ASSET PURCHASE AGREEMENT
THIS AGREEMENT made as of the 1st day of June, 2001 between XXXXXXX.XXX,
INC., a corporation organized and existing under the laws of Washington, (the
"Seller") and ITEX CORPORATION, a corporation organized and existing under the
laws of Nevada, (the "Buyer").
WHEREAS the Seller desires to sell certain assets of the business carried
on by the Seller consisting of on-line and off-line barter trading operations
and the Buyer wishes to purchase such property and assets on the terms
hereinafter set forth;
NOW THEREFORE THIS AGREEMENT WITNESSES that for good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by
each of the parties hereto) the parties agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions - In this Agreement, the following words and terms shall have
the following respective meanings:
(a) "Agreement" means this Purchase Agreement and all instruments
supplemental hereto or in amendment or confirmation hereof;
"hereof", "hereto", and "hereunder" and similar expressions mean
and refer to this Agreement and not to any particular Article or
Section; "Article" or "Section" mean and refer to the specified
article or section of this Agreement;
(b) "Closing Date" means the 1st day of June, 2001, or such other
date as the parties may agree as to the date upon which the
completion of the sale and purchase of the Purchased Assets
hereunder shall take place; and
(c) "Purchased Assets" means collectively:
(i) the assets listed in Exhibit A;
(ii) the customer list set out in Exhibit B;
(iii) the receivables listed in Exhibit C; and
(iv) the computers to operate the Web site listed in Exhibit E.
1.2 Headings - The division of this Agreement into Articles and Sections and the
insertion of headings are solely for convenience of reference only and shall not
affect the construction or interpretation of this Agreement.
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ARTICLE 2
PURCHASE AND SALE
2.1 Purchase and Sale - The Seller agrees to sell to the Buyer and the Buyer
agrees to buy from the Seller on the Closing Date on the terms hereof the
Purchased Assets for a purchase price of $300,000 USD (the "Purchase Price").
The Buyer acknowledges that certain of the Purchased Assets are not owned by the
Seller but are leased or licensed from third parties and that for these assets
the Buyer is not purchasing the assets outright but is purchasing the Seller's
leasehold interest or interest in the license.
2.2 Payment - The Purchase Price shall be payable to the Seller on or before May
21, 2001 as follows:
(a) $300,000 USD by way of company check, receipt by Seller is hereby
acknowledged.
2.3 Allocation of Purchase Price - The Seller and the Buyer agree that the
Purchase Price shall be allocated among the Purchased Assets in accordance with
Exhibit A and that they will prepare and file their respective federal income
tax returns in a manner consistent with such allocation.
2.4 Transfer Taxes - The Buyer shall be liable for and shall pay all sales, use
and similar taxes and transfer taxes or other like charges payable upon and in
connection with the transfer of the Purchased Assets by the Seller to the Buyer.
2.5 Assumption Of Liabilities - The Buyer agrees to discharge, assume and
perform the following contracts, agreements, obligations, leases, licences,
engagements, commitments, undertakings, debts and liabilities (collectively, the
"Obligations") of the Seller:
(a) the liabilities and obligations of the Seller in connection with
telephone and fax lines and other business related services used in
connection with the Purchased Assets which arise after the Closing
Date;
(b) the positive and negative trade balances of the Seller in connection
with the Ubarter trade exchange which has an aggregate surplus in
excess of 300,000 trade dollars pursuant to Exhibit B; and
(c) all Obligations of the Seller accruing after the Closing Date in
respect of the Purchased Assets.
2.6 Buyer to Indemnify -
(a) In accordance with and subject to the provisions of this section 2.6,
Buyer shall indemnify and hold harmless Seller, its officers directors
and employees from and against and in respect of any and all claims,
demands, losses, costs, expenses, liabilities, damages, including
interest, penalties, and reasonable attorney fees and amounts paid in
settlement, (collectively, "Indemnified Losses") suffered or incurred
by Seller, by reason of, or arising out of:
(i) any material breach of a representation or warranty contained in
this Agreement or other transaction documents to which Buyer is a
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party, or any failure by Buyer to perform in connection
therewith, or the breach of any covenant or agreement in this
Agreement or other transaction documents, to which Buyer is a
party, or any failure by Buyer to perform in connection
therewith; and
(ii) the failure of Buyer to pay, satisfy, discharge, perform and
fulfil any of the Obligations expressly assumed by the Buyer
pursuant to this Agreement.
