06/28/98
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") dated as of , 1998 by and
between Ethos Communications Corp. ("Buyer") an Oklahoma corporation located at
000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xxxxxxxx Xxxx, Xxxxxxxx 00000 and Xxxx X Xxxxxx
("Seller"), doing business as "Network Wizards," a sole proprietorship, located
at 00 Xxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000.
RECITALS
WHEREAS, Seller operates Internet web hosting services under the trade name
"Xxxxxxx.xxx" (the "Business"), with servers located in the GTE internetworking
Facility located at the San Xxxx Data Center Facility, 00 X. Xxxxxx, Xxx Xxxx,
Xxxxxxxxxx; and
WHEREAS, Buyer desires to acquire, and Seller desires to sell and transfer
assets and properties related to the Business upon the terms and conditions
contained in this agreement.
NOW, THEREFORE, in consideration of the acts and promises of the other, and for
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereby agree as follows:
Section 1. Acquisition and Transfer of Assets. Subject to the terms and
conditions set forth in this Agreement, Seller shall transfer and convey to
Buyer, and Buyer shall acquire from Seller, all of Seller's right, title and
interest in and to the following assets, both tangible and intangible, of Seller
used in the business (referred to collectively as the "Assets"):
(a) All computer equipment owned or used in connection with
operating the Business including all equipment specifically
listed on Schedule A.
(b) All computer software owned or licensed in connection with
operating the Business including but not limited to that
listed on Schedule B.
(c) All web hosting customers, customer accounts and lists,
support databases, billing databases, credit card database.
(d) The existing Genuity Master Service Agreement.
(e) The domain name "xxxxxxx.xxx" and any and all trade names,
trademarks, copyrights, trademark registrations, designs, web
pages or rights to use in relation to the name "Xxxxxxx.xxx".
(f) Copies of all books and records related to the Business.
Seller will provide timely access to those records necessary
for the ongoing operations of the Business at Buyer's request.
(g) All accounts receivable as of Closing.
(h) All payments made in the month of Closing for Services provided
after Closing. Example: If Closing takes place on July 31, 1998, Seller
shall pay Buyer in cash at Closing an amount equal to all payments received
for August, 1998 services.
Section 2. Excluded Assets. The sale and purchase contemplated by this Agreement
does not include any of the ---------------- following assets, collectively
referred to herein as the "Excluded Assets":
(a) Any computer or office equipment at the home of the Seller excluding spare
equipment identified in Schedule A.
(b) The router, csu/dsu's and friend's Sun Microsystems server located at the
Genuity data center.
(c) The two lease lines connecting to the Genuity data center used to connect
Xx. Xxxxxx'x residence and his friends residence in Reno, Nevada.
(d) All labor, employment and employee benefit contracts of Seller, including,
but not limited to, bonus, pension, profit sharing, retirement, stock purchase,
hospitalization, insurance or similar plans providing for employee benefits.
Section 3. Purchase Price: Manner of Payment.
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(a) Closing Payment. At the Closing (as hereinafter defined), Buyer
shall pay to Seller the sum of Nine-Hundred Thousand Dollars ($900,000) in the
form of a cashiers check or wire transfer. In addition, the Buyer shall deliver
the sum of $300,000 to BancFirst, Oklahoma City, Oklahoma (the "Escrow Agent"),
by certified check.
(b) Escrow Deposit; Post-Closing Payments. The $300,000 to be deposited with the
Escrow Agent shall --------------------------------------- be held by the Escrow
Agent for the periods set forth herein after the Closing Date.
(1) Three months after the Closing Date, the Escrow Agent
shall pay Seller an amount calculated as follows: (i) the total number of Global
Commons, Inc. customers on "xx0.xxxxxx-xxxxxxx.xxx" and "xxx.xxxxxx-xxxxxxx.xxx"
(the "Global Customers") at the end of the third month following the Closing
Date, shall be divided by (ii) 602 (representing Global Customers as of April
30, 1998). This quotient shall be then multiplied by One Hundred Fifty Thousand
Dollars ($150,000), and the payment at such time shall not to exceed $150,000.
