Assets requires it to be so qualified, except where
the failure to be so qualified would not have a material adverse effect on
Purchaser or the Acquired Assets.
4.2 DUE AUTHORIZATION. Purchaser has the full power and authority to enter
into this Agreement and to carry out the transactions contemplated hereby. The
execution, delivery and performance of this Agreement by Purchaser has been duly
authorized by all necessary corporate action on the part of Purchaser and
Parent. This Agreement has been duly and validly executed and delivered by
Purchaser and constitutes the legal, valid and binding obligation of Purchaser
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium, reorganization and other similar laws affecting the
right of creditors generally, and to the exercise of a court's equitable powers.
The execution, delivery and performance by Purchaser of this Agreement and all
other instruments, agreements, certificates and documents contemplated hereby to
be executed, delivered and performed by Purchaser: (a) do not, and will not,
violate or conflict with any provision of the articles of incorporation, bylaws
or other organizational and governing documents of Purchaser; and (b) do not,
and will not, violate or constitute a default under any contract or, to
Purchaser's Knowledge, any Law to which Purchaser is a party, or by which it is
bound. No notice to, filing with, authorization of, exemption by or consent of
any Person or entity is required in order for Purchaser to consummate the
transactions contemplated hereby, except as shall have been obtained on or prior
to the Closing Date.
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4.3 BROKERS. Purchaser has not incurred any Liability for brokerage or
finders' fees or agents' commission or other similar payment in connection with
the Acquisition.
4.4 LITIGATION. There is no Proceeding pending or, to Purchaser's
Knowledge, threatened against or affecting Purchaser that would impair
Purchaser's ability to derive revenue from the Open Event Contracts
post-closing.
ARTICLE V
COVENANTS
5.1 ACCESS TO INFORMATION. Until the earlier of the Closing Date or
termination of this Agreement in accordance with ARTICLE VII, Seller shall give
to Purchaser, its officers, agents, employees, counsel, accountants and other
representatives, reasonable access to the books and records of the EventPlus
Business as it requests. Seller shall cause its officers, employees,
consultants, agents, accountants, attorneys and other representatives to
cooperate with Purchaser and Purchaser's representatives in connection with such
investigation and examination.
5.2 CONDUCT OF THE EVENTPLUS BUSINESS PENDING THE CLOSING. Prior to the
Closing, except: (i) as required by applicable Law; or (ii) with the prior
written consent of Purchaser, Seller shall:
(a) conduct the EventPlus Business only in the ordinary course of
business consistent with past practices;
(b) use its commercially reasonable efforts to preserve the present
relationships with customers and vendors of the EventPlus Business; and,
(c) not take or omit to take any action that would violate the
representation contained in SECTION 3.3 or otherwise agree to anything
prohibited by this SECTION 5.2.
5.3 TRANSITION COOPERATION; MAIL AND COLLECTIONS RECEIVED AFTER CLOSING.
(a) Promptly following the Closing, Purchaser and Seller shall
cooperate in coordinating with all third-party telecommunications companies
regarding the smooth and prompt transfer to Purchaser of all toll free numbers
constituting Acquired Assets.
(b) From and after the Closing Date, Seller shall promptly forward
or cause to be forwarded to Purchaser any payments received by Seller for
services provided or to be provided by Purchaser after Closing (including any
deposits received after the Closing Date), as well as any mail that relates to
the Acquired Assets or the Assumed Liabilities, and Purchaser shall promptly
forward or cause to be forwarded to Seller any payments received by Purchaser
for services provided by Seller prior to Closing, as well as any mail received
by Purchaser that relates to the Excluded Assets, or the Retained Liabilities.
All collections received by Seller or Purchaser that are identified by the
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customer as pertaining to a specific event or invoice shall be attributed by
Seller and Purchaser as payments on that specific event or invoice. Any
collections received by Seller or Purchaser without any event or invoice
identification shall be attributed to the oldest invoice outstanding.
(c) Following the Closing Date, Seller hereby grants to Purchaser
the power, right and authority, coupled with an interest, to receive, endorse,
cash, deposit, and otherwise deal with, in the name of Seller, any checks,
drafts, documents and instruments constituting payment of any amounts included
in the Acquired Assets and that are payable to, payable to the order of, or
endorsed in favor of Seller or any agent of Seller. Seller agrees promptly to
endorse and pay over or cause to be endorsed and paid over to Purchaser, without
deduction or offset, the full amount of any payment received by Seller after the
Closing Date in respect of goods sold or services rendered as part of the
EventPlus Business.
(d) Following the Closing Date, Seller and Purchaser will cooperate
in a commercially reasonable manner to permit Seller to integrate Purchaser's
audio conferencing services with the Seller's Web conferencing offering.
Purchaser agrees to provide the Seller with documentation of and access to its
published application programming interface ("API") for its audio conferencing
bridge and provide assistance in its ordinary course of business so as to permit
the Seller's engineers a reasonable opportunity to integrate Purchaser's audio
conferencing services with the Seller's Web conferencing offering and the
EventPlus Software.
5.4 POST-CLOSING EXPENSES. Subject to the provisions of SECTION 8.1,
Seller is responsible for all expenses (other than Assumed Liabilities) related
to the EventPlus Business incurred prior to and on the Closing Date and
Purchaser is responsible for all Assumed Liabilities and for all expenses
related to the EventPlus Business first incurred after the Closing Date, and
Purchaser will forward to Seller invoices for expenses relating solely to the
period on and before the Closing Date (other than Assumed Liabilities) and
Seller shall pay such invoices directly to the payee. In order to assure
Purchaser of no disruption in services, Purchaser may pay any invoices which
reflect expenses relating to both the period before and after the Closing Date,
however, Seller shall remain obligated to Purchaser for its portion of such
expenses in accordance with the terms of this Agreement. On or before sixty (60)
days after the Closing Date, Purchaser and Seller will provide each other with a
list of all such pro-rated, pre-Closing Date-paid, Closing Date-paid and
post-Closing Date-paid expenses that are not otherwise addressed by this
Agreement as Assumed Liabilities. Purchaser and Seller shall reimburse each
other promptly for any amounts due each other at that time and thereafter within
ten (10) calendar days after receipt of proof of payment of any such expenses.
5.5 PAYMENT OF RETAINED LIABILITIES. Seller shall make adequate provision
for the payment, in full all of the Retained Liabilities and other liabilities
of Seller under this Agreement related to the EventPlus Business. If any such
liabilities are not so paid or provided for and Purchaser determines that the
failure to so pay or provide for such Liabilities would materially impair
Seller's ability to satisfy its obligations under the Transition Services
Agreement, Purchaser shall provide notice to Seller of such event and, if Seller
has failed to pay or provide for such Liabilities after five (5) calendar days
notice, Purchaser may, at any time after the Closing Date, elect to make all
such payments directly (but shall have no obligation to do so) and the full
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amount of all such payments made by Purchaser shall be promptly reimbursed by
Seller following Purchaser's written notice to Seller thereof.
