ASSET PURCHASE AGREEMENT
Exhibit
10.1
|
|
|
by
and between
Novastor
Corporation
as
Seller
and
Data
Storage Corporation
as
Purchaser
November
10, 2008
|
This
ASSET PURCHASE AGREEMENT (this “Agreement”) is entered into as of November 10,
2008, by and between Data Storage Corporation, a Delaware Corporation
(“Purchaser”), and Novastor Corporation., a California corporation (“Seller” or
“Novastor”).
WHEREAS,
Seller is engaged in the business of developing and marketing data protection
and availability software (the “Business”);
WHEREAS,
Seller wishes to sell to Purchaser and Purchaser wishes to purchase and assume
from Seller, certain assets and liabilities with respect to the Business on the
terms and subject to the conditions set forth in this Agreement;
NOW
THEREFORE, In consideration of the mutual covenants, agreements, representations
and warranties contained in this Agreement, the parties agree as
follows:
ARTICLE
I
PURCHASE AND SALE OF
ASSETS
1.1 Sale and Transfer of
Assets. On and subject to the terms and conditions set forth
in this Agreement, Seller agrees to sell, convey, transfer, assign and deliver
to Purchaser, and Purchaser agrees to purchase and acquire from Seller, free and
clear of any encumbrances, all of Seller’s right, title, and interest in and to
all of the assets of Seller as set forth on Schedule 1.1 attached hereto
(“Purchased Assets”) at the Closing in consideration for the payment by
Purchaser of the Purchase Price as specified below in Section
1.3. The Purchased Assets shall not include any of Novastor’s
accounts receivable, intellectual property, software or hardware.
1.2 No Assumption of
Liabilities. Other than as set forth in Schedule 1.2, the
Purchaser shall in no event assume or be responsible for any liabilities, liens,
security interests, claims, obligations or encumbrances of Seller, contingent or
otherwise.
1.3 Consideration. Upon
the terms and subject to the satisfaction of the conditions contained in this
Agreement, in consideration of the aforesaid sale, assignment, transfer and
delivery of the Purchased Assets, Buyer will pay or cause to be paid a purchase
price consisting of (i) the sum of One Hundred Seventeen Thousand Eighteen
Dollars and Fifty-Six Cents ($117,018.56) in cash at Closing (the “Closing
Payment”), (ii) the Assumed Liabilities (as defined in Section 1.2 below), (iii)
the Guaranteed Post-Closing Payments (as defined below) and (iv) and the
Thirteenth Month Payment (as defined below) (collectively, the “Purchase
Price”).
1.3.1 Payment of Purchase
Price
(a) Closing
Payment. The Closing Payment will be made by the Purchaser to
the Seller at Closing. The Purchaser will wire funds of One Hundred
Thirteen Thousand, Three Hundred Fifty Dollars and Sixty-Three Cents
($113,350.63) to Seller’s bank adjusting Closing Payment for deferred revenues
of Twelve Thousand Four Hundred Twenty-Three Dollars and Ninety Cents
($12,423.90) already received by NovaStor plus uncollected accounts receivables
aged 90 days or less of Two Thousand Seven Hundred Fifty-Six Dollars and Three
Cents ($2,756.03) and hosting, support and management fees during the transition
period of Six Thousand Dollars ($6,000.00).
-1-
(b) Guaranteed Post-Closing
Payment. For the calendar month of May 2009 up to and
including the calendar month of October 2009, monthly payments (each a
“Guaranteed Post-Closing Payment” and collectively, the “Guaranteed Post-Closing
Payments”) shall be made by the Purchaser to the Seller. Each
Guaranteed Post-Closing Payment shall be equal to Nine Thousand Seven Hundred
Fifty-One Dollars and Fifty-Five Cents ($9,751.55).
