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EXHIBIT 10.1
CONTRACT FOR SALE AND PURCHASE OF INTERNET TECHNOLOGY DIVISION
This contract for sale and purchase, hereinafter referred to as
"Contract" or "Agreement", is executed effective the 1st day of February, 1999,
by and between BARAKA INTRACOM, INC., hereinafter referred to as "Seller", and
NET COMMAND TECH, INC., hereinafter referred to as "Buyer".
WITNESSETH:
WHEREAS, Seller is engaged in the business of developing intellectual
property and producing computer and internet applications, including software,
hardware and other products, using such intellectual property, by and through
its "Internet Technology Division", and is the owner of Seller's Assets, more
particularly described in Exhibit "A" attached hereto and made a part hereof,
hereinafter referred to as the "Assets"; and
WHEREAS, Net Command Tech, Inc., is a wholly owned subsidiary of
Corsaire, Inc., which desires to purchase certain Assets from Seller; and,
WHEREAS, Buyer desires to purchase Seller's "Internet Technology
Division" and all Assets used in or related to such Division, and Seller
desires to sell said Division and such Assets to Buyer; and,
WHEREAS, Buyer and Seller have considered that the Internet Technology
Division of Seller has only recently been able to produce and offer for sale
products and intellectual property which are presently unproven to be
commercially viable, and that the value of such Internet Technology Division
depends on the future efforts to perfect, modify, enhance, improve and market
such unproven products and intellectual properties; and,
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises hereinafter contained, the Seller agrees to sell and the Buyer agrees
to buy the "Assets" upon the following terms and conditions.
1. PURCHASE PRICE AND METHOD OF PAYMENT. Buyer shall pay and Seller
shall accept as full consideration and as the purchase price for the Assets in
the manner of payment therefor set forth in Exhibit "B" attached hereto and
made a part hereof, and the Buyer and Seller hereby agree to all provisions of
Exhibit "B", particularly those regarding the Escrow of such purchase price.
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2. CLOSING. The closing of the transactions contemplated by this agreement,
hereinafter referred to as "The Closing", shall be held at 000 Xxxxxxxx Xxxx.,
Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 on or before February 18, 1999, at 1:00
p.m. or at such other place, date and time as the Buyer may designate (such
date to be referred to in this agreement as the "Closing Date").
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to
Buyer the correctness, truthfulness and accuracy of the matters shown on Exhibit
"C" attached hereto, all of which shall survive closing. In addition, Seller
represents and warrants to Buyer that the documents enumerated in Exhibit "D"
attached hereto and made a part hereof, are true, authentic and correct copies
of the original, or, if appropriate, the originals themselves, and no
alterations or modifications thereof have been made. Any other purported
representations or warranties in the text of this Agreement (if any there be)
shall be deemed to be opinions only based on the best information available at
Closing, Exhibits "C" and "D" being the only representations and warranties
given herein by Seller.
4. COVENANT NOT TO COMPETE. From the Closing Date, Seller, will not, directly
or indirectly, conduct any business or develop any intellectual property
relating to the "Internet Technology Division" or any of the Assets sold
hereunder, or employ any person or render services to, any other person,
partnership, association, or corporation engaged in the same or substantially
similar business covered by this Agreement in any area which can be reasonably
termed competitive to the Buyer; and during such term of five (5) years, the
Seller will not engage in such competitive business for its own account, or
become interested therein, directly or indirectly, as an individual, partner,
shareholder, director, consultant, independent contractor, officer, clerk,
principal, agent, employee, trustee, or in any relation or capacity whatsoever.
The Seller acknowledges that the territory shall be the World, and shall include
particularly the United States, the European, African and Asian continents,
because the nature of the intellectual property is that it can be used
world-wide.
5. TRANSACTIONS PRIOR TO CLOSING OR AT CLOSING. Seller hereby covenants the
following:
a. CONDUCT OF SELLER'S BUSINESS UNTIL CLOSING. Except as Buyer may
otherwise consent in writing prior to the Closing Date, Seller will not enter
into any transaction, take any action or fail to take any action which would
result in, or could reasonably be expected to result in or cause any of the
representations and warranties of Seller contained in this Agreement to be void,
invalid or false on the Closing Date.
b. EMPLOYEES. At Closing Buyer shall have the right to
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employ such employees of Seller as it may designate, on such terms and
conditions as they agree, and Seller covenants that it shall not reemploy or
hire or engage as consultants such designated employees for a period of at
least Five (5) years from the Closing Date, without the prior written consent
of Buyer.
c. SATISFACTIONS. Seller shall deliver to Buyer on the Closing Date a
satisfaction of any Encumbrance or Lien on the Assets as set forth on Exhibit G
attached hereto, satisfactory in form and substance to the Buyer indicating that
the then outstanding unpaid principal balance of such debt, claim, obligation
or promissory note secured thereby has been paid in full prior to or
simultaneously with the Closing.
d. ADVICE OF CHANGES. Between the date hereof and the Closing Date,
Seller will promptly advise Buyer in writing of any change in fact which, if
existing or known at the date hereof, would have been required to be set forth
herein or disclosed pursuant to this Agreement.
e. DOCUMENTS. Seller shall deliver to Buyer at closing such documents
which are, in Buyer's reasonable discretion, necessary to fully satisfy the
objectives of this Agreement in content and form reasonably intended to do so.