Example: If there are 570 Global Customers at the end of the third month
following the Closing Date, then Buyer shall pay Seller $142,026. In the event
that not all of the $150,000 is earned at the end of three months, the unearned
portion shall not carry over to the payment calculation at six months. To be
counted as a Global Customer under (b)(1) and (2) hereof, each customer must
have been a customer for at least two months and must not be more than thirty
(30) days past due in the payment of such monthly fees.
(2) Six months after Closing, the Escrow Agent shall pay
Seller an amount calculated as follows: (i) the total number of Global Customers
at the end of the sixth month following the Closing Date, shall be divided by
(ii) 602 (representing Global Customers as of April 30, 1998). This quotient
shall be then multiplied by One Hundred Fifty Thousand Dollars ($150,000), and
the payment at such time shall not to exceed $150,000. Example: If there are 605
Global Customers at the end of the sixth month following the Closing Date, then
Buyer shall pay Seller $142,026.
(c) Escrow Procedures. Any portion of the $300,000 held by the Escrow
Agent which is not to be paid at either the third or sixth month after the
Closing Date in accordance with the terms of Section 3 shall be paid to the
Buyer. In determining its obligations under this Section 3, the Escrow Agent
shall rely completely upon a certificate to be prepared by Xxxxxx Xxxxxxxx LLP,
and shall not be required to make any payment until such certificate is
delivered to it. When such payment or payments are made, the obligations of the
Seller, the Buyer and the Escrow Agent shall terminate. Nothing in this Section
3(c) shall be construed as affecting or limiting the complete title in the Buyer
to the Assets to be purchased under this Agreement.
(d) Allocation of Purchase Price. The Purchase Price shall be allocated $20,000
to Hardware and ------------------------------ Software Assets, $1,170,000 to
Goodwill and $10,000 to the Non-competition Agreement provided for in Section 5.
Section 4. Clear Title and No Assumption of Liabilities. All of the Assets are
to be transferred and delivered pursuant to the terms of this Agreement, free
and clear of all liabilities, obligations, liens and other encumbrances except
for the liabilities to be assumed by Buyer, as described in Section 5(d) below
("Assumed Liabilities"). All accounts payable and all other liabilities incurred
by Seller up to the Closing including any business broker fees shall be paid by
Seller, and Seller shall indemnify and hold Buyer harmless against any and all
such liabilities, other than the Assumed Liabilities.
Section 5. Conditions Precedent. The obligation of Buyer to close this
transaction is subject to the
---------------------
satisfaction, at or before the Closing Date of the following conditions.
(a) Representations and Warranties; Performance of Obligations.
All of the representations and warranties of Seller contained
in this Agreement shall be true, correct, and complete on the
date of this Agreement and as of the Closing Date with the
same effect as though such representations and warranties had
been made as of the Closing Date; all of the terms, covenants,
agreements, and conditions of this Agreement to be complied
with, performed, or satisfied by Seller and on or before the
Closing Date shall have been duly complied with, performed, or
satisfied.
(b) Consents and Approvals. All the necessary consents and
approvals of and filings with any governmental entity or other
third person related to the consummation of the transactions
contemplated herein, and which may be necessary to assign or
to continue to effect all contracts, agreements, and rights of
Seller which are necessary in order to conduct the Business in
the ordinary and usual course, shall have been obtained and
made.
(e) Inspection of Assets. Buyer shall have the opportunity to make
a satisfactory inspection of the Assets to determine if the
Assets are in good condition at the Closing, with reasonable
wear and tear expected.
(f) Covenants Not to Compete. Buyer shall have received executed
Non-competition Agreements from
------------------------
Xxxx X. Xxxxxx in the form of attached Exhibit C.
prohibiting Xxxx X. Xxxxxx from competing
with Buyer for a period of two (2) years. This non-compete is
valid world-wide.
(g) Employment Agreements. Buyer shall have received the
Employee Agreement of Xxxxxx Xxxx in the
----------------------
form attached as Exhibit D.
