AGREEMENT AND PLAN
OF
MERGER
among
NET LNNX, INC.
NET SUB, INC.
and
XxxxxXxXxxXxx.Xxx, Inc.
Dated as of February ___, 1999
AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger, dated as of February ___,
1999, among NET LNNX, INC., a Pennsylvania corporation ("Net
Lnnx"), NET SUB, INC., a Florida corporation and a wholly-
owned subsidiary of Net Lnnx ("NET SUB"), and XxxxxXxXxxXxx.Xxx,
Inc., a Delaware corporation ("POTN") (collectively, the
"Corporations") and, for the limited purposes of Sections
6.6(d) and 12 only, Xxxxxxxx Xxxxxxxxxx and Xxxxxx Xxxxxxxxxx
(collectively, the "Shareholders").
PRELIMINARY STATEMENTS
Pursuant to the provisions and subject to the conditions
hereof and the Plan of Merger attached hereto as Composite
Exhibit "A" (the "Plan of Merger"), Net Sub will be merged
with and into POTN (the "Merger"), whereby it is contemplated
that each outstanding share of POTN common stock, par value
$1000 per share ("POTN Common Stock") will be converted into
16,500 shares of Net Lnnx common stock ("Net Lnnx Common
Stock") and 1,000 shares of Net Lnnx Preferred Stock, each one
of which is convertible into 7.207 shares of Common Stock of
Net Lnnx, subject to certain conditions; and each outstanding
share of Net Sub common stock, no par value ("Net Sub Common
Stock") (the "Exchange Ratio"), will be converted into one
share of POTN Common Stock. The parties hereto desire to
enter into this Agreement and Plan of Merger for the purpose
of setting forth certain representations, warranties,
covenants and further agreements with respect to the Merger.
In consideration of the mutual benefits to be derived
from this Agreement and of the representations, warranties,
covenants and agreements contained in it, each of the
Corporations represent, warrant and agree as follows:
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ARTICLE I
The Merger
Subject to the termination provisions contained herein, as
soon as practicable after the fulfillment of all conditions
contained herein (other than such conditions as shall have been
waived), the Certificate of Merger (the "Certificate of Merger")
shall be filed with the Secretary of State of Delaware and the
Merger shall become effective in accordance with the terms of
the Plan of Merger. The time and date of such filing is
sometimes hereinafter referred to as the "Effective Time of
Merger", the "Closing" or the "Closing Date."
ARTICLE II
Representations and Warranties of POTN
POTN hereby represents and warrants to Net Lnnx and Net Sub
as follows:
2.1 Validity of Actions. It is duly organized, validly
existing and in good standing under the laws of the State of
Delaware and has the authority to carry on its business as
currently conducted, and is qualified to do business in all
jurisdictions in which such qualification is necessary. It has
full power and authority to enter into this Agreement and to
carry out all acts contemplated by it. This Agreement and each
of the documents provided for in it to be delivered as part of
this transaction, have been duly executed and have or will be
delivered pursuant to all appropriate corporate authorization on
its behalf and is, or will be, its legal, valid and binding
obligation and is enforceable against it in accordance with its
terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, merger, moratorium or similar laws
affecting the enforcement or creditors' rights generally and
general equitable principles regardless of whether such
enforceability is considered in a proceeding at law or in
equity. The execution and delivery of this Agreement, and each
of the documents to be executed and delivered by it pursuant to
its terms, and the consummation of the transactions contemplated
by them will not violate any provision of its Certificate of
Incorporation, and all amendments thereto, or Bylaws or,
violate, conflict with or result in any breach of any of the
terms, provisions of or conditions of, or constitute a default
or cause acceleration of any indebtedness under, any indenture,
agreement or instrument to which it is a party or by which it or
its assets may be bound, or, upon filing the Plan of Merger with
the appropriate governmental instrumentality, cause a breach of
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any applicable law or governmental regulation, or any applicable
order, judgment, writ, award, injunction or decree of any court
or governmental instrumentality.
2.2. Capitalization. The authorized capital stock of
POTN consists of 1,000 shares of POTN Common Stock, par value
$1000.00 per share, of which as of the date of this Agreement,
there were 1,000 shares issued and outstanding and no shares
were held in the treasury of POTN. All outstanding shares of
POTN Common Stock have been validly issued by POTN and are fully
paid and nonassessable. There are no subscriptions, options,
warrants, calls, rights, contracts, commitments, understandings
or arrangements relating to the issuance, sale or transfer by
POTN of any shares of its capital stock, including any right of
conversion or exchange under any outstanding security or other
instrument.
2.3 Start-Up Company. POTN is a start-up company. It has
no liabilities individually in excess of $5,000 or in the
aggregate of more than $50,000. POTN has not generated any
revenue to date.
2.4 Assets of POTN. POTN has good title to all of its
assets. All of its assets are owned free and clear of any
adverse claims, security interests, or other encumbrances or
restrictions, and liens for current taxes not yet due and
payable, landlords' liens as provided for in the relevant leases
or by applicable law, or liens or similar security interests
granted as part of personal property financing agreements made
in the ordinary course of business and which in the aggregate
are not material.
2.5 Material Contracts. Except for an Exclusive Production
and Sales Agreement among National Lithographers and Publishers,
Inc. and PrintAmerica Management Company, Inc. and POTN dated as
of February 17, 1999, a copy of which is attached as Exhibit "B"
and made a part hereof by reference, there are no material
contracts relating to POTN's operations.
2.6 Maintenance and Employment Agreements. POTN has not
entered into any written agreements between POTN and independent
contractors, employees and agents who are employed or engaged in
POTN or operation of POTN. There are no material oral
agreements in effect for any such services. As of the date of
this Agreement: (i) there are no written agreements between any
of such contractors, employees or agents and POTN; and (ii)
there is no party entitled to compensation or remuneration for
any such services after the Effective Date.
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2.7 Employee Benefit Plans. POTN has not entered into any
employee benefit plans (the "Employee Benefit Plans"). POTN
does not maintain any profit sharing, pension or other employee
benefit plan related to its operations. POTN has no unfunded
obligations pursuant to any insurance, retirement, pension,
profit sharing or deferred compensation plan or program relating
to its operations.
2.8 Labor. There are no existing labor disputes with
POTN. None of POTN 's employees are covered by any union or
collective bargaining agreement.
2.9 Actions Pending. As of the date of this Agreement:
(i) there are no actions, suits, proceedings, investigations or
claims pending or threatened against POTN; (ii) POTN, is not the
subject of any pending or threatened investigation relating to
any aspect of POTN's operations, by any Federal, state or local
governmental agency or authority; (iii) POTN, is not and has not
been the subject of any formal or informal complaint,
investigation or inspection under the Equal Employment
Opportunity Act or the Occupational Safety and Health Act (or
their state or local counterparts) or by any other Federal,
state or local authority.