(c) Thirteenth Month
Payment. Within thirty (30) days after the end of the
October 2009 calendar month, a payment (the “Thirteenth Month Payment”)
shall be made by the Purchaser to the Seller equal to (a) twenty-four (24) times
the GAAP monthly revenue amount related to the Purchased Assets for October
2009, minus (b)
the sum of: (i) the Closing Payment; and (ii) each Guaranteed Post-Closing
Payment; provided, however,
that in no event shall the total of all payments including the Thirteenth Month
Payment be either: (A) greater than Two Hundred Ninety-Two Thousand, Five
Hundred Forty-Six Dollars and Forty Cents ($292,546.40) which represents 1.25
times the Original Amount (as defined below) , or (B) less than One Hundred
Seventy-Five Thousand Five Hundred Twenty-Seven Dollars and Eighty-Four Cents
($175,527.84) which represents 0.75 times the Original Amount. The
“Original Amount” means two (2) times the aggregate GAAP revenue amount related
to the Purchased Assets for the twelve (12) calendar months prior to the
Closing.
ARTICLE
II
REPRESENTATIONS AND
WARRANTIES OF SELLER
Seller
represents and warrants to Purchaser that the statements contained in this
Article II are correct and complete as of the date hereof:
2.1 Due
Incorporation. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has the requisite corporate power to own its properties and to
carry on its business as now being conducted. Seller is duly
qualified as a foreign corporation to do business and is in good standing in
each jurisdiction where the nature of the business conducted or property owned
by it makes such qualification necessary, other than those jurisdictions in
which the failure to so qualify would not have a material adverse effect on the
business, operations or financial condition of Seller.
2.2 Authority;
Enforceability. This Agreement and any other agreements
delivered together with this Agreement or in connection herewith have been duly
authorized, executed and delivered by Seller and are valid and binding
agreements enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights generally and
to general principles of equity; and Seller has full corporate power and
authority necessary to enter into this Agreement and such other agreements
delivered together with this Agreement or in connection herewith and to perform
its obligations hereunder and under all other agreements entered into by Seller
relating hereto.
-2-
2.3 Approvals;
Consents. Seller has, and on the Closing Date will have, the
right, power and authority to enter into this Agreement and to sell, transfer
and deliver the Purchased Assets and to perform all undertakings and obligations
hereunder. No approval, authorization, consent, order or other action
of, or filing with, any third party, including without limitation, any public,
governmental, administrative or regulatory authority, agency or body
(collectively, “consents”), is required in connection with the execution,
delivery and/or performance of this Agreement by Seller or the consummation of
the transactions contemplated hereby.
2.4 Liens. Seller
has good and marketable title to the Purchased Assets and has full
power and authority to sell, assign and transfer to Purchaser all of the
Purchased Assets free and clear of restrictions on or conditions to transfer or
assignment, and free and clear of mortgages, liens, pledges, charges,
encumbrances, equities, claims, covenants, conditions, or
restrictions.
2.5 Taxes. Seller
has filed all federal, state, local, foreign or other tax returns which are
required Taxes to be filed by any of them or been approved for an extension of
same, and such returns are, to the best knowledge of Seller, true and
correct. There is no material liability for the payment of any
federal, state, local, foreign or other taxes whatsoever (including any interest
or penalties) with respect to Seller except for which non-compliance would not
have a material adverse effect on the Purchased Assets (a “Material Adverse
Effect”).
2.6 Applicable
Laws. Seller has complied with all applicable laws, rules and
regulations of the City, County, State and federal government as required except
for which non-compliance would not have a Material Adverse Effect.
2.7 No
Brokers. No broker, finder or intermediary has been employed
by or on behalf of Purchaser in connection with the transactions contemplated
hereby, and there is no such person entitled, as a result of Purchaser’s action,
to any fee or commission upon the consummation of the transactions contemplated
hereby.
