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Exhibit 10.7
AGREEMENT FOR SALE AND PURCHASE
OF ASSETS
THIS AGREEMENT (the "Agreement"), made as of the 30th day of July,
1999, by and between XXXXXXXXXXXX.XXX, INC., a Florida corporation ("Buyer"),
and Xxxxxxxx X. Xxxxxx ("Seller").
RECITALS:
WHEREAS, Buyer is a corporation engaged in the business of developing
and marketing computer software and technology;
WHEREAS, Seller desires to sell to Buyer certain of its assets;
WHEREAS, Buyer desires to acquire such assets, and
WHEREAS, the parties have reached certain agreements concerning the
sale and purchase of the assets, as set forth in this Agreement and in
instruments referenced herein.
NOW, THEREFORE, in consideration of the Recitals and of the mutual
covenants, conditions and agreements set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, it is hereby agreed as follows:
ARTICLE 1
THE ACQUISITION
Section 1.1 Covenants of Sale and Purchase. At the Closing (as defined
in Section 2.1), and upon and subject to the terms and conditions of this
Agreement, Seller and Buyer mutually covenant and agree as follows:
(a) Seller will sell, convey and assign to Buyer all right,
title and interest of Seller in and to the Acquired Assets (as defined in
Section 1.2) on an "as is" and "where is" basis, free and clear of all liens,
pledges, security interests, charges, restrictions or encumbrances of any nature
whatsoever; and
(b) Buyer will purchase the Acquired Assets from Seller in
exchange for the Purchase Price as defined by Section 1.4.
Section 1.2 The Acquired Assets. In this Agreement, the phrase
"Acquired Assets" means and shall include all of the following:
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(a) Intellectual Property. All items of intellectual property,
including but not limited to computer software, set forth or described on
Schedule 1.2(a) attached hereto, which the parties have agreed have an aggregate
value of $540,100.
(b) Hard Assets. All of the items of hard assets set forth or
described on Schedule 1.2(b) attached hereto, which the parties have agreed have
an aggregate value equal to $877,000.
(c) Contracts. All contracts, memoranda of understanding and
letters of intent set forth or described on, or attached to, Schedule 1.2(c)
attached hereto, which the parties have agreed have an aggregate discounted
present value equal to $9,154,000.
(d) Trademarks and Patents. All trademarks, trademark
applications, patents and patent applications set forth or described on, or
attached to, Schedule 1.2(d), which the parties have agreed have an aggregate
value equal to $________ TO BE DETERMINED BY ADJUSTMENT.
(e) Lease Obligation. All of Seller's right, title and interest
in and under the lease identified on and attached hereto as Schedule 1.2(e) (the
"Lease"). Buyer shall assume all obligations of Seller under the Lease except
that Buyer shall not be responsible for any rent due under the lease prior to
the Closing Date. Buyer shall be responsible for any costs associated with the
termination of such lease, or associated with any sublease of the space.
Section 1.3 Adjustments. Buyer and Seller agree that the values for the
assets set forth in Section 1.2(a) through (e) are based upon the best
information currently available. Buyer and Seller further agree to adjust the
value of any one or more of those assets consistent with a final audit or
valuation to be conducted and/or completed subsequent to the Closing.
Section 1.4 Payment of Purchase Price. Buyer shall pay to Seller the
Purchase Price solely by issuing to Seller TWO MILLION ONE HUNDRED SIXTY-SIX
THOUSAND SEVEN HUNDRED AND 00/100 (2,166,700) shares of common stock of Buyer
(the "Shares").
Section 1.5 No Assumed Liabilities. On the Closing Date, Seller shall
deliver to Buyer the Acquired Assets, free and clear of any and all liens and
encumbrances. Buyer shall assume no obligations of Seller relative to the
Acquired Assets or otherwise, except for any and all obligations under or
attendant to the Lease attached to Schedule 1.2(e).
