AGREEMENT
This Agreement is entered into as of September __, 1997, by and between
InfoPak Inc. a Delaware corporation ( "InfoPak"), DataNet Enterprises, LLC a
Texas limited liability corporation ("DataNet") and Xxxxx X. Xxxxx and Xxxxx X.
Xxxxx (collectively the "Xxxxx").
W I T N E S S
WHEREAS, a portion of InfoPak'S business is supplying third party
distributors with a data delivery system which interfaces with real estate
multiple listing services ("MLS") on line systems which provides participating
end users access to all or a portion of the MLS database by means of a portable,
hand-held reader (the "InfoReader"). A personal computer located in the end
user'S office is equipped with a peripheral (the "InfoLoader") for loading the
MLS database and software to a PCMCIA card (the InfoCard"). The InfoReader
allows the end user to search the MLS database which has been transferred to the
InfoCard. The foregoing is referred to herein as the "MLS Business".
WHEREAS, DataNet desires to acquire the MLS Business and to license the
proprietary technology and trademarks used by InfoPak in the MLS Business.
WHEREAS, InfoPak is willing to sell the MLS Business, and license the
proprietary technology and trademarks used in the MLS Business to DataNet on the
terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements, representations, warranties and covenants set forth herein, the
parties agree as follows.
ARTICLE I
SALE AND PURCHASE, TRANSFER AND LICENSE
SECTION 1.1 TRANSFER OF ASSETS. Subject to the terms and conditions hereof,
InfoPak shall sell, assign, grant, transfer, convey and deliver to DataNet, and
DataNet shall purchase and accept from InfoPak as of the Closing Date, the
following assets relating to the MLS Business, wherever situated, as the same
shall exist on the Closing Date (collectively, the "ASSETS").
(a) Software Products. The software products owned, licensed, and under
development by InfoPak and listed in Schedule 1.1(a), including interfaces for
third party databases, supplements, modifications, updates, custom modules,
corrections and associated documentation (collectively, the "PRODUCTS"). The
Products shall not include any programming language code necessary to support
and modify any and all InfoPak Software;
(b) Tools. The software design and development tools and scripts, and
modifications and additions to such tools and scripts, listed in Schedule
1.1(b), which were or are used in the development, operation or maintenance of
the Products (collectively, the "TOOLS");
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(c) Transferred Agreements. All rights of InfoPak under the agreements
entered into between InfoPak and third parties named therein in the operation of
the MLS Business and listed in Schedule 1.1(c) (collectively, the "TRANSFERRED
AGREEMENTS"); and
(d) Books, Records and Other Materials. All books and records used in
connection with the Assets, including without limitation any and all (I)
customer and marketing materials relating to the Products or the Tools, such as
product documentation, sales and marketing collateral, product data sheets,
customer training materials, sales training materials, and sales presentation
materials; (ii) customer support materials relating to the Products or Tools,
such as support training materials; (iii) data contained in Seller'S customer
support organization computer system relating to the Products or Tools; (iv) all
customer lists relating to the Products and Tools;
SECTION 1.2 ASSUMPTION OF LIABILITIES AND OBLIGATIONS. DataNet shall assume
and be obligated to discharge those liabilities and obligations arising out of
or resulting from the operation of the MLS Business conducted with the Assets
and ownership of the Assets that are set forth below (the "Assumed
Liabilities").
(a) Assumption of InfoPak'S obligation payable to First Portland
Corporation in the amount of Fifty Nine Thousand Four Hundred and Twenty Seven
($59,427) Dollars;
(b) Post Closing Contractual Obligations. Any and all obligations relating
to the period on or after the Closing Date under the Transferred Agreements; and
(c) Other Post-Closing Liabilities. Any and all Liabilities arising out of
DataNet'S operation and ownership of the Assets on or after the Closing Date.
SECTION 1.3 PURCHASE PRICE. In consideration of the acquisition of the
Assets under Section 1.1 and assumption of the assumed Liabilities under Section
1.2 DataNet agrees to pay and deliver to InfoPak Four Hundred and Fifty Thousand
($450,000) Dollars, payable at closing by;
(i) Wire transfer of immediately available funds in the amount of Forty
Thousand ($40,000) Dollars to an account designated by InfoPak, which amount
shall be applied first to the past due amounts owed to InfoPak by DataNet and;
(ii) Delivery of a promissory note in the principle amount of Four Hundred
and Ten Thousand ($410,000) Dollars. The interest on the note shall be twelve
(12%) percent annually. The term of the promissory note will be for a period of
thirty-six (36) months with the first payment due thirty (30) days from the
Closing Date. The form of promissory note is attached hereto as Exhibit A (the
"Promissory Note"). Data Net and the Xxxxx agree to be jointly and severally
obligated for the payment of the Purchase Price.
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SECTION 1.4 LICENSE OF PROPRIETARY TECHNOLOGY AND TRADEMARKS.
(a) Grant of License. In connection with the purchase of the MLS Business,
InfoPak hereby grants a license (the "License") to DataNet for the use of its
proprietary technology in the MLS Business. The proprietary technology is listed
on Schedule 1.4(a) attached hereto (the "Technology"). In connection with the
license for the Technology InfoPak also grants a license to DataNet to use the
trademarks listed on Schedule 1.4(b) (the "Trademarks") for use only in the real
estate market dealing with Multiple Listing Service databases.
(b) Term of License. Subject to the terms and conditions herein, the term
of the License shall be perpetual, provided the Purchase Price has been paid in
full and there is no material breach of this Agreement.
