EXHIBIT 10(j)
ASSET PURCHASE AGREEMENT
THIS AGREEMENT, effective as of this 19th day of November, 1998, is
entered into by and between Xxxx Xxxx d/b/a Vidatel Communications, an
individual residing in Houston, Texas (referred to as "Seller"); and ClearWorks
Technologies, Inc., a Delaware corporation (the "Buyer"). Seller and Buyer are
sometimes herein referred to collectively as the "Parties" and singularly as a
"Party".
WHEREAS, Buyer and Seller have determined that it is in their best
interests for Seller to sell all of its assets to Buyer upon the terms and
subject to the conditions set forth in this Agreement; and
WHEREAS, the Board of Directors of Buyer and Seller has each approved
this Agreement and the consummation of the transactions contemplated hereby and
approved the execution and delivery of this Agreement. NOW, THEREFORE, in
consideration of the foregoing premises and representations, warranties and
agreements contained herein, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. ASSETS SOLD AND PURCHASED. Subject to the terms and conditions hereof,
Seller hereby sells, assigns, conveys and transfers to Buyer good and marketable
title in all Seller's assets (herein called "Assets") and more particularly
described in Exhibit "A" attached hereto and made a part hereof, and Buyer
hereby accepts from Seller the following:
a. The right, title and interest of Seller in and to the use of certain
tradenames, trademarks, patents, copyrights, logos and other
intellectual and proprietary rights associated with the Business,
including but not limited to the use of such items as listed on Exhibit
A, which is attached hereto and incorporated herein for all purposes;
b. The tangible assets, including but not limited to equipment, software
and inventory utilized by Seller in the Business, which are listed on
Exhibit "A" attached hereto.
c. ASSIGNMENT OF CUSTOMER ORDERS. In further consideration of the Purchase
Price, on the Closing Date, Seller shall execute and deliver an
Assignment of all regularly scheduled maintenance customers (the
"Assignment") in the form of Exhibit "B" hereto, transferring,
assignment and conveying unto Buyer the right to service all future
Orders now held by Seller for such repetitive customers on the Closing
Date, as well as all those customers which Buyer may receive in the
future from its Customers, it being the intent of the parties for
Seller to close its business at 9:00 a.m. on November 19th, 1998.
Attached hereto as Exhibit "C" is a list of all customers to be
assigned to Buyer.
2. NO ASSUMPTION OF ACCOUNTS PAYABLE AT THE CLOSING BY BUYER. Seller shall pay
its ordinary course of business the Accounts Payable Schedule of Vendors as
reflected and set forth in Exhibit D, attached hereto and incorporated by
reference for all purposes. BUYER DOES NOT ASSUME ANY LIABILITY OR OBLIGATION OF
SELLER. SELLER SHALL INDEMNIFY BUYER FOR ANY FAILURE TO PAY SUCH ACCOUNTS
PAYABLE TIMELY.
3. ASSETS TO BE TRANSFERRED SUBJECT TO NO ENCUMBRANCES. Seller conveys to Buyer
the title to all of Seller's Assets free and clear of all liens, claims,
encumbrances, other reservations whatsoever pursuant to assignments and bills of
sale between Buyer and the Seller.
4. PURCHASE PRICE. The purchase price of the assets is $150,000.00 which shall
be payable through a stock transaction as follows:
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(1) Buyer shall deliver at Closing Buyer Common Stock subject to SEC
144 restrictions having an aggregate value equal to the value of
Seller's assets. (collectively referred to as the "Purchase Price").
The number of shares received by Seller will be determined by taking
the value of Seller's assets, which have been represented to be
$150,000.00 and dividing that amount by Buyer Common Stock valued at
the then current trading market price per share as of 5:00 p.m. CDST
one (1) day prior to Closing; PROVIDED, HOWEVER, that Seller's assets
equal $150,000.00. The number of shares received by Seller will be
reduced appropriately if such representation of known assets is
incorrect.
(a) INVESTMENT INTENT. Seller is acquiring the shares to be exchanged
and delivered to them under this Agreement for investment and not
with a view to the sale or distribution thereof, and the Seller has
no commitment or present intention to sell or otherwise dispose of
the Buyer Common Stock. The Seller shall execute and deliver to
Buyer on the Closing a Subscription Agreement and Shareholder
Agreement attached hereto as Exhibit "E" and "F", respectively,
attached hereto and incorporated herein by reference for all
purpose, acknowledging the "unregistered" and "restricted" nature of
the shares of Buyer being received under the Agreement in exchange
for the Assets.
