Exhibit 10.17
AMENDMENT TO THE FEBRUARY 26, 1999 AGREEMENT WHERE
APPLICABLE
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (this "AGREEMENT") is dated as of April 28,
1999, by and between JENCOM DIGITAL TECHNOLOGIES, LLC, a Delaware company
("JenCom"), and WORLDWIDE WEB NETWORX CORPORATION, a Delaware corporation
("WWWX").
RECITALS
A. JenCom holds certain assets as described herein (the "JENCOM
ASSETS") as per Schedule A.
B. JenCom desires to sell the JenCom Assets (the "PURCHASED ASSETS") to
WWWX, and WWWX desires to acquire the Purchased Assets, on the terms and subject
to the conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound hereby, the parties agree
as follows:
SECTION 1. PURCHASE AND SALE
1.1 AGREEMENT TO SELL. At the Closing (hereinafter defined), JenCom
shall sell, grant, convey, transfer, assign and deliver to WWWX, upon the terms
and subject to the conditions of this Agreement, free and clear of all liens,
encumbrances and charges of any kind, all of the JenCom Assets. As used herein,
the "JenCom Assets" shall include all of JenCom's right, title and interest in
and to the assets set forth in Schedule A hereto and any inventories, accounts
receivable, trade secrets, customer lists, goodwill, intellectual property,
contracts, books and records, telephone numbers, licenses, permits, software,
hardware and disks, data files (whether on disks or other media), logos,
trademarks, tradenames, marketing materials, technology and technical know-how
relating to the Purchased Assets only.
1.2 AGREEMENT TO PURCHASE. At the Closing, WWWX shall acquire from
JenCom, upon the terms and subject to the conditions of this Agreement and in
reliance upon the representations and warranties of JenCom in this Agreement and
in the Exhibits and Schedules hereto, the Purchased Assets and, as consideration
therefor, shall pay to JenCom the Purchase Price (hereinafter defined).
SECTION 2. PURCHASE PRICE; NO ASSUMPTION OF LIABILITIES
1
2.1 PURCHASE PRICE. In consideration for the Purchased Assets and the
Non-Competition Agreement set forth below (the "PURCHASE PRICE"), WWWX shall
simultaneously herewith cause to be issued and deliver to JenCom Two Million
(2,000,000) fully paid and non-assessable restricted shares of the common stock
of WWWX (the "WWWX Stock"), which shares are being issued in a private placement
subject to all applicable Federal and State securities laws, regulations and
restrictions, and shall bear a legend to that effect.
WWWX covenants and agrees that, as a condition to closing hereunder, it is
simultaneously herewith contributing the Purchased Assets to WWWX-JenCom, LLC, a
newly-formed Delaware limited liability company which will be owned 50% by
JenCom and 50% by WWWX (the "LLC"). It is understood that WWWX had loaned to
JenCom $900,000.00 as a ten-year interest free loan and that said loan has been
transferred to the books of the LLC. The $900,000 will accordingly be recorded
as an interest free members' loan which will be further used by the Manager of
the LLC in connection with the operations and development of the LLC. The loan
is to be repaid at the earliest of the following: (1) ten years from March 15,
1999, or (2) an investment into the LLC of a minimum of $10,000,000, or (3) the
sale of any asset exceeding $5,000,000.
2.2 PERFORMANCE BONUS. As additional consideration, WWWX shall issue
Three Million (3,000,000) additional restricted shares of WWWX common stock
("WWWX PERFORMANCE STOCK") to JenCom immediately upon the earliest to occur of
(i) a bona fide, independent, mutually agreeable qualified third party valuation
of $30,000,000 for the JenCom Assets, or (ii) the JenCom Assets produce an
aggregate of $2,000,000 profit before taxes by December 31, 2000 , or (iii) a
US Patent issued by June 1, 2000 for the ICUC product. If none of the
performance events occur, no WWWX Performance Stock will be issued.