(h) Status of Customers. On the Closing Date, there will be at
least 1,800 customer accounts generating gross revenues of not
less than $55,000 per month and at least that amount for the
month of April 1998. This shall include, but shall not be
limited to, Global Customers. In calculating said figure, each
customer must have been a customer for at least two months and
must not be more than thirty (30) days past due in the payment
of such monthly fees.
(i) Financing. Buyer shall have secured financing, on terms
satisfactory to Buyer in its sole discretion, adequate to
satisfy Buyer's obligations under this Agreement.
Section 6. Closing. The acquisition and transfer of the Assets shall be
consummated at the closing (the "Closing") to be held on July 31, 1998 (the
"Closing Date") at 2pm, at the residence of Xxxx X. Xxxxxx at 00 Xxxxx Xxxxx,
Xxxxx Xxxx, XX 00000. The purchase and sale of such Assets shall be effective as
of the close of business on the Closing Date. As of the beginning of business on
the date following the Closing Date, Buyer shall be given full and complete
possession and exclusive control of the Assets being sold and shall immediately
thereafter have the right to commence its business operations with such Assets.
(a) Sellers Obligations at Closing. At the Closing, Seller shall, pursuant to
this Agreement,
--------------------------------
deliver or cause to be delivered to Buyer the following:
(i) Full possession and enjoyment of the Assets.
(ii) A Xxxx of Sale covering the Assets in the form
attached hereto as Exhibit E.
(iii) An executed Non-competition Agreement between buyer
and Xxxx X. Xxxxxx in the
forms attached hereto as Exhibit C.
(iv) An executed Employee Agreement between Buyer and
Xxxxxx Xxxx in the form attached hereto as Exhibit D.
(v) Pay Buyer for all payments received prior to Closing
("Prepayments") from customers for the services to be
performed after Closing. This shall include any
payments including wire transfers received for the
next month's services.
(b) Seller's Obligations after Closing. After the Closing, Seller
shall do the following:
-----------------------------------
(i) Forward the Network Wizards phone number when
requested by Buyer to Buyer's number at
0-000-000-0000 for a period of three months after
Closing. After this three month period and for a
period of one year thereafter, maintain a recording
that specifically says to call Buyer's number as
provided by Buyer for Xxxxxxx.xxx web hosting sales,
support or billing questions.
(ii) Continue to provide all current links from the
Network Wizards homepage to the xxxxxxx.xxx home page
for a period of one year.
(iii) Provide at least four hours per day of consulting
every day during the thirty days following Closing
for transition assistance. This transition assistance
consulting will be provided at Seller's expense to
expedite the transition. Seller shall provide a pager
number and return pages promptly.
(iv) Be available by pager within the continental United
States for three months after Closing for support.
Seller shall return pages within two hours.
(v) Transfer the domain name xxxxxxx.xxx to Buyer with
the identity information provided by Buyer.
(vi) Assist Buyer in updating DNS information on all
domain names served by Seller to be served by Buyer
as determined by Buyer.
(vii) Discontinue the use of the name "Xxxxxxx.xxx" in any manner.
(viii) Pay Buyer $300 per month for the right to connect the router with two
T1's to the Genuity Network. Seller agrees not to exceed 150kb/sec average
throughput per
day.
(ix) Forward the Genuity xxxx to buyer beginning with the payment for services
the month after closing.
(x) At Buyer's request send a letter to Genuity
requesting that the contract with Genuity be assigned
to Buyer.
(xi) Pay Buyer on a weekly basis all payments received for Xxxxxxx.xxx services
including accounts receivable.
(xii) Move the friend's Sun Microsystems computer from the
Genuity co-location facility within six months of
Closing.
(c) Buyer's Obligations after Closing. After the Closing, Buyer shall do the
following:
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(i) Maintain the Genuity contract for a period of six months. If Genuity refuses
to assign the contract to Buyer, Buyer shall make the payment for Seller.
(ii) For a period of six months after Closing, Buyer shall
operate the current Global Customers from the Genuity
data center.
(iii) Pay Xxxx Xxxxxx $100 per hour for any consulting
hours requested by Buyer after the thirty days
following Closing. Buyer shall request a base of 8
hours of consulting beginning the second month after
Closing for a period of five months.
