Exhibit 10.1
INTELLECTUAL PROPERTY PURCHASE AGREEMENT
This Purchase Agreement is made as of the 31st day of January, 2002, by and
between, ENTERNET, INC., a Nevada Corporation (BUYER), with its principal place
of business in Phoenix, Arizona, and ICYBERDATA, INC. a Washington Corporation
with its principal place of business in Tampa Florida, (SELLER). The Buyer and
the Seller are referred to collectively herein as the "Parties").
RECITALS:
A. Seller owns certain assets that are hereinafter described and
specifically set forth in Exhibit A.
B. The Seller has offered to sell to the Buyer and the Buyer has agreed to
purchase said assets from the Seller for Common Shares of Stock and Cash.
NOW, THEREFORE, in consideration of the premises and the mutual premises
herein made, and in consideration of the representations, warranties and
covenants herein contained, the Parties agree as follows:
1. DEFINITIONS.
"ADVERSE CONSEQUENCES" means all material charges, complaints, actions,
suits, proceedings, hearings, investigations, claims, demands, judgments,
orders, decrees, stipulations, injunctions, and damages. Dues, penalties, fines,
costs, amounts paid in settlement, liabilities, obligations, taxes, liens,
losses, expenses, and fees, including all attorneys fees and court costs.
"BANKRUPTCY" means, with respect to any Person, the happening of any of the
following:
the filing of an application by such Person for, or consent to, the
appointment of a trustee over all or substantially all of its assets;
the filing by such Person of a voluntary petition in bankruptcy or the
filing of a pleading in any court of record admitting in writing its
liability to pay its debts as they come due;
the making by such Person of a general assignment for the benefit of
creditors;
the filing by such Person of an answer admitting the material
allegations of, or its consenting to, or defaulting in answering, a
bankruptcy petition filed against it in any bankruptcy proceedings; or
the entry of an order, judgment, or decree by any such court of
competent jurisdiction adjudicating such Person bankrupt or appointing a
trustee over its assets, and such order, judgment, or decree continuing
unstayed and in effect for a period of 60 consecutive days.
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"BUYER" has the meaning set forth in the Recitals above.
"CLOSING" has the meaning set forth in Section 3 below.
"CLOSING DATE" has the meaning set forth in Section 3 below.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the Securities and Exchange Commission.
"BUYER'S SHARE" means any share of the common stock, par value $.001 per
share, of the Buyer.
"GAAP" means United States generally accepted accounting principles as in
effect from time to time.
"INTELLECTUAL PROPERTY" means all (a) patents, patent applications, patent
disclosures, and improvements thereto, (b) trademarks, service marks, logos,
trade names, and corporate names and registrations and applications for
registration thereof; (c) copyrights and registrations and applications for
registration thereof; (d) computer software, data, and documentation; (e) trade
secrets and confidential business information (including ideas, formulas,
compositions, inventions (whether patentable or unpatentable and whether or not
reduced to practice), know-how, manufacturing and production processes and
techniques, research and development information, drawings, specifications,
designs, plans, proposals, technical data, copyrightable works, financial,
marketing, and business data, pricing and cost information, business and
marketing plans, and proprietary rights, and (g) copies and tangible
embodiments.
"BUYER'S SHARE PRICE" has the meaning set forth in Section 2 below.
"PARTY" has the meaning set forth in the preface above.
"PERSON" means an individual or a corporation, association, partnership,
joint venture, organization, business, trust or any other entity or
organization, including a government or any subdivision or agency thereof.
"PURCHASE PRICE" has the meaning set forth in Section 2 below.
"SECURITIES ACT" means the Securities Act of 1933, as amended, all rules
and regulations promulgated thereunder.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and all rules and regulations promulgated thereunder.
