Exhibit 10.9
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (this "AGREEMENT") is dated as of February
24, 1999, by and between POSITIVE ASSET REMARKETING, INC., a Massachusetts
corporation ("PAR") and WORLD WIDE WEB NETWORX CORPORATION, a Delaware
corporation ("WWWX").
RECITALS
A. PAR holds certain rights to proprietary information including a
proprietary banking and trade operation that establishes definitive on-line
electronic trading and banking functions utilizing cash, trade credits and/or a
combination of cash and trade credits as methods OF payment (THE ATM CENTER), as
well as proven methodologies for the utilization of the on-line electronic
trading and banking functions in both a general commercial application over the
Internet and within a closed corporate environment over an Intranet.
B. PAR desires to transfer 100% of its interest in the ATM Center to
WWWX, and WWWX desires to acquire the ATM Center, on the terms and SUBJECT TO
the conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants herein and for
other good and valuable consideration, the receipt and sufficiency OF which is
hereby acknowledged, and intending to be legally bound hereby, the parties agree
as follows:
SECTION 1. PURCHASE AND SALE
1.1 AGREEMENT TO SELL. At the Closing (hereinafter defined), PAR shall
sell, grant, convey, transfer, assign and deliver to WWWX, upon the terms and
subject to the conditions of this Agreement, free and clear of all liens,
encumbrances and charges of any kind, 100% of Par's interest in the ATM Center.
As used herein, the "ATM Center" shall include all of Par's right, title and
interest in and to the ATM Center, whether tangible, intangible, real, personal
or mixed, wherever located, including but not limited to diagrams, flow charts,
conceptual and methodological presentations, trade secrets, customer lists,
goodwill, intellectual property, contracts, books and records, telephone
numbers, licenses, permits, software, hardware and disks, data files (whether on
disks or other media), logos, trademarks, trade-names, marketing know-how and
materials, technology and technical know-how.
1.2 AGREEMENT TO PURCHASE. At the Closing, WWWX shall acquire from PAR,
upon the terms and subject to the conditions of this Agreement and in reliance
upon the representations and warranties of PAR in this Agreement and in any
Exhibits and Schedules attached hereto, the ATM Center and, as consideration
therefor, shall pay to PAR the Purchase Price (hereinafter defined).
SECTION 2. PURCHASE PRICE; NO ASSUMPTION OF LIABILITIES
2.1 PURCHASE PRICE. In consideration for the ATM Center and the
Non-Competition Agreement set forth below (the "PURCHASE PRICE"), WWWX shall
issue and deliver to PAR the sum of Seven Hundred and Fifty Thousand Dollars
($750,000.00) and Three Million Five Hundred Thousand (3,500,000) fully paid and
non-assessable shares of the common stock of WWWX (the "WWWX Stock"), which
shares are being issued in a private placement subject to all applicable Federal
and State securities laws, regulations and restrictions, and shall bear a legend
to that effect.
2.2 NO ASSUMPTION OF LIABILITIES. WWWX is not assuming or agreeing to
pay or discharge any of the liabilities and obligations of PAR, whether or not
associated with or arising out of the Business, and nothing in this Agreement or
otherwise shall be construed to the contrary. All such liabilities and
obligations whether known or unknown, direct or contingent, in litigation or
threatened or not yet asserted with respect to any aspect of the Business or
otherwise are and shall remain the responsibility of PAR. Without limiting the
generality of the foregoing, PAR shall remain specifically responsible for (a)
any liabilities with respect to any Taxes (as herein defined), (b) any
obligation for my employee grievance pending at the Closing Date or accruing
prior to the Closing Date, (c) my obligation with respect to any litigation
accruing or arising prior to the Closing Date, and (d) any obligations for trade
accounts payable owed on the Closing Date. Further, in no event shall WWWX
assume or incur any liability or obligation with respect to any Taxes payable by
PAR incident to or arising as a consequence of the consummation by PAR of this
Agreement or any cost or expense incurred by PAR incident to or arising as a
consequence of such consummation of the negotiations in connection with this
Agreement.
SECTION 3. CLOSING; TRANSFER PROCEDURES
3.1 CLOSING. The closing of the sale and purchase of the ATM Center
(the "CLOSING") shall be held at 10 a.m., local time, on February 29, 1999 (the
"CLOSING DATE") at the offices of WWWX, or on such other date and at such other
time or place as the parties may agree in writing.
3.2 TRANSFER OF THE PURCHASED ASSETS. At the Closing, PAR shall deliver
to WWWX such bills of sale, endorsements, stock certificates, assignments and
instruments of conveyance and transfer, in form and substance reasonably
satisfactory to WWWX, as shall be reasonably required to vest in WWWX all of
PAR's right, title and interest in and to the ATM Center free and clear of all
liens and encumbrances as provided in Section 3.4.