(b)Seller acknowledges that they have been delivered copies of what
has been represented to be documentation containing all material
information respecting Buyer and its present and contemplated
business operations, potential acquisitions, management and other
factors; that they have had a reasonable opportunity to
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review such documentation and discuss it, to the extent desired,
with their legal counsel, directors and executive officers; that
they have had, to the extent desired, the opportunity to ask
questions of and receive responses from the directors and executive
officers of Buyer; and with the legal and accounting firms of same;
with respect to such documentation; and that to the extent
requested, all questions raised have been answered to their complete
satisfaction.
(2)Buyer shall enter into an Employee Agreement with Xxxx Xxxx,
substantially in accordance with the terms contained within Exhibit
G.
5. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants
to Buyer that:
a. Seller has good, marketable, and insurable title to the Assets, full
legal authority and power to sell, transfer and assign the Assets to
Buyer, free and clear of all claims, liens and encumbrances of any
nature whatsoever.
b. No event of default has occurred, and no event has occurred which, with
the giving of notice or the passage of time or both, would become an
event of default, that has not been disclosed and that will not be
remedied by Seller.
c. There are no outstanding payments due on any of the Assets.
d. The Assets include most of Seller's physical assets employed in the
operation of the Business.
e. The Asset scheduled on Exhibit "A" is in good working order and repair.
f. Seller does not have any commitments to past or present employees for
expenses, profit sharing, compensation, health care benefits, pension
benefits, employment contracts, etc.
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g. Seller does not have any collective bargaining agreements, nor any
pension, profit sharing or other benefit plans applicable to any of the
employees associates with the Business.
h. Seller is not (and by the performance of this Agreement will not be) in
breach of any term or provision of, in default under, any material
contract or agreement to which Seller is party or to which it may be
subject, except that prior consents may be required for the assignment
of certain equipment leases to Buyer.
i. There are no threatened actions, suits, claims or proceedings pending
or known, at law or in equity, or before any federal state or municipal
or any other government agency against Seller, the resolution of which
would materially adversely affect the Business of the Assets or the
rights or ability of Seller to carry on its business substantially as
it is now conducted that has not heretofore been disclosed by Seller.
j. All material contracts, indentures, leases and other agreements, oral
or written, imposing any obligation in excess of $250.00 on Seller
which are related to the Assets or to which any of the Assets are
subject, are disclosed in this Agreement or in the exhibits hereto.
k. Seller is in compliance with all contractual obligations concerning the
Assets.
l. Seller has in the past and presently complies with all applicable laws,
ordinances, permits, licenses and regulations of every kind whatsoever,
whether federal, state or local in nature, relating to the Assets of
the Business.
m. The execution, delivery and performance of this Agreement and all other
agreements contemplated hereby by Seller have been duly and effectively
authorized by all necessary company action as the case may be, have
been duly executed and delivered
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by Seller and constitute a valid and binding obligation of Seller in
accordance with the terms hereof and thereof.
n. Seller has filed all tax reports and returns, which are required to be
filed and has paid all taxes as shown on said returns and all
assessments received by them to the extent that such taxes become due.
There are no federal, state, local or foreign tax liens upon any of the
Assets. There are no potential tax deficiencies on the part of the
Sellers relating to any tax year which may arise from issues which have
been raised or which would reasonably be expected by Seller to be
raised by the Internal Revenue Service or any other taxing authority
and which might reasonable by expected to have a material adverse
effect on the Assets.
o. The schedule of Assets (Exhibit A) delivered by Seller at Closing are
substantially true and correct in all respects.
p. Seller has provided to Buyer prior to Closing, unaudited monthly
revenue statements of the business which Buyer and/or Buyer's
representative has reviewed prior to the execution of this Agreement.
Buyer relies upon the unaudited monthly revenue statements supplied as
a material inducement to consummate this contract and the obligations
thereunder. Seller has disclosed the accounting problems and
discrepancies that have occurred in the operations of the business, and
Buyer has been made aware of such problems. As such, Seller represents,
warrants and affirms that the unaudited monthly revenue statements are
true and correct the best of Sellers knowledge and belief.
q. INVENTORIES. All Inventories of Seller reflected in the Seller Balance
Sheet, are of a quality and quantity usable and salable in the ordinary
course of business. Items
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included in such Inventories are carried on the books of the Seller,
and are valued on the Seller Balance Sheet, at the lower of cost or
market and, in any event, at not greater than their net realizable
value, on an item basis, after appropriate deduction for costs of
completion, marketing costs, and allocation of overhead.
