ASSET ACQUISITION AGREEMENT
THIS ASSET ACQUISITION AGREEMENT (the "Agreement") made as of
the 28th day of December, 2004 by and among Orbit E-Commerce,
Inc., a Nevada corporation (the "Buyer"), and XxxxXxx.XX Canada
Inc., an Ontario corporation (the "Seller") (sometimes referred
to hereinafter, individually, as "Party" and, collectively, as
"Parties").
W I T N E S S E T H:
WHEREAS, the Buyer desires to purchase certain of the assets
of Seller, and Seller desires to sell certain of its assets to
Buyer;
NOW, THEREFORE, in consideration of the mutual covenants,
agreements, representations and warranties herein contained, the
parties hereto agree as follows:
1. Purchase and Sale of Assets. Subject to the terms and
conditions set forth in this Agreement, at the Closing (as
hereinafter defined), Seller, in reliance upon the
representations, warranties and covenants of Buyer herein, shall
sell, and Buyer in reliance upon the representations, warranties
and covenants of Seller herein, shall purchase from Seller, free
and clear of all liens, claims, security interests and
encumbrances whatsoever (except as expressly and specifically
otherwise set forth herein), the assets of Seller as set forth in
Schedule 1 (the "Assets"), subject only to the exceptions,
security interests, and encumbrances specified therein.
1.1 Buyer shall not assume and will not be responsible
for any liabilities or obligations of Seller, whether arising out
of or in connection with the Assets, the Seller's business
operations or otherwise.
1.2 Seller will be responsible for effectuating the
transfer and assignment to Buyer, and for payment of any and all
applicable fees and taxes in connection with the transfer or
assignment to Buyer of the Assets and any and all patents or
copyrights associated with the Assets. The Parties shall
cooperate in good faith and exercise their reasonable best
efforts to obtain all necessary consents from any governmental or
regulatory authorities or other third parties to the transfer and
assignment of the Assets and said patents and copyrights.
1.3 The closing of the transaction contemplated hereby
(the "Closing") shall take place at the offices of Danzig Xxxx
Xxxxxx Xxxxx & Xxx, LLP, 00X Xxxxxxxx Xxxx, Xxxxxxx Xxxx, Xxx
Xxxxxx 00000, or such other place as shall be mutually agreed
upon on or about January 15, 2005, or on such other date as shall
be mutually agreed upon by the parties hereto (the actual time
and date of closing being hereinafter referred to as the "Closing
Date").
2. Purchase Price.
2.1 Amount of Purchase Price. The Parties agree that
the purchase price for the Assets (the "Purchase Price") shall be
15,000,000 authorized but as yet unissued shares (the "Shares")
of common stock, $.005 par value per share, of the Buyer (the
"Common Stock") which shall be issued to the Seller at Closing,
free and clear of any liens, claims, encumbrances or charges
whatsoever.
2.2 Allocation. The Purchase Price shall be allocated
as the parties shall agree at Closing. Seller and Buyer agree to
file, if applicable, all income tax returns or reports, for their
respective taxable years in which the Closing occurs and to
reflect the allocation of the Purchase Price as provided for
herein on any such return or report and agree not to take any
position inconsistent therewith before any governmental agency
charged with the collection of any tax or income tax or in any
judicial proceeding.