(c) Exclusive Use of Technology and Trademarks . During the term of the
License DataNet shall have the exclusive use of the Technology and Trademarks
only as they relate to the conduct of DataNet'S real estate data delivery system
business provided, that there has been no breech of this Agreement including but
not limited to a default in the amount due under the Promissory Note.
(d) Restriction of use of Technology. The use of the Technology by DataNet
and all ideas and all products derived from it is specifically limited to the
real estate market in applications dealings with Multiple Listing Services
("MLS") databases.
(e) Confidential Information. The Technology contains confidential
information. DataNet and The Xxxxx agree jointly and severely that they will not
disclose such confidential information to any third party or use it for some
other purpose other than the MLS Business as contemplated by this Agreement and
further agree to maintain the confidential information in a manner that a
prudent person would use in the care of such confidential information.
SECTION 1.5 LEGAL TITLE OF ASSETS. All ownership interest and legal title
to the Assets including but not limited to the Products, Tools and Transferred
Agreements shall be retained by InfoPak until the Purchase Price has been paid
in full. At such time as the Purchase Price has been paid in full all ownership
interest and legal title to the Assets, including but not limited to Products,
Tools and Transferred Agreements, shall pass to DataNet.
SECTION 1.6 RELEASE OF RECEIVABLE. At the Closing Date, InfoPak shall
release Allied Broker Services, Inc. of Lincoln, Nebraska from any sums due or
past due to InfoPak.
SECTION 1.7 RETURN OF ASSETS. In the event there is a material breech of
this Agreement including but not limited to a default not subsequently cured
under the Promissory Note, the Assets will promptly be returned and the License
for Technology and the Trademarks will be canceled.
SECTION 1.8 INTERCREDITOR AGREEMENT. The parties to this Agreement hereby
acknowledge that certain Agreement dated September ___, 1997 by and between
InfoPak and First Portland Corporation a copy which is attached hereto as
Exhibit B, and agree to be bound to said agreement as it relates to this
Agreement. However, in the event of any inconsistencies or conflicts between
this Agreement and the agreement listed as Exhibit B hereto, this Agreement
shall govern as between InfoPak, DataNet and the Xxxxx.
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SECTION 1.9 CLOSING. Subject to the terms and conditions of this Agreement,
the transfer of the Assets and licensing of the Technology and Trademarks
contemplated hereby (the "Closing") shall take place on such date as soon as
practicable as the parties may agree (the "Closing Date").
SECTION 1.10 ACTIONS AT THE CLOSING . At the Closing, InfoPak shall deliver
the Assets and Technology and the Trademarks to DataNet, DataNet shall deliver
the Purchase Price in accordance with the provisions of this Agreement, and
InfoPak and DataNet shall take such actions and execute and deliver such
agreements and other instruments and documents as necessary or appropriate to
effect the transactions contemplated by this Agreement in accordance with its
terms.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF INFOPAK
InfoPak represents and warrants to DataNet and the Xxxxx as follows:
SECTION 2.1 Organization. InfoPak is a corporation duly formed and validly
existing under the laws of its jurisdiction of organization and has full
corporate power and authority and legal right to own and operate the Assets and
to carry on the MLS Business as presently conducted, to execute and deliver this
Agreement and all of the other agreements and instruments to be executed and
delivered by InfoPak pursuant hereto, and to consummate the transactions
contemplated hereby and thereby.
SECTION 2.2 Authority. The execution and delivery of this Agreement (and
all other agreements and instruments contemplated hereunder) by InfoPak, the
performance by InfoPak of its obligations hereunder and thereunder, and the
consummation by InfoPak of the transactions contemplated hereby and thereby have
been duly authorized by all necessary action by the Board of Directors of
InfoPak, and no other act or proceeding on the part of or on behalf of InfoPak
or any of their shareholders is necessary to approve the execution and delivery
of this Agreement and such other agreements and instruments, the performance by
InfoPak of its obligations hereunder and thereunder and the consummation of the
transactions contemplated hereby and thereby. The signatory officer(S) of
InfoPak have the power and authority to execute and deliver this Agreement and
all of the other agreements and instruments to be executed and delivered by
InfoPak pursuant hereto, to consummate the transactions hereby and thereby
contemplated and to take all other actions required to be taken by InfoPak
pursuant to the provisions hereof and thereof.
SECTION 2.3 Execution and Binding Effect. This Agreement has been duly and
validly executed and delivered by InfoPak and constitutes, and the other
agreements and instruments to be executed and delivered by InfoPak pursuant
hereto, upon their execution and delivery by InfoPak, will constitute (assuming,
in each case, the due and valid authorization, execution and delivery thereof by
DataNet), legal, valid and binding agreements of InfoPak, enforceable against
InfoPak in accordance with their respective terms, except as enforceability may
be limited by bankruptcy, insolvency, moratorium, or other laws affecting the
enforcement of creditors' rights generally or provisions limiting competition,
and by equitable principles.
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SECTION 2.4 No Violation. Neither the execution, delivery and performance
of this Agreement and all of the other agreements and instruments to be executed
and delivered pursuant hereto, nor the consummation of the transactions
contemplated hereby or thereby, will, with or without the passage of time or the
delivery of notice or both, (a) conflict with, violate or result in any breach
of the terms, conditions or provisions of the articles or bylaws of InfoPak (b)
conflict with or result in a violation or breach of, or constitute a default or
require consent of any person (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any Transferred Agreement, any notice, bond, mortgage, indenture, license,
franchise, permit, agreement, lease or other instrument or obligation to which
InfoPak is a party or by which InfoPak or any of the properties or assets of
InfoPak may be bound, where such conflict, violation, breach, default or consent
would have a material adverse effect on the business conducted with the Assets
or the Assets or (c) violate any statute, ordinance or law or any rule,
regulation, order, writ, injunction or decree of any governmental entity
applicable to InfoPak or by which any properties or assets of InfoPak may be
bound, where such violation would have a material adverse effect on the MLS
business conducted with the Assets.
