EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
BETWEEN
HAHT COMMERCE, INC.,
HAHT ASIA, INC.
AND
HAHT ASIA PTY., LTD
October 31, 2000
TABLE OF CONTENTS
1. Definitions
2. Basic Transaction
(a) Purchase and Sale of Assets
(b) Assumption of Liabilities
(c) Purchase Price
(d) Escrow
(e) The Closing
(f) Conditions to and Deliveries at Closing
(g) Allocation
3. Representations and Warranties of the Seller
(a) Organization and Good Standing of the Seller
(b) Authorization of Transaction
(c) Noncontravention
(d) Brokers' Fees
(e) Title to Assets
(f) Financial Statements
(g) Events Subsequent to Most Recent Fiscal Year End
(h) Undisclosed Liabilities
(i) Legal Compliance
(j) Tax Matters
(k) Intellectual Property
(l) Contracts
(m) Notes and Accounts Receivable
(n) Powers of Attorney
(o) Insurance
(p) Litigation
(q) Product Warranty
(r) Disclosure
(s) Investment
(t) Payments
(u) Invoices
(v) No Other Subsidiaries
4. Representations and Warranties of the Buyer
(a) Organization of the Buyer
(b) Authorization of Transaction
(c) Noncontravention
(d) Brokers' Fees
(e) Legal Compliance
(f) Disclosure
(g) Authorized and Outstanding Stock
(h) Due Issuance of HAHT Common Stock and HAHT Warrant
5. Post-Closing Covenants
(a) General
(b) Litigation Support
(c) Transition
(d) Covenant Not to Compete
6. Remedies for Breaches of this Agreement
(a) Indemnification Provisions for Benefit of the Buyer
(b) Indemnification Provisions for Benefit of the Seller
(c) Matters Involving Third Parties
(d) Determination of Adverse Consequences
(e) Recoupment Under Escrow
(f) Other Indemnification Provisions
7. Miscellaneous
(a) Survival of Representations and Warranties
(b) Press Releases and Public Announcements
(c) No Third-Party Beneficiaries
(d) Entire Agreement
(e) Succession and Assignment
(f) Counterparts
(g) Headings
(h) Notices
(i) Governing Law
(j) Amendments and Waivers
(k) Severability
(l) Expenses
(m) Construction
(n) Incorporation of Exhibits and Schedules
(o) Specific Performance
(p) Submission to Jurisdiction
(q) Bulk Transfer Laws
Exhibit A--List of Purchased Assets
Exhibit B--List of Excess Liabilities Assumed Pursuant to Section 2(d)
Exhibit C--List of Amounts Owed to the Buyer by the Seller
Exhibit D--Form of Warrant Agreement
Exhibit D-1--Buyer's Amended and Restated Certificate of Incorporation
Exhibit E--Form of Escrow Agreement
Exhibit F--Xxxx of Sale and Assignment
Exhibit G--Form of Assumption
Exhibit H--Allocation Schedule
Exhibit I--Seller Financial Statements
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Seller Disclosure Schedule--Exceptions to Representations and Warranties
Buyer Disclosure Schedules--Exceptions to Representations and Warranties
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") entered into on October 31,
2000, by and among HAHT Commerce, Inc., a Delaware corporation (the "Buyer"),
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and HAHT Asia, Inc., a California corporation, and HAHT Asia Pty., Ltd., an
entity organized and existing under the laws of Australia (individually,
"Parent" and "Subsidiary", respectively, and collectively the "Seller"). The
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Buyer, Parent and Subsidiary are referred to collectively herein as the
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"Parties" and individually as a "Party."
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This Agreement contemplates a transaction in which the Buyer will purchase
certain of the assets (and assume certain of the liabilities) in return for
forgiveness by Buyer of Parents" and Subsidiary's outstanding obligations to
Buyer, stock and warrants to purchase stock, and other consideration.
Now, therefore, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
1. Definitions.
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"Adverse Consequences" means all actions, suits, proceedings, hearings,
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investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, Liabilities, obligations, Taxes, liens, losses, expenses, and
fees, including court costs and reasonable attorneys' fees and expenses.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
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promulgated under the Securities Exchange Act.
"Affiliated Group" means any affiliated group within the meaning of Code
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ss.1504(a) or any similar group defined under a similar provision of state,
local, or foreign law.
"Assigned Contracts" means those certain contracts or agreements to which
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the Parent, Subsidiary or both is or are a party which are set forth under the
heading "Assigned Contracts" on Exhibit A.
"Assumed Liabilities" means all obligations of the Seller assumed by the
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Buyer hereunder, as set forth under the heading "Assumed Liabilities" on Exhibit
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A, including those that arose prior to Closing as specifically listed on Exhibit
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A, and those that arise in connection with the performance of the Assigned
Contracts after the Closing; provided, however, that the Assumed Liabilities
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arising prior to June 30, 2000 shall not exceed the sum of (A) $200,000 and (B)
the amounts actually collected by the Buyer on the Seller's accounts receivable
purchased hereunder, less the amount outstanding and/or forgiven under the Note;
and provided, further, however, that the Assumed Liabilities shall not include
any Retained Liabilities.
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"Basis" means any past or present fact, situation, circumstance, status,
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condition, activity, practice, plan, occurrence, event, incident, action,
failure to act, or transaction that forms or could form the basis for any
specified consequence.
"Buyer" has the meaning set forth in the preface above.
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"Buyer's Disclosure Schedule" has the meaning set forth in Section 4
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hereof.
"Closing" has the meaning set forth in Section 2(f) below.
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"Change of Control" shall mean any merger, consolidation or financing
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involving the Buyer, pursuant to which the shareholders of Buyer immediately
prior to such transaction own 50% or less of the surviving entity in such
transaction.
"Closing Date" has the meaning set forth in Section 2(f) below.
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"Code" means the Internal Revenue Code of 1986, as amended.
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"Environmental, Health, and Safety Requirements" shall mean all federal,
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state, local and foreign statutes, regulations, ordinances and other provisions
having the force or effect of law, all judicial and administrative orders and
determinations, all contractual obligations and all common law concerning public
health and safety, worker health and safety, and pollution or protection of the
environment, including without limitation all those relating to the presence,
use, production, generation, handling, transportation, treatment, storage,
disposal, distribution, labeling, testing, processing, discharge, release,
threatened release, control, or cleanup of any hazardous materials, substances
or wastes, chemical substances or mixtures, pesticides, pollutants,
contaminants, toxic chemicals, petroleum products or byproducts, asbestos,
polychlorinated biphenyls, noise or radiation, each as amended and as now or
hereafter in effect.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended.
"Escrow Agreement" has the meaning set forth in Section 2(d) below.
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"Escrow Termination Date" has the meaning set forth in Section 2(d) below.
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"Excess Liabilities" means any Liability of the Seller that is not an
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Assumed Liability, but which the Buyer assumes pursuant to Section 2(d) below,
including those listed on Exhibit B, all of which Buyer intends, as of the date
of this Agreement, to assume.