3. Liabilities Not Assumed by the Buyer. The Seller shall
be responsible for all liabilities and obligations with respect
to the Seller, the Assets or the business operations of the
Seller, fixed, absolute, contingent, disputed or undisputed,
secured or unsecured, known or unknown, now in existence or
hereafter arising (collectively the "Liabilities"), and the Buyer
shall not assume, or in any way be liable or responsible for, and
the Seller shall and do indemnify, defend and hold harmless the
Buyer against the Liabilities. Without limiting the generality
of the foregoing, the Buyer shall not assume the following with
respect to the business of the Seller and the Assets (all of
which are deemed to be included within the "Liabilities"):
3.1 any liability or obligation of the Seller arising
out of or in connection with the negotiation and preparation of
this Agreement and the consummation and performance of the
transactions contemplated hereby, whether or not such
transactions are consummated including, but not limited to, any
tax liability so arising;
3.2 any liability or obligation under contracts or
other agreements, whether written or oral, to which the Seller is
a party or by or to which it or its assets, properties or rights
are bound or subject including, without limitation, any licenses;
3.3 any liability or obligation of the Seller, or any
consolidated group of which the Seller is a member, for any
foreign, federal, state, county or local income, franchise,
employee withholding, FICA, employment, payroll related, excise,
sales, use, gross receipts, property or any other tax of any sort
relating to the Assets;
3.4 any liability or obligation of the
Seller for money borrowed;
3.5 any liability or obligation for personal
injury, property damage or otherwise because of any matter or
thing whatsoever including, but not limited to, alleged
negligence or breach of warranty or under any other theory of
product liability;
3.6 any liability or obligation to pay damages by
reason of any breach of any obligations or any other acts or
omissions of the Seller;
3.7 any liability or obligation of the Seller
relating to claims, lawsuits, arbitrations or other proceedings;
3.8 any liability or obligation of the Seller relating
to any collective bargaining agreements, any trust agreements
(including but not limited to health and welfare trusts, pension
trusts and legal services trusts) or any employee benefit
programs (including but not limited to wages, vacation
entitlement, severance, holiday pay entitlement, payroll taxes,
unemployment compensation contributions, insurance premiums and
workers compensation, employee agreements, pension or profit
sharing fund withdrawal liability).
4. Representations and Warranties of Seller. Seller
represents and warrants as follows:
4.1 Corporate Existence and Qualifications of Seller.
Seller is a corporation duly organized, validly existing and in
good standing under the laws of the Province of Ontario and is
authorized, qualified and in good standing thereunder, and has
the power, corporate and otherwise, to own or lease and operate
its properties and assets and conduct its business in all
jurisdictions wherein such properties and assets are located and
such businesses conducted, or, to the extent that Seller is not
so authorized or qualified in any jurisdiction, the failure to
have such authorization or qualification does not or will not
have a material effect on the assets, properties or business of
Seller.
4.2 Corporate Authority and Absence of Conflict. The
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby by Seller have been duly
authorized, and no additional corporate action is required for
the approval of this Agreement. This Agreement is valid and
binding upon Seller, and enforceable in accordance with its terms
subject to bankruptcy, insolvency or other laws altering
enforcement of creditors' rights generally and equitable
limitations on the enforcement of specific remedies. The
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby will not conflict with or
result in a breach of any relevant laws, the terms, conditions or
provisions of the Certificate of Incorporation or the By-Laws or
other similar instrument affecting Seller, or any material
instrument, agreement or document to which Seller is a party or
by which Seller or any of the Assets may be bound or subject to,
or constitute (with or without the giving of notice or the
passage of time, or both) a default under any such instrument,
agreement or document or accelerate the maturity of or otherwise
modify any obligation of Seller. There are no consents required,
no rights of first offer, rights of first refusal or other
similar obligations relating to the transactions contemplated
hereby.
4.3 Title to Assets Free and Clear. Seller has good
and valid title to all of the Assets, in each case free and clear
of all liabilities, obligations, liens and encumbrances. Seller
has the full power and right to sell, assign and deliver the
Assets in accordance with the terms of this Agreement.
4.4 Litigation. There is no action, order, writ,
injunction, judgment or decree, or any claim, suit, litigation,
labor dispute, arbitrational action, inquiry, proceeding or
investigation by or before any court or governmental or other
regulatory or administrative agency or commission pending or, to
the best knowledge of Seller, threatened or anticipated against
or involving or relating to, against or affecting the business of
the Seller, the Assets, or which questions or challenges the
validity of this Agreement or any action taken or to be taken by
the Seller pursuant to this Agreement or in connection with the
transactions contemplated hereby; nor is there and the Seller
does not know of any valid basis or received any notice for any
such action, proceeding or investigation.
