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Exhibit 2.11
ASSET PURCHASE AGREEMENT
AGREEMENT made as of this 7th day of April 1998 between CLEVER COMPUTERS,
INC., a Georgia corporation (the "Company"), XXXXXX X. XXXXX ("XXXXX"), and SAGE
NETWORKS ACQUISITION CORP., a Delaware corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, the Company desires to sell and the Buyer desires to purchase on
the date hereof (the "Closing Date") the web hosting business of the Company as
a going concern (the "Business") consisting of the Purchased Assets (hereinafter
defined), and the Assumed Liabilities (as hereinafter defined), for a purchase
price determined as set forth in Exhibit A (the "Purchase Price") and for the
assumption of the Assumed Liabilities (hereinafter defined); and
WHEREAS, Xxxxxx X. Xxxxx ("Xxxxx") joins in the execution of this
Agreement as he was the founder, sole shareholder, sole director and president
of the Company until he sold all of the capital stock of the Company to Optimum
Realty Corp., a Georgia Corporation ("Optimum") on April 6, 1998, and he is
familiar with the material aspects of operations of the business of the Company,
including, without limitation, the Business.
NOW THEREFORE, in consideration of the mutual covenants and promises
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by all parties, the
Company, Shareholder, Buyer and Parent agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
Section 1. Representations of the Company and Xxxxx. The following
agreements, representations and warranties are made by the Company and Xxxxx,
jointly and severally to the Buyer.
(A) Corporate Matters; No Conflict. The Company is duly formed,
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or incorporated and is validly existing in good standing under the laws of its
state of incorporation as set forth in Exhibit A, maintains offices only in
Atlanta, Georgia at the sites listed on Exhibit A and has no other locus of
operations other than from those sites, is qualified or authorized to transact
business and is in good standing in each other jurisdiction in which it is doing
business, except where failure to be qualified or be in good standing would not
have a material adverse effect on the business of the Company, and has the
corporate power to enter into this Agreement, to perform its obligations
hereunder and to conduct its business as currently conducted. The execution,
delivery and performance of this Agreement and the transactions contemplated
hereby by the Company and by the Xxxxx will not (i) conflict with or violate the
provisions of any applicable law (including, without limitation, any bulk sales
laws), rule or order of the Company's Articles or Certificate of Incorporation,
by-laws and any other organizational or governing documents of the Company, (ii)
conflict with or constitute a default under any agreement or contract by which
the Company or Xxxxx are bound or (iii) require the consent or approval of, or
filing with, any governmental body or third party except as set forth on Exhibit
C-5. The execution, delivery and performance by the Company of this Agreement
has been authorized and approved by all requisite corporate action on the part
of the Company. As of the date hereof, Optimum is the sole beneficial or record
owner of all of the issued and outstanding shares of capital stock of the
Company and owns the number of shares of such stock set forth opposite its name
on Exhibit A. Also set forth on Exhibit A is the total number and type of
outstanding shares of capital stock of the Company. Set forth on Exhibit B is a
list of officers and directors of the Company, all trade names used by the
Company and all jurisdictions in which the Company is doing business. As the
sole shareholder of the Company, Optimum has approved this Agreement and the
consummation of the transactions contemplated hereby and the authorized officers
of the Company named on Exhibit A are jointly and severally authorized and
empowered by the Company to execute and deliver this Agreement in the name and
on behalf of the Company.
(B) Purchased Assets. (i) All vendor and customer contracts,
confidentiality agreements, purchase and sales orders, powers of attorney,
undertakings, commitments and other agreements to which the Company is a party
and which relate in any manner to the Business and/or the relationship between
the Company and the Customers (hereinafter defined), whether written or oral
shall be referred to herein collectively as the "Business Agreements". The
Company has delivered to Buyer, on or before the Closing Date, true and correct
copies of all written Business Agreements. Attached hereto as Exhibit C-1 are
true and correct copies of the only forms of agreements which have been entered
into between the Company and its Customers concerning the Business. Also
attached as part of Exhibit C-1 is a schedule stating the approximate number of
each of those agreements which are in force and effect as of the Closing Date.
Annexed as Exhibit C-2 are summaries of all oral Business Agreements and all
Business Agreements between the Company and vendors and service providers, as
well as a list of suppliers, concerning the Business. Listed on Exhibit C-3 is a
description of each and every real estate, equipment and personal property lease
(collectively, the "Leases") to which the Company is a party and which relates
to the Business. The Leases are also included within the definition of
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Business Agreements as said term is used herein. Neither the Company, nor, to
the knowledge of the Company and Xxxxx, any other party, is in default under any
Business Agreement and no other party to any Business Agreement has made any
claim or given the Company notice of any dispute under any Business Agreement,
except as set forth on Exhibit C-4. Each Business Agreement is in full force and
effect and the Company has the right to assign the Business Agreements and the
Company has obtained all required consents to the assignment and transfer
thereof, except as set forth on Exhibit C-5. The Company is not the owner or
lessee of any motor vehicles which are used in the Business. The Company does
not own or lease any interest in any real property, or lease any equipment used
in the Business, except as expressly stated on Exhibit C-3.
(ii) All of the outstanding accounts, notes and other
receivables of the Company relating to the Business, including, without
limitation, the outstanding accounts receivable and all unbilled fees for
services rendered or products sold prior to the Closing Date (including the
name, address and contact at the account) of the Company relating to the
Business as of the Closing Date shall be referred to herein collectively as the
"Accounts Receivable". Attached hereto as Exhibit D-1 is a true and correct aged
list of all of the Accounts Receivable as of March 28, 1998. The Accounts
Receivable are valid and arose in the ordinary course of the Business. Also
stated on Exhibit D-2 is the amount of cash on hand owned by the Company as of
the Closing Date ("Cash").
(iii) All of the tangible assets of the Company used in the
Business, including, without limitation, all machinery, office and other
equipment, furniture, computers and related equipment, business machines,
telephones and telephone systems, parts and accessories, telephone numbers,
facsimile numbers and Internet domain addresses presently utilized by the
Company in the Business, shall be referred to herein collectively as the
"Tangible Assets". Attached hereto as Exhibit E is a true and correct list or
description of the material Tangible Assets. As of the Closing Date, each of the
Tangible Assets is in good and operable condition, reasonable wear and tear
excepted.