"Excluded Assets" means the following assets of the Seller which are not
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being transferred to Buyer pursuant to this Agreement: any capital stock of
subsidiaries of the Parent, including Subsidiary's capital stock.
"Extremely Hazardous Substance" has the meaning set forth in ss.302 of the
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Emergency Planning and Community Right-to-Know Act of 1986, as amended.
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"Financial Statements" has the meaning set forth in Section 3(g) below.
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"GAAP" means United States generally accepted accounting principles as in
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effect from time to time.
"HAHT Common Stock" means the common stock, $0.001 par value per share, of
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the Buyer.
"HAHT Warrant" has the meaning set forth in Section 2(c) below.
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"Intellectual Property" means (a) all inventions (whether patentable or
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unpatentable and whether or not reduced to practice), all improvements thereto,
(b) all trademarks, service marks, trade dress, logos, trade names, and
corporate names, together with all translations, adaptations, derivations, and
combinations thereof and including all goodwill associated therewith, and all
applications, registrations, and renewals in connection therewith, (c) all
copyrightable works, all copyrights, and all applications, registrations, and
renewals in connection therewith, (d) all mask works and all applications,
registrations, and renewals in connection therewith, (e) all trade secrets and
confidential business information (including ideas, research and development,
know-how, formulas, compositions, manufacturing and production processes and
techniques, technical data, designs, drawings, specifications, customer and
supplier lists, pricing and cost information, and business and marketing plans
and proposals), (f) all computer software (including data and related
documentation), (g) all other proprietary rights, and (h) all copies and
tangible embodiments thereof (in whatever form or medium).
"Knowledge" means actual knowledge after reasonable investigation.
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"Liability" means any liability (whether known or unknown, whether asserted
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or unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due), including
any liability for Taxes.
"Most Recent Balance Sheet" means the unaudited balance sheet of Seller or
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Buyer, as the case may be, dated June 30, 2000.
"Most Recent Fiscal Year End" means the year ended April 30, 2000.
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"Note" means any promissory note made and executed by the Parent for the
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benefit of the Buyer, including promissory notes dated July 3, 2000 in the
original principal amount of US $100,000, and dated July 11, 2000 in the
principal amount of $49,500.
"Ordinary Course of Business" means the ordinary course of business
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consistent with past custom and practice (including with respect to quantity and
frequency).
"Parent" has the meaning set forth in the preface above.
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"Party" has the meaning set forth in the preface above.
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"Person" means an individual, a partnership, a corporation, a limited
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liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof).
"Process Agent" has the meaning set forth in Section 7(p) below.
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"Purchase Price" has the meaning set forth in Section 2(c) below.
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"Purchased Assets" means all right, title, and interest in and to all of
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the tangible and intangible operating assets of the Parent and Subsidiary
relating to the Seller's business (including the Assigned Contracts) that are
necessary or appropriate for Buyer to continue the business of the Seller;
provided, however, the Purchased Assets do not include the Excluded Assets. The
Purchased Assets shall specifically include the following items relating to the
Purchased Assets:
(a) all physical assets;
(b) all customer names, lists (including prospect lists, if any),
addresses, and contact names;
(c) all right, title and interest in and to the name "HAHT Asia";
(d) all right, title and interest in and to the Parent's Website;
(e) Intellectual Property, goodwill associated therewith and rights
thereunder, remedies against infringements thereof, and rights to
protection of interests therein under the laws of all
jurisdictions;
(f) claims, cash, deposits, prepayments (unless excluded as an
Excluded Asset), accounts receivable, refunds, causes of action,
choses in action, rights of recovery, rights of set off, and
rights of recoupment (including any such item relating to the
payment of Taxes);
(g) franchises, approvals, permits, licenses, orders, registrations,
certificates and similar rights obtained from governments and
governmental agencies; and
(h) books, records, ledgers, files, source and user documents in
support of the Intellectual Property, correspondence, lists,
drawings, specifications, creative materials, advertising and
promotional materials, studies, reports, and other printed or
written materials.
"Retained Liabilities" shall mean all of the Liabilities of the Parent and
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Subsidiary (any reference herein to the Seller shall be deemed to refer to both
the Parent and Subsidiary), including the following, other than to the extent
that they are Assumed Liabilities or Excess Liabilities: (i) all trade payables
of the Seller as of the Closing Date; (ii) all indebtedness of the Seller; (iii)
any Liability of the Seller for Taxes, including all federal, state and local
income, franchise, gross
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receipts, sales, use or similar tax relating to the operation of Seller's
business on or before the Closing Date, the use, ownership or operation of the
Purchased Assets on or before the Closing Date and all Taxes relating to the
sale of the Purchased Assets, (iv) any Liability of the Seller for the unpaid
Taxes of any Person under Reg. ss.1.1502-6 (or any similar provision of state,
local, or foreign law), as a transferee or successor, by contract, or otherwise,
(v) any Liability relating to the operation of the Seller's business prior to
Closing; (vi) any obligation of the Seller to indemnify any Person by reason of
the fact that such Person was a director, officer, employee, or agent of any of
the Seller or was serving at the request of any such entity as a partner,
trustee, director, officer, employee, or agent of another entity (whether such
indemnification is for judgments, damages, penalties, fines, costs, amounts paid
in settlement, losses, expenses, or otherwise and whether such indemnification
is pursuant to any statute, charter document, bylaw, agreement, or otherwise);
(vii) Liability of the Seller for costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby, or (vii) any Liability
or obligation of the Seller under this Agreement (or under any side agreement
between the Seller and the Buyer entered into on the date of this Agreement).
"Securities Act" means the Securities Act of 1933, as amended.
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"Securities Exchange Act" means the Securities Exchange Act of 1934, as
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amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance, charge,
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or other security interest.
"Seller" has the meaning set forth in the preface above.
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"Seller's Disclosure Schedule" has the meaning set forth in Section 3
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below.
"Subsidiary" has the meaning set forth in the preface above.
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"Tax(es)" means any federal, state, local, or foreign income, gross
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receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code ss.59A),
customs duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund, or
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information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
2. Basic Transaction.
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(a) Purchase and Sale of Assets. Pursuant to the terms and conditions of
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this Agreement, the Buyer agrees to purchase from the Seller, and the Seller
agrees to sell, transfer, assign, convey, and deliver to the Buyer, all of the
Purchased Assets at the Closing, all for the consideration
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specified below in this Section 2. Delivery of and transfer of title to the
Purchased Assets shall take place in North Carolina.
(b) Assumption of Liabilities. Pursuant to the terms and conditions of this
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Agreement, the Buyer agrees to assume and become responsible for the Assumed
Liabilities at the Closing. The Buyer will not assume or have any
responsibility, however, with respect to any other obligation or Liability of
the Seller not specifically included within the definition of Assumed
Liabilities.