2.3 NO ASSUMPTION OF LIABILITIES. WWWX is not assuming or agreeing to
pay or discharge any of the liabilities and obligations of JenCom, whether or
not associated with or arising out of the JenCom Assets to the date hereof, and
nothing in this Agreement or otherwise shall be construed to the contrary. All
such liabilities and obligations, whether known or unknown, direct or
contingent, in litigation or threatened or not yet asserted with respect to any
aspect of the JenCom Assets to the date hereof are and shall remain the
responsibility of JenCom. Without limiting the generality of the foregoing,
JenCom shall remain specifically responsible for (a) any liabilities with
respect to any Taxes (as herein defined), (b) any obligation for any employee
grievance pending at the Closing Date or accruing prior to the Closing Date, (c)
any obligation with respect to any litigation accruing or arising prior to the
Closing Date, and (d) any obligations for trade accounts payable owed on the
Closing Date. Further, in no event shall WWWX assume or incur any liability or
obligation with respect to any Taxes payable by JenCom incident to or arising as
a consequence of the consummation by JenCom of this Agreement or any cost or
expense incurred by JenCom incident to or arising as a consequence of such
consummation of the negotiations in connection with this Agreement.
2
SECTION 3. CLOSING; TRANSFER PROCEDURES
3.1 CLOSING. The closing of the sale and purchase of the Purchased
Assets (the "CLOSING") shall be held at 10 a.m., local time, on April 28, 1999
(the "CLOSING DATE") at the offices of WWWX, or on such other date and at such
other time or place as the parties may agree in writing.
3.2 TRANSFER OF THE PURCHASED ASSETS. At the Closing, JenCom shall
deliver to WWWX such bills of sale, endorsements, stock certificates,
assignments and instruments of conveyance and transfer, in form and substance
reasonably satisfactory to WWWX, as shall be reasonably required to vest in WWWX
all of JenCom's right, title and interest in and to the Purchased Assets free
and clear of all liens and encumbrances as provided in Section 3.4. The form of
Xxxx of Sale is attached hereto as Schedule 3.2.
3.3 PURCHASE PRICE. At the Closing, WWWX shall deliver to JenCom the
WWWX Stock, in accordance with Section 2 hereof.
3.4 RELEASE OF LIENS. JenCom represents and warrants that there are no
liens on the Purchased Assets and that, accordingly, no release of lien is
necessary.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF JENCOM
JenCom hereby represents and warrants to WWWX, intending for WWWX to
rely hereon, as follows:
4.1 ORGANIZATION AND GOOD STANDING. JenCom is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware.
4.2 BUSINESS PLAN. Within thirty (30) days of the Closing, JenCom will
deliver a business plan ("Business Plan") for the Business. The Business Plan
will represent, to the knowledge of JenCom, the present condition of the
Business, and present, to JenCom's knowledge, the future prospects of the
Business for the periods indicated therein. There has been no material adverse
change in the condition or future prospects of the Business, and no fact is
known to JenCom which materially adversely affects or in the future may
materially adversely affect the financial condition or future prospects of the
Business.
4.3 TITLE TO JENCOM ASSETS. JenCom owns outright, and has good and
marketable title to, all of the JenCom Assets free and clear of all liens,
pledges, mortgages, security interests, conditional sales contracts or other
encumbrances or conflicting claims of any nature.
4.4 TAX MATTERS. JenCom has filed or caused to be filed all Tax Returns
(as defined herein) through the taxable year ended December 31, 1998 if due or
required to be filed and have paid or caused to be paid all Taxes due through
the date hereof and any assessment of Taxes
3
received, except Taxes or assessments that are being contested in good faith and
have been adequately reserved against. JenCom has received no notice of, and to
the knowledge of JenCom, there is no pending or threatened proceeding or claim
by any governmental agency for assessment or collection of Taxes from JenCom.
All such Tax Returns have been prepared on the same basis as that of previous
years and in accordance with all applicable laws, regulations and requirements,
and accurately reflect the taxable income (or other measure of Tax) of JenCom.