(iv) All patents, trademarks, service marks, logos, designs,
formulations, copyrights and other trade rights and all registrations and
applications therefor, all trade secrets, technology or processes, and all
computer programs, data bases and software documentation owned or used by the
Company in the Business, other than off-the-shelf software licensed by the
Company, shall be referred to herein collectively as the "Intellectual
Property." Attached hereto as Exhibit F is a true and correct copy of all of the
Intellectual Property. Such exhibit also indicates which of such items have been
patented or registered or are in the process of application for same. The
Company has taken all necessary and reasonable actions to protect its rights in
Intellectual Property owned by it and to the knowledge of the Company, is not
infringing on the rights of any third parties to Intellectual Property used, but
not owned by, the Company. Included among the Intellectual Property, among other
things, are all trade names utilized by the Company in the Business, including
those trade names listed on Exhibit B. On the Closing Date, the Company will
deliver to Buyer a Certificate of Amendment of the Company's
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Articles or Certificate of Incorporation ("Certificate of Amendment") changing
its corporate name so as to delete the words"Clever Computers" and will cause
the same to be duly filed with the Secretary of State's Office for the State of
Georgia within ten days from the Closing Date. Promptly after such filing, the
Company will deliver proof of said filing to Buyer. The Company has valid and
fully-paid licenses for all off-the-shelf software used by the Company in its
operation of the Business.
(v) The Company will deliver at the Closing a true and
complete copy of the Company's customer list as of the Closing Date relating to
the Business which includes, in the case of each customer, the name of the
customer, its billing and domain addresses, identity and contact information of
each relevant contact person and a statement of the monthly or annual (as
indicated) service charges relating to such customer (the "Customer List"). All
customers of the Company relating to the Business, including without limitation,
those customers included on the Customer List, together with the good will and
business opportunities of the Company as it relates to the Business shall be
referred to herein as the "Customers." Buyer acknowledges that a substantial
number of the Company's customers relating to the Business are resellers of
Internet services to other customers. The customers of such resellers are not
intended to and shall not be included in the term "Customers" for purposes of
this Agreement.
(vi) As used herein, the term "Purchased Assets" shall be
defined as all classes of assets of the Company as shown on the Company's
certified financial statement as of December 31, 1997 (annexed as Exhibit H)
(excluding, however, the organizational costs of the Company and any prepaid or
deferred income taxes), the Business Agreements, the Accounts Receivable, the
Cash, the Tangible Assets, the Intellectual Property, the Customers and all
other assets of the Company used in connection with the operation of the
Business, wherever located, tangible or intangible, including without
limitation, all rights the Company may have under any insurance policies
relating to the Purchased Assets, excluding, however, the assets listed on
Exhibit M (the "Excluded Assets"). The Purchased Assets are not subject to (i)
any lien or encumbrance of any character whatsoever except as set forth on
Exhibit N or (ii) any adverse claims by any third parties. At the Closing upon
consummation of the transactions contemplated by this Agreement, Buyer will
receive good and marketable title to the Purchased Assets, free and clear of all
liens and encumbrances of any character whatsoever, with the exception of the
Business Agreements which Buyer shall receive all of the Company's right, title
and interest in, and which shall be valid, binding and in full force and effect,
with no existing defaults, claims or setoffs. Notwithstanding the foregoing,
promptly after the Closing Date, Seller shall deliver the balance, if any, of
the Cash after all payables and accrued and other expenses set forth on the
Schedule annexed to Exhibit D-2 have been paid therefrom.
(vii) The Company and Xxxxx reasonably expect that the
business represented by the Business Agreements will continue after the date
hereof. The Company and Xxxxx have no actual knowledge that any customers
included on the Customer List, other than those listed on Exhibit G, intend to
terminate or reduce the amount of business they presently do with the Company,
and they have no knowledge of any state of facts which would lead them to
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believe that a substantial number of the customers included on the Customer List
will terminate their relationship with the Company or significantly reduce the
amount of business they presently do with the Company.
(C) Financial Statements. The Company has delivered to the Buyer
copies of the Company's audited financial statements for the last fiscal year of
the Company ended December 31, 1997, and unaudited financial statements for the
fiscal years of the Company ended 1995 and 1996, respectively. Attached hereto
as Exhibit H is a certified audited balance sheet and profit and loss statement
for the fiscal year ended December 31,1997 and unaudited financial statements
for each of the months ending January 31, 1998, February 28, 1998 and March 31,
1998, all of which reflect the assets, liabilities, net worth, profit and loss,
and cash flow of the Company with respect to the Business. The Company and Xxxxx
represent and warrant that the financial statements for the fiscal years of the
Company ended December 31, 1995 and 1996, respectively, while unaudited are
auditable. All financial statements referred to herein are complete and correct
in all material respects, present fairly the financial condition and results of
operations of the Company as at the dates of such statements and with respect to
the audited financial statements referred to above for the fiscal year of the
Company ended December 31, 1997 only, have been prepared in accordance with
generally accepted accounting principles. The books of account and records of
the Company have been maintained in accordance with good business practice and
reflect fairly all properties, assets, liabilities and transactions of the
Company. Except as set forth on Exhibit I the Company has no bad debts as of the
Closing Date. Since the last day of the Company's last fiscal year, there has
been no material adverse change in the Business. Since February 28, 1998, the
Company has had no loss in net monthly recurring revenue from the Business.
(D) Assumed Liabilities. The Buyer shall not be liable for and is
not assuming any liabilities of the Company whatsoever, whether related or
unrelated to the Purchased Assets, or whether arising under the Business
Agreement or otherwise, unless specifically listed on Exhibit J hereto (the
"Assumed Liabilities"). The Company and Xxxxx understand and agree that the
Buyer is not assuming any liabilities of Optimum or Xxxxx whatsoever, except
that Buyer agrees to indemnify and hold Xxxxx harmless from and against any
liabilities arising under the equipment leases listed on Schedule C-3. The
Company has no outstanding loans of any kind and neither Optimum nor Xxxxx has
personally guaranteed any obligations of the Company except certain equipment
leases as noted on Exhibit C.
(E) Existing Employment Arrangements. Except as set forth on Exhibit
K the Company has no employment agreements, labor or collective bargaining
agreements or employee benefit or welfare plans. All vacation pay, if any, due
to employees of the Company has been fully paid by the Company. No employees of
the Company are entitled to any sick pay. The Company has no retirement plans.
The Company is not aware of any strikes, job actions or other labor disputes
affecting its employees. Also set forth on Exhibit K is a true and complete list
of all employees of the Company employed in connection with the Business, which
list provides, among other things, the name, title, job description and salary
information concerning
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each employee.