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"SECURITY INTEREST" means any mortgage, pledge, security interest,
encumbrance, charge, or other lien, other than (a) mechanic's, materialmen's,
and similar liens (b) liens for taxes not yet due and payable or for taxes that
the taxpayer is contesting in good faith through appropriate proceedings, (c)
liens arising under worker's compensation, unemployment insurance, social
security, retirement, and similar legislation, (d) liens arising in connection
with sales of foreign receivables, (e) liens on goods in transit incurred
pursuant to documentary letters of credit, (f) purchase money liens and liens
securing rental payments under capital lease arrangements, and (g) other liens
arising in the Ordinary Course of Business and not incurred in connection with
the borrowing of money.
"SELLER" has the meaning set forth in the preface above.
"TAX" means any federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental (including taxes under Code Section 59A),
outcome duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
2. PURCHASE AND SALE OF THE SELLER'S INTELLECTUAL PROPERTY
BASIC TRANSACTION. On the terms and subject to the conditions of this
Agreement, the Buyer agrees to purchase from the Seller, and the Seller agrees
to sell to the Buyer, the intellectual property as set forth in Exhibit A
At the Closing, the Buyer shall deliver to the Seller the following
consideration
a. 500,000 shares of the common stock of the Buyer restricted pursuant to
Rule 144 of the Securities Act.
b. An additional 500,000 shares of the common stock of the Buyer restricted
pursuant to Rule 144 of the Securities Act shall be remitted to the Seller in
100,000 share increments for each $10,000,000 in revenues generated by the
Intellectual Property. 100,000 shares shall have "piggy back" rights of
registration.
c. A promissory note in the principal amount of $786,000, comprised of
$750,000 and $36,000 as operating expenses for December 2001 and January 2002,
with interest at a rate of 7% per annum, payable within six (6) months of the
closing with the following schedule.
(i) initial payment of $136,000 Feb 15, 2002
(ii) monthly payments of $130,000 due on the 15th day of March, April,
May, June and July of 2002.
d. If the buyer defaults on any payment in Section 2 (c), the buyer will
deliver to the seller an additional 28,000 shares of common stock for every week
or portion thereof that payments are in arrears.
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3. THE CLOSING of the transaction contemplated by this Agreement (the
"Closing") shall take place within ten (10) days after the successful transfer
of the intellectual property as described in Exhibit A and approved by the
Buyer. The location of the closing shall at the offices of the Buyer at 00000 X.
Xxxxx Xxxxx 0000 Xxxxxxx, XX 00000 unless the Parties mutually agree upon
another location.
4. REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION.
a. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller represents and
warrants to the Buyer that the statements contained in this Section 3(a) are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Section
3(a) with respect to himself or itself only.
(i) ORGANIZATION OF THE COMPANY. The Company is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Florida. The Company is also authorized to transact business, and is in good
standing in all other jurisdictions where it conducts business.
(ii) AUTHORIZATION OF TRANSACTION. The Seller has full power and
authority (including, with respect to the Company, full corporate power and
authority) to execute and deliver this Agreement and to perform his or its
obligations hereunder. This Agreement constitutes the valid and legally binding
obligation of the Seller, enforceable in accordance with its terms and
conditions, except as bankruptcy, insolvency, reorganization, moratorium or
similar laws may limit enforcement. The Seller need not give any notice to, make
any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency or other Person in order to consummate the
transactions contemplated by this Agreement.
(iii) NONCONTRAVENTION.Neither the execution and the delivery of this
Agreement, nor the consummation of the transaction contemplated hereby, will (A)
violate any statute, regulation, rule, judgment, order, decree, stipulation,
injunction, charge, or other restriction of any government, governmental agency,
or court to which the Seller is subject (or, with respect to the Company, any
provision of its charter or bylaws) or (B) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, crate in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any contract, lease, sublease, license, sublicense, franchise, permit,
indenture, agreement or mortgage for borrowed money, instrument of indebtedness,
security interest, or other arrangement to which the Seller is a party or by
which he or it is bound or to which any of his or its assets is subject.