SECTION 2.5 Assets Generally. The Assets and the Technology and Trademarks
include all properties currently used by InfoPak in operating the MLS Business
conducted with the Assets and Technology and Trademarks and necessary for
DataNet to operate the MLS Business conducted with the Assets and Technology and
Trademarks after the Closing Date in a manner substantially equivalent to the
manner in which InfoPak has operated the MLS Business conducted with the Assets
prior to and through the Closing Date.
SECTION 2.6 Compliance with Law. The operation of the business conducted
with the Assets has been conducted in all material respects in accordance with
all applicable laws, regulations and other requirements of governmental entities
having jurisdiction over the same.
SECTION 2.7 Litigation; Other Claims. There are no claims, actions, suits,
inquires, proceedings, or investigations against InfoPak relating to the MLS
Business conducted with the Assets, which are currently pending or, to InfoPak'S
knowledge, threatened, at law or in equity or before or by any governmental
entity.
SECTION 2.8 Product Liability. There are no claims, actions, suits,
inquires, proceedings or investigations pending, or threatened by InfoPak, or,
to InfoPak'S knowledge, threatened against InfoPak relating to any of the Assets
containing allegations that the Assets are defective or were improperly designed
or manufactured or improperly labeled or otherwise improperly described for use.
SECTION 2.9 Defaults. InfoPak is not in default under or with respect to
any judgment, order, writ, injunction or decree of any court or any governmental
entity which could reasonably be expected to materially adversely affect the
business conducted with the Assets. There does not exist any default by InfoPak
or, to the knowledge of InfoPak, by any other person, or event that, with notice
or lapse of time, or both, would constitute a default under any agreement
entered into by InfoPak as part of the operations of the business conducted with
the Assets which could reasonably be expected to materially and adversely affect
the business conducted with the Assets or the Assets, and no notices of breach
thereof have been received by InfoPak.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF DATANET
DataNet and the Xxxxx jointly and severely represents and warrants to InfoPak
as follows:
SECTION 3.1 Organization. DataNet is a corporation duly formed and validly
existing under the laws of its jurisdiction of organization and has full
corporate power and authority and the legal right to execute and deliver this
Agreement and all of the other agreements and instruments to be executed and
delivered by DataNet pursuant hereto, and to consummate the transactions
contemplated hereby and thereby.
SECTION 3.2 Authority. The execution and delivery of this Agreement (and
all other agreements and instruments contemplated hereunder) by DataNet, the
performance by DataNet of its obligations hereunder and thereunder, and the
consummation by DataNet of the transactions contemplated hereby and thereby have
been duly authorized by all necessary action, and no other act or proceeding on
the part of DataNet is necessary to approve the execution and delivery of this
Agreement. The signatory officer of DataNet has the power and authority to
execute and deliver this Agreement and all of the other agreements and
instruments to be executed and delivered by DataNet pursuant hereto, to
consummate the transactions hereby and thereby contemplated and to take all
other actions required to be taken by DataNet pursuant to the provisions hereof
and thereof.
SECTION 3.3 Execution and Binding Effect. This Agreement has been duly and
validly executed and delivered by DataNet and constitutes, and the other
agreements and instruments to be executed and delivered by DataNet pursuant
hereto, upon their execution and delivery by DataNet, will constitute (assuming,
in each case, the due and valid authorization, execution and delivery thereof by
InfoPak), legal, valid and binding agreements of DataNet, enforceable against
DataNet in accordance with their respective terms, except as enforceability may
be limited by bankruptcy, insolvency, moratorium, or other laws affecting the
enforcement of creditors' rights generally or provisions limiting competition,
and by equitable principles.
SECTION 3.4 No Violation. Neither the execution, delivery and performance
of this Agreement and all of the other agreements and instruments to be executed
and delivered pursuant hereto, nor the consummation of the transactions
contemplated hereby or thereby, will, with or without the passage of time or the
delivery of notice or both, (a) conflict with, violate or result in any breach
of the terms, conditions or provisions of the articles or bylaws of DataNet, (b)
conflict with or result in a violation or breach of, or constitute a default or
require consent of any Person (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any notice, bond, mortgage, indenture, license, franchise, permit, agreement,
lease or other instrument or obligation to which DataNet is a party or by which
DataNet or any of its properties or assets may be bound, where such conflict,
violation, breach, default or consent would have a material adverse effect on
the business or assets of DataNet, or (c) violate any statute, ordinance or law
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or any rule, regulation, order, writ, injunction or decree of any governmental
entity applicable to DataNet or by which any of its properties or assets may be
bound, where such violation would have a material adverse effect on the business
or assets of DataNet.
ARTICLE IV
COVENANTS
SECTION 4.1 Access to Information. At all times following the Closing, each
party shall provide the other party (at such other party's expense) with such
reasonable assistance, including the provision of available relevant records or
other information and reasonable access to and cooperation of any personnel
within their employ, as may be reasonable requested by either of them in
connection with the preparation of any financial statement or tax return, or any
audit or examination by any taxing authority, or any judicial or administrative
proceeding relating to liability for taxes.