2.10 No Guaranties. None of POTN's obligations or
liabilities are guaranteed by any other person, firm or
corporation, nor has POTN guaranteed the obligations or
liabilities of any other person, firm or corporation.
2.11 Records. The books of account of POTN are
complete and correct in all material respects, and there have
been no transactions which properly should have been set forth
therein which have not been accurately so set forth.
ARTICLE III
Representations and Warranties of Net Lnnx
Net Lnnx hereby represents and warrants to POTN as follows:
3.1 Validity of Actions. It is duly organized, validly
existing and in good standing under the laws of the State of
Pennsylvania and has the authority to carry on its business as
currently conducted, and is qualified to do business in all
jurisdictions in which such qualification is necessary. It has
full power and authority to enter into this Agreement and to
carry out all acts contemplated by it. This Agreement and each
of the documents provided for in it to be delivered as part of
this transaction, have been duly executed and have or will be
delivered pursuant to all appropriate corporate authorization on
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its behalf and is, or will be, its legal, valid and binding
obligation and is enforceable against it in accordance with its
terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, merger, moratorium or similar laws
affecting the enforcement or creditors' rights generally and
general equitable principles regardless of whether such
enforceability is considered in a proceeding at law or in
equity. The execution and delivery of this Agreement, and each
of the documents to be executed and delivered by it pursuant to
its terms, and the consummation of the transactions contemplated
by them will not violate any provision of its Articles of
Incorporation, and all amendments thereto, or Bylaws or,
violate, conflict with or result in any breach of any of the
terms, provisions of or conditions of, or constitute a default
or cause acceleration of any indebtedness under, any indenture,
agreement or instrument to which it is a party or by which it or
its assets may be bound, or, upon filing the Plan of Merger with
the appropriate governmental instrumentality, cause a breach of
any applicable law or governmental regulation, or any applicable
order, judgment, writ, award, injunction or decree of any court
or governmental instrumentality.
3.2 Capitalization.
Net Lnnx. The authorized capital stock of Net Lnnx
consists of: (i) 20,000,000 shares of Net Lnnx Common Stock, no
par value per share, of which as of the date of this Agreement,
there were 2,634,102 shares issued and outstanding and no shares
were held in the treasury of Net Lnnx; and (ii) 5,000,000 shares
of preferred stock, no par value per share ("Net Lnnx Preferred
Stock"), of which as of the date of this Agreement, there were
no shares issued and outstanding and no shares were held in the
treasury of Net Lnnx. All outstanding shares of Net Lnnx Common
Stock have been validly issued by Net Lnnx and are fully paid,
nonassessable and free of preemptive rights. Except as
otherwise disclosed in writing to POTN, there are no
subscriptions, options, warrants, calls, rights, contracts,
commitments, understandings or arrangements relating to the
issuance, sale or transfer by Net Lnnx of any shares of its
capital stock, including any right of conversion or exchange
under any outstanding security or other instrument. Upon their
issuance pursuant to this Agreement, all of the Net Lnnx Common
Stock and Net Lnnx Preferred Stock will be duly issued, fully
paid, and non-assessable, provided, however, that there is not
a sufficient amount of authorized and unissued common stock
necessary to convert the Preferred Stock of Net Lnnx issued
pursuant to this Agreement into common stock without amending
the Articles of Incorporation of Net Lnnx. The Amendment to the
Articles of Incorporation will occur subsequent to the Closing
and prior to July 1, 1999.
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3.3 Actions Pending. There are no actions, suits,
proceedings, investigations or claims pending or threatened
against it which, if determined adversely to it would (A) have
a material adverse effect on its operations, or (B) prevent or
delay the consummation of any of the transactions contemplated
by this Agreement.
3.4 SEC Filings. All registration statements,
prospectuses, reports, proxy statements and other documents
required to be filed by Net Lnnx with the Securities and
Exchange Commission, other than any filings required by Section
14 of the Securities Exchange Act of 1934, have been so filed
including, without limitation, form 10-K and 10-Q for each of
the last three reporting years (the "Net Lnnx SEC Filings").
The Net Lnnx SEC Filings did not at the time they were filed,
and any other reports or proxy statements hereafter filed prior
to the Closing Date will not at the time they are filed, contain
any untrue statements of a material fact or omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF NET SUB
Net Sub hereby represents and warrants to POTN as follows:
4.1 Validity of Actions. It is duly organized, validly
existing and in good standing under the laws of the State of
Florida and has the authority to carry on its business as
currently conducted, and is qualified to do business in all
jurisdictions in which such qualification is necessary. It has
full power and authority to enter into this Agreement and to
carry out all acts contemplated by it. This Agreement and each
of the documents provided for in it to be delivered as part of
this transaction, have been duly executed and have or will be
delivered pursuant to all appropriate corporate authorization on
its behalf and is, or will be, its legal, valid and binding
obligation and is enforceable against it in accordance with its
terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, merger, moratorium or similar laws
affecting the enforcement or creditors' rights generally and
general equitable principles regardless of whether such
enforceability is considered in a proceeding at law or in
equity. The execution and delivery of this Agreement, and each
of the documents to be executed and delivered by it pursuant to
its terms, and the consummation of the transactions contemplated
by them will not violate any provision of its Articles of
Incorporation, and all amendments thereto, or Bylaws or,
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violate, conflict with or result in any breach of any of the
terms, provisions of or conditions of, or constitute a default
or cause acceleration of any indebtedness under, any indenture,
agreement or instrument to which it is a party or by which it or
its assets may be bound, or, upon filing the Plan of Merger with
the appropriate governmental instrumentality, cause a breach of
any applicable law or governmental regulation, or any applicable
order, judgment, writ, award, injunction or decree of any court
or governmental instrumentality.
4.2 Capitalization.
Net Sub. The authorized capital stock of Net Sub
consists of 100 shares of Common Stock, no par value per share,
of which as of the date of this Agreement, there were 100 shares
issued and outstanding and no shares were held in the treasury
of Net Sub. Since December 23, 1997 there have been no changes
in the authorized, issued, outstanding or treasury shares of Net
Sub Common Stock. All outstanding shares of Net Sub Common
Stock have been validly issued by Net Sub and are fully paid,
nonassessable and free of preemptive rights. There are no
subscriptions, options, warrants, calls, rights, contracts,
commitments, understandings or arrangements relating to the
issuance, sale or transfer by Net Sub of any shares of its
capital stock, including any right of conversion or exchange
under any outstanding security or other instrument.
