ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "AGREEMENT") is made as of July 12,
2002, by and among InPhonic, Inc., a Delaware corporation ("BUYER"), and Appiant
Technologies, Inc., a Delaware corporation ("SELLER").
RECITALS
A. Seller desires to sell to Buyer, and Buyer desires to purchase and
acquire from Seller, the Acquired Assets (as defined below) in accordance with
and subject to the terms and conditions set forth in this Agreement.
B. In connection with this Agreement, the parties will enter into a
certain (i) Equipment Lease Agreement (the "LEASE AGREEMENT"), dated as of the
Closing Date, in which Buyer will lease the Acquired Assets to Seller, and (ii)
First Amendment to Master Services Agreement (the "SERVICES AGREEMENT"), dated
as of the Closing Date.
AGREEMENT
In consideration of the premises and the mutual covenants herein contained,
the parties agree as follows:
1. DEFINITIONS; INTERPRETATION. Capitalized terms that are used but not
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defined in the body of this Agreement shall have the meanings given such terms
in Exhibit A attached hereto.
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2. SALE AND PURCHASE OF ACQUIRED ASSETS; EXCLUDED ASSETS; ASSUMPTION OF
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LIABILITIES.
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(a) Purchase and Sale of Acquired Assets. Upon the terms and subject
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to the conditions of this Agreement, on the Closing Date, Seller shall sell,
transfer, assign, convey and deliver to Buyer, and Buyer shall purchase, accept
and acquire from Seller, free and clear of any and all Liens and Claims (other
than Permitted Encumbrances), all of Seller's rights, title and interest as of
the Effective Time in and to the properties, rights, interests and assets of
every kind, real, personal or mixed, tangible and intangible, that are specified
in Schedule 2(a) attached hereto (but excluding the Excluded Assets)
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(collectively, the "ACQUIRED ASSETS").
(b) Excluded Assets. Notwithstanding anything to the contrary
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contained in Section 2(a) or any other provision of this Agreement, the Acquired
Assets shall not include any tangible and intangible properties and assets of
Seller not included within the definition of Acquired Assets (collectively, the
"EXCLUDED ASSETS").
(c) Excluded Liabilities. Notwithstanding any other provision of this
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Agreement nor any schedule or exhibit hereto and regardless of any disclosure to
Buyer, Buyer shall not assume or be obligated or be responsible to pay, perform,
satisfy or otherwise discharge any Liabilities of Seller whatsoever
(collectively, the "EXCLUDED LIABILITIES").
3. PURCHASE PRICE.
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(a) Purchase Price. The aggregate purchase price (the "PURCHASE
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PRICE") for the Acquired
Assets shall be $600,000.00, of which (i) $200,000.00 is deemed paid on the date
hereof as a credit to Buyer as contemplated by that certain Deposit Agreement
dated as of June 28, 2002 by and between Buyer and Seller, (ii) $200,000 is due
and payable in cash on the date hereof and (iii) the remaining $200,000 shall be
due and payable upon satisfaction by Seller of its covenant in Section 7(g)
below.
(b) Xxxx of Sale. Buyer shall execute and deliver a Xxxx of Sale,
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substantially in the form attached hereto as Exhibit B (the "XXXX OF SALE"),
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evidencing the assignment by Seller of the Acquired Assets.
4. CLOSING; CLOSING DOCUMENTS.
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(a) Closing. The closing of the transactions contemplated by this
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Agreement (the "CLOSING") shall take place at the offices of Xxxxx Xxxxxxx LLP,
0000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X., commencing at 10:00 a.m. local time on
July 12, 2002 or, if all of the conditions to the obligations of the Parties to
consummate the transactions contemplated hereby have not been satisfied or
waived by such date, on such mutually agreeable later date as soon as
practicable after the satisfaction or waiver of all conditions to the
obligations of the Parties to consummate the transactions contemplated hereby
(the "CLOSING DATE"). Closing shall be effective as of 12:01 a.m. on the
Closing Date (the "EFFECTIVE TIME").
