Exhibit 2.1
SUBSCRIBER ACQUISITION AGREEMENT
This Subscriber Acquisition Agreement (this "Agreement") is
effective as of February 14, 2002 (the "Effective Date") between EarthLink,
Inc., a Delaware corporation ("EarthLink"), and ("Log On America, Inc., a
Delaware corporation") ("Seller"). Each of EarthLink and Seller is sometimes
referred to as a "Party" or "Parties".
RECITALS
Seller is the owner of all right, title and interest in and to the
assets described on Exhibit A hereto (the "Transferred Assets") which
assets are used in or related to Seller's residential dial-up Internet
service provider business (the "Business"); and
Seller desires to sell and assign all its right, title and interest
in and to the Transferred Assets to EarthLink and EarthLink desires to
purchase from Seller such Transferred Assets, subject to the terms and
conditions set forth in this Agreement.
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. DEFINITIONS. The terms below shall have the following meanings ascribed to
them in this Agreement:
a) "Active Subscriber" means a Residential Dial up Subscriber who has
logged onto Seller's system at least once.
b) "Affiliate," means, with respect to any Person, any other Person
which directly or indirectly controls, is controlled by or is under
common control with such Person.
c) "Bounty" means the amount that EarthLink will pay Seller as
specifically set forth on Exhibit A. for each Qualified Member
provided by Seller.
d) "Subscriber" means any Person included in the Transferred asset list
billed by Seller that gains access to sellers residential dial-up
Internet-related services through the public switch telephone
network.
e) "Domain Names" shall mean the Internet domain names listed on
Exhibit A hereto.
f) "EarthLink Member" means any authorized user of the EarthLink
Service who has contracted with EarthLink for the use of the
EarthLink Service.
g) "EarthLink Service" means EarthLink's broadband, wireless and/or
narrowband dial-up Internet access service, satellite service and/or
Web Hosting Service.
h) "Opt-out Date" means the date between the Effective Date and the
Subscriber Transition Commencement Date specified in Seller's notice
to Subscribers as described in Section 2(a)(ii) of this Agreement.
i) "Person" means any individual or family using Sellers residential
dial-up Internet services.
j) "Qualified Member" means an EarthLink Member who is active (has used
the EarthLink Service at least once) and pays EarthLink the full and
recurring standard access fee for the EarthLink Service for at least
two (2) consecutive months from the Opt-out Date.
k) "Requirements of Laws" means any foreign, federal, state and local
laws, statutes, regulations, rules, codes or ordinances enacted,
adopted, issued or promulgated by any governmental body (including,
without limitation, those pertaining to electrical, building,
zoning, telephone or cable lines, environmental and occupational
safety and health requirements) or any common law.
l) "Subscriber Transition Commencement Date" means the date on which
the transfer of Subscribers from Seller's system onto EarthLink's
system begins. Specifically, this refers to the date upon which a
properly formatted, complete and valid Subscriber database for the
Transferred Assets is successfully merged into the EarthLink
database, as determined by EarthLink.
m) "Subscriber Transition End Date" means the date on which the
transfer of Subscribers from Seller's systems onto EarthLink's
systems is completed and EarthLink begins to provide Internet
services to such Subscribers.
n) "Transition Period" means the period between the Effective Date and
the Subscriber Transition End Date. The components of the Transition
Period are set forth on Exhibit C.
2. DUTIES AND OBLIGATIONS OF THE PARTIES.
a) Duties and Obligations of Seller. In connection with this Agreement,
Seller shall have the following duties and obligations:
(i) Sale of Transferred Assets. Seller hereby sells, conveys,
grants, assigns, transfers and delivers to EarthLink and its
successors and assigns, free and clear of any and all liens,
claims, charges or encumbrances, all of Seller's right, title
and interest in and to the Transferred Assets.