JenCom has satisfied all Federal, state, local and foreign withholding tax
requirements including but not limited to income, social security and employment
tax. There are no liens for Taxes on any of the Purchased Assets. No transaction
contemplated by this Agreement is subject to withholding under Section 1445 of
the Internal Revenue Code of 1986, as amended (the "Code"). As used herein,
"Tax" or "Taxes" means any federal, state, local and foreign income, payroll,
withholding, excise, sales, use, personal property, use and occupancy, business
and occupation, mercantile, real estate, gross receipts, license, employment,
severance, stamp, premium, windfall profits, social security (or similar
unemployment), disability, transfer, registration, value added, alternative, or
add-on minimum, estimated, or capital stock and franchise and other tax of any
kind whatsoever, including any interest, penalty or addition thereto, whether
disputed or not, and "Tax Returns" means all returns, reports, forms,
declarations, claims for refunds or other information required to be filed or
supplied to any person including a taxing authority in connection with Taxes
(including without limitation information returns and declarations of estimated
Tax) (Any reference to "filed" or "file" with respect to Taxes shall also be
deemed to include "supplied" or "supply").
4.5 LITIGATION. Except as may be disclosed in any Schedule attached
hereto and incorporated herein:
(a) there is no dispute, claim, action, suit, proceeding, arbitration
or governmental investigation, either administrative or judicial, pending, or to
the knowledge of JenCom threatened, against JenCom, the Business or the
Purchased Assets; and
(b) JenCom is not in default with respect to any order, writ,
injunction or decree of any court or governmental department, commission, board,
bureau, agency or instrumentality, which involves the possibility of any
judgment or liability which may result in any material adverse change in the
financial condition of JenCom, the Business or the Purchased Assets.
4.6 ABSENCE OF UNDISCLOSED LIABILITIES. JenCom has no knowledge of
liabilities or obligations accrued, absolute, contingent or otherwise relating
to the Purchased Assets, except those incurred in the normal and ordinary course
of the Business, and none of which is material and adverse.
4.7 MATERIAL CONTRACTS. As used herein, the term "JenCom Material
Contract" means any agreement which involves payments to or from JenCom relating
to the JenCom Assets or the Business in excess of $10,000.00 per year. Each of
the JenCom Material Contracts constitutes a legal, valid and binding obligation
of the parties thereto, is in full force and effect and will continue in full
force and effect following the consummation of the transactions contemplated
herein and
4
hereby, in each case without breaching the terms thereof or resulting in the
forfeiture or impairment of any rights thereunder and without the consent,
approval or act of, or the making of any filing with, any other party. JenCom is
not in, or to its knowledge alleged to be in, breach or default under, nor is
there or is there alleged to be any basis for termination of, any JenCom
Material Contract and, to the best knowledge of JenCom, no other party to any
JenCom Material Contract has breached or defaulted thereunder, and no event has
occurred and no condition or state of facts exists which, with the passage of
time or the giving of notice or both, would constitute such a default or breach
by JenCom or, to the best of the knowledge of JenCom, by any such other party.
JenCom is not currently renegotiating any JenCom Material Contract and is not
paying liquidated damages in lieu of the performance thereunder.
4.8 INTANGIBLE ASSETS. The Business Plan described in Section 4.2 will
set forth a list of (a) all patents, copyrights, trade names, trademarks,
service marks and names (registered or unregistered), and applications and
registrations therefor, (b) all research, development and commercially practiced
processes, trade secrets, know-how, inventions, and engineering and other
technical information, (c) all computer programs, software and data bases owned
by or licensed relating to the JenCom Assets, (d) all information, drawings,
specifications, designs, plans, financial, marketing and business data and
plans, other proprietary, confidential or intellectual information or property
and all copies and embodiments thereof in whatever form or medium and (e) all
customer and membership lists relating to the JenCom Assets (collectively,
"INTANGIBLE ASSETS") as well as a list of all registrations thereof and pending
applications therefor. Each of the Intangible Assets listed on such schedule as
being owned by JenCom is owned by JenCom free and clear of any and all liens and
encumbrances and, to the knowledge of JenCom, no other person or entity has any
claim of ownership with respect thereto. JenCom has adequate licenses or other
valid rights to use all of the Intangible Assets which it does not own and which
are material to the conduct of the Business. To the knowledge of JenCom, its use
of the Intangible Assets does not conflict with, infringe upon, violate or
interfere with any intellectual property rights of any other person or entity,
nor is any other person or entity infringing upon, violating or interfering with
any intellectual property rights of JenCom. JenCom will assign all patent,
copyright, and trademark registrations related to the JenCom Assets to
WWWX-JenCom, LLC, at closing.