(b) Deliveries by Seller. Subject to the fulfillment or waiver of the
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conditions set forth in Section 8(b), at Closing, Seller shall deliver, or cause
to be delivered, to Buyer the following (the "SELLER'S CLOSING DOCUMENTS"):
(i) the Xxxx of Sale;
(ii) the Lease Agreement;
(iii) the Services Agreement; and
(iv) a certificate of Seller, duly executed by Seller, dated the
Closing Date, certifying that Seller's representations and warranties contained
in this Agreement are true and correct in all respects on the Closing Date and
that Seller has performed all of its covenants and obligations hereunder which
by the terms hereof are to be performed on or before the Closing Date.
(c) Deliveries by Buyer. Subject to the fulfillment or waiver of the
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conditions set forth in Section 8(a), at Closing, Buyer shall deliver to Seller
the following (the "BUYER CLOSING DOCUMENTS"):
(i) the portion of the Purchase Price due and owing under Section
3(a) above as of the Closing Date;
(ii) the Lease Agreement;
(iii) the Services Agreement; and
(ii) the Xxxx of Sale.
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5. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants
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to Buyer that the statements contained in this Article 5 are correct and
complete as of the date of this Agreement and will be correct and complete as of
the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this Article 5), except as
set forth in the schedules accompanying this Agreement (the "SCHEDULES").
(a) Organization, Qualification and Authority. Seller is a corporation
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duly organized, validly existing and in good standing under the laws of
Delaware. Seller has the requisite corporate power and authority (i) to own or
lease and to operate its properties and assets (including the Acquired Assets)
and to carry on the Business as it is now being conducted and (ii) to enter into
this Agreement and each of the Transaction Documents to be entered into by
Seller and to carry out its obligations hereunder and thereunder. The
execution, delivery and performance by Seller of this Agreement and of each
Transaction Document to be entered into by Seller, and the consummation by
Seller of the transactions contemplated hereby and thereby, have been approved
by all necessary corporate action on the part of Seller. This Agreement has
been duly executed and delivered by Seller and constitutes the legal, valid and
binding agreement of Seller, enforceable against Seller in accordance with its
terms.
(b) No Approvals; Conflict. The execution, delivery and performance by
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Seller of this Agreement and the Transaction Documents, the fulfillment of and
compliance with the respective terms and provisions hereof and thereof by Seller
and the consummation of the transactions contemplated hereby and thereby by
Seller do not and will not (i) require any consent, authorization or approval
of, notice to or any filing or registration with any Governmental Authority or
other Person; (ii) result in a breach of any material obligation; (iii)
constitute a material default or an event creating rights of acceleration,
termination or cancellation or a loss of material rights; or (iv) result in the
creation or imposition of any Lien upon any of the Acquired Assets, in each case
under any provision of (A) applicable Law, (B) the certificates of incorporation
or bylaws of Seller; or (C) any contract, lease or agreement to which any of the
Seller is a party.
(c) Litigation. There is no litigation, action, lawsuit, Claim, audit,
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review, examination, inquiry, proceeding or investigation pending or, to the
Knowledge of Seller, threatened against Seller (i) which relates to the Acquired
Assets, (ii) which questions the legality or propriety of the transactions
contemplated by this Agreement or any of the Transaction Documents or (iii)
which impacts Buyer's ability to receive the Acquire Assets free and clear of
all Liens. There is no outstanding order, writ, injunction, or decree of any
Governmental Authority against or affecting the Acquired Assets or the Business.
(d) Title to Acquired Assets. Seller has all right, title and interest
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in and to all of the Acquired Assets. Upon the execution and delivery to Buyer
on the Closing Date of the Xxxx of Sale and any other instruments of transfer
and assignment contemplated by this Agreement, Seller will transfer to Buyer all
of its interest in and to the Acquired Assets, in each case free and clear of
all Liens. All of the Acquired Assets are in good working order and condition,
ordinary wear and tear excepted.
(e) Sufficiency of Assets. The Acquired Assets represent all of the
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tangible assets necessary and required in order to provide the inUnison Services
as contemplated by that certain Master Services Agreement dated March 22, 2001
by and between Buyer and Seller.