(ii) Notification Email and Opt-out Provision. On or before the
Subscriber Transition Commencement Date, Seller will send an
e-mail to all Subscribers notifying all Subscribers that (A)
Seller is in the process of selling its Transferred Assets to
EarthLink, (B) Seller will terminate service to all
Subscribers identified as Transferred Assets on Exhibit A as
of the Subscriber Transition End Date, (C)
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each Subscriber will have the opportunity to opt out of the
transfer of the Subscriber's account to EarthLink by notifying
Seller via a specified procedure on or before the Opt-out
Date, such specified procedure to be determined by EarthLink,
(D) each Subscriber who opts out on or before the transfer
will need to find an Internet service provider other than
Seller, (E) the accounts of all Subscribers who do not opt out
on or before the Opt-out Date will be transferred to
EarthLink, (F) each Subscriber will be given an opportunity to
review EarthLink's Internet Service Agreement by means of a
hyperlink to such agreement prominently displayed in the
notification email and (G) unless a Subscriber opts out of the
transfer, each Subscriber shall be deemed to be bound by the
terms and conditions of the EarthLink Internet Services User
Agreement. EarthLink must pre-approve the notification email
and any accompanying or subsequent e-mails, direct mailings or
telephone calls in writing before any such notification is
sent to Subscribers by Seller.
(iii) Opt-out Follow Up. On or before the Opt-out Date, as
reasonably determined by Seller in consultation with
EarthLink, Seller shall send a follow-up e-mail, direct mail
and/or telephone call to all Subscribers with substantially
the same content as the correspondence referenced in Section
2(a)(ii) above.
(iv) Forward Subscribers Email. Seller will forward each
Subscriber's e-mail, for a period of thirty (30) days after
the Subscriber Transition End Date, to such Subscriber's new
EarthLink e-mail address. Seller will also include in such
e-mail any other text reasonably requested by EarthLink.
(v) Operation of the Business During the Transition Period. Except
as expressly permitted or required hereby, at all times during
the Transition Period, Seller will continue to operate the
Business in the ordinary course consistent with past practice
(including, without limitation, with regard to billing and
collection practices and exercising its best efforts to retain
existing Subscribers and to obtain new Subscribers) and will
not engage in any practice, take any action, embark on any
course of action or enter into any transaction outside the
ordinary course of the Business, and Seller shall operate the
Business in accordance with the terms of the Business'
licenses and in all respects with all applicable legal and
governmental requirements. In relation to the Business and
except as expressly contemplated by this Agreement and without
limiting the generality of the foregoing, Seller will take all
actions necessary to effectuate a transfer of the Transferred
Assets during the Transition Period and will not: (A) sell,
lease, license or otherwise dispose of any of the Transferred
Assets; (B) suffer or permit any encumbrance to arise or be
granted or created against or upon any of the Transferred
Assets; (C) sell, assign, pledge, mortgage or otherwise
transfer, or suffer any damage, destruction or loss (whether
or not covered by insurance) to any of the Transferred Assets;
(D) make any acquisitions or capital expenditures, including,
without limitation, replacements of equipment in the ordinary
course of the Business, or enter into commitments therefore,
except for such capital expenditures or commitments therefore
which have been approved by the prior
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written consent of EarthLink; (E) make or enter into any
vendor, supply, sales, distribution, franchise or other
agreement without first obtaining the prior written consent of
EarthLink; (F) amend, terminate or fail to renew any contract
(including, without limitation, any Subscriber contracts),
agreement, lease, franchise, license or other agreement of the
Business without first obtaining the prior written consent of
EarthLink; (G) waive any accounts receivable or outstanding
bills, discount future bills or provide any services without
payment; (H) enter into any credit arrangement or assume any
debt obligation; (I) enter into any transaction or agreement
relating to the Business without first obtaining the prior
written consent of EarthLink or (J) agree or commit to do any
of the foregoing.
