Exhibit 10.1 Asset Purchase Agreement with CBSi Holdings, Inc.
dated September 15, 2005
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is made on September 15,
2005, by and among CBSi Holdings, Inc., an Arizona corporation ("Seller"), and
IPN Communications, Inc., a California corporation ("Purchaser"), a wholly
owned subsidiary of DataLogic International, Inc., a Delaware corporation
("DLGI").
WHEREAS, Seller is engaged in the business of GPS tracking services, has
accounts with customers and other current assets; contracts and agreements
with distributors, dealers, end users, service providers, software developers
and other consultants (Seller's Business Agreements); owns certain
intellectual property, computer and office equipment used to conduct the GPS
tracking services (collectively, the "Seller's Assets", as further listed on
Schedule 1A and Schedule 1B), and desires to sell to Purchaser, subject to the
terms and conditions of this Agreement, Seller's Assets.
WHEREAS, DLGI provides communication services through its wholly owned
subsidiary, IPN Communications, Inc., a California corporation, and desires to
expand its offering of GPS tracking services and desires to purchase, subject
to the terms and conditions of this Agreement, Seller's Assets.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, including the recitals above and
the mutual covenants, agreements, representations and warranties contained in
this agreement, the parties agree as follows:
1. THE TRANSACTION.
(a) Seller's Business Agreements: Seller hereby agrees to assign to
Purchaser all of its right, title and interest in the Seller's Business
Agreements and Purchaser hereby agrees to pay, perform or otherwise discharge
all obligations or duties of Seller under Seller's Business Agreements.
(b) Liabilities Assumed: Purchaser agrees that it shall be solely
responsible for all obligations and liabilities of Seller that are set forth
on Schedule 2 attached hereto.
(c) Seller's Assets: Seller hereby agrees to convey to Purchaser all
of its right, title and interest in Seller's Assets and Purchaser hereby
agrees to purchase Seller's Assets, as set forth on Schedule 1A and Schedule
1B attached hereto. Seller's Assets shall be delivered free and clear of all
liens, claims and encumbrances of every nature, save and except for those
identified on Schedule 1B.
2. PURCHASE PRICE.
(a) Stock Payment. Purchaser will purchase all of Seller's Assets and
Seller's Business Agreements at the Closing for a purchase price described in
this paragraph, payable in newly issued shares of restricted common stock of
DLGI ("Stock Payment"). The Stock Payment shall have an agreed value of Eight
Hundred Fifty Thousand Dollars ($850,000). For the purpose of this section
"agreed value" will be determined by the ten (10) day average closing price of
DLGI common stock as reported by the National Quotation Bureau for the ten
(10) business days up to the date of the Closing times the number of shares
issued.
(b) Registration of Stock Payment. Purchaser will cause to be filed a
Registration Statement covering the Stock Payment or effectuate the
registration of the Stock Payment within twelve (12) months from the Closing.
Seller understands that the Stock Payment shares will contain a Rule 144
legend and that subsequent transfer or sale of the shares is limited by
applicable securities laws. Seller (i.e. the "Investor") agrees that this
agreement involves the purchase and sale of securities. Accordingly, Investor
represents that (1) the securities which are being acquired, are being
acquired for the Investor's own account and for investment and not with a view
to the public resale or distribution thereof; (2) the Investor will not sell,
transfer or otherwise dispose of the securities except in compliance with the
Securities Act of 1933, as amended (the "Act"), and are being transferred in
reliance on exemptions, including but not limited to Section 4 of the Act; (3)
each Investor acknowledges that each Investor has been furnished with
disclosure documents that the Investor feels necessary to make an economic
decision to acquire the securities; (4) Investor further acknowledges that
Investor has had an opportunity to ask questions of and receive answers from
duly designated representatives concerning the terms and conditions pursuant
to which the securities are being purchased and Investor has been afforded an
opportunity to independently examine such documents and other information for
the purpose of verifying the financial condition of DLGI; (5) Investor is
fully aware of the applicable limitations on the resale of the securities; (6)
by reason of Investor's knowledge and experience in financial and business
matters in general, and investments in particular, Investor is capable of
evaluating the merits and bearing the economic risks of an investment in the
securities and fully understands the speculative nature of the securities and
the possibility of such loss; and (7) the present financial condition of
Investor is such that it is under no present or contemplated future need to
dispose of any portion of the securities to satisfy an existing or
contemplated undertaking, need or indebtedness.