ARTICLE 2
CLOSING, ITEMS TO BE DELIVERED,
FURTHER ASSURANCES, AND EFFECTIVE DATE
Section 2.1 Closing. The consummation of the purchase and sale of
assets under this Agreement (the "Closing") will take place at 1:00 p.m. (EST)
on July 30th, 1999 (the "Closing Date"), at the offices of Fowler, White,
Burnett, Hurley, Xxxxxx & Strickroot, 100 S.E. Second
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Xxxxxx, Xxxxxxxxxxx Xxxxx, Xxxxx, Xxxxxxx, 00000, or at such other date, time or
place is agreed to in writing by the parties hereto.
Section 2.2 Conveyance and Delivery by Seller. On the Closing Date,
Seller will surrender and deliver possession of the Acquired Assets to Buyer and
take such steps as may be required to put Buyer in actual possession and
operating control of the Acquired Assets, and in addition shall deliver to Buyer
such xxxx of sale and assignments and other good and sufficient instruments and
documents of conveyance, in form reasonably satisfactory to Buyer and its
counsel, as shall be necessary and effective to transfer and assign to, and vest
in, Buyer all of Seller's right, title and interest in and to the Acquired
Assets free and clear of any lien, charge, pledge, security interest,
restriction or encumbrance of any kind.
Section 2.3 Delivery by Buyer. On the Closing Date, Buyer will issue to
Seller, in the name of Seller, one or more original stock certificates
representing, in the aggregate, the Shares.
Section 2.4 Mutual Performances. At or prior to the Closing, the
parties hereto shall also deliver to each other the agreements, opinions,
certificates, and other documents and instruments required hereunder.
Section 2.5 Third Party Consents. To the extent that Seller's rights
under any agreement or other Acquired Asset to be assigned to Buyer hereunder
may not be assigned without the consent of another person which has not been
obtained, this Agreement shall not constitute an agreement to assign the same if
an attempted assignment would constitute a breach thereof or be unlawful, and
Seller, at its expense, shall use its best efforts to obtain any such required
consent(s) as promptly as possible. If any such consent shall not be obtained or
if any attempted assignment would be ineffective or would impair Buyer's rights
under the Acquired Asset in question so that Buyer would not in effect acquire
the benefit of all such rights, Seller, to the maximum extent permitted by law
and the Acquired Asset, shall act after the Closing as Buyer's agent in order to
obtain for it the benefits thereunder and shall cooperate, to the maximum extent
permitted by law and the Acquired Asset, with Buyer in any other reasonable
arrangement designed to provide such benefits to Buyer.
Section 2.6 Further Assurances. Seller from time to time after the
Closing, at Buyer's reasonable request, will execute, acknowledge and deliver to
Buyer such other instruments of conveyance and transfer and will take such other
actions and execute and deliver such other documents, certifications and further
assurances as Buyer may reasonably require in order to vest more effectively in
Buyer, or to put Buyer more fully in possession of, any of the Acquired Assets.
Each of the parties hereto will cooperate with the other and execute and deliver
to the other parties hereto such other instruments and documents and take such
other actions as may be reasonably requested from time to time by any other
party hereto as necessary to carry out, evidence and confirm the intended
purposes of this Agreement.
Section 2.7 Effective Date. The Effective Date of the Agreement and all
related instruments executed at the Closing shall be July 30TH, 1999, unless
otherwise agreed.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF SELLER
Seller represents and warrants to Buyer as follows:
Section 3.1 Authority. Seller has the requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been, and the other agreements,
documents and instruments required to be delivered by Seller in accordance with
the provisions hereof (the "Seller's Documents") will be, duly executed and
delivered by Seller, and this Agreement constitutes, and Seller's Documents when
executed and delivered will constitute, the legal, valid and binding obligations
of Seller, enforceable against Seller in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, or similar laws from time to
time in effect which offset creditors' rights generally and general equitable
principles (regardless of whether the issue of enforceability is considered in a
proceeding in equity or in law).