r. ENVIRONMENTAL MATTERS. Without in any manner limiting any other
representations and warranties set forth in this Agreement:
(1)neither Sellers, nor any real property or facility presently or to
Sellers' knowledge, formerly owned, leased, used, maintained or
operated by Seller, ("Seller Site"), nor any of the other assets of
Seller is in violation of, or has violated, or has been or is in
non-compliance with, in any material respect, any Environmental Laws in
connection with the ownership, use, maintenance or operation of, or
conduct of business related to, Seller, any of the Seller Sites or any
of the other assets of Seller, any of the Seller Sites or any of the
other assets of Seller, and
(2)without in any manner limiting the generality of (1) above:
(i) except in accordance with Environmental Laws (including, without
limitation, the obtaining of necessary Permits), no Materials of
Environmental Concern (as defined below) have been used, generated,
manufactured, stored or treated, or disposed of, landfilled or in
any other way Released (and no Release is threatened), on, under or
about any Seller Corporation Site or transported to or from the
Seller Corporation Site and to the knowledge of any Seller, no
Materials or Environmental Concern have been generated,
manufactured, stored or treated or disposed of, landfilled or in any
other way Released (and
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to Release is threatened), on, under, about or from any property
adjacent to any Seller Corporation Site.
(ii) To Seller's knowledge, Seller is not now, and it will not be in
the future, as a result of the operation or condition of its
business or assets prior to or at Closing, subject to any (1)
contingent liability in connection with any Release or threatened
Release of any Materials of Environmental Concern into the
environmental whether on or off a Seller Corporation Site or (2)
reclamation or remediation requirements under Environmental Laws, or
any reporting requirements related thereto.
(iii) To Sellers' knowledge, Seller has not been named as a potentially
responsible party under, and none of the Seller Sites has been
nominated or identified as a facility which is subject to an
existing or potential claim under, CERCLA or comparable
Environmental Laws (as defined below), and none of the Seller Sites
is subject to any Lien arising under Environmental Laws.
(iv) Seller has all environmental and pollution control equipment
necessary for compliance in all material respects with all
Environmental Laws (including, without limitation, all applicable
Permits) and operation of Seller's business as it is presently
conducted,
(v) no Materials of Environmental Concern have been incorporated into
any of the Assets,
(vi) none of the off-site locations where Materials of Environmental
Concern from any Seller Site or form any of the assets of Seller
have been stored, treated, recycled, disposed of or Released has
been nominated or identified as a
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facility which is subject to an existing or potential claim under
CERCLA or comparable Environmental Laws.
(vii) no Seller has received any notices of any Release or threatened
Releases of Materials or Environmental Concern, or of any violation
of, noncompliance with, or remedial obligation under, Environmental
Laws, relating to the ownership use, maintenance, operation of, or
conduct of business related to, any Seller Site or assets of Seller,
nor is there any basis for any of the foregoing,
(viii) there are no writs, injunctions, decrees, orders or judgments
outstanding, or lawsuits, claims, proceedings, or investigations
pending or, to the knowledge of Sellers, threatened, relating to the
ownership, lease, use, maintenance, operation of, or conduct of
business related to, any Seller Site or assets of Seller, nor is
there any basis for any of the foregoing, and
(ix) there are no obligations, undertakings or liabilities arising out
of or relating to Environmental Laws which Seller has agreed to,
assumed or retained, by contract or otherwise.
As used in this Agreement, (I) "Materials of Environmental Concern" shall mean
any solid or hazardous waste, hazardous substance, pollutant, contaminant oil,
petroleum product, commercial product or other substance (x) which is listed,
regulated or designated as toxic or hazardous (or words of similar meaning or
regulatory effect), or with respect to which remedial obligation may be imposed,
under any Environmental Laws or (y) exposure to which may pose a health or
safety hazard, and (ii) "Environmental Laws" means any applicable federal,
state, or local laws, rules, or regulations, common law or strict liability
provisions, and any judicial or
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administrative interpretations thereof, including any judicial or administrative
orders or judgments, relating to health, safety, industrial hygiene, pollution
or environmental matters.
s. EXCLUDED ASSETS. None of Seller's assets not conveyed as part of the Assets
will be needed in the continuing operation of the Business following the
Effective Time of Closing.