(c) Purchase Price. The Buyer agrees to pay to the Seller the "Purchase
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Price" payable as follows:
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(1) forgiveness by the Buyer of the Seller's obligations to Buyer on
any amounts outstanding at June 30, 2000 of the U.S. $308,000 owed by the
Seller to the Buyer as outlined in Exhibit C plus any other related amounts
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invoiced by the Buyer subsequent to these amounts;
(2) 250,000 shares of HAHT Common Stock, in Parent's name;
(3) A Warrant to purchase 150,000 shares of HAHT Common Stock at a
price of U.S. $2.50 per share with a term of five years (the "HAHT
Warrant") in substantially the form of Exhibit D. The HAHT Common Stock and
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HAHT Warrant shall also include any stock dividend, stock split or other
change in the character or amount of any of the outstanding Common Stock of
Buyer, together with any and all new, substituted or additional securities
to which Seller is entitled by reason of its ownership of HAHT Common Stock
and the HAHT Warrant. The HAHT Common Stock has the rights, preferences and
privileges set forth in Buyer's Certificate of Incorporation, a copy of
which is attached hereto as Exhibit D-1; and
(4) assumption of the Assumed Liabilities.
(d) Assumption of Excess Liabilities; Escrow. The Seller agrees that the
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HAHT Common Stock and the HAHT Warrant (and any shares issued upon exercise of
the HAHT Warrant) shall be held in an escrow pursuant to the escrow agreement
attached hereto as Exhibit E (the "Escrow Agreement") until at least the later
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of the first anniversary of the Closing Date or one hundred eighty (180) days
after the completion of a public offering of stock by the Buyer on a recognized
exchange or market, other liquidity event in which Buyer's equity is exchanged
for equity of a public company, or the pay-off by Seller of all amounts owed to
Buyer that result from Buyer's assumption of Excess Liabilities (the "Escrow
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Termination Date"). In the event that the Buyer determines, prior to the Escrow
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Termination Date, that it is appropriate for it, in its sole discretion, to
assume any of the Seller's Liabilities which are not Assumed Liabilities, it
will give the Buyer written notice thereof; provided, that Buyer shall not
assume any Seller Liability unless the Liability has been asserted by the
creditor, is absolute, due and owing, and bona fide, which determination shall
be reasonably based by Buyer upon documentary and other evidence relating to
such liability. If the Seller has not paid the Buyer the amount of the Excess
Liabilities prior to the Escrow Termination Date, then, at Buyer's option, an
appropriate number of shares of HAHT Stock or shares of HAHT Common Stock
exercisable under the HAHT Warrant will revert to HAHT to
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cover such Excess Liabilities, based on the fair market value of the HAHT Common
Stock on the Escrow Termination Date, as such value is determined pursuant to
the Escrow Agreement; provided, that under no circumstances shall Buyer be able
to include in its calculation of Excess Liabilities amounts that relate to
Seller's ongoing customer support or maintenance obligations relating to Buyer's
products, and Seller shall have no obligation to pay for any such Liabilities
that Buyer assumes. Seller may determine which of the HAHT Common Stock or HAHT
Common Stock exercisable under the HAHT Warrant will revert to the Buyer so long
as the dollar amount required by Buyer is satisfied. Notwithstanding anything to
the contrary in this paragraph (d), any obligations of the Seller listed on
Exhibit A may be paid by the Buyer without notification to the Seller and will
be deemed to be an Excess Liability even though the total obligations listed in
Exhibit A may exceed the amount that the Seller is required to assume.
(e) The Closing. The closing of the transactions contemplated by this
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Agreement (the "Closing") shall take place simultaneous with the execution of
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this Agreement at the offices of Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP in Raleigh,
North Carolina, commencing at 3:00 p.m. local time on October 31, 2000 or at
such other date or place as the Parties may mutually determine (the "Closing
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Date").
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(f) Conditions to and Deliveries at Closing. At the Closing,
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(i) Parent and Subsidiary will execute, acknowledge (if
appropriate), and deliver to the Buyer (A) the Xxxx of Sale
and Assignment in the form attached hereto as Exhibit F and
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(B) such other instruments of sale, transfer, conveyance,
and assignment as the Buyer and its counsel reasonably may
request;
(ii) the Buyer will execute, acknowledge (if appropriate), and
deliver to both the Parent and Subsidiary (A) an assumption
in the form attached hereto as Exhibit G and (B) such other
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instruments of assumption as the Parent, Subsidiary or its
counsel reasonably may request;
(iii) Parent and Subsidiary shall deliver to the Buyer signed
consents and releases from any other third parties whose
consent or release is required in connection with
consummation of the transactions contemplated by this
Agreement;
(iv) the Buyer will place in escrow the closing portion of the
Purchase Price specified in Section 2(c)(2) and (3) above;
(v) the Parent, Subsidiary and the Buyer all shall deliver to
the other certificates signed by their respective
presidents and chief financial officers that all of their
respective representations, warranties and covenants
contained in this Agreement remain true as of the Closing
Date and that all obligations hereunder have been or will
be completed prior to or on the Closing Date;
(vi) the Seller shall assign its rights to the name "HAHT Asia,
Inc." to the Buyer and execute such instruments as may be
required to effect such assignment;
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(vii) Parent shall have delivered to Buyer a certificate signed
by its president and secretary stating that Parent's
shareholders shall have unanimously approved the
transactions included herein, together with the plan for
the ultimate allocation of the assets of Parent after the
Escrow Termination Date; and
(viii) Buyer shall have delivered to Parent a certificate signed
by its president and secretary stating that all actions
necessary for approval of this Agreement and the
transactions contemplated herein shall have been taken by
Buyer.
Within 5 days following Closing, the Seller shall deliver to the Buyer
UCC-3 termination statements (and equivalent PTO termination statements, if
applicable) signed by any party with a Security Interest in any of the Purchased
Assets in such form that will permit the Buyer to terminate such interests of
record;
(g) Allocation. The Parties agree to allocate the Purchase Price (and all
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other capitalizable costs) among the Purchased Assets for all purposes
(including financial accounting and tax purposes) in accordance with the
allocation schedule attached hereto as Exhibit H.
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3. Representations and Warranties of the Seller. The Seller represents and
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warrants to the Buyer that the statements contained in this Section 3 are
correct as of the date of this Agreement and as of the Closing Date, except as
set forth in the Seller's disclosure schedule accompanying this Agreement and
initialed by the Parties (the "Seller's Disclosure Schedule"). The Seller's
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Disclosure Schedule will be arranged in paragraphs corresponding to the lettered
and numbered paragraphs contained in this Section 3.
(a) Organization and Good Standing of the Seller. Each of Parent and
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Subsidiary is a corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation. Each of Parent
and Subsidiary is duly authorized to conduct business and is in good standing
under the laws of each jurisdiction where such qualification is required, except
where such failure to be qualified would not have a material adverse effect on
the Seller. Each of Parent and Subsidiary has full corporate power and authority
and all licenses, permits, and authorizations necessary to comply with its
obligations hereunder and to transfer the Purchased Assets.