(vi) Preservation of Business. Except as expressly permitted or
required hereby, at all times during the Transition Period,
Seller will use its best efforts to keep the Business and the
Transferred Assets intact, including, without limitation, the
Business' present operations, physical facilities, working
conditions, rights and franchises and relationships with
Subscribers, lessors, licensors, licensees, vendors,
suppliers, customers and employees. Until the Subscriber
Transition End Date, Seller will continue to provide support
services to all Subscribers consistent with its existing
services, including handling inquiries about the transition.
(vii) Performance of Obligations. Seller agrees during all times
prior to the six (6) month anniversary of the Subscriber
Transition End Date, (A) to perform in full any obligations or
agreements existing between Seller and any third party
relating to the Transferred Assets and (B) to extinguish any
indebtedness owing by Seller to any third party, including its
Subscribers, related to the Transferred Assets.
(viii) Notice of Developments. During the Transition Period, Seller
will give prompt written notice to EarthLink of any
development affecting the Transferred Assets, liabilities,
business, financial condition, operations, contracts
(including, without limitation, the Subscriber contracts),
disputes, results of operations or future prospects of the
Business and/or the Transferred Assets.
(ix) Access. At all times during the Transition Period, Seller will
provide representatives of EarthLink with access to the
personnel, officers, agents, employees, assets (including,
without limitation, the Transferred Assets and any equipment
used in the operation of the Business), properties, titles,
contracts (including, without limitation, any contract
disputes and any Subscriber contracts), books, current,
pending and prospective litigation, records (including,
without limitation, tax records), files and documents
(including, without limitation, financial, tax basis, budget
projections, auditors' work papers and such other information
as EarthLink may reasonably request), customers, suppliers,
legal counsel, independent auditors and other representatives
of or pertaining to the Business and/or Transferred Assets.
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(x) Taxes. Seller shall retain and pay when due all of its
liabilities and any transfer taxes, bulk sales or similar
taxes that may be imposed upon the transfer and sale of the
Transferred Assets pursuant to this Agreement. Seller is
solely responsible for all taxes on any Bounties paid to
Seller under this Agreement by EarthLink, including all state
and local use, sales, property (ad valorem) and similar taxes.
(xi) Expenses. Seller agrees that all expenses incurred by the
Business during the Transition Period shall be discharged by,
and be the sole obligation of, Seller.
(xii) Domain Name License Seller shall assign EarthLink a license
for the Domain Name(s) listed on Exhibit A.
(xiii) Consents. Seller shall deliver any and all consents necessary
for the execution, delivery and performance of this Agreement.
(xiv) Data Format. Seller shall provide complete and properly
formatted Subscriber data as specifically set forth on Exhibit
D.
(A) Seller shall provide a preliminary database of all
Active Subscribers in a comma delimited text file
in accordance with the data dictionary on Exhibit
D within 10 business days of the execution of this
Agreement. The preliminary database must be
formatted per Exhibit D or EarthLink may refuse to
accept such database. Any initial payment will be
reduced by five percent (5%) if the preliminary
database is not delivered within 10 business days
from the Effective Date, ten percent (10%) if not
delivered within 15 business days and twenty
percent (20%) for each day thereafter. EarthLink
may terminate this Agreement and its obligations
herein shall be extinguished if the preliminary
database is not delivered by Seller in the
specified format within 30 days from the Effective
Date.
(B) As EarthLink deems necessary, Seller shall provide
updates to the preliminary database of all Active
Subscribers in a comma delimited text file in
accordance with the data dictionary on Exhibit D.