(b) Buyer shall have no liability to Seller under this Agreement except to
the extent of the purchase price, provided that Seller shall be
entitled to pursue any equitable remedy provided in this Agreement or
by law.
(c) The indemnities given in section 2.6(a) and the right of Seller to
submit Claims shall expire six (6) months from the date of this
Agreement.
(d) Seller shall give written notice (the "Claim Notice") of any Claim for
indemnification under this section to Buyer as promptly as
practicable, but in any event: (i) if such Claim relates to the
assertion against Seller of any claim by a third party (a "Third Party
Claim"), within 30 days after the assertion of such Third Party Claim,
or (ii) if such Claim is not in respect of a Third Party Claim, within
30 days after the discovery of facts upon which Seller intends to base
a Claim for indemnification pursuant to this section; provided,
however, that the failure or delay to so notify Buyer shall not
relieve Buyer of any obligation or liability that Buyer may have to
Seller except to the extent that Buyer demonstrates that Buyer's
ability to defend or resolve such Claim is adversely affected thereby.
Any such Claim Notice shall describe the facts and circumstances on
which the asserted Claim for indemnification is based. Subject to the
rights of or duties to any insurer or other third party having
potential liability therefor, the Buyer shall have the right, upon
written notice given to Seller within 30 days after receipt of the
notice from Seller of any Third Party Claim, to assume the defense or
handling of such Third Party Claim, at Buyer's expense, in which case
the following provisions shall govern.
(e) Buyer shall select counsel reasonably acceptable to Seller in
connection with conducting the defense or handling of such Third Party
Claim, and the Buyer shall keep Seller timely apprised of the status
of such Third Party Claim. Buyer shall not, without the prior written
consent of Seller, agree to a settlement of any Third Party Claim,
unless (A) the settlement provides an acceptable release and discharge
of Seller and Seller is reasonably satisfied with such discharge and
release and (B) the Seller shall not have reasonably objected to any
such settlement on the ground that the circumstances surrounding the
settlement could result in an adverse impact on the business,
operations, assets, liabilities (absolute, accrued, contingent or
otherwise), condition (financial or otherwise) or prospects of Seller.
Seller shall cooperate with Buyer and shall be entitled to participate
in the defense or handling of such Third Party Claim with its own
counsel and at its own expense.
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2.7 Assignment of Contracts - To the extent the assignment of any contract,
lease, license, agreement or commitment to be assigned to the Buyer pursuant to
the terms of this agreement shall require the consent of any other party thereto
or shall be subject to any equity or option in any other person by reason of a
request for permission to assign or transfer, this agreement shall not
constitute a contract to assign the same if an attempted assignment would
constitute a breach thereof or create any rights in other persons not desired by
the Buyer. The Seller shall use its best efforts to procure consents to any such
assignment provided that if such consent is not obtained, the Seller shall
cooperate with the Buyer in any reasonable arrangement to provide the Buyer with
the benefit of any such contract and the Buyer will remain responsible for the
liabilities under any such contract, lease, agreement or commitment.
2.8 Transition - The Buyer will begin to service the customer base beginning on
June 1, 2001. Telephone, fax and emails will be forwarded to the Buyer's
Issaquah location. A letter dated May 31, 2001 will be mailed to the Seller's
customers stating that the Buyer is purchasing certain of the Seller's assets
and will begin servicing the accounts on June 1. Seller will continue web
hosting, in a manner consistent with its current practice as of the Closing
Date, at its own expense until the earlier of June 30, 2001 or the date that the
site and all hardware are successfully moved to Buyer's corporate office in
Sacramento. Seller will transfer and install hardware, staging and production
components from Seattle, Washington to Buyer's corporate office in Sacramento in
order. to operate the Website located at xxx.xxxxxxx.xxx. Buyer will be
responsible for all costs, except labor performed by Seller's employees,
associated with the transfer and installation described above. Seller will
provide Buyer with consultative access to Mr. Xxxxxx Xxxxx, Xx. Xxxx Xxxxxx and
Mrs. Xxxxxxx Xxxx until June 30, 2001 at no cost to Buyer (and will waive any
non-competition agreements as required therefor). Transportation and lodging of
personnel shall be paid for by Buyer.
2.9 Trade Accounts - At or prior to the Closing Date, Seller will close all
"house" and "corporate" trading accounts with the exception of the main Network
Commerce Inc. account. The main Network Commerce Inc. account will be adjusted
to have 300,000 trade dollars on May 31, 2001. No service fees will apply to
this account in the future.
