Exhibit 10.16
Skypath Networks, Inc.
SB-2 Amendment 1
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is made as of January 16,
2004 (the "Effective Date"), by and between Sherwood Partners, Inc., a
California corporation, solely as Assignee for the Benefit of Creditors each of
InfoClarus, Inc. and iConverse, Inc. (the "Seller"), with principal offices
located at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx, Xxxxxxxxxx 00000, and
[Skypath Networks, Inc., a Delaware corporation (the "Buyer"), with principal
offices located at 000 Xxxxx Xxxxxx XXXX. Xxxxx 000X Xxxxxxx, XX 00000.
RECITALS
A. By resolution of the board of directors (the "Board") each of
InfoClarus, Inc. and iConverse, Inc., each a Delaware corporation (each
collectively referred to herein as the "Assignor"), as memorialized in the duly
executed minutes, Assignor has transferred ownership of all its right, title and
interest in and to tangible and intangible assets (the "Assets") to Seller, and
in so doing has also designated Seller to act, pursuant to Delaware law, as the
Assignee for the Benefit of Creditors of Assignor. The General Assignment
agreement (the "General Assignment") between Assignor and Seller, as assignee,
is attached hereto as Exhibit A.
B. Seller and Buyer have identified a subset of the Assets that Buyer
desires to purchase from Seller (the "Required Assets"). The Required Assets are
listed in Section 1.2 below. After consummation of the Closing contemplated
under this Agreement, Seller will liquidate any remaining Assets that are not
Required Assets (the "Remaining Assets"), and will undertake the winding down of
Assignor, which shall ultimately include, but shall not be limited to, the
distribution of net funds, after payment of fees and costs associated with the
liquidation and winding down, to Assignor's creditors, which are generated from
the sale of the Assets.
C. Seller desires to sell to Buyer, and Buyer desires to purchase from
Seller, the Required Assets, on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants hereinafter set forth, Buyer and Seller hereby agree as follows:
1. PURCHASE AND SALE OF REQUIRED ASSETS.
1.1 Agreement to Sell and Purchase Required Assets. Subject to the
terms and conditions of this Agreement, and in reliance on the
representations, warranties amid covenants set forth in this Agreement,
Seller agrees to sell, assign, transfer and convey to Buyer at the Closing
(as defined in Section 2.2 below), and Buyer agrees to purchase and acquire
from Seller at the Closing, all of Seller's right, title and interest in
and to all of the Required Assets. The Required Assets will be sold,
assigned, transferred and conveyed to Buyer (subject to Section 1.3) on the
Closing Date "as is" and "where is", with no representations or warranties
other than those specifically set forth below, and subject to any and all
E-29
pledges, liens, licenses, rights of possession, security interests,
restrictions, encumbrances, charges, title retention, conditional sale or
other security arrangements of any nature whatsoever (collectively,
"Encumbrances").
1.2 Required Assets Defined. As used in this Agreement, the term
"Required Assets" means, collectively, Seller's tight, title and interest
in and to the assets listed in Exhibit B attached hereto, provided,
however, that the Required Assets shall not, under any circumstances,
include Seller's or Assignor's (1) cash, (ii) accounts receivable, (iii)
claims or preference or fraudulent conveyance recoveries under applicable
law, (iv) state or federal tax refunds, (v) insurance refunds or
recoveries, (vi) utility or leasehold security deposits, and (vii) any
physical assets, including computer equipment except as specifically
detailed in Exhibit B. Buyer shall promptly execute and deliver to Seller
any and all such further assignments, endorsements and other documents as
Seller may reasonably request for the purpose of effectuating the terms and
conditions of this Section,
1.3 Asset Transfer; Passage of Title; Delivery.
(a) Title Passage. Except as otherwise provided in this Section,
upon the Closing, title to all of the Required Assets shall pass to
Buyer; and Seller shall make available to Buyer possession of all of
the Required Assets as provided in subsection 1.3(b), and shall
further, upon Buyer's request, execute assignments, conveyances and/or
bills of sale reasonably requested to convey to Buyer title to all the
Required Assets, subject to the Encumbrances, in accordance with
Section 1.1 of this Agreement, as well as such other instruments of
conveyance as counsel for Buyer may reasonably deem necessary to
effect or evidence the transfers contemplated hereby. Any such
additional documents shall be prepared by and all related costs borne
exclusively by Buyer.