(c) Allocation of Purchase Price. Promptly following the Closing,
Purchaser will determine the manner in which the Purchase Price will be
allocated among the Seller's Assets and Seller's Business Agreements, to be
consistent with generally accepted accounting principles applied on a
consistent basis. Seller and Purchaser each agree to report this transaction
in accordance with that allocation with respect to federal, state and local
income and other tax consequences for the tax year that includes the Closing
Date.
(d) Timing of Stock Payment. The Stock Payment shall be earned and
delivered to Seller upon the transfer and assignment of Seller's Business
Agreements to Purchaser. Seller understands and agrees that the approval of
third parties may be required to complete the transfer and assignment and/or
cause these parties to enter similar contracts with Purchaser before the Stock
Payment will be earned and delivered. Purchaser agrees to use its best efforts
to obtain the approval of such third parties or cause such third parties to
enter into contracts with Purchaser on or before the date scheduled for
Closing.
(e) Earn Out Shares. Purchaser agrees that Seller shareholders, and
Fordham Tucker ("Xxxxxx") and Xxxxx Xxxxxxx ("Xxxxxxx") as principals of and
through AppsCafe Incorporated, collectively the "Participants" may participate
in an earn out during the three years following the Closing of the Agreement
(the "Earn Out Plan"). Under the Earn Out Plan, the Participants may earn
shares of restricted common stock of the Parent not to exceed 20,000,000
shares (the "Earn Out Shares"). The number of Earn Out Shares to be issued to
the Participants will be calculated by dividing the eligible Gross Profit
Dollars (as defined below) by the ten (10) day average closing price of DLGI
common stock on the ten days before the end of the calendar quarter in which
the Gross Profit Dollars were earned. "Gross Profit Dollars" shall mean the
revenue from GPS hardware, software, airtime, engineering, development,
installation and support less cost of goods sold for GPS hardware, software,
airtime, engineering, development (as they relate to customer changes and
additions), installation, sales commissions and support ("Gross Profit
Dollars"). The eligible Gross Profit Dollars used in the calculating the Earn
Out Shares would be reduced by the following percentages in each year
following the Closing: Year 1 47.50%; Year 2 22.50%; Year 3 10.00%.
Purchaser shall calculate the Gross Profit Dollars within forty-five (45) days
of the close of each calendar quarter. Gross Profit Dollars shall be
calculated in accordance with generally accepted accounting principles applied
upon a consistent basis and the final accounting information relied upon in
preparing the quarterly or annual financial statements of Purchaser shall be
determinative for the purposes of this Agreement.
The payment of the Earn Out Shares shall be made, if at all, within
three (3) years of the Closing and shall be allocated as follows: 95% to
Seller shareholders; 5% to AppsCafe; provided, however, the participation of
AppsCafe is contingent upon the continued consulting or employment of Xxxxxx
and Xxxxxxx either through AppsCafe or directly with Purchaser or DLGI on no
less than a half-time basis.
(f) Stock Options. Purchaser shall grant to Seller's officers,
employees and consultants, collectively, 2,150,000 DLGI common stock options
("Stock Options"). The Stock Options will have a strike price equal to the
price of DLGI common shares as of Closing. The Stock Options will vest as
follows: 20% immediately upon Closing; and 80% quarterly over a period of two
(2) years.
3. EMPLOYMENT AGREEMENTS.
Concurrently with the execution of this Agreement, Purchaser shall enter into
the following employment or consulting agreements or offers of employment to
be effective as of the Closing:
(a) Employment agreement with Xxxx Camping as Executive Vice President
of Purchaser: Monthly salary of $5,000 cash and $5,000 X-0 XXXX common stock
through December 31, 2005; thereafter monthly salary shall be $10,000 cash, or
$5,000 cash and $5,000 X-0 XXXX common stock at Purchaser's reasonable
discretion; plus sales commission; plus car allowance. Xxxx Camping will be
named a Director of the Board of Director of Purchaser.