(b) Authorization of Transaction. The Parent and Subsidiary each has full
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power and authority (including full corporate power and authority) to execute
and deliver this Agreement and to perform its obligations hereunder. Without
limiting the generality of the foregoing, the board of directors of the Parent
and Subsidiary each has duly authorized the execution, delivery, and its
performance of this Agreement. This Agreement constitutes the valid and legally
binding obligation of the Parent and Subsidiary, enforceable in accordance with
its terms and conditions, except as limited by bankruptcy, moratorium,
insolvency and similar laws.
(c) Noncontravention. To Seller's knowledge, neither the execution and the
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delivery of this Agreement, nor the consummation of the transactions
contemplated hereby (including the assignments and assumptions referred to in
Section 2 above), will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction
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of any government, governmental agency, or court to which the Seller is subject
or any provision of the charter or bylaws of the Seller or (ii) conflict with,
result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any material agreement, contract, lease, license,
instrument, or other arrangement to which the Seller is a party or by which it
is bound or to which any of its assets is subject (or result in the imposition
of any Security Interest upon any of its assets) which has not been waived. The
Seller is not required to give any notice to, make any filing with, or obtain
any authorization, consent, or approval of any government or governmental agency
or other third party in order for the Parties to consummate the transactions
contemplated by this Agreement (including the assignments and assumptions
referred to in Section 2 above), except such authorizations, consents or
approvals which have been obtained prior to Closing.
(d) Brokers' Fees. The Seller has no Liability or obligation to pay any
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fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Buyer could become
liable or obligated.
(e) Title to Assets. The Seller has good and marketable title to all of the
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Purchased Assets, free and clear of all Security Interests or restriction on
transfer.
(f) Financial Statements. Attached hereto as Exhibit I are the following
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financial statements of the Seller (collectively the "Seller Financial
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Statements"): (i) unaudited balance sheets and statements of operation, changes
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in stockholders' equity and cash flow for the Seller as of and for the fiscal
years ended April 30, 1999 and April 30, 2000 (the "Most Recent Fiscal Year
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End") and the (ii) an unaudited balance sheet as of June 30, 2000 (the "Interim
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Financials"). The Seller Financial Statements (including the notes thereto) have
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been prepared in accordance with GAAP or other equivalent geographical
accounting standards applied on a consistent basis throughout the periods
covered thereby, present fairly the financial condition of the Seller as of such
dates and the results of operations of the Seller for such periods, are correct
and complete, and are consistent with the books and records of the Seller (which
books and records are correct and complete); provided, however, that the Interim
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Financials of the Seller are subject to normal year-end adjustments (which will
not be material individually or in the aggregate).
(g) Events Subsequent to Most Recent Fiscal Year End. Except with respect
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to those areas of Subsidiary's business, management and operations that Buyer
has agreed to operate prior to execution of this Agreement by the Parties, since
June 30, 2000, there has not been any material adverse change in the business,
financial condition, operations, results of operations, or future prospects of
the Seller relating to the Purchased Assets. Without limiting the generality of
the foregoing, since that date through the Closing Date:
(i) the Seller has not sold, leased, licensed, transferred or assigned
any of the Purchased Assets;
(ii) the Seller has not entered into any agreement, contract, lease,
or license (or series of related agreements, contracts, leases, and
licenses) relating to the Purchased Assets;
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(iii) no party has accelerated, terminated, modified, or cancelled any
agreement, contract, lease, or license (or series of related agreements,
contracts, leases, and licenses) relating to the Purchased Assets to which
the Seller is a party or by which it is bound;
(iv) the Seller has not imposed any Security Interest upon any of the
Purchased Assets;
(v) except with respect to the Note, the Seller has not issued any
note, bond or other debt security, or created, incurred, assumed or
guaranteed any indebtedness for borrowed money or capitalized lease
obligation;
(vi) the Seller has not delayed or postponed the performance of any
Assumed Liability;
(vii) the Seller has not cancelled, compromised, waived, or released
any right or claim (or series of related rights and claims) relating to the
Purchased Assets;
(viii) the Seller has not granted any license or sublicense of any
rights under or with respect to all or any portion of any Intellectual
Property relating directly or indirectly to the Purchased Assets;
(ix) there has been no change made or authorized in the charter or
bylaws of the Seller;
(x) the Seller has not experienced any damage, destruction, or loss
(whether or not covered by insurance) to the Purchased Assets;
(xi) there has not been any other material occurrence, event,
incident, action, failure to act, or transaction involving the Purchased
Assets; and
(xii) the Seller has not committed to any of the foregoing.
(h) Undisclosed Liabilities. To Seller's knowledge, the Seller has no
-----------------------
Liability (and there is no Basis for any present or future action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or demand against
it giving rise to any Liability) relating to or affecting, directly or
indirectly, any of the Purchased Assets, except for Liabilities set forth on the
face of the Most Recent Balance Sheet (rather than in any notes thereto).
(i) Legal Compliance. To Seller's knowledge, no violation by the Seller or
----------------
its predecessors or subsidiaries of any applicable laws (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder) of federal, state, local, and foreign governments (and all
agencies thereof), nor any action, suit, proceeding, hearing, investigation,
charge, complaint, claim, demand or notice has been filed or commenced or
threatened that will prohibit or adversely affect Seller's ability to enter into
and to perform it obligations under this Agreement.
10
(j) Tax Matters.
-----------
(i) The Seller has filed all Tax Returns that it was required to file.
All such Tax Returns were correct and complete in all respects. To Seller's
knowledge, all Taxes owed by the Seller and due and payable as of the
Closing (whether or not shown on any Tax Return) have been paid. No claim
has ever been made by an authority in a jurisdiction where the Seller does
not file Tax Returns that the Seller is or may be subject to taxation by
that jurisdiction. There are no Security Interests or tax liens on any of
the assets of the Seller that arose in connection with any failure (or
alleged failure) to pay any Tax.
(ii) To Seller's knowledge, no officer (or employee responsible for Tax
matters) of the Seller expects any authority to assess any additional Taxes
with respect to the Seller or any of its assets for any period for which
Tax Returns have been filed. There is no dispute or claim concerning any
Tax Liability of the Seller or pertaining to the Purchased Assets.
(k) Intellectual Property. To Seller's knowledge, the Seller owns all
---------------------
Intellectual Property necessary or desirable for the operation of its business.
The Purchased Assets include all the Intellectual Property which is used to
contract the business of the Seller. Each item of Intellectual Property relating
to the Purchased Assets owned or used by the Seller immediately prior to the
Closing will be owned by the Buyer on identical terms and conditions immediately
subsequent to the Closing. Immediately subsequent to the Closing, the Seller
will not have retained any Intellectual Property necessary or desirable for the
continued operation of the Seller's business by the Buyer. The Seller has no
knowledge of any infringement upon its Intellectual Property and, based on such
fact, has taken all necessary and desirable action to maintain and protect each
material item of its Intellectual Property. To Seller's knowledge, the Seller
has good and indefeasible title, free and clear of all encumbrances or other
claims, to all Intellectual Property currently used by the Seller and to all
Intellectual Property necessary for the operation of the Seller's business as
now conducted and, to the Knowledge of the Seller, as presently contemplated to
be conducted in the future. To the Knowledge of the Seller, the Seller conducts
its business without infringement or claim of infringement of any Intellectual
Property or other intangible properties of others. Section 3(k) of the Seller's
Disclosure Schedule lists the Intellectual Property to be included in the
Purchased Assets.