2.8 Legal
Proceedings. To the best knowledge of the Seller, there is no
(a) legal proceeding pending or threatened, against, involving or affecting the
Seller and/or any of its respective assets or rights, including the Purchased
Assets; (b) judgment, decree, injunction, rule, or order of any governmental
entity applicable to the Seller that has had or is reasonably likely to have,
either individually or in the aggregate, a Material Adverse Effect; (c) legal
proceeding pending or threatened, against the Seller that seeks to restrain,
enjoin or delay the consummation of this Agreement or any of the other
transactions contemplated by this Agreement or that seeks damages in connection
therewith; or (d) injunction, of any type. Should this be both
ways?
2.9 Licenses; Compliance with
Regulatory Requirements. The
Seller holds all licenses, franchises, ordinances, authorizations, permits,
certificates, variances, exemptions, concessions, leases, rights of way,
easements, instruments, orders and approvals, domestic or foreign (collectively,
the “Licenses”) required for or which are material to the ownership of the
Purchased Assets. The Seller is in compliance with, and has conducted its
business so as to comply with, the terms of its respective Licenses and with all
applicable laws, rules, regulations, ordinances and codes (domestic or
foreign). Without limiting the generality of the foregoing, the
Seller (i) has all Licenses of foreign, state and local governmental entities
required for the operation of the facilities being operated on the date hereof
by the Seller (the “Permits”), (ii) has duly and currently filed all reports and
other information required to be filed with any governmental entity in
connection with such Permits and (iii) is not in violation of any of such
Permits.
-3-
ARTICLE
III
PURCHASER'S
REPRESENTATIONS
Purchaser
hereby represents and warrants to Seller that the statements contained in this
Article III are correct and complete as of the date hereof:
3.1 Approvals;
Consents. Purchaser has, and on the Closing Date will have,
the right, power and authority to enter into this Agreement and to perform all
undertakings and obligations hereunder. No approval, authorization,
consent, order or other action of, or filing with, any third party, including
without limitation, any public, governmental, administrative or regulatory
authority, agency or body (collectively, “consents”), is required in connection
with the execution, delivery and/or performance of this Agreement by Purchaser
or the consummation of the transactions contemplated hereby.
3.2 Legal
Proceedings. To the best knowledge of Purchaser, there is no
legal proceeding pending or threatened against Purchaser that seeks to restrain,
enjoin or delay the consummation of the transactions contemplated in this
Agreement.
3.3 Due
Incorporation. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has the requisite corporate power to own its properties and to
carry on its business as now being conducted. Purchaser is duly
qualified as a foreign corporation to do business and is in good standing in
each jurisdiction where the nature of the business conducted or property owned
by it makes such qualification necessary, other than those jurisdictions in
which the failure to so qualify would not have a material adverse effect on the
business, operations or financial condition of Purchaser or its
subsidiaries.
3.4 Authority;
Enforceability. This Agreement, the and any other agreements
delivered together with this Agreement or in connection herewith have been duly
authorized, executed and delivered by Purchaser and are valid and binding
agreements enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights generally and
to general principles of equity; and Purchaser has full corporate power and
authority necessary to enter into this Agreement, the and such other agreements
delivered together with this Agreement or in connection herewith and to perform
its obligations hereunder and under all other agreements entered into by
Purchaser relating hereto.
3.5 No
Brokers. No broker, finder or intermediary has been employed
by or on behalf of Purchaser in connection with the transactions contemplated
hereby, and there is no such person entitled, as a result of Purchaser’s action,
to any fee or commission upon the consummation of the transactions contemplated
hereby.
-4-
ARTICLE
IV
THE
CLOSING
4.1 Seller's Obligations at
Closing. At the Closing, which shall occur simultaneously with
the execution of this Agreement, Seller shall deliver or cause to be delivered
to Purchaser:
4.1.1 Instruments
transferring to Purchaser all right, title and interest in and to Purchased
Assets, or such other forms as Purchaser may reasonably request.
4.1.2 A Xxxx of
Sale transferring all of the Purchased Assets of Seller being purchased
hereunder in a form acceptable to Purchaser and its counsel.