(f) Subsidiaries. No Subsidiary of Seller has any ownership, leasehold
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or other interest in any of the Acquired Assets.
(g) Taxes. Seller has duly filed all Tax returns that are required to
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be filed by it and all such returns are true, correct and complete in all
respects. Seller has paid all Taxes which have become due or
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have been assessed against it or the Acquired Assets and all Taxes, penalties
and interest which any taxing authority has proposed or asserted to be owing.
All Tax liabilities to which the properties of Seller may have been subjected
have been discharged except for Taxes assessed but not yet payable. There are no
Tax claims presently being asserted against Seller or the Acquired Assets and
Seller knows of no basis for any such claim. Seller has not granted any
extension to any taxing authority of the limitation period during which any Tax
liability may be asserted thereby.
(h) Absence of Certain Changes or Events. Since May 31, 2002, Seller
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has not (i) suffered any event or circumstance that could have a Material
Adverse Effect; (ii) entered into any transaction, except in the ordinary course
of its business consistent with good business practice; (iii) received any
notice of any claim asserted against it by any Government Authority that could
have a Material Adverse Effect; or (iv) incurred or agreed to incur any material
obligation outside the ordinary course of business that has not heretofore been
disclosed in writing to Buyer.
(i) Disclosure. No representation or warranty by Seller in this
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Agreement and no statement contained in any document or other writing furnished
or to be furnished to Buyer or its representatives pursuant to the provisions
hereof contains or will contain any untrue statement of a material fact or omits
or will omit to state any material fact necessary in order to make the
statements made herein or therein not misleading. All copies of contracts and
all other documents delivered to Buyer or its Representatives pursuant hereto
are true, complete and accurate in all material respects. There has been no
event or transaction (other than the transactions contemplated hereby and the
matters related thereto) which has occurred or information which has come to the
attention of Seller (other than events or information relating to economic
conditions of general public knowledge) which could reasonably be expected to
have a Material Adverse Effect or which could reasonably be expected to prevent
or impair the ability of Buyer, after the Closing, to use the Acquired Assets in
the same manner as it is presently being used. Seller has not failed to
disclose to Buyer any fact that is reasonably more likely than not to have a
Material Adverse Effect or impede or impair the ability of Seller to perform its
obligations under this Agreement in any material respect.
(j) Status. Immediately prior to, and immediately subsequent to, the
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consummation of the sale of the Acquired Assets pursuant to the provisions of
this Agreement, Seller will have the ability to pay its debts as they become
due. For purposes of this Agreement, solvent shall mean, with respect to Seller,
that the present fair saleable value of Seller's assets is greater than the
amount that will be required to pay its liability on its existing debts as they
become absolute and mature.
(l) Brokers' Fees. Seller has no liability or obligation to pay any
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fees or commissions to any broker or finder with respect to the transactions
contemplated by this Agreement for which Buyer could become liable or obligated.
6. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby represents and
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warrants to Seller that the statements contained in this Article 6 are correct
and complete as of the date of this Agreement and will be correct and complete
as of the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this Article 6).
(a) Organization, Qualification and Authority. Buyer is a corporation
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duly organized, validly existing and in good standing under the laws of
Delaware. Buyer has requisite corporate power and authority to enter into this
Agreement and each of the Transaction Documents to be entered into by Buyer and
to carry out its obligations hereunder and thereunder. The execution, delivery
and performance by Buyer of this Agreement and of each Transaction Document to
be entered into by Buyer, and the consummation by Buyer of the transactions
contemplated hereby and thereby, have been approved by all necessary corporate
action on the part of Buyer. This Agreement has been duly executed and
delivered
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by Buyer and constitutes the legal, valid and binding agreement of Buyer,
enforceable against it in accordance with its terms.