4.3 Actions Pending. There are no actions, suits,
proceedings, investigations or claims pending or threatened
against it which, if determined adversely to it would (A) have
a material adverse effect on its operations, or (B) prevent or
delay the consummation of any of the transactions contemplated
by this Agreement.
ARTICLE V
Covenants of the Parties
5.1 Conduct of Each of the Parties Prior to the Closing.
Pending consummation of the Plan of Merger or prior to
termination of this Agreement, each of the Parties to this
Agreement agrees, without prior written consent of the other
parties to this Agreement, given in a letter which specifically
refers to this Section of the Agreement:
a) not to (i) perform any act or omit to take any
act that would make any of the representations made above,
inaccurate in any material respect or materially misleading as
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of the Effective Date, or (ii) make any payment or distribution
except for the payment of liabilities incurred in the ordinary
course of business.
b) to conduct its business in the ordinary and
regular course, and keep its books of account, records and files
in substantially the same manner as at present.
5.2 Notice. Pending the consummation of the transactions
contemplated in this Agreement or prior to termination of this
Agreement, each party agrees that it will promptly advise the
others of the occurrence of any condition or event which would
make any of its representations contained in this Agreement
inaccurate, incorrect, or materially misleading.
5.3 Access. Prior to the Closing, Each party shall afford
to the other parties to this Agreement (and their respective
officers, attorneys, accountants and other authorized
representatives), upon reasonable notice, free and full access
during usual business hours to its relevant offices, personnel,
books and records and other data, financial or otherwise, so
that each such party may have full opportunity to make such
investigation as it shall desire of the assets and the business
and operations of the other parties, provided that such
investigation shall not unreasonably interfere with such parties
operations. The scope of the investigation will include, but not
be limited to, verification of the accounts, books and records
of each party. Duly authorized representatives shall also be
entitled to discuss with officers of each party, its counsel,
employees and independent public accountants, all of its books,
records and other corporate documents, contracts, pricing and
service policies, commitments and future prospects.
Representatives of each party will furnish to the other parties
to this Agreement and such other persons, copies of all
materials relating to the business affairs, operations, assets
and liabilities of each party which may be reasonably requested
from time to time and will cause representatives and employees
of each party to assist in such investigation. All information
obtained in connection with the transactions contemplated by
this Agreement or in the course of their investigations, whether
obtained before or after the date of this Agreement (the
"Evaluation Material") shall be used only in connection with
this Agreement and the subsequent operation of the combined
entity and the other parties to this Agreement shall assure that
all Evaluation Material will be otherwise kept strictly
confidential by each of them and their respective
representatives.
5.4 Additional Documents. At the request of any party,
each party will execute and deliver any additional documents and
perform in good faith such acts as reasonably may be required in
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order to consummate the transactions contemplated by this
Agreement and to perfect the conveyance and transfer of any
property or rights to be conveyed or transferred or perfect the
assumption of any liabilities assumed under the terms of this
Agreement.
5.5 Filing of Returns; Additional Information. Each party
will file on a timely basis all tax returns, notices of sale and
other documentation required by law in connection with the
transactions provided for in this Agreement or otherwise
required by law, regulation or pursuant to the terms of any
agreement to which it is a party. Each party will supplement
any previous filing made by it in accordance with legitimate
requests made by applicable agencies or parties to the extent
required by the relevant law, regulation or agreement.
5.6 Compliance with Conditions to Closing. Subsequent
to the execution and delivery of this Agreement and prior to the
Closing Date, each of the parties to this Agreement will execute
such documents and take such other actions as reasonably may be
appropriate to fulfill the conditions to the Closing Date
provided for in Article V of this Agreement.
5.7 Further Assurances. Consistent with the terms and
conditions hereof, each party hereto will execute and deliver
such instruments and take such other action as the other parties
hereto may reasonably require in order to carry out this
Agreement and the Plan of Merger and the transactions
contemplated hereby and thereby.
5.8 Securities Exchange At of 1934; Compliance with
Pennsylvania Law. Net Lnnx shall as soon as practicable
distribute to its shareholders all appropriate notifications in
accordance with Pennsylvania law and in compliance with the
Securities Exchange Act of 1934 which shall be at the sole cost
and expense of POTN.
5.9 Filing of Merger Documents. Subject to the terms and
conditions of this Agreement, as soon as practicable following
the approval of the Plan of Merger by the shareholders of each
of POTN and Net Sub and the approval of the issuance of the
shares of Net Lnnx Common Stock pursuant to this Agreement and
the Plan of Merger by the Board of Directors of Net Lnnx, POTN
shall cause the Certificate of Merger to be filed with the
Secretary of State of Delaware and Net Sub shall cause Articles
of Merger to be filed with the Florida Department of State.
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ARTICLE VI
Conditions to the obligations of the parties
The obligation of each of Net Lnnx and Net Sub, on the one
hand, and POTN on the other hand, to consummate the transactions
contemplated by this Agreement shall be subject to compliance
with or satisfaction of the following conditions by the other,
to the extent applicable:
6.1 Bring Down. The representations and warranties set
forth in this Agreement shall be true and correct in all
material respects on and at the Closing as if then made by the
relevant party (except for those representations and warranties
made as of a given date, which shall continue to be true and
correct as of such given date).
6.2 Compliance. Each party shall have complied with all
of the covenants and agreements in this Agreement on its or
their part, respectively, to be complied with as of or prior to
the Closing Date.
6.3 No Material Adverse Changes. Since the date of this
Agreement, there shall not have occurred any material adverse
change in the condition or operations (financial or otherwise)
of POTN, on the one hand, or of Net Lnnx and Net Sub, on the
other. Cancellation of the Exclusive Production and Sales
Agreement shall constitute a material adverse change for
purposes of this Section.
6.4 Net Sub's Certificates. There shall be delivered to
POTN:
a) a certificate executed by the President and
Secretary of Net Sub, dated the Effective Date, certifying that
the conditions to be fulfilled by each of them set forth in this
Article VI have been fulfilled;
b) a certificate of incumbency for Net Sub executed
by its President and by the Secretary of such entity, listing
the officers of such entity authorized to execute (to the extent
applicable) the Agreement and the other documents, certificates,
schedules and instruments to be delivered on behalf of such
entity, and their respective offices, and containing the genuine
signature of each such person set forth opposite his name; and
c) good standing certificate and certified charter
document of Net Sub of recent date, from the Secretary of State
of Florida.
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The certificates described in subsections (a), (b), and (c)
above are hereafter referred to collectively as "Disappearing
Corporation's Certificates."