SECTION 4.2 Consulting Agreements.
(a) Consulting Agreement. During the period following the Closing, InfoPak
agrees to provide consulting services to customers of DataNet as an independent
contractor to DataNet. Such consulting services shall be provided to DataNet
pursuant to the terms attached hereto as Schedule 4.2.
(b) Reimbursement. DataNet agrees to compensate InfoPak for the services
described in Section 4.2(a) above and pursuant to the terms attached hereto as
Schedule 4.2.
SECTION 4.3 No Modification to Transferred Agreements. Until Purchase Price
is paid in full DataNet agrees that it will not modify, alter or assign any of
the Transferred Agreements without the written consent of InfoPak, which will
not be unreasonably withheld.
SECTION 4.4 Non-compete. InfoPak or any of its affiliates, shall not
compete, directly or indirectly, with DataNet or its assigns in the MLS Business
throughout the United States of America or Canada for period of five years, from
the date of this Agreement.
ARTICLE V
CONDITIONS TO DATANET'S OBLIGATIONS
The obligations of DataNet are subject to the fulfillment, prior to or on
the Closing Date, of each of the following conditions, all or any of which may
be waived by DataNet in writing, except as otherwise provided by law:
SECTION 5.1 Representations and Warranties True; Performance; Certificate.
(a) The representations and warranties of InfoPak contained in this
Agreement shall be true and correct in all material respects as of the Closing
Date with the same effect as though such representations and warranties had been
made or given again at and as of the Closing Date;
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(b) InfoPak shall have performed and complied with all of its agreements,
covenants and conditions required by this Agreement to be performed or complied
with by it prior to or at the Closing Date;
SECTION 5.2 No Proceeding or Litigation.
(a) No preliminary or permanent injunction or other order shall have been
issued by any governmental entity, nor shall any statute, rule, regulation or
executive order be promulgated or enacted by any governmental entity which
prevents the consummation of the transactions contemplated by this Agreement.
(b) No suit, action, claim, proceeding or investigation before any
governmental entity shall have been commenced and be pending against InfoPak, of
its respective Affiliates, associates, officers or directors, seeking to prevent
the sale of the Assets or asserting that the sale of the Assets would be illegal
or create liability for damages.
SECTION 5.3 Documents. This Agreement, any other instruments of conveyance
and transfer and all other documents to be delivered by InfoPak to DataNet at
the Closing and all actions of InfoPak required by this Agreement or incidental
thereto, and all related matters, shall be in form and substance reasonably
satisfactory to DataNet and DataNet'S counsel.
ARTICLE VI
CONDITIONS TO InfoPak'S OBLIGATIONS
The obligations of InfoPak under this Agreement are subject to the
fulfillment, prior to or on the Closing Date, of each of the following
conditions, all or any of which may be waived in writing by InfoPak, except as
otherwise provided by law.
SECTION 6.1 Representations and Warranties True; Performance.
(a) The representations and warranties of DataNet contained in this
Agreement shall be true and correct in all material respects as of the Closing
Date with the same effect as though such representations and warranties had been
made or given again at and as of the Closing Date;
(b) DataNet shall have performed and complied with all of its agreements,
covenants and conditions required by this Agreement to be performed or complied
with by it prior to or at the Closing Date;
SECTION 6.2 No Proceeding or Litigation.
(a) No preliminary or permanent injunction or other order shall have been
issued by any governmental entity, nor shall any statute, rule, regulation or
executive order be promulgated or enacted by any governmental entity which
prevents the consummation of the transactions contemplated by this Agreement.
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(b) No suit, action, claim, proceeding or investigation before any
governmental entity shall have been commenced and be pending against DataNet, or
any of its Affiliates, associates, officers or directors, seeking to prevent the
sale of the Assets or asserting that the sale of the Assets would be illegal or
create liability for damages.
SECTION 6.3 Documents. This Agreement, any other instruments of conveyance
and transfer and all other documents to be delivered by DataNet to InfoPak at
the Closing and all actions of DataNet required by this Agreement or incidental
thereto, and all related matters, shall be in form and substance reasonably
satisfactory to InfoPak and InfoPak'S counsel.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 Indemnification by InfoPak. InfoPak shall indemnify and hold
harmless DataNet and its affiliates and each of their officers, directors,
employees, agents, successors and assigns ("DataNet INDEMNITIES") for any and
all liabilities, losses, damages, claims, costs and expenses, interest, awards,
judgments and penalties (including, without limitation, legal costs and expenses
and interest on the amount of any loss from the date suffered or incurred) (a
"LOSS") arising out of, resulting from or caused by:
(a) any inaccuracy or misrepresentation in or breach of any of the
representations or warranties made by, or covenants or agreements of InfoPak
contained in this Agreement;
(b) except for liabilities assumed under Section 1.2, all liabilities or
obligations, including, without limitation, those relating to taxes, (whether
known or unknown, accrued or not accrued, fixed or contingent) of InfoPak
arising out of or resulting from the operation of the MLS Business prior to the
Closing.