(F) Claims, Litigation, Disclosure. There is no claim, litigation,
tax audit, proceeding or investigation pending or, to the Company's or Xxxxx'
knowledge, threatened against the Company or Xxxxx, with respect to the Business
or any of the Purchased Assets of the Company (including, without limitation,
any claims of infringement or actions of opposition with respect to Intellectual
Property).
(G) Taxes. Except as specifically set forth on Exhibit I (the "Tax
Liabilities"), the Company has correctly prepared and timely filed all Federal,
state and local tax returns, estimates and reports, and paid all such taxes as
and when due. For purposes of this paragraph, taxes shall mean all taxes,
charges, fees, levies or other assessments of any kind whatsoever (including,
without limitation, income, franchise, sales, use and withholding taxes). On or
before the Closing, the Company shall pay off and satisfy any of the Tax
Liabilities which are then due and payable and provide Buyer with evidence
thereof in form satisfactory to Buyer and its counsel.
(H) No Other Agreements to Sell Assets or Business. Other than as
listed on Exhibit N, neither the Company nor Xxxxx are parties to any existing
agreement which obligates the Company to sell to any other person or firm the
Purchased Assets (other than sales in the ordinary course of business), to issue
or sell any capital stock or any security convertible into or exchangeable for
capital stock of the Company or to effect any merger, consolidation or other
reorganization of the Company or to enter into any agreement with respect
thereto.
(I) Certificate of Incorporation and By-laws; Resolutions;
Incumbency Certificate. Attached hereto as Exhibit L are copies of (i) the
Company's Articles or Certificate of Incorporation or other organizational or
governing documents of the Company certified as of a date within 60 days from
the Closing Date by the Secretary of State or such other governmental office of
such State, (ii) a "good standing" or comparable certificate regarding the
Company issued as of a recent date by the Secretary of State of the State of the
Company's incorporation and each state in which the Company is qualified to do
business, showing the Company to be in good standing in each of those States (if
generally available in such States) and (iii) the By-laws of the Company, if any
(certified as of the date hereof by the secretary or other similar responsible
officer of the Company), which copies are complete and correct as of the date
hereof. Also attached as part of Exhibit L are true and correct copies of the
resolutions or minutes of the Board of Directors and shareholders of the
Company, in each case, approving this Agreement and all of the transactions
contemplated hereby. All such resolutions or minutes have not been amended,
rescinded or modified and are in full force and effect on the date hereof. In
addition, Exhibit L contains a certificate executed by the President and
Secretary of the Company (or two other responsible officers of the Company)
certifying the incumbency and sample signature of each of the officers and
executives of the Company.
(J) No Brokers. The only brokers, leasing agents, finders or similar
persons
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or entities with whom the Company or Xxxxx has made contact or had any dealings
with or entered into any agreement, arrangement or understanding with concerning
this Agreement and to whom the Company and/or Xxxxx is responsible to pay a
finder's fee, brokerage commission or similar payment to are the parties listed
in item 6 on Exhibit A and the Company and Xxxxx shall be solely responsible for
the payment of same.
(K) Environmental Compliance. (i) The Company and Xxxxx, or either
of them, have not been notified and neither of them knows or suspects that the
Company or any operator of the Company's properties is in violation, or alleged
to be in violation, or is aware that it is in violation, of any federal, state
or local judgment, decree, order, consent agreement, law (including common law),
license, rule or regulation pertaining to environmental health or safety
matters, including without limitation those arising under the Resource
Conservation and Recovery Act, as amended, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986, as amended, Water Act, as
amended, the Federal Clean Air Act, as amended, the Toxic Substances Control
Act, or any state or local analogue (hereinafter "Environmental Laws"), which
violation would have a material adverse effect on the business, assets or
financial condition of the Company.
(ii) The Company and Xxxxx, or either of them, have not
received a notice, complaint, order, directive, claim or citation from any third
party, including without limitation any federal, state or local governmental
authority, indicating or alleging that the Company or any predecessor may have
any liability or obligation under any Environmental Law.
(iii) To the extent such activity would have a material
adverse effect on the business, assets or financial condition of the Company:
(A) to the actual knowledge of the Company and Xxxxx, or either of them, no
portion of the property of the Company has been used by any person for the
generation, handling, processing, treatment, storage or disposal of Hazardous
Materials except in accordance with applicable Environmental Laws; (B) to the
actual knowledge of the Company and Xxxxx, or either of them, no underground
tank or other underground storage receptacle for Hazardous Materials,
asbestos-containing materials or polychlorinated biphenyls are located on any
portion of any location occupied by the Company each of which is listed as a
Site on Exhibit A; (C) in the course of any activities conducted by the Company
or its invitees, agents, contractors, licensees or employees in connection with
the Business of the Company, no Hazardous Materials have been generated or are
being used except in accordance with applicable Environmental Laws; and (D) to
the actual knowledge of the Company and Xxxxx, or either of them, there have
been no releases (i.e., any past or present releasing, spilling, leaking,
leaching, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, disposing or dumping) or threatened releases of Hazardous Materials
on, upon, into or from the property currently or formerly owned, operated or
leased by the Company, which releases would have a material adverse effect on
the value of any of the property or adjacent properties or the environment.
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(iv) The execution, delivery and performance of this Agreement
is not subject to any Environmental Laws which condition, restrict or prohibit
the sale, lease or other transfer of property or operations, including, without
limitation, any so-called "environmental cleanup responsibility acts" or
requirements for the transfer of permits, approvals, or licenses. There have
been no environmentally related audits, studies, reports, analyses (including
soil and groundwater analyses), or investigations of any kind performed by or at
the request of the Company or Xxxxx with respect to the currently or previously
owned, leased, or operated properties of the Company.
For purposes of this Section, "Hazardous Material" shall mean any
hazardous waste, as defined by 42 U.S.C. ' 6903(5), any hazardous substances or
wastes as defined by 42 U.S.C. ' 9601(14), any pollutant or contaminant as
defined by 42 U.S.C. ' 9601(33) or any toxic substances or wastes, oil or
hazardous materials or other chemicals or substances regulated by any public or
governmental authority.
(L) Year 2000. All hardware and software products owned by the
Company and used in the administration and the business operations of the
Company will be able to accurately process date data (including, but not limited
to calculating, comparing and sequencing) from the twentieth century (through
the year 1999) into, between and through the year 2000, including leap year
calculations, when used in accordance with the product documentation
accompanying such hardware and software products.
(M) Purchased Net Worth. The value of the Purchased Assets less the
Assumed Liabilities ("Purchased Net Worth") as of the Closing Date will not be
less than the Purchased Net Worth as of December 31, 1997 as the same is
reflected on the Company's certified financial statement for said period annexed
hereto as Exhibit H.