5.6 FURTHER ASSURANCES. All deliveries, payments and other transactions
and documents relating to the transactions contemplated herein shall be
interdependent and none shall be deemed effective unless and until all are
effective (except to the extent that the party entitled to the benefit thereof
has waived in writing satisfaction or performance thereof as a condition
precedent to the Closing). Each party shall, at the request of any other party
from time to time and at any time, whether on or after the Closing Date, and
without further consideration, execute and deliver such deeds, assignments,
transfers, assumptions, conveyances, powers of attorney, receipts,
acknowledgments, acceptances and assurances as may be reasonably necessary to
procure for the party so requesting, and its successors and assigns, or for
aiding and assisting in collecting and reducing to possession, any and all of
the Acquired Assets, or for the assumption of the Assumed Liabilities, or to
otherwise satisfy and perform the obligations of the parties hereunder or to
otherwise give effect to the transactions contemplated hereby. Without limiting
the generality of the foregoing, Seller shall, upon the request of Purchaser and
without further consideration, in a timely manner on and after the Closing Date
execute and deliver to Purchaser such other documents, releases, assignments and
other instruments as may be reasonably required to effectuate completely the
transfer and assignment to Purchaser of, and to vest fully in Purchaser all of
Seller's rights to the Acquired Assets.
5.7 PRESS RELEASES AND ANNOUNCEMENTS. Prior to the Closing, except as
required by applicable Law or exchange on which such Person's securities are
listed, neither party nor any of their respective stockholders, officers,
directors, employees, agents or Affiliates shall make any press release or other
direct or indirect public announcement or disclosure regarding or relating to
this Agreement or any transaction contemplated hereby without the prior written
consent of the other party. To the extent either party makes a press release or
other direct or indirect public announcement or disclosure, such party will
provide the other party with reasonable notice and opportunity to comment on
such press release, announcement or disclosure.
5.8 CONDUCT OF THE EVENTPLUS BUSINESS POST CLOSING. After the Closing for
a period of two (2) years following the Closing Date, Purchaser shall use
commercially reasonable efforts to (x) conduct the EventPlus Business,
concerning the Seller Generated Customer Accounts, in the ordinary course of
business consistent with Purchaser's standard practices and (y) preserve the
Seller Generated Customer Accounts; provided that, Purchaser may at any time
discontinue servicing any Seller Generated Customer Accounts for any reasonable
business reason, including but not limited to failure of payment or from selling
the EventPlus Business subject to the buyer's assumption of the obligation to
pay the Monthly Earn-Out Payments. To that end, Purchaser will either hire or
designate existing, two (2) employees, as event coordinators who will be
dedicated to the Seller Generated Customer Accounts during the Measurement
Period. Should Purchaser desire to terminate or materially alter the
relationship with any Seller Generated Customer Accounts, then Purchaser will
provide written notice to Seller describing the circumstances and the
anticipated date of transition. After the Closing and until the Transition Date,
except: (i) as required by applicable Law; or (ii) with the prior written
consent of Purchaser, Seller shall conduct the EventPlus Business concerning the
EventPlus Customer Accounts (to the extent required by the Transition Services
Agreement) in the ordinary course of business consistent with Seller's past
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practices. Because the customers of the EventPlus Business do currently use, and
will expect to continue to use after the Closing Date, Seller's Web conferencing
software known as the iLinc Suite(TM), Purchaser agrees to acquire at its
additional expense an enterprise license to Seller's iLinc Suite (the
"ENTERPRISE LICENSE AGREEMENT") for use by the EventPlus Business Customers
which will allow Purchaser to offer the iLinc Suite to its customers after
Closing. Payment of any licensing fees associated with the iLinc Suite to be
used by customers of EventPlus Customer Accounts are not a part of the
Consideration and shall be fully earned regardless of the revenue, if any,
earned by Purchaser and shall be fully paid by wire transfer on the Closing
Date.
ARTICLE VI
CLOSING
6.1 CLOSING. The consummation of the transactions contemplated in this
Agreement (the "CLOSING") will take place at the offices of XxXxxxxxx, Will &
Xxxxx LLP, 000 X. Xxxxxx Xx., Xxxxx 0000, Xxxxxxx, Xxxxxxxx, at 10:00 a.m.,
Chicago, Illinois time, on June 30, 2008 (the "CLOSING DATE"). Closing shall be
deemed to have occurred as of the 11:59 pm on the Closing Date.
6.2 CONDITIONS TO OBLIGATION OF PURCHASER. The obligations of Purchaser to
purchase the Acquired Assets and assume the Assumed Liabilities at the Closing
are subject to the satisfaction of each of the following conditions, unless
explicitly waived by Purchaser in writing:
(a) Seller shall have performed and satisfied each of its
obligations hereunder required to be performed and satisfied at or prior to the
Closing; PROVIDED, that for purposes of clarification, Seller's failure to
obtain any Consent to the transfer or assignment of any EventPlus Customer
Account shall not be deemed a failure of Seller to satisfy its obligations under
this SECTION 6.2(a).
(b) (i) Each of the representations and warranties of Seller and
contained herein was true and correct as of the date hereof and will be true and
correct at and as of the Closing Date; and (ii) there shall not have been any
material adverse change in the business, prospects, condition (financial or
otherwise) or results of operations of the EventPlus Business and no event shall
have occurred that would require disclosure under SCHEDULE 3.3.
(c) Purchaser shall have received from Seller a certificate signed
by a duly authorized executive officer of Seller certifying the satisfaction of
the conditions set forth in SECTIONS 6.2(a) AND 6.2(b).
(d) No temporary restraining order, preliminary or permanent
injunction, cease and desist order or other order issued by any court of
competent jurisdiction or Governmental Authority preventing any transfer
contemplated hereby or the consummation of the Closing, or imposing damages in
respect thereto, shall be in effect, and there shall be no pending or threatened
Proceedings by any Governmental Authority or by any other Person challenging or
in any manner seeking to restrict or prohibit the Acquisition or the
consummation of any other transactions contemplated hereby.
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(e) Purchaser shall have received a certificate from the Secretary
or comparable official of Seller, dated as of the Closing Date, attesting to
Seller's Board of Directors' resolutions and authorizing the execution, delivery
and performance of this Agreement and the other agreements contemplated to be
executed, performed and delivered by Seller hereunder.
(f) Purchaser shall have received a counterpart of the Transition
Services Agreement, in the form attached hereto as EXHIBIT A (the "TRANSITION
SERVICES AGREEMENT"), duly executed by Seller.
(g) Purchaser shall have received a counterpart of an agent
agreement in the form attached hereto as EXHIBIT B, which will permit the sale
by Seller of Purchaser's event services (the "AGENT AGREEMENT"), duly executed
by Seller,.
(h) Purchaser shall have received a Xxxx of Sale, in form attached
hereto as EXHIBIT C, duly executed by Seller (the "XXXX OF SALE"), and such
other instruments as may be reasonably requested by Purchaser to transfer full
legal and beneficial ownership of the Acquired Assets to Purchaser, free and
clear of Encumbrances.