3.3 PURCHASE PRICE. At the Closing, WWWX shall deliver to PAR the WWWX
Stock, in accordance with Section 2 hereof
3.4 RELEASE OF LIENS. At or prior to the Closing, PAR shall deliver all
necessary releases of liens and Uniform Commercial Code termination statements
in forms reasonably acceptable to counsel for WWWX so that PAR's title to the
ATM Center is free and clear of all liens and encumbrances or as of the Closing
will be.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PAR AND THE SHAREHOLDERS
PAR hereby represents and warrants to WWWX, intending for WWWX to rely
hereon, as follows
4.1 ORGANIZATION AND GOOD STANDING. PAR is a corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts. PAR owns the ATM Center free and clear of any
liens, encumbrances or other rights of third parties. PAR has no knowledge of
any default or claimed or alleged default, or state of facts which with notice
or lapse of time or both, would constitute a default, in any obligation of PAR
or of any other party to be performed thereunder.
4.2 FINANCIAL CONDITION. PAR has delivered to WWWX an overall business
plan with financial projections for the ATM Center business (the "PLAN"). The
Plan represents line and complete lists of the assets and liabilities of PAR
pertaining to the ATM Center, on the date hereof and as anticipated to exist at
the Closing, and together present fairly the financial condition, results of
operations, business, properties, assets, liabilities and future prospects of
the ATM Center Business as of the dates thereof and for the periods indicated
therein, there has been no material adverse change in the financial condition or
future prospects of the ATM Center Business, and no fact is now known to PAR
which materially adversely affects or in the future may materially adversely
affect the financial condition or future prospects of the ATM Center Business.
4.3 TITLE TO THE ATM CENTER. PAR owns outright, and has good and
marketable title to, all of its assets, including without limitation the ATM
Center and all related technical information and other intellectual property
rights necessary to the conduct of the ATM Center Business (collectively, the
"TECHNOLOGY"), free and clear of all liens, pledges, mortgages, security
interests, conditional sales contracts or other encumbrances or conflicting
claims of any nature whatsoever. In particular, and not in limitation of the
foregoing:
(a) PAR has not received my notice of any claim of
infringement or violation of any third party's copyrights, patents, trade
secrets, trademarks or other proprietary tights relating to the ATM Center nor,
to the knowledge of PAR, does any basis for any such claim of right or interest
in the ATM Center or otherwise adverse to par's unqualified right to exclusively
own and fully utilize the ATM Center exist;
(b) there are no pending or threatened suits, legal
proceedings, claims or governmental investigations against or with respect to
the ATM Center or my component thereof;
(c) there are no licenses, assignments, instruments of
transfer, pledges, encumbrances or agreements that are currently outstanding or
in effect whereby any interest in or to the ATM Center has been licensed,
assigned, transferred, pledged or otherwise conveyed to any person or entity;
(d) to the knowledge of PAR, neither the use and development
of the ATM Center, nor the offer for sale, sale and use of services related to
the ATM Center, infringes or will infringe upon any intellectual property right
of my third party anywhere in the world;
(e) there are no outstanding agreements, confinements or
encumbrances inconsistent with the provisions of this Agreement, whether made or
entered into by the PAR or otherwise;
(f) to the knowledge of PAR, no information relating to the
ATM Center has been disclosed in a manner as to become available to the public;
(g) PAR owns the entire worldwide right, title, and
interest in and to all intellectual property tights in the ATM Center
Business, including without limitation all potential copyrights in all
commercial business flow and methodology programs and/or other works of
authorship included in the ATM Center, all potential patent rights in and to
any and all inventions included in the ATM Center, such patent rights
including without limitation all patents and patent applications directed to
such inventions and the right to file patent applications directed to such
inventions, and all rights in the nature of trade secrets in the ATM Center
Business.