(b) No Approvals; Conflict. The execution, delivery and performance by
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Buyer of this Agreement and the Transaction Documents, the fulfillment of and
compliance with the respective terms and provisions hereof and thereof by Buyer
and the consummation of the transactions contemplated hereby and thereby by
Buyer do not and will not require any consent, authorization or approval of or
any filing or registration with any Governmental Authority or other Person under
any provision of (A) the certificate of incorporation or by-laws of Buyer, (B)
any material contract, lease or agreement to which Buyer is a party or (C) any
Law to which Buyer or any of its assets is or are subject.
7. COVENANTS.
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(a) General. Subject to this Section 7, each of the Parties will use
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its commercially reasonable efforts to take all actions and do all things
reasonably necessary, proper or advisable in order to consummate and make
effective the transactions contemplated by this Agreement by the Closing Date,
including satisfaction, but not waiver, of the closing conditions set forth in
Article 8, below.
(b) Reasonable Access. Prior to Closing, Seller will permit Buyer and
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representatives of Buyer to have access, at all reasonable times and in a manner
so as not to interfere with the normal business operations of Seller, to all
premises, properties, personnel, books, records (including tax records),
contracts, and documents of or pertaining to Seller related to the Business and
the Acquired Assets. Buyer will treat and hold as such any Confidential
Information it receives from Seller in the course of the reviews contemplated by
this Section 7(b), will not use any of the Confidential Information except in
connection with this Agreement, and, if this Agreement is terminated for any
reason whatsoever, will return to Seller all tangible embodiments (and all
copies) of the Confidential Information which are in its possession.
(c) Notice of Developments. At any time prior to Closing, Seller shall
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provide Buyer due and sufficient notice of material developments relating to the
Acquired Assets and the Business, including any development causing a material
breach of any of its representations and warranties hereunder. In addition,
Seller shall, prior to Closing, supplement the Schedules hereto with respect to
any matter coming to the Knowledge of Seller that, if existing or known as of
the date hereof, would have been required to have been set forth or described in
the Schedules. Any such supplemental disclosure shall not be deemed to cure any
material breach of any representation or warranty made herein as of the date
hereof, nor shall it be deemed to have been disclosed to Buyer as of the date
hereof for the purposes of determining whether or not Buyer has any further
obligation to consummate the transactions contemplated hereby.
(d) Post-Closing Access to Records. Following Closing, Buyer agrees to
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permit representatives of Seller to have access, at reasonable times and in a
manner so as not to interfere with the normal business operations of Buyer, to
the books and records of Buyer (including all books and records acquired from
Seller hereunder) relating to the Acquired Assets prior to the Closing Date so
as to enable Seller to prepare tax, financial or court filings or reports, to
respond to court orders, subpoenas, or inquiries, investigations, audits or
other proceedings of Governmental Authorities, to prosecute or defend legal
actions or for other like proper purposes. Buyer agrees to preserve such
records in its possession for a period of at least two years from the Closing
Date.
(e) Further Actions.
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(i) Seller and Buyer will, as promptly as practicable, file or
supply, or cause to be
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filed or supplied, all applications, notifications and information required to
be filed or supplied by any of them pursuant to applicable Law in connection
with this Agreement and the Transaction Documents, the sale and transfer of the
Acquired Assets pursuant to this Agreement and the consummation of the other
transactions contemplated thereby.
(ii) Seller and Buyer, as promptly as practicable, will use all
commercially reasonable efforts to obtain, or cause to be obtained, all material
consents (including any consents required under any Contract) necessary to be
obtained by any of them in order to consummate the sale and transfer of the
Acquired Assets pursuant to this Agreement.
(iii) Seller and Buyer will, and will cause each of their
Affiliates to, coordinate and cooperate with each of the other parties in
exchanging such information and supplying such assistance as may be reasonably
requested by Seller or Buyer in connection with the filings and other actions
contemplated by this Section 7(e).
(iv) At all times prior to the Closing, each party shall promptly
notify the other in writing of any fact, condition, event or occurrence that
will or may likely result in the failure of any of the conditions contained in
Section 8 to be satisfied, promptly upon becoming aware of the same.