t. ABSENCE OF CERTAIN BUSINESS PRACTICES. Neither Seller, nor any employee or
agent of Seller, nor any other Person acting on its behalf, has, directly or
indirectly, within the past five years, given or agreed to give any gift or
similar benefit to any customer, supplier, government employee or other
Person who is or may be in a position to help or hinder the business of
Seller (or to assist Seller in connection with any actual or proposed
transaction) which (1) might subject Seller to any damage or penalty in any
civil, criminal or governmental litigation or proceeding, (2) if not given in
the past, might have had a Material Adverse Effect on the assets, business or
operation of Seller as reflected in the Financial Statements, or (3) if not
continued in the future, might materially adversely effect the assets,
business operations or prospects of Seller or which might subject Seller to
suit or penalty in a private or governmental litigation or proceeding.
u. CUSTOMERS LIST. The Customers List information delivered to Buyer at Closing
sets forth a true and correct list of the regularly scheduled maintenance
customers of Seller as of the Closing Date, and shows the approximate total
sales to each such customer during the indicated accounting periods. There
has not been any material adverse change in the business relationship of
Seller with any customer so named.
6. REPRESENTATIONS WARRANTIES OF BUYER. Buyer represents and warrants as
follows:
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a. Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all the
corporate power, rights, and authority to enter this Agreement and to
perform its obligations under this Agreement; and
b. the execution, delivery and performance of this Agreement and all other
agreements contemplated hereby by Buyer have been duly and effectively
authorized by all necessary corporate action and have been duly
executed and delivered by Buyer and are valid, binding obligations of
Buyer enforceable in accordance with the terms hereof.
7. EMPLOYEES AND OBLIGATIONS RELATING THERETO. Seller will terminate, effective
as of the Closing Date, the employment of all personnel employed by Seller in
connection with the Business (herein Employees"). Seller shall be responsible
for and shall pay, when due, any and all compensation due such terminated
Employees through the Closing Date. Buyer intends that certain Employees
continue to be employed in the Business after the Closing Date but shall have
no obligation to provide employment to such Employees. Any Employment in the
Business continued after the Closing Date shall be on such terms and
conditions as may be specified by Buyer exclusively. Seller will assist Buyer
to encourage such employees to remain employed in the Business.
8. Indemnity.
a. Indemnity.
(1)Seller agrees to indemnify and hold Buyer and Buyer's officers,
directors, shareholders, affiliates, employees and agents ("Buyer
Indemnitees") harmless from any and all damages, losses, which
shall include any diminution in value, shortages, liabilities
(joint or several), payments, obligations, penalties,
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claims, litigation, demands, defenses, judgments, suits,
proceedings, costs, disbursements or expenses (including without
limitation, fees, disbursements and expenses of attorneys,
accountants and other professional advisors and of expert
witnesses and costs of investigation and preparation) of any kind
or nature whatsoever (collectively "Damages"), directly or
indirectly resulting from, relating to or arising out of:
(a)any breach of or inaccuracy in any representation or warranty of
Sellers contained in Section 5 or in any Operative Document;
(b)any breach or non-performance, partial or total, by Seller of
any covenant or agreement of Seller (or any affiliate or
subsidiary thereof) contained in this Agreement or in any
Operative Documents;
(c)any actual or threatened violation of or non-compliance with, or
remedial obligation arising under, any Environmental Laws arising
from any event, condition, circumstance, activity, practice,
incident, action or plan existing or occurring prior to the
Effective Time of Closing relating in any way to the assets or
the business of Seller (including without limitation the
ownership, operation or use of the Assets and the conduct of the
business of Seller prior to the Effective Time of Closing; the
presence of any underground storage tanks or any Materials of
Environmental Laws on, in, under or effecting all or any portion
of Seller's properties or any surrounding areas, and any Release
or threatened Release with respect to such Materials of
Environmental Concern; and the storage, disposal or treatment, or
transportation for storage, disposal or treatment, of Materials
of Environmental Concern; but excluding any
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violation of or non-compliance with, or remedial obligation
arising under, any Environmental Laws that is attributable solely
to a change by Buyer in the structure, use of condition of any of
the Assets after the Effective time of Closing);
(d)the ownership, management or use of the Assets prior to the
Effective Time of Closing; the conduct of the Business prior to
the Effective Time of Closing; all contracts, agreements,
obligations, commitments and liabilities of Seller of every kind
and character relating in any way to the Assets or the business
of Seller other than the Assumed Obligations;
(e)Seller's noncompliance with the bulk transfer provisions of the
Uniform Commercial Code (or any similar law) in connection with
the sale and transfer of the Assets and the Business to Buyer;
and, all pension, retirement, bonuses, severance pay, salaries
and all other compensation and benefits of whatsoever nature
(including all liabilities to any Person under ERISA and all
liabilities to any Governmental Body) attributable to service or
to or employment by Seller Corporation prior to the Effective
Time of Closing; and
(f)any losses or costs of defending against any claims which may be
made against Buyer by and Person claiming violation or any local,
state, or federal laws relating to the employment relationship,
including, but not limited to, wages, hours, concerted activity,
nondiscrimination, occupational health and safety and the payment
and withholding of Taxes, where such claims arise out of
circumstances occurring prior to the Closing Date.