6.5 Net Lnnx's Certificates. There shall be delivered to
POTN:
a) a certificate executed by the President and
Secretary of Net Lnnx, dated the Effective Date, certifying that
the conditions to be fulfilled by each of them set forth in this
Article VI have been fulfilled;
b) a certificate of incumbency for Net Lnnx
executed by its President and by the Secretary of such entity,
listing the officers of such entity authorized to execute (to
the extent applicable) the Agreement and the other documents,
certificates, schedules and instruments to be delivered on
behalf of such entity, and their respective offices, and
containing the genuine signature of each such person set forth
opposite his name; and
c) good standing certificate and certified charter
document of Net Lnnx of recent date, from the Secretary of State
of Pennsylvania.
The certificates described in subsections (a), (b), and (c)
above are hereafter referred to collectively as "Net Lnnx's
Certificates."
6.6 POTN's Certificates. There shall be delivered to Net
Lnnx and Net Sub:
a) a certificate executed by the President and
Secretary of POTN, dated the Closing Date, certifying that the
conditions to be fulfilled by it as set forth in this Article VI
have been fulfilled;
b) a certificate of incumbency for POTN executed by
its President and by the Secretary of POTN, listing the officers
of such entity authorized to execute (to the extent applicable)
the Agreement and the other documents, certificates, schedules
and instruments to be delivered on behalf of such entity, and
their respective offices, and containing the genuine signature
of each such person set forth opposite his name; and
c) good standing certificate and certified charter
document of POTN of recent date, from the Secretary of State of
Delaware.
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The certificates described in subsections (a), (b), and (c)
above, are hereafter referred to collectively as "POTN's
Certificates."
d) an investment letter executed and delivered by
each of the Shareholders describing the Shareholders' respective
investment intent.
6.7 No Suits. No action or proceeding shall have been
instituted in any court or before any Federal, state or local
governmental agency against any party seeking to restrain or
prohibit the consummation of the transactions contemplated by
this Agreement, or which could have a material adverse effect on
any of the parties, which shall not have been dismissed or
withdrawn prior to the Effective Time of the Merger.
6.8 Documents. All documents required to be delivered to
each of the parties to this Agreement, at or prior to Closing
shall have been so delivered.
6.9 Authority. There shall be in full force and effect
on the resolutions of the Boards of Directors of each of the
parties to this Agreement approving this Agreement the other
documents executed and delivered by each of them in connection
with this Agreement and the transactions contemplated in it. At
or prior to the Closing, each party will deliver to the other a
copy of the resolutions of its Board of Directors approving the
execution and delivery of this Agreement and the other documents
to be delivered pursuant to this Agreement and the consummation
of all of the transactions contemplated hereby, duly certified
by an appropriate officer.
6.10 Bankruptcy, Dissolution, etc. No petition or
other commencement of proceedings in bankruptcy or proceedings
for dissolution, termination, liquidation or an arrangement,
merger or readjustment of any party's debts under any state or
Federal law enacted for the relief of debtors or otherwise,
whether instituted by or against a party, has been effected or
commenced by or against any party.
6.11 Preferred Stock Designation. The Directors of
Net Lnnx shall have designated a series of Preferred Stock of
Net Lnnx with voting rights on a one-for-one basis with the
Common Stock which is identical to the outstanding shares of
common stock and each of which is convertible into 6.707 shares
of common stock of Net Lnnx subsequent to the Effective Date,
provided only that an Amendment to Net Lnnx's Articles of
Incorporation which creates a sufficient amount of common stock
to allow for such conversion is filed with the Secretary of
State of Pennsylvania.
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ARTICLE VII
Closing
7.1 Time and Place; Effective Date. The closing of the
transactions provided for in this Agreement shall take place as
soon as practicable after the date all notices have been sent by
Net Lnnx to its shareholders or as required by law in order to
effectuate the change in control contemplated by the Plan but no
later than 20 days from the date hereof, or such other date as
the parties may agree upon.
7.2 Deliveries at Closing. At the Closing, Net Lnnx and
Net Sub shall deliver to POTN and POTN shall deliver to Net Lnnx
and Net Sub the certificates and other documents and instruments
provided to be delivered under the provisions hereof, and POTN
shall cause the Certificate of Merger to be filed in accordance
with the provisions of the Delaware Corporation Act and Florida
Business Corporation Act (or such other jurisdiction as may be
applicable) and shall take any other lawful actions and do any
other lawful things necessary to effect the Merger and to enable
the Merger to become effective.
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ARTICLE VIII
Termination and Rights and Remedies on Default
8.1 Termination. This Agreement may be terminated and the
transactions contemplated hereby abandoned prior to the Closing:
(i) by the mutual consent of the parties to this Agreement; (ii)
by Net Lnnx and Net Sub, if any condition to their obligations
to close set forth in Article VI hereof becomes impossible to
perform or has not been satisfied in full (in each case other
than as a result of a breach of such party's obligations under
this Agreement) or previously waived by the other parties to
this Agreement in writing at or prior to the Termination Date;
(iii) by POTN if any condition to its obligations to close set
forth in Article VIII hereof becomes impossible to perform or
has not been satisfied in full (in each case other than as a
result of a breach of such party's obligations under this
Agreement) or previously waived by the other parties to this
Agreement in writing at or prior to the Termination Date; or
(iv) by any party (other than a party that is in breach of its
obligations under this Agreement) if the Closing shall not have
occurred on or before the Termination Date. The Termination
Date shall be March 31, 1999. If this Agreement is terminated
pursuant to clause (i) of this Article VIII all obligations of
the parties hereunder shall terminate without any further
liability or obligation of either party to the other except as
limited by the preceding sentence, the exercise by any party of
the right to terminate this Agreement shall not terminate or
limit any remedy that such party may have pursuant to applicable
law, including any rights with respect to damages or specific
performance.
8.2 Nature of Remedies Cumulative. Except as otherwise
provided in this Agreement, all rights and remedies granted in
this Agreement or available under applicable law shall be deemed
concurrent and cumulative and not alternative or exclusive
remedies, to the full extent permitted by law and this
Agreement, and any party may proceed with any number of remedies
at the same time or in any order. The exercise of any one right
or remedy shall not be deemed a waiver or release of any other
right or remedy, and any party, upon the occurrence of an event
of default by another party under this Agreement, may proceed at
any time, under any agreement, in any order and with any
available remedy.
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ARTICLE IX
Finders Fees
Each of the parties represents and warrants to the other
that such party has not employed any finder or broker in
connection with transactions contemplated by this Agreement.
Each party agrees to indemnify and hold harmless the others from
and against any claim, damages, liabilities, and expenses
(including without limitation, attorneys' fees and
disbursements) arising from any claim or demand asserted by any
person or entity on the basis of its employment as a finder or
broker by the respective party.
ARTICLE X
Notices
All notices or other communications required or permitted
under the terms of this Agreement shall be made in writing and
shall be deemed given upon (i) hand delivery or (ii) three days
after deposit of same in the Certified Mail, Return Receipt
Requested, first class postage and registration fees prepaid and
correctly addressed to the parties at the following addresses:
If to Net Lnnx or Net Sub: 000 Xxxxxx Xxxxxx,
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Xx.