(iv) Email any phone or email messages received for
Network Wizards not related to Web Hosting to
xxx@xx.xxx within two hours of receipt.
(v) Provide Xxxx X. Xxxxxx with a license to use the
scripts, spam filtering and apache/ftp modifications
for the Network Wizards web server and the xxx.xxx
server so long as the scripts are not used for any
web hosting in any form whatsoever except for the non
profit xxx.xxx server and the Network Wizards web
server.
(vi) Provide Xxxx X. Xxxxxx a copy of all invoices sent to
the Global Customers and confirmation and
documentation of payment received from the Global
Customers.
Section 7. Representations and Warranties of Seller. Seller hereby
represents and warrants to Buyer as follows.
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(a) Title. Seller has and will transfer to Buyer good and
marketable title to the Assets, free and clear of any claim,
liability, lien, security interest, or encumbrance. The
execution of this Agreement and performance of the covenants
herein contemplated do not result in any lien, charge or
encumbrance upon the Assets pursuant to any agreement or
instrument to which Seller is bound or by which the Assets may
be affected.
(b) Ordinary Course. Other than changes in the ordinary course of
business, there have been no material financial changes to the
Seller since the audit conducted by Buyer. Seller has
continued to conduct business in a normal and customary manner
consistent with prior practices in the business of the Seller,
and will continue to do so until the Closing Date.
(c) Status of Seller. Seller is a Sole Proprietorship of Xxxx X.
Xxxxxx.
-----------------
(d) Authority. Seller has full power and authority to carry on
the Business as now being conducted
---------
and to own the Assets.
(e) Financial Statements. Seller has furnished to Buyer, and there are attached
hereto as Exhibit ---------------------- F, true and complete copies of the
following: (i) Schedule C's and Seller's individual income tax returns for the
years 1997, 1996, and 1995, (ii) copies of bank statements from January 1997
until Closing (iv) receivables aging, (v) summary of bad debt write-offs, (vi)
details of major expense categories, (vii) schedule of gross margin analysis for
the most recent twelve-month period prepared by Xxxxxx Xxxxxxxx LLP, (viii)
current customer counts, (ix) customer counts by pricing plan and (x) monthly
churn rate. The financial statements present fairly, in all material respects,
the financial position of the Business as of the dates indicated and the results
of operations for the periods indicated and have been prepared in accordance
with the accounting principles used by Seller in preparing financial statements
for the Business, which principles are summarized on Exhibit F hereto.
(f) Authorization and Absence of Restrictions. Seller has full
right, power, authority, and a capacity to enter into this
Agreement and to carry out this Agreement in all respects at
the date of Closing. Consummation of the transactions
contemplated by this Agreement will not result in a breach of
any term or provision of any contract, lease, judgment, order
or decree of any judicial or administrative body, or other
agreement to which the Seller is a party.
(g) Litigation. There is no litigation or proceeding pending, or
to the knowledge of the Seller threatened, against or relating
to the Seller or the Assets or Business, nor does the Seller
know or have reasonable grounds to know of any basis for an
such action, or of any governmental investigation relative to
the Seller's Assets or Business.
(h) Taxes. Seller has paid, or at the time of Closing will have
paid all withholding, sales, social security and unemployment
taxes which are due at the time of Closing and any and all
other taxes related to the Business which are due at the time
of Closing.
(i) Licenses, Government Regulation and Legal Compliance. All permits, licenses
and other ----------------------------------------------------------
authorizations required for the operation of the Business as now conducted are
in full force and effect and Seller has complied with, and is not in violation
of, any of the requirements, conditions, or limitations of any such permits,
licenses, or other authorizations or of any governmental regulations applicable
to such business. Seller has complied in all respects with the Fair Labor
Standards Act and any applicable state laws in respect of hours worked by, and
payments made to, its employees. Seller has complied with all other statutes,
ordinances, regulations and orders applicable to its business, including
building, fire, health and safety codes, statutes, ordinances, orders or
regulations.