(l) Contracts. Section 3(l) of the Seller's Disclosure Schedule lists all
---------
contracts to which the Seller is a party, including the following contracts, and
including (and identifying) the contracts and other agreements being assigned to
Buyer hereunder and to which the Seller is a party:
(i) any agreement (or group of related agreements) for the lease of
personal property to or from any Person providing for lease payments in
excess of $10,000 per annum;
(ii) any agreement (or group of related agreements) for the purchase or
sale of raw materials, commodities, supplies, products, or other personal
property, or for the furnishing or receipt of services, the performance of
which will extend over a period of more than one year, result in a loss to
the Seller, or involve consideration in excess of $10,000 ;
(iii) any agreement concerning a partnership or joint venture;
11
(iv) any agreement (or group of related agreements) under which it has
created, incurred, assumed, or guaranteed any indebtedness for borrowed
money, or any capitalized lease obligation, in excess of $10,000 or under
which it has imposed a Security Interest on any of the Purchased Assets;
(v) any agreement concerning confidentiality or noncompetition; or
(vi) any other agreement (or group of related agreements) the
performance of which involves consideration in excess of $10,000 .
The Seller has delivered to the Buyer a correct and complete copy of each
written agreement listed in Section 3(l) of the Seller's Disclosure Schedule (as
amended to date) and a written summary setting forth the terms and conditions of
each oral agreement, if any. With respect to each such agreement: (A) except as
limited by bankruptcy, moratorium, insolvency and similar laws, the agreement is
legal, valid, binding, enforceable, and in full force and effect; (B) except as
limited by bankruptcy, moratorium, insolvency and similar laws, the agreement
will continue to be legal, valid, binding, enforceable, and in full force and
effect on identical terms following the consummation of the transactions
contemplated hereby (including the assignments and assumptions referred to in
Section 2 above); (C) no party is in breach or default, and no event has
occurred to Seller's Knowledge which with notice or lapse of time would
constitute a breach or default, or permit termination, modification, or
acceleration, under the agreement; and (D) no party has repudiated any provision
of the agreement.
(m) Notes and Accounts Receivable. All notes and accounts receivable of the
-----------------------------
Seller relating to the Purchased Assets are reflected properly on the Seller's
books and records in accordance with GAAP or other equivalent geographical
accounting standards and arose in the Ordinary Course of Businesses in
legitimate transactions with independent third parties. To the Seller's
Knowledge, such accounts receivable are valid receivables subject to no setoffs
or counterclaims, are current and collectible.
(n) Powers of Attorney. There are no outstanding powers of attorney
------------------
executed on behalf of the Seller.
(o) Insurance. The Seller has been covered during the past 3 years by
---------
insurance in scope and amount customary and reasonable for the Seller's
business.
(p) Litigation. Section 3(p) of the Seller's Disclosure Schedule sets forth
----------
each instance related to the Purchased Assets in which the Seller (i) is subject
to any outstanding injunction, judgment, order, decree, ruling, or charge or
(ii) is a party or, to the Knowledge of any of the directors and officers (and
employees with responsibility for litigation matters) of the Seller, is
threatened to be made a party to any action, suit, proceeding, hearing, or
investigation of, in, or before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction or before any
arbitrator. None of the actions, suits, proceedings, hearings, and
investigations set forth in Section 3(p) of the Seller's Disclosure Schedule
could result in any material adverse change in the business, financial
condition, assets, operations, results of operations,
12
or future prospects of the Seller or prevent the Seller from fulfilling its
obligations under this Agreement. The Seller has no reason to believe that any
such action, suit, proceeding, hearing, or investigation may be brought or
threatened against the Seller relating to or adversely affecting the Purchased
Assets or its ability to fulfill its obligations under this Agreement.
(q) Product Warranty. Neither Parent nor Subsidiary has given to any
----------------
customers or other third party any warranty in any software or other
Intellectual Property of Buyer beyond Buyer's standard warranty for such
software or other Intellectual Property.
(r) Disclosure. The representations and warranties contained in this
----------
Section 3 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Section 3 not misleading.
(s) Investment. Each of Parent and Subsidiary (i) understands that the HAHT
----------
Common Stock and the HAHT Warrant have not been, and will not be, registered
under the Securities Act, or under any state securities laws, and are being (or
will be) offered and sold in reliance upon federal and state exemptions for
transactions not involving any public offering, (ii) except for the distribution
of the HAHT Common Stock and HAHT Warrant to Parent's stockholders pursuant to
the ultimate liquidation of Seller, is or will be acquiring the HAHT Common
Stock and the HAHT Warrant solely for its own account for investment purposes,
and not with a view to the distribution thereof, (iii) is a sophisticated
investor with knowledge and experience in business and financial matters, (iv)
has received certain information concerning the Buyer and has had the
opportunity to obtain additional information as desired in order to evaluate the
merits and the risks inherent in holding the HAHT Common Stock and the HAHT
Warrant, and (v) is able to bear the economic risk and lack of liquidity
inherent in holding the HAHT Common Stock and the HAHT Warrant.
(t) Payments. Since June 30, 2000, neither Parent nor Subsidiary has
--------
declared or paid any dividends or other distributions to its shareholders or
paid any bonus or made any increase in the compensation of any officer,
director, employee or consultant.
(u) Invoices. Since June 30, 2000, neither Parent nor Subsidiary has
--------
invoiced any customer or otherwise established any receivable to the benefit of
the Seller without the Buyer's prior written consent and with the understanding
that such receivables represent a Purchased Asset to be sold to the Buyer under
this Agreement.
(v) No Other Subsidiaries. Other than Subsidiary, all of the capital stock
---------------------
of which is owned by Parent, Seller does not currently own or control, directly
or indirectly, any interest in any other corporation, association or other
business entity.
4. Representations and Warranties of the Buyer. The Buyer represents and
-------------------------------------------
warrants to the Seller that the statements contained in this Section 4 are
correct as of the date of this Agreement and as of the Closing Date, except as
set forth in the Buyer's Disclosure Schedule. The Buyer's Disclosure Schedule
will be arranged in paragraphs corresponding to the lettered and numbered
paragraphs contained in this Section 4.
13
(a) Organization of the Buyer. The Buyer is a corporation duly organized,
-------------------------
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation. The Buyer is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such qualification is
required, except where such failure to be qualified would not have a material
adverse effect on the Buyer. The Buyer has full corporate power and authority
and all licenses, permits, and authorizations necessary to comply with its
obligations hereunder.