2.10 Seller Indemnification -
(a) In accordance with and subject to the provisions of this section 2.10,
Seller shall indemnify and hold harmless Buyer, its officers directors
and employees from and against and in respect of any and all claims,
demands, losses, costs, expenses, liabilities, damages, including
interest, penalties, and reasonable attorney fees and amounts paid in
settlement, (collectively, "Indemnified Losses") suffered or incurred
by Buyer, by reason of, or arising out of:
(i) any material breach of a representation or warranty contained in
this Agreement or other transaction documents to which Seller is
a party, or any failure by Seller to perform in connection
therewith, or the breach of any covenant or agreement in this
Agreement or other transaction documents, to which Seller is a
party, or any failure by Seller to perform in connection
therewith; and
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(ii) any liabilities of Seller arising or incurred prior to the
Closing except the Obligations expressly assumed by the Buyer
pursuant to this Agreement.
(iii)any liabilities of Seller arising from Seller's failure to
follow Washington's bulk sale transfer law.
(b) Seller shall have no liability to Buyer under this Agreement except to
the extent of the purchase price, provided that Buyer shall be
entitled to pursue any equitable remedy provided in this Agreement or
by law.
(c) The indemnities given in section 2.10(a) and the right of Buyer to
submit Claims shall expire six (6) months from the date of this
Agreement, except for claims arising out of those actions described in
Exhibit D which shall expire six (6) months following the entry of
judgment, or an order dismissing the case with prejudice, as the case
demands, with prior written notice to Buyer.
(d) Buyer shall give written notice (the "Claim Notice") of any Claim for
indemnification under this section to Seller as promptly as
practicable, but in any event: (i) if such Claim relates to the
assertion against Buyer of any claim by a third party (a "Third Party
Claim"), within 30 days after the assertion of such Third Party Claim,
or (ii) if such Claim is not in respect of a Third Party Claim, within
30 days after the discovery of facts upon which Buyer intends to base
a Claim for indemnification pursuant to this section; provided,
however, that the failure or delay to so notify Seller shall not
relieve Seller of any obligation or liability that Seller may have to
Buyer except to the extent that Seller demonstrates that Seller's
ability to defend or resolve such Claim is adversely affected thereby.
Any such Claim Notice shall describe the facts and circumstances on
which the asserted Claim for indemnification is based. Subject to the
rights of or duties to any insurer or other third party having
potential liability therefor, the Seller shall have the right, upon
written notice given to Buyer within 30 days after receipt of the
notice from Buyer of any Third Party Claim, to assume the defense or
handling of such Third Party Claim, at Seller's expense, in which case
the following provisions shall govern.
(e) Seller shall select counsel reasonably acceptable to Buyer in
connection with conducting the defense or handling of such Third Party
Claim, and the Seller shall keep Buyer timely apprised of the status
of such Third Party Claim. Seller shall not, without the prior written
consent of Buyer, agree to a settlement of any Third Party Claim,
unless (A) the settlement provides an acceptable release and discharge
of Buyer and Buyer is reasonably satisfied with such discharge and
release and (B) the Buyer shall not have reasonably objected to any
such settlement on the ground that the circumstances surrounding the
settlement could result in an adverse impact on the business,
operations, assets, liabilities (absolute, accrued, contingent or
otherwise), condition (financial or otherwise) or prospects of Buyer.
Buyer shall cooperate with Seller and shall be entitled to participate
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in the defense or handling of such Third Party Claim with its own
counsel and at its own expense.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties - Each of the Buyer and the Seller hereby
covenants, represents and warrants to the other of them that:
(a) Organization and Good Standing - It is a corporation duly incorporated
and organized, validly existing, in good standing and is up to date in
all of the filings and registrations required under the laws of its
jurisdiction of incorporation.
(b) Due Authorization, Etc. - It has all necessary corporate power,
authority and capacity to enter into this Agreement and the agreements
and other instruments contemplated herein and to perform its
obligations hereunder and thereunder. The execution and delivery of
this Agreement and the agreements and other instruments contemplated
herein and the performance of the transactions contemplated hereunder
and thereunder have been duly authorized by all necessary corporate
action on its part.
(c) No Violation - It is not a party to, bound by or subject to any
indenture, mortgage, lease, agreement, instrument, charter or by-law
provision, statute, regulation, order, judgement, decree or law which
would be violated, contravened or breached by, or under which any
default would occur as a result of the execution and delivery by it of
this Agreement or the performance by it of any of the terms hereof.