(C) Seller shall provide a final database of all
Active Subscribers in a comma delimited text file
in accordance with the data dictionary at Exhibit
D on a date to be determined by EarthLink. The
final database shall not contain Subscribers that
(1) have previously requested service cancellation
from the Seller, (2) have not paid Seller for
Seller's service within 60 days prior to the
Seller's delivery of Subscriber data to EarthLink.
b) Duties and Obligations of EarthLink. In connection with this Agreement,
EarthLink shall have the following duties and obligations:
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(i) Payment. EarthLink shall pay Seller a Bounty for each of
Seller's Subscribers that becomes a Qualified Member. The
total purchase price for the Transferred Assets shall be equal
to the Bounty, as set forth on Exhibit A, times the total
number of Seller's existing Subscribers that become Qualified
Members (the "Purchase Price"). The Purchase Price shall be
payable as follows:
A) First Payment. EarthLink shall pay 25% of the
estimated Purchase Price, (the "First Payment") by wire
transfer of funds to Seller's account as set forth on
Exhibit B hereto (the "Seller's Account"). This payment
will occur after turnover to Earthlink of an acceptable
database. A second payment (25% of the estimated
purchase price) will be made upon successful integration
of the "final" database after the opt-out period has
transpired. This integration of the final database will
occur by March 1st, 2002. EarthLink will pay $165 for
each Qualified Member retained.
B) Final Payment. EarthLink shall determine the number
of actual Qualified Members (as defined in Section 1(j)
above) after two consecutive monthly billing cycles.
After that determination, EarthLink shall pay the
balance, if any, of the Purchase Price ("Final Payment")
by wire transfer to the Seller's Account.
(ii) Notification Email Support. EarthLink shall participate in the
preparation of the e-mail notices or any other form of notice
as contemplated in Sections 2(a)(ii)-(iii) above, including,
without limitation, providing Seller with any requested and
relevant text, providing Seller with relevant information
requested by Seller and answering any relevant questions of
Seller with respect to such notices.
(iii) Additional Duties and Obligations of EarthLink. Earthlink will
honor all current pricings related to prepaid Transferred
Assets to facilitate reduced churn. Earthlink will work with
Seller to negotiate away any termination liabilities related
to Verizon PRI/SNS contract. If unable to eliminate
terminations Earthlink will split the remaining liability with
Log On America up to a maximum of $75,0000. This liability
extends to whatever time period Earthlink is able to move
active subscribers off the Sellers network. Earthlink wishes
to utilize Sellers existing network on a wholesale basis. The
fee would be $8.50 per active subscriber with Earthlink
retaining the right to terminate the wholesale arrangement
with 30 days written notice.
c) Press Release. No Party shall issue a press release or similar public
announcement of any kind regarding this Agreement without the prior
written approval of the other Party unless required by law. A violation of
this provision will constitute a material breach of this Agreement. SELLER
UNDERSTANDS AND AGREES THAT IN THE EVENT OF SUCH BREACH, EARTHLINK MAY
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IMMEDIATELY TERMINATE THIS AGREEMENT AND TAKE WHATEVER STEPS NECESSARY TO
EXERCISE ITS REMEDIES AT LAW AND/OR EQUITY
3. REPRESENTATIONS AND WARRANTIES OF THE PARTIES.
a. Representations and Warranties of Seller. Seller represents and
warrants to EarthLink as follows:
(i) Due Organization. Seller is a Delaware corporation duly
organized, validly existing, and in good standing under the
laws of the state of incorporation, and has full corporate
power and authority to own, sell, assign and lease its
properties and assets and to carry on its business as now
conducted. Seller is qualified to do business in all other
jurisdictions where such qualification would be required as a
result of Seller's ownership and operation of the Transferred
Assets, except where the failure to be so qualified does not
and could not reasonably be expected to have an adverse effect
on the Transferred Assets.