SECTION 7.2 Indemnification by Buyer. DataNet and the Xxxxx jointly and
severely shall indemnify and hold harmless InfoPak, its affiliates and each of
its officers, directors, employees, agents, successors and assigns ("InfoPak
INDEMNITIES") for any and all Losses arising out of or resulting from:
(a) any inaccuracy or misrepresentation in or breach of any of the
representations or warranties made by, or covenants or agreements of DataNet and
the Xxxxx contained in this Agreement;
(b) a liability or obligation, including, without limitation, those
relating to taxes, (whether known or unknown, accrued or not accrued, fixed and
determined or contingent) of DataNet, or any direct or indirect subsidiary or
transferee of DataNet to which all or any part of the MLS Business conducted
with the Assets is transferred, arising out of or resulting from the operation
by DataNet of the MLS Business conducted with the Assets on and after the
Closing Date, other than a liability or obligation for which any DataNet
Indemnitee is entitled to indemnification from InfoPak pursuant to the
provisions of Section 7.2(a);
(c) any claim arising out of the failure of DataNet, or any direct or
indirect subsidiary of DataNet or transferee, to perform its obligations assumed
under the Transferred Agreements.
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SECTION 7.3 Indemnification Procedure.
(a) Whenever any Loss shall be asserted against or incurred by a DataNet
Indemnitee or InfoPak Indemnitee (the "INDEMNIFIED PARTY"), the Indemnified
Party shall give written notice thereof (a "CLAIM") to InfoPak or DataNet,
respectively (the "INDEMNIFYING PARTY"). The Indemnified Party shall furnish to
the Indemnifying Party in reasonable detail such information as the Indemnified
Party may have with respect to the Claim (including in any case copies of any
summons, complaint or other pleading which may have been served on it and any
written claim, demand, invoice, billing or other document evidencing or
asserting the same). The failure to give such notice shall not relieve the
Indemnifying Party of its indemnification obligations under this Agreement.
(b) Any controversy involving only DataNet and InfoPak regarding whether a
Claim is properly chargeable, under the terms of this Article VII, where the
amount of the claim is liquidated, involves only a claim for money damages, and
does not relate to the ownership of any intellectual property rights, shall be
settled by binding arbitration administered in Phoenix, Arizona by the American
Arbitration Association ("AAA") in accordance with its Commercial Arbitration
Rules and judgment upon the award rendered through arbitration may be entered in
any court having jurisdiction thereof. Such arbitration shall be held in
Phoenix, Arizona. The fees and expenses of the Arbitrator shall be borne equally
by DataNet and InfoPak. Each party shall be responsible for its own legal fees
and expenses for the proceeding.
(c) If the Claim is based on a claim of a person that is not a party to
this Agreement, the Indemnifying Party shall, at its expense, undertake the
defense of such Claim with attorneys of its own choosing reasonably satisfactory
to the Indemnified Party. In the event the Indemnifying Party, within a
reasonable time after receiving notice of a Claim from the Indemnified Party,
fails to defend the Claim, the Indemnified Party may, at the Indemnifying
Party's expense, undertake the defense of the Claim and may compromise or settle
the Claim, all for the account of the Indemnifying Party. After notice from the
Indemnifying Party to the Indemnified Party of its election to assume the
defense of such Claim, the Indemnifying Party shall not be liable to the
Indemnified Party under this Section 7.3 for any legal expenses subsequently
incurred by the Indemnified Party in connection with the defense thereof, except
for such expenses incurred in connection with cooperation with, or at the
request of, the Indemnifying Party; provided, however, that the Indemnified
Party shall have the right to employ counsel to represent it if, in the
Indemnified Party's reasonable judgment, based upon the advice of counsel, it is
advisable, in light of the separate interests of the Indemnified Party and the
Indemnifying Party, for the Indemnified Party to be represented by separate
counsel, and in that event the reasonable fees and expenses of such separate
counsel shall be paid by the Indemnifying Party.
(d) The Indemnifying Party shall not consent to entry of any judgment,
except with the consent of the Indemnified Party given in its sole discretion,
or enter into any settlement, except with the consent of the Indemnified Party,
which such consent shall not be unreasonably withheld or delayed. In the event
the Indemnified Party refuses to consent to the entry of a judgment or a
settlement for which Indemnifying Party is solely and entirely responsible and
has indicated its sole and entire responsibility in writing to the Indemnified
Party, following such refusal, the liability of the Indemnifying Party to the
Indemnified Party will be fixed at the amount of any money damages provided in
the proposed judgment or settlement.
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ARTICLE VIII
GENERAL TERMS AND CONDITIONS
SECTION 8.1 Notices. Every notice or other communication required or
contemplated by this Agreement by either party shall be delivered by (I)
personal delivery, (ii) postage prepaid, return receipt requested, registered or
certified mail (airmail if available), or the equivalent of registered or
certified mail under the laws of the country where mailed, (iii) internationally
recognized express courier, such as Federal Express, UPS or DHL, (iv) "tested"
telex (a telex for which the proper answer back has been received), or (v)
facsimile with a confirmation copy sent simultaneously in the manner
contemplated by clauses (I), (ii) or (iii) of this Section 8.1, in each case
addressed to the party for whom intended at the following address:
(1) If to InfoPak, Inc.: InfoPak, Inc.
Attn: Xxxxxx X. Xxxxxxx
0000 X. Xxxxx Xxxxxx Xxx., Xxxxx 0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: Xxxx X. Xxxxxx, Esq.
00 Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
(2) If to DataNet: DataNet Enterprises LLC
Attn: Xx. Xxxxx X. Xxxxx
000 Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: Xxx Xxxxxx, Esq.
000 Xxxxxx X
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
(3) If to Xxxxx: Xx. Xxxxx X. Xxxxx and/or Xx. Xxxxx X. Xxxxx
000 Xxxxx
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
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With a copy to: Xxx Xxxxxx, Esq.