(b) Delivery of Required Assets. On the Closing Date (as defined
in Section 2.2), Seller shall make available to Buyer possession of'
the Required Assets, provided however, that the expenses of
retrieving, removing and transferring the Required Assets shall be
borne exclusively by Buyer.
(c) Retention of Documents. As Assignee, Seller is responsible
for maintaining business records during the assignment process and,
among other things, will have to prepare and file final tax returns.
To the extent Buyer requires business records of Assignor that Seller
requires to administer the assignment estate, Buyer shall, at its own
expense, arrange to obtain copies of such records from Seller.
2. PURCHASE PRICE; PAYMENTS.
2.1 Purchase Price. In consideration of the sale, transfer,
conveyance and assignment of all the Required Assets to Buyer at the
Closing, Buyer shall, as of the Closing, assume only those
liabilities, if any, expressly set forth as Assumed Liabilities in
E-30
Section 3.1 of this Agreement and shall pay by wire transfer
$300,000.00 (the "Purchase Price") to the Seller at the Closing.
2.2 Closing. The consummation of the purchase and sale of the
Required Assets contemplated hereby will take place at a closing to be
held at the offices of Sulmeyer, Kupetz, Baurnamj & Xxxxxxx, a
professional corporation, 000 Xxxxx Xxxx Xxxxxx, Thirty Xxxxx Xxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx 00000 (the "Closing"), on. January 23, 2004
(the "Closing Date"), or at such other time or date, and at such
place, or by such other means of exchanging documents, as may be
agreed to by the parties hereto. If the Closing does not occur on or
prior to January 30, 2004, or such later date upon which Buyer and
Seller may agree in writing, this Agreement shall terminate upon
written notice of termination given by either party hereto that is not
in default of its obligations hereunder, and thereupon this Agreement
shall become null and void and no party hereto will have any further
tights or obligations hereunder, except that Sections 6.1 and 7.3
shall survive such termination.
3. OBLIGATIONS ASSUMED.
3.1 Liabilities. Buyer agrees, upon consummation of, and
effective as of, the Closing, to assume those (and only those)
liabilities of Seller and of Assignor expressly listed below in. this
Section 3.1 (collectively, the "Assumed Liabilities"): NONE
3.2 Liabilities and Obligations Not Assumed. Except as expressly
set forth in Section 3.1 above, Buyer shall not assume or become
obligated in any way to pay any liabilities, debts or obligations of
Seller or of Assignor whatsoever, including but not limited to any
liabilities or obligations now or hereafter arising from Assignor's
business activities that took place prior to the Closing or any
liabilities arising out of or connected to the liquidation and winding
down of Assignor's business. All liabilities, debts and obligations of
Seller and of Assignor not expressly assumed by Buyer hereunder are
hereinafter referred to as the "Excluded Liabilities."
3.3 No Obligations to Third Parties. The execution and delivery
of this Agreement shall not be deemed to confer any rights upon any
person or entity other than the parties hereto, or make any person or
entity a third party beneficiary of this Agreement, or to obligate
either party to any person or entity other than the parties to this
Agreement. Assumption by Buyer of any liabilities or obligations of
Seller under Section 3.1 shall in no way expand the rights or remedies
of third parties against Buyer as compared to the rights and remedies
such parties would have against Seller if the Closing were not
consummated.
4. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer hereby represents and warrants to Seller that all the following
statements are true, accurate and correct:
4.1 Due Organization. Buyer is a corporation duly organized, validly
existing, and in good standing under the laws of Delaware. Buyer has all
E-31
necessary power and authority to enter into this Agreement and all other
documents that Buyer is required to execute and deliver hereunder, and
holds or will timely hold all permits, licenses, orders and approvals of
all federal, state and. local governmental or regulatory bodies necessary
and required therefore.