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Notwithstanding any provision to the contrary in this Agreement
Seller shall have no liability to Buyer hereunder to the extent that
the existence of such liability, breach, or falsity of the
representation upon which such liability would be based is disclosed
in any of the contracts, certificates and documents referred to in
this Agreement or the Exhibits attached hereto prior to Closing.
(2) Seller shall retain liability, and shall indemnify Buyer, for the
payment of any tax liabilities with respect to the Assets and the
conduct of the Business during all periods ending as of or prior to
the Effective Time of Closing and the transactions contemplated by
this Agreement other than the liabilities expressly assumed by
Buyer.
b. Notice, and participation
If a claim by a third party is made against a party indemnified pursuant
to this Section 8 ("Indemnitee"), and if such Indemnitee intends to seek
indemnity with respect thereto under this Section, the Indemnitee shall
promptly, and in any event within 60 days, after the assertion of any
claim or the discovery of any fact upon which Indemnitee intends to base a
claim for indemnification under this Agreement ("Claim"), notify the party
or parties from whom indemnification is sought ("Indemnitor") of such
Claim. In the event of any Claim, Indemnitor, at its option, may assume
(with legal counsel reasonably acceptable to the Indemnitee) the defense
of any claim, demand, lawsuit or other proceeding in connection with the
Indemnitee's Claim, and may assert any defense of Indemnitee or
Indemnitor, provided that Indemnitee shall have the right at its own
expense to participate jointly with Indemnitor in the defense of any
claim, demand, lawsuit or other proceeding in connection with the
Indemnitee's Claim and provided
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further that failure to give such notice shall not preclude Indemnitee
making any Claim thereon if the failure or delay in giving such notice did
not prejudice Indemnitee. In the event that Indemnitor elects to undertake
the defense of any Claim hereunder, Indemnitee shall cooperate with
Indemnitor to the fullest extent possible in regard to all matters
relating to the Claim (including, without limitation, corrective actions
required by applicable law, assertion of defenses and the determination,
mitigation, negotiation and settlement of all amounts, costs, actions,
penalties, damages and the like related thereto) so as to permit
Indemnitor's management of same with regard to the amount of Damages
payable by the Indemnitor hereunder. Neither Buyer nor any Seller shall be
entitled to settle any Claim without prior written consent of the other,
which consent shall not unreasonably be withheld.
c. INDEMNIFICATION IF NEGLIGENCE OF INDEMNITEE. The Indemnification
provided in this Section shall be applicable whether or not negligence
of the Indemnitee is alleged or proven.
d. REIMBURSEMENT. In the event that the Indemnitor shall undertake,
conduct or control the defense or settlement of any Claim and it is
later determined that such Claim was not a Claim for which the
Indemnitor is required to indemnify the Indemnitor for all its costs
and expenses with respect to such settlement or defense, including
reasonable attorneys' fees and disbursements.
e. OFFSET. Buyer Indemnitee shall have the right to offset any amounts for
which it is entitled to indemnification under this Section against any
amounts payable by any Buyer.
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9. PRORATION OF PERSONAL PROPERTY TAXES. Seller shall pay any and all personal
property taxes through the Closing Date. Buyer shall timely render the
property for taxation purposes. Personal property taxes shall be prorated
through the date of Closing. Seller shall reimburse Buyer for that portion of
the year during which Seller owned said property until the date this
transaction shall close.
10.EFFECT AND SURVIVAL OF WARRANTIES AND REPRESENTATIONS. The representations
and warranties contained herein shall be substantially true and correct on
and as of the Closing Date, with the same effect as if made on the Closing
Date. The warranties, representations, covenants, and agreements contained in
this Agreements shall survive the closing of the transaction contemplated by
this Agreement.