000 Xxxxxx X
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
or at such other address as the intended recipient previously shall have
designated by written notice to the other party. Notice by registered or
certified mail shall be effective on the date it is officially recorded as
delivered to the intended recipient by return receipt or equivalent, and in the
absence of such record of delivery, the effective date shall be presumed to have
been the sixth (6th) business day after it was deposited in the mail. All
notices and other communications required or contemplated by this Agreement to
be delivered in person or sent by courier shall be deemed to have been delivered
to and received by the addressee and shall be effective on the date of personal
delivery; notices delivered by "tested" telex or by facsimile with simultaneous
confirmation copy by registered or certified or equivalent mail or courier shall
be deemed delivered to and received by the addressee and effective on the date
sent. Notice not given in writing shall be effective only if acknowledged in
writing by a duly authorized representative of the party to whom it was given.
SECTION 8.2 Injunctive Relief. DataNet and the Xxxxx jointly and severely
consent and agree that InfoPak may seek injunctive relief for the purpose of
restraining DataNet and/or the Xxxxx, as the case may be, from any violation of
this Agreement, in addition to recovery by InfoPak of losses, costs and
reasonable attorney's fees, and other relief to which InfoPak may be entitled as
a result of any violation of this Agreement.
SECTION 8.3 Force Majeure. No party hereto shall be liable for failure to
perform, in whole or in material part, its obligations under this Agreement if
such failure is caused by any event or condition not existing as of the date of
this Agreement (unless reasonably foreseeable by such party) and not reasonably
within the control of the affected party, including without limitation, by fire,
flood, typhoon, earthquake, explosion, strikes, labor troubles or other
industrial disturbances, unavoidable accidents, war (declared or undeclared),
acts of terrorism, sabotage, embargoes, blockage, acts of governmental entities,
riots, insurrections, or any other cause beyond the control of the parties;
provided, only, that the affected party promptly notifies the other party of the
occurrence of the event of force majeure and takes all reasonable steps
necessary to resume performance of its obligations so interfered with.
SECTION 8.4 No Agency. This Agreement shall not constitute an appointment
of any of the parties hereto as the legal representative or agent of any other
party hereto nor shall any party hereto have any right or authority to assume,
create or incur in any manner any obligation or other liability of any kind,
express or implied, against, or in the name or on behalf of, the other party
hereto.
SECTION 8.5 Severability. In the event any provision of this Agreement
shall be determined to be invalid or unenforceable under applicable law, all
other provisions of this Agreement shall continue in full force and effect
unless such invalidity or unenforceability causes substantial deviation from the
underlying intent of the parties expressed in this Agreement or unless the
invalid or unenforceable provisions comprise an integral part of, or are
inseparable from, the remainder of this Agreement. If this Agreement continues
in full force and effect as provided above, the parties shall replace the
invalid provision with a valid provision which corresponds as far as possible to
and purpose of the invalid provision.
12
SECTION 8.6 Assignment and Succession. Except as expressly permitted
herein, including but not limited to Exhibit B attached hereto, DataNet may not
assign or otherwise transfer any rights, interests or obligations under this
Agreement without the prior written consent of InfoPak, which consent may be
withheld in the sole and absolute discretion of InfoPak for any reason
whatsoever or for no reason and any attempted assignment in violation of this
provision shall be void and of no effect.
SECTION 8.7 Amendments and Waivers. No amendment, modification, termination
or waiver of any provision of this Agreement or consent to any departure by any
party therefrom, shall in any event be effective without the written concurrence
of the other party hereto. Any waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it is given. No notice
to or demand on any party in any case shall entitle any other party to any other
or further notice or demand in similar or other circumstances.
SECTION 8.8 Further Assurances. Each of the parties hereto agrees that,
from and after the Closing, upon the reasonable request of the other party
hereto and without further consideration, such party will execute and deliver to
such other party such documents and further assurances and will take such other
actions (without cost to such party) as such other party may reasonably request
in order to carry out the purpose and intention of this Agreement including but
not limited to the effective consummation of the transactions contemplated under
the provisions of this Agreement, the transfer of the Assets to DataNet, the
vesting in DataNet of title to the Assets in accordance with the provisions of
this Agreement, and the correction of errors and defects in any such documents.
SECTION 8.9 Absence of Third-Party Beneficiaries. No provisions of this
Agreement, express or implied, are intended or shall be construed to confer upon
or give to any Person other than the parties hereto, any rights, remedies or
other benefits under or by reason of this Agreement unless specifically provided
otherwise herein, and except as so provided, all provisions hereof shall be
solely between the parties to this Agreement.
SECTION 8.10 Governing Law. The validity, construction, performance and
enforceability of this Agreement shall be governed in all respects by the laws
of the State of Arizona, without reference to the choice-of-law principles
thereof.
SECTION 8.11 Interpretation. This Agreement, including any exhibits,
addenda, schedules and amendments, has been negotiated at arm's length and
between persons sophisticated and knowledgeable in the matters dealt with in
this Agreement. Each party has been represented by experienced and knowledgeable
legal counsel. Accordingly, any rule of law or legal decision that would require
interpretation of any ambiguities in this Agreement against the party that has
drafted it is not applicable and is waived. The provisions of this Agreement
shall be interpreted in a reasonable manner to effect the purposes of the
parties and this Agreement.