4.2 Power and Authority; No Default. Buyer has all requisite power and
authority to enter into and deliver this Agreement and to perform its
obligations hereunder, The signing, delivery and performance by Buyer of
this Agreement, and the consummation of all the transactions contemplated
hereby, have been duly and validly authorized by Buyer This Agreement, when
signed and delivered by Buyer, will be duly and validly executed and
delivered and will be the valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms, subject to the laws
relating to bankruptcy, insolvency and relief of debtors, and rules and
laws governing specific performance, injunctions, relief and other
equitable remedies.
4.3 Authorization for this Agreement. No authorization, approval,
consent of; or filing with any governmental body, department, bureau,
agency, public board, authority or other third party is required for the
consummation by Buyer of the transactions contemplated by this Agreement.
4.4 Litigation. To the best of Buyer's knowledge, there is no
litigation, suit, action, arbitration, inquiry, investigation or proceeding
pending or, to the knowledge of Buyer, threatened, before any court, agency
or other governmental body against Buyer (or any corporation or entity
affiliated with Buyer) which seeks to enjoin or prohibit or otherwise
prevent the transactions contemplated hereby.
5. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller represents and warrants to Buyer that all of the following
statements are true, accurate and correct:
5.1 Corporate Organization. Seller is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
California.
5.2 Power and Authority; No Default upon Transfer. As Assignee, Seller
has all requisite power and authority to enter into and deliver this
Agreement and to perform its obligations hereunder and under the General
Assignment. The signing, delivery and performance by Seller of this
Agreement, and the consummation of all the transactions contemplated
hereby, have been duly and validly authorized by Seller. To the best of
Seller's knowledge, the General Assignment was duly authorized by
Assignor's Board and is a valid agreement binding on the Assignor and
Seller. This Agreement, when signed and delivered by Seller, will be duly
and validly executed and delivered and will be the valid and binding
obligation of Seller, enforceable against Seller, as Assignee, in
accordance with its terms as governed by applicable law, regulations and
rules. Neither the signing and delivery of this Agreement by Seller, nor
E-32
the performance by Seller of its obligations under this Agreement, will (i)
violate Seller's Articles of Incorporation or Bylaws, or (ii) to the best
of Seller's knowledge, violate any law, statute, ru]e or regulation or
order, judgment, injunction or decree of any court, administrative agency
or government body applicable to Seller.
5.3 Title. To the best of Seller's knowledge, after reasonable inquiry
consisting of a competent assessment of a national IJCC search, Seller, as
Assignee, has good and marketable title to all of the Required Assets.
Seller sells, assigns, transfers and conveys the Required Assets to Buyer
"as is" arid "where is", with no representations or warranties as to
merchantability, fitness or use, and the Required Assets shall be subject
to the Encumbrances.
(a) AS-IS SALE; DISCLAIMERS; RELEASE. IT IS UNDERSTOOD AND AGREED
THAT, UNLESS EXPRESSLY STATED HEREIN, SELLER IS NOT MAKING AND HAS NOT
AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR
CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE REQUIRED ASSETS,
INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO
MERCHANTAL-BILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(b) BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL
SELL AND CONVEY TO BUYER AND BUYER SHALL ACCEPT THE PROPERTY "AS IS,
WHERE IS, WITHALL FAULTS." BUYER HAS NOT RELIED AND WILL NOT RELY ON,
AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED
WARRANTIES, GUARANTEES, STATEMENTS, REPRESENTATIONS OR INFORMATION
PERTAINING TO THE REQUIRED ASSETS OR RELATING THERETO MADE OR
J~1JRNISRED BY SELLER OR ITS REPRESENTATIVES, TO WHOMEVER MADE OR
GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, EXCEPT AS
EXPRESSLY STATED HEREIN. BUYER ALSO ACKNOWLEDGES THAT THE PURCHASE
PRICE REFLECTS AND TAKES INTO ACCOUNT THAT THE REQUIRED ASSETS ARE
BEING SOLD "AS IS, WHERE IS, WITH ALL FAULTS."