Section 3.2 Consents and Approvals; No Violations. Except as set forth
in Schedule 3.2, neither the execution, delivery, or performance of this
Agreement by Seller nor the consummation by him of the transactions contemplated
hereby nor compliance by him with any of the provisions hereof will (i) require
any filing with, or permit authorization, consent, or approval of, any court,
arbitral tribunal, administrative agency or commission, or other governmental or
other regulatory authority or agency (a "Governmental Entity"), (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation, or acceleration) under, any of the terms, conditions, or
provisions of any note, mortgage, indenture, lease, license, contract,
agreement, or other instrument or obligation to which Seller is a party or by
which Seller or any of his properties or assets may be bound, or (iii) violate
any order, writ, injunction, decree, statute, rule, or regulation applicable to
Seller or any of his properties or assets, except in the case of (ii) or (iii)
for violations, breaches, or defaults that would not, individually or in the
aggregate, have a material adverse effect on Seller.
Section 3.3 No Third Party Options. There are no existing agreements,
options, commitments, or rights with, of or to any person to acquire any of
Seller's assets, properties or rights included in the Acquired Assets or any
interest therein.
Section 3.4 Absence of Certain Changes. There have been no events or
changes having an adverse effect on the Acquired Assets.
Section 3.5 Software. The computer software of Seller included in the
Acquired Assets (the "Software") performs in accordance with the documentation
and other written material used in connection with the Software, is in
machine-readable form, contains all current revisions of such software, and
includes all computer programs, materials, tapes, know-how, object and source
codes, other written materials, know-how and processes related to the Software.
Seller has delivered to Buyer complete and correct copies of all user and
technical documentation related to the Software.
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Neither Seller nor, to the best knowledge of Seller, any employee or
agent thereof has developed or assisted in the enhancement of the Software
except for enhancements included in the Software as delivered to Buyer pursuant
thereto or the development of any program or product based on the Software or
any part thereof. All copies of the Software embodied in physical form are being
delivered to Buyer at or prior to the Closing.
Section 3.6 Litigation. Except as disclosed in Schedule 3.6 there is no
suit, claim, action, proceeding, or investigation pending or, to the best
knowledge of Seller threatened against, Seller. Except as disclosed in Schedule
3.6, Seller are is not subject to any outstanding order, writ, injunction, or
decree which, insofar as can be reasonably foreseen, individually or in the
aggregate, in the future would have an adverse effect on such party or the
Acquired Assets or would prevent such party from consummating the transactions
contemplated hereby. No voluntary or involuntary petition in bankruptcy,
receivership, insolvency, or reorganization with respect to Seller, or petition
to appoint a receiver or trustee of Seller's property, has been filed by or
against Seller, nor will Seller file such a petition prior to Closing Date or
for one hundred days thereafter, and if such petition is filed by others, the
same will be promptly discharged. Seller is solvent on the date hereof and will
be solvent on the Closing Date. Seller has not and at the Closing Date will not
have made any assignment for the benefit of creditors, or admitted in writing
insolvency or that their property at fair valuation will not be sufficient to
pay his debts, nor will Seller permit any judgment, execution, attachment or
levy against him or against any of his properties to remain outstanding or
unsatisfied for more than ten (10) days.
Section 3.7 No Misrepresentations. None of the representations and
warranties of Seller set forth in this Agreement or in the attached exhibits and
schedules, notwithstanding any investigation thereof by Buyer, contains or will
contain any untrue statement of a material fact, or omits or will omit the
statement of any material fact necessary to render the same not misleading,
either at the date hereof or on the Closing Date.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
Section 4.1 Organization. Buyer is a corporation organized, validly
existing and in active status under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority and all
necessary governmental approvals to own, lease, and operate its properties and
to carry on its business as now being conducted except where failure to be so
organized, valid, or active would not, in the aggregate, have a material adverse
effect on Buyer. Buyer is duly qualified or licensed to do business and is in
good standing in each jurisdiction in which the property owned, leased, or
operated by it or the nature of the business conducted by it makes such
qualification or licensing necessary, except where the failure to be so duly
qualified or licensed and be in good standing would not in the aggregate have a
material adverse effect on Buyer.