(b) Employment agreement with Xxxx Xxxxx as Senior Vice President,
Sales of Purchaser: Monthly salary of $10,000 cash plus sales commission;
plus car allowance.
(c) Offer of employment to Xxx XxXxxx as Salesman of Purchaser:
Monthly draw of $2,500 cash; plus sales commission.
(d) Offer of employment to Xxxxx Xxxxxx as Sales Administration of
Purchaser: Monthly salary of $5,000 cash.
(e) Offer of employment to Del Xxxxxxx as Engineering Support of
Purchaser: Monthly salary of $3,000 cash.
(f) Consulting agreement with AppsCafe Incorporated for the work to be
performed by Fordham Tucker as Vice President, Technology of Purchaser:
Monthly compensation of $5,000 cash and $5,000 X-0 XXXX common stock through
December 31, 2005; thereafter monthly compensation shall be $10,000 cash, or
$5,000 cash and $5,000 X-0 XXXX common stock at Purchaser's reasonable
discretion.
(g) Consulting agreement with AppsCafe Incorporated for work to be
performed by Xxxx Xxxxxxx as Vice President, Marketing of Purchaser: Monthly
compensation of $5,000 cash and $5,000 X-0 XXXX common stock through December
31, 2005; thereafter monthly compensation shall be $10,000 cash, or $5,000
cash and $5,000 X-0 XXXX common stock at Purchaser's reasonable discretion.
Sales commissions will be earned by the salesperson responsible for
the sale and will be calculated at 2.1 % of net sales revenue. A bonus pool
equal to sales commissions will be available to Seller employees. An
additional stock option ("Stock Option Bonus") shall be made available to
Seller employees in the event Seller exceeds the following Panther Trak unit
sales milestones for each Period below:
Period Panther Trak Units Stock Option Bonus
------ ------------------ ------------------
(number of shares)
Year 1 12,000 500,000
Year 2 25,000 750,000
Year 3 50,000 1,000,000
The commencement of the Year 1 Period is the Closing. Subsequent Periods
commence on the anniversary of the Closing. The distribution of the Stock
Option Bonus shall be at the discretion of Xxxx Camping. The Stock Option
Bonus will have a strike price equal to the ten (10) day average closing price
of DLGI common stock as reported by the National Quotation Bureau for the ten
(10) business days up to the end of each Period for which the Stock Option
Bonus was earned.
4. CLOSING.
A closing (the "Closing") to effect the purchase and sale as described in this
Agreement shall be held at the offices of Purchaser or by exchange of
facsimile signature pages on September 15, 2005, or such other date as may be
mutually agreed upon by the parties. At the Closing, Seller shall execute
such bills of sale and instruments of assignment as are necessary to convey
title to Purchaser. Purchaser shall pay the Purchase Price to Seller or
Seller's designee(s).
(a) At the Closing, Seller shall deliver or cause to be delivered to
Purchaser the following:
(1) A xxxx of sale or instruments of conveyance, assignment and
transfer as may be reasonably required by Purchaser substantially in the form
of Exhibit A; and
(2) An opinion of Seller's counsel addressed to Purchaser and
Purchaser's counsel substantially in the form of Exhibit B;
(3) A Closing Certificate from Seller's President substantially in
the form of Exhibit C;
(4) A Certificate of Acknowledgment from all Incorporators and
their spouses of the Seller's Incorporators substantially in the form of
Exhibit D.
(b) At the Closing, Purchaser shall deliver or cause to be delivered to
Seller the following:
(1) Satisfactory evidence of Purchaser's ability to deliver the
Stock Payment (copies of newly issued shares of DLGI common stock shall
constitute satisfactory evidence for Closing); and
(2) An opinion of Purchaser's counsel addressed to Seller and
Seller's counsel substantially in the form of Exhibit E;
(3) Letter from DLGI notifying Laurus concerning the Agreement
substantially in the form of Exhibit F;
(4) Evidence of the Board of directors approval of the Agreement
in the form of Exhibit G.
5. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby represents and warrants to Purchaser as follows.
(a) Organization and Good Standing of Seller. Seller is a Subchapter S
corporation duly organized and validly existing and in good standing under the
laws of Arizona.
(b) The Seller has full corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of the Seller and no other corporate proceedings on the
part of the Seller are necessary to authorize this Agreement or to consummate
the transactions so contemplated (other than, with respect to the approval and
adoption of this Agreement by the holders of a majority of the outstanding
Sellers shares). This Agreement has been duly and validly executed and
delivered by the Seller and constitutes a valid and binding agreement of the
Seller, enforceable against the Seller in accordance with its terms.
(c) Except as set forth in Schedule 3 attached, neither the execution
and delivery of this Agreement by the Seller nor the consummation by the
Seller of the transactions contemplated hereby nor compliance by the Seller
with any of the provisions hereof will (i) conflict with or result in any
breach of any provision of the Articles of Incorporation or Bylaws of the
Seller, (ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, agreement or other instrument or obligation to which the Seller is a
party or by which any of them or any of their properties or assets may be
bound or (iii) violate any order, writ, injunction, decree, statute, treaty,
rule or regulation applicable to the Seller or any of their properties or
assets, except in the case of (ii) or (iii) for violations, breaches or
defaults which are not in the aggregate material to the business, operations
or financial condition of the Seller and which will not prevent or delay the
consummation of the transactions contemplated hereby.
(d) Except as set forth in Schedule 4 attached, none of the financial
statements or schedules included therein, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading.
Each of the balance sheets fairly presents the financial position of the
Seller, and the other related statements included therein fairly present the
results of operations and the changes in financial position of the Seller for
the respective periods.
(e) Except as set forth in Schedule 5 attached, since August 31, 2005,
the Seller has not suffered any adverse changes in its business, operations or
financial condition which are material to the Seller or entered into any
transaction, or conducted its business or operations, other than in the
ordinary and usual course of business and consistent with past practice.
(f) Except as and to the extent set forth in Schedule 6 attached, the
Seller did not have at August 31, 2005, any liabilities not reflected on a
balance sheet of the Seller. Except as and to the extent set forth in such
Schedule, since August 31, 2005, the Seller has not incurred any liabilities
material to the business, operations or financial condition of the Seller,
except liabilities incurred in the ordinary and usual course of business and
consistent with past practice and liabilities incurred in connection with this
Agreement.
(g) Except as set forth in Schedule 7 attached, to the best of Seller
knowledge, the Seller is not in default or violation (and no event has
occurred which with notice or the lapse of time or both would constitute a
default or violation) of any term, condition or provision of (i) its Articles
of Incorporation or its Bylaws, (ii) any note, bond, mortgage, indenture,
license, contract, agreement or other instrument or obligation to which the
Seller is a party or by which they or any of their properties or assets may be
bound or (iii) any order, writ, injunction, decree, statute, rule or
regulation applicable to the Seller, which defaults or violations would, in
the aggregate, have a material adverse effect on the business, operations or
financial condition of the Seller or which would prevent or delay the
consummation of the transactions contemplated hereby.
(h) Except as disclosed in Schedule 8 attached, there is no action,
suit, proceeding, review or, to the best knowledge of the Seller,
investigation pending or, to the best knowledge of the Seller, threatened
involving the Seller, at law or in equity, or before any Governmental Entity
which in the aggregate are reasonably likely to have a material adverse effect
on the business, operations or financial condition of the Seller.
(i) Except as set forth in Schedule 9 attached, no claim is pending or,
to the knowledge of the Seller, threatened to the effect that the present or
past operations of the Seller infringes upon or conflicts with the rights of
others with respect to any intellectual property (including, without
limitation, patents, patent rights, patent applications, trademarks, trademark
applications, trade names, copyrights, drawings, trade secrets, know-how and
computer software) necessary to permit the Seller to conduct its business as
now operated (the "Intellectual Property") and no claim is pending or
threatened to the effect that any of the Intellectual Property is invalid or
unenforceable. No contract, agreement or understanding with any party exists
which would impede or prevent the continued use by the Seller of the entire
right, title and interest of the Seller in and to the Intellectual Property.
6. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents and warrants to Seller as follows:
(a) Organization and Good Standing. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State
of California.
(b) Purchaser has the corporate power and authority and all licenses
and permits required by governmental authorities to execute, deliver and
perform this Agreement. This Agreement has been duly authorized, executed and
delivered by Purchaser and is the legal, valid and binding obligation of it,
enforceable in accordance with its terms except that (i) enforceability may be
limited by bankruptcy, insolvency, or other similar laws affecting creditors'
rights and (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability.
(c) Purchaser and/or DLGI will provide a minimum of $1,000,000 in
funding for the business of GPS tracking services over a period of one (1)
year following the Closing.
(d) Neither the execution and delivery of this Agreement by the
Purchaser nor the consummation by the Purchaser of the transactions
contemplated hereby nor compliance by the Purchaser with any of the provisions
hereof will (i) conflict with or result in any breach of any provision of the
Articles of Incorporation or Bylaws of the Purchaser, (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
agreement or other instrument or obligation to which the Purchaser is a party
or by which any of them or any of their properties or assets may be bound or
(iii) violate any order, writ, injunction, decree, statute, treaty, rule or
regulation applicable to the Purchaser or any of their properties or assets,
except in the case of (ii) or (iii) for violations, breaches or defaults which
are not in the aggregate material to the business, operations or financial
condition of the Purchaser and which will not prevent or delay the
consummation of the transactions contemplated hereby.
7. CONDITIONS PRECEDENT TO CLOSING.
The obligations of Seller and Purchaser to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction on or
before the Closing Date of each of the following conditions:
(a) Purchaser shall have provided offer letters, employment agreements
and consulting agreements for the persons set forth on Schedule 10 and Section
3 hereof.
(b) Each party shall have completed its due diligence investigation and
findings to its sole satisfaction.
(c) All parties shall have executed the Agreement for Non-Competition
and Earn-Out Compensation.
(d) Approval of the transaction shall have been given by each parties'
respective shareholders and board of directors, as required.
8. MISCELLANEOUS.
(a) Termination. This Agreement and the transactions contemplated
hereby may be terminated at any time on or before the Closing Date.
(b) Expenses. Purchaser and Seller shall each pay its own expenses
incurred in connection with this Agreement and the transactions contemplated
hereby.
(c) Entire Agreement. This Agreement and the exhibits and schedules
attached hereto contain the complete agreement among the parties with respect
to the transactions contemplated hereby and supersede all prior agreements and
understandings, oral or written, among the parties with respect to such
transactions. Section and other headings are for reference purposes only and
shall not affect the interpretation or construction of this Agreement. The
parties hereto have not made any representation or warranty except as
expressly set forth in this Agreement or in any certificate or schedule
delivered pursuant hereto.
(d) Public Announcements. No party to this Agreement shall issue any
press release relating to, or otherwise publicly disclose, the transactions
contemplated by this Agreement without the prior approval of the other
parties. Notwithstanding the foregoing, any party may make such disclosure as
may be required by law, provided the disclosing party obtains from the other
party prior approval of the substance of the proposed disclosure (such as the
content of a proposed press release), which approval may not be unreasonably
withheld or delayed.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and such counterparts together shall constitute only one original.
(f) Notices. All notices, demands, requests or other communications
that may be or are required to be given, served or sent by any party to any
other party pursuant to this Agreement shall be in writing and shall be
transmitted by a reputable overnight courier service or by hand delivery or
facsimile transmission, addressed as follows:
If to Purchaser:
IPN Communications, Inc.