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(iv) CERTAIN OCCURRENCES. Seller (a) has not suffered an event of
Bankruptcy within one year prior to the date hereof, (b) within the last 10
years, has not violated any provision of any statute, regulation, rule (whether
such statute, regulation or rule is criminal or civil in nature), judgment,
order, decree, stipulation, injunction, charge, or other restriction of any
government, governmental agency, or court to which the Seller is subject, if the
effect of any such violation would have a material adverse effect on the rights
intended to be granted to buyer under this Agreement, (c) is not the subject of
any proceeding or investigation relating to any of the matters described in
clause (b) above, and (d) is not aware of any threatened investigation by any
governmental agency relating to any of the matters described in clause (b)
above.
(v) BROKERS' FEES. The Seller has no Liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Buyer could become
liable or obligated.
(vi) INTELLECTUAL PROPERTY. The Seller owns beneficially all of the
Intellectual Property free and clear of any restrictions on transfer, claims,
Taxes, Security Interests, options, rights or contracts.
(vii) INVESTMENT. The Seller is not acquiring the Buyers Shares with a
view to or for sale in connection with any distribution thereof within the
meaning of the Securities Act provided, however, that nothing in this Section
3(a)(vii) shall restrict any of the rights of the Seller with respect to
registration and/or sale of the Buyers Shares as specifically contemplated
and/or permitted in this Agreement.
(viii) DISCLOSURE. The representations and warranties of the Seller
contained in this Section 4(a) do not contain any untrue statement of a fact or
omit to state any fact necessary in order to make the statements and information
contained in this Section 4(a) not misleading.
B. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents and
warrants to the Seller that the statements contained in this Section 4(b) are
correct and complete as of the date of this agreement and will be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Section
4(b).
(i) ORGANIZATION OF THE BUYER.The Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Nevada.
(ii) AUTHORIZATION OF TRANSACTION. The Buyer has full power and
authority (including full corporate power and authority) to execute and deliver
this Agreement and to perform its obligations hereunder. This Agreement
constitutes the valid and legally binding obligation of the Buyer, enforceable
in accordance with its terms and conditions, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar, laws
or equitable principles relating to or limiting creditors' rights generally. The
Buyer need not give any notice to, make any filing with, or obtain any
authorization, consent or approval of any government or governmental agency in
order to consummate the transactions contemplated by this Agreement.
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(iii) NONCONTRAVENTION.Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(A) violate any statute, regulation, rule, judgment, order, decree, stipulation,
injunction, charge, or other restriction of any government, governmental agency,
or court to which the Buyer is subject or any provision of its charter or bylaws
or (B) conflict with, result in a breach of, constitute a default under, result
in the acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any contract, lease, sublease,
license, sublicense, franchise, permit, indenture, agreement or mortgage for
borrowed money, instrument of indebtedness, Security Interest, or other
arrangement to which the Buyer is a party or by which it is bound or to which
any of its assets is subject.
(iv) BROKERS' FEES. The Buyer has no Liability or obligation to pay
any fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which Seller could become liable
or obligated.
(v) ABILITY TO CARRY OUT THE AGREEMENT.The Buyer is not subject to or
bound by any provision of:
(a) any law, statute, rule, regulation, ordinance or judicial or
administrative decision;
(b) any articles or certificate of incorporation or bylaws;
(c) any mortgage, deed or trust, lease, note, stockholders'
agreement, bond, indenture, other instrument or agreement, license,
permit, trust, custodianship, other restriction, or any kind or
character whatsoever; or
(d) any judgment, order, writ, injunction or decree of any court,
governmental body, administrative agency or arbitrator; that would
prevent, or be violated by, or would result in any penalty, forfeiture
or contract termination as a result of, or under which there would be
a default as a result of, the execution, delivery and performance by
the Buyer of this Agreement and the transactions contemplated hereby,
nor is the consent of any Person under any contract or agreement to
which the Buyer is a party, which consent has not been obtained,
required for the execution, delivery and performance by the Buyer of
this Agreement and the transactions contemplated hereby.
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(vi) CAPITALIZATION. The Buyer is authorized to issue: (1) 1,000,000
shares of common stock $.001 per value per share pursuant to this Agreement.
Approximately 10,500,000 shares were issued and outstanding on January 21, 2002.