(f) Indemnification. Seller shall indemnify and hold harmless Buyer
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and its Representatives from and against any and all damages and Claims arising
out of any misrepresentation or breach of, or default in connection with, any of
the representations, warranties, covenants and agreements given or made by the
Seller in this Agreement.
(g) Evidence of Clear Title. On or before the date which is forty-five
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(45) days from the Closing Date (the "Target Date"), Seller shall provide Buyer
with written documentation confirming that the Acquired Assets are free and
clear of any encumbrances as of the date of Closing. In the event that Seller
does not comply with the obligation in the preceding sentence, and without
limiting the provisions of Section 3(a) above, Buyer shall have the right, in
its sole and absolute discretion, to terminate the asset purchase and sale
transaction contemplated by this Agreement in which event Seller shall return
the entire Purchase Price to Buyer and Buyer shall return the Acquired Assets to
Seller. Nothing in this Section 7(g) shall in any way be deemed to limit the
accuracy of, or Buyer's ability to rely on, the representations and warranties
in Section 5(d) above.
8. CONDITIONS TO CLOSING.
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(a) Conditions to Obligation of Buyer. The obligation of Buyer to pay
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the Purchase Price and consummate the transactions to be performed by it in
connection with Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties of Seller set forth in
Section 5 above shall be true and correct in all material respects at and as of
the Closing Date;
(ii) Seller shall have performed and complied with all of its
covenants hereunder in all material respects through Closing;
(iii) there shall not be any injunction, judgment, order, decree,
ruling, or charge in effect preventing consummation of any of the transactions
contemplated by this Agreement;
(iv) there shall not be a Material Adverse Effect effecting the
Acquired Assets; and
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(v) Seller shall have delivered to Buyer all of Seller's Closing
Documents, duly executed by Seller as applicable.
(b) Conditions to Obligation of Seller. The obligation of Seller to
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consummate the transactions to be performed by it in connection with Closing is
subject to satisfaction of the following conditions:
(i) the representations and warranties of Buyer set forth in
Section 6 above shall be true and correct in all material respects at and as of
the Closing Date;
(ii) Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through Closing;
(iii) there shall not be any injunction, judgment, order, decree,
ruling, or charge in effect preventing consummation of any of the transactions
contemplated by this Agreement; and
(iv) Buyer shall have delivered to Seller all of Buyer's Closing
Documents, duly executed by Buyer as applicable.
9. TERMINATION. (a) Mutual Agreement. Buyer and Seller may terminate
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this Agreement by mutual written consent at any time prior to Closing.
(b) Termination by Buyer. Buyer may terminate this Agreement by giving
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written notice to Seller on or prior to Closing in the event of a Material
Adverse Effect effecting the Acquired Assets and such Material Adverse Effect
shall have continued without cure for a period of ten (10) business days after
the date the notice of such was received by Seller.
(c) Effect of Termination Prior to Closing. In the event of the
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termination of this Agreement pursuant to Section 9(a) or (b), this Agreement,
except for the provisions of Sections 9 and 10, shall forthwith become null and
void and have no effect. Nothing in this Section 9 shall, however, relieve any
party to this Agreement for liability for breach of this Agreement occurring
prior to such termination, or for breach of any provision of this Agreement
which specifically survives termination.
10. MISCELLANEOUS.
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(a) Survival of Representations and Warranties. The representations
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and warranties of the parties hereto contained in this Agreement and in any of
the Transaction Documents shall survive Closing for a period of two (2) years
thereafter.
(b) Transfer Taxes. Any federal, state, provincial or local transfer
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Taxes, including gains, transfer, conveyance, sales, documentary stamp and
similar Taxes, payable as a result of the purchase and sale of the Acquired
Assets will be paid by Seller. Buyer and Seller will cooperate in the
preparation, execution and filing of all tax returns, questionnaires,
applications or other like documents regarding any such Taxes.
(c) Expenses and Fees. Except as otherwise provided herein, each party
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shall pay its own costs and expenses incident to the preparation and negotiation
of this Agreement and the Transaction Documents, the consummation of the
transactions contemplated hereby and thereby and its compliance with all its
agreements and conditions contained herein or therein, including all legal and
accounting fees and disbursements and all costs of obtaining necessary consents.