SECTION 8.12 Entire Agreement. The terms of this Agreement and the other
writings referred to herein and delivered by the parties hereto are intended by
the parties to be the final expression of their agreement with respect to the
subject matter hereof and may not be contradicted by evidence of any prior or
contemporaneous agreement. The parties further intend that this Agreement,
together with the exhibits and schedules hereto, shall constitute the complete
and exclusive statement of its terms. The parties acknowledge and agree that
this Agreement and exhibits and schedules hereto constitute the agreements
13
necessary to accomplish the transactions contemplated by this Agreement and are
parts of an integrated arrangement between the parties with respect to the
purchase and sale of the Assets by DataNet after the Closing, and that separate
agreements have been used for the sake of convenience.
SECTION 8.13 Counterparts. This Agreement may be executed simultaneously in
multiple counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument. Execution and
delivery of this Agreement by exchange of facsimile copies bearing the facsimile
signature of a party hereto shall constitute a valid and binding execution and
delivery of this Agreement by such party. Such facsimile copies shall constitute
enforceable original documents.
SECTION 8.14 Expenses. Each of the parties agrees to pay its own expenses
in connection with the transactions contemplated by this Agreement, including
without limitation legal, consulting, accounting and investment banking fees,
whether or not such transactions are consummated.
SECTION 8.15 Consents. Whenever this Agreement requires or permits consent
by or on behalf of any party hereto, such consent shall be given in writing.
SECTION 8.16 Headings. The article and section headings contained in this
Agreement are for reference purposes only and will not affect in any way the
meaning or interpretation of this Agreement.
14
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of InfoPak and DataNet and the Xxxxx as of the date
first above written.
INFOPAK, INC.
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
DATANET ENTERPRISES LLC
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
XXXXX X. XXXXX AND XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
15
EXHIBITS
--------
Exhibit A Promissory Note
Exhibit B Intercreditor Agreement
SCHEDULES
---------
Schedule 1.1(a) Products
Schedule 1.1(b) Tools
Schedule 1.1(c) Transferred Agreements
Schedule 1.4(a) InfoPak Proprietary Technology
Schedule 1.4(b) Trademarks
Schedule 4.2 Consulting Agreement
16
EXHIBIT A
DataNet ENTERPRISES, LLC
12% PROMISSORY NOTE
Date: September __, 1997 $410,000
FOR VALUE RECEIVED, the undersigned, DataNet Enterprises, LLC, a Texas
corporation (the "Maker"), whose principal address is 000 Xxxxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000, and Xxxxx X. Xxxxx and Xxxxx X. Xxxxx (collectively the
"guarantors"), jointly and severely promises to pay to the order of InfoPak,
Inc. the ("Payee"), without defalcation or set off, the principal sum of Four
Hundred and Ten Thousand Dollars, together with interest on the outstanding
principal balance hereof from time to time outstanding from the date hereof and
until this Note is paid in full, whether before or after maturity, at an annual
rate of twelve percent (12%) and, to the extent lawful, to pay interest at the
same rate on any overdue installment of interest. Payment of principal and
interest shall be due and payable on a monthly basis pursuant to Schedule A
attached hereto.
Payments of principal and interest shall be made in lawful money of the
United States of America by wire transfer of immediately available funds, cash,
or banker'S certified check to Payee'S address listed at the end of this Note or
such other place as the holder of this Note shall designate to Maker in writing.
Maker shall have the privilege of prepaying in whole or in part any and all
amounts due hereunder at any time and such prepayments may be made without
penalty or premium. No partial prepayment shall postpone or interrupt payments
of future installments of principal which shall continue to be due and payable
as agreed herein above. Notwithstanding anything to the contrary contained,
herein, Maker shall give Payee at least thirty (30) days written notice (the
"Notice") of the payment or prepayment of any amounts due hereunder.
The occurrence of any of the following events with respect to Maker (which
for the purposes herein shall include all subsidiaries of Maker) shall
constitute a default hereunder; (a) if any payment of principal or interest as
the aforesaid shall not be paid when due, and shall continue unpaid for a period
of ten (10) days thereafter; or (b) if Maker shall voluntarily suspend
17
transaction of its business or operations; or (c) if Maker shall make an
assignment for the benefit of creditors, or file a voluntarily petition under
the United States Bankruptcy Code, as amended, or any other Federal or State
law, or shall fail to have such a petition dismissed within thirty (30) days
after its filing; or (d) if an order for relief shall be entered following the
filing of an involuntary petition against Maker under the United States
Bankruptcy Code, as amended or be entered appointing a trustee, receiver or
custodian of all or part of Maker'S property.
Upon the occurrence of any event of default hereunder, the entire unpaid
amount of principal hereunder and all other sums due and owing to Payee by Maker
shall, at the option of Payee or any other holder hereof, become immediately due
and payable without notice or demand. In addition, upon the occurrence of any
event of default hereunder, Payee shall have all rights and remedies provided
under all applicable laws and shall be deemed to have exercised the same
immediately and without notice or further action, and Payee shall have the
right, immediately and without further action by it, to set off against this
Note all money owed by Payee in any capacity to Maker, whether or not due,
including an attorney's fee of ten (10%) percent for collection.
All rights, title and interest in this Note shall be fully assignable by
the Payee.
Presentment for payment or acceptance, demand and protest, and notice of
dishonor or payment or acceptance, notice of protest and notice of any renewal,
extension, modification or change of time, manner, place or terms of payment,
are hereby waived by Maker or any endorsers, sureties, and guarantors hereof.
Any notice to Maker shall be sufficiently served for all purposes if placed in
the mail addressed to, or left upon the premises, at the address of Maker.