(c) BUYER ACKNOWLEDGES TO SELLER THAT BUYER WILL HAVE THE
OPPORTUNITY TO CONDUCT PRIOR TO CLOSING SUCH INSPECTIONS AND
INVESTIGATIONS OF THE REQUIRED ASSETS AS BUYER DEEMS NECESSARY OR
DESIRABLE TO SATISFY ITSELF AS TO THE REQUIRED ASSETS AND ITS
ACQUISITION THEREOF. BUYER FURTHER WARRANTS AND REPRESENTS TO SELLER
THAT BUYER WILL RELY SOLELY ON ITS OWN REVIEW AND OTHER INSPECTIONS
E-33
AND INVESTIGATIONS IN THIS TRANSACTION AND NOT UPON THE INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER, OR ITS AGENTS, EMPLOYEES OR
REPRESENTATIVES WITH RESPECT THERETO. BUYER HEREBY ASSUMES THE RISK
THAT ADVERSE MATTERS INCLUDING, BUT NOT LIMITED TO, LATENT OR PATENT
DEFECTS, ADVERSE PHYSICAL OR OTHER ADVERSE MATTERS, MAY NOT HAVE BEEN
REVEALED BY BUYER'S REVIEW AND INSPECTIONS AND INVESTIGATIONS.
(d) BUYER ACKNOWLEDGES THAT SOME ASSETS DESCRIBED IN EXIUBIT B
MAY CONTAIN THIRD-PARTY INTELLECTUAL PROPERTY THAT MAY HAVE BEEN
LICENSED BY ASSIGNOR OR OTHERWISE ACQUIRED BY ASSIGNOR. BUYER
UNDERSTANDS THAT SELLER IS UNABLE TO TRANSFER INTELLECTUAL PROPERTY
BELONGING TO A THIRD-PARTY WITHOUT THE EXPRESS WRITTEN CONSENT OF THAT
PARTY, WHICH WILL NOT BE OBTAINED OR SOUGHT BY SELLER AS A PART OF
THIS AGREEMENT. BUYER SHALL ACCEPT FULL RESPONSIBILITY FOR
COMMUNICATING WITH THIRD-PARTIES WHOSE INTELLECTUAL PROPERTY MAY BE
INCLUDED IN TILE REQUIRED ASSETS TRANSFERRED HEREBY AND SHALL PAY ANY
AND ALL LICENSING OR OTHER FEES, COSTS, EXPENSES OR CHARGES THAT MAY
BE ASSOCIATED WITH USING SAID ASSETS.
5.4 Litigation. To the best of Seller's knowledge, there is no claim,
action, arbitration, inquiry, investigation, suit or proceeding pending or,
to Seller's knowledge, threatened, against Seller or Assignor that might
affect in any way any Required Asset or the transaction contemplated by
this Agreement, nor is Seller aware or have grounds to know of any
reasonable basis therefore. To the best of Seller's knowledge, there are no
judgments, decrees, injunctions or orders of any court, governmental body,
department, commission, agency, instrumentality or arbitrator against
Seller or Assignor affecting the Required Assets.
5.5 Authorization for this Agreement. To the best of Seller's
knowledge, no authorization, approval, consent of, or fling with any
governmental body, department, bureau, agency, public board, authority or
other third party is required for the consummation by Seller of the
transactions contemplated by this Agreement.
5.6 Assignee. All rights of Seller with regard to the ownership and
possession of the Required Assets are rights held as Assignee pursuant to
the General Assignment made by Assignor. Pursuant to the General
Assignment, Assignor has informed Seller that it transferred all of
Assignor's right, title and interest in and to the Required Assets to
Seller. Pursuant to this Agreement, Seller, solely in its capacity as
Assignee, sells, assigns, and transfers all of its right, title and
interest in and to the Required Assets to Buyer.
