ASSET ACQUISITION AGREEMENT
AMONG
NEOMETRIX ACQUISITION I, INC., A DELAWARE CORPORATION
NEOMETRIX TECHNOLOGY GROUP, INC., A DELAWARE CORPORATION
AND
XXXXXXXXX TECHNOLOGY GROUP, INC., A FLORIDA CORPORATION,
DATED: AUGUST ___, 2003
TABLE OF CONTENTS
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PAGE
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BACKGROUND........................................................................................................1
ARTICLE I - SALE AND PURCHASE OF ASSETS...........................................................................1
Section 1.01 Purchased Assets; Excluded Assets......................................................1
ii
ASSET ACQUISITION AGREEMENT
This Asset Acquisition Agreement (the "Agreement") is made as of the
_____ day of August, 2003, by and among Neometrix Acquisition I, Inc., a
Delaware corporation (hereafter "Seller"), Neometrix Technology Group, Inc., a
Delaware corporation (hereafter, "Parent"), and Xxxxxxxxx Technology Group,
Inc., a Florida corporation (hereafter "Buyer")
BACKGROUND
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WHEREAS, the Seller is engaged in business under the trade name
"Zeosoft" as a developer and seller of software for use on hand-held computing
devices (the "Business"); and
WHEREAS, the Seller desires to sell all of the assets associated with
the Business and, under the terms and conditions set forth in this Agreement,
the Buyer has agreed to purchase such assets and assume certain of the Seller's
obligations; and
WHEREAS, the Parent, as the owner of all of the capital stock of the
Seller, has agreed to join in this Agreement to provide certain representations
and covenants in order to induce the Buyer to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises, covenants, representations, warranties, and agreements contained
herein, and intending to be legally bound, the Buyer, the Seller, and the Parent
agree as follows:
ARTICLE I
SALE AND PURCHASE OF ASSETS
---------------------------
Section 1.01 Purchased Assets. Subject to the terms and conditions of
this Agreement, on the Closing Date (as defined in Section 2.01), Seller will
sell to Buyer, and Buyer will purchase from Seller, the assets of Seller listed
below (collectively, the "Purchased Assets"). The Purchased Assets will be
purchased free and clear of all security interests, liens, restrictions, claims,
encumbrances or charges of any kind ("Encumbrances"). The Purchased Assets will
include the following items:
(a) Intellectual Property. All trademarks and trademark
applications, and all patents and patent applications, including specifically
those set forth in Schedule 1.01(a), all goodwill associated therewith, and all
computer software developed or owned by Seller, including all documentation
thereof and all other Intellectual Property (as defined in Section 4.13) of
Seller associated in any manner with the Business, and all rights to use the
name "Zeosoft;"
(b) Promotional Rights. All marketing or promotional designs,
brochures, advertisements, concepts, literature, books, media rights, rights
against any other Person in respect of any of the foregoing and all other
promotional properties, in each case primarily used or useful or developed or
acquired by the Seller for use in connection with the Business or the ownership
and operation of the Purchased Assets;
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(c) Personal Property Lease. That certain lease of furniture,
fixtures, and equipment, dated as of April 1, 2003, between Seller and 5580
Holdings, Inc., f/k/a/ Zeosoft Corporation;
(d) Customer Lists and other Intangible Assets. All other
intangible assets associated with the Business, including without limitation all
customer lists, goodwill, "know-how," proprietary information and trade secrets
relating to the Business; and all manufacturers' warranties (including pending
warranty claims) and manuals relating to the Purchased Assets;
(e) Seller's Deposits and Prepayments. All of the Seller's
lease deposits on leases assumed by Buyer;
(f) Permits. All permits relating to the operation of the
Business, to the extent such permits are transferable and whether or not all
action necessary to effect such transfer has been taken prior to the Closing;
(g) Leases. The real property leases of Seller for the real property used in the
Business, to the extent such are assignable.
(h) Telephone and Facsimile Numbers. The right to use the
telephone and facsimile machine numbers used in the Business;
(i) Books and Records. All papers, documents, computerized
databases and records of Seller relating to the Business or the Purchased
Assets, including without limitation all software design documents, source code,
employer records and workers' compensation records relating to employees hired
by the Buyer, sales records, marketing records, accounting and financial
records, and maintenance and production records;
(j) Claims Relating to Purchased Assets. All claims, causes of action, rights of
recovery and rights of setoff of every type and kind relating to the Business or
the Purchased Assets, in each case whether accruing before or after the Closing;
(k) Contracts. All Contracts described on Schedule 1.01(k);
and
(l) Cash. All cash on hand and in banks;
provided, however, that the definition of Purchased Assets shall not include any
items defined as Excluded Assets in Section 1.03.
Section 1.02 No Assumed Obligations. The Buyer shall have no
responsibility for any of the Seller's obligations (including contracts, leases,
purchase orders and liabilities of any type, kind or nature), whether fixed,
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accrued, contingent or otherwise, and whether arising in contract, in tort, by
violation of law, by operation of law, or otherwise, and all such obligations
shall remain with the Seller and are herein referred to as the "Excluded
Obligations."
Section 1.03 Excluded Assets. The Purchased Assets shall not include
any of the Seller's rights, privileges, title or interest in the following
assets (hereafter referred to as the "Excluded Assets"):
(a) Books and Records. All of the Seller's minute books, stock
books, tax returns and books and records directly relating to the Excluded
Obligations;
(b) Rights Hereunder. All rights and claims of the Seller
under this Agreement; and
(c) Contracts not Assigned. All rights of the Seller in, to
and under those leases, contracts and other agreements not being assigned to the
Buyer pursuant to Section 1.01.
Section 1.04 Consideration. At the Closing, Buyer shall deliver to
Seller 8,250,000 shares of Buyer's common stock.
Section 1.05 Allocation of Purchase Price. At or prior to the Closing,
the Buyer and the Seller shall execute a written instrument in the form of
Exhibit B setting forth by asset category and amount the mutually agreed
allocation of the consideration being paid by the Buyer for the Purchased
Assets. Each party agrees to report the purchase and sale contemplated herein on
Internal Revenue Service Form 8594 and for all other federal and state tax
purposes in accordance with such allocation.
Section 1.06 Tax Consequences. For federal income tax purposes, the
transactions contemplated hereby are intended to constitute a "reorganization"
within the meaning of Section 368 of the Code. The parties to this Agreement
hereby adopt this Agreement as a "plan of reorganization" within the meaning of
Sections 1.368-2(g) and 1.368-3(a) of the United States Treasury Regulations,
and each party is intended to be a "party to the reorganization" within the
meaning of Section 368 of the Code.
ARTICLE II
CLOSING; DOCUMENTS OF CONVEYANCE
--------------------------------
Section 2.01 Closing. Subject to the satisfaction of the conditions set
forth in Articles VI and VII, the purchase and sale contemplated hereby shall be
consummated at a closing (referred to herein as the "Closing") to be held at the
offices of Buyer in Tampa, Florida, on August 29, 2003 (the "Closing Date"). The
purchase and sale shall be deemed effective for all purposes as of the close of
business on the Closing Date (the "Effective Time").