4.5 No Other Commitments. Seller has no commitment or
legal obligation, absolute or contingent, to any other person or
firm other than Buyer to sell, assign, transfer or effect a sale
of the Assets, or to enter into any agreement or cause the
entering into of an agreement with respect thereto.
4.6 Contracts. Seller has previously provided to
Buyer a true, correct and complete copy of all contracts,
licenses, agreements, arrangements and/or commitments for which
Seller is bound pertaining to the Assets (the "Contracts"). Each
of the Contracts is valid and enforceable in accordance with its
terms, is in full force and effect, and neither Seller nor, to
Seller's knowledge after due inquiry, any other party is in
default of any of its obligations under the Contracts and no
event has occurred which, with the giving of notice, lapse of
time or both, could constitute such a default by Seller or, to
Seller's knowledge after due inquiry, any other party under the
Contracts; Seller has not assigned any of its rights under the
Contracts; no representation or covenant has been made by Seller
to the other parties to the Contracts except as incorporated in
the written Contracts; all representations made by Seller in the
Contracts or any documents relating thereto were true and correct
when made; no consents are required to be obtained or given by
Seller under the terms of the Contracts in connection with this
transaction; and neither Seller's interest in the Contracts are
subject to any liens, security interests or adverse claims.
4.7 No Other Contracts. Except for the Contracts
referred to in Section 4.6, there are no other contracts,
licenses, agreements, arrangements and/or commitments of any kind
which are material to the Assets or the operation thereof.
4.8 Absence of Defaults. Each party to the Contracts
is performing its obligations thereunder. To the best of
Seller's knowledge, Seller is not in default under any of the
Contracts and Seller has not received or sent any written notice
under any of the Contracts that any party is in default of the
terms of any of such Contracts.
4.9 No Default or Violation. Seller is not in default
in any material respect under any agreement, lease or other
document to which it is a party, or in violation of any law,
rule, order, writ, injunction or decree of any court or federal,
state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality related to the business
of the Seller or the Assets.
4.10 Tax Matters. Seller has filed all federal, state,
local, foreign and other tax returns and reports required to be
filed in connection with the Assets or its business. Seller has
paid or shall pay all taxes due in connection with the operation
of the Assets and its business and Seller has collected and
remitted as appropriate all applicable taxes arising form the
operation of the Assets and its business.
4.11 Other Agreements. Seller is not a party to nor
bound by any agreement which impairs the value or the effective
usefulness of the Assets.
4.12 Patents and Copyrights. All patents or copyrights
included in the Assets are validly issued and in good standing.
The Seller is in compliance with all applicable laws,
regulations, and administrative orders applicable to the Seller
or the patents or copyrights, and Seller is not aware of any
reason why the patents or copyrights would not be valid, might be
revoked, or might not be assigned to Buyer without adverse
restrictions or limitations. There is no pending or threatened
action by any other governmental agency or third party to
suspend, revoke, terminate or challenge any of the patents or
copyrights included in the Assets or otherwise investigate the
Seller.
4.13 Purchase for Investment. The Seller is acquiring
the Shares for investment for the Seller's own account and not as
a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and the Seller has no present
intention of selling, granting any participation in, or otherwise
distributing the same. The Seller further represents that he
does not have any contract, undertaking, agreement or arrangement
with any person to sell, transfer or grant participation to such
person or to any third person, with respect to any of the Shares.
4.14 Shares Unregistered. The Seller
understands that the Shares are not registered under the
Securities Act of 1933, as amended (the "Act") on the ground that
the sale and the issuance of securities hereunder is exempt from
registration under the Act pursuant to Section 4(2) thereof, and
that the Company's reliance on such exemption is predicated on
such Seller's representations set forth herein. The Seller is an
"accredited investor" as that term is defined in Rule 501(a) of
Regulation D under the Act.
4.15 Investment Experience. The Seller acknowledges
that it can bear the economic risk of its investment, and has
such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of the
investment in the Shares.