Section 2. Representations of the Buyer. Buyer represents and
warrants to the Company and Xxxxx as follows.
(A) Corporate Matters; No Conflict. Buyer is a wholly owned
subsidiary of Sage Networks, Inc. ("Parent"). Each of the Buyer and Parent is
duly incorporated and validly existing in good standing under the laws of the
State of Delaware, is in good standing in each other jurisdiction in which it is
doing business, except where failure to be in good standing would not have a
material adverse effect on the business of Buyer or Parent, and has the
corporate power to enter into this Agreement (and as to the Parent only, the
Employment Agreement (hereinafter defined)), to perform its obligations
hereunder (and as to the Parent only, the Employment Agreement) and to conduct
its business as currently conducted. The execution, delivery and performance of
this Agreement (and as to the Parent only, the Employment Agreement) and the
transactions contemplated hereby (and thereby) by the Buyer and Parent,
respectively, will not (a) conflict with or violate the provisions of any
applicable law, rule or order or the Buyer's or the Parent's respective
Certificate of Incorporation or by-laws, (b)
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conflict with or constitute a default under any agreement or contract by which
the Buyer or Parent is bound or (c) require the consent or approval of, or
filing with, any governmental body or third party. The execution, delivery and
performance by the Buyer of this Agreement (and Parent to the extent as set
forth in Article II, Section 2, Paragraph (E) herein) has been authorized and
approved by all requisite corporate action on the part of the Buyer and Parent.
(B) No Brokers. The only broker, leasing agent, finder or similar
person or entity with whom the Buyer or Parent has made contact or had any
dealings with or entered into any agreement, arrangement or understanding with
concerning this Agreement and to whom the Buyer and/or the Parent is responsible
to pay a finder's fee, brokerage commission or similar payment to is the party
listed in item 7 on Exhibit A and the Buyer and Parent shall be solely
responsible for the payment of same.
(C) Claims, Litigation, Disclosure. There is no claim, litigation,
tax audit, proceeding or investigation pending or threatened against the Buyer
or Parent.
(D) Certificate of Incorporation and By-laws; Resolutions;
Incumbency Certificate. Attached hereto as Exhibit O are copies of (i) the
Buyer's Articles or Certificate of Incorporation, and any amendments thereto,
certified as of a recent date by the Secretary of State of the State of
Delaware, and (ii) the By-laws of the Buyer (certified as of the date hereof by
the secretary or other similar responsible officer of the Buyer), which copies
are complete and correct as of the date hereof. Also attached as part of Exhibit
O are true and correct copies of the resolutions or minutes of the Board of
Directors and shareholders of the Buyer and the Board of Directors of the
Parent, approving this Agreement (and with respect to the Parent only, the
Employment Agreement) and all of the transactions contemplated hereby (and
thereby). All such resolutions or minutes have not been amended, rescinded or
modified and are in full force and effect on the date hereof. In addition,
Exhibit O contains certificates executed by a responsible officer of the Buyer
and Parent certifying the incumbency and sample signature of the officer
executing this Agreement on behalf of the Buyer and the Parent, respectively.
Section 3. Representations of the Company and Optimum. The following
agreements, representations and warranties are made by the Company and Optimum,
jointly and severally to the Buyer.
(A) Corporate Matters; No Conflict. Optimum is duly formed,
organized or incorporated and is validly existing in good standing under the
laws the State of Georgia, is in good standing in the State of Georgia and each
other jurisdiction in which it is doing business, except where failure to be
qualified or be in good standing would not have a material adverse effect on the
business of Optimum, and has the corporate power to enter into this Agreement,
to perform its obligations hereunder and to conduct its business as currently
conducted. The execution, delivery and performance of this Agreement and the
transactions contemplated hereby by Optimum will not (i) conflict with or
violate the provisions of any applicable law (including, without limitation, any
bulk sales laws), rule or order of Optimum's Articles or Certificate of
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Incorporation, by-laws and any other organizational or governing documents of
Optimum, (ii) conflict with or constitute a default under any agreement or
contract by which Optimum is bound or (iii) require the consent or approval of,
or filing with, any governmental body or third party. The execution, delivery
and performance by the Company and Optimum of this Agreement has been authorized
and approved by all requisite corporate action on the part of the Company and
Optimum. As of the date hereof, Optimum is the sole beneficial or record owner
of all of the issued and outstanding shares of capital stock of the Company. As
the sole shareholder of the Company, Optimum has approved this Agreement and the
consummation of the transactions contemplated hereby.
(B) Claims, Litigation, Disclosure. There is no claim, litigation,
tax audit, proceeding or investigation pending or, to Optimum's knowledge,
threatened against the Optimum.
(C) No Other Agreements to Sell Assets or Business. Optimum is not a
party to any existing agreement which obligates the Company and/or Optimum to
sell to any other person or firm the Purchased Assets (other than sales in the
ordinary course of business), to issue or sell any capital stock or any security
convertible into or exchangeable for capital stock of the Company or to effect
any merger, consolidation or other reorganization of the Company or to enter
into any agreement with respect thereto.
(D) Certificate of Incorporation and By-laws; Resolutions;
Incumbency Certificate. Attached hereto as Exhibit L-1 are copies of (i)
Optimum's Articles or Certificate of Incorporation or other organizational or
governing documents of Optimum certified as of a date within 30 days from the
Closing Date by the Secretary of State of the State of Georgia or such other
governmental office of such State, (ii) a "good standing" or comparable
certificate regarding Optimum issued as of a recent date by the Secretary of
State of the State of Georgia showing the Company to be in good standing in such
State and (iii) the By-laws of Optimum, if any (certified as of the date hereof
by the secretary or other similar responsible officer of Optimum), which copies
are complete and correct as of the date hereof. Also attached as part of Exhibit
L-1 are true and correct copies of the resolutions or minutes of the Board of
Directors and shareholders of Optimum, in each case, approving this Agreement
and all of obligations of Optimum stated herein. All such resolutions or minutes
have not been amended, rescinded or modified and are in full force and effect on
the date hereof. In addition, Exhibit L-1 contains a certificate executed by the
President and Secretary of the Optimum (or two other responsible officers of
Optimum) certifying the incumbency and sample signature of each of the officers
and executives of Optimum.
(E) No Brokers. The only broker, leasing agent, finder or similar
person or entity with whom the Company or Optimum has made contact or had any
dealings with or entered into any agreement, arrangement or understanding with
concerning this Agreement and to whom the Company is responsible to pay a
finder's fee, brokerage commission or similar payment to is the parties listed
in item 6 on Exhibit A.