(d) No Broker - All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried on between the
parties directly and without the intervention of any other party in
such manner as to give rise to any valid claim against any of the
parties hereto for a brokerage commission, finder's fee or other like
payment.
(e) Valid and Binding - It has the full power, legal capacity and
authority to execute and deliver this Agreement and to perform its
obligations under this Agreement. This Agreement constitutes the
legal, valid and binding obligation of it, enforceable against it in
accordance with its terms, except as that enforceability may be (i)
limited by any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally and (ii) subject to general principles of equity
(regardless of whether that enforceability is considered in a
proceeding in equity or at law). It has taken all actions necessary
for the authorization, execution, delivery and performance by it of
this Agreement.
3.2 Representations and Warranties of Seller. Seller further covenants,
represents and warrants to Buyer that, save and except as has been disclosed to
Buyer:
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(a) Power of Seller.
All corporate action on the part of Seller and its officers, directors and
shareholder necessary for the authorization, execution, delivery and performance
of this Agreement and the other transaction documents to which Seller is a
party, the consummation of the transactions contemplated hereby and thereby, and
the performance of all of Seller's obligations under this Agreement and the
other transaction documents to which it is a party has been taken or will be
taken prior to the Closing Date. This Agreement has been, and the other
transaction documents to which Seller is a party on the Closing Date will be,
duly executed and delivered by Seller, and this Agreement is, and each of the
other transaction documents to which Seller is a party on the Closing Date will
be, a legal, valid and binding obligation of Seller, enforceable against Seller
in accordance with its terms.
(b) No Conflicts or Litigation.
To its knowledge Seller's execution, delivery and performance in
accordance with the respective terms of this Agreement and the other
transaction documents to which Seller is a party do not and will not
(i) violate or conflict with any governmental requirement, (ii) to its
knowledge, breach or constitute a default under any agreement or
instrument to which Seller is a party or (iii) result in the creation
or imposition of, or afford any person the right to obtain, any lien
upon the Purchased Assets. Furthermore, to its knowledge the execution
and performance by Seller will not result in any of the following:
(i) the acceleration or mandatory prepayment of any indebtedness of
Seller or afford any holder of any of that indebtedness, or any
beneficiary of those guaranties, the right to require Seller or
ITEX, or any subsidiary to redeem, purchase, or otherwise
acquire, reacquire or repay any of that indebtedness, or to
perform any of those guaranties;
(ii) cause or result in the imposition of, or afford any person the
right to obtain, any lien upon any property or assets of Seller
(or upon any revenues, income or profits of Seller); or
(iii)result in the revocation, cancellation, suspension or material
modification of any governmental approval possessed by Seller at
the date hereof and necessary for the ownership or lease or the
operation of its properties or the carrying on of their business
as now conducted including any necessary governmental approval
under each applicable environmental law and industry law.
(c) Reports; Notices - No reports or notices to, or filings with, any
governmental authority are required to be made, by Seller for the
execution, delivery or performance by Seller of this Agreement, the
enforcement against Seller of its obligations thereunder, or the
effectuation of the acquisition and the other transactions
contemplated thereby.
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(d) Litigation - Save and except for the claims described on Exhibit D,
the Seller is not aware of any pending or threatened, suit, action,
arbitration, or legal, administrative, or other proceeding, or
governmental investigation against or affecting any of its assets. To
its knowledge, Seller is not in default with respect to any order,
writ, injunction, or decree of any federal, state, local, or foreign
court, department, agency, or instrumentality. Except for the claim
described on Exhibit D, Seller is not presently engaged in any legal
action to recover monies due to, or damages sustained by, Seller.
(e) Financial Statements; Disclosure.
(i) Financial Statements
Since March 31, 2001, no change has occurred in the business,
operations, properties or assets, liabilities, condition
(financial or other) or results of operations of Seller that
could reasonably be expected, alone or together with all other
such changes, to have a material adverse effect on its business
or operations.
(ii) Disclosure
As of the date hereof, the information that has been furnished to
Buyer by or on behalf of Seller prior to the date of this
Agreement in connection with the transactions contemplated
hereby, taken together, does not contain any untrue statement of
a material fact or omit to state a material fact necessary in
order to make the statements contained therein not materially
misleading in light of the circumstances under which those
statements were made.
(f) Compliance With Laws.
(i) Seller, to its knowledge (i) possesses all necessary
certifications and licenses and similar governmental approvals
required for the conduct of its business and (ii) is in
compliance in all material respects with the terms and conditions
of all governmental approvals necessary for the ownership or
lease and the operation of its properties and the carrying on of
its business as now conducted.