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(d) Waiver. No terms or provisions hereof, including the terms and
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provisions contained in this sentence, shall be waived, modified or altered so
as to impose any additional obligations or liability or grant any additional
right or remedy, and no custom, payment, act, knowledge, extension of time,
favor or indulgence, gratuitous or otherwise, or words or silence at any time,
shall impose any additional obligation or liability or grant any additional
right or remedy or be deemed a waiver or release of any obligation, liability,
right or remedy except as set forth in a written instrument properly executed
and delivered by the party sought to be charged, expressly stating that it is,
and the extent to which it is, intended to be so effective. No assent, express
or implied, by either party, or waiver by either party, to or of any breach of
any term or provision of this Agreement or of the Schedules shall be deemed to
be an assent or waiver to or of such or any succeeding breach of the same or any
other such term or provision.
(e) Press Releases and Public Announcements. No party shall issue any
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press release or make any public announcement relating to the subject matter of
this Agreement without the prior written approval of the other party; provided,
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however, that any party may make any public disclosure it believes in good faith
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is required by applicable Law or any listing or trading agreement concerning its
publicly-traded securities.
(f) No Third-Party Beneficiaries. This Agreement shall not confer any
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rights or remedies upon any Person other than the parties and their respective
successors and permitted assigns.
(g) Entire Agreement; Amendment. This Agreement, the Exhibits and the
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Schedules referred to herein and the Transaction Documents contain the entire
understanding of the parties with respect to the subject matter contained herein
or therein and supersede in their entirety all prior or concurrent oral or
written agreements, offers, proposals and understandings between the parties
with respect to such subject matter. This Agreement may not be amended in any
respect whatsoever except by a further agreement, in writing, fully executed by
each of the parties.
(h) Succession and Assignment. This Agreement shall be binding upon
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and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. No party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other party; provided, however, that Buyer may (i) assign any or
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all of its rights and interests hereunder to one or more of its Affiliates and
(ii) designate one or more of its Affiliates to perform its obligations
hereunder, in any or all of which cases Buyer nonetheless shall remain
responsible for the performance of all of its obligations hereunder. In the
event Buyer assigns or delegates any of its rights hereunder as provided in the
foregoing sentence, Buyer shall cause such Affiliate to be capitalized, or shall
guarantee or otherwise provide financial support for the obligations of any such
Affiliate.
(i) Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(j) Headings. The section headings contained in this Agreement are
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inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(k) Notices. All notices, requests, demands or other communications
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required or permitted by this Agreement: (i) shall be in writing; (ii) shall be
deemed to have been given, forwarded, made or delivered: (A) if delivered in
person or by overnight courier service, when so delivered, (B) if sent by
facsimile transmission, when received, or (C) if sent by registered, certified
or express mail, return receipt requested and postage prepaid, on the date of
receipt (or on the date of attempted delivery if delivery is refused); and (iii)
shall be addressed as follows:
If to Buyer:
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InPhonic, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx, Esq.
Facsimile: 202-333-5007
with a copy to:
Xxxxx Xxxxxxx LLP
0000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxx X. Xxxxxx, Xx., Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Seller:
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Appiant Technologies Inc
0000 Xxxxx Xx.
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
Facsmile: (000) 000-0000 x0000
Each party may designate by notice in writing a new or additional address
to which any notice, request, demand or communication may thereafter be so
given, served or sent. Notices, requests, demands and other communications
hereunder may be given by the attorney of any party.
(l) Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY
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AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT
REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF. THE PARTIES ACKNOWLEDGE AND
AGREE THAT THE STATE AND FEDERAL COURTS OF THE STATE OF DELAWARE SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE
PARTIES HERETO PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR TO ANY
MATTER ARISING HEREUNDER OR RELATED HERETO. THE PARTIES TO THIS AGREEMENT EACH
HEREBY AGREES THAT ANY SUCH CLAIM, DISPUTE OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS EVIDENCE OF
THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
FURTHER, EACH PARTY HEREBY WAIVES ANY AND ALL CLAIMS FOR EXEMPLARY OR PUNITIVE
DAMAGES FOR ANY CLAIM, DISPUTE OR CAUSE OF ACTION ARISING HEREUNDER OR RELATED
HERETO.