Any failure or delay of Payee to exercise any right hereunder shall not be
construed as a waiver of the right to exercise the same or any other right at
any other time or times. The waiver by Payee of a breach or default of any
provisions of this Note shall not operate or be construed as a waiver of any
subsequent breach or default thereof.
18
This Note shall be construed according to, and shall be governed by, the
laws of the State of Arizona.
The provisions of this Note shall be deemed severable, so that if any
provision hereof is declared invalid under the laws of any state where it is in
effect, or of the United States, all other provisions of this Note shall
continue in full force and effect.
This Note shall be binding upon the successors and assigns of Maker, and
shall inure to the benefit of and be enforceable by the heirs, personal
representatives, successors and assigns of Payee or any other holder hereof.
This Note is intended to take effect as an instrument under seal.
IN WITNESS WHEREOF, the undersigned intending to be legally bound has duly
executed, sealed and delivered this Note the day and year first above written.
DataNet Enterprises, LLC
Witness: By:
-------------------------- ------------------------------------
Secretary (An Authorized Officer)
Address of Payee:
0000 X. Xxxxx Xxxxxx Xxxxxxx Xxx Xxxxxxxxxx
Xxxxxxx, XX 00000
/s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
19
SCHEDULE A
Month Payment
----- -------
1 $13,229.55
2 $13,229.55
3 $13,229.55
4 $13,229.55
5 $13,229.55
6 $13,229.55
7 $13,229.55
8 $13,229.55
9 $13,229.55
10 $13,229.55
11 $13,229.55
12 $13,229.55
13 $13,229.55
14 $13,229.55
15 $13,229.55
16 $13,229.55
17 $13,229.55
18 $13,229.55
19 $13,229.55
20 $13,229.55
21 $13,229.55
22 $13,229.55
23 $13,229.55
24 $13,229.55
25 $13,229.55
26 $13,229.55
27 $13,229.55
28 $13,229.55
29 $13,229.55
30 $13,229.55
31 $13,229.55
32 $13,229.55
33 $13,229.55
34 $13,229.55
35 $13,229.55
36 $13,229.55
20
EXHIBIT B
INTERCREDITOR AGREEMENT
21
Schedule 1.1a
PRODUCTS
InfoReader(TM) Real Estate Software*
InfoLoader(TM) Real Estate Software*
InfoServer(TM) Real Estate Software*
SlaveServer(TM) Real Estate Software*
* "Real Estate Software" shall mean user interfaces, interfaces for third party
Real Estate databases, supplements, modifications, updates, custom modules
(libraries), corrections and associated documentation developed by InfoPak, Inc.
for the Real Estate Data Delivery System. Notwithstanding any language to the
contrary contained herein, "Real Estate Software" shall not include any
programming language code necessary to support and modify any and all InfoPak
Software.
22
Schedule 1.1b
TOOLS
cserv.exe billing.exe jcm.exe dispbill.exe asciiout.exe cardid.exe xxxxxxx.xx
display.exe dl.exe encrypt.exe eracard.exe fromasc.exe readhead.exe split.exe
testcom.exe toascii.exe trunc.exe writbyte.exe
23
Schedule 1.1c
TRANSFERRED AGREEMENTS
AGT Directory Limited Distributorship Agreement
a.) Delta Financial Corp. First Amendment to Distributorship Agreement
b.) N.B. Enterprising for Excellence, Inc. First Amendment to
Distributorship Agreement
Xxxxxxx, Inc. Distributorship Agreement
Xxxxxx X. Xxxxx / DCM Consulting Distributorship Agreement
InfoMate, Inc. Distributorship Agreement
Southeast Arizona Multiple Listings Service, Inc. Sale and service Agreement
Prince Georges County Association of Realtors Distribution Agreement
a). U.S. Recognition, Inc. First Amendment to distributorship Agreement
PRC Realty Systems, Inc. Authorized Access Agreement
a). Interealty Corp. Amendment Number One
DataNet Enterprises, LLC
24
Schedule 1.4(a)
InfoPak Proprietary Technology
Database Manipulation:
1. C and C++ source and object code used for the compression of database
information. 2. C and C++ source and object code used for indexing database
information. 3. Assembler source and object code used for decompressing
database information on the InfoReader. 4. Assembler source and object code
used for searching compressed databases on the InfoReader.
InfoCard Communications:
1. C and C++ source and object code used for erasing, reading, and writing
PCMCIA cards via an InfoLoader. 2. Assembler source and object code used
for erasing, reading, and writing PCMCIA cards via an InfoReader.
Data Acquisition:
1. C and C++ source and object code used for retrieving database
information from third party databases.
Intellectual Property:
1. Data Delivery System as described in Patent Pending #____________-
2. All data compression methodologies used individually and/or jointly.
3. Database indexing and searching methodologies.
4. OTHER NECESSARY PATENTS.
Restrictions:
Use of these licensed products and ideas and all products derived from them
is specifically limited to the Real Estate Market in applications dealing
with Multiple Listing Service (MLS) databases.
25
Schedule 1.4(b)
Trademarks
InfoCard(TM)
InfoReader(TM)
InfoLoader(TM)
InfoServer(TM)
SlaveServer(TM)
26
Schedule 4.2
Consulting Agreement
InfoPak shall provide to DataNet training, technical assistance and
software support at InfoPak'S office for a period of 120 days from the date
of the Closing at no cost to DataNet.
For an additional 90 days, InfoPak shall provide such service and
assistance to DataNet at a cost of $50.00 per hour.
Thereafter, technical assistance shall be provided at the programming rate
of $100.00 per hour.
27