6. COVENANTS OF BUYER.
E-34
6.1 Confidential Information. All copies, if any, of financial
information, pricing, marketing plans, business plans, and other
confidential and/or proprietary information of Assignor and/or Seller
disclosed to Buyer in the course of negotiating the transaction
contemplated by this Agreement, including the terms of this Agreement
("Seller Confidential Information"), will be held in confidence and not
used or disclosed by Buyer or any of its employees, affiliates or
stockholders, except to any public or private lender, for a period of six
(6) months from the Effective Date and will be promptly destroyed by Buyer
or returned to Seller, upon Seller's written request to Buyer; provided,
however that from and after the Closing, the foregoing covenant shall not
be applicable to any Seller Confidential Information included in the
Required Assets. It is agreed that Seller Confidential Information will not
include information that: (a) is proven to have been known to Buyer prior
to receipt of such information from Seller; (b) is disclosed by a third
party having the legal right to disclose such information and who owes no
obligation of confidence to Seller; (c) is now, or later becomes part of
the general public knowledge or literature, other than as a result of a
breach of this Agreement by Buyer; or (d) is independently developed by
Buyer without the use of any Seller Confidential Information.
6.2 Press Releases and Public Announcements. Buyer shall not issue any
press release or make any disclosure or public announcement relating to the
financial terms of this Agreement or identifying Seller without the prior
written approval of Seller, which shall not be unreasonably withheld.
Notwithstanding the foregoing, Buyer may disclose certain information
relating to this Agreement if required to do so by law or applicable
governmental regulation.
6.3 Taxes and any Other Charges Related to the Sale. Buyer agrees to
promptly pay all sales, transfer, use or other taxes, duties, claims or
charges imposed on and/or related to the sale of the Required Assets to
Seller under this Agreement by any tax authority or other governmental
agency and to defend, indemnify and hold Seller harmless from and against
any such taxes, duties, claims, or charges for payment thereof by any tax
authority or other governmental agency
6.4 Survival of Covenants. The covenants set forth in Sections 6.1,
6.2, 6.3, and this Section 6.4 shall survive the Closing. The covenants set
forth in Section 6.1 above shall, in addition, survive the termination of
this Agreement for any reason.
7. COVENANTS OF SELLER.
Seller covenants and agrees with Buyer as follows:
7.1 Further Assurances. From and after the Closing Date, Seller shall
cooperate with Buyer and promptly sign and deliver to Buyer any and such
additional documents, instruments, endorsements and related information and
take actions as Buyer may reasonably request for the purpose of effecting
the transfer of Seller's and/or Assignor's title to the Required Assets to
E-35
Buyer, and/or carrying out the provisions of this Agreement, provided,
however, that Seller shall be reimbursed for its reasonable costs and
expenses incurred in providing such documents, instruments, endorsements or
related information, which additional documents, instruments, endorsements
or related information shall be prepared solely by Buyer.
7.2 Press Releases and Public Announcements. Seller shall not issue
any press release or make any disclosure or public announcement relating to
the financial terms of this Agreement or Identify the Buyer without the
prior written approval of the Buyer, which shall not be unreasonably
withheld. Notwithstanding the foregoing, Seller may disclose certain
information relating to this Agreement if required to do so by law or
applicable governmental regulation or otherwise in connection with the
administration of the General Assignment or in connection with any related
litigation and Seller shall be permitted, at its discretion, to prepare and
distribute a tombstone regarding the General Assignment and the Agreement
without mentioning the identity of Buyer or the terms of the Agreement.
7.3 Survival of Covenants. Each of the covenants set forth in Sections
7.1, 7.2, and this Section 7.3 shall survive the Closing.
8. CONDITIONS TO CLOSING.
8.1 Conditions to Buyer's Obligations, The obligations of Buyer
hereunder shall be subject to the satisfaction and fulfillment of each of
the following conditions, except as Buyer may expressly waive the same in
writing:
(a) Accuracy of Representations and Warranties on Closing Date.
The representations arid warranties made herein by Seller shall be
true and correct in all material respects, and not misleading in any
material respect, on and as of the date given, arid on arid as of the
Closing Date with the same force and effect as though such
representations and warranties were made on and as of the Closing
Date.
(b) Compliance. As of the Closing Date, Seller shall have
complied in all material respects with, and shall have fully
performed, in all material respects, all conditions, covenants and
obligations of this Agreement imposed on Seller arid required to be
performed or complied with by Seller at, or prior to, the Closing
Date.