If to POTN: 0000 XX 00xx Xxxxxx
Xxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxxxx
or to such other address as any of the parties hereto may
designate by notice to the others.
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ARTICLE XI
Miscellaneous
11.1 Miscellaneous Provisions
a) Successors. This Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their
respective successors and permitted assigns. This Agreement may
not be assigned prior to Closing without the prior written
consent of the other parties hereto.
b) Expenses. Except as otherwise provided in this
Agreement, each of the parties to this Agreement shall be
responsible for any and all of the respective fees, costs and
expenses incurred by each, in connection with the negotiation,
preparation or performance of this Agreement.
c) Entire Agreement. This Agreement incorporates
by this reference the Plan of Merger, all Exhibits hereto and
all documents executed and/or delivered at Closing. This
Agreement and the documents so incorporated into it contain the
parties' entire understanding and agreement with respect to the
subject matter hereof; and any and all conflicting or
inconsistent discussions, agreements, promises, representations
and statements, if any, between the parties or their
representatives that are not incorporated in this Agreement
shall be null and void.
d) Amendments Only in Writing. No amendment,
modification, waiver or discharge of this Agreement or any
provision of this Agreement shall be effective against any
party, unless such party shall have consented thereto in
writing.
e) Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall constitute an
original, but all of which together shall constitute a single
agreement.
f) Cooperation. Each of the parties to this
Agreement, when requested by another party, shall give all
reasonable and necessary cooperation with respect to any
reasonable matters relating to the transactions contemplated by
this Agreement.
g) Governing Law; Venue. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Delaware, exclusive of its choice of law provisions.
The venue for any such actions or proceedings arising out of
this Agreement shall be in Palm Beach County, Florida.
h) Headings. The various section headings are
inserted for purposes of reference only and shall not affect the
meaning or interpretation of this Agreement or any provision
hereof.
16
i) Gender; Number. All references to gender or
number in this Agreement shall be deemed interchangeably to have
a masculine, feminine, neuter, singular or plural meaning, as
the sense of the context requires.
j) Severability. The provisions of this Agreement
shall be severable, and any invalidity, unenforceability or
illegality of any provision or provisions of this Agreement
shall not affect any other provision or provisions of this
Agreement, and each term and provision of this Agreement shall
be construed to be valid and enforceable to the full extent
permitted by law.
k) Survival. Except as otherwise expressly
provided in this Agreement, the liabilities and obligations of
each party with respect to any and all of its representations,
warranties, covenants and agreements set forth in this Agreement
and/or in any document incorporated into it shall not be merged
into, affected or impaired by the Closing under this Agreement.
All of the representations, warranties, covenants and agreements
set forth in this Agreement shall survive the Closing for the
period thereafter until two (2) years from the date first above
written.
l) No Third Party Beneficiaries. This Agreement
has been entered into solely for the benefit of the parties that
have executed it, and not to confer any benefit or enforceable
right upon any other party or entity. Accordingly, no party or
entity that has not executed this Agreement shall have any right
to enforce any of the provisions of it.
ARTICLE XII
Securities Law/Corporate Matters
12.1 Disposition of Shares. After the Closing Date,
each Shareholder agrees that he will not sell, transfer or
otherwise dispose of any Net Lnnx Common Stock or Preferred
Stock except pursuant to (i) an exemption from the registration
requirements under the Securities Act of 1933, as amended, (the
"Securities Act") which does not require the filing by Net Lnnx
with the SEC of any registration statement, offering circular or
other document, in which case, each such Shareholder shall first
supply to Net Lnnx an opinion of counsel (which counsel and
opinions shall be satisfactory to Net Lnnx) that such exemption
is available, or (ii) an effective registration statement filed
by Net Lnnx with the SEC under the Securities Act.
12.2 Legends. The certificates representing the Net
Lnnx Common Stock and Preferred Stock shall bear the following
legend:
17
THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), IN RELIANCE UPON THE EXEMPTION
PROVIDED BY SECTION 4(2) OF THE ACT AND
MAY BE SOLD, TRANSFERRED, OR OTHERWISE
DISPOSED OF BY A SHAREHOLDER ONLY IN
COMPLIANCE WITH BOTH FEDERAL AND STATE
SECURITIES LAWS. THE COMPANY IS UNDER NO
OBLIGATION TO SHAREHOLDERS TO REGISTER
THESE SHARES UNDER THE ACT OR TO CAUSE AN
EXEMPTION TO BE AVAILABLE TO SHAREHOLDERS.
Net Lnnx may, unless a registration statement is in effect
covering the Net Lnnx Common Stock or Preferred Stock,
place stop transfer orders with its transfer agent with
respect to such certificate in accordance with federal
securities laws.
12.3 Reverse Stock Split of Shares. Each
Shareholder agrees, in their capacity as a shareholder of
Net Lnnx Common Stock and Preferred Stock, and/or as a
future officer and/or director of Net Lnnx, if such person
is appointed or elected to such position(s) , that he will
not cause by his actions, either directly or indirectly,
any reverse stock split to occur of the Net Lnnx Common
Stock, for a period of at lease One (1) year after the
Closing Date.
18
IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be executed by an officer duly authorized to do so,
all as of the day and year first above written.
XxxxxXxXxxXxx.Xxx, Inc.
By:
Authorized Signatory
NET LNNX, INC.
By:
Authorized Signatory
NET SUB, INC.
By:
Authorized Signatory
The undersigned join in the execution and delivery of this
Agreement to the extent of their respective undertakings
expressly stated in Sections 6.6(d) and 12.
/s/ Xxxxxxxx Xxxxxxxxxx
Xxxxxxxx Xxxxxxxxxx
/s/ Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxxx
19
EXHIBIT "A"
Plan of Merger
PLAN OF MERGER
Plan of Merger (the "Plan"), dated as of March ___, 1999,
between XxxxxXxXxxXxx.Xxx, Inc., a Delaware corporation
("POTN"), and Net Sub, Inc., a Florida corporation ("Net Sub")
(POTN and Net Sub are sometimes referred to herein as the
"Constituent Corporations").
XxxxxXxXxxXxx.Xxx, Inc., is a corporation duly organized
and validly existing under the laws of the State of Delaware
with authorized capital stock consisting of 1,000 shares of
common stock, par value $1,000.00 per share ("POTN Common
Stock"), of which as of the date of this Plan of Merger there
were 1,000 shares issued and outstanding and no shares were
held in the treasury of POTN.