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Section 4.2 Authority. Buyer has the requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement, and the consummation of the Agreement and the other transactions
contemplated hereby, have been duly authorized by all necessary corporate action
on the part of Buyer and no other corporate proceeding on the part of Buyer is
necessary to authorize this Agreement or to consummate the transactions so
contemplated. This Agreement has been duly executed and delivered by Buyer and,
assuming this Agreement constitutes a valid and binding obligation of Seller,
constitutes a valid and binding obligation of the Buyer, enforceable against it
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization or similar laws from time to time in effect which offset
creditors' rights generally and general equitable principles (regardless of
whether the issue of enforceability is considered in a proceeding in equity or
in law).
Section 4.3 Consents and Approvals; No Violations. Except as set forth
in Schedule 4.3, and except for filings, permits, authorizations, consents, and
approvals as may be required under, and other applicable requirements of, the
Securities Act of 1933, as amended (the "Securities Act") or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), neither the execution,
delivery, or performance of this Agreement by Buyer nor the consummation by
Buyer of the transactions contemplated hereby nor compliance by Buyer with any
of the provisions hereof will (i) conflict with or result in any breach of any
provision of the Articles of Incorporation or the Bylaws of Buyer, (ii) require
any filing with, or permit authorization, consent, or approval of any court,
arbitral tribunal, administrative agency or commission, or other governmental or
other regulatory authority or agency (a "Governmental Entity"), except where the
failure to obtain such permits, authorizations, consents or approvals or to make
such filings would not have a material adverse effect on Buyer, (iii) result in
a violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation, or acceleration) under, any of the terms, conditions, or
provisions of any note, bond, mortgage, indenture, lease, license, contract,
agreement, or other instrument or obligation to which Buyer is a party or by
which Buyer or its properties or assets may be bound, or (iv) violate any order,
writ, injunction, decree, statute, rule, or regulation applicable to Buyer or
any of its properties or assets, except in the case of (iii) or (iv) for
violations, breaches, or defaults that would not, individually or in the
aggregate, have a material adverse effect on Buyer.
Section 4.4 Compliance with Applicable Law. Buyer holds all permits,
licenses, variances, exemptions, orders, and approvals of all Governmental
Entities necessary for the lawful conduct of its business (the "Buyer Permits"),
except for failures to hold such permits, licenses, variances, exemptions,
orders, and approvals that would not have a material adverse effect on Buyer.
Buyer is in compliance with the terms of the Buyer Permits, except where the
failure so to comply would not have a material adverse effect on Buyer. To the
best knowledge of Buyer, the business of Buyer is not being conducted in
violation of any law, ordinance or regulation of any Governmental Entity, except
for possible violations that do not, and, insofar as reasonably can be foreseen,
in the future will not, have a material adverse effect on Buyer. Except as set
forth in Schedule 4.4, as of the date of this Agreement no investigation or
review by any Governmental Entity with respect to Buyer is pending or, to the
best knowledge of Buyer, threatened, nor has any Governmental Entity indicated
an intention to conduct the same other than, in each case, those the
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outcome of which, as far as reasonably can be foreseen, in the future will not
have a material adverse effect on Buyer.
Section 4.5 No Misrepresentations. None of the representations and
warranties of Buyer set forth in this Agreement or in the attached exhibits and
schedules, notwithstanding any investigation thereof by Seller, contains or will
contain any untrue statement of a material fact, or omits or will omit the
statement of any material fact necessary to render the same not misleading,
either at the date hereof or at the Closing Date.