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ARTICLE II.
CERTAIN COVENANTS OF THE COMPANY, XXXXX AND OPTIMUM
Section 1. Non-competition; non-solicitation.
(A) For a period ending on the second anniversary of the Closing
Date, the Company will not engage in any capacity in an Internet Web hosting
business substantially similar to or in competition with the Business that is
located or does business in any state in the United States except as an officer,
director, shareholder or employee of Buyer, Parent or their respective
affiliates. The Company and Xxxxx each understands that pursuant to this
Agreement they have received confidential and proprietary information of Buyer,
Parent and their respective affiliates, including, without limitation, customer
lists and other trade secrets. Neither the Company (including its shareholders,
officers and directors) nor Xxxxx, shall at any time, either before or after the
Closing Date, disclose to any third party any such confidential or proprietary
information of Buyer or make use of any of such information except in evaluating
entering into this Agreement. In connection with such evaluation, the Company
and Xxxxx may disclose such proprietary information to its legal and financial
consultants on a need to know basis on the condition that those consultants are
similarly prohibited from further disclosing such information as provided
herein. The Company and Xxxxx, and each of them, expressly acknowledges,
understands and agrees (i) that remedies at law for any breach of this Article
II, Section 1 will be inadequate, (ii) that the damages resulting from such
breach are not readily susceptible to measurement in monetary terms and (iii)
that Buyer and/or Parent shall be entitled to immediate injunctive relief and
may obtain temporary and permanent orders restraining any threatened or further
breach of this Article II, Section 1 by the Company and/or Xxxxx. The Company
and Xxxxx have each been advised by their respective counsel with respect to the
meaning and effect of this Article II, Section 1.
(B) For a period ending two years after the Closing Date, the
Company, unless acting with the express written consent of the Buyer or Parent,
will not directly or indirectly, solicit or endeavor to entice away:
(i) any person who was an employee, subcontractor or
consultant of the Company, the Buyer, the Parent or any of their
affiliates during the 12 months immediately preceding the date of
such solicitation, interference or endeavor,
(ii) with respect to any Internet Web hosting business
substantially similar to or in competition with the Business in
which the Company, Buyer or Parent, or any of their affiliates is or
has been engaged after the date of this Agreement, any person or
entity who was a customer or client of the Company or of the Buyer
or of the Parent (with whom the Company and Xxxxx, or either of
them, have had business contact) or any person or entity who
requested or received a proposal from Buyer, Parent, the Company and
Xxxxx, or any of them (if any of the Buyer,
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Parent, the Company or Xxxxx has had business contact with such
person or entity or expended efforts in the preparation of any such
proposal).
Section 2. Survival of Representations and Warranties; Indemnification.
(A) The representations and warranties of the parties herein
contained shall survive the closing of the purchase contemplated by this
Agreement, notwithstanding any investigation at any time made by or on behalf of
the other party, provided that any claims for indemnification in accordance with
Article II, Section 2 below with respect to any representation or warranty must
be made (and will be null and void unless made) on or before the date
twenty-four months following the Closing Date (except in the case of
representations contained in Paragraphs (B)(vi), (G), (J) and (K) of Article I,
Section 1 hereof, which must be made within six months following the expiration
of the applicable statute of limitations.
(B) The Company and Xxxxx, jointly and severally (except that Xxxxx
shall have no liability with respect to representations and warranties made in
Section 3 of Article I), hereby agree to indemnify and hold Buyer, Parent, and
their respective officers, directors, stockholders, affiliates, employees,
representatives and other agents harmless from and against any and all claims,
liabilities, losses, damages or injuries, together with costs and expenses,
including reasonable legal fees, arising out of or resulting from (i) any
breach, misrepresentation or material omission of the representations and
warranties made by the Company and Xxxxx in this Agreement, (ii) any breach in
any material respect by the Company and Xxxxx, or either of them, unless waived
in writing by the Buyer, of any covenant or agreement contained in or arising
out of this Agreement, or any other agreement delivered in connection herewith
on the Closing Date to which the Company is a party, (iii) the Business
conducted by the Company prior to the Closing Date, (iv) any and all liabilities
of the Company, other than the Assumed Liabilities, and (v) any failure by Xxxxx
or the Company to comply with any provisions of the bulk sales or similar laws
of any jurisdiction which are applicable to this Agreement or the transactions
contemplated hereby.
(C) Notwithstanding anything to the contrary set forth above or
elsewhere in this Agreement, and except with respect to claims arising from, or
damages suffered by Buyer in connection with, a breach of the representations
contained in Paragraphs (B) (vi), (G), (J) and (K) of Article I, Section 1
hereof which are addressed below, the Company, Xxxxx and Optimum in the
aggregate shall not have any obligation to indemnify Buyer for, nor pay to
Buyer, any amount for any claims or causes of action arising under this
Agreement that would cause the aggregate amounts theretofore paid or to be paid
by them to exceed the Aggregate Ceiling (as defined below), after which point
neither the Company, Xxxxx nor Optimum will have any further obligation to
indemnify Buyer. For claims made prior to the first anniversary of the Closing
Date, the Aggregate Ceiling shall be $2,500,000. For claims made on or after the
first anniversary of the Closing Date and prior to the second anniversary of the
Closing Date, the Aggregate Ceiling shall be reduced to $1,250,000 minus fifty
(50%) percent of the amounts paid
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to Buyer with respect to all claims made by Buyer in the first year following
the Closing Date, provided that if fifty (50%) of the amounts paid to Buyer on
claims made in such first year equal or exceed $1,250,000 in the aggregate, then
the Aggregate Ceiling for the second year shall be $0. A claim shall be deemed
to be made under this Agreement when written notice thereof (describing the
claim in reasonable detail and specificity) is received by the party to whom a
claim is made against. The joint and several indemnification obligations of the
Company and Xxxxx for breaches of the representations contained in Paragraphs
(B) (vi), (G), (J) and (K) of Article I, Section 1 hereof shall not exceed
$2,500,000 in the aggregate. Notwithstanding anything to the contrary contained
in this Agreement, the total monetary liability of the Company, Xxxxx and
Optimum for any claims or causes of action arising under or in connection with
this Agreement, shall not exceed $2,500,000 in the aggregate.
