Exhibit 10.1
ASSET PURCHASE AGREEMENT
AGREEMENT made this 15th day of October, 2002, by and between
Hostronix, Inc., a Florida corporation, with offices located at 0000 X. 0xx
Xxxxxx, Xxxxx X, Xxxxx, Xxxxxxx 00000 (the "Purchaser"), and Vision Multimedia
Solutions, Inc., a Florida corporation, with offices at 0000 Xxxxxxx Xxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxx 00000 (the "Seller").
W I T N E S S E T H
WHEREAS, Seller is engaged in a business (the "Business") of developing
computer web hosting software; and
WHEREAS, Purchaser desires to purchase from Seller, and Seller desires
to sell to Purchaser, on the terms and conditions hereinafter set forth, certain
software more fully described on Schedule A attached hereto and made a part
hereof;
NOW THEREFORE, in consideration of the premises and the mutual promises
and covenants contained herein, the parties agree as follows:
ARTICLE I
SALE AND ACQUISITION OF ASSETS
1.1 Transfer of Assets and Properties. Based upon the representations,
warranties and agreements herein contained and subject to the terms and
conditions set forth in this Agreement, Seller agrees to sell, convey, transfer,
assign and deliver to Purchaser, and Purchaser agrees to purchase, acquire and
accept from Seller at the Purchase Price provided for in Section 2.1, the
software and all improvements and updates related to such software ("Purchased
Assets").
1.2 Non-Assumption of Liabilities. The Purchaser shall not assume or
become liable for any of Seller's obligations, liabilities, debts, contracts or
other commitments of any kind whatsoever, known or unknown, fixed or contingent,
for all of which Seller shall remain obligated. Without limiting the effect of
the preceding sentence, it is expressly agreed that Purchaser shall not assume
or become liable for any of the following debts, liabilities or obligations of
Seller:
(a) Any liabilities or obligations under contracts, leases or
agreements that are not specifically assigned to and assumed
by Purchaser;
(b) Any debt, liability or obligation existing on the Closing Date
which would constitute a breach of any representation,
warranty or covenant made by Seller herein;
1
(c) The expenses of Seller incurred in connection with or
resulting from the transactions contemplated by this
Agreement;
(d) Any liability by reason of or for any default, breach or
penalty under any contract, lease or agreement occurring or
arising prior to closing;
(e) Accounts payable except as otherwise expressly provided
herein;
(f) Federal, State or local income, franchise, property, sales,
value-added, employment or other taxes;
(g) Worker's Compensation claims relating to employment prior to
the Closing Date;
(h) Any severance pay that may be due or owing to employees of
Seller as of the Closing Date.
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. In consideration for the transfer of the Purchased
Assets, Purchaser shall pay to the Seller an aggregate of Ten Thousand ($10,000)
Dollars, to be paid upon the execution of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Seller represents and warrants that:
3.1 Authority, Etc. Seller has the full right, power and authority to
enter into this Agreement and to carry out the transactions contemplated hereby.
The Board of Directors of Seller has taken all action required by law, its
Certificate of Incorporation, its By-laws, or otherwise, to authorize the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby. This Agreement has been duly and validly
authorized, executed and delivered by Seller and no other action by Seller is
necessary. This Agreement is a valid and binding obligation of Seller
enforceable against Seller in accordance with its terms.
3.2 Organization. Seller is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Florida. Seller has
all requisite power and authority to own its properties and carry on its
business as now conducted.
3.3 Subsidiaries. Seller neither owns, nor has the right or obligation
to acquire, any capital stock or other form of equity interest in any other
corporation, firm, partnership, joint venture or other entity which is related
to the business of Seller.
2
3.4 Effect of Agreement. Neither Seller's execution and delivery of
this Agreement, or Seller's consummation of the transactions contemplated
hereby, will (i) violate any provision of Seller's Certificate of Incorporation
or By-Laws, (ii) violate, conflict with or result in the breach or termination
of, or otherwise give any other contracting party the right to terminate, or be
an event which, after the giving of notice or the passage of time or both, would
constitute a default under the terms of, any agreement or instrument to which
Seller is a party or by which Seller or its properties or assets may be bound
which, either separately or in the aggregate, would materially and adversely
affect its business, operations or financial condition, (iii) result in the
creation of any lien, charge or encumbrance upon the properties or assets of
Seller pursuant to the terms of any such agreement or instrument, or (iv)
violate any judgment, order, injunction, decree or award against or binding upon
Seller or upon the assets or business of Seller, or any law or regulation
relating to Seller.