(i) Purchaser shall have received a counterpart of the Assumption
Agreement, in the form attached hereto as EXHIBIT D, duly executed by Seller,
whereby Purchaser will assume, the Assumed Liabilities (the "ASSUMPTION
AGREEMENT").
(j) Purchaser shall have received a counterpart of the Enterprise
License Agreement, in the form attached hereto as EXHIBIT E.
(k) Purchaser shall have received a counterpart of the Registration
Software License Agreement, in the form attached hereto as EXHIBIT F.
(l) Purchaser shall have received a schedule of the accounts
receivable due Seller and aging reports for the EventPlus Customer Accounts as
of the Closing Date.
(m) Purchaser shall have received a estimated schedule of all
deposits included in the Acquired Assets.
(n) Purchaser shall have received all other documents, instruments
and certificates in connection with the transactions contemplated by this
Agreement as Purchaser may reasonably request in form and substance reasonably
satisfactory to Purchaser and its counsel.
6.3 CONDITIONS TO OBLIGATION OF SELLER. The obligations of Seller to sell
the Acquired Assets and assign the Assumed Liabilities at the Closing are
subject to the satisfaction of each of the following conditions, unless
explicitly waived in writing by Seller:
(a) Purchaser shall have performed and satisfied each of its
obligations hereunder required to be performed and satisfied by it at or prior
to the Closing.
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(b) Each of the representations and warranties of Purchaser
contained herein was true and correct as of the date hereof and will be true and
correct at and as of the Closing Date.
(c) Seller shall have received a certificate signed by a duly
authorized officer or representative of Purchaser certifying the satisfaction of
the conditions set forth in SECTIONS 6.3(a) and 6.3(b).
(d) No temporary restraining order, preliminary or permanent
injunction, cease and desist order or other order issued by any court of
competent jurisdiction or any Governmental Authority preventing any transfer
contemplated hereby or the consummation of the Closing, or imposing damages in
respect thereto, shall be in effect, and there shall be no pending or threatened
actions or Proceedings by any Governmental Authority (or determinations by any
Governmental Authority) or by any other Person challenging or in any manner
seeking to restrict or prohibit the sale of the Acquired Assets or the
consummation of any other transactions contemplated hereby.
(e) Seller shall have received a counterpart of the Transition
Services Agreement, duly executed by Purchaser.
(f) Seller shall have received a counterpart of the Agent Agreement,
duly executed by Purchaser.
(g) Seller shall have received a counterpart of the Assignment and
Assumption Agreement, duly executed by Purchaser.
(h) Seller shall have received a counterpart of the Enterprise
License Agreement, duly executed by Purchaser.
(i) Seller shall have received a counterpart of the Software
Registration License Agreement, duly executed by Purchaser.
(j) Purchaser shall have tendered payment of the amounts described
in ARTICLE II required to be tendered to Seller at the Closing in accordance
with ARTICLE II.
(k) Seller shall have received all other documents, instruments and
certificates in connection with the transactions contemplated by this Agreement
as Seller may reasonably request in form and substance reasonably satisfactory
to Seller and its counsel.
6.4 CLOSING DATE AND DAY AFTER PAYMENTS.
(a) At Closing, Purchaser shall pay to Seller by wire transfer the
Closing Payment and the license and maintenance fees on the Enterprise License
Agreement.
(b) On the date following the Closing Date, Seller shall transfer to
Purchaser by wire transfer all deposits included in the Acquired Assets and
deliver to Purchaser a final list thereof. Any required reconciliation of
deposits shall be made by the parties no later than the time of the first
Monthly Earn-out Payment.
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ARTICLE VII
TERMINATION
7.1 TERMINATION OF AGREEMENT. This Agreement may be terminated prior to
the Closing as follows:
(a) by mutual written consent of Seller and Purchaser;
(b) Seller may terminate this Agreement by giving written notice to
Purchaser at any time prior to the Closing if: (i) Purchaser has breached any
covenant, representation or warranty in any material respect contained in this
Agreement and such breach has not been cured within twenty (20) calendar days
following the delivery of notice of such breach to Purchaser (so long as Seller
is not then in material breach of any covenant, representation or warranty
contained in this Agreement); or (ii) if the Closing shall not have occurred on
or before July 1, 2008 (the "EXPIRATION DATE"), by reason of the failure of any
condition precedent under SECTION 6.3 hereof (unless the failure results
primarily from Seller's breach of any representation, warranty or covenant
contained in this Agreement);
(c) Purchaser may terminate this Agreement by giving written notice
to Seller at any time prior to the Closing: (i) if Seller has breached any
covenant, representation or warranty in any material respect contained in this
Agreement and such breach has not been cured within twenty (20) calendar days
following the delivery of notice of such breach to Seller (so long as Purchaser
is not then in material breach of any covenant, representation or warranty
contained in this Agreement); or (ii) if the Closing shall not have occurred on
or before the Expiration Date, by reason of the failure of any condition
precedent under SECTION 6.2 hereof (unless the failure results primarily from
Purchaser's breach of any representation, warranty or covenant contained in this
Agreement); or
(d) by Seller or Purchaser if there shall be in effect a final
nonappealable judgment or order of a Governmental Authority of competent
jurisdiction restraining, enjoining or otherwise prohibiting the consummation of
the transactions contemplated hereby; it being agreed that the parties hereto
shall use commercially reasonable efforts to appeal any adverse determination
which is not nonappealable (and pursue such appeal with reasonable diligence).
7.2 PROCEDURE UPON TERMINATION. In the event of termination and
abandonment by Purchaser or Seller, or both, in accordance with SECTION 7.1,
written notice thereof shall forthwith be given to the other party, and this
Agreement shall terminate, and the Acquisition shall be abandoned, without
further action by Purchaser or Seller.
7.3 EFFECT OF TERMINATION. In the event that this Agreement is validly
terminated in accordance with SECTION 7.2, the parties shall be relieved of
their duties and obligations arising under this Agreement after the date of such
termination and such termination shall be without liability to the parties;
PROVIDED, that no such termination shall relieve any party hereto from liability
for any willful breach of this Agreement; PROVIDED FURTHER, that the obligations
of the parties set forth in SECTION 5.7 (Press Releases and Announcements) and
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ARTICLE XII (Miscellaneous) hereof shall survive any such termination and shall
be enforceable hereunder.
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION
8.1 SURVIVAL. The representations, warranties and covenants of the parties
contained in this Agreement or in any other certificate, report or other writing
delivered pursuant hereto shall survive until February 28, 2010, unless on or
before the termination thereof (or of the period set forth below applicable to
certain representations and warranties), the complaining party notifies the
other party in writing of a claim specifying the factual basis for that claim in
reasonable detail; PROVIDED, HOWEVER, that (i) the representations and
warranties set forth at SECTIONS 3.1, 3.2, 3.4, and 4.1 shall survive and shall
not expire; (ii) the representation and warranty set forth in SECTION 3.6 shall
survive until the ninetieth (90th) day after expiration of the applicable
statute of limitations; and (iii) the covenants set forth in Articles V and IX
that by their terms survive the Closing until the period reflected therein in
each covenant. After a representation, warranty or covenant has terminated and
expired, no indemnification will or may be sought pursuant to this ARTICLE VIII
on the basis of that representation, warranty or covenant by any Person who
would have been entitled pursuant to this ARTICLE VIII to indemnification on the
basis of that representation and warranty prior to its termination and
expiration.