(D) Buyer hereby agrees to indemnify and hold the Company and Xxxxx
harmless from and against any and all claims, liabilities, losses, damages or
injuries, together with costs and expenses, including reasonable legal fees,
arising out of or resulting from (i) any breach, misrepresentation or material
omission in the representations and warranties made by the Buyer in this
Agreement, (ii) any breach in any material respect by Buyer, unless waived in
writing by the Company, of any covenant or agreement of Buyer contained in or
arising out of this Agreement, or (iii) the Business as conducted by Buyer,
after the Closing Date.
(E) By joining in the execution of this Agreement, Parent, jointly
and severally with Buyer, hereby agrees to indemnify and hold the Company and
Xxxxx harmless from and against any and all claims, liabilities, losses, damages
or injuries, together with costs and expenses, including reasonable legal fees,
arising out of or resulting from any breach, misrepresentation or material
omission in the representations and warranties made by Buyer in this Agreement
and the failure of Buyer to perform any covenant of or agreement in this
Agreement.
(F) By joining in the execution of this Agreement, Optimum, jointly
and severally with the Company, hereby agrees to indemnify and hold the Buyer
and Parent harmless from and against any and all claims, liabilities, losses,
damages or injuries, together with costs and expenses, including reasonable
legal fees, arising out of or resulting from any breach, misrepresentation or
material omission of the representations and warranties made by Optimum in
Article I, Section 3 of this Agreement.
(G) Each party shall retain its own counsel and defend itself,
subject to being reimbursed by the indemnifying party for reasonable legal fees
and expenses pursuant to Article II, Section 2 (whether such legal fees and
expenses are incurred in connection with an action among the parties hereto or
with third parties or otherwise). The indemnified party agrees to give the
indemnifying party prompt written notice of any claim, demand, action, suit,
proceeding or discovery of fact upon which the indemnified party intends to base
a claim for indemnification ("Claim") under this Section 2. With respect to any
issue involved in any such Claim, the indemnifying party shall have the sole
right to defend, settle or otherwise dispose of such Claim
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on such terms as the indemnifying party, in its reasonable judgment, shall deem
appropriate, provided that such terms do not result in any expense to the
indemnified party. In addition, the parties agree to cooperate in any defense or
settlement and to give each other full access to all information relevant
thereto.
(H) On the Closing Date, $500,000 of the Purchase Price (the
"Escrowed Amount") shall be paid to the escrow agent listed on Exhibit A (the
"Escrow Agent") to be held in escrow in accordance with the terms of an escrow
agreement to be entered into between the parties (the "Escrow Agreement") on or
prior to the Closing Date. The Escrowed Amount will be held in escrow by the
Escrow Agent as security for any indemnification obligation of the Company,
Xxxxx and Optimum, or any of them, to Buyer pursuant to the terms of Article II,
Section 2, Paragraphs (B) and/or (F) of this Agreement. The Escrowed Amount does
not constitute a limit on the liability of the Company, Xxxxx and/or Optimum to
Buyer hereunder, it being understood that indemnity claims by Buyer pursuant to
said Paragraph (B) and/or (F) shall be satisfied first by the reduction of the
Escrowed Amount until the termination of the Escrow Agreement and thereafter by
the Company and Xxxxx, jointly and severally, or the Company and Optimum,
jointly and severally, as the case may be, subject, however, to the terms of
Article II, Section 2, Paragraph (C) of this Agreement. The Escrowed Amount
shall be held by the Escrow Agent pursuant to the terms of the Escrow Agreement
which shall be agreed upon and entered into by the Escrow Agent, the Company,
Xxxxx and Buyer on or before the Closing Date. Among other things, the Escrow
Agreement will provide that on the date one year following the Closing Date, the
Escrow Agent shall pay to the Company or its designee such amount of the Escrow
Amount then remaining, if any, as has not previously been applied pursuant to
the terms of said Escrow Agreement, unless an indemnification claim by Buyer
against the Company and/or Xxxxx is then pending.
ARTICLE III
CLOSING AND DELIVERIES AT CLOSING
Section 1. Closing. The closing of the purchase and sale of the
transaction contemplated herein shall take place on April 7, 1998 (the
"Closing"), at the offices of Buyer's counsel, Xxxxxxx & Xxxxxxx P.C. located at
000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 a.m. The deliveries
described in Section 2 and 3 of this Article III will take place at the Closing.
Section 2. Deliveries by the Company and Xxxxx. On the Closing Date,
the Company and Xxxxx will deliver, or cause to be delivered, to the Buyer the
following:
(A) Such instruments of transfer or conveyance executed by the
Company, and
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Xxxxx where applicable, as Buyer may reasonably request in order to convey and
transfer to Buyer good and marketable title to all of the Purchased Assets, free
and clear of all liens, claims, encumbrances and other charges, including,
without limitation, a Xxxx of Sale.
(B) Physical delivery of all Tangible Assets by having them
available at one of the two Sites listed on Exhibit A. Any and all warranties,
manuals, instructions, and other literature in the Company's and Xxxxx', or
either of their, possession relating to the ownership or operation of the
Tangible Assets. In addition, such notices to telephone companies and others
required to transfer the Company's telephone and facsimile numbers, and domain
addresses, used in the Business to Buyer.
(C) Physical delivery of all original or certified copies of
documentation concerning the Intellectual Property in the Company's or Xxxxx'
possession, including, without limitation, registrations and applications of any
patents, trademarks or service marks, original artwork, data bases, computer
programs and software.
(D) Such instruments of assignment and assumption executed by the
Company, as the parties hereto reasonably may determine necessary to effectuate
the assignment to Buyer of the Business Agreements and assumption by Buyer of
the Assumed Liabilities.
(E) The legal opinions of counsel to the Company and Optimum, each
in a form acceptable to Buyer and its counsel.
(F) Evidence in form satisfactory to Buyer and its counsel that the
Tax Liabilities, if any, have been paid off and satisfied.
(G) The Escrow Agreement duly executed by the Company.
(H) A copy of the Certificate of Amendment duly executed by the
President and Secretary of the Company which is to be filed in the Secretary of
State's Office for the State of Georgia pursuant to Article I, Section 1,
Paragraph (B) (iv) hereof.
(I) The Company and Xxxxx shall use their reasonable best efforts to
deliver a Non-Disclosure and Intellectual Property Agreement in a form to be
provided by Buyer prior to the Closing, executed by each employee of the Company
who will be employed by Buyer or its affiliate after the Closing in form
satisfactory to Buyer.
(J) Notices of separation or similar termination notices as required
by the Georgia Department of Labor to all employees of the Company employed in
connection with Business, will be delivered to the employees promptly after the
Closing.
(K) Employment Agreement between Xxxxx and Parent (the "Employment
Agreement") executed by Xxxxx.