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Section 2.02 Actions to be Taken at the Closing. At the Closing, the
Parties will take the following actions and deliver the following documents:
(a) Seller will execute and deliver to Buyer a Xxxx of Sale
and Assignment Agreement in substantially the form attached hereto as Exhibit C,
together with such other instruments of conveyance and evidence of the transfer
of title to the Purchased Assets from Seller to Buyer as Buyer may reasonably
request;
(b) Buyer will deliver to Seller certificates representing
8,250,000 shares of Buyer's common stock in exchange for the Purchased Assets;
(c) The holders of all of Seller's Class A-1 Secured
Promissory Notes, Class A-2 Secured Promissory Notes, and Class B Secured
Promissory Notes will deliver them to Buyer, marked "satisfied" and will release
all security interests in and liens on the Purchased Assets and all guarantees
thereof;
(d) Seller will deliver to the holders of Seller's Class A-1
Secured Promissory Notes and Class A-2 Secured Promissory Notes shares of
Buyer's common stock in exchange for those Notes. The number of shares of
Buyer's common stock to be delivered to the noteholders will be the product of
8,250,000, multiplied by a fraction, the numerator of which is the balances due
and owing under those notes on the Closing Date, and the denominator of which is
$1,650,000.
(e) Seller will deliver to the Parent, as the holder of
Seller's Class B Secured Promissory Notes the remaining shares of Buyer's common
stock that it receives, in exchange for those Notes;
(f) Parent will declare a dividend to its shareholders of
record as soon as feasibly possible following the Closing Date, and will
distribute ratably among its shareholders the shares of Buyer's common stock
that it receives from Seller; and
(g) Parent, Buyer, and Seller will each deliver to the others
(to the extent applicable), all consents and approvals (including, without
limitation, resolutions and incumbency certificates of the directors and
officers of each, and necessary minutes or resolutions of the stockholders of
each) required for each party to enter into this Agreement and consummate the
transactions described herein.
All instruments of conveyance shall be free of all Encumbrances and
shall be in form and content reasonably acceptable to counsel for the Buyer and
the Seller.
Section 2.03 Prorations at Closing. All compensation (including
vacation and sick pay accruals, as applicable), payroll and withholding taxes
relating to the Seller's employees, including wages accrued but unpaid for the
current payroll period (determined as of the Closing Date) shall be paid by the
Seller when due. Seller will also pay all bills for ordinary accounts payable
incurred prior to the Effective Time, and Buyer will pay all bills for ordinary
accounts payable incurred after the Effective Time. All other operating expenses
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and liabilities relating to the ownership and operation of the Business and the
Purchased Assets attributable to the period ending at the Effective Time shall
be paid by the Seller as they fall due. All operating and other expenses
relating to the ownership and operation of the Business and the Purchased Assets
attributable to periods commencing on and after the Effective Time shall be the
sole responsibility of the Buyer.
Section 2.04 Transfer of Possession. Simultaneously with the Effective
Time, the Seller shall give the Buyer full possession and enjoyment of the
Purchased Assets.
Section 2.05 Utility Services. On the Closing Date or as soon
thereafter as practicable, the Seller and the Buyer will cooperate with each
other to arrange to disconnect or obtain final readings with respect to all
electricity, water, telephone, and other utilities, and to have such services
reconnected in or otherwise transferred to the Buyer's name immediately
thereafter.
Section 2.06 Temporary Escrow Arrangement. The parties contemplate that
they may not be able to complete certain items on or before the Closing Date,
including the final calculation and payment of the Seller's payables, the
calculation of the balance due on the A-1 and A-2 Notes, and the calculation of
the distribution amounts to each of Parent's shareholders. If those tasks are
not complete on the Closing Date, Buyer will deposit its share certificate to be
issued to Seller at Closing and Seller will deposit its stock powers to be
provided at Closing with X.X. Xxxxxx, P.A. ("Escrow Agent"), to be held in
escrow pending completion of those calculations.
If items are deposited with the Escrow Agent, then within 30 days of
Closing, the Buyer and Seller will complete and agree on the calculation of the
balance due to the holders of the A-1 and A-2 Notes and the number of shares to
be received by the holders of the A-1 and A-2 Notes, and Parent will calculate
the number of shares to be distributed to each of its shareholders. Seller and
Buyer will thereupon notify Escrow Agent of the number of Buyer's shares to be
issued to the holders of the A-1 and A-2 Notes and to Parent, and parent will
provide Escrow Agent with a list of its shareholders and a calculation of the
number of shares to be distributed to each. Escrow Agent will thereupon fill in
the blanks on each of the stock powers that it holds, deliver the stock powers
and share certificate to buyer, and Buyer will issue replacement stock
certificates in the proportions and to the persons named in the stock powers.
Escrow Agent's duties are intended to be only ministerial. If at any
time, escrow Agent is in doubt of its obligations hereunder, it may deposit the
escrowed documents with a court of competent jurisdiction, interplead the Buyer
and Seller, and thereby be relieved of any liability or obligation hereunder,
except those arising out of its own gross negligence or willful misconduct.
Buyer and Seller acknowledge that Escrow Agent acts as counsel for
Buyer and agree that Escrow Agent may continue to represent Buyer, including in
any action in which it interpleads the escrowed documents.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
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The Buyer hereby represents and warrants to the Seller as follows:
Section 3.01 Organization and Good Standing. The Buyer is a Florida
corporation, duly organized, validly existing, and in good standing.
Section 3.02 Power and Authority. The Buyer has the requisite power and
authority to execute, deliver, and perform its obligations under and pursuant to
this Agreement, including without limitation, the requisite power and authority
to acquire the Purchased Assets upon the terms and conditions set forth herein.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Buyer. This Agreement has been duly executed and is a
legal, valid and binding obligation of the Buyer, enforceable in accordance with
its terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
Section 3.03 Validity of Contemplated Transactions. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby do not and will not (i) contravene any
provision of the Articles of Incorporation or Bylaws of the Buyer, (ii) violate,
be in conflict with, constitute a default under, result in the termination of,
cause the acceleration of any payments pursuant to, or otherwise impair the good
standing, validity, and effectiveness of any agreement, contract, commitment,
indenture, lease or mortgage applicable to the Buyer, or (iii) violate any
judgment, order, writ, prohibition, injunction or decree of any court,
governmental body or arbitrator by which the Buyer is bound.
Section 3.04 Capitalization. The capitalization of Buyer consists of
100,000,000 shares of voting common stock, of which there are and will be at
Closing, 750,000 issued and outstanding, and 25,000,000 shares of preferred
stock, of which there are and will be at Closing, none issued and outstanding.
