ASSET PURCHASE AGREEMENT
AGREEMENT made as of January 1, 1998 between JDT WebwerX LLC, 000
Xxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("Seller"), and Internet Broadcasting
System, Inc. (d/b/a IBS Interactive, Inc.) a Delaware Corporation with its main
office located at 0 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx 00000
("Purchaser").
Recitals
Seller owns and operates an applications development and Internet
access business (the "Business") in New Jersey.
Purchaser desires to purchase from Seller, and Seller desires to sell
to Purchaser, the Business, as a going concern, exclusive of cash and accounts
receivable and free of any obligations for accounts payable or other liabilities
of Seller.
It is therefore agreed:
1. Sale of business. Seller shall sell to Purchaser and Purchaser shall
purchase and acquire the Business owned and operated by Seller at 000 Xxxxxxxx
Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000, as a going concern. Such sale shall include
the following: the goodwill of the Business; the exclusive right to use the
trade name JDT; the equipment of the Business as set forth in Schedule A
attached hereto and made a part hereof; all records, book of account, customers'
lists and correspondence, files, research data, drawings, and work in process at
the date of closing; and, all contracts with the clients of the Business
(collectively, the "Transferred Assets").
2. Exclusions. This sale does not include any cash on hand or in banks
at the date of closing. This sale does not include any accounts receivable due
the Business at the date of closing, or accounts receivable paid after that date
for Internet access services for periods before the date of closing
(collectively, the "Excluded Assets"). For the purpose of this Agreement,
"Internet access provided before the date of closing" includes Internet access
and other services provided to a client before January 1, 1998 (the "Closing
Date").
3. Collection of accounts receivable. All checks or other proceeds
received by Purchaser in payment of accounts receivable due the Business at the
date of closing and in payment of accounts receivable for Internet access
services provided prior to the date of closing shall be timely turned over to
Seller in the form in which they are received. Seller may endorse the name of
Seller on all such checks and other proceeds, and shall deposit them in a bank
account maintained in its own name. Seller covenants that funds in this bank
account will first be used to pay all accounts payable and other liabilities
incurred by the Business up to the date of closing, including liabilities for or
in connection with Internet access before the date of closing.
4. Obligations of Seller. All accounts payable and other liabilities
incurred by the Business up to the date of closing, including liabilities for or
in connection with the provision of Internet access services before the date of
closing, shall be paid by Seller, who shall indemnify and hold the Purchaser
harmless against all such accounts payable and other liabilities. Unless
specifically provided in this Agreement, Purchaser is not acquiring, directly or
indirectly, any of Seller's liabilities, and no such assumption shall accrue to
Purchaser by operation of law or otherwise.
5. Contracts. Purchaser acknowledges that Seller has made no
representations with respect to contracts or other arrangements with the
Business's clients ("Contracts"). Purchaser assumes the risk that all such
Contracts may be canceled at will, and without notice, by the Business's
clients. Seller makes no representation that any Contracts are assignable.
Nevertheless, Seller undertakes, before the date of closing, to notify all the
Business's present clients of the change in ownership and to urge them to
continue to use the Internet access and other services offered by Seller.
6. Purchase price. The purchase price for all the assets referred to in
paragraph 1 is $35,000.00 consisting of $25,000 in cash and two (2) share of the
common stock of Purchaser with a value of $5,000 per share (due and payable to
Seller as set forth in Schedule B attached hereto and made a part hereof),
attributable as follows: seven thousand dollars ($7,000) to the physical assets,
and twenty-eight thousand dollars ($28,000) to Sellers goodwill, trade name, and
other intangible assets.
7. Conduct of Business Pending Closing. Between the date of this
Agreement and the date of closing, Seller shall: conduct the Business in the
same manner in which it has previously been conducted; not increase the
compensation payable to any employee or any employee benefits; use its best
efforts to preserve the organizational efficiency of the Business; and continue
to maintain the standards of work achieved by Seller. The covenants set forth in
this paragraph shall not survive the closing.
8. Representations of Seller. Seller represents and warrants to
Purchaser:
a) The assets to be transferred to Purchaser under this
Agreement, whether tangible or intangible, shall be at the time of transfer,
free of all liens, security interests, claims, and encumbrances.
b) Seller is not in breach or default of any contract, lease,
or arrangement to be assigned under this Agreement, and Seller shall duly
perform such contracts, leases, and arrangements until closing.
c) Seller has not assigned or licensed any interest in the
trade name AllNet Technology Services, Inc. and has all right and title to use
such trade name.
d) There are no outstanding agreements with any labor unions,
or any pension or retirement plans or programs for the benefit of employees.
e) There are no written or oral employment agreements with any
employee which are not terminable at will without penalty, and salaries and
wages are not in arrears.
f) Seller has and shall continue to make current and timely
payment of federal and New Jersey employee withholding taxes, New Jersey sales
taxes, and all other taxes, other than income taxes, which are due or may become
due by reason of the operation of the Business to be transferred.
g) There are no actions or proceedings pending or threatened
against Seller or the Business.
h) Seller has not engaged a broker for the sale of the
Business, and no broker is involved in this transaction.
i) Neither Seller nor the Business is insolvent, and neither
will be rendered insolvent by this sale.
j) All of Seller's equipment set forth in Schedule A is in
good operating condition and repair.
k) Seller has complied with applicable federal, state, and
local laws in any and all ways related to the conduct and operation of the
Business.
l) No special consents are required to carry out the
transaction contemplated by this Agreement.