4.16 Review of Information. The Seller has carefully
reviewed such information as the Seller deemed necessary to
evaluate an investment in the Shares. To the full satisfaction
of the Seller, it has been furnished all materials that it has
requested relating to the Buyer and the issuance of the Shares
hereunder, and the Seller has been afforded the opportunity to
ask questions of representatives of the Buyer to obtain any
information necessary to verify the accuracy of any
representations or information made or given to the Seller.
Notwithstanding the foregoing, nothing herein shall derogate from
or otherwise modify the representations and warranties of the
Company set forth in this Agreement, on which the Seller has
relied.
4.17 Restricted Securities. The Seller understands
that the Shares may not be sold, transferred, or otherwise
disposed of without registration under the Act or an exemption
there from, and that in the absence of an effective registration
statement covering the Shares or any available exemption from
registration under the Act, the Shares must be held indefinitely.
The Seller is aware that the Shares may not be sold pursuant to
Rule 144 promulgated under the Act unless all of the conditions
of that Rule are met. Among the conditions for use of Rule 144
may be the availability of current information to the public
about the Buyer.
4.18 No Omissions. None of the representations or
warranties of Seller contained herein, none of the information
contained in the schedules referred to herein, and none of the
other information or documents furnished to Buyer or its
representatives by Seller in connection with this Agreement is
false or misleading in any material respect or omits to state a
fact herein or therein necessary to make the statements herein or
therein not misleading in any material respect. To the best
knowledge of Seller, there is no fact which adversely affects, or
in the future is likely to adversely affect, the Seller's
business or the Assets in any material respect which has not been
disclosed in writing to Buyer.
5. Representations and Warranties of the Buyer. The Buyer
represents and warrants as follows:
5.1 Corporate Existence and Qualifications of Buyer.
Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada and is
authorized, qualified and in good standing thereunder, and has
the power, corporate and otherwise, to own or lease and operate
its properties and assets and conduct its business in all
jurisdictions wherein such properties and assets are located and
such businesses conducted, or, to the extent that Buyer is not so
authorized or qualified in any jurisdiction, the failure to have
such authorization or qualification does not or will not have a
material effect on the assets, properties or business of Buyer.
5.2 Corporate Authority and Absence of Conflict. The
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby by Buyer have been duly
authorized, and no additional corporate action is required for
the approval of this Agreement. This Agreement is valid and
binding upon Buyer, and enforceable in accordance with its terms
subject to bankruptcy, insolvency or other laws altering
enforcement of creditors' rights generally and equitable
limitations on the enforcement of specific remedies. The
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby will not conflict with or
result in a breach of any relevant laws, the terms, conditions or
provisions of the Certificate of Incorporation or the By-Laws or
other similar instrument affecting Buyer, or any material
instrument, agreement or document to which Buyer is a party or by
which Buyer may be bound or subject to, or constitute (with or
without the giving of notice or the passage of time, or both) a
default under any such instrument, agreement or document or
accelerate the maturity of or otherwise modify any obligation of
Buyer. There are no consents required, no rights of first offer,
rights of first refusal or other similar obligations relating to
the transactions contemplated hereby.
5.3 Capital Structure. The authorized capital stock
of Buyer consists of (i) 98,000,000 shares of Common Stock and
2,000,000 shares of Preferred Stock, $.005 par value per share
(the "Preferred Stock"). At Closing, there will be approximately
36,561,324 shares of Common Stock issued and outstanding after
giving effect to the Shares to be issued hereunder. There are no
shares of Preferred Stock issued and outstanding. As of the date
hereof, no authorized but unissued and no treasury shares of
capital stock of the Buyer are subject to any option, warrant,
right of conversion or purchase or any similar right, except for
currently outstanding shares of exchangeable shares of Orbit
Canada, Inc. which are exchangeable on a one-for-one basis into
shares of Common Stock of the Buyer. The Shares to be issued to
the Seller hereunder have been duly authorized and, when issued
and delivered as provided by this Agreement, will be validly
issued and fully paid and non-assessable, and the Shares are not
subject to any preemptive or similar rights.