(m) Severability. Any term or provision of this Agreement that is
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invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(n) Incorporation of Schedules. The Schedules identified in this
----------------------------
Agreement are incorporated herein by reference and made a part hereof.
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(o) Interpretation. Words used herein, regardless of the number and
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gender used, shall be deemed and construed to include any other number, singular
or plural, and any other gender, masculine, feminine or neuter, as the context
requires and, as used herein, unless the context otherwise requires, the words
"hereof," "herein" and "hereunder," and words of similar import, shall refer to
this Agreement as a whole and not to any particular provision hereof. The term
"including" shall be deemed to mean "including, without limitation." Accounting
terms used herein shall have the meanings given to them by GAAP applied on a
consistent basis by the Person to which they relate. References to any Law
shall be construed as a reference to the same as in effect on the date of this
Agreement. Unless otherwise expressly stated, all dollar amounts stated herein
are in United States currency.
[SIGNATURE PAGES BEGIN ON THE NEXT PAGE.]
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IN WITNESS WHEREOF, the parties hereto have executed this Asset Purchase
Agreement as of the date first above written.
INPHONIC, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
APPIANT TECHNOLOGIES INC.
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
President & CEO
EXHIBIT A
Definitions
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In addition to the terms defined elsewhere in this Agreement, the following
terms shall have the respective meanings specified below:
"ACQUIRED ASSETS" has the meaning set forth in Section 2(a) hereof.
"AFFILIATE" means, with respect to any Person, (i) a spouse or member of
the immediate family of such Person, (ii) any member, manager, director, officer
or partner of such Person, (iii) any corporation, partnership, business,
association, limited liability company, firm or other entity of which such
Person is a member, manager, director, officer or partner or owns or controls,
directly or indirectly, more than fifty percent (50%) of the voting stock or
other equity interests and (iv) any other Person that directly or indirectly
controls, is controlled by or is under direct or indirect common control with
such first Person.
"XXXX OF SALE" has the meaning set forth in Section 3(b)(ii).
"BUSINESS" shall mean Seller's business operations
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day on
which commercial banks in Washington, D.C., are authorized or required by Law to
be closed.
"BUYER" has the meaning set forth in the preface above.
"BUYER CLOSING DOCUMENTS" has the meaning set forth in Section 4(c).
"CLAIM" means (i) a right to payment, whether or not such right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (ii) a right to
an equitable remedy for breach of performance if such breach gives rise to a
right to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
"CLOSING" has the meaning set forth in Section 4(a).
"CLOSING DATE" has the meaning set forth in Section 4(a).
"CODE" means the Internal Revenue Code of 1986, any amendments thereto, any
successor statutes and any regulations promulgated thereunder.
"CONFIDENTIAL INFORMATION" means all trade secrets and all proprietary and
confidential information concerning the businesses and affairs of Seller and its
Affiliates, the Acquired Assets or the Business that are not already generally
available to the public.
"CONTRACT" means all agreements, whether oral or written and whether
express or implied (whether legally binding or not), including, without
limitation, contracts, contract rights, promises, commitments, undertakings,
customer accounts, orders, leases, guarantees, warranties and representations,
franchises benefiting or relating to the Business or the ownership,
construction, development, maintenance, repair, management, use, occupancy,
possession or operation thereof, or the operation of any of the programs or
services in conjunction with the Business and all renewals, replacements and
substitutions therefor.
"EFFECTIVE TIME" has the meaning set forth in Section 4(a).
"EXCLUDED ASSETS" has the meaning set forth in Section 2(b).
"EXCLUDED LIABILITIES" has the meaning set forth in Section 2(d).