4.9 COMPLIANCE WITH LAWS. JenCom has complied with and is not in
default under, or in violation of, any law, ordinance, rule, regulation or order
(including, without limitation, any environmental, safety, employee benefit,
health or price or wage control law, ordinance, rule, regulation or order)
applicable to the Business which materially adversely affect or, so far as
JenCom can now foresee, may in the future materially adversely affect, the
Business or the Purchased Assets.
4.10 AUTHORIZATION. The execution and delivery of this Agreement, and
the sale, transfer and other actions contemplated hereby have been duly
authorized, including, with respect to JenCom, by all necessary action of its
Manager and neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated herein by JenCom constitutes a
violation or breach of applicable law or any contract or instrument to which
JenCom is a party or by which it is bound, or any order, writ, injunction,
decree or judgment applicable to it, or constitutes
5
a default (or would but for the giving of notice or lapse of time or both,
constitute a default) under any contract or instrument to which JenCom is a
party or by which it or they are bound, or conflicts with or violates any
provision of the Articles of Organization of JenCom. Without limiting the
generality of the foregoing provisions, the execution and delivery by JenCom of
this Agreement and the consummation of the transactions contemplated hereby will
not (i) result in a violation or default or give to any other person any rights,
including rights of termination, cancellation or acceleration under any
applicable law, rule or regulation, any agreement, instrument or policy to which
JenCom is a party or may be bound, (ii) result in any judgment, order,
injunction, decree or ruling of any court or governmental authority to which
JenCom is a party or subject or (iii) require any authorization, consent,
approval, exemption or other action by any court or administrative or
governmental body which has not been obtained or any notice to or filing with
any court or administrative or governmental body which has not been given or
done. This Agreement has been duly executed and delivered by JenCom and
constitutes the legal, valid and binding obligation of JenCom enforceable in
accordance with its terms.
4.11 CONSENTS. No consent, waiver, approval, order, permit or
authorization of, or declaration or filing with, or notification to, any person,
entity or governmental body is required on the part of JenCom in connection with
the execution and delivery by JenCom of this Agreement, or the compliance by
JenCom with any of the provisions hereof.
4.12 INVESTMENT REPRESENTATIONS.
(a) JenCom will not sell, transfer or otherwise dispose of any of the
shares of WWWX Stock being acquired by JenCom, in any manner, unless at the time
of such transfer: (i) a registration under the Securities Act of 1933, as
amended (the "SECURITIES ACT") and under all other applicable securities laws is
in effect with respect to the shares of the WWWX Stock to be sold, transferred
or disposed of, and JenCom complies with all of the requirements of the
Securities Act and such other applicable securities laws with respect to the
proposed transaction; or (ii) JenCom has obtained and has provided to WWWX
satisfactory evidence that the proposed sale, transfer or disposition does not
require registration under the Securities Act or such other applicable
securities laws;
(b) The shares of WWWX Stock being acquired by JenCom have not been
issued by WWWX pursuant to a registration under the Securities Act, and JenCom
must therefore hold such shares indefinitely unless a subsequent registration or
exemption therefrom is available and is obtained. No federal or state agency has
approved or disapproved the shares of WWWX Stock being acquired by JenCom for
investment or any other purpose. All of the shares of WWWX Stock being acquired
by JenCom have been issued and sold to JenCom in reliance upon a specific
exemption from the registration requirements of the Securities Act which
depends, in part, upon the accuracy of JenCom's representations, warranties and
agreements set forth in this Agreement.