(ii) Due Authorization. Seller has full power and authority to
execute, deliver and perform this Agreement and to carry out
the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by Seller and
constitutes the valid and binding obligation of the Seller,
enforceable in accordance with its terms, except to the extent
that enforceability may be limited by laws affecting
creditors' rights and debtors' obligations generally, and
legal limitations relating to remedies of specific performance
and injunctive and other forms of equitable relief (the
"Equitable Exceptions"). The execution, delivery and
performance of this Agreement (as well as any other
instruments, agreements, certificates or other documents
contemplated hereby) by Seller, does not (i) violate any
Requirements of Laws or any court order of any governmental
body applicable to Seller or Seller's property, (ii) violate
or conflict with, or permit the cancellation of, or constitute
a default under, any agreement to which Seller is a party or
by which Seller or any of Seller's property is bound, (iii)
permit the acceleration of the maturity of any indebtedness
of, or indebtedness secured by, the property of Seller which
will not be paid in full as of the Effective Date of this
Agreement, (iv) violate or conflict with any provision of the
charter or bylaws of Seller or (v) require any consent,
approval or authorization of, or notice to, or declaration,
filing or registration with, any governmental body or other
third party.
(iii) Subscriber Database. Seller represents and warrants that the
number of Subscribers, and Subscribers of any Prepaid Service
(as defined in Section 5(a) below) that it sets forth on
Exhibit A is materially correct and complete as of the
Effective Date of this Agreement and will be materially
correct and complete as of the Subscriber Transition End Date.
A violation of this provision will constitute a material
breach of this Agreement. SELLER UNDERSTANDS AND AGREES THAT
IN THE EVENT OF SUCH BREACH, EARTHLINK MAY IMMEDIATELY
TERMINATE THIS
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AGREEMENT AND TAKE WHATEVER STEPS NECESSARY TO EXERCISE ITS
REMEDIES AT LAW AND/OR EQUITY.
(iv) Transferred Assets. Seller has full and unrestricted legal
title to the Transferred Assets and all revenue generated by
the Transferred Assets, free and clear of any and all liens,
claims, revenue sharing or referral fees, charges,
encumbrances or restrictions of any kind, and upon EarthLink's
receipt of the Transferred Assets, EarthLink shall own the
Transferred Assets, free and clear of any liens, claims,
revenue sharing or referral fees, charges, encumbrances or
restrictions of any kind. All the information relating to the
Transferred Assets set forth on Exhibit A is materially true
and accurate in all respects.
(v) Claims. There are no claims, actions, suits, proceedings or
investigations pending or threatened against or affecting
Seller relating to the Transferred Assets, at law or in
equity, before or by any court, municipality or other
governmental body which, if adversely determined, could
individually or in the aggregate have an adverse effect on the
Transferred Assets. Seller has not been and Seller is not now,
subject to any court order, stipulation or consent of or with
any court or governmental body. No inquiry, action or
proceeding has been instituted or threatened or asserted
against Seller to restrain or prohibit the carrying out of the
transactions contemplated by this Agreement or to challenge
the validity of such transactions or any part thereof or
seeking damages on account thereof. To the best knowledge of
Seller, there is no basis for any such valid claim or action.
(b) Representations and Warranties of EarthLink. EarthLink represents and
warrants to Seller as follows:
(i) Due Organization. EarthLink is a corporation duly
organized, validly existing and in good standing
under the laws of the state of Delaware and has
full corporate power and authority to carry on its
business as now conducted.
(ii) Due Authorization. EarthLink has full power and
authority to execute, deliver and perform this
Agreement and to carry out the transactions
contemplated hereby. This Agreement has been duly
and validly executed and delivered by EarthLink
and constitutes the valid and binding obligations
of EarthLink, enforceable in accordance with its
terms, except to the extent that enforceability
may be limited by the Equitable Exceptions.