All of the outstanding shares of Buyer's capital stock have been duly authorized
and validly issued, and are fully paid and non-assessable.
Section 3.05 No Business. Buyer has conducted no business and at the
Closing Date will have conducted no business and will have no liabilities or
obligations, except those relating to this Agreement.
Section 3.06 Valid Issuance. The Buyer common stock to be issued and
delivered pursuant to the transactions contemplated herein will, when issued in
accordance with the provisions of this Agreement, be validly issued, fully paid
and nonassessable. Buyer intends to issue the Buyer common stock in reliance on
exemptions from registration and qualification under various federal and state
securities laws. In the event such exemptions are determined not to be
available, Buyer will make a good-faith effort to cure any noncompliance by
undertaking to register or qualify the Buyer common stock issued hereunder by
filing a registration statement that includes the Buyer common stock on or
before May 31, 2004.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT
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The Seller and Parent each represents and warrants to the Buyer, and
where applicable, covenants with the Buyer as follows, as of the date hereof and
the Closing Date:
Section 4.01 Due Organization. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all necessary power and authority to conduct its business in the manner
in which the Business is currently being conducted.
Section 4.02 Financial Statements. Seller has delivered to Buyer copies
of Seller's monthly general ledger from April 1, 2003 through July 31, 2003;
copies of its current accounts payable and accounts receivable journals, and
copies of its monthly check register from April 1, 2003 through July 31, 2003.
Those records accurately indicate the financial operation of the Business since
April 1, 2003, and there has been no material adverse change in the financial
condition of the Business since July 31, 2003.
Section 4.03 Tax Matters. Except as set forth on Schedule 4.03, all Tax
Returns required to be filed by or on behalf of Seller with any Governmental
Body with respect to any transaction occurring or any taxable period ending on
or before the Closing Date (i) have been timely filed or are not yet due, and
(ii) have been accurately and completely prepared in compliance with all
applicable Legal Requirements.
Section 4.04 Insurance. Seller has maintained, and will maintain
through the Closing Date, insurance coverage against liability, loss or casualty
with respect to the operations of Seller. A description of all such policies is
hereto attached as Schedule 4.04.
Section 4.05 Legal Proceedings. Except as set forth on Schedule 4.05,
there is no pending Legal Proceeding, and, to the best of the knowledge of
Seller and Parent, no Person has threatened to commence any Legal Proceeding:
(i) that involves Seller or any of the Purchased Assets owned or used by Seller
and which, if decided against Seller, would have a Material Adverse Effect on
the financial condition, business or properties of Seller; or (ii) that
challenges, or that may have the effect of preventing, delaying, making illegal
or otherwise interfering with any of the transactions contemplated by this
Agreement.
Section 4.06 Assets. Seller has, and will have at the Closing, good,
valid and marketable title to all of the Purchased Assets, free and clear of any
liens, except as disclosed on Schedule 4.06. Seller has not sold, transferred,
assigned or conveyed any of its right, title and interest, or granted or entered
into any option to purchase or acquire any of its right, title or interest, in
and to any of the Purchased Assets or the Business. No third party has any
option or right to acquire the Business or any of the Purchased Assets.
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Section 4.07 Real Property. Seller owns no real property. Schedule 4.07
includes a complete list of the real property leased by Seller and used in the
Business ("Seller Leased Real Property"). Seller has a valid leasehold interest
in the Seller Leased Real Property and will deliver to Buyer at Closing a
certificate confirming that such leases are in full force and effect.
Section 4.08 Compliance with Laws. To the best knowledge of Seller and
Parent, Seller has at all time conducted the Business in compliance with all
applicable laws, regulations, ordinances and other requirements of all
Governmental Bodies (including applicable federal, state and local laws, rules
and regulations respecting occupational safety and health standards). Seller has
not received any notice, advice, claim or complaint from any employee or
Governmental Body that Seller has not conducted, or is not presently conducting,
the Business in accordance with all applicable laws and other requirements of
Governmental Bodies.
Section 4.09 Authority; Binding Nature of Agreement. Subject only to
the approval of Parent, Seller has the absolute and unrestricted right, power
and authority to enter into and to perform its obligations under this Agreement;
and the execution, delivery and performance by Seller of this Agreement has been
duly authorized by all necessary action on the part of Seller and its board of
directors. Subject to the approval of Parent, this Agreement constitutes the
legal, valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms, subject to (i) laws of general application relating
to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law
governing specific performance, injunctive relief and other equitable remedies.
At the Closing, Seller will deliver to Buyer such evidence of the authorization
of Seller's execution, delivery, and performance of this Agreement as Buyer may
reasonably request.
Section 4.10 Non-Contravention. Neither (i) the execution, delivery or
performance of this Agreement or any of the other agreements referred to in this
Agreement, nor (ii) the consummation of any of the transactions contemplated by
this Agreement, will directly or indirectly (with or without notice or lapse of
time):
(a) contravene, conflict with or result in a violation of (i)
any of the provisions of Seller's articles of incorporation or bylaws, or (ii)
any resolution adopted by Seller's shareholders or Board of Directors;
(b) contravene, conflict with or result in a violation of, or
give any Governmental Body or other Person the right to challenge any of the
transactions contemplated by this Agreement or to exercise any remedy or obtain
any relief under, any Legal Requirement or any order, writ, injunction, judgment
or decree to which Seller, or any of the Purchased Assets is subject; or
(c) contravene, conflict with or result in a violation or
breach of, or result in a default under, any provision of any contract to which
Seller is a party, or give any Person the right to (i) declare a default or
exercise any remedy under any contract to which Seller is a party, (ii)
accelerate the maturity or performance of any contract to which Seller is a
party, or (iii) cancel, terminate or modify any contract to which Seller is a
party.
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Except for the required shareholder approval, Seller is not and will
not be required to make any filing with or given any notice to, or to obtain any
Consent from, any Person in connection with (x) the execution, delivery or
performance of this Agreement or any of the other agreements referred to in this
Agreement, or (y) the consummation of any of the transactions contemplated by
this Agreement, except to the extent the consent of third parties may be
required in connection with the assignment of the Purchased Assets.
Section 4.11 Environmental Matters.