4.4 TAX MATTERS. PAR has filed or caused to be filed all Tax Returns
(as defined herein) through the taxable year ended December 31, 1998 which are
due and required to be filed and have paid or caused to be paid all Taxes due
through the date hereof and any assessment of Taxes removed, except Taxes or
assessments that are being contested in good faith and have been adequately
reserved against. PAR has received no notice of, and to the knowledge of PAR
there is no pending or threatened proceeding or claim by any governmental agency
for assessment or collection of Taxes from PAR. All such Tax Returns have been
prepared on the same basis as that of previous years and in accordance with all
applicable laws, regulations and requirements, and accurately reflect the
taxable income (or other measure of Tax) of PAR. PAR has satisfied all Federal,
state, local and foreign withholding tax requirements including but not limited
to income, social security and employment tax. There are no liens for Taxes on
the ATM Center Business. No transaction contemplated by this Agreement is
subject to withholding under Section 1445 of the Internal Revenue Code of 1986,
as amended (the "Code"). As used herein, "Tax" or "Taxes" means any federal,
state, local and foreign income, payroll, withholding, excise, sales, use,
personal property, use and occupancy, business and occupation, mercantile, real
estate, gross receipts, license, employment, severance, stamp, premium, windfall
profits, social security (or similar unemployment), disability, transfer,
registration, value added, alternative, or add-on minimum, estimated, or capital
stock and franchise and other tax of any kind whatsoever, including any
interest, penalty or addition thereto, whether disputed or not, and "Tax
Returns" means all returns, reports, forms, declarations, claims for refunds or
other information required to be filed or supplied to any person including a
taxing authority in connection with Taxes (including, without limitation,
information returns and declarations of estimated Tax). (Any reference to
"filed" or "file" with respect to Taxes shall also be deemed to include
"supplied" or "supply.")
4.5 LITIGATION. Except as may be disclosed in Schedules attached hereto
and incorporated herein:
(a) there is no dispute, claim, action, suit, proceeding,
arbitration or governmental investigation, either administrative or judicial,
pending, or to the knowledge of PAR threatened, against PAR, or the ATM Center
Business; and
(b) PAR is not in default with respect to any order, writ,
injunction or decree of any court or governmental department, commission, board,
bureau, agency or instrumentality, which involves the possibility of any
judgment or liability which may result in any material adverse change in the
financial condition of PAR.
4.6 ABSENCE OF UNDISCLOSED LIABILITIES. PAR has no liabilities or
obligations accrued, absolute, contingent or otherwise, except as disclosed in
the Financials or in this Agreement or any Exhibits or Schedules hereto or as
incurred, consistent with past business practice, in the normal and ordinary
course of the Business, and none of which is material and adverse. For purposes
of this Agreement, material means any matter which could exceed $5,000.
4.7 MATERIAL CONTRACTS. PAR represents and WWWX acknowledges that there
are no existing contracts, agreements, commitments or obligations (a) with
respect to the ATM Center Business, which involves the payment to or from PAR of
amounts in excess of $5,000 per year, (b) any license, franchise or distribution
agreement, which involves payments to or from PAR in excess of $5,000 per year,
and (c) any lease of tangible personal property, which involves payments to or
from PAR in excess of $5,000 per year,
4.8 INTANGIBLE ASSETS. Schedule I sets forth a list of (a) all patents,
copyrights, trade names, trademarks, service marks and names (registered or
unregistered), and applications and registrations therefor, (b) all research,
development and commercially practiced processes, trade secrets, know-how,
inventions, and engineering and other technical information, (c) all computer
programs, software and data bases owned by or licensed to the ATM Center
Business, (d) all information, drawings, specifications, designs, plans,
financial, marketing and business data and plans, other proprietary,
confidential or intellectual information or property and all copies and
embodiments thereof in whatever form or medium and (e) all customer and
membership lists of the ATM Center Business (collectively, "INTANGIBLE ASSETS")
as well as a list of all registrations thereof and pending applications
therefor. Each of the Intangible Assets listed on such schedule as being owned
by PAR is owned by PAR free and clear of any and all liens and encumbrances and,
to the knowledge of PAR no other person or entity has any claim of ownership
with respect thereto.
4.9 COMPLIANCE WITH LAWS. PAR has complied with and is not in default
under, or in violation of, any law, ordinance, rate, regulation or order
(including, without limitation, any environmental, safety, employee benefit,
health or price or wage control law, ordinance, role, regulation or order)
applicable to the Business which materially adversely affect or, so far m PAR
can now foresee, may in the future materially adversely affect, the ATM Center
Business.
4.10 AUTHORIZATION. The execution and delivery of this Agreement, and
the sale, transfer and other actions contemplated hereby have been duly
authorized, including, with respect to PAR, by all necessary action of its Board
of Directors, and neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated herein by PAR constitutes a
violation or breach of applicable law or any contract or instrument to which PAR
is
a party or by which it or they are bound, or any order, writ, injunction,
decree or judgment applicable to it or them, or constitutes a default (or
would but for the giving of notice or lapse of time or both, constitute a
default) under my contract or instrument to which PAR is a party or by which
it is bound, or conflicts with or violates my provision of the Articles of
Incorporation or By-Laws of PAR. Without limiting the generality of the
foregoing provisions, the execution and delivery by PAR of this Agreement and
the consummation of the transactions contemplated hereby will not (i) result
in a violation or default or give to any other person any rights, including
rights of termination, cancellation of acceleration under any applicable law,
role or regulation, any agreement, instrument or policy to which PAR is a
party or may be bound, (ii) result in my judgment, order, injunction, decree
or ruling of any court or governmental authority to which PAR is a party or
subject or (iii) require any authorization, consent, approval, exemption or
other action by any court or administrative or governmental body which has
not been obtained or any notice to or filing with any court or administrative
or governmental body which has not been given or done. This Agreement has
been duly executed and delivered by PAR and constitutes the legal, valid and
binding obligation of PAR enforceable in accordance with its terms.