4. COVENANTS.
a. Non-Competition. Seller agrees that it will not attempt to retain or
solicit any subscriber identified on Exhibit A as a customer for any
residential dial-up or other residential Internet connectivity. It
is understood that it is the intent of seller to concentrate on
commercial internet connectivity and/or wholesale connectivity. In
no
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event, however, will the Seller contact directly any of the
subscribers identified as Transferred Assets on Exhibit A for
purposes of soliciting them for Sellers business.
b. Post-Transition Conduct. During the period commencing on the
Subscriber Transition End Date and expiring on the earlier of (i)
the one (1) year anniversary of the Subscriber Transition End Date
or (ii) the liquidation and dissolution of Seller, Seller will refer
all customer inquiries relating to the Transferred Assets to
EarthLink or its Affiliates, at the direction of EarthLink. During
the period commencing on the Effective Date and expiring on the
earlier of the one (1) year anniversary of the Effective Date or the
liquidation and dissolution of Seller, Seller will not take any
action that is designed or intended to discourage any Subscriber,
lessor, licensor, licensee, customer, vendor, supplier or other
business associate of Seller from maintaining the same business
relations with EarthLink, its Affiliates or to another Person at the
direction of EarthLink after the date hereof as it maintained with
Seller prior to the date hereof. Neither party will solicit the
subscribers contained in the final database in a targeted way with
regard to selling other products that either party may offer.
c. CONFIDENTIALITY. Except as otherwise provided in this Agreement or
required by law, Seller and EarthLink each agree that all
information communicated to one by the other or the other's
Affiliates, whether before or after the Effective Date, will be
received in strict confidence, will be used only for purposes of
this Agreement and will not be disclosed by the recipient Party, its
agents, subcontractors or employees without the prior written
consent of the other Party. Each Party agrees to take all reasonable
precautions to prevent the disclosure to outside parties of such
information, including, without limitation, the terms of this
Agreement, except as mandated by legal, accounting or regulatory
requirements. The provisions of this Section 4(c) shall survive the
expiration or termination of this Agreement for any reason.
5. LIABILITY, INDEMNIFICATION AND RIGHT OF OFFSET.
a. No Assumption of Liabilities. EarthLink shall not assume or be
liable for, and Seller shall retain and remain responsible for, all
of Seller's and the Business' debts, liabilities and obligations of
any nature whatsoever including, without limitation, all prepaid
accounts, all contracts, capital leases, operating leases and
Subscriber credits and/or refunds, whether accrued, absolute or
contingent, whether known or unknown, whether due or to become due
and whether related to the Transferred Assets or otherwise, and
regardless of when asserted, including, without limitation, any of
Seller's services that have been prepaid by a Subscriber (the
"Prepaid Service"). Furthermore, Seller shall refund to Subscriber
any unused portion of the Prepaid Service within 10 days following
the Subscriber Transition End Date, or at Earthlinks election,
Earthlink may deduct this amount from the purchase price ratably
over the payment terms. Earthlink will remit directly to Seller any
monies collected for LOA services rendered previous to March 1,
2002.
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b. Indemnification. Seller agrees to indemnify and hold harmless
EarthLink, and each officer, director, employee and Affiliate of
EarthLink, including without limitation, any successor, licensee or
assignee of EarthLink (collectively, the "Indemnified Parties") from
and against any and all damages, losses, claims, liabilities,
demands, charges, suits, penalties, costs and expenses (including
court costs and reasonable attorneys' fees and expenses incurred in
connection with any litigation or proceeding) (collectively, the
"Indemnifiable Costs"), which any of the Indemnified Parties may
sustain, or to which any of the Indemnified Parties may be
subjected, arising from (i) any misrepresentation, breach, omission
or default by Seller of or under any of the representations,
covenants, agreements or other provisions of this Agreement or any
agreement or document executed in connection herewith; (ii) any
noncompliance with the provisions of any applicable bulk sales law
or regulation; (iii) any liability or obligation of Seller arising
from the conduct of the Business prior to the Effective Date,
whether or not disclosed herein; or (iv) any claim or claims made
against EarthLink arising from liabilities or asserted liabilities
of Seller or its Affiliates which may be asserted against EarthLink
as successor to the Transferred Assets.
c. Right of Offset. In the event that prior to the date of payment of
all of the Purchase Price, the Indemnified Parties seek
indemnification from Seller under Section 5(b) hereof as a result
of, including but not limited to, incorrect or inaccurate
information regarding Transferred Assets and undisclosed liens,
claims, revenue sharing or referral fees, charges, encumbrances or
restrictions of any kind upon EarthLink's receipt of the Transferred
Assets, then EarthLink, in lieu of receiving a cash payment from
Seller in satisfaction of Seller's indemnification obligations under
Section 5(b) hereof, may in good faith elect to offset the amount of
any claim or loss against the unpaid Purchase Price.