All of the Buyers Shares to be issued pursuant to this Agreement have been duly
authorized and will not have been issued in violated of any preemptive rights
and shall be free from Security Interests or other encumbrances. None of the
Buyers Shares are the subject of any voting trust agreement or other agreement
relating to the voting thereof or restricting in any way the sale of transfer
thereof (except as provided in this Agreement).
(vii) LITIGATION. There is no Litigation pending or, to the Buyer's
knowledge, threatened against the Buyer in, before or by any court or arbitrator
or governmental agency or authority which could have a material adverse effect
on the business, operations, results of operations, assets, properties, or
financial condition of the Buyer.
(viii) DISCLOSURE. The representations and warranties of the Buyer
contained in this Section 4(b) do not contain any untrue statement of a fact or
omit to state any fact necessary in order to make the statements and information
contained in this Section 4(b) not misleading.
5. FURTHER ASSURANCES.
(i) Each Party will at any time and from time to time execute and
deliver additional agreements and documents, including documents of conveyance
and transfer, and take such other action as may be reasonably necessary to
consummate, confirm or evidence the transactions contemplated in this Agreement.
(ii) The Seller will enter into any amendment to this Agreement
reasonably requested by the Buyer and intended by the Buyer to affect the
federal, state or local tax consequences to the Buyer of the transactions
contemplated herein, but only if such amendment does not result in any
additional cost or detriment to the Seller than the transaction contemplated by
this Agreement.
6. CONDITIONS TO OBLIGATIONS REGARDING CLOSING.
a. CONDITION TO OBLIGATION OF THE BUYER. The obligation of the Buyer to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions.
the representations and warranties set forth Section 3 above shall be
true and correct in all material respects at and as of the Closing Date;
the Seller shall have performed and complied with all of his covenants
and those of the Company hereunder in all material respects through the Closing;
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no action, suit, or proceeding shall be pending or threatened before
any court or quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction wherein an unfavorable judgment, order, decree,
stipulation, injunction, or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation, or (C)
affect adversely in any material respect the right of the Buyer to own, operate,
or control the Company shares or any of the Company (and no such judgment,
order, decree, stipulation, injunction, or charge shall be in effect);
the Company shall have delivered to the Buyer a copy of the
resolutions of the shareholder and Board of Directors of the Company authorizing
the transactions contemplated pursuant to this Agreement, which resolutions
shall be certified by an officer of the Company.
b. CONDITIONS TO OBLIGATION OF THE SELLER. The obligation of the Seller to
consummate the transactions to be performed by them in connection with the
Closing is subject to satisfaction of the following conditions.
the representations and warranties set forth in Section 4(a) above
shall be true and correct in all material respects at and as of the Closing
Date;
the Buyer shall have performed and complied with all of its covenants
hereunder in all material respects through the Closing;
no action, suit, or proceeding shall be pending or threatened before
any Court or quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction wherein an unfavorable judgment, order, decree,
stipulation, injunction or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement; (B) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation (and no
such judgment, order, decree, stipulation, injunction, or charge shall be in
effect) or (C) affect adversely in any material respect the right of the Sellers
to own the Buyer's Shares (and no such judgment, order, decree, stipulation,
injunction, or charge shall be in effect);
the Buyer shall have delivered to the Sellers a copy of the
resolutions of the Board of Directors or the Executive Committee of the Buyer
authorizing the transactions contemplated pursuant to this Agreement, which
resolutions shall be certified by an officer of the Buyer; and
the Seller may waive any condition specified in this Section 6(b) if
they execute a writing so stating at or prior to the Closing.
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7. TERMINATION.
a. TERMINATION OF AGREEMENT. The Parties may terminate this Agreement by
mutual consent at any time prior to the Closing; .
b. EFFECT OF TERMINATION. If this Agreement terminates pursuant to Section
6(a) above, all obligations of the Parties hereunder shall terminate without any
liability of any Party to any other Party.