4.11 CONSENTS. No consent, waiver, approval, order, permit or
authorization of, or declaration or filing with, or notification to, any person,
entity or governmental body is required on the part of PAR or any of the
Shareholders in connection with the execution and delivery by PAR of this
Agreement, or the compliance by PAR with any of the provisions hereof
4.12 INVESTMENT REPRESENTATIONS.
(a) the shares of WWWX Stock being acquired by PAR are
intended to be and are being acquired solely for PAR's account without a view to
the current distribution or resale thereof, and PAR does not have any contract,
undertaking, agreement or arrangement to sell or otherwise transfer or dispose
of any of such shares in any manner to any person or entity not involved in the
Company;
(b) PAR will not sell, transfer or otherwise dispose of any of
the shares of WWWX Stock being acquired by PAR, in any manner, unless at the
time of such transfer: (i) a registration under the Securities Act of 1933, as
amended (the "Securities Act") and under all other applicable securities laws is
in effect with respect to the shares of the WWWX Stock to be sold, transferred
or disposed of, and PAR complies with all of the requirements of the Securities
Act and such other applicable securities laws with respect to the proposed
transaction; or (ii) PAR has obtained and has provided to WWWX satisfactory
evidence that the proposed sale, transfer or disposition does not require
registration under the Securities Act or such other applicable securities laws;
(c) the shares of WWWX Stock being acquired by PAR have not
been issued by WWWX pursuant to a registration under the Securities Act, and PAR
must therefore hold such shares indefinitely unless a subsequent registration or
exemption therefrom is available and is obtained. No federal or state agency has
approved or disapproved the shares of WWWX Stock being acquired by PAR for
investment or any other purpose. All of the shares of WWWX Stock being acquired
by PAR have been issued and sold to PAR in reliance upon a specific exemption
from the registration requirements of the Securities Act which depends, in part,
upon the accuracy of PAK's representations, warranties and agreements set forth
in this Agreement; and
(d) PAR is an "accredited investor," as such term is defined
in Regulation D under the Securities Act.
4.13 DISCLOSURE. No representation or warranty by PAR in this Agreement
or in any other Exhibit, Schedule, list, certificate or document delivered
pursuant to this Agreement, contains or will contain at Closing my untrue
statement of material fact or omits or will omit to state any material fact
necessary to make any statement herein and therein not misleading.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF WWWX
WWWX hereby represents and warrants to PAR, intending for PAR to rely
hereon, as follows:
5.1 ORGANIZATION AND GOOD STANDING. WWWX is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
5.2 AUTHORIZATION. The execution and delivery of this Agreement and
other actions contemplated hereby have been duly authorized by all necessary
action of the Boards of Director and shareholders of WWWX, and neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated herein by WWWX constitutes a violation or breach of
applicable law or any contract or instrument to which WWWX is a party or is
bound, or any order, writ, injunction, decree or judgment applicable to it, or
constitutes a default (or would but for the giving of notice or lapse of time or
both, constitute a default) under any contract or instrument to which WWWX is a
party or by which it is bound, or conflicts with or violates any provision of
the Articles of Incorporation or By-Laws of WWWX. Without limiting the
generality of the foregoing provisions, the execution and delivery by WWWX of
this Agreement and the consummation of the transactions contemplated hereby will
not (i) result in a violation or default or give to any other person any rights,
including rights of termination, cancellation or acceleration under any
applicable law, rule or regulation, any agreement, instrument or policy to which
WWWX is a party or may be bound, (ii) result in any judgment, order, injunction,
decree or ruling of any court or governmental authority to which it is a party
or subject or (iii) require any authorization, consent, approval, exemption or
other action by any court or administrative or governmental body which has not
been obtained or any notice to or filing with my court or administrative or
governmental body which has not been given or done. This Agreement has been duly
executed and delivered by WWWX and constitutes the legal, valid and binding
obligation of WWWX enforceable in accordance with its terms.
5.3 CONSENTS. No consent, waiver, approval, order, permit or
authorization of, or declaration or filing with, or notification to, any person,
entity or governmental body is required on the part of WWWX in connection with
the execution and delivery by WWWX of this Agreement, or the compliance by WWWX
with any of the provisions hereof.