3.5 Litigation. There is no litigation, governmental or administrative
proceeding, investigation, claim, complaint, or accusation, formal or informal,
pending, either in court or otherwise or before any administrative board,
agency, or commission, or any arbitration pending, or are any of the foregoing
threatened, relating to Seller, its properties, licenses and/or business
(hereinafter "Legal Proceedings"); nor does Seller know, or have reasonable
grounds to know, of any reasonable basis for any such action, arbitration, or
governmental proceeding or investigation relative thereto.
3.6 Title to Assets. Seller has good and marketable title to all of the
Purchased Assets, and none of such properties or assets is subject to a contract
of sale, or will at closing be subject to any security interest, mortgage,
encumbrance, lien or charge of any kind or character. All Purchased Assets are
in such condition and repair as is adequate for use in their standard
operations, and such use is in substantial compliance with all applicable laws
and governmental regulations.
3.7 Tradenames, Trademarks and Copyrights. All such Proprietary Rights
listed on Schedule A are valid and in good standing, do not conflict with the
rights of any other person, firm or entity, are subject to no liens, charges,
claims or restrictions and are adequate and sufficient to permit Sellers to
conduct the Business as presently being conducted. No rights under any other
Proprietary Rights are required by Seller in connection with the conduct of
Business as presently conducted. Seller has full right to use its corporate name
and Seller does not know of any conflict or claimed conflict with respect to its
use of its Proprietary Rights. For purposes of this Agreement "Proprietary
Rights" means patents, trademarks, tradenames, copyrights, service marks or
logos.
3
3.8 Representations and Warranties at Closing. Except as expressly
herein otherwise provided, the representations and warranties of Seller set
forth in this Agreement shall be true on and as of the Closing Date as though
such representations and warranties were made on and as of such time.
3.9 State Taxing Authorities. No filing with or approval of any State
taxing authority is required in order to consummate the transactions
contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller, as follows:
4.1 Organization. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida.
4.2 Authority, Etc. Purchaser has full power and authority to enter
into this Agreement and to carry out the transactions contemplated hereby. The
Board of Directors of the Purchaser has taken all action required by law, its
Certificate of Incorporation, its By-laws, or otherwise, to authorize the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby. This Agreement has been duly and validly
authorized, executed and delivered by Purchaser and no other corporate action by
it is necessary. This Agreement is a valid and binding obligation of Purchaser
enforceable against it in accordance with its terms.
4.3 No Violation. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will (a) violate
any provisions of the Certificate of Incorporation or by-laws of the Purchaser;
(b) violate, conflict with or result in the breach or termination of, or
otherwise give any other contracting party the right to terminate, or be an
event which, after the giving of notice or the passage of time or both, would
constitute a default under the terms of, any agreement or instrument to which
Purchaser is a party or by which Purchaser or its properties or assets may be
bound which, either separately or in the aggregate, would materially and
adversely affect its business, operations or financial condition; or (c) violate
any judgment, order, injunction, decree or award against or binding upon
Purchaser or upon the assets or business of Purchaser, or any law or regulation
relating to Purchaser.
4.4 Disclosure. Neither this Agreement nor any schedule or document
delivered by or on behalf of Purchaser in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state material fact necessary to make the statements herein and therein made, in
light of the circumstances under which they were made, not misleading.
4
ARTICLE V
CLOSING
5.1 Time and Place. The closing shall occur on October 31, 2002 or such
other date as may be agreed to by the parties. The Closing shall take place at
4:00 pm., at the offices of Hostronix, Inc., 0000 X. 0xx Xxxxxx, Xxxxx X, Xxxxx,
Xxxxxxx 00000.
5.2 Transfer of Assets. At the Closing, Seller will deliver to
Purchaser such deeds, bills of sale, assignments and other instruments of
transfer (in recordable form where appropriate) as, in the opinion of
Purchaser's counsel, shall be necessary to vest in Purchaser good and marketable
title to the Purchased Assets free and clear of all encumbrances, mortgages,
liens, charges and defects.
5.3 Transfer Taxes. Seller shall pay all transfer or excise taxes
imposed on the conveyance of the Purchased Assets.
5.4 Other Documents. The parties shall each deliver to the other such
other documents as are necessary to satisfy the conditions set forth in this
Agreement.