8. MISCELLANEOUS.
THE SELLERS.
a. NO THIRD PARTY BENEFICIARIES. This Agreement shall not confer any rights
or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
b. ENTIRE AGREEMENT.This Agreement (including the Schedules and Exhibits
hereto and the documents referred to herein) constitutes the entire agreement
among the Parties with regard to the subject matter hereof and supersedes any
prior understandings, agreements, or representations by or among the Parties,
written or oral that may have related in any way to the subject matter hereof.
c. SUCCESSION AND ASSIGNMENT.This Agreement shall be binding upon and inure
to the benefit of the Parties named herein and their respective successors and
permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the written approval of the
Buyer and the Seller.
d. COUNTERPARTS/FACSIMILE SIGNATURES. This Agreement may be executed in one
or more counterparts and may be executed by facsimile signature, each of which
shall be deemed an original but all of which together will constitute one and
the same instrument.
e. HEADINGS. The section headings contained in this Agreement is inserted
for convenience only and shall not effect in any way the meaning or
interpretation of this Agreement.
f. NOTICES. All notices, requests, demands, claims, and other
communications hereunder, including notices, requests, demands, claims and other
communications will be in writing. Any notice, request, demand, claim or other
communication hereunder shall be deemed duly given three (3) business days after
it is sent by registered or certified mail, return receipt requested, postage
prepaid, and addressed to the intended recipient as set forth below.
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If to the Seller: Xx. Xxxxx X. Xxxxxxxxx
00000 Xxxxxx Xxxx.
Xxxxxxxx, XX X0X 0X0
If to the Buyer: Mr. Xxxxx Xxxxxx
00000 X. Xxxxx Xxxxx 0000
Xxxxxxx XX
Copy to: Xxxx X. Xxxxx
0000 Xxxx Xxxxxxxx Xx.
Xxxxxxx, XX 00000
Any Party may give any notice, request, demand, claim, or other communication
hereunder using any other means (including personal delivery, expedited courier,
messenger service, telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication shall be deemed to
have been duly given unless and until it actually is received by the individual
for whom it is intended. Any Party may change the address to which notices,
requests, demands, claims, and other communications hereunder are to be
delivered by giving the other Parties notice in the manner set forth.
g. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the Internal laws (and not the law governing conflicts of laws)
of the State of Nevada.
h. AMENDMENTS AND WAIVERS. No amendment of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by the Buyer and
the Seller. No waiver by any Party of any default, misrepresentation, or breach
of warranty or covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
i. SEVERABILITY. Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any other situation or
in any other jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the Parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expression of the time within
which the judgment may be appealed.
j. INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement or caused
this Agreement to be executed on the date first above written.
BUYER: SELLER
Enternet, Inc iCyberData, Inc
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------- ----------------------------
Xxxxx Xxxxxx, President Xxxxx X. Xxxxxxxxx, Director
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EXHIBIT A
INTELLECTUAL PROPERTY
The property acquired will be the name ICYBERDATA COURT SUITE(C) and the
following nine case management systems: Drug court, Domestic violence, Traffic
court, DUI court, Mediation, Child Advocacy, Juvenile court, Family court and
Animal court. It shall also include, software, source codes, all tools
comprising the software development environment to complete, maintain, update
and execute the software suite (i.e. compilers, linkers, debuggers, computers),
and associated documentation (i.e. requirement documentation, software design
documentation, user manuals, development manuals, training materials, marketing
collateral) and all software algorithms and formulas associated with the
ICYBERDATA COURT SUITE. All customer contracts, customization proposals any and
all other agreements, approvals, licenses, leases, and all records, financial
statements, portfolio and all other records and documentation necessary to
properly operate the business of ICYBERDATA COURT SUITE(C).
The ID NET, which is an ASP service. It shall also include, software,
source codes, all tools comprising the software development environment to
complete, maintain, update and execute the software suite (i.e. compilers,
linkers, debuggers, computers), and associated documentation (i.e. requirement
documentation, software design documentation, user manuals, development manuals,
training materials, marketing collateral) and all software algorithms and
formulas associated with ID NET. All customer contracts, customization proposals
any and all other agreements, approvals, licenses, leases, and all records,
financial statements, portfolio and all other records and documentation
necessary to properly operate the business of ID NET.
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