8.2 INDEMNIFICATION BY SELLER. Subject to SECTION 8.6, Seller shall
indemnify and defend Purchaser and its Affiliates (the "PURCHASER INDEMNIFIED
PARTIES") against, and shall hold them harmless from, any Losses incurred or
suffered (as incurred or suffered) by any of the Purchaser Indemnified Parties
relating to or arising out of any of the following: (a) any breach (on or prior
to the Closing Date) of or inaccuracy in any representation or warranty made by
Seller pursuant to this Agreement or any certificate, document, writing or
instrument delivered by Seller pursuant to this Agreement; (b) any breach of or
failure by Seller to perform any covenant or obligation of Seller set out in
this Agreement; (c) any alleged, contingent or absolute debt, claim, obligation
or other Liability of Seller other than the Assumed Liabilities; (d) any and all
Taxes of Seller; (e) any brokerage or finders' fees or commissions or similar
payments based upon any agreement or understanding made, or alleged to have been
made, by any Person with Seller (or any Person acting on its behalf) in
connection with the Acquisition; (f) the Retained Liabilities; or (g) any
violation of the bulk transfers law of any state.
8.3 INDEMNIFICATION BY PURCHASER. Subject to SECTION 8.6, Purchaser shall
indemnify and defend Seller against, and shall hold it harmless from, any Losses
incurred or suffered (as incurred or suffered) by Seller relating to or arising
out of any of the following: (a) any breach of or any inaccuracy in any
representation or warranty made by Purchaser pursuant to this Agreement or any
certificate, document, writing or instrument delivered by Purchaser pursuant to
this Agreement; (b) any breach of or failure by Purchaser to perform any
covenant or obligation of Purchaser set out in this Agreement; (c) the Assumed
Liabilities; or (d) the ownership, management, operation or use by Purchaser of
the Acquired Assets or the conduct of the EventPlus Business by Purchaser after
the Closing Date. The parties agree that in the event of a breach by Purchaser
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of its obligation in SECTION 5.8, regarding operation of the EventPlus Business
that the damages to Seller will be difficult if not impossible to quantify, and
accordingly, the parties agree that in the event of any such breach, Purchaser
shall owe to Seller, as liquidated damages and not as a penalty, solely the
Minimum Payment for each month that Seller is in breach of said SECTION 5.8.
8.4 NOTICE OF CLAIMS; ASSUMPTION OF DEFENSE. The indemnified party shall
give prompt notice to the indemnifying party, in accordance with the terms of
SECTION 12.2, of the assertion of any Proceeding in respect of which indemnity
may be sought hereunder, specifying with reasonable particularity the basis
therefor and giving the indemnifying party such information with respect thereto
as the indemnifying party may reasonably request (but the giving of such notice
shall not be a condition precedent to indemnification hereunder). At its own
expense, the indemnifying party may participate in and, at any time during the
course of any such Proceeding, upon notice to the indemnified party and the
indemnifying party's written agreement that the indemnified party is entitled to
indemnification pursuant to SECTION 8.2 or SECTION 8.3, assume the defense
thereof; PROVIDED, that the indemnifying party's counsel is reasonably
satisfactory to the indemnified party, and the indemnifying party shall
thereafter consult with the indemnified party upon the indemnified party's
request for such consultation from time to time with respect to such Proceeding.
If the indemnifying party assumes such defense, the indemnified party shall have
the right (but not the duty) to participate in the defense thereof and to employ
counsel, at its own expense, separate from the counsel employed by the
indemnifying party. Whether or not the indemnifying party chooses to defend or
prosecute any such Proceeding, the parties hereto shall cooperate in the defense
or prosecution thereof. In the event that the indemnifying party elects not to
assume the defense of any Proceeding, such election shall not relieve the
indemnifying party of its obligations hereunder.
8.5 SETTLEMENT OR COMPROMISE. No party shall settle or compromise any
Proceeding without the prior written consent of the other party, which shall not
be unreasonably withheld, conditioned or delayed. Any settlement or compromise
made or caused to be made by the indemnified party or the indemnifying party, as
the case may be, of any such Proceeding of the kind referred to in SECTION 8.4
shall also be binding upon the indemnifying party or the indemnified party, as
the case may be, in the same manner as if a final judgment or decree had been
entered by a court of competent jurisdiction in the amount of such settlement or
compromise.
8.6 LIMITATIONS ON INDEMNIFICATION. No Person shall be entitled to seek
indemnification for Losses arising out of SECTIONS 8.2(a) or 8.3(a): (a) unless
and until the aggregate amount of Losses arising out of SECTIONS 8.2(a) or
8.3(a), as applicable, exceed in the aggregate $10,000 (after which all such
Losses (including the first $10,000) shall be indemnifiable pursuant to this
ARTICLE VIII); and (b) for amounts in excess of the total of the Closing Payment
and the Monthly Earn-Out Payments; PROVIDED, HOWEVER, that the limitations set
forth in this SECTION 8.6 shall not apply to claims for Losses arising out of
willful breach or fraud of either party.
8.7 RIGHT OF SETOFF. Purchaser shall have the right to set off against the
Monthly Earn-Out Payments payable under SECTION 2.3 hereof (i) any credits or
holdbacks which an EventPlus Customer Account asserts against Purchaser with
respect to Retained Liabilities pertaining to such EventPlus Customer Account
within 180 days following Closing and (ii) any other Retained Liabilities not
17
related to an EventPlus Customer Account which Purchaser may be required to pay
at any time following Closing. The exercise of such right of setoff by Purchaser
in good faith, whether or not ultimately determined to be justified will not
constitute an event of default under this Agreement or otherwise.
ARTICLE IX
NON-COMPETITION AND CONFIDENTIALITY
9.1 DEFINITION. "CONFIDENTIAL INFORMATION" shall mean any and all
information concerning the business affairs of the Purchaser or Seller, and
shall include such information as it relates to any Affiliate of the Purchaser
or Seller. Without limiting the generality of the foregoing, Confidential
Information includes but is not limited to information:
(a) which constitutes proprietary information of the Purchaser or
Seller (including, with respect to Purchaser, the API);
(b) which contains financial statements, financial projections and
budgets, historical and projected sales, capital spending budgets and plans,
business plans, the names and backgrounds of key personnel, customer lists and
customer information, personnel training and techniques and materials, marketing
plans or market expansion proposals and sales techniques and materials of the
Purchaser or Seller, however documented;
(c) product specifications, discoveries, improvements, processes,
marketing and service methods or techniques, formulae, designs, styles,
specifications, data bases, computer programs (whether in source code or object
code), know-how, strategies, current and anticipated customer requirements,
price lists, market studies, and any other information, however documented, that
is a trade secret of Purchaser or Seller under applicable law; and
(d) notes, analyses, compilations, studies, summaries, and other
material prepared by or for the Purchaser or Seller containing or based, in
whole or in part, on any information included in the foregoing.