4.1.3 Such
other items as may be reasonably necessary for the Closing to
occur.
4.2 Cooperation by
Seller. Seller, at any time before or after the Closing Date,
will execute, acknowledge, and deliver any further assignments, conveyances, and
other assurances, documents, and instruments of transfer, reasonably requested
by Purchaser, and will take any other Seller consistent with the terms of this
Agreement that may reasonably be requested by Purchaser for the purpose of
assigning, transferring, granting, conveying, and confirming to Purchaser, or
reducing to possession, any or all property to be conveyed and transferred by
this Agreement.
4.3 Purchaser's Obligations at
Closing. Purchaser will deliver the required consideration;
and such other items as may be reasonably necessary for the Closing to
occur.
4.4 Related
Agreements. Purchaser and Seller shall enter into a (i)
Transition Services Agreement between Purchaser and Seller in the form attached
hereto as Exhibit A, and (ii) a Strategic Alliance Agreement between the
Purchaser and Seller in the form attached hereto as Exhibit B (collectively the
“Related Agreements”).
ARTICLE
V
POST CLOSING
COVENANTS
5.1 Premium Partner
Status. Seller will provide Purchaser with the benefits of
Premium Partner Status for a period of two (2) years from the date of
Closing. “Preferred Partner Status” shall have the meaning
referred to in the Strategic Alliance Agreement attached hereto as Exhibit
B.
ARTICLE
VI
GENERAL
6.1 Indemnities.
6.1.1 Seller
shall indemnify, defend and hold Purchaser, each of the officers, agents and
directors and current shareholders of Purchaser as of the Closing Date, harmless
against and in respect of any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies, including,
without limitation, reasonable attorneys' fees (collectively, “Losses”), that it
shall incur or suffer, which directly or indirectly arise out of, result from,
or relate to any breach, or failure to perform, any of Seller's representations,
warranties, covenants, or agreements in this Agreement or in any schedule,
certificate, exhibit, or other instrument furnished or to be furnished by Seller
under this Agreement.
-5-
The
indemnification described herein shall also apply in the event of an assertion
against Purchaser, or the Purchased Assets, by any person, entity, government or
subdivision thereof, of any claim, demand, penalty, fine, or tax accruing prior
to the Closing. The indemnification provided for in this paragraph shall survive
the Closing and consummation of the transactions contemplated hereby and
termination of this Agreement. The indemnified Losses described
herein shall not exceed the amount paid by Purchaser to Seller for the Purchased
Assets.
6.1.2 Upon
Notice to Seller specifying in reasonable detail the basis
therefor. Purchaser may set off any amount to which it may be
entitled under this Article V against amounts otherwise payable under this
Agreement. Neither the exercise nor the failure to exercise such
right of setoff shall limit Purchaser in any manner in the enforcement of any
other remedies that may be available to it.
6.2 Confidentiality. Each
party hereto agrees with the other party that, unless and until the transactions
contemplated by this Agreement have been consummated, they and their
representatives will hold in strict confidence all data and information obtained
with respect to another party or any subsidiary thereof from any representative,
officer, director or employee, or from any books or records or from personal
inspection, of such other party, and shall not use such data or information or
disclose the same to others, except: (i) to the extent
such data is a matter of public knowledge or is required by law to be published;
and (ii) to the extent that such data or information must be used or
disclosed in order to consummate the transactions contemplated by this
Agreement.
6.3 Transition. For
a period of three (3) months following Closing, Seller shall cooperate and shall
use best efforts to assist Purchaser in the smooth transition of the ownership
of the Purchased Assets and in the preservation for Purchaser of the goodwill of
Seller’s advertisers, customers, suppliers, and others having business relations
with Sellers and related to the Purchased Assets including the use of their web
site and back office e-commerce systems until such time that the clients are
stable and DSC’s hardware and software are in place and ready to perform the
transition. Further, Novastor will train DSC employees in Level
1 and 2 support in accordance with the Transition Services
Agreement attached as Exhibit A and the
Strategic Marketing
Alliance Agreement attached as Exhibit
B. Novastor makes no representation or warranty with respect
to the continued volume of business generated by the Purchased Assets or the
number of licenses included in the Preferred Assets that will remain in effect
after the Closing.