5.4 DISCLOSURE. No representation or warranty by WWWX in this Agreement
or in any other Exhibit, Schedule, fist, certificate or document delivered
pursuant to this Agreement, contains or will contain at Closing any untrue
statement of material fact or omits or will omit to state any material fact
necessary to make any statement herein and therein not misleading.
SECTION 6. CONDUCT PENDING THE CLOSING
PAR hereby covenants and agrees that, pending the Closing and except as
otherwise approved in advance in writing by WWWX:
6.1 CONDUCT of BUSINESS. PAR shall carry on and cause the ATM Center
Business to carry on the development of its business diligently and
substantially in the same manner as heretofore and refrain from any action that
would result in the breach of any of the representations, warranties or
covenants of PAR hereunder.
6.2 ACCESS. WWWX and its authorized representatives shall have full
access during normal business hours upon prior arrangement with PAR to all
properties, books, records, contracts and documents of PAR relating to the ATM
Center business, and PAR shall furnish or cause to be furnished to WWWX and its
authorized representatives all information with respect to the Purchased Assets
and ATM Center business as they may reasonably request.
6.3 CONTRACTS AND COMMITMENTS. PAR shall not enter into my contract,
commitment or transaction relating in any way to the ATM Center business, except
in accordance with the ordinary course of business.
6.4 SALE OF CAPITAL ASSETS. PAR will not sell or dispose of, or agree
to sell or dispose of, any of the Purchased Assets, except in accordance with
the ordinary course of business.
6.5 LIABILITIES. PAR will not create any indebtedness or any other
fixed or contingent liability relating in any way to the Business or the
Purchased Assets, including, without limitation, liability as a guarantor or
otherwise with respect to the obligations of others except for accounts payable
in the ordinary course of business consistent with past practices.
6.6 INSURANCE. Any present insurance insuring PAR, their respective
employees or the ATM Center business wherever located, will be maintained by PAR
in all respects.
6.7 PRESERVATION OF ORGANIZATION AND EMPLOYEES. PAR will use its best
efforts to preserve the Business intact, to keep available its key employees (if
any), and to preserve the present relationships of PAR with my suppliers,
customers, banks and others having business relations with them.
6.8 NO DEFAULT. PAR shall not do any act or omit to do any act, or
permit any act or omission to act, which will cause a material breach of any
material contract, commitment or obligation by which it is bound regarding the
ATM Center Business.
6.9 AUTHORIZATION FROM OTHERS. Prior to the Closing Date, PAR shall
have obtained all authorizations, waivers, consents and permits of others
required to permit the consummation by PAR of the transactions contemplated by
this Agreement or to remove any breach or threatened breach of any
representation, warranty or agreement of PAR herein.
SECTION 7. CONDITIONS PRECEDENT TO WWWX'S OBLIGATIONS
All obligations of WWWX under this Agreement is subject to the
fulfillment, prior to or at the Closing, of each of the following conditions
unless otherwise waived in writing by WWWX:
7.1 REPRESENTATIONS AND WARRANTIES. PAR's representations and
warranties contained in this Agreement or in any list, certificate or document
delivered pursuant to the provisions hereof shall be true at and as of the time
of Closing.
7.2 PERFORMANCE OF AGREEMENTS. PAR shall have performed and complied
with all agreements and conditions required by this Agreement to be performed or
complied with by it or them prior to or at the Closing, including without
limitation PAR's obligation to deliver the Purchased Assets free and clear of
liens and encumbrances in accordance with Section 3.4 hereof and the covenants
set forth in Section 6 hereof.
7.3 ADVERSE CHANGE. There shall not have been a material adverse
change, occurrence or casualty, financial or otherwise, in PAR or the Purchased
Assets, whether covered by insurance or not.
7.4 CLOSING DELIVERIES. PAR shall have delivered the documents and
other items described in Section 3 hereof.
7.5 NO LITIGATION. There shall not be any pending or, to the knowledge
of PAR, threatened action, proceeding or investigation by or before any court,
arbitrator, governmental body or agency which shall seek to restrain, prohibit
or invalidate the transactions contemplated hereby or which, if adversely
determined, would result in a breach of a representation, warranty or covenant
of any party herein.
7.6 DUE DILIGENCE. Prior to Closing, WWWX shall have the right to
conduct a due diligence investigation, audit and financial review of the ATM
Center Business and all of the Purchased Assets and liabilities in order that
WWWX, in its sole discretion, may confine its understanding and valuation of the
Business and the Purchased Assets and verifying, among other things, no
undisclosed liabilities or potential liabilities of PAR. Such due diligence
shall include, without limitation, all operational, legal, contractual,
litigation, employment, purchasing, marketing, accounting, financial, tax and
other aspects of the Business. If such investigation is not satisfactory to
WWWX, for any reason, WWWX may terminate this Agreement and shall have no
further obligation hereunder. WWWX'S conduct of its due diligence shall not in
any way relieve PAR of its obligations and liabilities contained in this
Agreement including without limitation, the accuracy of the representations and
warranties of PAR set forth in this Agreement.