4.13 DISCLOSURE. No representation or warranty by JenCom in this
Agreement or in any other Exhibit, Schedule, list, certificate or document
delivered pursuant to this Agreement, contains or will contain at Closing any
untrue statement of material fact or omits or will omit to state any
6
material fact necessary to make any statement herein and therein not misleading.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF WWWX
WWWX hereby represents and warrants to JenCom, intending for JenCom to
rely hereon, as follows:
5.1 ORGANIZATION AND GOOD STANDING. WWWX is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
5.2 AUTHORIZATION. The execution and delivery of this Agreement and
other actions contemplated hereby have been duly authorized by all necessary
action of the Boards of Director and shareholders of WWWX, and neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated herein by WWWX constitutes a violation or breach of
applicable law or any contract or instrument to which WWWX is a party or is
bound, or any order, writ, injunction, decree or judgment applicable to it, or
constitutes a default (or would but for the giving of notice or lapse of time or
both, constitute a default) under any contract or instrument to which WWWX is a
party or by which it is bound, or conflicts with or violates any provision of
the Articles of Incorporation or By-Laws of WWWX. Without limiting the
generality of the foregoing provisions, the execution and delivery by WWWX of
this Agreement and the consummation of the transactions contemplated hereby will
not (i) result in a violation or default or give to any other person any rights,
including rights of termination, cancellation or acceleration under any
applicable law, rule or regulation, any agreement, instrument or policy to which
WWWX is a party or may be bound, (ii) result in any judgment, order, injunction,
decree or ruling of any court or governmental authority to which it is a party
or subject or (iii) require any authorization, consent, approval, exemption or
other action by any court or administrative or governmental body which has not
been obtained or any notice to or filing with any court or administrative or
governmental body which has not been given or done. This Agreement has been duly
executed and delivered by WWWX and constitutes the legal, valid and binding
obligation of WWWX enforceable in accordance with its terms.
5.3 CONSENTS. No consent, waiver, approval, order, permit or
authorization of, or declaration or filing with, or notification to, any person,
entity or governmental body is required on the part of WWWX in connection with
the execution and delivery by WWWX of this Agreement, or the compliance by WWWX
with any of the provisions hereof.
5.4 DISCLOSURE. No representation or warranty by WWWX in this Agreement
or in any other Exhibit, Schedule, list, certificate or document delivered
pursuant to this Agreement, contains or will contain at Closing any untrue
statement of material fact or omits or will omit to state any material fact
necessary to make any statement herein and therein not misleading.
7
SECTION 6. FEES AND EXPENSES
6.1 EXPENSES OF THE TRANSACTION. Each party hereto shall pay its own
expenses incidental to the preparation of this Agreement and the consummation of
the transactions contemplated hereby.
6.2 SALES, TRANSFER AND DOCUMENTARY STAMPS. WWWX shall be responsible
for payment of all sales, transfer and documentary taxes or stamps, if any, due
as a result of the transfer of the Purchased Assets hereunder.
SECTION 7. INDEMNIFICATION
7.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, covenants and agreements made by any party in this
Agreement or in any certificate delivered pursuant hereto shall survive the
Closing for a period of one (1) year. Any claim that involves allegations of
fraud will be covered under the applicable legal statute of limitations or the
one year period as noted, whichever is longer.
7.2 INDEMNIFICATION BY JENCOM. JenCom shall defend, indemnify and hold
WWWX harmless from and against (a) any and all liabilities and obligations of,
or claims against, JenCom arising or accruing prior to the Closing and (b) all
actual or potential claims, demands, liabilities, damages, losses and
out-of-pocket expenses including reasonable attorneys' fees whether or not
reduced to judgment, order or award, caused by or arising out of (i) the breach
of any covenant or agreement of JenCom in this Agreement or in any certificate
delivered by it or them pursuant hereto, or (ii) the failure of any
representations or warranties made by JenCom in this Agreement or in any
certificate delivered by it or them pursuant hereto to have been true and
correct when made and on and as of the Closing Date.
7.3 INDEMNIFICATION BY WWWX. WWWX shall defend, indemnify and hold
JenCom harmless from and against all actual or potential claims, demands,
liabilities, damages, losses and out-of-pocket expenses including reasonable
attorneys' fees whether or not reduced to judgment, order or award, caused by or
arising out of (a) the breach of any covenant or agreement of WWWX in this
Agreement or in any certificate delivered by its pursuant hereto, or (b) the
failure of any representations or warranties made by WWWX in this Agreement or
in any certificate delivered by its pursuant hereto to have been true and
correct when made and on and as of the Closing Date.