5.4 No Omissions. None of the representations or
warranties of Buyer contained herein, none of the information
contained in the schedules referred to herein, and none of the
other information or documents furnished to Seller or its
representatives by Buyer in connection with this Agreement is
false or misleading in any material respect or omits to state a
fact herein or therein necessary to make the statements herein or
therein not misleading in any material respect.
6. Documents to be Delivered by Seller at Closing. In
addition to the other documents required elsewhere hereunder,
Seller shall execute and deliver to Buyer in connection with the
Closing, in form and substance reasonably satisfactory to Buyer
and Buyer's counsel, the following:
6.1 a xxxx of sale conveying, transferring and selling
to Buyer all right, title and interest of Seller in and to all of
the Assets;
6.2 endorsements and assignments of contracts,
licenses, permits, plans, sales orders, commitments and other
binding agreements used or useful in connection with the Assets
transferred to Buyer hereunder;
6.3 all originals, or if the original is
unavailable, copies of (i) records and other documents pertaining
to the Assets as may be in Seller's possession, together with an
assignment thereof in form acceptable to Buyer;
6.4 all books and records relating to the Assets as
are in Seller's possession;
6.5 a certificate of the Secretary of Seller
certifying that annexed thereto is (i) a true and correct copy of
Seller's certificate of incorporation and by-laws and that they
have not been modified or amended, and are in full force and
effect and (ii) a true and correct copy of the Seller's board of
directors and shareholders resolution authorizing the transaction
contemplated herein and delivery of the documents required by
this Agreement;
6.6 such other documents as may be reasonably required
to effectuate the transaction contemplated by this Agreement.
7. Documents to be Delivered by Buyer at Closing. In
addition to the other documents required elsewhere hereunder,
Buyer shall execute and deliver to Seller in connection with the
Closing, in form and substance reasonably satisfactory to Seller
and Seller's counsel, the following:
7.1 stock certificates of the Buyer representing in
the aggregate 15,000,000 shares of Common Stock of the Buyer
which the Seller is entitled hereunder;
7.2 a certificate of the Secretary of Buyer
certifying that annexed thereto is (i) a true and correct copy of
Buyer's certificate of incorporation and by-laws and that they
have not been modified or amended, and are in full force and
effect and (ii) a true and correct copy of the Buyer's board of
directors resolution authorizing the transaction contemplated
herein and delivery of the documents required by this Agreement;
7.3 such other documents as may be reasonably required
to effectuate the transaction contemplated by the Agreement.
8. Conditions Precedent to the Buyer's Performance. The
Buyer's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set
forth in this Section 8. The Buyer may waive any or all of these
conditions in whole or in part without prior notice; provided,
however, that no such waiver of a condition shall constitute a
waiver by the Buyer of any other condition of or any of the
Buyer's other rights or remedies, at law or in equity, if Seller
shall be in default of any of its representations, warranties or
covenants under this Agreement.
8.1 Accuracy of Representation. Except as otherwise
permitted by this Agreement, all representations and warranties
by Seller in this Agreement, or in any written statement that
shall be delivered to the Buyer by Seller under this Agreement
shall be true and accurate on and as of the Closing Date as
though made at that time.
8.2 Performance. Seller shall have performed,
satisfied, or complied with all covenants, agreements and
conditions required by this Agreement to be performed or complied
with by either of them, on or before the Closing Date.
8.3 Absence of Litigation. No action, suit or
proceeding before any court or any governmental body or
authority, pertaining to the transaction contemplated by this
Agreement or to its consummation, shall have been instituted or
threatened against any of the parties hereto on or before the
Closing Date.
8.4 Certificate. Seller shall have delivered to the
Buyer a certificate dated the Closing Date, and signed by an
authorized officer of Seller certifying that each of the
conditions specified in Sections 8.1 through 8.3 hereof have been
fulfilled.