(a) Seller has complied with and is in compliance with all
Environmental Laws, including without limitation Environmental Laws relating to
air, water, land and the generation, storage, use, handling, transportation,
treatment or disposal of hazardous wastes and hazardous substances (as such
terms are currently defined in any applicable Environmental Law), except to the
extent that noncompliance with any Environmental Law, either singly or in the
aggregate, does not and would not have a Material Adverse Effect;
(b) Seller has obtained and adhered to all necessary permits
and other approvals necessary to treat, transport, store, dispose of and
otherwise handle hazardous wastes and hazardous substances and has reported, to
the extent required by all Environmental Laws, all past and present sites owned
and operated by Seller where hazardous wastes or hazardous substances have been
treated, stored, disposed of or otherwise handled, except to the extent that a
failure to do so, either singly or in the aggregate, does not and would not have
a Material Adverse Effect;
(c) There have been no releases or threats of releases (as
defined in Environmental Laws) by Seller at, from, in or on any property owned
or operated by Seller except as permitted by Environmental Laws or where such
releases do not and would not have a Material Adverse Effect; and
(d) Seller and Parent know of no on-site or off-site location
to which Seller has transported or disposed of hazardous wastes and hazardous
substances or arranged for the transportation of hazardous wastes and hazardous
substances, which site is the subject of any federal, state, local or foreign
enforcement action or any other investigation which could lead to any claim
against Seller for any clean-up cost, remedial work, damage to natural resources
or personal injury, including without limitation any claim under United States
environmental statutes, as amended.
Section 4.12 Significant Customers; Material Contracts and Commitments.
Schedule 4.12 hereto contains an accurate list of all material contracts,
commitments, leases, instruments, agreements, licenses or permits to which
Seller is a party or by which it or its properties are bound (including without
limitation contracts with significant customers, joint venture or partnership
agreements, contracts with any labor organizations, loan agreements, indemnity
or guaranty agreements, bonds, mortgages, options to purchase land, liens,
pledges or other security agreements, employment contracts, and employee benefit
plans) (collectively, the "Seller Material Contracts"). Except to the extent set
forth on Schedule 4.12 hereto, (i) Seller has complied with its material
commitments and obligations and is not in default under any of the Seller
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Material Contracts and no notice of default has been received with respect to
any thereof and (ii) there are no Seller Material Contracts that were not
negotiated at arm's length with third parties not affiliated with Seller or any
officer, director or stockholder of Seller. Seller is not bound by or subject to
(and none of its respective assets or properties is bound by or subject to) any
arrangement with any labor union. No employees of Seller are represented by any
labor union or covered by any collective bargaining agreement and, to the best
of Seller's knowledge, no campaign to establish such representation is in
progress. Seller considers its relationship with its employees to be good.
Section 4.13 Intellectual Property.
Except for liens to be released at the Closing, Seller owns,
free and clear of any Encumbrance, or has the valid right to use all
Intellectual Property (as defined below) used by it in the Business. Each
employee of Seller who created any of Seller's Intellectual Property and each
independent contractor engaged by Seller who created any of Seller's
Intellectual Property has assigned to Seller all of such employee's or
contractor's right, title and interest in such Intellectual Property. No other
Person (other than licensors of software that is generally commercially
available, licensors of Intellectual Property under the agreements disclosed
pursuant to paragraph (c) below and non-exclusive licensees of Seller's
Intellectual Property in the ordinary course of the Business) has any rights to
any of the Intellectual Property owned or used by Seller, and, to Seller's and
Parent's knowledge, no other person or entity is infringing, violating or
misappropriating any of the Intellectual Property that Seller owns or has an
exclusive license to use. For purposes of this Agreement, "Intellectual
Property" means all (i) patents and patent applications, (ii) copyrights, and
registrations thereof, (iii) mask works and registrations and applications for
registration thereof, (iv) computer software, data and documentation, (v) trade
secrets and confidential business information, whether patentable or
unpatentable and whether or not reduced to practice, know-how, manufacturing and
production processes and techniques, research and development information,
copyrightable works, financial, marketing and business data, pricing and cost
information, business and marketing plans and customer and supplier lists and
information, (vi) trademarks, service marks, trade names, domain names and
applications and registrations therefor and (vii) other proprietary rights
relating to any of the foregoing.
(b) None of the activities of the Business and none of the
Intellectual Property owned or used by Seller (other than "off-the-shelf"
generally commercially available software) infringes, violates or constitutes a
misappropriation of (or in the past infringed, violated or constituted a
misappropriation of) any Intellectual Property of any other person or entity.
Seller has not received any written complaint, claim or notice alleging any such
infringement, violation or misappropriation.
(c) Except as set forth on Schedule 4.13, there are no
agreements with any Person pursuant to which Seller obtains rights to
Intellectual Property material to the business of Seller (other than software
that is generally commercially available) that is owned by a party other than
Seller. Other than license fees for software that is generally commercially
available, Seller is not obligated to pay any royalties or other compensation to
any third party in respect of its ownership, use or license of any of its
Intellectual Property.
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(d) Seller has taken reasonable precautions (i) to protect its rights in its
Intellectual Property and (ii) to maintain the confidentiality of its trade
secrets, know-how and other confidential Intellectual Property, and to Seller's
knowledge, there have been no acts or omissions by the officers, directors,
employees and agents of Seller, the result of which would be to materially
compromise the rights of Seller to apply for or enforce appropriate legal
protection of Seller's Intellectual Property.
Section 4.14 Software Licenses. Seller has all necessary licenses to
use all material third-party software used in the Business, and Seller's use of
third-party software does not infringe the rights of any Person.
Section 4.15 Full Disclosure. This Agreement, and all documents
delivered by Seller to Buyer in connection with the transactions contemplated
herein, do not (i) contain any representation, warranty or information that is
false or misleading with respect to any material fact, or (ii) omit to state any
material fact necessary in order to make the representations, warranties and
information contained and to be contained herein and therein not false or
misleading. Buyer has completed its due diligence investigation of Seller.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER.
---------------------------------------------
The obligations of Buyer to consummate the transactions contemplated by
this Agreement are subject to the satisfaction, at or prior to the Closing, of
each of the following conditions:
Section 5.01 Accuracy of Representations. Each of the representations
and warranties made by Seller and Parent in this Agreement and in each of the
other agreements and instruments delivered to Buyer and Parent in connection
with the transactions contemplated by this Agreement shall have been accurate in
all respects as of the date of this Agreement, and shall be accurate in all
respects as of the Closing Date as if made on the Closing Date.
Section 5.02 Performance of Covenants. Each covenant or obligation that
Seller is required to comply with or to perform at or prior to the Closing shall
have been complied with and performed in all respects.
Section 5.03 Consents. All Consents required to be obtained in
connection with the transactions contemplated by this Agreement shall have been
obtained and shall be in full force and effect.
Section 5.04 Agreements and Documents. Buyer shall have received a
certificate executed by Seller and Parent containing the representation and
warranty of Seller and Parent that each of the representations and warranties
set forth in Article IV is accurate in all material respects as of the Closing
Date as if made on the Closing Date and that the conditions set forth in Article
V have been duly satisfied.
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ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
---------------------------------------------
The obligations of Seller to consummate the transactions contemplated
by this Agreement are subject to the satisfaction, at or prior to the Closing,
of the following conditions:
Section 6.01 Accuracy of Representations. Each of the representations
and warranties made by Buyer in this Agreement and in each of the other
agreements and instruments delivered to Seller in connection with the
transactions contemplated by this Agreement shall have been accurate in all
respects as of the date of this Agreement, and shall be accurate in all respects
as of the Closing Date as if made on the Closing Date.