6. EXPENSES. Each of the parties hereto shall pay its own expenses in
connection with this Agreement and the transactions contemplated hereby,
including the fees and expenses of its counsel and its certified public
accountants.
7. GENERAL.
a. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between Baraka Intracom, Inc. as Seller and Net Command Tech, Inc., as
Purchaser, relating to the subject matter hereof and all prior agreements
and/or letter(s) of intent (including any by and between Baraka Intracom, Inc.,
as Seller, and Corsaire, Inc., parent of Buyer) relative hereto which are not
contained herein are terminated, cancelled and superseded. THIS WRITTEN
AGREEMENT AND ALL DOCUMENTS EXECUTED IN CONNECTION HEREWITH OR CONTEMPLATED
HEREBY REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
b. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each of the parties to
this Agreement covenants and agrees that their respective representations,
warranties, covenants, statements, and agreements contained in this Agreement
shall survive the Closing Date and terminate on the second anniversary of such
date. Except as set forth in this Agreement, the exhibits hereto or in the
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documents and papers delivered by Seller to Buyer in connection herewith, there
are no other agreements, representations, warranties, or covenants by or among
the parties hereto with respect to the subject matter hereof.
c. NOTICES. Any notices, requests, demands and other communications
which are required or may be given under this Agreement shall be sufficient if
in writing and delivered or sent by:
(i) Registered or Certified Mail to the principal office of the other
party, postage prepaid with return receipt requested deposited in a proper
receptacle of the United States Postal Service or its successors. Said notice
shall be addressed to the intended recipient. A written notice sent in
conformity with this provision shall be deemed delivered as of the date shown
"delivered" on the return receipt; or,
(ii) Transmitted by Prepaid Telegram or by Telephone Facsimile
Transmission if receipt is acknowledged by the addressee. Notice so transmitted
by telegram or facsimile transmission shall be effective only if receipt of
transmission is acknowledged by an appropriate machine or written confirmation,
and such notice shall be deemed effective on the next business day after
transmission; or,
(iii) Notice given in any other manner shall be effective only if and
when proven to have been received by the addressee.
For purposes of notice, the address of each party shall be the
following address:
To Seller: Baraka Intracom, Inc.
Attention: Xxxxxxxx Xxxxxx, Manager
000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
with copy to: None As of Date of Closing
To Buyer: Net Command Tech, Inc.
Attention: Xxxxxxx X. Xxxxxxxx, President
000 Xxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000-0000
with copy to: Xxxxxx X. Xxxxxx, Attorney at Law
0000 Xxxx Xxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Provided, however, that each party shall have the right to change his
respective address for notices hereunder to another location(s) within the
continental United States by giving 30 days'
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written notice to the other party in the manner set forth hereinabove. The
Notice shall not be effective unless a copy is simultaneously sent to the
designated party.
d. SECTIONS AND OTHER HEADINGS AND CAPTIONS. The section and other
headings contained in this Agreement are for reference purposes only and shall
not affect the meaning or interpretations of this Agreement. The Captions of
this contract are for convenience and reference only and in no way define,
describe, extend, or limit the scope or intent of this contract, or the intent
of any provisions hereof.
e. GOVERNING LAW. This agreement, and all transactions contemplated
hereby, shall be governed by, construed and enforced in accordance with the
substantive laws of the United States and the State of California where not in
conflict.
f. COUNTERPART ORIGINALS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument. In addition, this Agreement may contain
more than one counterpart of the Signature Page and this Agreement may be
executed by affixing the signatures of each of the parties to one of such
counterpart Signature Pages; all of such counterpart Signature Pages shall be
read as though one, and they shall have the same force and effect as though all
of the signers had signed a single Signature Page.
g. TYPEWRITTEN OR HANDWRITTEN PROVISIONS. Hand-written provisions
inserted in this contract and typewritten provisions initialed by both parties
shall control over the typewritten provisions in conflict therewith.
h. TIME OF THE ESSENCE. Time and timely performance are of the
essence of this contract and of the covenants and provisions hereunder.