ARTICLE 5
COVENANTS OF SELLER
During the period from the Effective Date of this Agreement and
continuing until the Closing Date, Seller agrees that (except as expressly
contemplated or permitted by this Agreement or to the extent that all the other
parties hereto shall otherwise consent in writing), notwithstanding the fact
that such action might otherwise be permitted pursuant to this Article 5, Seller
shall not take any action that would, or is reasonably likely to, result in any
of its representations and warranties set forth in this Agreement being untrue,
or in any of the conditions set forth in Article 7 not being satisfied.
ARTICLE 6
ADDITIONAL AGREEMENTS
Section 6.1 Access to Information. Upon reasonable notice, Seller shall
afford to the officers, employees, accountants, counsel, and other authorized
representatives of Buyer full access during the period prior to the Closing
Date, to all its books, contracts, commitments and records to the extent that
such is reasonably necessary to protect Buyer's interest under this Agreement.
Each party shall furnish promptly to the other party all other information
concerning its business, properties, and personnel and access for discussions
with such of its management personnel as such other party may reasonably
request. Unless otherwise required by law, the parties will hold any such
information which is nonpublic in confidence, will not use such information in
its business if the transaction does not close and will return such information
if the transaction does not close.
Section 6.2 Expenses. Whether or not the transaction is consummated,
all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses.
Section 6.3 Brokers or Finders. Each of the Seller and Buyer
represents, as to itself, its subsidiaries and its affiliates, that no agent,
broker, investment banker, financial advisor, or other firm or person is or will
be entitled to any broker's or finder's fee or any other commission or similar
fee in connection with any of the transactions contemplated by this Agreement,
and each of Buyer and Seller agree to indemnify and hold the other harmless from
and against any and all claims,
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liabilities, or obligations with respect to any other fees, commissions, or
expenses asserted by any person on the basis of any act or statement alleged to
have been made by such party or its affiliate.
Section 6.4 Additional Agreements; Best Efforts. Subject to the terms
and conditions of this Agreement each of the parties hereto agrees to use its
best efforts to take, or cause to be taken, all actions and to do, or cause to
be done, all things necessary, proper, or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement, including cooperating fully with the other parties.
ARTICLE 7
CONDITIONS
Section 7.1 Conditions to Obligations of Seller. Except to the extent
otherwise provided in this Agreement, the obligations of Seller to effect this
acquisition are subject to the satisfaction of the following conditions, unless
waived by Seller:
(a) Approvals. All authorizations, consents, orders, or
approvals of, or declarations or filings with, or expirations of waiting periods
imposed by, any Governmental Entity, the failure to obtain which would have a
material adverse effect on Buyer shall have been filed, occurred, or been
obtained.
(b) Representations and Warranties. The representations and
warranties of Buyer set forth in this Agreement shall be true and correct as of
the Effective Date and Seller shall have received a certificate signed on behalf
of Buyer by an executive officer of Buyer to such effect.
(c) Performance of Obligations by Buyer. Buyer shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Closing Date, and Seller shall have
received a certificate signed on behalf of Buyer by an executive officer of
Buyer to such effect.
(d) No Injunctions or Restraints. No temporary restraining
order, preliminary or permanent injunction, or other order issued by any court
of competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the transaction, shall be in effect.
Section 7.2 Conditions to Obligations of Buyer. Except to the extent
otherwise provided in this Agreement, the obligations of Buyer to effect this
acquisition are subject to the satisfaction of the following conditions, unless
waived by Buyer:
(a) Approvals. All authorizations, consents, orders, or
approvals of, or declarations or filings with, or expirations of waiting periods
imposed by, any Governmental Entity, the failure to obtain which would have a
material adverse effect on Seller shall have been filed, occurred, or been
obtained.
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(b) Representations and Warranties. The representations and
warranties of Seller set forth in this Agreement shall be true and correct as of
the Effective Date and Buyer shall have received a certificate signed by Seller
to such effect.
(c) Performance of Obligations by Seller. Seller shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Closing Date, and Buyer shall have
received a certificate signed by Seller to such effect.