(j) No Liabilities. Seller has no material liabilities (whether
contingent or absolute, matured or unmatured, known or
unknown, including, without limitation, unasserted claims
relating to the Assets of Seller) relating to the Business,
except for liabilities and obligations which were incurred in
the ordinary course of business since March 31, 1998.
(k) Disclosure. No representation or warranty by Seller in the
Agreement or any statement or certificate furnished or to be
furnished to the Buyer pursuant hereto, or in connection with
the transaction contemplated hereby, contains or will contain
any untrue statement of a material fact or omits or will omit
any statement of material fact necessary to make the
statements contained therein not misleading.
Section 9. Survival of Representations and Warranties. All representations,
warranties, and covenants made herein by Seller and Buyer, shall be effective as
of the Effective Date and the Closing Date and shall survive the Closing.
Section 10. Conduct of Seller Pending Closing. Seller covenants that,
between the date hereof and the date of
------------------------------------
Closing:
(a) Seller's business will be conducted only in the ordinary
course of business;.
(b) Except as otherwise requested by Buyer, Seller will preserve for Buyer the
goodwill of Seller's suppliers, customers and others having business relations
with Seller.
(c) Buyer, its agents, attorneys and representatives shall have
full access to the Assets for purposes of inspecting the same
or any part thereof at such times as they shall reasonably
request during normal business hours. Seller shall furnish to
Buyer all information with respect to the Assets or Business
of Seller as Buyer may from time to time request.
(d) As of the close of business on the Closing Date, Seller shall
terminate the employment off all of its employees, of which
Xxxxxx Xxxx shall be hired by Buyer, and Seller shall bear all
liabilities, costs and expensed incident to the termination of
such employees including any fees by the employee leasing
company.
Section 11. Indemnification.
----------------
(a) Indemnification by Seller. Seller shall indemnify and hold harmless
Buyer from any and all claims, losses, liabilities, damages, legal proceedings,
recoveries, costs or expenses (including any interest and reasonable attorneys'
fees), collectively, a "Loss", resulting from or arising out of:
(i) Any misrepresentation, breach of warranty or failure
to fulfill any obligation of the part of Seller in or
under this Agreement or in or under any document
furnished by Seller to Buyer as required by this
Agreement;
(ii) Any claims, demands, suits, proceedings or actions by
any third party containing allegations which, if
true, would constitute a misrepresentation, breach of
warranty or failure to fulfill an obligation on the
part of Seller in or under this Agreement or in or
under any document furnished by Seller to Buyer; and
(iii) Any liability, expense or other obligation of, or
claims against Seller, other than relating to the
Assumed Liabilities.
Seller agrees that the payments required to be made under this Agreement may be
reduced by any amount of indebtedness of Seller to Buyer arising under this
Agreement or in any other manner whatsoever. Buyer shall promptly notify Seller
of any liability to which Seller's indemnification obligations may apply and
shall give Seller a reasonable opportunity to defend the same at his own cost
and expense with counsel of his own selection, provided that Buyer shall at all
times have the right to fully participate in the defense at its own expense. If
Seller shall, within a reasonable time after such notice, fail to defend, Buyer
shall have the right, but not the obligation, to undertake the defense of and to
compromise or settle the liability on behalf, for the account and at the risk
and expense of Seller, if Seller is later determined to be responsible for such
liability.
(b) Indemnification by Buyer. Buyer shall indemnify and hold harmless Seller
from any and all Losses resulting from or arising out of any liability or
obligation of or claims against Seller (whether absolute, accrued, contingent or
otherwise and whether contractual, tax or any other type of liability or
obligation or claim) relating to or resulting from the Assets or the operation
of the Business during the period from and after the date on which they are
conveyed to Buyer; notwithstanding the foregoing, in no event shall Buyer have
any indemnification obligation to Seller pursuant to this Section 11(b) for any
Losses otherwise indemnifiable hereunder to the extent that such Losses directly
relate to a liability, obligation or claim with regard to the failure to obtain
any waiver, consent or approval from any party to any contract that is required
in order to assign any such contract to Buyer; provided, however, that Buyer
shall remain liable for any other Losses indemnifiable pursuant to this Section
11(b) not directly relating to such a liability, obligation or claim. Seller
shall promptly notify Buyer of any liability to which Buyer's indemnification
obligations may apply and shall give Buyer a reasonable opportunity to defend
the same at his own cost and expense with counsel of his own selection, provided
that Seller shall at all times have the right to fully participate in the
defense at its own expense. If Buyer shall, within a reasonable time after such
notice, fail to defend, Seller shall have the right, but not the obligation, to
undertake the defense of and to compromise or settle the liability on behalf,
for the account and at the risk and expense of Buyer, if Buyer is later
determined to be responsible for such liability.