i. SUCCESSORS AND ASSIGNS. Rights and obligations created by this
contract shall be binding upon and inure to the benefit of the parties hereto,
their successors and assigns. Whenever used, the singular number shall include
the plural, the plural the singular, and the use of any gender shall include
all genders. Except as otherwise expressly provided herein, the execution and
delivery of this Agreement shall not be deemed to confer any rights upon, nor
obligate any of the parties hereto, to any person or entity other than the
parties hereto.
j. ARBITRATION. As concluded by the parties hereto, any controversy
between the parties hereto involving any dispute or claim by, through or
under, or the construction or application of any terms, covenants, or
conditions of, this agreement, or any agreement or undertaking derived by,
through or under this
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Agreement or related Agreement, shall, on the written request of one party
served upon the other, be submitted to arbitration, and such arbitration shall
comply with and be governed by the provisions of the Federal Arbitration Act as
it may be amended; Provided, that Arbitration shall be conducted in Dade County,
Florida and be conducted by the American Arbitration Association ("AAA") with
three (3) non-interested Arbitrators to be designated by the AAA. The parties
hereto agree to arbitrate any dispute, breach, default, claim or liability
between themselves by Arbitration pursuant to the Federal Arbitration Act, with
Arbitrators using the Federal Rules of Evidence in Civil Cases. Any and all
disputes, claims, causes of action or disagreements by or between the parties
hereto shall be brought and heard in Dade County, Florida. The FAA rules shall
apply, and the AAA rules shall apply if not in conflict with the FAA rules. All
evidence shall be subject to the Federal Rules of Civil Evidence and the
substantive laws of the United States and the State of California. In the event
of a dispute or breach or default hereunder, which result in the commencement of
judicial litigation or commercial arbitration, the successful party shall be
entitled to receive from the unsuccessful party, any and all reasonable
attorneys fees, arbitration costs, court costs and expenses incurred in
determination of the dispute or breach or default. The losing party in any
Arbitration shall pay the winning party its reasonable legal fees and any
expenses or costs incurred in resolving the Arbitrated matter in such amount as
shall be determined by the Arbitrators. The Parties may seek any judicial writs
or actions as may be necessary or appropriate to protect or enforce the
jurisdiction and authority of the Arbitrators and to preserve the status quo
pending a final award or decision.
k. EXTRAORDINARY REMEDIES. To the extent cognizable at law, the
parties hereto, in the event of breach and in addition to any all other remedies
available thereto, may obtain injunctive relief, regardless of whether the
injured party can demonstrate that no adequate remedy exists at law.
1. AMENDMENTS OR ADDENDA. All amendments, addenda, changes or
modifications to this contract are shown on Exhibit "F", attached hereto and
made a part hereof.
m. INITIALS AND EXHIBITS. This contract shall not be valid and
enforceable unless it is properly executed by Buyer and Seller and their
initials affixed to each page of the exhibits attached hereto and made a part
hereof. All exhibits, schedules and documents attached hereto, if any, are
hereby incorporated in this Agreement and made a part hereof by reference.
n. SEVERABILITY. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations. If any
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provision of this Agreement or the application thereof to any person or
circumstances shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to the other persons or circumstances shall not be effected thereby,
but rather shall be enforced to the greatest extent permitted by law.
o. WAIVERS. No action taken pursuant to this Agreement, including
any investigation by or on behalf of any party shall be deemed to constitute a
waiver by the party taking such action of compliance with any representation,
warranty, covenant or agreement contained herein or therein and in any
documents delivered in connection herewith or therewith. The waiver by any
party hereto of a breach of any provision of this Agreement shall not operate or
be construed as a waiver of any subsequent breach.
p. EXECUTION OF ADDITIONAL DOCUMENTS. Each party hereto agrees to
negotiate in good faith and to execute, within ten days after notice, such
other documents, instruments or written evidence of conveyance or assignment as
shall be reasonably required or appropriate to effectuate this Agreement and to
perfect or evidence any conveyance or assignment of any asset or instrument
conveyed or assigned herein.
IN WITNESS WHEREOF, this Agreement has been executed by each of the
parties hereto and signed by an officer thereunto duly authorized and attested
under the corporate seal of the Secretary of the Corporate party hereto, if
any, all on the date and year first above written.
Signed, sealed and delivered
in the presence of: SELLER:
(CORPORATE SEAL) BARAKA INTRACOMM, INC.
By: /s/ Xxxxxxxx Xxxxxx
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Witness Its Vice President
Attest:
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Its Secretary
Signed, sealed and delivered
in the presence of: BUYER:
(CORPORATE SEAL) NET COMMAND TECH, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Witness Its President
Attest:
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Its Secretary
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