SECTION 8. CONDITIONS PRECEDENT TO PAR'S OBLIGATIONS
All obligations of PAR under this Agreement are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions
unless otherwise waived in writing by PAR.
8.1 REPRESENTATIONS AND WARRANTIES. WWWX's representations and
warranties contained in this Agreement shall be true at and as of the time of
Closing.
8.2 PERFORMANCE OF AGREEMENTS. WWWX shall have performed and complied
with all agreements and conditions required by this Agreement to be performed or
complied with by it prior to or at the Closing.
8.3 CLOSING DELIVERIES. WWWX shall have delivered the WWWX Stock to PAR
in exchange for the Purchased Assets.
8.4 NO LITIGATION. There shall not be any pending or threatened action,
proceeding or investigation by or before any court, arbitrator, governmental
body or agency which shall seek to restrain, prohibit or invalidate the
transactions contemplated hereby or which, if adversely determined, would result
in a breach of a representation, warranty or covenant of any party herein.
SECTION 9. FEES AND EXPENSES
9.1 REPRESENTATION AND INDEMNITY WITH RESPECT TO BROKERS. Each party
hereby represents and warrants to the other that it has not engaged or dealt
with any broker or other person who may be entitled to any brokerage fee or
commission in respect of the execution of this Agreement or the consummation of
the transactions contemplated hereby. Without limiting the generality of the
foregoing, each of the parties hereto shall indemnify and hold the other
blameless against any claim, loss, liability or expense which may be asserted
against such other party as a result of such first mentioned party's dealings,
arrangements or agreements with any such broker or person.
9.2 EXPENSES OF THE TRANSACTION. Each party hereto shall pay its own
expenses incidental to the preparation of this Agreement and the consummation of
the transactions contemplated hereby.
9.3 SALES TRANSFER AND DOCUMENTARY STAMPS. WWWX shall be responsible
for payment of all sales, transfer and documentary taxes or stamps, if any, due
as a result of the transfer of the Purchased Assets hereunder.
SECTION 10. INDEMNIFICATION
10.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, covenants and agreements made by any party in this
Agreement or in any certificate delivered pursuant hereto shall survive the
Closing.
10.2 INDEMNIFICATION BY PAR. PAR shall defend, indemnify and hold
WWWX harmless from and against (a) my and all liabilities and obligations of,
or claims against, PAR arising or accruing prior to the Closing and (b) all
actual or potential claims, demands, liabilities, damages, losses and
out-of-pocket expenses including reasonable attorneys' fees whether or not
reduced to judgment, order or award, caused by or arising out of (i) the
breach of any covenant or agreement of PAR in this Agreement or in any
certificate delivered by it or them pursuant hereto, or (ii) the failure of
any representations or warranties made by PAR in this Agreement or in any
certificate delivered by it or them pursuant hereto to have been true and
correct when made and on and as of the Closing Date.
10.3 INDEMNIFICATION BY WWWX. WWWX shall defend, indemnify and hold PAR
harmless from and against all actual or potential claim, demands, liabilities,
damages, losses and out-of-pocket expenses including reasonable attorneys' fees
whether or not reduced to judgment, order or award, caused by or arising out of
(a) the breach of any covenant or agreement of WWWX in this Agreement or in any
certificate delivered by it pursuant hereto, or (b) the failure of any
representations or warranties made by WWWX in this Agreement or in any
certificate delivered by its pursuant hereto to have been true and correct when
made and on and as of the Closing Date.
10.4 NOTICE OF INDEMNIFICATION. In the event any legal proceeding shall
be threatened or instituted or any claim or demand shall be asserted by any
person or entity in respect of which payment may be sought by one party hereto
from another party under the provisions of this Section 10, the party seeking
indemnification (the "INDEMNITEE") shall promptly cause written notice assertion
of the of any such claim of which it has knowledge which is covered by this
indemnity to be forwarded to the other party (the "INDEMNITOR"); provided,
however, that failure of the Indemnitee to give the Indemnitor notice as
provided in this Section shall not relieve the Indemnitor of its obligations
hereunder except to the extent that the Indemnitor shall have been prejudiced by
such failure. Any notice of a claim by reason of any of the representations,
warranties or covenants contained in this Agreement shall state in reasonable
detail the representation, warranty or covenant with respect to which the claim
is made, the facts giving rise to an alleged basis for the claim, and the amount
of the liability asserted against the Indemnitor by reason of the claim.