(c) Delivery of Required Assets. Seller shall have made the
Required Assets available to Buyer as set forth in Section 1.3 above.
(d) Delivery of Closing Documents. Seller shall have delivered,
arid Buyer shall have received, the documents described in Section 9.2
hereof.
8.2 Conditions to Seller's Obligations. The obligations of Seller
hereunder shall be subject to the satisfaction and fulfillment of each of
E-36
the following conditions, except as Seller may expressly waive the same in
writing:
(a) Accuracy of Representations and Warranties on Closing Date.
The representations and warranties made herein by Buyer in Section 4
hereof shall be true and correct in all material respects, and not
misleading in any material respect, on and as of the date given, and
on and as of the Closing Date with the same force and effect as though
such representations and warranties were made on and as of the Closing
Date.
(b) Compliance. Buyer shall have complied in all material
respects with, and shall have fully performed, the terms, conditions,
covenants and obligations of this Agreement imposed thereon to be
performed or complied with by Buyer at, or prior to, the Closing Date.
(c) Payment. Buyer shall have transmitted by wire transfer arid
Seller shall have received payment of the Purchase Price.
9. CLOSING OBLIGATIONS.
9.1 Buyer's Closing Obligations. At the Closing, Buyer shall deliver
to Seller the following:
(a) Payment of $300,000.00 by wire transfer to Seller; and
(b) The Assignment and Xxxx of Sale Agreement, in the form
attached hereto as Exhibit C, signed by an authorized officer of Buyer
on behalf of Buyer.
9.2 Seller's Closing Obligations. At the Closing, Seller shall make
available to Buyer the following:
(a) The Required Assets in accordance with Section 1.3; and
(b) The Assignment and Xxxx of Sale Agreement, in the form
attached hereto as Exhibit C, signed by an authorized officer of
Seller on behalf of Seller.
10. SURVIVAL OF WARRANTIES AND INDEMNIFICATION.
10.1 Survival of Warranties. All representations and warranties made
by Seller or Buyer herein, or in any certificate, schedule or exhibit
delivered pursuant hereto, shall survive the Closing for a period of one
(1) year after the Closing.
10.2 Indemnified Losses. For the purpose of this Section 10.2 and when
used elsewhere in this agreement, "Loss" shall mean and include any and all
liability, loss, damage, claim, expense, cost, fine, fee, penalty,
obligation or injury including, without limitation, those resulting from
any and all actions, suits, proceedings, demands, assessments, judgments,
award or arbitration, together with reasonable costs and expenses including
E-37
the reasonable attorneys' fees and other legal costs and expenses relating
thereto.
10.3 No Indemnification by Seller. Seller is selling to Buyer the
Required Assets defined in this Agreement "as is" and "where is", with no
representations or warranties as to merchantability, fitness or usability
or in any other regard (except for the limited representations and
warranties specifically set forth above) and does not agree to defend,
indemnify or hold harmless Buyer, any parent, subsidiary or affiliate of
Buyer or any director, officer, employee, stockholder, agent or attorney of
Buyer or of any parent, subsidiary or affiliate of Buyer from and against
and in respect of any Loss which arises out of or results from the
transaction described herein.
10.4 Indemnification by Buyer. Subject to the provisions and
limitations set forth in this Section 10. Buyer agrees to defend, indemnify
and bold harmless Seller, any parent, subsidiary or affiliate of Seller and
any director, officer, employee, stockholder, agent or attorney of Seller
or of any parent, subsidiary or affiliate of Seller (collectively, the
"Seller Indemnities") from and against and in respect of any Loss which
arises out of or results from:
(a) any breach by Buyer of any covenant, or the inaccuracy or
untruth of any representation or warranty of Buyer made herein; or
(b) the use of the Required Assets after the Closing;
provided, however, that nothing in this Section 10.4 shall impose on
Buyer any duty to indemnify Seller for any Excluded Liabilities.