(b) Authorization of Transaction. The Buyer has full power and authority
----------------------------
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder (except with respect to
approval needed from the Buyer's preferred shareholders to authorize the
issuance of shares under Section 2(c)(5) hereof). Without limiting the
generality of the foregoing, the board of directors of the Buyer has duly
authorized the execution, delivery and performance of this Agreement by the
Buyer. This Agreement constitutes the valid and legally binding obligation of
the Buyer, enforceable in accordance with its terms and conditions, except as
limited by bankruptcy, moratorium and similar laws.
(c) Noncontravention. Neither the execution and the delivery of this
----------------
Agreement, nor the consummation of the transactions contemplated hereby
(including the assignments and assumptions referred to in Section 2 above), will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Buyer is subject or any provision of
its charter or bylaws or (ii) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
material agreement, contract, lease, license, instrument, or other arrangement
to which the Buyer is a party or by which it is bound or to which any of its
assets is subject which has not been waived. The Buyer does not need to give any
notice to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order for the Parties to
consummate the transactions contemplated by this Agreement (including the
assignments and assumptions referred to in Section 2 above).
(d) Brokers' Fees. The Buyer has no Liability or obligation to pay any fees
-------------
or commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Seller could become liable or
obligated.
(e) Legal Compliance. No violation by the Buyer or its predecessors or
----------------
subsidiaries of any applicable laws (including rules, regulations, codes, plans,
injunctions, judgments, orders, decrees, rulings, and charges thereunder) of
federal, state, local, and foreign governments (and all agencies thereof), nor
any action, suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced that will prohibit or adversely
affect Buyer's ability to enter into and to perform it obligations under this
Agreement.
(f) Disclosure. The representations and warranties contained in this
----------
Section 4 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Section 4 not misleading.
14
(g) Authorized and Outstanding Stock. The authorized capital stock of the
--------------------------------
Buyer consists of (i) 84,000,000 shares of Common Stock, $.001 par value, of
which 10,736,979 shares are validly issued and outstanding and held of record as
of the date hereof; and (ii) 62,955,940 shares of Preferred Stock of which
54,283,040 shares are issued and outstanding and held of record as of the date
hereof. All such issued and outstanding shares of capital stock are duly and
validly authorized, validly issued and fully paid and nonassessable and free
from any restrictions on transfer, except for restrictions imposed by federal or
state securities or "blue-sky" laws and except for those imposed pursuant to the
Buyer's preferred stock purchase agreements or any Related Agreement (as defined
therein).
(h) Due Issuance of HAHT Common Stock. The HAHT Common Stock and HAHT
---------------------------------
Warrant to be issued to the Parent are part of the Purchase Price, and the HAHT
Common Stock to be issued upon exercise of the HAHT Warrant, when issued, sold
and delivered in accordance with the terms hereof or thereof for the
consideration expressed herein or in the Warrant, as the case may be, will be
duly and validly issued, fully paid and nonassessable and free of restrictions
on transfer other than restrictions under applicable state and federal
securities laws.
5. Post-Closing Covenants. The Parties agree as follows with respect to the
----------------------
period following the Closing.
(a) General. If at any time after the Closing any further action is
-------
necessary or desirable to carry out the purposes of this Agreement, each of the
Parties will take such further action (including the execution and delivery of
such further instruments and documents) that the other Party reasonably
requests, all at the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefor under Section 6
hereof).
(b) Litigation Support. In the event and for so long as any Party is
------------------
actively contesting or defending any action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand in connection with (i) any
transaction contemplated under this Agreement or (ii) any fact, situation,
circumstance, status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction on or prior to the Closing Date
involving the Seller, each of the other Parties will cooperate with the
contesting or defending Party and its counsel in the contest or defense, make
available its personnel, and provide such testimony and access to its books and
records as shall be necessary in connection with the contest or defense, all at
the sole cost and expense of the contesting or defending Party (unless the
contesting or defending Party is entitled to indemnification therefor under
Section 6 hereof).
(c) Transition. The Seller will not take any action that is designed or
----------
intended to have the effect of discouraging any lessor, licensor, customer,
supplier, or other business associate of the Seller from maintaining the same
business relationships with the Buyer after the Closing as it maintained with
the Seller prior to the Closing. Except as otherwise provided herein, the Seller
will refer all customer inquiries relating to the businesses of the Seller to
the Buyer from and after the Closing.
(d) Covenant Not to Compete. For a period of five (5) years from and after
-----------------------
the Closing Date, the Seller will not engage directly or indirectly in the
business of Internet tools and e-
15
commerce applications; provided, however, that no owner of less than 1% of the
-----------------
outstanding stock of any publicly traded corporation shall be deemed to be
engaged in competition solely by reason of such ownership. If the final judgment
of a court of competent jurisdiction declares that any term or provision of this
Section 5(d) is invalid or unenforceable, the Parties agree that the court
making the determination or invalidity or unenforceability shall have the power
to reduce the scope, duration, or area of the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term or
provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or
provision, and this Agreement shall be enforceable as so modified after the
expiration of the time within which the judgment may be appealed.
6. Remedies for Breaches of this Agreement. The remedies for breach of
---------------------------------------
this Agreement shall be limited to the indemnification rights under this Section
6.
(a) Indemnification Provisions for Benefit of the Buyer.
---------------------------------------------------
(i) To the extent of the value of the HAHT Common Stock and the HAHT
Warrant held in an escrow pursuant to the Escrow Agreement, in the event
the Seller breaches (or in the event any third party alleges facts that, if
true, would mean the Seller has breached) any of its representations,
warranties, and covenants contained in this Agreement, and, if there is an
applicable survival period pursuant to Section 7(a) hereof, provided that
the Buyer makes a written claim for indemnification against the Seller
pursuant to Section 6(c) below within such survival period, then the Seller
agrees to indemnify the Buyer from and against the entirety of any Adverse
Consequences the Buyer may suffer through and after the date of the claim
for indemnification (including any Adverse Consequences the Buyer may
suffer after the end of any applicable survival period) resulting from,
arising out of, relating to, in the nature of, or caused by the breach (or
the alleged breach), except to the extent caused primarily by the gross
negligence or willful misconduct of the Buyer.
(ii) To the extent of the value of the HAHT Common Stock and the HAHT
Warrant held in an escrow pursuant to the Escrow Agreement, the Seller
agrees to indemnify the Buyer from and against the entirety of any Adverse
Consequences the Buyer may suffer resulting from, arising out of, relating
to, in the nature of, or caused by any Liability of the Seller which is not
an Assumed Liability (including any Liability of the Seller that becomes a
Liability of the Buyer under any bulk transfer law of any jurisdiction,
under any common law doctrine of de facto merger or successor liability,
under Environmental, Health, and Safety Requirements, or otherwise by
operation of law), except to the extent caused primarily by the gross
negligence or willful misconduct of the Buyer.
(b) Indemnification Provisions for Benefit of the Seller.