Notwithstanding anything to the contrary above, the term "Confidential
Information" does not include information that: (i) is or becomes generally
available to the public other than as a result of a disclosure by the receiving
party or its representatives; (ii) was within the receiving party's possession
prior to its being furnished to the receiving party by or on behalf of the
disclosing party pursuant hereto; or (iii) becomes available to the receiving
party on a non-confidential basis from a source other than the disclosing party
or any of its representatives (provided that with respect to clauses (ii) and
(iii) above, the source of such information was not bound by a confidentiality
agreement with, or other contractual, legal or fiduciary obligation of
confidentiality to, the disclosing party or any other party with respect to such
information).
9.2 CONFIDENTIALITY ACKNOWLEDGMENTS AND AGREEMENTS.
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(a) Seller hereby acknowledges, agrees and covenants that until the
date that is three (3) years after the Closing Date (or earlier termination as
the case may be), Seller and its Affiliates will keep confidential, will hold
for the sole benefit of the Purchaser, and will not use except on behalf of the
Purchaser, all Confidential Information of Purchaser (whether obtained pursuant
to this Agreement or otherwise), which Seller acknowledges is, or shall be,
proprietary to the Purchaser; PROVIDED, HOWEVER, that any Confidential
Information that is also considered a trade secret under applicable Law, shall
not be disclosed by Seller as long as such information remains a trade secret
and is not generally known or available to the public other than as a result of
unauthorized or unlawful disclosure directly or indirectly by Seller. For
purposes of this SECTION 9.2(a), information contained in the Acquired Assets
shall, following the Closing, be deemed Confidential Information of Purchaser.
Seller agrees that upon request it shall forthwith return to the Purchaser, or
destroy to the satisfaction of the Purchaser, all Confidential Information of
Purchaser (whether obtained pursuant to this Agreement or otherwise) in whatever
form such information is in the possession of Seller or under Seller's control,
and shall additionally return all documents and other property that is in
Seller's possession or under Seller's control and belonging to the Purchaser.
Notwithstanding the foregoing, the obligations of confidentiality, nondisclosure
and non-use with respect to Confidential Information required by this SECTION
9.2(a) shall not apply to any Confidential Information required to be disclosed
in a judicial or administrative proceeding, or is otherwise required to be
disclosed by Law, in any such case only after giving the non-disclosing party as
much advance notice of the possibility of such disclosure as practical so that
the non-disclosing party may attempt to stop such disclosure or obtain a
protective order concerning such disclosure.
(b) Purchaser hereby acknowledges, agrees and covenants that until
the date that is three (3) years after the Closing Date (or earlier termination
as the case may be), Purchaser and its Affiliates will keep confidential all
Confidential Information of Seller, which Purchaser acknowledges is, or shall
be, proprietary to Seller; PROVIDED, HOWEVER, that any Confidential Information
that is also considered a trade secret under applicable Law, shall not be
disclosed by Purchaser as long as such information remains a trade secret and is
not generally known or available to the public other than as a result of
unauthorized or unlawful disclosure directly or indirectly by Purchaser.
Purchaser agrees that upon termination of this Agreement in accordance with
ARTICLE VII it shall forthwith return to the Seller, or destroy to the
satisfaction of the Seller, all Confidential Information of Seller in whatever
form such information is in the possession of Purchaser or under Purchaser's
control. Notwithstanding the foregoing, the obligations of confidentiality,
nondisclosure and non-use with respect to Confidential Information required by
this SECTION 9.2(b) shall not apply to any Confidential Information required to
be disclosed in a judicial or administrative proceeding, or is otherwise
required to be disclosed by Law, in any such case only after giving the
non-disclosing party as much advance notice of the possibility of such
disclosure as practical so that the non-disclosing party may attempt to stop
such disclosure or obtain a protective order concerning such disclosure.
9.3 LIMITED ACTIVITIES. Should Closing occur, then until the date that is
three (3) years after the Closing Date, Seller and its Affiliates will not,
directly or indirectly, for any reason, for its own benefit, or for the benefit
of or together with any Person:
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(a) solicit, or attempt to solicit , any employee, officer, or
director of Purchaser or its Affiliates to terminate that Person's engagement or
relationship with Purchaser or its Affiliates;
(b) solicit, attempt to solicit any Seller Generated Customer
Accounts for the purpose of having Seller Generated Customer Accounts (i)
purchase EventPlus Business services from any person other than Purchaser (ii)
cease purchasing EventPlus Business services from Purchaser;
(c) accept or provide EventPlus Business services from Seller
Generated Customer Accounts; or
(d) be engaged as an owner in any business constituting a business
within the description of an EventPlus Business anywhere in the United States
(the "RESTRICTED BUSINESS"), provided, however, the foregoing prohibition and
restrictions: (i) shall not apply to the ownership of less than one percent (1%)
of the outstanding capital stock of any such Restricted Business that is
publicly traded; (ii) shall not prohibit or restrict Seller's serving as an
independent sales representative of Purchaser pursuant to the Agent Agreement;
and (iii) shall not restrict in any manner Seller's conducting its Web
Collaboration Business. For clarity and to avoid dispute in the future, it is
acknowledged by the parties that the Seller and the Purchaser are engaged, and
plan to continue to be engaged, in competitive Web conferencing and Web
collaboration businesses and audio conferencing business (specifically
concerning non-event type audio conferencing services and as an agent of a
competitor of Purchaser in a business which is not a Restricted Business), and
that nothing herein shall restrict or limit Seller's ability to engage in all
respects in Seller's Web Collaboration Business which shall include (and shall
not be restricted by this SECTION 9.3) the sale and offer of all types of web
conferencing services and audio conferencing services (other than the Restricted
Business) as well as the offering of Seller's Web conferencing products and
services through third-party resellers of Seller who may also be reselling
services in the Restricted Business offered by companies other than Seller and
its Affiliates. Such third party resellers shall not be considered Affiliates of
Seller merely by virtue of being resellers and unless Seller has an ownership
interest therein, the restrictions herein shall not apply to the activity of
such resellers in offering services of companies other than Seller and its
Affiliates. For further clarity, the foregoing restrictions contained in this
SECTION 9.3(d) shall also not apply to any non-Affiliated, third-party purchaser
("THIRD PARTY BUYER") who acquires (whether by merger, consolidation or
otherwise) a controlling interest in Seller (e.g. such number of outstanding
shares of voting equity securities of Seller) in a bona fide, third-party
transaction, (even if such Third Party Buyer is then or thereafter engaged in
the Restricted Business); provided that Seller itself shall not under any
circumstances be released as a result of such transaction; and provided further
that Seller shall not under any circumstances reveal to the Third Party Buyer
the Confidential Information of Purchaser or the Confidential Information of
Seller specifically related to the EventPlus Business or the EventPlus Customer
Accounts.