Section 12. Risk of Loss. The risk of loss or damage by fire or other casualty
or cause to the Assets or the Business prior to the date on which they are to be
conveyed to Buyer shall be upon Seller. In the event of such loss or damage
prior to such date, Seller shall promptly restore, replace or repair the damaged
Assets to their previous condition at the sole cost and expense of Seller. Buyer
shall have any and all remedies to enforce such obligations as may be available
at law or in equity or otherwise (including, without limitation, specific
performance).
Section 13. Brokerage. Seller is responsible for any and all brokerage fees
arising from the execution of this --------- agreement. Buyer has no agreement
with a brokerage that would result in any fees for the Seller or the Buyer.
Section 14. Termination.
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(a) Termination. Subject to the provisions of paragraph (b) of
this Section 14, this Agreement may, by written notice given
at or prior to the Closing in the manner hereinafter provided,
be terminated at any time prior to the Closing:
(i) by mutual written consent of the parties hereto; or
(ii) by Seller, on the one hand, or by Buyer, on the other
hand, if the Closing shall not have occurred on or
before July 31, 1998; provided, that such failure to
close is not a result of a breach of this Agreement
by the party or parties seeking to terminate the
Agreement.
(b) Effect of Termination. In the event this Agreement is
terminated as provided in paragraph (a) of this Section 14,
this Agreement shall be deemed null, void and of no further
force or effect, and the parties hereto shall be released from
all future obligations hereunder. The parties hereto shall
have any and all remedies to enforce such obligations provided
at law or in equity or otherwise (including, without
limitation, specific performance).
Section 15. Mediation of Disputes
(a) In the event of a dispute between the parties to this
Agreement the following procedure will be used in a good faith
attempt to mediate and resolve the dispute prior to the
pursuit by either party of other available remedies.
(i) A meeting (the "Initial Meeting") shall promptly be
held at which all parties are present by individuals
with full decision making authority regarding the
matters in dispute.
(ii) If, within thirty (30) days following the Initial
Meeting, the parties have not resolved the dispute,
the dispute shall be submitted to mediation directed
by a mediator mutually agreeable to the parties (the
"Mediator). Each party shall bear its proportionate
share of the costs of the meditation, including the
Mediator's fee.
(iii) The parties agree to negotiate in good faith in the
Initial Meeting and in mediation conferences and use
reasonable efforts to resolve the dispute without the
need for litigation.
(b) If, after a period of sixty (60) days following the mediation
conferences or any adjournment thereof, and despite the good
faith efforts of the parties to negotiate and attempt to
resolve the dispute, the parties are unable to resolve the
dispute, either party may initiate arbitration upon ten (10)
days' prior written notice to the other party. The initiation
of arbitration, however, shall not eliminate the obligation of
the parties to continue to negotiate in good faith and attempt
to resolve the issue.
(c) In the event there is a failure of mediation pursuant to
paragraph (B) above, any controversy or claim arising out of
or relating to this Agreement or the breach thereof will be
settled by arbitration in Oklahoma City, Oklahoma before and
in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. The award rendered in that
arbitration will be binding on the parties hereto, and
judgment upon the award can be entered by any court having
jurisdiction thereof. Without detracting from the generality
of the foregoing, the following specific provisions will also
apply:
(i) The proceedings will beheld by a panel of three
arbitrators, each party having the right to select
one arbitrator, with the third to be selected in
accordance with the Rules of the American Arbitration
Association;
(ii) The parties, by mutual agreement, can also provide
that all or part of the arbitration proceedings be
held outside of Oklahoma City, Oklahoma; in this
event, the parties will equally bear any special
expenses resulting from that decision;
(iii) Before rendering their final decision, the
arbitrators will act as friendly, disinterested
parties for the purpose of helping the parties reach
compromise settlements on the points in dispute; and
(iv) The costs of the arbitration will be in the
discretion of the arbitrators, provided, however,
that no party is obliged to pay more than its own
costs, the costs of the arbitrator it has nominated,
and the cost of the third arbitrator.