10.5 INDEMNIFICATION PROCEDURE FOR THIRD PARTY CLAIMS. Except as
otherwise provided herein, in the event of the initiation of any legal
proceeding against an Indemnitee by a third party, the Indemnitor shall be
entitled to assume the defense thereof, at the Indemnitor's sole expense. If the
Indemnitor assumes the defense of any legal proceeding, it will not settle the
legal proceeding without the prior written consent of the Indemnitee (which
shall not be unreasonably withheld or delayed). The Indemnitee shall cooperate
in all reasonable respects with the Indemnitor and its attorneys in the
investigation, trial and defense of any legal proceeding and my appeal arising
therefrom (including the filing in the Indemnitee's name of appropriate cross
claims and counterclaims). The Indemnitee may, at its own cost, participate in
any investigation, trial and defense of such legal proceeding controlled by the
Indemnitor and any appeal arising therefrom. If after receipt of a written
notice pursuant to Section 10.4 hereof, the Indemnitor does not undertake to
defend any such legal proceeding, the Indemnitee may, but shall have no
obligation to, contest or defend against any legal proceeding and the Indemnitor
shall be bound by the result obtained with respect thereto by the Indemnitee
(including, without limitation, the settlement thereof without the consent of
the Indemnitor). If there are one or more legal defenses available to the
Indemnitee that conflict with those available to the Indemnitor, the Indemnitee
shall have the right, at the expense of the Indemnitor, to assume the defense of
the legal proceeding; provided, however, that in any event the Indemnitee may
not settle such legal proceeding without the consent of the Indemnitor, which
consent shall not be unreasonably withheld or delayed. As used herein, a "legal
proceeding" includes any judicial, administrative or arbitral action, suit,
proceeding (public or private), claim or governmental proceeding.
10.6 PAYMENT OF INDEMNIFICATION AMOUNTS. Amounts payable by the
Indernnitor to the Indimnitee in respect of any claims hereunder shall be
payable by the Indemnitor as incurred by the Indemnitee.
10.7 RIGHT OF WWWX SUCCESSORS TO ENFORCE. PAR agrees that the
provisions of this Section 10 shall inure to the benefit of, and may be enforced
by, my successor to the interests of WWWX (by assignment, merger, operation of
law or otherwise, and regardless of whether such successor acquires such
interests directly from WWWX), holding all or any part of the Purchased Assets
("WWWX SUCCESSOR"), to the same extent as if the representations, warranties,
covenants and agreements of PAR contained in this Agreement had been made
directly to such WWWX Successor. PAR further agree that they shall execute and
deliver to my WWWX Successor such further agreements, instruments or other
documents as may be reasonably required to affirm the obligations of PAR and the
rights of such WWWX Successor hereunder.
SECTION 11. POST-CLOSING MATTERS; NON-COMPETITION AGREEMENT
11.1 FURTHER ASSURANCES: At the request of WWWX or any WWWX Successor
from time to time, PAR shall without further cost to WWWX or such WWWX
Successor, at any time and from time to time, promptly do, execute, acknowledge
and deliver, or cause to be done, executed, acknowledged and delivered, to WWWX
or such WWWX Successor, as the case may be, all such further acts, transfers,
assignments, deeds, powers and assurances of title, and additional papers and
instruments, and all do or muse to be done all acts or things as often as may be
proper or necessary or advisable for better assuring, conveying, transferring
and assigning the Purchased Assets (including, without limitation, the
technology), and effectively to carry out the intent hereof, and to vest in WWWX
or, as applicable, any WWWX Successor, the entire fight, title and interest in
and to all of the Purchased Assets. Without limiting the generality of the
foregoing, PAR agrees to furnish to WWWX or my WWWX Successor, all data,
formulae, models, programs, software, notes, documents and all other information
regarding the ATM Center Business in their possession, necessary or useful for
WWWX or such WWWX Successor to develop the ATM Center Business, to utilize the
Technology and to enable its attorneys to evaluate and properly protect the
Technology.
11.2 RESPONSIBILITY FOR LITIGATION. PAR shall be responsible for all
present or future litigation and claims for injury and related expenses arising
out of the conduct of the Business up to the time of Closing, including without
limitation, any litigation disclosed on Schedule 4.5 hereto.
11.3 TRADE SECRETS/NON-COMPETITION AGREEMENT.
(a) PAR shall not at any time after the Closing use for its or
their own benefit, or divulge to any other person, firm or corporation, my
confidential information or trade Secrets relating in any way to the Business,
and at the Closing, PAR shall deliver to WWWX all lists of customers, books,
records, trade secrets, intellectual property and all other property
constituting confidential information belonging to PAR and related to the ATM
Center Business. For the purposes hereof, the term "CONFIDENTIAL INFORMATION"
means any and all information related to
the ATM Center Business, customer and marketing relationships, and business and
financial information of the Business.