Section 6.02 Performance of Covenants. All of the covenants and
obligations that Buyer is required to comply with or to perform at or prior to
the Closing shall have been complied with and performed in all respects.
Section 6.03 Consents. All Consents required to be obtained in
connection with the transactions contemplated by this Agreement shall have been
obtained and shall be in full force and effect.
Section 6.04 Agreements and Documents. Seller shall have received a
certificate executed by Buyer, and containing the representation and warranty of
Buyer that each of the representations and warranties set forth in Article III
is accurate in all material respects as of the Closing Date as if made on the
Closing Date and that the conditions set forth in Article VI have been duly
satisfied.
ARTICLE VII
POST-CLOSING COVENANT OF BUYER
------------------------------
Buyer covenants with Seller and Parent that Buyer will undertake to
file a registration statement with the Securities and Exchange Commission as
soon as feasible (in Buyer's discretion) following the Closing, registering the
shares of Buyer's common stock to be issued hereunder. The Buyer shall notify
the Parent of its intent to file a registration statement covering any of the
Buyer's common stock, at least 45 days prior to the filing of such statement
(other than registration statements relating solely to employee benefit plans or
reorganizations). If Parent so requests within 20 days after the receipt of such
notice, Buyer shall use its best efforts to include the shares of stock of Buyer
issued hereunder within such registration statement, including any related blue
sky law qualification or other compliance. If the registration statement is for
an underwritten offering, the right of any shareholder to participate in such
offering shall be conditioned on his or her participation in the underwriting
and the inclusion of the shares of stock owned by such shareholder to the extent
permitted by the underwriter, and the shareholder's agreement to be bound by any
lock-up agreement required by the underwriter. The Buyer shall be required to
bear all expenses associated with the registration, including, but not limited
to all registration and qualification fees, printers' and accounting fees, fees
and disbursements of Buyer's counsel, and all underwriters' fees and expenses,
other than customary commissions. The provisions of this Article VII shall
survive the Closing until such time as all of the shares issued hereunder are
registered.
12
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS
AND WARRANTIES; INDEMNIFICATION
-------------------------------
Section 8.01 Survival of Representations and Warranties. All of the
representations and warranties of Buyer, Parent and Seller contained in this
Agreement shall survive the Closing and shall continue for a period of one year
following the Closing Date.
Section 8.02 Buyer Indemnity. Subject to the provisions of Section 8.04
hereof, Buyer shall defend, indemnify and hold harmless Seller and Parent (and
their respective directors, officers, employees, agents, affiliates, successors
and assigns) from and against any and all direct or indirect requests, demands,
claims, payments, defenses, obligations, recoveries, deficiencies, fines,
penalties, interest, assessments, actions, liens, causes of action, suits,
proceedings, judgments, losses, damages (including without limitation punitive,
exemplary or consequential damages and lost income and profits and interruptions
of business), liabilities, costs, and expenses of any kind (including without
limitation (i) interest, penalties and reasonable attorneys' fees and expenses,
(ii) attorneys' fees and expenses necessary to enforce their rights to
indemnification hereunder, and (iii) consultants' fees and other costs of
defending or investigating any claim hereunder) whether accrued, absolute,
contingent, known, unknown or otherwise as of the Closing Date or thereafter
asserted against, imposed upon or incurred by Seller or a shareholder, officer,
or director of Seller or its respective representatives or assigns, by reason
of, resulting from, arising out of, based upon, awarded or asserted against in
respect of or otherwise in respect of any breach of any representation and
warranty contained in this Agreement, or any misrepresentation in or omission
from any certificate furnished or to be furnished to Seller by Buyer pursuant to
this Agreement.
The remedy and right of recovery for any indemnity claim covered hereby
shall be limited to $1,650,000. The indemnity herein contained shall expire one
year following the Closing; provided, however, that if an indemnity claim is
asserted prior to such expiration date, but is contested or otherwise not
resolved at such expiration date, this indemnity shall expire with respect to
such claim only upon resolution of the claim.
Section 8.03 Indemnity Agreement of Parent and Seller. Seller and
Parent, jointly and severally, shall indemnify and hold harmless Buyer and its
officers and directors (and their successors and assigns) from and against any
and all demands, claims, payments, defenses, obligations, recoveries,
deficiencies, fines, penalties, interest, assessments, actions, liens, causes of
action, suits, proceedings, judgments, losses, damages (including without
13
limitation punitive, exemplary or consequential damages, lost income and
profits, interruptions of business and diminution in the value of stock),
liabilities, costs, and expenses of any kind (including without limitation (i)
interest, penalties and reasonable attorneys' fees and expenses, (ii) attorneys'
fees and expenses necessary to enforce their rights to indemnification
hereunder, and (iii) consultants' fees and other costs of defending or
investigating any claim hereunder), whether accrued, absolute, contingent,
known, unknown, or otherwise as of the Closing Date or thereafter asserted
against, imposed upon or incurred by Buyer or its directors, officers,
employees, agents, affiliates, successors or assigns by reason of, resulting
from, arising out of, based upon, awarded or asserted against or otherwise in
respect of:
(a) any period or periods of Seller ending prior to the
Closing and which involve any claims against Buyer, Parent, Seller, or their
respective properties or assets, relating to actions or inactions of Seller or
its officers, directors, shareholder, employees or agents prior to Closing, or
the operation of the Business prior to the Closing;
(b) any breach of any representation and warranty contained in
this Agreement or any misrepresentation in or omission on the part of Seller or
Parent contained in any certificate furnished or to be furnished to Buyer by
Seller or Parent pursuant to this Agreement.
Section 8.04 Indemnification Procedure.
(a) Upon obtaining knowledge thereof, the party to be
indemnified hereunder (the "Indemnitee") shall promptly notify the indemnifying
party hereunder (the "Indemnitor") in writing of any damage, claim, loss,
liability or expense or other matter which the Indemnitee has determined has
given or could give rise to a claim for which indemnification rights are granted
hereunder (such written notice referred to as the "Notice of Claim"). The Notice
of Claim shall specify, in all reasonable detail, the nature and estimated
amount of any such claim giving rise to a right of indemnification, to the
extent the same can reasonably be estimated. Any failure on the part of an
Indemnitee to give timely notice to the Indemnitor of a claim shall not affect
the right of the Indemnitee to obtain indemnification from the Indemnitor with
respect to such claim unless the Indemnitor is materially and adversely affected
thereby.