Net Sub is a corporation duly organized and validly
existing under the laws of the State of Florida with
authorized capital stock consisting of 100 shares of common
stock, no par value per share (the "Net Sub Common Stock"),
all of which shares are issued and outstanding and owned by
Net Lnnx, Inc., a Pennsylvania corporation ("Net Lnnx").
The respective Boards of Directors of POTN and Net Sub,
and Net Sub's sole shareholder, Net Lnnx, deem it advisable
that Net Sub be merged with and into POTN (the "Merger") as
provided herein and in the Agreement and Plan of Merger dated
as of February 18, 1999 (the "Agreement and Plan"), which sets
forth certain representations, warranties and agreements in
connection with the Merger and related transactions.
POTN and Net Sub, in order to effectuate the foregoing,
have adopted a plan of merger in accordance with the
provisions of Section 368(a) of the Internal Revenue Code, as
amended.
In consideration of the mutual benefits to be derived
from this Plan, the Agreement and Plan and the mutual
agreements hereinafter contained, POTN and Net Sub on the
terms and conditions contained herein, and in connection
herewith, agree as follows:
ARTICLE I
Surviving Corporation
In accordance with the applicable provisions of the
business corporation laws of the State of Florida and the
State of Delaware ("Corporation Laws"), Net Sub shall be
merged with and into POTN. POTN shall be and is herein
sometimes referred to as the "Surviving Corporation".
ARTICLE II
Effectiveness Of The Merger
Section 2.1 Effective Time of the Merger. Subject to
the provisions of this Plan and the Agreement and Plan, as
soon as practicable on or after the Closing Date (as defined
in Article I of the Agreement and Plan), a
certificate/articles of merger (the "Certificate/Articles of
Merger"), together with this Plan, shall be executed by POTN
and Net Sub and delivered to the Department of State of the
State of Florida and to the Secretary of State of the State of
Delaware for filing as provided in the Corporation Laws. The
Merger shall become effective upon completion of the filing of
Certificate/Articles of Merger with the Department of State of
the State of Florida and with the Secretary of State of the
State of Delaware (the "Effective Time of the Merger").
Section 2.2 Effects of the Merger. At the Effective
Time of the Merger: (i) the separate existence of Net Sub
shall cease and Net Sub shall be merged with and into POTN;
and (ii) the Merger shall, from and after the Effective Time
of the Merger, have all the effects provided by applicable
Delaware law.
Section 2.3 Additional Actions. If, at any time after
the Effective Time of the Merger, the Surviving Corporation
shall consider or be advised that any further assignments or
assurances or any other acts are necessary or desirable: (a)
to vest, perfect or confirm, of record or otherwise, in the
Surviving Corporation, title to and possession of any property
or right of Net Sub acquired or to be acquired by reason of,
or as a result of, the Merger; or (b) otherwise to carryout
the purposes of this Plan, Net Sub and its proper officers and
directors shall be deemed to have granted to the Surviving
Corporation an irrevocable power of attorney to execute and
deliver all such proper deeds, assignments and assurances and
to do all acts necessary or proper to vest, perfect or confirm
title to and possession of such property or rights in the
Surviving Corporation and otherwise to carryout the purposes
of this Plan; and the proper officers and directors of the
Surviving Corporation are fully authorized in the name of Net
Sub or otherwise to take any and all such action.
2
ARTICLE III
Effect Of Merger On Capital Stock
Of The Constituent Corporations
Section 3.1 Conversion of Stock of POTN and Net Sub.
At the Effective Time of the Merger:
(a) Each share of POTN Common Stock then issued and
outstanding shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into
16,500 shares of Net Lnnx common stock, no par value ("Net
Lnnx Common Stock") and 1,000 shares of Net Lnnx preferred
stock, no par value ("Net Lnnx Preferred Stock"), each one of
which is convertible into 7.207 shares of Common Stock of Net
Lnnx, subject to certain conditions; and
(b) Each share of Net Sub Common Stock then issued
and outstanding shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted in to
one fully paid and nonassessable share of common stock, par
value $1,000 per share, of the Surviving Corporation.
Section 3.2 Exchange of Certificates. After the
Effective Time of the Merger, each holder of a certificate or
certificates theretofore evidencing outstanding shares of POTN
Common Stock, upon surrender of the same to Xxxxxxxxx Xxxxxxx,
P.A. ("Xxxxxxxxx") as agent for POTN or such other agent or
agents as shall be appointed by Net Lnnx shall be entitled to
receive in exchange therefor a certificate or certificates
representing the number of full shares of Net Lnnx Common
Stock and Net Lnnx Preferred Stock for which the shares of
POTN Common Stock theretofore represented by the certificate
or certificates so surrendered shall have been converted as
provided in this Article III. As soon as practicable after
the Effective Time of the Merger, Xxxxxxxxx or such other
agent(s), as the case may be, shall mail to each holder of
record of an outstanding certificate which immediately prior
to the Effective Time of the Merger evidences shares of POTN
Common Stock (a "Certificate"), and which is to be exchanged
for the Net Lnnx Common Stock and Net Lnnx Preferred Stock as
provided in Section 3.1 hereof, a form of letter of
transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall
pass, only upon delivery of the Certificates to Xxxxxxxxx),
advising such shareholder of the terms of the exchange
effected by the Merger and the procedure for surrendering to
3
Xxxxxxxxx or such other agent(s), as the case may be, such
Certificate in exchange for certificates evidencing the Net
Lnnx Common Stock and Net Lnnx Preferred Stock. Until so
surrendered, each outstanding Certificate will be deemed for
all corporate purposes of Net Lnnx to evidence ownership of
the number of full shares of Net Lnnx Common Stock and Net
Lnnx Preferred Stock and the right to receive the cash value
of any fraction of a share into which the shares of PTON
Common Stock represented thereby were converted; provided,
however, until such outstanding Certificates are surrendered,
no dividend payable to holders of record of Net Lnnx Common
Stock and Net Lnnx Preferred Stock as of any record date
subsequent to the Effective Time of the Merger or cash payable
in lieu of fractional shares pursuant to Section 3.3 hereof
shall be paid to the holder of such outstanding Certificates
in respect thereof. After the Effective Time of the Merger,
there shall be no further registration of transfers on the
records or stock transfer books of POTN of shares of POTN
Common Stock and, if a Certificate representing such shares is
presented, it shall be canceled and exchanged for certificates
representing shares of Net Lnnx Common Stock and Net Lnnx
Preferred Stock as herein provided. Subject to the provisions
of this Section 3.2 and to applicable law, upon surrender of
Certificates there shall be paid to the record holder of the
certificates of Net Lnnx Common Stock and Net Lnnx Preferred
Stock issued in exchange therefor: (i) at the time of such
surrender, the amount of any dividends or distributions
theretofore paid with respect to such full shares of Net Lnnx
Common Stock and Net Lnnx Preferred Stock as of any record
date subsequent to the Effective Time of the Merger and the
amount of any cash payable to such holder in lieu of
fractional shares pursuant to Section 3.3 hereof to the extent
the same has not yet been paid to a public official pursuant
to abandoned property laws; and (ii) at the appropriate
payment date or as soon as practicable thereafter, the amount
of dividends or distributions with a record date after the
Effective Time of the Merger but prior to surrender and a
payment date subsequent to surrender payable with respect to
such full shares of Net Lnnx Common Stock and Net Lnnx
Preferred Stock. All such dividends or distributions, and all
cash to be paid pursuant to Section 3.3 hereof in lieu of
fractional shares, if held by Xxxxxxxxx, or such other
agent(s), as the case may be, for payment or delivery to the
holders of unsurrendered Certificates and unclaimed at the end
of one year from the Effective Time of the Merger, shall at
such time be paid or redelivered by Xxxxxxxxx or such other
agent(s), as the case may be, to Net Lnnx acting solely in its
corporate capacity, and after such time any holder of a
Certificate who has not surrendered such Certificate to
Xxxxxxxxx or such other agent(s), as the case may be, shall,
subject to applicable law, look as a general creditor only to
Net Lnnx for payment or delivery of such dividends or
4
distributions or cash, as the case may be. No interest shall
be payable with respect to the payment of such dividends,
distributions or cash in lieu of fractional shares on
surrender of outstanding Certificates. All shares of Net Lnnx
Common Stock and Net Lnnx Preferred Stock and rights to
receive cash, if any, into and for which shares of POTN Common
Stock shall have been converted and exchanged pursuant to this
Section 3.2 shall be deemed to have been issued in full
satisfaction of all rights pertaining to such converted and
exchanged shares of POTN Common Stock.