"EXPENSES" means selling, general and administrative expenses,
depreciation, amortization, non-operating items (nonoperating income minus
nonoperating expenses) and taxes.
"GAAP" means United States generally accepted accounting principles as in
effect from time to time.
"GOVERNMENTAL AUTHORITY" means any agency, board, bureau, executive, court,
commission, department, legislature, tribunal, instrumentality or administration
of the United States, a foreign country or any state, provincial, territorial,
municipal, county, local or other governmental entity in the United States or a
foreign country.
"KNOWLEDGE OF SELLER" means the actual knowledge of Seller's officers,
directors and key employees, after conducting a reasonable investigation.
"LAW" means any law, statute, regulation, rule, code, ordinance or court
order enacted, adopted, issued or promulgated by any Governmental Authority.
"LIABILITY" or "LIABILITIES" means any and all liabilities, obligations,
judgments, damages, charges, costs, debts and indebtedness of any and every kind
and nature whatsoever, absolute or contingent, liquidated or unliquidated, in
Law, equity or otherwise.
"LIEN" means, with respect to any asset or property of any character, any
mortgage, pledge, security interest, lien (including any mechanics or
materialmen lien, tax lien, shipper or warehousemen lien or customs lien), right
of first refusal, option or other right to acquire, transfer for security,
charge, Claim, easement, conditional sale agreement, title retention agreement,
defect in title, or other encumbrance or adverse Claim of any nature pertaining
to or affecting such asset or property, whether voluntary or involuntary and
whether arising by Law, contract or otherwise.
"MATERIAL ADVERSE EFFECT" means any event, occurrence, fact, condition,
change or effect that is materially adverse to the Acquired Assets or to the
business, assets or results of operations of the Business, taken as a whole.
"PERSON" means any individual, corporation, partnership, proprietorship,
joint venture, limited liability company, association, joint-stock company,
trust, unincorporated organization, Governmental Authority, or other entity,
organization or institution of any type whatsoever.
"PURCHASE PRICE" has the meaning set forth in Section 3(a).
"SCHEDULES" has the meaning set forth in the introductory paragraph of
Section 5.
"SELLER" has the meaning set forth in the preface above.
"SELLER'S CLOSING DOCUMENTS" has the meaning set forth in Section 4(b).
"SERVICES CONTRACTS" has the meaning set forth in Section 5(e).
"SUBSIDIARY" means any corporation with respect to which a specified Person
(or a Subsidiary thereof), directly or indirectly, owns a majority of the common
stock or has the power to vote or direct the voting of sufficient securities to
elect a majority of the directors.
"TANGIBLE PERSONAL PROPERTY" means all machinery, equipment, tools,
furniture, fixtures and equipment, computer hardware, supplies, materials,
leasehold improvements, automobiles, inventory and other items of tangible
personal property, of every kind owned or leased by Seller and used in the
Business (wherever located and whether or not carried on Seller's books),
together with any express or implied warranty by the manufacturers or sellers or
lessors of any item or component part thereof, and all maintenance records and
other documents relating thereto.
"TAX" means any federal, state, provincial, local, foreign or other income,
alternative, minimum, inheritance, accumulated earnings, personal holding
company, corporation, franchise, capital stock, net worth, capital, profits,
windfall profits, capital gain, gross receipts, value added, sales, use, goods
and services, excise, customs duties, transfer, conveyance, mortgage,
registration, stamp, documentary, recording, premium, severance, environmental
(including taxes under Section 59A of the Code), real property, personal
property, ad valorem, intangibles, rent, occupancy, license, occupational,
employment, unemployment insurance, social security, disability, workers'
compensation, payroll, health care, withholding, estimated or other similar tax,
duty or other governmental charge or assessment or deficiencies thereof
(including all interest and penalties thereon and additions thereto whether
disputed or not).
"TRANSACTION DOCUMENTS" means, collectively, Seller's Closing Documents and
Buyer's Closing Documents.
EXHIBIT B
Xxxx of Sale
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Attached hereto.
SCHEDULE 2(a)
Acquired Assets
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Attached hereto.