(b) With respect to any matter set forth in a Notice of Claim relating to a
third-party claim, the Indemnitor shall have the absolute right to defend, in
good faith and at its expense, any such claim or demand, and the Indemnitee, at
its expense, shall have the right to participate in the defense of any such
third party claim. So long as Indemnitor is defending, in good faith, any such
third party claim, the Indemnitee shall not settle or compromise such third
party claim. The Indemnitee shall make available to the Indemnitor or its
representatives all records and other materials reasonably required by them for
use in contesting any third party claim and shall cooperate fully with the
Indemnitor in the defense of all such claims. If the Indemnitor does not defend
any such third-party claim or if the Indemnitor does not provide the Indemnitee
with prompt and reasonable assurances that the Indemnitor will satisfy the third
party claim, the Indemnitee may, at its option, elect to defend any such third
party claim at the Indemnitor's expense. An Indemnitor may not settle or
compromise any claim without obtaining a full and unconditional release of the
Indemnitee, unless the Indemnitee consents in writing to such settlement or
compromise.
14
(c) Mitigation of Damages. The party entitled to
indemnification shall take all reasonable steps to mitigate all indemnifiable
liabilities and damages upon and after becoming aware of any event that could
reasonably be expected to give rise to any liabilities and damages that are
indemnifiable hereunder.
ARTICLE IX
CONDUCT OF THE PARTIES AFTER CLOSING
------------------------------------
Section 9.01 Cooperation. The Buyer and the Seller will cooperate upon
and after the Closing Date in effecting the orderly transfer of the Purchased
Assets to the Buyer. Without limiting the generality of the foregoing, the
Seller, at the request of the Buyer without additional consideration, will
execute and deliver from time to time such further instruments of assignment,
conveyance and transfer, will sign any documents necessary or useful to ensure
that all of the right, title and interest in and to the Purchased Assets vests
in the Buyer, will cooperate in the conduct of litigation and the processing and
collection of insurance claims, and will take such other actions as may
reasonably be required to convey and deliver to the Buyer more effective title
to the Purchased Assets, or to confirm and perfect the Buyer's title thereto, as
contemplated by this Agreement.
Section 9.02 Access to Books and Records. As long as the Buyer retains
any books and records of Seller's business acquired by the Buyer hereunder, it
will provide the Seller with reasonable access during customary business hours
to such books and records and as long as the Seller retains the books and
records of the Seller's business retained by the Seller hereunder, it will
provide the Buyer with reasonable access during customary business hours to such
books and records. Prior to the disposal of any such books and records by any
party hereto, such party shall provide 60 days' prior written notice to the
other party and shall relinquish possession of such books and records to such
other party upon receipt of a written request therefor within the 60-day time
period.
Section 9.03 Use of Name. The Seller shall discontinue the use of the
name "Zeosoft," or any derivation thereof effective upon the Closing Date. Prior
to the Closing Date, the Buyer may change its corporate name to a name including
the word "Zeosoft" or any derivation thereof.
ARTICLE X
MISCELLANEOUS
-------------
Section 10.01 144 Legend. To the extent required by law, the securities
of Buyer to be issued hereunder shall be characterized as "restricted
securities" for purposes of Rule 144 under the Securities Act, and each
certificate representing any of such shares shall bear a legend identical or
similar in effect to the following legend (together with any other legend or
legends required by applicable state securities laws or otherwise):
15
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT
SUCH REGISTRATION IS NOT REQUIRED.
To the extent permitted by law, Buyer will permit the shareholders of
Parent to tack the Rule 144 holding period on to the shares of Parent common
stock to be issued and delivered hereunder.
Section 10.02 Further Assurances. Each party hereto shall execute and
cause to be delivered to each other party hereto such instruments and other
documents, and shall take such other actions, as such other party may reasonably
request (prior to, at, or after the Closing) for the purpose of carrying out or
evidencing any of the transactions contemplated by this Agreement.
Section 10.03 Fees and Expenses. All fees, costs and expenses
(including legal fees and accounting fees) that have been incurred or that are
incurred in the future by any party in connection with the transactions
contemplated by this Agreement, including all fees, costs and expenses incurred
by such party in connection with or by virtue of (a) any investigation and
review conducted by such party of the other party's business (and the furnishing
of information in connection with such investigation and review), (b) the
negotiation, preparation and review of this Agreement and all agreements,
certificates, opinions and other instruments and documents delivered or to be
delivered in connection with the transactions contemplated by this Agreement,
(c) the preparation and submission of any filing or notice required to be made
or given in connection with any of the transactions contemplated by this
Agreement, and the obtaining of any Consent required to be obtained in
connection with any of such transactions, and (d) the consummation of the
transactions contemplated hereby shall be paid: (i) by Buyer, if incurred by
Buyer; and (ii) by Seller, if incurred by Seller.
Section 10.04 Attorneys' Fees. If any action or proceeding relating to
this Agreement or the enforcement of any provision of this Agreement is brought
against any party hereto, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any other
relief to which the prevailing party may be entitled).
Section 10.05 Notices. Any notice or other communication required or
permitted to be delivered to any party under this Agreement shall be in writing
and shall be deemed properly delivered, given and received when delivered (by
hand, by registered mail, by courier or express delivery service or by
facsimile) to the address or facsimile telephone number set forth beneath the
name of such party below (or to such other address or facsimile telephone number
as such party shall have specified in a written notice given to the other
parties hereto):
16
if to Seller or Parent:
Neometrix Technology Group, Inc.
0000 Xxxxxxx 000
Xxxxx X
Xxxxxxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxx, Esq.
New Venture Attorneys
00000 Xxxxxxx Xxx
Xxxxx 000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
if to Buyer:
Xxxxxxxxx Technology Group, Inc.
0000 Xxx Xxxx Xxxxxxxxxx Xxxx.
Xxxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx X. Xxxxxx, Esq.
0000 Xxx Xxxx Xxxxxxxxxx Xxxx.
Xxxxx, XX 00000
Facsimile: (000) 000-0000
Section 10.06 Severability. In the event that any provision of this
Agreement, or the application of any such provision to any Person or set of
circumstances, shall be determined to be invalid, unlawful, void or
unenforceable to any extent, the remainder of this Agreement, and the
application of such provision to Persons or circumstances other than those as to
which it is determined to be invalid, unlawful, void or unenforceable, shall not
be impaired or otherwise affected and shall continue to be valid and enforceable
to the fullest extent permitted by law.
Section 10.07 Headings. The Section headings contained in this
Agreement are for convenience of reference only, shall not be deemed to be a
part of this Agreement and shall not be referred to in connection with the
construction or interpretation of this Agreement.
17
Section 10.08 Counterparts. This Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
Section 10.09 Governing Law; Venue.
(a) This Agreement shall be construed in accordance with, and
governed in all respects by, the internal laws of the State of Florida (without
giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to
this Agreement or the enforcement of any provision of this Agreement shall be
brought in or otherwise commenced in any state or federal court located in
Hillsborough County, Florida. Each party to this Agreement:
(i) expressly and irrevocably consents and submits to
the jurisdiction of each state and federal court located in
Hillsborough County, Florida in connection with any such legal
proceeding;
(ii) agrees that each state and federal court located
in Hillsborough County, Florida shall be deemed to be a convenient
forum; and
(iii) agrees not to assert (by way of motion, as a
defense or otherwise), in any such legal proceeding commenced in any
state or federal court located in Hillsborough County, Florida, any
claim that such party is not subject personally to the jurisdiction of
such court, that such legal proceeding has been brought in an
inconvenient forum, that the venue of such proceeding is improper or
that this Agreement or the subject matter of this Agreement may not be
enforced in or by such court.