Section 16. Miscellaneous Provisions.
(a) Governing Law, Venue. This Agreement shall be governed and
controlled in all respects by the laws of the state of
Oklahoma, including as to interpretation, enforceability,
validity, and construction, without regard to its conflicts of
laws principles. Any litigation arising out of or relating to
this Agreement shall be conducted solely and exclusively in
such court in Oklahoma County as shall have jurisdiction over
the subject matter hereof; and to the extent permitted by law,
all parties hereto consent to such jurisdiction and venue.
(b) Integration. This Agreement constitutes the entire
understanding between the parties with respect to the subject
matter of this Agreement and supersedes any prior discussions,
negotiations, agreements and understandings. The following
Exhibits shall constitute part of this Agreement.
Exhibit A - List of Equipment
Exhibit B - List of Licensed and Developed Software
Exhibit C - Form Non-competition Agreement
Exhibit D - Form Employment agreement
Exhibit E - Xxxx of Sale
Exhibit F - Financial Statements
(c) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a way as to be
effective and valid under applicable law. If any provision is
prohibited by or invalid under applicable law, it shall be
ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
(d) Amendment. The terms of this Agreement may not be varied, supplemented, or
modified in any
---------
manner, except in a subsequent writing executed by all parties
(e) Assignment. This Agreement shall not be assigned without the
prior written consent of all other parties to this Agreement.
In the event of a permitted assignment, this Agreement shall
be binding upon and insured to the benefit of the assignors
successors and assigns.
(f) Third Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any
---------------------------
third party other than the parties to this Agreement and their respective
successors and
permitted assign's.
(g) Notices. Any notice required or permitted under this Agreement
shall be in writing and must be delivered personally or by be
sent by facsimile, telex, or certified prepaid mail or
overnight express mail, addressed to the addressee's last
known address. Notices shall be deemed given three (3) days
after mailing in the case of mail or overnight service, or
upon proper and successful telex, facsimile, or personal
delivery, as the case may be.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as the
date first written above.
BUYER
Ethos Communications Corp.
By:__________________________
Xxxxxx X. Xxxxx, President
SELLER
Xxxx X. Xxxxxx
-------------------------------------------------
Xxxx X. Xxxxxx
Exhibit A.
Hardware List
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NS1
P-133. 98mb ram.
Buslogic scsi. 3C509 ethernet.
system/data on ST31055N (1gb)
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CATALOG
PPRO-200. 128mb ram.
DPT RAID PM3334UW controller, 3 channel ultra-wide scsi. overflow data and
backup disks on NCR pci scsi. Intel ether express 10/100 ethernet.
system on mirrored 2gb drives.
data on raid-5 array is 8 ST34371W (4gb each).
overflow data is IBM 0662S12 (1gb)
backup drive is ST423451W (23gb).
----------------------------------------------------------------------
MAIL
PPRO-200. 64mb ram.
BusLogic BT-946C scsi. 3C509 ethernet.
system/data on ST32550N (2gb)
backup drive on ST32550N (2gb)
----------------------------------------------------------------------
XX0
X-000. 64mb.