7.4 NOTICE OF INDEMNIFICATION. In the event any legal proceeding shall
be threatened or instituted or any claim or demand shall be asserted by any
person or entity in respect of which payment may be sought by one party hereto
from another party under the provisions of this Section 7, the party seeking
indemnification (the "INDEMNITEE") shall promptly cause written notice of the
assertion of any such claim of which it has knowledge which is covered by this
indemnity to be forwarded to the other party (the "INDEMNITOR"); provided,
however, that failure of the Indemnitee
8
to give the Indemnitor notice as provided in this Section shall not relieve the
Indemnitor of its obligations hereunder except to the extent that the Indemnitor
shall have been prejudiced by such failure. Any notice of a claim by reason of
any of the representations, warranties or covenants contained in this Agreement
shall state in reasonable detail the representation, warranty or covenant with
respect to which the claim is made, the facts giving rise to an alleged basis
for the claim, and the amount of the liability asserted against the Indemnitor
by reason of the claim.
7.5 INDEMNIFICATION PROCEDURE FOR THIRD PARTY CLAIMS. Except as
otherwise provided herein, in the event of the initiation of any legal
proceeding against an Indemnitee by a third party, the Indemnitor shall be
entitled to assume the defense thereof, at the Indemnitor's sole expense. If the
Indemnitor assumes the defense of any legal proceeding, it will not settle the
legal proceeding without the prior written consent of the Indemnitee (which
shall not be unreasonably withheld or delayed). The Indemnitee shall cooperate
in all reasonable respects with the Indemnitor and its attorneys in the
investigation, trial and defense of any legal proceeding and any appeal arising
therefrom (including the filing in the Indemnitee's name of appropriate cross
claims and counterclaims). The Indemnitee may, at its own cost, participate in
any investigation, trial and defense of such legal proceeding controlled by the
Indemnitor and any appeal arising therefrom. If after receipt of a written
notice pursuant to Section 9.4 hereof, the Indemnitor does not undertake to
defend any such legal proceeding, the Indemnitee may, but shall have no
obligation to, contest or defend against any legal proceeding and the Indemnitor
shall be bound by the result obtained with respect thereto by the Indemnitee
(including, without limitation, the settlement thereof without the consent of
the Indemnitor). If there are one or more legal defenses available to the
Indemnitee that conflict with those available to the Indemnitor, the Indemnitee
shall have the right, at the expense of the Indemnitor, to assume the defense of
the legal proceeding; provided, however, that in any event the Indemnitee may
not settle such legal proceeding without the consent of the Indemnitor, which
consent shall not be unreasonably withheld or delayed. As used herein, a "legal
proceeding" includes any judicial, administrative or arbitral action, suit,
proceeding (public or private), claim or governmental proceeding.
7.6 PAYMENT OF INDEMNIFICATION AMOUNTS. Amounts payable by the
Indemnitor to the Indemnitee in respect of any claims hereunder shall be payable
by the Indemnitor as incurred by the Indemnitee.
7.7 RIGHT OF WWWX AND JENCOM SUCCESSORS TO ENFORCE. JenCom and WWWX
agree that the provisions of this Section 7 shall inure to the benefit of, and
may be enforced by, any successor to the interests of JenCom or WWWX (by
assignment, merger, operation of law or otherwise, and regardless of whether
such successor acquires such interests directly from WWWX or JenCom), holding
all or any part of the Purchased Assets ("SUCCESSORS"), to the same extent as if
the representations, warranties, covenants and agreements of JenCom contained in
this Agreement had been made directly to such WWWX or JenCom Successor. WWWX and
JenCom further agree that it shall execute and deliver to any WWWX or JenCom
Successor such further agreements, instruments or other documents as may be
reasonably required to affirm the obligations of JenCom and the rights of such
WWWX Successor hereunder.
9
SECTION 8. POST-CLOSING MATTERS; NON-COMPETITION AGREEMENT
8.1 FURTHER ASSURANCES. At the request of WWWX and JenCom or any WWWX
or JenCom Successor from time to time, JenCom shall without further cost to WWWX
or such WWWX Successor, at any time and from time to time, promptly do, execute,
acknowledge and deliver, or cause to be done, executed, acknowledged and
delivered, to WWWX, JenCom or such WWWX Successor or JenCom Successor, as the
case may be, all such further acts, transfers, assignments, deeds, powers and
assurances of title, and additional papers and instruments, and will do or cause
to be done all acts or things as often as may be proper or necessary or
advisable for better assuring, conveying, transferring and assigning the
Purchased Assets and effectively to carry out the intent hereof, and to vest in
the LLC (hereinafter defined) the entire right, title and interest in and to all
of the Purchased Assets.