(ii) Seller: (i) has been and continues to be in compliance with all
governmental requirements applicable to it or any of its
presently or, to its knowledge, previously owned or operated
properties (including all the facilities and sites now or
previously owned or held by it under any lease), businesses or
operations, including all applicable governmental requirements
under environmental laws and industry laws, except where the
failure to be in compliance has not had and could not reasonably
be expected to have, individually or in the aggregate, a material
adverse effect; and (ii)(A) Seller has not received, nor to the
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knowledge of Seller has any employee received, any notice from an
governmental authority which asserts, or raises the possibility
of assertion of, any noncompliance with any of those governmental
requirements and (B) to the knowledge of Seller, no condition or
state of facts exists which would provide a valid basis for any
such assertion.
(g) Assets.
Seller has good and marketable title to the Purchased Assets. All the
Purchased Assets are free and clear of restrictions on or conditions to
transfer or assignment, and of liens, pledges, charges, encumbrances,
equities, claims, covenants, conditions, or restrictions save and except
for certain leases and contracts which may require consent to transfer. All
tangible personal property is in good operating condition and repair,
ordinary wear and tear excepted.
(h) Real Property.
No real property is part of this agreement.
(i) Customer List.
Exhibit B sets forth a complete and accurate list of all Seller
customer lists, including summaries of sales during the most recent
fiscal year.
(j) Workforce.
Buyer's current intention is to not employ the sales force or office
personnel of Seller. To the extent that any of Seller's employees are
employed by or enter into consulting arrangements with Buyer, Seller
acknowledges that any covenant not to compete in their former
Intellectual Property Agreements shall not be enforceable against them
in their employment or rendition of services to Buyer, and that any
use of Seller information specifically related to the Purchased Assets
which the employees might use as an ordinary part of their employment
or rendition of services for Buyer shall not be actionable against
them or Buyer.
(k) Absence of Changes.
Since March 31, 2001 none of the following has occurred with respect
to Seller:
(i) any circumstance, condition, event or state of facts (either
singly or in the aggregate), other than conditions generally
affecting the Industry, which has caused, is causing or will
cause a material adverse effect;
(ii) any work interruptions, labour grievances or claims filed, or any
similar event or condition of any character, that will have a
material adverse effect following the Closing Date;
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(iii)any distribution, sale or transfer of, or any commitment to
distribute, sell or transfer, any of its assets or properties of
any kind which singly is or in the aggregate are material to
Seller;
(iv) any cancellation, or agreement to cancel, any indebtedness,
obligation or other liability owing to it, provided that it may
negotiate and adjust bills in the course of good faith disputes
with customers in the ordinary course of business and consistent
with past practice;
(v) any plan, agreement or arrangement granting any preferential
rights to purchase or acquire any interest in any of its assets,
property or rights or requiring consent of any Person to the
transfer and assignment of any such assets, property or rights;
(vi) any purchase or acquisition of, or agreement, plan or arrangement
to purchase or acquire, any property rights or assets outside of
the ordinary course of its business consistent with its past
practices; (vii) any waiver of any of its rights or claims that
singly or in the aggregate are material to Seller;
(viii) any transaction outside the ordinary course of its business or
not consistent with its past practices;
(ix) any incurrence of any indebtedness or any guaranty not
constituting its indebtedness, or any commitment to incur any
indebtedness or any such guaranty;
(x) any investment in the stock, securities or indebtedness of any
person;
(xi) any cancellation or termination of a material agreement of
Seller.
(l) Other Material Contracts. Except as otherwise disclosed in Exhibits to
this Agreement, Seller is not a party to, nor is the property of
Seller bound by, any representative or agency agreement; any agreement
not entered into in the ordinary course of business; any indenture or
lease; or any agreement that is unusual in nature, duration, that
would in any way affect the Seller.
3.3 Knowledge. Where any representation or warranty is expressed to be to the
knowledge of Seller, the representation and warranty shall be conclusively
deemed to be to the current personal knowledge of Xxxxxx Xxxxx without any
investigation.
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ARTICLE 4
CLOSING MATTERS
4.1 Transfer of Assets. This agreement shall operate as the transfer and
assignment of the Purchased Assets and the Obligations, except as limited by
section 2.7 above.
ARTICLE 5
GENERAL
5.1 Confidentiality - In the event of the termination of this Agreement without
consummation of the transactions contemplated hereby, the Buyer will use its
best efforts to keep confidential any information (unless in the public domain)
obtained from the Seller. If this Agreement is so terminated, promptly after
such termination, all documents, working papers and other written material
obtained from one party in connection with this Agreement and not theretofore
made public (including all copies thereof), shall be returned to the party which
provided such material.