Section 3.3 No Fractional Shares. No certificates or
scrip for fractional shares of Net Lnnx Common Stock and Net
Lnnx Preferred Stock will be issued, no Net Lnnx stock split
or dividend shall relate to any fractional share interest, and
no such fractional share interest shall entitle the owner
thereof to vote or to any rights of or as a shareholder of Net
Lnnx. All fractional shares shall be rounded up to the
nearest whole number.
Section 3.4 Certificates in Other Names. If any
certificate evidencing shares of Net Lnnx Common Stock and Net
Lnnx Preferred Stock is to be issued in a name other than that
in which the Certificate surrendered in exchange therefor is
registered, it shall be a condition of the issuance thereof
that the Certificate so surrendered shall be properly endorsed
and otherwise in proper form for transfer and that the person
requesting such exchange pay to Xxxxxxxxx or such other
agent(s), as the case may be, or Net Lnnx acting solely in its
corporate capacity, as the case may be, any transfer or other
taxes required by reason of the issuance of a certificate for
shares of Net Lnnx Common Stock and Net Lnnx Preferred Stock
in any name other than that of the registered holder of the
Certificate surrendered or otherwise required or establish to
the satisfaction of Xxxxxxxxx or such other agent(s), as the
case may be, or Net Lnnx acting solely in its corporate
capacity, as the case may be, that such tax has been paid or
is not payable.
ARTICLE IV
Certificate of Incorporation of Surviving Corporation
The Certificate of Incorporation of the Surviving
Corporation shall continue to be its Certificate of
Incorporation from and after the Effective Time of the Merger
until changed in accordance with applicable law.
5
ARTICLE V
Miscellaneous
Section 5.1 Termination. This Plan shall terminate in
the event of and upon the termination of the Agreement and
Plan.
Section 5.2 Headings. The descriptive headings of the
several Articles and Sections of this Plan are inserted for
convenience only and do not constitute a part of this Plan.
Section 5.3 Notices. Any notices or other
communications required or permitted hereunder shall be
sufficiently given if sent by certified or registered mail,
postage prepaid, addressed as follows:
(a) If to POTN: 0000 XX 00xx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxxxx
(b) If to Net Sub: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Xx.
or such other addresses as shall be furnished in writing by
either party, and any such notice of communication shall be
deemed to have been given as of the date so mailed.
Section. 5.4 Assignment. This Plan and all of the
provisions hereof shall be binding upon and inure to the
benefit of the parties hereto and their respective successors
and permitted assigns, but neither this Plan nor any of the
rights, interest, or obligations hereunder shall be assigned
by any of the parties hereto without the prior written consent
of the other parties, except that Net Sub may assign all of
its rights, interests and obligations hereunder to another
wholly-owned subsidiary of Net Lnnx, provided that such
subsidiary agrees in writing to be bound by all of the terms,
conditions and provisions contained herein.
Section 5.5 Complete Agreement. This Plan, and the
Agreement and Plan, including the schedules, exhibits or other
writings referred to therein or delivered pursuant thereto,
6
contain the entire understanding of the parties hereto with
respect to the Merger and the related transactions and
supersede all prior arrangements or understandings with
respect thereto and all letters and other agreements relating
to the protection of Confidential Information (as defined in
the Agreement and Plan) of POTN and Net Lnnx. There are no
restrictions, agreements, promises, warranties, covenants or
undertakings between the parties hereto other than those
expressly set forth herein or in the Agreement and Plan.
Section 5.6 Modifications, Amendments and Waivers. At
any time prior to the Effective Time of the Merger
(notwithstanding any shareholder approval), if authorized by
their respective Boards of Directors and to the extent
permitted by law: (i) the parties hereto may, by written
agreement, modify, amend or supplement any term or provision
of this Plan and (ii) any term or provision of this Plan may
be waived by the party which is, or whose shareholders are,
entitled to the benefits thereof. Any written instrument or
agreement referred to in this section shall be validly and
sufficiently authorized for the purposes of this Plan if
signed on behalf of POTN and Net Sub by a person authorized to
sign this Plan.
Section 5.7 Counterparts. This Plan may be executed
by facsimile in two or more counterparts all of which shall be
considered one and the same agreement and each of which shall
be deemed an original.
Section 5.8 Governing Law. This Plan shall be
governed by the laws of the State of Delaware (regardless of
the laws that might be applicable under principles of
conflicts of law) as to all matters, including but not limited
to matters of validity, construction, effect and performance.
In Witness Whereof, POTN and Net Sub have caused this Plan
of Merger to be executed by their duly authorized officers,
respectively.
XxxxxXxXxxXxx.Xxx, Inc.
Attest:
By: /s/ Xxxxxxxx Xxxxxxxxxx
Secretary Xxxxxxxx Xxxxxxxxxx,
Chairman/CEO
7
NET SUB, INC.
Attest:
By: /s/ Xxxxxx X. Xxxxx, Xx.