9. Conditions Precedent to the Seller's Performance. The
Seller's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set
forth in this Section 9. The Seller may waive any or all of
these conditions in whole or in part without prior notice;
provided, however, that no such waiver of a condition shall
constitute a waiver by the Seller of any other condition of or
any of the Seller's other rights or remedies, at law or in
equity, if Buyer shall be in default of any of their
representations, warranties or covenants under this Agreement.
9.1 Accuracy of Representations. Except as otherwise
permitted by this Agreement, all representations and warranties
by the Buyer in this Agreement or in any written statement that
shall be delivered to Seller by the Buyer under this Agreement
shall be true and accurate on and as of the Closing Date as
though made at that time.
9.2 Performance. The Buyer shall have performed,
satisfied and complied with all covenants, agreements and
conditions required by this Agreement to be performed or complied
with by it, on or before the Closing Date.
9.3 Absence of Litigation. No action, suit or
proceeding before any court or any governmental body or
authority, pertaining to the transaction contemplated by this
Agreement or to its consummation, shall have been instituted or
threatened against any of the parties hereto on or before the
Closing Date.
9.4 Officer's Certificate. The Buyer shall have
delivered to Seller a certificate, dated the Closing Date, and
signed by an authorized officer of the Buyer, certifying that
each of the conditions specified in Sections 9.1 through 9.3 have
been fulfilled.
10. Other Covenants.
10.1. Further Assurances. After the Closing, upon
the reasonable request of Buyer, Seller shall execute,
acknowledge and deliver, and cause to be executed, acknowledged
and delivered, all assurances, deeds, assignments, transfers,
conveyances, powers of attorney and other instruments and
documents necessary or advisable to consummate the sale,
assignment, transfer and delivery to and vest in Buyer, or enable
Buyer to protect its right, title and interest in and employment
of, the Assets or otherwise to carry out the transactions
contemplated by this Agreement.
10.2 Bulk Transfer Law. The Parties hereby waive
compliance with the provisions of any so-called bulk transfer law
of any jurisdiction, the application of which the parties
acknowledge is unlikely in connection with the sale of the Assets
to Buyer. Seller shall indemnify and hold Buyer harmless against
any liability, loss, cost or expense whatsoever (including legal
fees and disbursements of Seller) which may be asserted by third
parties against Buyer as a result of noncompliance with any such
bulk transfer law.
11. Brokers. Seller represents and warrants to Buyer, and
Buyer represents and warrants to Seller, that neither it nor any
party acting on its behalf has incurred any liabilities, either
express or implied, to any "broker" or "finder" or similar person
in connection with this Agreement or any of the transactions
contemplated hereby.
12. Sales and Transfer Taxes. Seller represents and
warrants that there are no accrued and unpaid taxes, including
without limitation any sales and use taxes, business and personal
property taxes and income taxes. Seller shall be responsible for
the payment of, and agrees to indemnify Buyer from and against
any and all such tax liabilities (including penalties, interest
and reasonable counsel fees and expenses incurred in respect of
such liabilities), whether due or to become due, that may arise
by virtue of transactions engaged in by Seller or the
transactions contemplated by this Agreement or in connection
herewith.
13. Indemnifications.
13.1 Indemnification by Seller Regarding Liabilities.
Seller agrees to save, defend and indemnify Buyer and its
officers, directors, employees and agents against and hold them
harmless from any and all losses, taxes, obligations, expenses,
costs, liabilities, damages, lawsuits, deficiencies claims,
demands (whether or not arising out of third party claims),
action or proceedings relating to or arising out of the
Liabilities and including, without limitation, reasonable counsel
fees and expenses in connection with any action, claim or
proceeding relating to such liabilities; provided, however, that
the indemnified party shall promptly give the Seller notice of
any such claim, but the failure to give such notice shall not
relieve the Seller of its obligations hereunder except to the
extent that they have actually been damaged by such failure.