6.4 Effect of
Heading. The subject headings of the paragraphs and
subparagraphs of this Agreement are included for purposes of convenience only
and shall not affect the construction or interpretation of any of its
provisions.
-6-
6.5 Counterparts. This
Agreement may be executed simultaneously in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
6.6 Schedules. All
schedules referred to herein shall be deemed incorporated by reference in their
entirety as though fully set forth at the places to which they are
referred. Unless otherwise stated, all references to schedules are
references to schedules to this Agreement.
6.7 Gender. Wherever
appropriate in this Agreement, plural shall be deemed also to refer to the
singular, the neuter shall be deemed to refer to the masculine, and vice
versa.
6.8 Parties in
Interest. Nothing in this Agreement whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision give any third person any right of
subrogation or Seller over or against any party to this Agreement.
6.9 Assignment. This
Agreement shall be binding on, and shall inure to the benefit of, the parties to
it and their respective heirs, legal representatives, successors and assigns;
provided, however, no party may assign any or all of its rights under this
Agreement without the prior written consent of the others.
6.10 Survival. All
representations, warrants and covenants contained in this Agreement shall
survive the Closing and remain in full force and effect until the third
anniversary of the Closing Date.
6.11 Preparation of
Agreement. Each party acknowledges that: (i) the
party had the advice of, or sufficient opportunity to obtain the advice of,
legal counsel separate and independent of legal counsel for any other party
hereto; (ii) the terms of the transactions contemplated by this Agreement are
fair and reasonable to such party; and (iii) such party has voluntarily entered
into the transactions contemplated by this Agreement without duress or
coercion. Each party further acknowledges that such party was not
represented by the legal counsel of any other party hereto in connection with
the transactions contemplated by this Agreement, nor was he or it under any
belief or understanding that such legal counsel was representing his or its
interests. Each party agrees that no conflict, omission or ambiguity
in this Agreement, or the interpretation thereof, shall be presumed, implied or
otherwise construed against any other party to this Agreement on the basis that
such party was responsible for drafting this Agreement.
6.12 Governing Law; Waiver of
Jury Trial. All questions concerning the construction,
interpretation and validity of this Agreement shall be governed by and construed
and enforced in accordance with the domestic laws of the State of New York
without giving effect to any choice or conflict of law provision or rule
(whether in the State of New York or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of New
York. In furtherance of the foregoing, the internal law of the State
of New York will control the interpretation and construction of this Agreement,
even if under such jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily or necessarily
apply.
-7-
BECAUSE
DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST
QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE
PARTIES WISH APPLICABLE LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY SELLER, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS RELATED
HERETO.
6.13 Submission to
Jurisdiction. Any legal action or proceeding with respect to
this Agreement must be brought in the courts of the State of New York or the
appropriate federal court located in New York and, by execution and delivery of
this Agreement, the parties hereby accept for themselves and in respect to their
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The parties hereby irrevocably waive, in connection with any
such Seller or proceeding, any objection, including, without limitation, any
objection to the venue or based on the grounds of forum non-convenience, which
it may now or hereafter have to the bringing of any such Seller or proceeding in
such respective jurisdictions.
6.14 Severability. It
is the desire and intent of the parties that the provisions of this Agreement be
enforced to the fullest extent permissible under the law and public policies
applied in each jurisdiction in which enforcement is
sought. Accordingly, in the event that any provision of this
Agreement would be held in any jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall be
ineffective, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any
jurisdiction. Notwithstanding the foregoing, if such provision could
be more narrowly drawn so as not to be invalid, prohibited or unenforceable in
such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn,
without invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other
jurisdiction.