Section 10.10 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. There are no intended third-party beneficiaries hereof.
Section 10.11 Remedies Cumulative; Specific Performance. The rights and
remedies of the parties hereto shall be cumulative (and not alternative). The
parties to this Agreement agree that, in the event of any breach or threatened
breach by any party to this Agreement of any covenant, obligation or other
provision set forth in this Agreement for the benefit of any other party to this
Agreement, such other party shall be entitled (in addition to any other remedy
that may be available to it) to (a) a decree or order of specific performance or
mandamus to enforce the observance and performance of such covenant, obligation
or other provision, and (b) an injunction restraining such breach or threatened
breach.
Section 10.12 Waiver.
(a) No failure on the part of any party to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of any
party in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy.
18
(b) No party shall be deemed to have waived any claim arising
out of this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and delivered on
behalf of such party; and any such waiver shall not be applicable or have any
effect except in the specific instance in which it is given.
Section 10.13 Amendments. This Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of all of the parties hereto.
Section 10.14 Entire Agreement. This Agreement and the attached
Exhibits and Schedules sets forth the entire understanding of the parties hereto
relating to the subject matter hereof and thereof and supersedes all prior
agreements and understandings among or between any of the parties relating to
the subject matter hereof.
Section 10.15 Construction.
(a) For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to
the effect that ambiguities are to be resolved against the drafting party shall
not be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this
Agreement to "Sections," "Schedules" and "Exhibits" are intended to refer to
Sections of this Agreement and the Schedules and Exhibits to this Agreement.
(e) Certain capitalized terms used in this Agreement are
defined in Exhibit A.
19
The parties hereto have caused this Agreement to be executed and
delivered as of the date first above written.
XXXXXXXXX TECHNOLOGY GROUP, INC., a Florida corporation
By:__________________________________________
-
Its:
NEOMETRIX TECHNOLOGY GROUP, INC., a Delaware corporation
By:__________________________________________
-
Its:
NEOMETRIX ACQUISITION I, INC., a Delaware corporation
By:__________________________________________
-
Its:
The undersigned joins in this Agreement solely for the purpose of
agreeing to act as Escrow Agent under Section 2.06
X.X. XXXXXX, P.A.
By:_______________________________________
Xxxxxxxx Xxxx Xxxxxx, President
20
EXHIBIT A
CERTAIN DEFINITIONS
For purposes of the Agreement (including this Exhibit A):
CONSENT. "Consent" shall mean any approval, consent, ratification,
permission, waiver or authorization (including from a Governmental Body).
CONTRACT. "Contract" shall mean any written, oral or other agreement,
contract, subcontract, lease, understanding, instrument, note, warranty,
insurance policy, benefit plan, or legally binding commitment or undertaking of
any nature.
ENTITY. "Entity" shall mean any corporation (including any non-profit
corporation), general partnership, limited partnership, limited liability
partnership, joint venture, estate, trust, company (including any limited
liability company or joint stock company), firm or other enterprise,
association, organization or entity.
GOVERNMENTAL BODY. "Governmental Body" shall mean any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any foreign country or any domestic or foreign state, county,
city, local or other political subdivision.
LEGAL PROCEEDING. "Legal Proceeding" shall mean any action, suit,
litigation, arbitration, proceeding (including any civil, criminal,
administrative, investigative or appellate proceeding), hearing, inquiry, audit,
examination or investigation commenced, brought, conducted or heard by or
before, or otherwise involving, any court or other Governmental Body or any
arbitrator or arbitration panel.
LEGAL REQUIREMENT. "Legal Requirement" shall mean any federal, state,
local, municipal, foreign or other law, statute, constitute, principle of common
law, resolution, ordinance, code, edict, decree, rule, regulation, ruling or
requirement issued, enacted, adopted, promulgated, implemented or otherwise put
into effect by or under the authority of any Governmental Body.
MATERIAL ADVERSE EFFECT. A violation or other matter will be deemed to
have a "Material Adverse Effect" on a Person if such violation or other matter
(considered together with all other matters that would constitute exceptions to
the representations and warranties set forth in the Agreement or in any Closing
Certificate but for the presence of "Material Adverse Effect" or other
materiality qualifications, or any similar qualifications, in such
representations and warranties) would have a material adverse effect on such
Person's business, condition, assets, liabilities, operations, financial
performance or prospects.
PERSON. "Person" shall mean any individual, Entity or Governmental
Body.
TAX. "Tax" shall mean any tax (including any income tax, franchise tax,
capital gains tax, gross receipts tax, value-added tax, surtax, excise tax, ad
valorem tax, transfer tax, stamp tax, sales tax, use tax, property tax, business
tax, withholding tax or payroll tax), levy, assessment, tariff, duty (including
any customs duty), deficiency or fee, and any related charge or amount
(including any fine, penalty or interest), imposed, assessed or collected by or
under the authority of any Governmental Body.
TAX RETURN. "Tax Return" shall mean any return (including any
information return), report, statement, declaration, estimate, schedule, notice,
notification, form, election, certificate or other document or information filed
with or submitted to, or required to be filed with or submitted to, any
Governmental Body in connection with the determination, assessment, collection
or payment of any Tax or in connection with the administration, implementation
or enforcement of or compliance with any Legal Requirement relating to any Tax.
EXHIBIT B
---------
PURCHASE PRICE ALLOCATION
-------------------------
EXHIBIT C
---------
XXXX OF SALE AND ASSIGNMENT
---------------------------
KNOW ALL MEN BY THESE PRESENTS THAT, for value received, the
undersigned, NEOMETRIX ACQUISITION I, INC., a Delaware corporation ("Seller"),
does hereby sell, assign, convey and transfer unto XXXXXXXXX TECHNOLOGY GROUP,
INC., a Florida corporation ("Buyer"), all of Seller's right, title and interest
in and to the personal property more particularly described on Exhibit "A"
attached hereto and made a part hereof.
Seller hereby warrants to Buyer, its successors and assigns, that
Seller is the rightful owner of the property conveyed; that Seller is conveying
to Buyer good and merchantable title to all of the property conveyed, free and
clear of all liabilities, obligations, claims, and encumbrances of any kind or
nature; and that Seller (and Seller's successors and assigns) will warrant and
defend this sale against the claims and demands of all persons whomsoever.