(b) As a material inducement to WWWX to enter into this
Agreement, in consideration of the Purchase Price paid hereunder, and for other
good and valid consideration, the receipt and sufficiency of which is hereby
acknowledged, as well as in recognition of the fact that the value of the
Purchased Assets would be diminished substantially if PAR was to engage in any
business or activities in competition with the Business, PAR covenants and
agrees that, except as required in the performance of their duties set forth in
this Agreement or any other written agreement with WWWX or my WWWX Successor,
each will not for a period of one (1) year after the Closing Date engage
directly or indirectly, whether individually or in partnership or in conjunction
with any other person, firm, association, syndicate or corporation, as
principal, agent, shareholder, employee, consultant or in any other manner
whatsoever, in my business activity competitive with the ATM Center Business.
(c) PAR agrees that any violation of any of the covenants in
this Section would cause substantial and irreparable injury to WWWX or any WWWX
Successor, whereupon PAR may be enjoined from my breach or threatened breach
thereof in addition to, but not in limitation of any of the fights or remedies
to which WWWX or any such WWWX Successor is or may be entitled to at law or in
equity or under this Agreement
(d) PAR agrees that the limitations set forth above are
reasonable in time and geographic scope, and if any provision hereof is held
invalid or unenforceable, the remainder shall nevertheless remain in full force
and effect. In particular, PAR agrees that if any court of competent
jurisdiction shall determine that the duration or geographical limit of the
foregoing non-competition covenant is invalid, unreasonable or unenforceable, it
is the intention of PAR and WWWX that it shall not be terminated thereby but
shall be deemed to have been mended to the extent required to render it valid
and enforceable, such amendment to apply only with respect to the jurisdiction
of the court making such adjudication.
11.4 RIGHT OF WWWX SUCCESSORS TO ENFORCE. PAR agrees that the
provisions of this Section I shall inure to the benefit of, and may be enforced
by, any WWWX Successor, to the same extent as if the representations,
warranties, covenants and agreements of PAR contained herein had been made
directly to such WWWX Successor, and with the further understanding and
agreement that the term "Business" as used herein shall include the Business as
conducted by any Such WWWX Successor. PAR further agrees that they shall execute
and deliver to any WWWX Successor such further agreements, instruments or other
documents as may be reasonably required to affirm the obligations of PAR and the
tights of such WWWX Successor hereunder.
SECTION 12. MISCELLANEOUS
12.1 GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the Commonwealth of Massachusetts.
The parties hereto agree that jurisdiction shall be proper in the courts of the
Commonwealth of Massachusetts and consent to jurisdiction and venue therein.
12.2 ASSIGNMENT. This Agreement shall not be assignable by any party
without the prior written approval of the other party. Notwithstanding the
foregoing, WWWX may, without the consent of PAR, assign its rights under
Sections 10 and 11 hereof to any WWWX Successor as provided therein, it being
the intent of the parties that my such WWWX Successor shall be a third party
beneficiary of such rights. To the extent assignable, this Agreement shall be
binding upon, and inure to the benefit of, WWWX PAR, and their respective heirs,
personal representatives, successors and assigns.
12.3 HEADINGS FOR REFERENCE ONLY. The section and paragraph headings in
this Agreement are for convenience of reference only and shall not be deemed to
modify or limit the provisions of this Agreement.
12.4 NOTICES. All notices and other communications under this Agreement
shall be in and shall be deemed given when delivered by confirmed fax,
personally, or by recognized overnight courier, or four days after being mailed
by registered mail, return receipt requested, to a party at the following
address (or to such other address as such party may have specified by notice
given to the other party pursuant to this provision):
If to WWWX: World Wide Web NetworX Corporation
0000 Xxxxxx Xxx, Xxxxx 000
Xx. Xxxxxx, XX 00000
Attention Xxxxxx X. Xxxx
Fax no: (000) 000-0000
If to PAR: Positive Asset Remaketing, Inc.
Xxxx Xxxxxx Xxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Fax no. (000) 000-0000
12.5 ENTIRE AGREEMENT AND AMENDMENT. This document and the Exhibits and
Schedules hereto contain the entire agreement between the parties hereto with
respect to the transactions contemplated hereby and supersede all prior or
contemporaneous agreements, understandings, representations and warranties
between the parties and may not be amended except by written instrument executed
by the parties hereto.
12.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
ATTEST: WORLD WIDE WEB NETWORX CORPORATION
By: By:
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Title: Title:
ATTEST: POSITIVE ASSET REMARKETING, INC.
By: By:
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Title: Title:
LIST OF EXHIBITS AND SCHEDULES
EXHIBIT A ATM Center Business Documents
SCHEDULE 1 Intangible Assets