-----------------------------------------------------
(i) To the extent of the value of the HAHT Common Stock and the HAHT
Warrant held in an escrow pursuant to the Escrow Agreement, in the event
the Buyer breaches (or in the event any third party alleges facts that, if
true, would mean the Buyer has breached) any of its representations,
warranties, and covenants contained in this Agreement, and, if there is an
applicable survival period pursuant to Section 7(a) hereof, provided that
the Seller makes
16
a written claim for indemnification against the Buyer pursuant to Section
6(c) hereof within such survival period, then the Buyer agrees to indemnify
the Seller from and against the entirety of any Adverse Consequences the
Seller may suffer through and after the date of the claim for
indemnification (including any Adverse Consequences the Seller may suffer
after the end of any applicable survival period) resulting from, arising
out of, relating to, in the nature of, or caused by the breach (or the
alleged breach), except to the extent caused primarily by the gross
negligence or willful misconduct of the Seller;.
(ii) To the extent of the value of the HAHT Common Stock and the HAHT
Warrant held in an escrow pursuant to the Escrow Agreement, the Buyer
agrees to indemnify the Seller from and against any Adverse Consequences
the Seller may suffer resulting from, arising out of, relating to, in the
nature of, or caused by any Assumed Liability after June 30, 2000, except
to the extent caused primarily by the gross negligence or willful
misconduct of the Seller.
(c) Matters Involving Third Parties.
--------------------------------
(i) If any third party shall notify any Party (the "Indemnified
-----------
Party") with respect to any matter (a "Third Party Claim") which may give
----- -----------------
rise to a claim for indemnification against any other Party (the
"Indemnifying Party") under this Section 6, then the Indemnified Party
------------------
shall promptly notify each Indemnifying Party thereof in writing; provided,
---------
however, that no delay on the part of the Indemnified Party in notifying
-------
any Indemnifying Party shall relieve the Indemnifying Party from any
obligation hereunder unless (and then solely to the extent) the
Indemnifying Party thereby is prejudiced.
(ii) Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its choice
reasonably satisfactory to the Indemnified Party so long as (A) the
Indemnifying Party notifies the Indemnified Party in writing within fifteen
(15) days after the Indemnified Party has given notice of the Third Party
Claim that the Indemnifying Party will indemnify the Indemnified Party from
and against the entirety of any Adverse Consequences the Indemnified Party
may suffer resulting from, arising out of, relating to, in the nature of,
or caused by the Third Party Claim, (B) the Indemnifying Party provides the
Indemnified Party with evidence reasonably acceptable to the Indemnified
Party that the Indemnifying Party will have the financial resources to
defend against the Third Party Claim and fulfill its indemnification
obligations hereunder, (C) the Third Party Claim involves only money
damages and does not seek an injunction or other equitable relief, (D)
settlement of, or an adverse judgment with respect to, the Third Party
Claim is not, in the good faith judgment of the Indemnified Party, likely
to establish a precedential custom or practice materially adverse to the
continuing business interests of the Indemnified Party, and (E) the
Indemnifying Party conducts the defense of the Third Party Claim actively
and diligently.
(iii) So long as the Indemnifying Party is conducting the defense of
the Third Party Claim in accordance with Section 6(c)(ii) above, (A) the
Indemnified Party may retain separate co-counsel at its sole cost and
expense and participate in the defense of the Third Party Claim, (B) the
Indemnified Party will not consent to the entry of any judgment or
17
enter into any settlement with respect to the Third Party Claim without the
prior written consent of the Indemnifying Party (not to be withheld
unreasonably), and (C) the Indemnifying Party will not consent to the entry
of any judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of the Indemnified Party (not
to be withheld unreasonably).
(iv) In the event any of the conditions in Section 6(c)(ii) above is
or becomes unsatisfied, however, (A) the Indemnified Party may defend
against, and consent to the entry of any judgment or enter into any
settlement with respect to, the Third Party Claim in any manner it
reasonably may deem appropriate (and the Indemnified Party need not consult
with, or obtain any consent from, any Indemnifying Party in connection
therewith), (B) the Indemnifying Parties will reimburse the Indemnified
Party promptly and periodically for the costs of defending against the
Third Party Claim (including reasonable attorneys' fees and expenses), and
(C) the Indemnifying Parties will remain responsible for any Adverse
Consequences the Indemnified Party may suffer resulting from, arising out
of, relating to, in the nature of, or caused by the Third Party Claim to
the fullest extent provided in this Section 6.
(d) Determination of Adverse Consequences. All indemnification payments
-------------------------------------
under this Section 6 shall be deemed adjustments to the Purchase Price, and
shall be limited to the extent of the value of the HAHT Common Stock and the
HAHT Warrant held in an escrow pursuant to the Escrow Agreement.
(e) Recoupment Under Escrow. The Buyer shall have the option of recouping
-----------------------
up to $308,000 of any Adverse Consequences it may suffer (in lieu of seeking any
indemnification to which it is entitled under this Section 6) by notifying the
Seller that the Buyer intends to exercise its right of set-off against the
amount of the Purchase Price held in escrow. Not later than fifteen (15) days
following the receipt of such notice, the Seller shall provide the Buyer with
written notice as to whether the Seller contests such claim or accepts such
claim; and if the claim is accepted, the Buyer shall be entitled to deduct the
amount of the Adverse Consequences (up to $308,000) from the amounts due out of
the escrow pursuant to the Escrow Agreement. If the Seller contests such claim
in part, but not in full, the Seller shall provide written notice with respect
to such amount it does not contest, and the Buyer shall be entitled to set-off
the uncontested amount against the amount due out of the escrow pursuant to the
Escrow Agreement. With respect to any amount that the Seller contests, the
parties shall promptly submit to arbitration in accordance with the provisions
described below the question of whether the Buyer is entitled to indemnification
with respect to such disputed amount. Any determination in connection with such
arbitration shall be binding and, promptly upon such determination, Buyer shall
be entitled to set-off against the amount of the Purchase Price held in escrow
the full amount to which the arbitration determines the Buyer is entitled, if
any (up to $308,000). In the event that any such claim is submitted to
arbitration and is not resolved by the Escrow Termination Date, the escrow shall
not terminate unless and until the amount of the disputed claim is determined
with respect to the amount in dispute; provided, that the remaining amounts in
escrow may be released. Neither the exercise of nor the failure to exercise such
right of set-off or to give a notice of an indemnification event will constitute
an election of remedies or limit Buyer in any manner in the enforcement of any
other remedies that may be available to it.
18
Any controversy or claim arising out of or related to this Section 6(e)
that cannot be amicably resolved, including, without limitation, whether such
controversy or claim is subject to arbitration will be submitted to binding
arbitration held in Raleigh, North Carolina (if the Buyer initiates arbitration)
or in San Francisco, California (if the Seller initiates the arbitration) in
accordance with the commercial arbitration rules of the American Arbitration
Association (the "AAA"), subject to this Section. Arbitration proceedings will
be conducted by a single person selected in accordance with the AAA rules. No
arbitrator will have or previously have had any significant relationship with
any of the parties. The decision of the arbitrator on any submitted matter will
be final, binding and nonappealable, and may be entered in any court of
competent jurisdiction. The parties shall allow and participate in discovery in
accordance with the Federal Rules of Civil Procedure for a period of ninety (90)
days after the filing of an answer or other responsive pleading.