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(L) Keys to all entrances and possession of the Sites listed on
Exhibit A.
(M) Physical delivery of all books of accounts and records of the
Business maintained by the Company . In lieu of the foregoing, the Company may
deliver such books and records to its accountants, BSC&E, CPA's, with offices
located at 000 Xxxxxxx Xxxxx, Xxxx. 0, Xxxxxxx, Xxxxxxx 00000 (Tel:
000-000-0000), Attention: Xxxxx X. Xxxxxxx, who will act as the custodian
thereof pursuant to the terms of an agreement to be entered into by the Company,
Buyer and said custodian, which agreement shall provide, among other things,
that such books and records shall be retained by said custodian until December
31, 2001, during which time, the Buyer and Parent shall be permitted unlimited
access thereto for examination and copying, at reasonable times upon request.
(N) Such notice or notices as Buyer, the Company and Xxxxx may agree
upon in order to notify the customers included on the Customer List that the
Business has been sold to Buyer.
(O) All Cash remaining, if any, after payables and accrued expenses
set forth on Schedule D-2 are paid therefrom, said amount to be paid to Buyer
promptly after Closing, together with a written reconciliation of such Cash and
disbursements.
Section 3. Deliveries by the Buyer.
On the Closing Date, the Buyer will deliver, or cause to be
delivered, to the Company and Xxxxx the following:
(A) The Purchase Price by cash, or certified or official bank check
payable to the order of the Company, or by wire transfer of federal funds to the
account of the Company, as the Company and Xxxxx shall direct in writing on or
before the Closing Date; provided, however, Buyer may, upon written agreement of
all parties hereto, deduct from the Purchase Price and pay directly amounts due
any creditor of the Company, including, without limitation, the Tax Liabilities
(but excluding any amounts due for any of the Assumed Liabilities), in which
event, evidence of such payment shall be presented at the Closing.
(B) Such instruments of assignment and assumption executed by the
Buyer, as the parties hereto reasonably may determine necessary to effectuate
the assignment to the Buyer of the Business Agreements and the assumption by
Buyer of the Assumed Liabilities.
(C) The Escrow Agreement duly executed by the Buyer and the Escrow
Agent.
(D) The Employment Agreement executed by Parent.
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(E) The legal opinion of counsel to the Buyer and Parent, in a form
acceptable to the Company and its counsel.
(F) Payment in the form of a check made payable to the Company for
fifty (50%) of expenses paid by the Company to its landlords of the two Sites
listed on Exhibit A, or such landlords' respective attorneys or agents, in
connection with obtaining each of the Landlord's consent to the assignment to
Buyer of the respective real estate leases concerning such Sites.
(G) On or within thirty (30) days after the Closing Date, Buyer will
deliver to the Company a copy of a Certificate of Authority for the Buyer and
Parent, with proof of filing with the Secretary of State for the State of
Georgia if the same are required by law for the Buyer and/or Parent.
ARTICLE IV
OBLIGATIONS FOLLOWING CLOSING
Section 1. Further Cooperation. The Company and Xxxxx will, at any
time and from time to time after the Closing Date, execute and deliver such
further instruments of conveyance, transfer and license, and take such
additional actions as Buyer, Parent or its successor and/or assigns, may
reasonably request, to effect, consummate, confirm or evidence the transfer to
Buyer of the Purchased Assets pursuant to this Agreement.
Section 2. Transition Assistance and Adjustments.
(A) The Company shall reasonably cooperate and provide assistance to
the Buyer as shall be reasonably appropriate during the transition of the
Business and the Purchased Assets from the Company to the Buyer, or its
successors and/or assigns, after the Closing Date. All assistance shall be made
promptly when available after any request by Buyer. Buyer shall only reimburse
the Company for reasonable out-of-pocket expenses incurred in rendering such
assistance, but not for any time of any personnel.
(B) The Company and Xxxxx will reasonably cooperate with Buyer or
Parent in notifying the customers included on the Customer List that the
Business has been sold to Buyer, including, without limitation, executing any
additional notices other than those described in Section 2. Paragraph (N) of
this Article, which the Company, Xxxxx and Buyer may agree upon.
(C) The Company will forward to Buyer promptly upon receipt, any
fees it receives after the Closing Date as payment for all or part of the
Accounts Receivable or from
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customers of the Business arising from services provided or products sold either
by the Company or by Buyer or its successors and/or assigns, on, prior to or
after February 28, 1998.
(D) Between February 28, 1998 and the Closing Date, the Company and
Xxxxx warrant and represent that they have not withdrawn, expended or applied
any cash or other assets of the Company, except in the ordinary course of
operations of the Business of the Company in accordance with past practices of
the Company.
(E) Following the Closing, the Company and Xxxxx, or either of them,
or any affiliate of the Company (as defined under federal securities laws), will
not use the name "Clever Computer" or "Digital Landlord" or any confusingly
similar name to either of said trade names in any trade or business, other than
as an employee of Buyer or an affiliate of Buyer.
(G) Following the Closing, the Company shall use its best efforts
and Buyer will cooperate, in obtaining the written consent to assignment of the
equipment leases listed on the Schedule annexed to Exhibit C-3 from the
respective equipment lessors (each an "Equipment Lessor"), as well as the
written consents of MCI and Goodnet to the assignment to Buyer of their
respective service provider agreements listed in items 1 and 2 on Exhibit C-2.
If any Equipment Lessor defaults the Company under its lease, or delivers
written notice of such default to the Company, due to a failure by the Company
to obtain prior consent to the assignment of such equipment lease to Buyer, then
Buyer's sole obligation shall be to pay up to the payoff amount of the subject
equipment lease as set forth on the Schedule annexed to Exhibit C-3, less any
payments made under such lease(s) from and after the date hereof. With respect
to the failure of the Company to obtain prior approval of the assignment of the
MCI and Goodnet agreements, Buyer's sole obligation shall be to pay any
termination fee to Goodnet which the Company may incur as a result thereof,
limited to four months of service fees to Goodnet under their existing agreement
described in Exhibit C-2.
ARTICLE V
MISCELLANEOUS
Section 1. Governing Law; Jurisdiction. This Agreement shall be
governed by the laws of the State of Georgia. The parties hereto submit and
consent to the exclusive jurisdiction of the state courts of the State of
Georgia in the County of DeKalb and to the federal courts located in the State
of Georgia and County of Xxxxxx with respect to any legal actions relating to
this Agreement, or any other agreements delivered in connection herewith,
between the Company and Xxxxx, or either of them, on the one hand, and the Buyer
and/or Parent, on the other hand, and any transactions contemplated thereby.