5.2 Public Notices - The parties agree that all notices to third parties and all
other publicity concerning the transactions contemplated by this Agreement shall
be jointly planned and co-ordinated and no party shall act unilaterally in this
regard without the prior approval of the other, such approval not to be
unreasonably withheld, unless such disclosure shall be required to meet timely
disclosure obligations of any party under applicable securities laws and stock
exchange rules in circumstances where prior consultation with the other party is
not practicable.
5.3 Expenses - All costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such expenses.
5.4 Time - Time shall be of the essence of this Agreement and of every part
hereof and no extension or variation of this Agreement shall operate as a waiver
of this provision.
5.5 Notices - All payments and communications which may be or are required to be
given by either party to the other herein, shall (in the absence of any specific
provision to the contrary) be in writing and delivered or sent by facsimile to
the parties at their following respective addresses:
For the Seller: c/o Network Commerce Inc.
000 Xxxxx Xxx Xxxxx, Xxxxx 000X
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxx, Senior Vice President
With a copy to: Attention: General Counsel
Facsimile: (000) 000-0000
For the Buyer: ITEX Corporation
0000 Xxxxxxx Xxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxxxx, CEO
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and it shall be conclusively deemed to have been received at the time of
delivery or facsimile transmission as the case may be. Either party may from
time to time change its address for service set forth by notice to the other of
them in accordance with this section.
5.6 Governing Law - This Agreement and the rights and obligations of the parties
shall be governed by and construed in accordance with the laws of the State of
Washington and the laws applicable therein (but without giving effect to any
conflict of laws rules). The parties agree that the courts of Washington State
shall have jurisdiction to entertain any action or other legal proceedings based
on any provisions of this Agreement. Each party hereby attorns to the
jurisdiction of the courts of Washington State.
5.7 Assignment - Neither this Agreement nor any rights or obligations hereunder
shall be assignable by either party without the prior written consent of the
other party, which consent may be unreasonably withheld. Subject thereto, this
Agreement shall enure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns.
5.8 Entire Agreement - With respect to the subject matter of this Agreement,
this Agreement (including the Exhibits hereto) supersedes all prior
understandings and communications between the parties oral or written, and
constitutes the entire agreement between the parties and any persons who have in
the past or who are now representing either of the parties. Each party
acknowledges and represents that this Agreement is entered into after full
investigation and that no party is relying upon any statement or representation
made by any other which is not embodied in this Agreement. Each party
acknowledges that it shall have no right to rely upon any amendment, promise,
modification, statement or representation made or occurring subsequent to the
execution of this Agreement unless the same is in writing and executed by each
of the parties.
5.9 Further Assurances - The parties shall with reasonable diligence do all such
things and provide all such reasonable assurances as may be required to
consummate the transactions contemplated hereby, and each party hereto shall
provide such further documents or instruments required by the other party as may
be reasonably necessary or desirable to effect the purpose of this Agreement and
carry out its provisions.
5.10 Counterparts - This Agreement may be executed in any number of counterparts
and all such counterparts shall for all purposes constitute one agreement,
binding on the parties hereto, provided each party hereto has executed at least
one counterpart, and each shall be deemed to be an original, notwithstanding
that all parties are not signatory to the same counterpart.
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IN WITNESS WHEREOF the parties hereto have duly executed this Agreement as
of the date first written above.
XXXXXXX.XXX, INC.
By:/s/Xxxxxx Xxxxxx
--------------------------------------
Xxxxxx Xxxxxx, President
ITEX CORPORATION
By:/s/ Xxxxxx Xxxxxxxxxxx
--------------------------------------
Xxxxxx Xxxxxxxxxxx, CEO
GUARANTY
Seller is a wholly owned subsidiary of Network Commerce Inc., a Washington
Corporation ("NWKC"). As additional consideration for Buyer entering into this
agreement, NWKC hereby guarantees to Buyer the performance of each of Seller's
obligations under the agreement. This guaranty is a continuing guaranty and may
not be revoked. By signing below, Xxxxxx Xxxxxx represents that he has been
authorized by the board of directors of NWKC to execute this guaranty.
NETWORK COMMERCE, INC
By:/s/ Xxxxxx Xxxxxx
--------------------------------------
Xxxxxx Xxxxxx, Chief Executive Officer