13.2 Indemnification by Seller for Misrepresentations
or Breach. Seller agrees that if any of the representations or
warranties made it in this Agreement or any certificate or
instrument delivered in connection with this Agreement shall be
determined not to have been true or correct in any material
respect when made, or either of them fails to perform or observe
any covenant or agreement applicable to any of them under this
Agreement, then Seller shall be obligated to pay to Buyer an
amount equivalent to all actual damages suffered or incurred by
Buyer by reason of any such breach of warranty or
misrepresentation or such failure to perform or observe such
covenant or agreement, including without limitation, reasonable
attorney fees and expenses.
13.3 Indemnification by Buyer for Misrepresentation or
Breach. Buyer agrees that if any of the representations or
warranties made by it in this Agreement or any certificate or
instrument delivered in connection with this Agreement shall be
determined not to have been true or correct in any material
respect when made or if there is any failure of Buyer to perform
or observe any covenant or agreement under this Agreement, then
Buyer shall be obligated to pay to Seller an amount equivalent to
all actual damages suffered or incurred by Seller by reason of
any such breach of warranty or misrepresentation or such failure
to perform or observe any covenant or agreement, including
without limitation, reasonable attorneys fees and expenses.
14. Survival of Representations, Warranties, and Covenants.
All representations, warranties and covenants made by the Parties
in this Agreement or other instruments delivered pursuant hereto
shall survive the Closing and any investigation made at any time
with respect thereto.
15. Miscellaneous.
15.1 Notice. All communications, notices, requests,
consents or demands given or required under this Agreement shall
be in writing and shall be deemed to have been duly given when
delivered to, or received by prepaid registered or certified mail
or recognized overnight courier addressed to, or upon receipt of
a facsimile sent to, the party for whom intended, as follows, or
to such other address or facsimile number as may be furnished by
such party by notice in the manner provided herein:
If to the Buyer:
Orbit E-Commerce Inc.
00000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx
X0X 0X0
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
With a copy to:
Danzig Xxxx Xxxxxx Xxxxx & Xxx, LLP
00X Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Seller:
XxxxXxx.XX Canada Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, XX
X0X 0X0
Attn: Xxxxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
15.2 Amendment. This Agreement may be amended,
modified or supplemented only by an instrument in writing
executed by all parties hereto.
15.3 Parties in Interest. This Agreement shall be
binding on and inure to the benefit of and be enforceable by the
Parties, their respective heirs, executors, administrators, legal
representatives, successors and permitted assigns.
15.4 Assignment. Neither this Agreement nor any right
created hereby shall be assignable by any party hereto.
15.5 Jurisdiction. Any legal action, suit or
proceeding arising out of or relating to this Agreement, or the
transactions contemplated hereby, shall be instituted in any
state or federal court in the State of Nevada, and all parties
agree not to assert by way of motion, as a defense or otherwise,
in any such action, suit or proceeding, any claim that it is not
subject personally to the jurisdiction of such court, that the
action, suit or proceeding is brought in an inconvenient forum,
the venue of the action, suit or proceeding is improper to that
the injured party is without a remedy under this Agreement or the
subject matter hereof. All parties further irrevocably submit to
the jurisdiction of any such court in any such action, suit or
proceeding, shall be effective against any party if served by
registered or certified mail, return receipt requested, or by any
other means of mail or delivery which requires a signed receipt,
postage prepaid, mailed or delivered to such party as herein
provided, or by hand delivery. If for any reason such service of
process is ineffective, then all parties shall be subject to
service of process in accordance with applicable law or rule of
court. Nothing herein contained shall be deemed to limit or
restrict the right of any party to serve process in any manner
permitted by law.
15.6 Entire Agreement. This Agreement and the
schedules hereto supersede all prior agreements and
understandings between the parties relating to the subject matter
hereof, except that the obligations of any Party under any
agreement executed pursuant to this Agreement shall not be
affected by this Section.