8.2 RESPONSIBILITY FOR LITIGATION. JenCom shall be responsible for all
present or future litigation and claims for injury and related expenses arising
out of the conduct of the Business up to the time of Closing, including without
limitation, any litigation disclosed on Schedule 4.5 hereto.
8.3 TRADE SECRETS/NON-COMPETITION AGREEMENT WITH WWWX-JENCOM, LLC (THE
"LLC").
a. JenCom and WWWX shall not at any time after the Closing use for its
or their own benefit, or divulge to any other person, firm or corporation, any
confidential information or trade secrets relating in any way to the Business or
the JenCom Assets, and at the Closing, JenCom shall deliver to the LLC all lists
of customers, books, records, trade secrets, intellectual property and all other
property constituting confidential information belonging to JenCom or WWWX and
related to the Business. For the purposes hereof, the term "CONFIDENTIAL
INFORMATION" means any and all information related to the customers, buyers,
sellers and marketing relationships, and business and financial information of
the Business.
b. As a material inducement to WWWX to enter into this Agreement, in
consideration of the Purchase Price paid hereunder, and for other good and valid
consideration, the receipt and sufficiency of which is hereby acknowledged, as
well as in recognition of the fact that the value of the Purchased Assets would
be diminished substantially if JenCom were to engage in any business or
activities in direct competition with the Business, JenCom covenants and agrees
that, except as required in the performance of its duties set forth in this
Agreement or any other written agreement with WWWX or any WWWX Successor, it
will not for a period of two (2) years after the Closing Date engage directly or
indirectly, whether individually or in partnership or in conjunction with any
other person, firm, association, syndicate or corporation, as principal, agent,
shareholder, employee, consultant or in any other manner whatsoever, in any
business activity competitive with the Business or the LLC.
c. JenCom and its Members agree that any violation of any of the
covenants in this
10
Section would cause substantial and irreparable injury to WWWX or any WWWX
Successor, whereupon JenCom may be enjoined from any breach or threatened breach
thereof in addition to, but not in limitation of, any of the rights or remedies
to which WWWX or any such WWWX Successor is or may be entitled to at law or in
equity or under this Agreement.
d. JenCom and its Members agree that the limitations set forth above
are reasonable in time and geographic scope, and if any provision hereof is held
invalid or unenforceable, the remainder shall nevertheless remain in full force
and effect. In particular, JenCom agrees that if any court of competent
jurisdiction shall determine that the duration or geographical limit of the
foregoing non-competition covenant is invalid, unreasonable or unenforceable, it
is the intention of JenCom and WWWX that it shall not be terminated thereby but
shall be deemed to have been amended to the extent required to render it valid
and enforceable, such amendment to apply only with respect to the jurisdiction
of the court making such adjudication.
8.4 RIGHT OF WWWX SUCCESSORS TO ENFORCE. JenCom agrees that the
provisions of this Section 11 shall inure to the benefit of, and may be enforced
by, any WWWX Successor, to the same extent as if the representations,
warranties, covenants and agreements of JenCom had been made directly to such
WWWX Successor. JenCom further agrees that it shall execute and deliver to any
WWWX Successor such further agreements, instruments or other documents as may be
reasonably required to affirm the obligations of JenCom and the rights of such
WWWX Successor hereunder.
SECTION 9. MISCELLANEOUS
9.1 GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware. The parties
hereto agree that jurisdiction shall be proper in the courts of the State of
Delaware and consent to jurisdiction and venue therein.
9.2 ASSIGNMENT. This Agreement shall not be assignable by any party
without the prior written approval of the other party. Notwithstanding the
foregoing, WWWX may, without the consent of JenCom, assign its rights under
Sections 10 and 11 hereof to any WWWX Successor as provided therein, it being
the intent of the parties that any such WWWX Successor shall be a third party
beneficiary of such rights. To the extent assignable, this Agreement shall be
binding upon, and inure to the benefit of, WWWX, JenCom, and their respective
heirs, personal representatives, successors and assigns.
9.3 HEADINGS FOR REFERENCE ONLY. The section and paragraph headings in
this Agreement are for convenience of reference only and shall not be deemed to
modify or limit the provisions of this Agreement.