Seller hereby covenants and agrees that it will, at the request of
Buyer and without further consideration, execute and deliver, and will cause its
employees to execute and deliver, such other instruments of sale, transfer,
conveyance and assignment, and take such other action as may be reasonably
necessary to vest in Buyer, its successors and assigns, good and merchantable
title to the property conveyed, free and clear of all liabilities, obligations,
claims, and encumbrances of any kind or nature and to put Buyer in control and
possession thereof.
Seller does hereby irrevocably constitute Buyer, its successors and
assigns, as Seller's true and lawful attorney-in-fact, with full power of
substitution, in Seller's or Buyer's name, to claim, demand, collect and receive
the property conveyed.
This instrument shall be binding on Seller and its successors and
assigns, and shall inure to the benefit of Buyer and its successors and assigns.
Dated this 29th day of August, 2003.
SELLER:
NEOMETRIX ACQUISITION I, INC.,
a Delaware corporation
By:_______________________________
Norman Birmingham, President
Schedule 1.01(a)
----------------
TRADEMARKS, TRADEMARK APPLICATIONS,
PATENTS, AND PATENT APPLICATIONS
--------------------------------
1. The invention described in the application for United States Letters Patent
entitled "DISTRIBUTED MULTI- USER, MULTI-THREADED APPLICATION DEVELOPMENT SYSTEM
AND METHOD" filed on September 26, 2000, and identified by U.S. Serial No.
09/670,988 (Inventors - Xxxxxx Xxxxxx and Xxxx Xxxxxxxx).
2. Tthe invention described in the application for United States Letters Patent
entitled "SYSTEM FOR DEVELOPMENT, MANAGEMENT AND OPERATION OF DISTRIBUTED
CLIENTS AND SERVERS" filed on October 11, 2002, and identified by U.S. Serial
No. 10/268,924.
3. The invention described in the application for United States Letters Patent
entitled "DISTRIBUTED MULTI- USER, MULTI-THREADED APPLICATION DEVELOPMENT SYSTEM
AND METHOD" filed on March 30, 1998, and identified by U.S. Patent No. 6,125,363
(Inventors - Xxxxxx Xxxxxx and Xxxx Xxxxxxxx).
4. the marks "ZEOSOFT," "ZEOFUSION," "ZEOSPHERE," "ON DEMAND MOBILE SERVERS,"
and "ON DEMAND MOBILE SERVER NETWORKS" (collectively, the "Marks") and the
applications for registration of the Marks with the United States Patent and
Trademark Office, which applications have been assigned Serial Nos. 78204994,
78205026, 78205001, 78205034, and 78205037, respectively.
Schedule 1.01(k)
----------------
CONTRACTS
---------
Schedule 4.03
-------------
TAX RETURNS
-----------
None.
Schedule 4.04
-------------
INSURANCE POLICIES
------------------
Schedule 4.05
-------------
LEGAL PROCEEDINGS
-----------------
None.
Schedule 4.06
-------------
TITLE EXCEPTIONS
----------------
None.
Schedule 4.07
-------------
LEASED REAL PROPERTY
--------------------
1. Lease of real property located at 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, XX,
leased from Boulevard Plaza Associates, L.P. The lease expires 10/15/04.
2. Lease of real property located at 0000 X. Xxxxxxxx Xxxxx, Xxxxxxxxxx, XX,
leased from B-H Associates. The lease is month-to-month.
Schedule 4.12
-------------
MATERIAL CONTRACTS
------------------
Schedule 4.13
-------------
INTELLECTUAL PROPERTY EXCEPTIONS
--------------------------------
AMENDMENT NO. 1 TO ASSET ACQUISITION AGREEMENT
----------------------------------------------
This is an Amendment, dated September 3, 2003, to that certain Asset
Acquisition Agreement (the "Agreement") dated August 29, 2003, by and among
Neometrix Acquisition I, Inc., a Delaware corporation (hereafter "Seller"),
Neometrix Technology Group, Inc., a Delaware corporation (hereafter, "Parent"),
and Xxxxxxxxx Technology Group, Inc., n/k/a Zeosoft Technology Group, Inc., a
Florida corporation (hereafter "Buyer")
BACKGROUND
----------
WHEREAS, the parties executed the Agreement on August 29, 2003, and
Buyer purchased substantially all the assets of Seller on that date; and
WHEREAS, the Parent has offered Buyer the opportunity to exchange one
share of Parent's common capital stock for each share of Buyer's common stock to
be delivered to Parent in exchange for Seller's Class B Secured Promissory
Notes; and
WHEREAS, the Buyer is willing to participate in such exchange;
NOW, THEREFORE, the Buyer, the Seller, and the Parent agree as follows:
ARTICLE I
SALE AND PURCHASE OF ASSETS
---------------------------
1. Amendment to Section 2.01of Agreement. The parties hereby amend Section 2.01
of the Agreement by replacing subsection (f) thereof with the following:
"(f) Buyer will deliver to Parent one (1) share of Parent's common
stock in exchange for each share of Buyer's common stock that Seller delivers to
Parent pursuant to subsection (e), above."
2. Amendment to Section 2.06 of Agreement. The parties hereby amend the second
paragraph of Section 2.06 of the Agreement to read as follows:
"If items are deposited with the Escrow Agent, then within 30 days of
Closing, the Buyer and Seller will complete and agree on the calculation of the
balance due to the holders of the A-1 and A-2 Notes and the number of shares to
be received by the holders of the A-1 and A-2 Notes, and the number of Buyer
shares to be distributed to Parent and exchanged for a like number of Parent's
common shares. Seller and Buyer will thereupon notify Escrow Agent of the number
of Buyer's shares to be issued to the holders of the A-1 and A-2 Notes and to
Parent. Escrow Agent will thereupon fill in the blanks on each of the stock
powers that it holds, deliver the stock powers and share certificate to Buyer,
and Buyer will deliver certificates for the Parent shares to Parent."
3. Deletion of Article VII. Article VII of the Agreement is hereby deleted.
4. Miscellaneous. Except as amended hereby, the Agreement is hereby ratified and
confirmed. All capitalized terms not defined herein shall have the meanings
ascribed in the Agreement. The recitals, entitled "Background," are incorporated
herein.
The parties hereto have caused this Amendment to be executed and
delivered as of the date first above written.
XXXXXXXXX TECHNOLOGY GROUP, INC., n/k/a ZEOSOFT TECHNOLOGY
GROUP, INC., a Florida corporation
By:__________________________________________
Xxxxx Xxxxxxxx, President
NEOMETRIX TECHNOLOGY GROUP, INC., a Delaware corporation
By:__________________________________________
Xxxxxxx XxXxxxxx, President
NEOMETRIX ACQUISITION I, INC., a Delaware corporation
By:__________________________________________
Norman Birmingham, President
The undersigned joins in this Amendment solely for the purpose of
agreeing to the amendments to its duties as Escrow Agent under Section 2.06 of
the Agreement.
X.X. XXXXXX, P.A.
By:_______________________________________
Xxxxxxxx Xxxx Xxxxxx, President