6. GENERAL PROVISIONS.
a. Entire Agreement. The Agreement, including any and all exhibits
attached hereto, constitutes the entire understanding and agreement
with respect to its subject matter, and supersedes any and all prior
or contemporaneous representations, understandings and agreements
whether oral or written between the Parties relating to the subject
matter of this Agreement, all of which are merged in this Agreement.
The Agreement shall not be revised, amended or in any way modified
except in a writing executed by both Parties.
b. Waivers. The waiver by any Party of any of its rights or breaches of
the other Party under this Agreement in a particular instance shall
not be construed as a waiver of the same or different rights or
breaches in subsequent instances. All remedies, rights, undertakings
and obligations hereunder shall be cumulative and none shall operate
as a limitation of any other remedy, right, undertaking or
obligation thereof. No failure or delay by any Party in exercising
any right, power or privilege hereunder (and no course of dealing
between or among any of the parties) shall operate as a waiver of
any such right, power or privilege.
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c. Expenses. Each of the parties shall bear all costs, charges and
expenses incurred by such Party in connection with this Agreement
and the consummation of the transactions contemplated herein.
d. Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of Seller and EarthLink and each of their
respective heirs, representatives, successors and permitted assigns
in accordance with the terms hereof. This Agreement shall not be
assignable by Seller without the prior written consent of EarthLink.
This Agreement shall be assignable by EarthLink to any of its
Affiliates without the prior written consent of Seller.
e. Governing Law. The laws of Georgia shall govern this Agreement
without giving effect to applicable conflict of laws provisions. The
parties agree to resolve any disputes arising hereafter under
binding arbitration under the rules of the American Arbitration
Association with each party bearing its own cost.
f. Effects of Expiration or Termination. Upon the expiration or
termination of this Agreement, all rights and obligations of the
Parties under this Agreement shall terminate, except the rights and
obligations under Sections 2(c), 3(a)(iii), 4, 5 and 6 herein shall
survive expiration or termination of the Agreement.
g. Severability of Provisions. In the event that any provision of this
Agreement is found to be invalid or unenforceable pursuant to
judicial decree or decision, the remainder of this Agreement shall
remain valid and enforceable according to its terms.
h. Notices. All notices or other communications hereunder shall be in
writing and shall be delivered by hand, facsimile or sent, postage
prepaid, by registered or certified mail or reputable overnight
courier service and shall be deemed given when so delivered by hand
or facsimile or, if mailed, five (5) days after mailing (one
business day in the case of overnight courier) addressed to the
intended recipient as set forth below:
If to Seller: Log On America, Inc
One Xxxxxxx Place. 0xx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: President
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If to EarthLink: Xxxxx Xxxxxx
Director of Acquisitions
EarthLink, Inc.
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxx X
Xxxxxxx, XX 00000
cc: General Counsel
with a copy to: EarthLink, Inc.
0000 Xxx Xxxx Xxxxx
Xxxxxxxx Xxxxxxxxxx 00000
Attn: Legal Department
Each of the Parties has caused this agreement to be executed by their respective
and duly authorized representatives as of this effective date.
EARTHLINK:
EARTHLINK, INC.
By: /s/ Xxxxxxxx Xxxxxxx
Title: Executive Vice President,
Acquisitions
Date: 2/15/02
SELLER:
Log On America, Inc.
By: /s/ Xxxxx Paolo
Title: Chief Executive Officer
Date: 2/15/02