9.4 NOTICES. All notices and other communications under this Agreement
shall be in writing and shall be deemed given when delivered by
confirmed fax, personally, or by recognized overnight courier, or
four days after being mailed by registered mail, return receipt
requested, to a party at the following address (or to such other
address
11
as such party may have specified by notice given to the other party
pursuant to this provision):
If to WWWX: World Wide Web NetworX Corporation
0000 Xxxxxx Xxx, Xxxxx 000
Xx. Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Fax no. (000) 000-0000
If to JenCom: JenCom Digital Technologies, LLC
c/o ICES Enterprises, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Fax no. (000) 000-0000
9.5 ENTIRE AGREEMENT AND AMENDMENT. This document and the Exhibits and
Schedules hereto contain the entire agreement between the parties hereto with
respect to the transactions contemplated hereby and supersede all prior or
contemporaneous agreements, understandings, representations and warranties
between the parties and may not be amended except by written instrument executed
by the parties hereto.
9.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
ATTEST: WORLDWIDE WEB NETWORX CORPORATION
By: By://s// XXXXXX X. XXXX
------------------------ ------------------------------
Title: Title: President
ATTEST: JENCOM DIGITAL TECHNOLOGIES, LLC
By: By://s// XXXXX XXXXXXXXX
------------------------ ------------------------------
Title: Title: Manager
13
LIST OF EXHIBITS AND SCHEDULES
SCHEDULES
A. JenCom Assets, including intangible assets
Draft 4/20/99
SCHEDULE A
NETWORK APPLICATION - XXXXX
XXXXX is a user-friendly system that builds an extended educational facility,
enabling educators, students, and parents to continuously participate in a
variety of school activities both curricular and extracurricular in an
interactive multimedia environment. The XXXXX application is designed to give
each school the flexibility to build and update a complete interactive school
Website utilizing leading edge web technologies. Sections such as school news,
calendar, sports, clubs, student and faculty members (including photographs)
come together within one source - all free of charge to the school. Specialty
plug-ins include a multimedia yearbook, fund-raising programs, and a school
CD-ROM creator.
POWER BROKER
Effectively competing in the institutional broker market requires the
appropriate tools to manage trading communities and business processes. JenCom
Digital Technologies new software program, Power Broker, meets this need. Power
Broker provides fund managers with the tools necessary to establish
cross-department (research, sales and trading) business functions that lead to
effective order execution as well as accurate forecasting and fund performance
tracking.
In addition, the software precision provides bankers with client-level detail,
inclusive of prompting for portfolio performance and coupon maturity date. This
allows the bank to more effectively manage and service individual accounts.
Power Broker provides companies with fully customizable environments and runs
on, but is not limited to, the Oracle database, which has been chosen by
industry leaders to be the next-generation database system software for the
banking industry. Power Broker is a leading edge communications and trading
system that products immediate increases in efficiency and productivity.
ICUC
ICUC is a remote control, streaming video technology solution utilizing the
Internet to enable a user to have a monitored view of a predetermined site in
real time and from a remote location. Typical uses include security and distance
management and live event broadcast. ICUC implements standard video player
technology without additional video plug-ins and introduces end use control of a
digital camera.
TRUE SOUND
True Sound is an innovative media compression system designed to accommodate the
sensitivity of the human eye and ear and utilizes a new advanced mathematical
model for compression. Currently, audio compression and transference technology
does not have the functionality to compress sound waves over the Internet or in
other forms of multimedia without deleting a portion of the sound quality (i.e.
bass, treble, etc.). True Sound utilizes a new advanced mathematical model for
sound compression. Targeted at software developers, audio studios, live Internet
broadcasting as well as sound libraries, True Sound offers the highest level of
quality available to meet the market need.
XXXX OF SALE
JenCom Digital Technologies, LLC, a Delaware limited liability company, does
hereby forever sell, transfer, convey and assign to Worldwide Web NetworX
Corporation the assets set forth in Schedule "A attached hereto for the
consideration and in accordance with the terms set forth in the Acquisition
Agreement being executed and delivered simultaneously herewith.
JenCom Digital Technologies, LLC
By://s// XXXXX XXXXXXXXX
-----------------------------
Xxxxx Xxxxxxxxx, Manager