DPT RAID PM3334UW controller, 2 channel ultra-wide scsi. Backup drive on
ST423451N (23gb) 3C509 ethernet.
system on mirrored 4gb drives (seagate barracuda)
three 9gb drives
data on FUJITSU M2949E (9gb)
backup data on FUJITSU M2949E (9gb)
extra drive is FUJITSU (9gb)
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MISCELLANEOUS
NetGear ethernet switch 8 10mb ports, 2 100mb ports BEST rackmount UPS (approx
1000kva) PC video monitor PC keyboard
Spare hardware:
ps/2 style power supply
4gb seagate barracuda
Exhibit B
Software List
COMMERCIAL SOFTWARE
BSDI O/S v3
4 licenses
RealAudio Server v4
2 60-stream licenses
Stydec Shopping Cart
2 binary licenses
Storemaker Shopping Cart
2 binary licenses and source license
Apache secure server - stronghold
binary license
IC-VERIFY
credit card processing software for DOS
/c/progs
addccinfo.c add cc expiration dates to /crs files
appendlf.c makes sure last line of a file has a lf
changepwd.c cgi: to change users login password
checkuser.c cgi: simple user access control
chkacct.c checks account setup information
configedit.c cgi: account info configuration editor
createcustlist.c creates customer email list
custedit.c cgi: billing info update handler
deposit.c generates bank deposit slip for last batch of checks
domsetup.c generates account/domain setup files
fd finds an account name from its domain name
fdi.c displays account info for given domain name
find.c cgi: file search program
findlate.c find user behind on payments
findlate.rc script to run findlate on all users
fm.c cgi: file manager
form.c cgi: old form processing script
form2.c cgi: new form processing script
fp finds an account by seaching user info for a string
gendiskusage.c reads du list, appends usage to users stats file
genftplogs.c process ftp server log files
geninvoice.c generates invoices
genlistings generates customer directory list (for web site)
genmonthlybills script run once a month to xxxx customers
genuserstatsnew.c generates usage stats for www and ftp for a user
genvmaillogs.c generate vmail stats for autoresponder usage
genwwwlogs.c process www log files, split out for each user
getadmin.c display admin email address for an account
listing.c generates customer directory listing data
logto.c cgi: logto and goto scripts
makehtml generates html files from html source files
mkacct builds directories for a new account
mkauthdb.c generates user/password database for auth server
mkdatafile.c gen default account config/data file for a user
mkpwdentry.c adds a new user to system password file
new script to build a new account
newfile.c ftp 'site exec' prog to backup and reset order files
newmsg generates email to send to new customer just built
newwebwhois.c cgi: to run whois command to InterNIC
nkf.c converts ascii to kanji (freeware) used by form2
notpaid.c processes declined cc charges
nuke script to delete an account
paid.c processes account payments
prevday.c returns a string yyyymmdd for previous day
prevdaymonth.c returns a string yyyymm for previous day
prevmonth.c returns a string yyyymm for previous month
processuserfiles nightly script to process www/ftp/etc log files
report.c generates user reports (email) for www/ftp statistics
rmall.c does "rm *" on directory arg given
rmallonfirst.c does "rm *" if the first day of the month
rmallontuesday.c does "rm *" if its a tuesday
service.c generates new account service description file
showacct.c cgi: show user account/billing info
sm.c cgi: web site manager
total.c totals a particular field for each line of a file
var.c cgi: var file processor
vmail.c mail forwarding handler
vmailrcpt.c looks up vmail forwarding entry (subroutine)
wildmat.c subroutine to do wildcard string matches
xfervmail.c moves copy of vmail files to mail server
/usr/local/src
xxxx.xxx ftp source and mods
httpd/vapache_1.1b4 apache with mods
mmd mail daeamon software
qpopper-2.2 POP server w/mods
storemaker shopping cart w/mods and bug fixes
/etc
mkpwd update password file
mkvmail update mailertable file
addmail add a new mailertable entry
Domain Server Software
/usr/local/etc/domain
genboots script to run gennamedboot gennamedboot.c make primary and secondary
boot files makealias make an aliased domain name zone file makezone make a
virtual host zone file makezonewww2 make a virtual host zone file with www only
entry nuke remove a domain
PC Billing Related Software
(to import/export data for use with IC-VERIFY)
doexplst export: generate cc expiration date list
mkbatch import: read charges, generate icverify batch file
redo generate list of charges to retry (temp failures)
and export list of charges that succeeded or failed
chargem run icverify over entire batch
charge run icverify in manual entry mode
Exhibit C
Non-Competition Agreement
Exhibit D
Employee Agreement
Exhibit E.
Xxxx of Sale
Exhibit F
Financial Statements