9.4 PURCHASER NON-SOLICIT. Should Closing occur, then until the date that
is three (3) years after the Closing Date, Purchaser will not, directly or
indirectly, for any reason, for its own benefit, or for the benefit of or
together with any Person, solicit, or attempt to solicit, any employee, officer
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or director of Seller, or its Affiliates to terminate that Person's engagement
or relationship with Seller or its Affiliates.
9.5 SEVERABILITY; REFORMATION. The covenants in this ARTICLE IX are
severable and separate, and the unenforceability of any specific covenant in
this ARTICLE IX is not intended by either party to, and shall not, affect the
provisions of any other covenant in this ARTICLE IX. If any court of competent
jurisdiction shall determine that the scope, time, or territorial restrictions
set forth in SECTION 9.3 are unreasonable as applied to either party, the
parties acknowledge their mutual intention and agreement that those restrictions
be enforced to the fullest extent the court deems reasonable, and thereby shall
be reformed to that extent as applied to such party and its Affiliates.
9.6 INDEPENDENT COVENANT. All of the covenants in this ARTICLE IX are
intended by each party hereto to be, and shall be construed as, an agreement
independent of any other provision in this Agreement, and the existence of any
claim or cause of action of a party against the other party or its Affiliates,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by either party or its Affiliate of any covenant in
this ARTICLE IX. It is specifically agreed that the period specified in SECTION
9.3 shall be computed by excluding from that computation any time during which
Seller is in violation of any provision of SECTION 9.3.
9.7 MATERIALITY. Purchaser and Seller hereby agree that this ARTICLE IX is
a material and substantial part of this Agreement, and absent both parties
entering into the restrictions of this ARTICLE IX, neither party would have
entered into this Agreement and consummated the Acquisition.
ARTICLE X
CERTAIN DEFINITIONS
10.1 DEFINITIONS. The following terms, as used in this Agreement, have the
following meanings:
"ACCESS NUMBERS" shall have the meaning set forth in SECTION 1.1(f).
"ACQUIRED ASSETS" shall have the meaning set forth in SECTION 1.1.
"ACQUISITION" shall have the meaning set forth in the Preamble.
"AFFILIATES" of any Person shall mean any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
"AGENT AGREEMENT" shall have the meaning set forth in SECTION 6.2(g).
"AGREEMENT" shall have the meaning set forth in the Preamble.
"API" shall have the meaning set forth in SECTION 5.3(d).
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"ARBITRATION NOTICE" shall have the meaning set forth in SECTION 11.1.
"ARBITRATION RULES" shall have the meaning set forth in SECTION 11.1.
"ASSUMED LIABILITIES" shall have the meaning set forth in SECTION 1.3.
"ASSUMPTION AGREEMENT" shall have the meaning set forth in SECTION 6.2(i).
"XXXX OF SALE" shall have the meaning set forth in SECTION 6.2(h).
"BUSINESS DAY" means a day other than a Saturday, Sunday or other day on
which commercial banks in Chicago, Illinois are authorized or required by law to
close.
"CLOSING" shall have the meaning set forth in SECTION 6.1.
"CLOSING DATE" shall have the meaning set forth in SECTION 6.1.
"CLOSING PAYMENT" shall have the meaning set forth in SECTION 2.1.
"CONFIDENTIAL INFORMATION" shall have the meaning set forth in SECTION
9.1.
"CONSENT" means any approval, consent, ratification, waiver or other
authorization of any Person.
"CONSIDERATION" shall have the meaning set forth in SECTION 2.1.
"DISCLOSURE SCHEDULE" shall have the meaning set forth in the Preamble to
ARTICLE III.
"DISPUTE" shall have the meaning set forth in SECTION 2.3(b).
"ENCUMBRANCE" shall mean any encumbrance or restriction of any kind,
including any pledge, security interest, lien, charge, mortgage, hypothecation,
deed of trust, easement, lease, finance lease, sublease, claim, right of way,
covenant, option, condition, or right of first refusal, however imposed.
"ENTERPRISE LICENSE AGREEMENT" shall have the meaning set forth in SECTION
5.8.
"EXCLUDED ASSETS" shall have the meaning set forth in SECTION 1.2.
"EXPIRATION DATE" shall have the meaning set forth in SECTION 7.1(b).
"EVENTPLUS CUSTOMER ACCOUNTS" shall have the meaning set forth in SECTION
1.1(a)
"EVENTPLUS BUSINESS" means the business of a conferencing service provider
by the provisioning of audio conferencing accounts using telephony lines to
access conferencing bridges (normally using public switched telephone networks)
that may or may not utilize the EventPlus Software and is specifically
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associated with high touch and regularly recurring dedicated operator events and
services; but excluding specifically all services and assets related to Seller's
Web Collaboration Business and all services and assets related to any unattended
toll and toll free reservation-less audio conferencing.
"EVENTPLUS SOFTWARE" shall have the meaning set forth in SECTION 1.1(e).
"GAAP" shall mean United States generally accepted accounting principles,
consistently applied.
"GOVERNMENTAL AUTHORITY" shall mean the government of the United States,
any state or political subdivision thereof, or any foreign government.
"LAW" shall mean any federal, state, local or other law, statute,
ordinance, regulation, rule, policy, guideline, ordinance, bylaw (zoning or
otherwise), order, judgment, consent decree, permit, settlement agreement,
judicial or administrative decision, injunction or requirement of any kind
applicable to or binding on Purchaser, Seller, the EventPlus Business, or any of
the Acquired Assets.
"LIABILITY" means any liability or obligation of any kind, character or
description, whether known or unknown, absolute or contingent, accrued or
unaccrued, liquidated or unliquidated, secured or unsecured, joint or several,
due or to become due, vested or unvested, executory, determined, determinable or
otherwise and whether or not the same is required to be accrued or reflected on
financial statements prepared in accordance with GAAP or is disclosed or
required to be disclosed on any Schedule to this Agreement.
"LOSSES" shall mean all liabilities, equitable remedies, losses, costs
(including costs of settlement), fines, damages of any nature, judgments,
penalties, diminution of value, or expenses (including reasonable attorneys'
fees and costs of litigation).
"MEASUREMENT PERIOD" shall have the meaning set forth in SECTION 2.3(a).
"MINIMUM PAYMENTS" shall have the meaning set forth in SECTION 2.3(a).
"MONTHLY EARN-OUT PAYMENTS" shall have the meaning set forth in SECTION
2.3(a).
"OPEN EVENT CONTRACTS" shall have the meaning set forth in SECTION 1.1(b).
"PERSON" shall mean any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, association, trust, Governmental Authority or other entity or
organization.
"PROCEEDING" shall have the meaning set forth in SECTION 3.8.
"PURCHASER" shall have the meaning set forth in the Preamble.
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"PURCHASER INDEMNIFIED PARTIES" shall have the meaning set forth in
SECTION 8.2.
"PURCHASER'S KNOWLEDGE" shall mean the actual knowledge of Xxxx Xxxxx and
Xxxxxxx Xxxxx, and such knowledge as such individuals could reasonably expect to
discover or otherwise become aware of in the ordinary course of their duties for
the Purchaser.