ARTICLE VI
INDEMNIFICATION
6.1 Indemnification by Seller.
(a) Seller shall indemnify Purchaser against and hold it harmless
from any and all liabilities, loss, claims, counterclaims,
cross-claims, set-offs, recoupments, damages and expenses
whatsoever, including, without limitation, all attorneys' fees
and other costs and expenses of litigation (hereinafter in
this Section 6.1 "Loss") that Purchaser may at an time suffer
or incur by reason of (i) Seller's failure to pay, discharge
or perform any and all liabilities and obligations incurred or
arising from actions of Seller prior to the Closing Date
pertaining in any way or affecting the Purchased Assets that
are not expressly assumed by Purchaser under this Agreement;
(ii) Purchaser's defense of any claim, suit or proceeding made
or commenced against it arising out of any liability or
obligation of Seller that is not expressly assumed by
purchaser hereunder; (iii) failure of Seller to comply with
the provisions of any tax statute relating to notice of the
sale of assets hereunder and payment of taxes due upon such
sale, or failure of Seller or Purchaser to comply with the
bulk transfer provisions of the Uniform Commercial Code of New
Jersey; (iv) any unpaid taxes due and owing by Seller; and (v)
5
any material breaches of or inaccuracies in the agreements,
covenants, representations and warranties made by Seller in or
pursuant to this Agreement.
(b) Without limitation of the foregoing undertakings by Seller in
this Article VI, Seller shall further indemnify Purchaser
against and hold it harmless from any and all loss that
purchaser may at any time suffer or incur by reason of
Seller's failure for whatever reason to pay, discharge or
perform any and all judgments, liabilities or obligations that
may arise out of or relate in any manner to the pending
proceedings and actions against Seller, if any, and all new
proceedings or actions based upon, or in any way arising out
of or related to any of the facts or claims alleged in any of
said pending proceedings and actions and existing at any time
prior to the Closing Date.
6.2 Indemnification by Purchaser. Purchaser shall indemnify Seller
against and hold Seller harmless from any and all liabilities, losses, claims,
damages and expenses, including, without limitation, all counsel fees and
expenses of litigation (hereinafter in this Section 6.2 "Loss") that Seller may
suffer or incur by reason of (i) Purchaser's failure to pay, discharge or
perform any of Seller's liabilities or obligations that are expressly assumed by
Purchaser under this Agreement; and (ii) any material breaches of or
inaccuracies in the agreements, representations and warranties made by Purchaser
in or pursuant to this Agreement.
6.3 Defense of Claims. With respect to any matter involving a third
party, the following provisions shall be in effect: the party from whom
indemnification is sought (the "Indemnifying Party"), whether pursuant to
Section 6.1 or 6.2, shall be notified in writing of the nature of any claim for
which indemnification is sought hereunder within a reasonable time after the
assertion thereof. Such party shall be entitled to participate at its own
expense in the defense, if it so elects within a reasonable time after receipt
of such notice, to assume the defense of any suit brought to enforce any such
claim, but if it so elects to assume the defense, such defense shall be
conducted by counsel chosen by it and approved by the requesting party, which
approval shall not be unreasonably withheld. In the event that the Indemnifying
Party elects to assume the defense of any such suit and retain its counsel, the
requesting party shall bear the fees and expenses of any additional counsel
thereafter retained by it. In the event that the Indemnifying Party does not
elect to assume the defense of any such suit, the requesting party shall not
settle such suit, without the prior written consent of the Indemnifying Party,
which consent shall not be unreasonably withheld. In the event of any suit, the
parties will cooperate with each other in connection with the defense thereof.
6.4 Duration of Indemnification. Any claim for indemnification under
this Article VI shall be asserted within one (1) year following the closing
date.
6
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 Finders and Brokers. Each party hereby represents and warrants to
the other that neither it nor its representatives have taken, nor will they
take, any action that would cause the other party to have any obligation or
liability to any person for any finders' fees, brokerage fees, agents'
commissions, or like payments in connection with the transactions contemplated
hereby. Each party shall indemnify and hold harmless the other from any claim
that is asserted by any person for a finder's fee or like payment with respect
to this Agreement arising from any act, representation or promise of the
indemnifying party or its representative.
7.2 Amendment. Subject to applicable law, this Agreement may only be
amended or supplemented by written agreement of the parties.
7.3 Waiver of Compliance. Any failure of Seller or Purchaser to comply
with any provision of this Agreement may be expressly waived in writing by
Purchaser or Seller, respectively, but such waiver or failure to insist upon
strict compliance with such provision shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure. No failure to
exercise and no delay in exercising any right, remedy, or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power hereunder preclude any other or further exercise thereof
or the exercise of any other right, remedy, or power provided herein or by law
or in equity. The waiver by any party of the time for performance of any act or
condition hereunder does not constitute a waiver of the act or condition itself.
7.4 Expenses: Attorneys' Fees. Whether or not the transactions
contemplated by this Agreement are consummated, each party shall pay all
expenses incurred by it or on its behalf in connection with this Agreement or
any transaction contemplated hereby.