6.15 Marketing
Support. In consideration of the purchase price paid Novastor
will use best efforts to supply DSC with all client leads derived from
Xxxx.xxx/xxxxxxxx.xxx related to the online backup service
only. Further Novastor will permit DSC to use any and all
content of their current web site referring to the online backup service, not
including source code, as well as utilize the current active web site and back
office ecommerce systems for the purposes of the online backup service only, as
described in the Transition Services Agreement with the exception that DSC must
during the transition period move to their own Merchant Banking Account for
process and clearing. Novastor will also submit to DSC all accounts
over the past twelve (12) months listed as bad debt (credit card issues,
xx.xx)
-8-
6.16 Expenses. Each
of Seller and Purchaser will bear its own costs and expenses (including, without
limitation, fees and expenses of attorneys, accountants, investment bankers and
other advisors) incurred in connection with this Agreement and the transactions
contemplated hereby.
6.17 Notices. Any
notices or other communications required or permitted hereunder shall be
sufficiently given if personally delivered to it or sent by registered mail or
certified mail, postage prepaid, or by facsimile addressed as
follows:
If to
Seller:
Novastor
Corporation
Attn: Xxxx
Xxxxxxx
00X Xxxx
Xxxxxxx Xx.
Xxxx
Xxxxxx, XX 00000
If to
Purchaser:
Data
Storage Corporation
Attn: Xxxxxxx
X. Xxxxxx
000
Xxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
with a copy to (which shall
not constitute notice):
Xxxxxx
& Jaclin, LLP
Attn:
Xxxxxxx X. Xxxxxx, Esq.
000 Xxxxx
0 Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxx Xxxxxx 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
or such
other addresses as shall be furnished in writing by any party in the manner for
giving notices hereunder, and any such notice or communication shall be deemed
to have been given as of the date so delivered, mailed or
faxed.
6.18 Entire Agreement;
Modification; Waiver. This Agreement and the exhibits attached
hereto constitute the entire agreement between the parties pertaining to the
subject matter contained in it and supersedes all prior and contemporaneous
agreements, representations and understandings of the parties. No
supplement, modification, or amendment of this Agreement shall be binding unless
executed in writing by all parties. No waiver of any of the
provisions of this Agreement shall be deemed, or shall constitute, a waiver of
any other provision, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in
writing by the party making the waiver.
[Signature
page follows]
-9-
IN WITNESS WHEREOF the parties
have duly executed this Asset Purchase Agreement as of the date first written
above.
|
“Seller”
NOVASTOR
CORPORATION
By:
Name:
Title:
|
|
“Purchaser”
DATA
STORAGE CORPORATION
By:
Name: Xxxxxxx
X. Xxxxxx
Title: President,
Chief Executive Officer
|
-10-
SCHEDULE
1.1
PURCHASED
ASSETS
All
existing end user customers and associated licenses of Novastor’s online backup
service licenses as of October 31, 2008 (the “Existing Clients”)
An
additional 500 client licenses to ramp up new business
opportunities.
NB:
Novastor will provide an allowance for 25% additional licenses compared to the
number of licenses handed over at the time of Close. Additional
license should only be made available until the date of last payment and any
lost licenses from the original purchase, should be re-used before any of the
25% are allocated.
If
purchase clients attempt to cancel services and require a price reduction or
additional storage, Novastor and DSC will use their best efforts to resolve and
hold the client on the service. This impact of holding the client may
cause a reduction in annual contract renewals and overages monthly
billing.
SCHEDULE
1.2
ASSUMED
LIABILITIES
Obligations
to perform under the licenses included in the Purchased Assets.
EXHIBIT
A
TRANSITION
SERVICES AGREEMENT
To be
agreed upon by the Purchaser and Seller within a reasonable time after the
Closing.
EXHIBIT
B
STRATEGIC
ALLIANCE AGREEMENT
To be
agreed upon by the Purchaser and Seller within a reasonable time after the
Closing.