00000 Xxx Xxxxxx Xxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 & 800.549.3067
Email: xxxxxxxxxx@xxxx.xxx
with copy to:
Xxxxxxx X. Xxxx
Weed & Co. LLP
0000 XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000 xxx 0
Facsimile: (000) 000-0000
Email: xxxx@xxxxxx.xxx
If to Seller:
CBSi Holdings, Inc.
0000 X. 00xx Xxx.
Xxxxxxx, XX 00000
Attn: Xxxx Camping
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxxxx@xxxxxxxxx.xxx
with copy to:
Titus, Brueckner, & Xxxxx
0000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxx X-000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxx@xxx-xxx.xxx
Each party may designate by notice in writing a new address to which any
notice, demand, request or communication may thereafter be so given, served,
or sent. Each notice, demand, request or communication that is mailed,
delivered, or transmitted in the manner described above shall be deemed
sufficiently given, served, sent and received for all purposes at such time as
it is delivered to the addressee (with the return receipt, the delivery
receipt, fax confirmation sheet or the affidavit of courier or messenger being
deemed conclusive evidence of such delivery) or at such time as delivery is
refused by the addressee upon presentation.
(g) Assignment; Successors and Assigns. This Agreement may not be
assigned by either of the parties hereto without the written consent of all
the other parties; provided, however, that Purchaser shall be entitled to
assign this Agreement to one or more subsidiary corporations so long as
Purchaser remains liable for the payment of the Purchase Price, Earn Out
Shares and Stock Options hereunder. Subject to the preceding sentence, this
Agreement and the rights, interests and obligations hereunder shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
(h) GOVERNING LAW; VENUE. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. THE PARTIES
AGREE THAT ANY ACTION TO ENFORCE, INTERPRET, OR RESOLVE ANY DISPUTE WITH
RESPECT TO ANY PROVISION OF THIS AGREEMENT MAY BE BROUGHT IN ORANGE COUNTY,
CALIFORNIA, AND ALL PARTIES HERETO AGREE THAT ANY LITIGATION DIRECTLY OR
INDIRECTLY RELATING TO THIS AGREEMENT MUST BE BROUGHT BEFORE AND DETERMINED BY
A COURT OF COMPETENT JURISDICTION WITHIN ONE OF THOSE JURISDICTIONS. EACH OF
THE PARTIES FURTHER ACKNOWLEDGE THAT THE FOREGOING IS APPROPRIATE AND AGREE
NOT TO RAISE ANY ARGUMENT THAT SUCH VENUE IS IN ANY WAY UNDULY INCONVENIENT
FOR ANY OF THEM, WITH THEIR EXECUTION HEREOF BEING EVIDENCE OF THEIR AGREEMENT
TO SUBMIT TO THE JURISDICTION OF SUCH COURTS.
(i) Waiver and Other Action. This Agreement may be amended, modified,
or supplemented only by a written instrument executed by the parties against
which enforcement of the amendment, modification or supplement is sought.
(j) Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable, such provision shall be fully severable,
and this Agreement shall be construed and enforced as if such illegal, invalid
or unenforceable provision were never a part hereof; 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; and 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 be
legal, valid and enforceable.
(k) Third-Party Beneficiaries. This Agreement and the rights,
obligations, duties and benefits hereunder are intended for the parties
hereto, and no other person or entity shall have any rights, obligations,
duties and benefits pursuant hereto.
(l) Mutual Contribution. The parties to this Agreement and their
counsel have mutually contributed to its drafting. Consequently, no provision
of this Agreement shall be construed against any party on the ground that such
party drafted the provision or caused it to be drafted or the provision
contains a covenant of such party.
(m) Attorney's Fees. In the event any litigation or other proceeding
is brought by either party arising out of or relating to this Agreement, the
prevailing party in such litigation or other proceeding shall be entitled to
recover from the other party all reasonable costs, reasonable attorneys' fees
and other reasonable expenses incurred by such prevailing party in such
litigation or proceeding.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
SELLER:
CBSi Holdings, Inc. an Arizona Corporation
By: /s/ Xxxx Camping
Name: Xxxx Camping
Title: President
PURCHASER:
IPN COMMUNICATIONS, INC., a California corporation
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Director