7.5 Survival of Representations and Warranties. All representations
warranties and agreements made by Seller or Purchaser in this Agreement or
pursuant hereto shall survive the Closing, and all statements contained in any
certificate, list schedule or other instrument delivered by Seller or Purchaser
pursuant to this Agreement shall be deemed representations and warranties of
such party.
7.6 Notices. All notices, demands, and other communications required or
permitted hereunder shall be made in writing and shall be deemed to have been
duly given if delivered by hand, against receipt, or mailed, postage prepaid,
certified or registered mail, return receipt requested, and if addressed to:
7
Seller at: Vision Multimedia Solutions, Inc.
0000 Xxxxxxx Xxxxx Xxxx.
Xxxxxxxxxx, Xxxxxxx 00000
and if to Purchaser: Hostronix, Inc.
0000 X. 0xx Xxxxxx, Xxxxx X
Xxxxx, Xxxxxxx 00000
with a copy to: Xxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Notice of change of address shall be effective only when done in
accordance with this Section. All notices complying with this Section shall be
deemed to have been received on the date of delivery or on the fourth business
day after mailing.
7.7 Assignment, Successors and Assigns. Except as otherwise provided
herein, each party agrees that it will not assign, sell, transfer, delegate, or
otherwise dispose of, whether voluntarily or involuntarily, or by operation of
law, any right or obligation under this Agreement. Purchaser may, without the
consent of Seller, assign this Agreement to a limited partnership or corporation
formed for the purpose of carrying out the acquisition provided for in this
agreement. Any purported assignment, transfer, or delegation in violation of
this Section shall be null and void. Subject to the foregoing limits on
assignment and delegation, this Agreement shall be binding upon and shall inure
to the benefit of the parties and their respective successors and assigns.
Except for those enumerated above, this Agreement does not create, and shall not
be construed as creating, any rights or claims enforceable by any person or
entity not a party to this Agreement.
7.8 Governing Law. The validity, interpretation, enforceability, and
performance of this Agreement shall be governed by and construed in accordance
with the law of the State of Florida.
7.9 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed as original, but all of which together shall constitute
one and the same instrument.
7.10 Headings. The headings of the Sections and Articles of this
Agreement and Table of Contents are for reference purposes only and shall not
constitute a part hereof or affect the meaning or interpretation of this
Agreement.
7.11 Entire Agreement. The parties intend that the terms of this
Agreement, including the Schedules and other documents referred to herein, shall
be the final expression of their agreement with respect to the subject matter
8
hereof and may not be contradicted by evidence of any prior or contemporaneous
agreement. The parties further intend that this Agreement shall constitute the
complete and exclusive statement of its terms and that no extrinsic evidence
whatsoever may be introduced in any judicial, administrative, or other legal
proceeding involving this Agreement.
7.12 Schedules. The Schedules constitute part of this Agreement; each
reference to this Agreement shall include a reference to the Schedules; and each
reference to a Section of this Agreement shall be a reference to the
corresponding Schedule.
7.13 Severability. If any provision of this Agreement, or the
application thereof to any person or entity, place, or circumstance, shall be
held by a court of competent jurisdiction to be invalid, unenforceable, or void,
the remainder of this Agreement and such provisions as applied to other persons
or entities, places, and circumstances shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives the date first above written.
HOSTRONIX, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
VISION MULTIMEDIA SOLUTIONS, INC.
By: /s/ Xxxxxx Rule, Jr.
-----------------------------
Name: Xxxxxx Rule, Jr.
Title: President
9
Schedule A
Domain Names
.COM
xxxxxxxxx.xxx
xxxxxxxxxx.xxx
xxxxxxxxxx.xxx
xxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxx.xxx
xxxxxxxxxx.xxx
.NET
xxxxxxxxx.xxx
xxxxxxxxxx.xxx
xxxxxxxxxx.xxx
.ORG
xxxxxxxxx.xxx
xxxxxxxxxx.xxx
Completed Websites:
xxxxxxxxx.xxx
The main HOSTRONIX Website
xxxxxxxxxxxxxxxxxxx.xxx
The affiliate recruitment site
xxxxxxxxx.xxx/xxxxx
The Member Login area of XXXXXXXXX.XXX
Programming Source Code:
HOSTRONIX Pro
Desktop Application for Member Account Management
Network Monitor
Used on web servers to communicate Network Status to Master
database
Account Creator
Automates the process of creating new hosting accounts on the
web servers
HBilling
Automates the Billing Process for hosting customers, suspends
service for non-paying customers, restores service for
past-due customers that have paid, sends administrative
e-mails, billing notification to customers, transaction
declined notification to customers and billing personnel.
10