"REFERRED CUSTOMER ACCOUNTS" shall have the meaning set forth in SECTION
2.3(a).
"REGISTRATION SOFTWARE LICENSE AGREEMENT" shall have the meaning set forth
in SECTION 1.1(e).
"RESELLER AGREEMENT" means an agreement, whether written or oral through
which Seller has authorized a third party to resell its audio conferencing
services, whether as an authorized agent, value-added reseller, or wholesale
distributor listed on SCHEDULE 3.7(c); PROVIDED, that to the extent a Reseller
Agreement authorizes a third party to sell both audio and web conferencing
services, then only the rights associated with the audio conferencing services
shall be deemed to constitute a "Reseller Agreement" for all purposes hereunder,
including for purposes of SECTIONS 1.1 and 1.3.
"RESTRICTED BUSINESS" shall have the meaning set forth in SECTION 9.3(d).
"RETAINED LIABILITIES" shall have the meaning set forth in SECTION 1.4.
"REVENUE STATEMENTS" shall have the meaning set forth in SECTION 3.5(a).
"SELLER" shall have the meaning set forth in the Preamble.
"SELLER'S BOARD OF DIRECTORS" shall have the meaning set forth in SECTION
3.2.
"SELLER GENERATED CUSTOMER ACCOUNTS" shall have the meaning set forth in
SECTION 2.3(a)
"SELLER'S KNOWLEDGE" shall mean the actual knowledge of the officers of
Seller, and such knowledge as any of them could reasonably expect to discover or
otherwise become aware of in the ordinary course of such person's duties for the
Seller.
"TAX RETURN" shall mean any report, return or other information required
to be supplied to a Governmental Authority or any other Person in connection
with Taxes.
"TAXES" shall mean all taxes, including, income, gross receipts, net
proceeds, ad valorem, turnover, real and personal property (tangible and
intangible), sales, use, franchise, excise, value added, stamp, leasing, lease,
user, transfer, fuel, excess profits, occupational and interest equalization,
windfall profits, payroll, severance and employees' income withholding and
Social Security taxes imposed by the United States or by any state,
municipality, subdivision or instrumentality of the United States or by any
other tax authority, including all applicable penalties and interest.
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"THIRD PARTY BUYER" shall have the meaning set forth in SECTION 9.3(d).
"TRANSITION DATE" shall mean the date the delivery of services for the
customer accounts is transitioned to Purchaser's infrastructure but no later
than July 31, 2008.
"TRANSITION SERVICES AGREEMENT" shall have the meaning set forth in
SECTION 6.2(f).
"WEB COLLABORATION BUSINESS" shall mean all aspects of Seller's business
other than Seller's EventPlus Business, specifically but not limited to any
on-line meetings, conferences, training and customer support using Seller's Web
conferencing and collaboration software. The Web Collaboration Business shall
specifically include and make reference to Seller's provision, sale, offering
for sale, and use by customers of Web conferencing features, audio conferencing
features and event-like registration features and functions to the extent used
to support, and as an integrated component and part of, Seller's Web
conferencing. The Web Collaboration Business shall specifically include and make
reference to Seller's provision, sale, offering for sale, and use by customers
of and the use of event registration and management features to the extent
necessary to support, and as an integrated component and part of, Seller's Web
conferencing and Web collaboration software.
ARTICLE XI
DISPUTE RESOLUTION
11.1 AGREEMENT TO ARBITRATE. Upon notice by either party to the other (the
"ARBITRATION NOTICE"), any dispute, claim or controversy arising out of or
relating to this Agreement or the breach, termination, enforcement,
interpretation or validity thereof, including the determination of the scope or
applicability of this agreement to arbitrate, shall be determined by binding
arbitration in the jurisdiction of the defendant/respondent in such an
arbitration action, and before one (1) arbitrator. Arbitration shall be
administered by American Arbitration Association ("AAA") pursuant to its
Comprehensive Arbitration Rules and Procedures (the "ARBITRATION RULES").
Judgment on the award may be entered in any court having jurisdiction. This
clause shall not preclude parties from seeking provisional remedies in aid of
arbitration from a court of appropriate jurisdiction.
11.2 SELECTION OF ARBITRATOR. The parties shall, by joint agreement,
select a single arbitrator, but if they do not agree on the selection of an
arbitrator within twenty (20) days after the date notice of the arbitration was
received by the non-sending party, then selection shall be made in accordance
with the Arbitration Rules.
11.3 INTERIM RELIEF. Either party may, without inconsistency with this
Agreement, seek from a court any injunctive relief that may be necessary to
protect the rights or property of that party pending the selection of the
arbitrator or pending the arbitrator's determination of the merits of the
controversy.
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11.4 ENFORCEMENT OF ARBITRATOR'S DECISION; FEES. Judgment on the award of
the arbitrator may be entered in any court having jurisdiction over the party
against which enforcement of the award is being sought. The costs of the
arbitration, including but not limited to all reasonable attorneys' fees, shall
be borne by the substantially non-prevailing party in the arbitration, as shall
be determined by the arbitrator.
ARTICLE XII
MISCELLANEOUS
12.1 AMENDMENT; WAIVERS. This Agreement may not be amended, modified or
supplemented unless such amendment is in writing and duly executed by the
parties. No approval, consent or waiver will be enforceable unless signed by the
granting party. Failure to insist on strict performance or to exercise a right
when entitled does not prevent a party from doing so later for that breach or a
future one.
12.2 NOTICES. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given: (a) if
personally delivered, when so delivered; (b) if mailed, five (5) Business Days
after having been sent by first class, registered or certified U.S. mail, return
receipt requested, postage prepaid and addressed to the intended recipient as
set forth below; (c) if given by telecopier, once such notice or other
communication is transmitted to the telecopier number specified below; PROVIDED,
that: (i) the sending telecopier generates a transmission report showing
successful completion of such transaction; and (ii) such notice or other
communication is promptly thereafter mailed in accordance with the provisions of
clause (b) above, and PROVIDED, FURTHER, that if such telecopy is sent after
5:00 p.m. local time at the location of the receiving telecopier, or is sent on
a day other than a Business Day, such notice or communication shall be deemed
given as of 9:00 a.m. local time at such location on the next succeeding
Business Day; or (d) if sent through a nationally-recognized overnight delivery
service that guarantees next day delivery, the Business Day following its
delivery to such service in time for next day delivery.
If to Seller, to:
iLinc Communications, Inc.
Attention: Xx. Xxxxx X. Xxxxxx, Xx.
0000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Copy to:
Xxxxxxx Xxxxxx L.L.P.
Attention: Xxxxx Xxxx, Esq.
0000 XxXxxxxx
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to Purchaser, to:
Conference Plus, Inc.
Attention: Xxxxxxx Xxxxx, President
0000 X. Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Copy to:
XxXxxxxxx Will & Xxxxx LLP
Attention: Xxxx Xxxxx
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Telephone (000) 000-0000
Facsimile: (000) 000-0000
Any party may change the address to which notices, requests, demands, claims and
other communications hereunder are to be delivered by giving the other parties
notice in the manner herein set forth.