The representations and warranties in this paragraph
shall survive closing.
9. Covenant of Purchaser. Purchaser shall indemnify and hold Seller
harmless from any liability on those Contracts referred to in paragraph 5, which
have been initiated by Seller and which are continued by Purchaser for any
period of time after the closing.
10. Closing. The closing shall take place at the office of Purchaser, 0
Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx xx Tuesday, January 27, 1998. Upon
the payment of the portion of the purchase price due Seller, Seller shall
execute and deliver a xxxx of sale and other instruments of transfer, covering
all the assets set forth in Schedule A. All such instruments shall contain the
usual covenants and warranties, and all other provisions that are necessary, in
the opinion of Purchaser's counsel, to convey to Purchaser title to all such
assets, free and clear of all liens, security interests, and encumbrances.
11. Indemnification by Seller. Seller shall indemnify and hold
Purchaser harmless of and from all liabilities, losses, or damages arising out
of any misrepresentation, breach of warranty, or nonfulfillment of any provision
of this Agreement, including, but not limited to, any error or omission in any
statement delivered to Purchaser or any claim, liability, or obligation of
Seller including, but not limited to the obligations imposed on Seller under
paragraph 4. The indemnification shall in no event exceed the purchase price as
set forth in this Agreement.
12. Binding effect. This Agreement shall be binding upon and inure to
the benefit of both the parties hereto and their respective heirs, successors,
and assigns.
13. Non-waiver. No delay or failure by either party to exercise any
right hereunder, and no partial or single exercise of any such right, shall
constitute a waiver of that or any other right, unless otherwise expressly
provided herein.
14. Headings. Headings in this Agreement are for convenience only and
shall not be used to interpret or construe its provisions.
15. Governing law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
17. Time of essence. Time is of the essence of this Agreement.
18. Entire agreement. This Agreement and Schedules A and B attached
hereto and made a part hereof and the Xxxx of Sale supersede all prior
agreements and constitute the entire agreement between the parties hereto with
respect to the subject matter hereof.
19. Notices. All notices hereunder shall be in writing and delivered
personally or mailed by certified mail, postage prepaid, addressed to the
respective parties at their last known addresses.
In witness whereof the parties have signed this Agreement.
JDT WEBWERX LLC
By: /s/ Xxxx Xxxxxxx 01/27/98
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Xxxx Xxxxxxx Date
Title:
By: /s/ Xxxxxxxx Xxxxx 01/27/98
-------------------------- --------
Xxxxxxxx Xxxxx Date
Title:
INTERNET BROADCASTING SYSTEM, INC.
(D/b/a IBS INTERACTIVE, INC.)
By: /s/ Xxxxxxxx Xxxxxxxx, Xx. 01/27/98
-------------------------- --------
Xxxxxxxx Xxxxxxxx, Xx. Date
President
Amendment to JDT WebWerX, LLC Asset Purchase Agreement
Each of IBS Interactive, Inc. ("IBS"), JDT WebWerX, LLC ("JDT"), Xxxx
Xxxxxxx and Xxxxxxxx Xxxxx each agree as follows:
Section 6. Purchase Price of the Asset Purchase Agreement dated as of
January 1, 1998, is hereby amended to read as follows:
The purchase price for all the assets referred to in paragraph 1 is
$35,000 (due and payable to Seller as set forth in Schedule B attached
hereto and made a part hereof), attributable as follows: seven thousand
dollars ($7,000) to the physical assets, and twenty eight thousand
dollars ($28,000) to Seller's goodwill, trade name, and other
intangible assets.
Schedule B to the Asset Purchase Agreement is hereby amended to read as
follows:
Provided that Seller is not in breach of the terms of the Agreement,
Purchaser shall pay to Seller an aggregate amount of thirty five
thousand dollars ($35,000) in cash as follows: contemporaneously with
the execution of this Agreement by the parties and the Xxxx of Sale by
Seller, Purchaser shall pay to Seller nine thousand dollars ($9,000).
Thereafter, Purchaser shall pay to Seller twenty six thousand dollars
($26,000) upon the effective date of the registration of Purchaser's
public offering (estimated to be April 1998)
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, individually and on behalf of JDT
/s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx, individually and on behalf of JDT
INTERNET BROADCASTING SYSTEM, INC.
By: /s/ Xxxxxxxx Xxxxxxxx
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Xxxxxxxx Xxxxxxxx, President