10.5 Period for Making Claims. A claim for indemnification by Seller
under this Section 10 may be brought, if at all, at any time after the
Closing Date, with respect to any claim or claims for indemnification under
this Section 10, provided, however, that any claim under Section 10.4(a)
with respect to the inaccuracy or untruth of any representation or warranty
must be brought, if at all, prior to the time such representation or
warranty expires pursuant to Section 10.1.
11. MISCELLANEOUS.
11.1 Expenses. Each of the parties hereto shall bear its own expenses
(including without limitation attorneys' fees) in connection with the
negotiation and consummation of the transaction contemplated hereby.
11.2 Notices. Any notice required or permitted to be given under this
Agreement shall be in writing arid shall be personally or sent by certified
or registered United States mail, postage prepaid, or sent by nationally
recognized overnight express courier and addressed as fol1ows:
E-38
(a) If to Seller:
Sherwood Partners, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Email: xxx@xxxxxxx.xxx
Attention: Xxxxxxx Xxxxx
With copy to:
Xxxxxxxx Xxxxxx
000 X. Xxxx Xxxxxx, Thirty Xxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Tel.: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxx@xxxxxxxxxxx.xxx
Attention: Xxxxx X. Xxxxxx
(b) If to Buyer:
Skypath Networks, Tnc.
000 Xxxxx Xxxxxx XXXX.
Xxxxx 000X
Tel:insert
Fax:(401) 921 - 0700
Email: xxxxxxx@xxxxxxx.xxx
Attention: Xxxxx X. Xxxxxx
11.3 Entire Agreement. This Asset Purchase Agreement, the Exhibits
hereto (which are incorporated herein by reference) and any agreements to
be executed and delivered in connection herewith, together constitute the
entire agreement and understanding between the parties arid there are no
agreements or commitments with respect to the transactions contemplated
herein except as set forth in this Agreement. This Agreement supersedes any
prior offer, agreement or understanding between the parties with respect to
the transactions contemplated hereby.
11.4 Amendment; Waiver. Any term or provision of this Agreement may be
amended only by a writing signed by Seller and. Buyer. The observance of
any term or provision of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) only by
a writing signed by the party to be bound by such waiver. No waiver by a
party of any breach of this Agreement will be deemed to constitute a waiver
of any other breach or any succeeding breach.
11.5 No Third Party Beneficiaries. Nothing expressed or implied in
this Agreement is intended, or shall be construed, to confer upon or to
E-39
give any person, firm or corporation, other than the parties hereto, any
rights or remedies under or by reason of this Agreement.
11.6 Execution in Counterparts. For the convenience of the parties,
this Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one
and the same instrument.
11.7 Benefit and Burden. This Agreement shall be binding upon, shall
inure to the benefit of and be enforceable by and against, the parties
hereto and their respective successors and permitted assigns.
11.8 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of California (excluding
application of any choice of law doctrines that would make applicable the
law of any other state or jurisdiction) and, where appropriate, applicable
federal law.
11.9 Severability. If any provision of this Agreement is for any
reason and to any extent deemed to be invalid or unenforceable, then such
provision shall not be voided but rather shall be enforced to the maximum
extent then permissible under then applicable law and so as to reasonably
effect the intent of the parties hereto, arid the remainder of this
Agreement will remain in full force and effect.
11.10 Attorneys' Fees. Should a suit or arbitration be brought to
enforce or interpret any provision of this Agreement, the prevai1ing party
shall be entitled to recover reasonable attorneys' fees to be fixed in
amount by the Court or the Arbitrator(s) (including without limitation
costs, expenses and. fees on any appeal). The prevailing party will be
entitled to recover its costs of suit or arbitration, as applicable,
regardless of whether such suit or arbitration proceeds to a final judgment
or award.
IN WITNESS WHEREOF, Buyer and Seller executed and delivered this Asset
Purchase Agreement by their duly authorized representatives as the Effective
Date.
SELLER: BUYER:
Sherwood Partners, Inc., Skypath Networks, Inc.
Solely as Assignee for the Benefit 000 Xxxxx Xxxxxx XXXX
of Creditors each of InfoClatus, Inc. Suite 150A.
and iConverse, Inc. Xxxxxxx, XX 00000
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Xxxxxx
President Chief Operations Officer
E-40