12.3 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
12.4 HEADINGS. The headings preceding the text of Articles and Sections of
this Agreement are for reference only and shall not be deemed part of this
Agreement.
12.5 APPLICABLE LAW; WAIVER OF JURY TRIAL. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Illinois. THE PARTIES EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION OR
CAUSE OF ACTION BASED ON, OR ARISING OUT OF, UNDER OR IN CONJUNCTION IN ANY
MANNER WITH TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
12.6 ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns; PROVIDED, HOWEVER, that no assignment
shall be made hereof without the prior written consent of the non-assigning
party, except that Purchaser may assign its rights hereunder to any of its
Affiliates without any other party's prior consent; PROVIDED, that the assignee
assumes all of Purchaser's obligations hereunder.
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12.7 EXPENSES. All fees and expenses incurred in connection with this
Agreement and the transactions contemplated by this Agreement, including all
legal, accounting, financial advisory, consulting and all other fees and
expenses of third parties, shall be paid by the party incurring such expenses,
regardless of whether the Closing occurs. Other than amounts disputed in good
faith, any amount not received when due (i.e., past due) by more than thirty
(30) days, including but not limited to the Monthly Earn-Out Payments, will bear
interest at the lower of 1.5% per month or the highest rate permitted by law,
until fully paid. Other than with respect to amounts disputed in good faith,
each party is entitled to recover any sums expended in connection with the
collection of sums not paid when due, including reasonable attorneys' fees.
12.8 NO THIRD PARTY BENEFICIARIES. This Agreement is solely for the
benefit of the parties and their respective Affiliates and no provision of this
Agreement shall be deemed to confer upon third parties any remedy, claim,
liability, reimbursement, claim of action or other right in excess of those
existing without reference to this Agreement.
12.9 SPECIFIC PERFORMANCE. The parties hereto recognize and affirm that in
the event of breach by any party of any of the provisions of ARTICLE IX of this
Agreement, money damages would be inadequate and the non-breaching would have no
adequate remedy at law. Accordingly, each party agrees that the non-breaching
party shall have the right, in addition to any other rights and remedies
existing in its favor, to enforce its rights and its obligations under ARTICLE
IX of this Agreement not only by an action or actions for damages, but also by
an action or actions for specific performance, injunction and other equitable
relief, or any of them, in order to enforce or prevent any violations (whether
anticipatory, continuing or future) of the provisions of this Agreement without
the necessity of proving actual damages or posting bond.
12.10 ENTIRE UNDERSTANDING. This Agreement sets forth the entire agreement
and understanding of the parties in respect to the transactions contemplated
hereby and supersedes all prior agreements, arrangements and understandings
relating to the subject matter hereof and is not intended to confer upon any
other person any rights or remedies hereunder. There have been no
representations or statements, oral or written, that have been relied on by any
party hereto, except those expressly set forth in this Agreement.
12.11 CONSTRUCTION. The parties acknowledge and agree that each of them
has participated in the drafting of this Agreement and that this Agreement has
been reviewed by the respective legal counsel for such parties and that the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be applied to the interpretation
of this Agreement. No inference in favor of, or against, any party shall be
drawn from the fact that one party has drafted any portion of this Agreement.
12.12 SCHEDULES. The parties hereto are exchanging copies of all Schedules
referred to in this Agreement, which Schedules are hereby made a part hereof and
incorporated herein by reference. All such Schedules read as of the Closing Date
or, as to any of the Schedules bearing a particular date, as of any other date
specified therein.
12.13 SEVERABILITY. Whenever possible each provision and term of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision or term of this Agreement shall be held to
be prohibited by or invalid under such applicable law, or determined to be void
28
or unenforceable for any reason, then such provision or term shall be
ineffective only to the extent of such prohibition, invalidity or
unenforceability, without invalidating or affecting in any manner whatsoever the
remainder of such provision or term or the remaining provisions or terms of this
Agreement, and the prohibited, invalid or unenforceable provision shall be
modified to the minimum extent necessary to make it permissible, valid and
enforceable, unless the result of any such invalidity or unenforceability shall
be to cause a material failure of consideration to the party seeking to sustain
the validity or enforceability of the subject provision.
12.14 ELECTRONIC SIGNATURES. The parties agree that signatures transmitted
and received via electronic transmission shall be treated for all purposes of
this Agreement as original signatures and shall be deemed valid, binding and
enforceable by and against all parties
12.15 PRINCIPLES OF CONSTRUCTION. In this Agreement and all other attached
exhibits, annexes and schedules to this Agreement, unless otherwise expressly
indicated or required by the context:
(a) reference to and the definition of any document shall be deemed
a reference to such document as it may be amended, supplemented, revised, or
modified, in writing, from time to time but disregarding any amendment,
supplement, replacement or novation made in breach of this Agreement;
(b) references in this Agreement to any document or agreement shall
be deemed to include references to such document or agreement as amended,
varied, supplemented or replaced from time to time in accordance with such
document's or agreement's terms;
(c) defined terms in the singular shall include the plural and vice
versa, and the masculine, feminine or neuter gender shall include all genders;
(d) the words "including" or "includes" shall be deemed to mean
"including without limitation" and "including but not limited to" (or "includes
without limitation" and "includes but is not limited to") regardless of whether
the words "without limitation" or "but not limited to" actually follow the term;
and
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(e) the words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement or exhibits, annexes and schedules
shall refer to this Agreement and its exhibits, annexes and schedules as a whole
and not to any particular provision hereof or thereof, as the case may be.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties have executed and caused this
Asset Purchase Agreement to be executed and delivered on the date first above
written.
PURCHASER:
CONFERENCE PLUS, INC.
By: ______________________________
Name: _________________________
Title: ________________________
SELLER:
iLINC COMMUNICATIONS, INC.
By: ______________________________
Name: _________________________
Title: ________________________
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LIST OF EXHIBITS
Exhibit A Form of Transition Services Agreement
Exhibit B Form of Agent Agreement
Exhibit C Form of Xxxx of Sale
Exhibit D Form of Assumption Agreement
Exhibit E Form of Enterprise License Agreement
Exhibit F Form of Registration Software License
Agreement
LIST OF SCHEDULES
Schedule 1.1(a) EventPlus Customer Accounts
Schedule 1.1(f) Telecommunications Numbers
Schedule 2.5 Allocation of Consideration
Schedule 3.1 Foreign Qualification
Schedule 3.3 No Adverse Change
Schedule 3.5(a) Revenue Statements
Schedule 3.7(a) (i) Open Event Contracts
(ii) Other
contracts relating
to the EventPlus
Customer Accounts
(iii) the amount
owed by each
EventPlus Customer
Accounts to Seller
as of the Closing
Date, with aging
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Schedule 3.7(b) Employment Agreements
Schedule 3.7(c) Reseller Agreements
Schedule 3.8 Litigation
Schedule 3.9 Customer Information
33