(f) Other Indemnification Provisions. The foregoing indemnification
--------------------------------
provisions are in addition to, and not in derogation of, any statutory,
equitable, or common law remedy (including without limitation any such remedy
arising under Environmental, Health, and Safety Requirements) any Party may have
with respect to the Seller or the transactions contemplated by this Agreement.
7. Miscellaneous.
--------------
(a) Survival of Representations and Warranties. All of the representations
-------------------------------------------
and warranties of the Parties contained in this Agreement shall survive the
Closing hereunder until the Escrow Termination Date.
(b) Press Releases and Public Announcements. No Party shall issue any press
----------------------------------------
release or make any public announcement relating to the subject matter of this
Agreement without the prior written approval of the other Party; provided,
---------
however, that any Party may make any public disclosure it believes in good faith
-------
is required by applicable law (in which case the disclosing Party will use its
reasonable best efforts to advise the other Party prior to making the
disclosure).
(c) No Third-Party Beneficiaries. This Agreement shall not confer any
----------------------------
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(d) Entire Agreement. This Agreement (including the documents referred to
----------------
herein) constitutes the entire agreement between the Parties and supersedes any
prior understandings, agreements, or representations by or between the Parties,
written or oral, to the extent they related in any way to the subject matter
hereof.
(e) Succession and Assignment. This Agreement shall be binding upon and
-------------------------
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. The Seller may not assign either this Agreement or any of
its rights, interests, or obligations hereunder without the prior written
approval of the Buyer.
19
(f) Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) Headings. The section headings contained in this Agreement are inserted
--------
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and other
-------
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the Seller: HAHT Asia, Inc.
----------------- 000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Chief Executive Officer
Copy to: Xxxxxxx & Xxxxx, LLP
-------- 000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
If to the Buyer: HAHT Commerce, Inc.
---------------- 000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Chief Executive Officer
Copy to: Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP
-------- 0000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address
20
to which notices, requests, demands, claims, and other communications hereunder
are to be delivered by giving the other Party notice in the manner herein set
forth.
(i) Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the domestic laws of the State of North Carolina without giving
effect to any choice or conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than the State of North
Carolina.
(j) Amendments and Waivers. No amendment of any provision of this Agreement
----------------------
shall be valid unless the same shall be in writing and signed by the Buyer and
the Seller. No waiver by any Party of any default, misrepresentation, or breach
of warranty or covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
(k) Severability. Any term or provision of this Agreement that is invalid
------------
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(l) Expenses. Each of the Buyer and the Seller will bear its own costs and
--------
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby.
(m) Construction. The Parties have participated jointly in the negotiation
------------
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation. Nothing in the Buyer's
Disclosure Schedule shall be deemed adequate to disclose an exception to a
representation or warranty made herein unless the Buyer's Disclosure Schedule
identifies the exception with reasonable particularity and describes the
relevant facts in reasonable detail. Without limiting the generality of the
foregoing, the mere listing (or inclusion of a copy) of a document or other item
shall not be deemed adequate to disclose an exception to a representation or
warranty made herein (unless the representation or warranty has to do with the
existence of the document or other item itself). The Parties intend that each
representation, warranty, and covenant contained herein shall have independent
significance. If any Party has breached any representation, warranty, or
covenant contained herein in any respect, the fact that there exists another
representation, warranty, or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which the Party has not
breached shall not detract from or mitigate the fact that the Party is in breach
of the first representation, warranty, or covenant.
(n) Incorporation of Exhibits and Schedules. The Exhibits and Schedules
---------------------------------------
identified in this Agreement are incorporated herein by reference and made a
part hereof.
21
(o) Specific Performance. Each of the Parties acknowledges and agrees that
--------------------
the other Party would be damaged irreparably in the event any of the provisions
of this Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each of the Parties agrees that the other
Party shall be entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically this Agreement and
the terms and provisions hereof in any action instituted in any court of the
United States or any state thereof having jurisdiction over the Parties and the
matter (subject to the provisions set forth in Section 7(p) below), in addition
to any other remedy to which it may be entitled, at law or in equity.
(p) Submission to Jurisdiction. Each of the Parties submits to the
--------------------------
jurisdiction of any state or federal court sitting in North Carolina in any
action or proceeding arising out of or relating to this Agreement and agrees
that all claims in respect of the action or proceeding may be heard and
determined in any such court. Each of the Parties waives any defense of
inconvenient forum to the maintenance of any action or proceeding so brought and
waives any bond, surety, or other security that might be required of any other
Party with respect thereto. Each Party initiating legal action appoints the
other Party's registered agent in their state of incorporation (the "Process
Agent") as its agent to receive on its behalf service of copies of the summons
and complaint and any other process that might be served in the action or
proceeding. Any Party may make service on the other Party by sending or
delivering a copy of the process (i) to the Party to be served at the address
and in the manner provided for the giving of notices in Section 7(h) above or
(ii) to the Party to be served in care of the Process Agent at the address and
in the manner provided for the giving of notices in Section 7(h) above. Nothing
in this Section 7(p), however, shall affect the right of any Party to bring any
action or proceeding arising out of or relating to this Agreement in any other
court or to serve legal process in any other manner permitted by law or in
equity. Each Party agrees that a final judgment in any action or proceeding so
brought shall be conclusive and may be enforced by suit on the judgment or in
any other manner provided by law or in equity.
(q) Bulk Transfer Laws. The Buyer acknowledges that the Seller will not
------------------
comply with the provisions of any bulk transfer laws of any jurisdiction in
connection with the transactions contemplated by this Agreement. Seller agrees
to indemnify Buyer from and against any Adverse Consequences arising from or
related to Seller's noncompliance with such laws.
[The next page is the signature page.]
22
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
effective as of the date first above written.
HAHT Commerce, Inc.
By: ____________________________________________
Title: _________________________________________
HAHT Asia, Inc.
By: ____________________________________________
Title: _________________________________________
HAHT Asia Pty., Ltd.
By: ____________________________________________
Title: _________________________________________
23
Exhibit A
---------
List of Purchased Assets
Intellectual Property and Other Assets:
Domain Names:
Trademarks:
Accounts Receivable:
The following accounts receivable as of __________, 2000 of the Seller:
Name of Account Debtor Amount of Receivable Days Past Due
---------------------- -------------------- -------------
Assigned Contracts and Agreements:
Patents:
Assumed Liabilities:
Exhibit B
---------
List of Excess Liabilities Assumed Pursuant to Section 2(d)
Exhibit C
---------
List of Amounts Owed to the Buyer by the Seller
Same as listed in the Official Notification of Breach
Dated May 30, 2000