Section 2. Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
Section 3. Confidentiality. The Company and Xxxxx, and each of them,
on the one hand, and the Buyer, on the other hand, each agree not to disclose or
use any information acquired by it about the other party during the course of
the negotiations of this Agreement and the transactions to which it relates
which is confidential in nature or not otherwise generally available to the
public without the prior written consent of such other party unless required to
do so by applicable law or by order of a court of competent jurisdiction.
Section 4. Amendments. This Agreement supersedes any prior contracts
relating to the subject matter hereof between the Buyer, Parent, the Company and
Xxxxx. This Agreement cannot be changed, modified or amended and no provision or
requirement hereof may be waived without the consent in writing of the parties
hereto.
Section 5. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect. Each provision of this Agreement shall be deemed to be the agreement of
the parties hereto to the full extent that the power to enter into such
provisions shall have been conferred on the parties by law.
Section 6. Benefit; Assignment. This Agreement is binding upon and
inures to the benefit of the parties, their successors and permitted assigns.
This Agreement may not be assigned or the duties of the parties hereunder
delegated to others without the prior written consent of all parties hereto,
except that Buyer may assign its rights, duties and obligations hereunder to
Parent or an affiliate of Buyer or Parent without the Company's and Xxxxx'
consent.
Section 7. Construction. All exhibits annexed hereto are hereby
incorporated herein by reference and made a part of this Agreement. Whenever
used in this Agreement and the context so requires, the singular shall include
the plural and the plural shall include the singular.
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Section 8. Imputed Knowledge. Anywhere in this Agreement where it
refers to the "knowledge of" the Company, or words of similar import, the
knowledge of Xxxxx shall be imputed to be the knowledge of the Company. Anywhere
in this Agreement where it refers to the "knowledge of" the Optimum, or words of
similar import, the knowledge of Xxxx Xxx-Xxxxxxx, Optimum's sole shareholder,
officer and director, shall be imputed to be the knowledge of the Optimum.
Anywhere in this Agreement where it refers to the "knowledge of" the Buyer or
the Parent, or words of similar import, the knowledge of Xxxxxxx X. Xxxxxxx
shall be imputed to be the knowledge of the Buyer and the Parent, respectively.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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This signature page is attached to and made a part of that certain Asset
Purchase Agreement made as of April 1, 1998 between the parties signing below.
IN WITNESSETH WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
SAGE NETWORKS ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx, President
CLEVER COMPUTERS, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Xxxxxx X. Xxxxx, President
/s/ Xxxxxx X. Xxxxx
----------------------------------
Xxxxxx X. Xxxxx
AS TO ARTICLE II, SECTION 2
PARAGRAPH (E) ONLY:
SAGE NETWORKS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxx, Co-Chairman
AS TO ARTICLE II, SECTION 2
PARAGRAPH (F) ONLY:
OPTIMUM REALTY CORP.
By: /s/ Xxxx Xxx-Xxxxxxx
---------------------------
Xxxx Xxx-Xxxxxxx, President
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DESCRIPTION OF EXHIBITS:
Exhibit A - Basic Provisions
Exhibit B - Ownership of Capital Stock of the Company; Description of Capital
Stock; Officers; Directors; Trade Names
Exhibit C-1 - Forms of Business Agreements with Customers
Exhibit C-2 - Summary of Oral Business Agreements and Vendor/Service Provider
Agreements and List of Suppliers
Exhibit C-3 - Leases
Exhibit C-4 - Claims of Disputes Under Business Agreements
Exhibit C-5 - Consents to Transfer or Assign Not Obtained
Exhibit D-1 - Aged Accounts Receivable
Exhibit D-2 - Cash and Schedule of Expenses To Be Paid Therefrom
Exhibit E - Tangible Assets
Exhibit F - Intellectual Property
Exhibit G - Customer Terminations
Exhibit H - Financial Statements
Exhibit I - Bad Debts and Tax Liabilities of the Company
Exhibit J - Assumed Liabilities
Exhibit K - Existing Employment Agreements, Labor or Collective Bargaining
Agreements, Employee Benefit or Welfare Plans, Description of
Employees
Exhibit L - Organizational/Governing Documents of the Company,
Minutes/Resolutions, and Incumbency/Signature Certificates
Exhibit L-1 - Organizational/Governing Documents of Optimum, Minutes/Resolutions,
and Incumbency/Signature Certificates
Exhibit M - Excluded Assets
Exhibit N - Liens Affecting or Other Agreements Relating to Purchased Assets
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Exhibit O - Organizational/Governing Documents of the Buyer and Parent,
Minutes/Resolutions, and Incumbency/Signature Certificates
In accordance with Item 601(b)(2) of Regulation S-K all exhibits other than
Exhibit A have been omitted. The Company hereby agrees to furnish supplementally
a copy of any omitted exhibit to the Commission upon request.
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EXHIBIT A
TO
ASSET PURCHASE AGREEMENT
BETWEEN
SAGE NETWORKS ACQUISITION CORP.
AND
CLEVER COMPUTERS, INC.
BASIC PROVISIONS
1. Name of BUYER: Sage Networks Acquisition Corp.
2. Name of COMPANY: Clever Computers, Inc.
(a) Names, addresses and stock ownership of SHAREHOLDER of COMPANY:
Name and Address Number of Shares (Type)
---------------- -----------------------
Optimum Realty Corp.
0000 Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxx 000
Xxxxxxx, XX 00000 1,000
Total Outstanding Shares 1,000
(b) STATE OF INCORPORATION of COMPANY: Georgia
(c) AUTHORIZED OFFICERS of the COMPANY:
Xxxxxx X. Xxxxx, President
Trezevant X. Xxxxx, Secretary
(d) Address of each SITE from which the COMPANY conducts the Business:
00 Xxxxxxxxx Xxxx Xxxxx 56 Marietta Street
Building 18, Suite 111 Suite 20
Atlanta, GA 30341 Atlanta, GA
3. [INTENTIONALLY DELETED]
4. RESIDENCE ADDRESS of XXXXXX X. XXXXX:
25
EXHIBIT A (Cont'd)
5. PURCHASE PRICE: $2,500,000.00
6. SELLER AND SELLER'S REPRESENTATIVES' BROKERS:
Santa Fe Capital Group, Inc. and Broadway Realty Co.
7. BUYER'S BROKER: Am-Tech Associates, Inc.
8. ESCROW AGENT: Chicago Title Insurance Company