11.SPECIFIC PERFORMANCE. Each of the Parties hereby agree that the transaction
contemplated by this Agreement are unique and that any such Party shall have,
in addition to any other legal or equitable remedy available, the right to
enforce this Agreement by decree of specific performance.
12.SUCCESSORS. This Agreement shall be binding upon and shall insure to the
benefit of the successors and assigns of each Party hereto. However, this
Agreement may not be assigned to any other person without the prior written
consent of the Other Party.
13.WAIVERS AND MODIFICATIONS. No waivers shall be deemed to be made by any
Party hereto of any of its rights hereunder unless the waiver shall be in
writing. This Agreement shall not be changed or modified in any respect
except in writings and signed by the Parties hereto.
14.ENTIRE UNDERSTANDING. This Agreement together with its Exhibits, Assignment,
Shareholders Agreement, Employment Agreement, and Subscription Agreement
executed among the parties and delivered at Closing, sets forth the entire
agreement and understanding among the
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Parties hereto as of the date hereof with respect to the transaction
contemplated hereby. This Agreement supersedes all prior terms, conditions,
warranties or representations other than those contained herein.
15.CAPTIONS. All captions are inserted for convenience and shall not be
utilized in construing this Agreement.
16.NOTICES. All notices requests, demands, waivers and other communications
required or permitted to be given under this Agreement shall be in writing
and shall be deemed to have been duly given on the date if delivered
personally, or upon the second business day after it shall have been
deposited by certified or registered mail with postage prepaid, or sent by
telex, telegram or telecopier, as follows (or at such other address or
facsimile number for a party as shall be specified by like notice):
if to SELLER, to it at:
Xxxx Xxxx d/b/a Vidatel Communications
X.X. Xxx 000000
Xxxxxxx, Xxxxx 00000
Fax: 000-000-0000
if to BUYER to it at:
ClearWorks Technologies, Inc.
000 X. Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn.: Xxxxxxx XxXxxxx, CEO
Fax (000) 000-0000
17. FURTHER ASSURANCES. Seller will at any time, upon the request of Buyer,
execute acknowledge and deliver and/or cause to be executed acknowledged
and delivered to Buyer all further bills of sale, assignments, transfers
or conveyances as may be reasonably required for selling, assigning and
transferring the Assets to Buyer.
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18. COUNTERPARTS. This Agreement may be executed in several counterpart each
of which is an original. This Agreement and any counterpart so executed
shall be deemed to be one and the same instrument. It shall not be
necessary in making proof of this Agreement or any counterpart hereof to
produce or account for any of the other counterparts.
19. APPLICABLE LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Texas, and the Parties
specifically stipulate that venue shall be Houston, Xxxxxx County, Texas.
At Buyer's option, any controversy or claim arising out of or relating to
this Agreement, or breach thereof, shall be submitted for final, binding
arbitration to be conducted in Houston, Texas in accordance with the Rules
of American Arbitration Association. Judgment upon award may be entered in
any court having jurisdiction.
20. SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any personal or circumstance shall, to any extent,
be invalid or enforceable there shall be deemed to be made such immaterial
changes as are necessary to make it valid and enforceable. The remainder
of this Agreement or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby. Each term and provision of
this Agreement shall be valid and shall be enforced to the fullest
permitted by law.
21. BULK SALES COMPLIANCE. Seller will deliver to Buyer at closing a sworn
list of all Creditors. By reason of this list the parties agree that
notice to creditors under the Bulk Sales Act will not be required and need
not be given except with respect to any creditors named on the list.
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22. CLOSING DATE. Closing of this transaction shall occur on November 16, 1998
at 3:00 o'clock p.m. at the offices of ClearWorks Technologies, Inc., 000
X. Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx or at such other time and place and on
such other date as Buyer and Seller shall agree.
IN WITNESS WHEREOF, Buyer and Seller have caused this agreement to
be signed by their respective officers hereunto duly authorized, all as of the
date herein listed below.
CLEARWORKS TECHNOLOGIES, INC.
By:/s/XXXXXXX X. XXXXXXX, CEO
Name: Xxxxxxx X. XxXxxxx
Title: CEO
Date: 11/19/98
XXXX XXXX DBA VIDATEL COMMUNICATIONS
By:/s/XXXX X. XXXX
Name: Xxxx X. Xxxx
Title: Owner Operator
Date: 11/19/98
SPOUSE OF XXXX XXXX
By:/s/XXXXXX X. XXXX
Name: Xxxxxx X. Xxxx
Title:
Date: 11/19/98
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