15.7 Costs, Expenses and Legal Fees. Each of the
Parties hereto shall bear its own costs and expenses (including
attorneys' fees) except that each party hereto agrees to pay the
costs and expenses, including reasonable attorneys' fees,
incurred by the other Parties in successfully (i) enforcing any
of the terms of this Agreement against a Party alleged to be in
breach, or (ii) proving that the other parties breached any of
the terms of this Agreement in any material respect.
15.8 Severability. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under present or
future laws effective during the term hereof, such provision
shall be fully severable and this Agreement shall be construed
and enforced as if such illegal, invalid or unenforceable
provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall
not be affected by the illegal, invalid or unenforceable
provision or by its severance hereof. Furthermore, in lieu of
such illegal, invalid or unenforceable provision, there shall be
added automatically as part of this Agreement, a provision as
similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and still be legal, valid and
enforceable.
15.9 Governing Law. This Agreement and the rights and
obligations of the parties hereto shall be governed, construed
and enforced in accordance with the laws of the State of Nevada.
The parties agree that any litigation relating directly or
indirectly to this Agreement must be brought before and
determined by a court of competent jurisdiction sitting in the
State of Nevada.
15.10 Announcements. The Parties will consult and
cooperate with each other as to the timing and content of any
announcements of the transactions contemplated hereby to the
Buyer's stockholders, the general public, or to employees,
customers or suppliers.
15.11 Captions and Gender. The captions in this
Agreement are for convenience of reference only and shall not
limit or otherwise affect any of the terms or provisions hereof.
Whenever required by the context hereof, the singular shall
include the plural and vice versa; the masculine gender shall
include the feminine and neuter gender and vice versa; the word
"person" shall include a natural person as well as a corporation,
partnership, firm of other form of association.
15.12 Counterparts. This Agreement may be executed
in multiple counterparts, each of which shall be deemed an
original, and all of which shall constitute one and the same
instrument.
15.13 Waiver. No waiver of any term or provision
hereof shall be effective unless in writing, signed by the
parties to be charged.
15.14 Choice of Counsel. The parties acknowledge
that Danzig Xxxx Xxxxxx Xxxxx & Xxx, LLP, the draftsperson of
this Agreement, has prepared this Agreement on behalf of the
Buyer and is not representing the Seller in an individual
capacity in the negotiation and consummation of the transactions
hereunder. The Seller agrees that it has participated in the
preparation of this Agreement and has read and fully understands
this Agreement and has been advised and has had the opportunity
to retain independent counsel of its own choosing and has done so
to the extent it has deemed necessary.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the date first written above.
ORBIT E-COMMERCE, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President and CEO
XXXXXXX.XX CANADA INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President and CEO
Schedule 1
All of the Seller's assets, properties and rights,
privileges, powers and franchises, real, personal and mixed,
tangible and intangible, wherever located and whether or not
reflected on the books and records of the Seller that is in any
respects related to the business of the Seller, including, and
without limiting the generality of the foregoing:
(i) all of Seller's assets, properties, rights, privileges,
powers and franchises in connection with the delivery of
television and telephone services over an Internet Protocol
Virtual Private Network (IPVPN) via Digital Subscriber Line (DSL)
technology which is known as IPTV;
(ii) all of the Seller's lists of customers, suppliers,
names, addresses, businesses and files, and all marketing and
promotional materials of the Seller; and
(iii) all of the Seller's right, title and interest in
and claims under (a) any contracts or other agreements whether
written or oral (including any and all amendments thereto),
service contracts, and warranties applicable to the Assets, and
(b) trade names, trade name applications, brand names, brand name
applications, trademarks, trademark applications, service marks,
service xxxx applications, copyrights, copyright applications,
patents, patent applications, inventions, proprietary
information, techniques, operational methods, product development
techniques or plans, technical processes, designs and design
projects, "know-how", trade secrets, databases, software,
servers, work in process, concepts, ideas and all other
intangible property (collectively, Intangible Property), and all
permits, licenses or other rights running to or from the Seller
relating to any Intangible Property.