Secretary Xxxxxx X. Xxxxx, Xx.,
President
8
EXHIBIT "B"
Exclusive Production and Sales Agreement
EXCLUSIVE PRODUCTION AND SALES AGREEMENT
THIS AGREEMENT entered into this 17th day of February,
1999, by and between National Lithographers and Publishers,
Inc. and PrintAmerica Management Company, Inc., both with their
principal office at 0000 X.X. 00xx Xxxxxx, Xxxxx, XX 00000,
(collectively, "Seller") and XxxxxXxXxxXxx.Xxx, Inc. ("Buyer")
WHEREAS, the parties to this Agreement desire to enter
into an exclusive sales agreement whereby the Seller will
sell to the Buyer any and all printed goods and items
("Product") for the Buyer to resell over the World Wide Web
and/or Internet ("Internet").
NOW THEREFORE, SELLER AND THE BUYER COVENANT AND
AGREE AS FOLLOWS:
1. REPRESENTATIONS:The above representations are
incorporated and material parts of this Agreement, upon which
the parties expressly rely.
2. EXCLUSIVE RELATIONSHIP:The Buyer shall have the
exclusive right to purchase from Seller Product for resale
over the Internet.
3. COST: Seller shall sell the Product at no more
than the best price than the same or substantially similar
product can be obtained from other sources.
4. INDEPENDENT CONTRACTOR: The Buyer is and shall at
all times remain an independent contractor, and is in no way
the legal representative, employee or agent of the Seller.
The Buyer has no authority to assume or create any
obligations on behalf of the Seller, but shall refer
purchasers and prospective purchasers to the literature of
the Seller, and agrees to hold the Seller harmless against
any damages, including attorney's fees, for improperly acting
without authority on behalf of the Seller, or for any
misrepresentation of the Seller or its products.
5. ASSIGNMENT: This agreement is not assignable by
the Buyer.
6. DURATION: This agreement is for an initial term of
two (2) years from the date of execution, and will continue
from year to year thereafter, unless terminated in accordance
with this Agreement.
7. COMPLETE AGREEMENT: This Agreement contains the
entire understanding and supersedes and cancels any previous
1
agreements or understandings between the parties whether oral
or written, and expresses their final understanding. This
agreement may not be amended, changed or waived in any way
except by a written instrument signed by both parties. If at
any time, the Seller or the Buyer fail to enforce or exercise
any provision, right or option under this Agreement, it shall
not be construed as a future waiver of such provision, right,
or option.
8. EFFECTIVE AGREEMENT: This Agreement becomes binding
upon the parties only when executed by the Buyer and Seller,
and shall be considered in effect from the date of such
signing. The validity, performance and all matters relating to
the interpretation and effect of this agreement and any
amendment hereto, shall be governed by the law of the State of
Florida.
9. RESTRICTIVE COVENANTS: In consideration of this
Agreement, the Seller shall be bound by the following
covenants, each of which shall be construed to be severable.
a) NON-COMPETITION COVENANT. The Seller shall not,
directly or indirectly, on its own behalf or on behalf of any
person, firm or corporation, in any capacity whatsoever, engage
in the ownership of, employment by, association with any entity
or person manufacturing, distributing and/or selling a product
competing with Buyer by selling in any manner Product over the
Internet during the term of this Agreement and for a period of
three years from the date of expiration and/or termination of
this Agreement.
b) NON-SOLICITATION COVENANT. During the period of
this Agreement and for a period of three years from the date of
expiration and/or termination, the Seller and the shall not,
directly or indirectly, on its own behalf or on behalf of any
person, firm or corporation, in any capacity whatsoever, canvas
or solicit business in the nature of or similar to the business
conducted by the Buyer, from any customer of the Buyer whose
identity was disclosed to the Seller by the Buyer during the
term of this Agreement. For this purpose, a customer is any
person, corporation or other entity with whom the Buyer has
solicited, and/or actually engaged in, business prior to and
during the term of this Agreement.
c) NON-DISCLOSURE COVENANT. The Seller shall not
at any time, directly or indirectly, use, disseminate, disclose
or publish as required by law, any confidential information of
2
the Buyer. For purpose of the foregoing, "confidential
information" means information disclosed to the Seller or known
by the Seller as a consequence of or through this Agreement,
not generally known in the industry in which the Seller is or
may become engaged, about the Buyer's products and services,
including information relating to research, development,
inventions, manufacture, distribution, purchasing, accounting,
engineering, marketing, merchandising and selling and also
including specialized knowledge about the needs of customers.
d) VIOLATION OF RESTRICTIVE COVENANTS. The Seller
acknowledges that his actual or threatened violation of any of
the covenants contained herein leaves the Buyer without an
adequate remedy at law. Such actual or threatened violation
shall subject the Seller to an emergency injunction. Without
the need to file and/or post a bond, as well as other potential
legal action, including damages, so as to prevent such
violations from continuing to occur and to otherwise remedy the
injuries suffered by the Buyer.
e) This provision (paragraph 9 (a) through (d)) shall
survive termination and/or expiration of the Agreement.
10. NOTICES: Any notice to be given hereunder shall be
in writing in the English language, and sent to the other party
by registered mail, return receipt requested.
11. ILLEGALITY: In the event any provision of this
Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired.
12. JURISDICTION AND VENUE: Any dispute or claim arising
in connection with this Agreement shall be litigated in Miami-
Dade County, Florida, to which jurisdiction both parties hereto
submit. This Agreement shall be construed under the laws of
the State of Florida.
13. ATTORNEYS FEES: The prevailing party in any lawsuit
between the parties shall be entitled to its reasonable
attorneys fees and costs incurred at the trial, appellate and
post-judgment levels.
14. TIME OF THE ESSENCE:It is expressly understood
that time is of the essence in performance of all terms and
conditions of this Agreement and any other agreements between
the parties hereto.
3
15. The language used in this agreement shall be deemed
to be the language chosen by all of the parties hereto to
express their mutual intent, and no rule of strict
construction shall be applied against any party hereto.
16. This Agreement may be amended or any provision
hereof may be waived, provided that any such amendment or
waiver shall be in writing executed by all of the parties
hereto, and only such amendments or waivers as are thus made
in writing shall be effective and binding upon any party
hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the 17th day of February, 1999.
WITNESSETH:
National Lithographers and Publishers, Inc.
_________________________ By:/s/ Xxxxxx Xxxxxxxxxx
Its: Vice President
_________________________
PrintAmerica Management Company, Inc.
________________________ By:/s/ Xxxxxx Xxxxxxxxxx
Its: Vice President
_________________________
XxxxxXxXxxXxx.Xxx, Inc.
________________________ By:/s/ Xxxxxxxx Xxxxxxxxxx
Its: Chief Executive Officer
_________________________