(d) No Injunctions or Restraints. No temporary restraining
order, preliminary or permanent injunction, or other order issued by any court
of competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the transaction, shall be in effect.
ARTICLE 8
TERMINATION AND AMENDMENT
Section 8.1 Termination. This Agreement may be terminated at any time
prior to the Closing Date:
(a) by mutual consent of Buyer and Seller; or
(b) by either Buyer or Seller if there shall have been a
material breach of any representation, warranty, covenant or agreement on the
part of the other set forth in this Agreement which breach shall not have been
cured, in the case of a representation or warranty, prior to the Closing or, in
the case of a covenant or agreement, within two business days following receipt
by the breaching party of notice of such breach; or
(c) by either Buyer or Seller if any permanent injunction or
other order of a court or other competent authority preventing the consummation
of the acquisition shall have become final and nonappealable.
Section 8.2 Effects of Termination. In the event of a termination of
this Agreement by either party as provided in Section 8.1, this Agreement shall
forthwith become void and there shall be no liability or obligation on the part
of Buyer or Seller, or any of their respective officers or directors, except to
the extent that such termination results from the willful breach by a party
hereto of any of the representations, warranties, covenants, or agreements set
forth in this Agreement.
Section 8.3 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of Buyer and Seller.
Section 8.4 Extension; Waiver. At any time prior to the Closing Date,
the parties hereto may, to the extent legally allowed, (i) extend the time for
the performance of any of the obligations or other acts of the other parties
hereto, (ii) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto, and (iii) waive
compliance with any of the agreements or conditions contained herein. Any
agreement on the part
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of a party hereto to any such extension or waiver shall be valid only if set
forth in a written instrument signed on behalf of such party.
ARTICLE 9
MISCELLANEOUS
Section 9.1 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (if confirmed), or mailed by registered or certified mail (return
receipt requested) to the parties at the following addresses or at such other
address for a party as shall be specified by like notice):
(a) If to Buyer, to
XxxxxxXxxxxx.xxx, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxx X-XX0
Xxxxx, Xxxxxxx
(b) If to Seller, to
Xxxxxxxx X. Xxxxxx
0000 Xxxx X. Xxxxxxx Xxxxxxxx
Xxxxx Xxx Xxxxxxx, Xxxxxxx
Section 9.2 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
Section 9.3 Entire Agreement; No Third Party Beneficiaries; Rights of
Ownership. This Agreement (including the documents and instruments referred to
herein) constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, and is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
Section 9.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida without regard to
any applicable conflicts of law.
Section 9.5 Publicity. Except as otherwise required by law or the rules
of the SEC, neither Seller nor Buyer shall issue or cause the publication of any
press release or other public announcement with respect to the transactions
contemplated by this Agreement without the consent of the other party, which
consent shall not be unreasonably withheld. Notwithstanding the foregoing, Buyer
may respond to routine inquiries from securities analysts in connection with the
transactions contemplated hereby.
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Section 9.7 Assignment. Neither this Agreement nor any of the rights,
interests, or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of, and be enforceable by the parties
and their respective successors and assigns.
Section 9.8 Joint Efforts. This Agreement is the result of the joint
efforts and negotiations of the parties hereto, with each party being
represented, or having the opportunity to be represented, by legal counsel of
its own choice, and no singular party is the author or drafter of the provisions
hereof. Each of the parties assumes joint responsibility for the form and
composition of each-and all of the contents of this Agreement and each party
agrees that this Agreement shall be interpreted as though each of the parties
participated equally in the composition of this Agreement and each and every
provision and part hereof. The parties agree that the rule of judicial
interpretation to the effect that any ambiguity or uncertainty contained in an
agreement is to be construed against the party that drafted the agreement shall
not be applied in the event of any disagreement or dispute arising out of this
Agreement.
IN WITNESS WHEREOF, the parties have signed or caused this Agreement to
be signed by their respective officers hereunto duly authorized as of the date
first written above.
WITNESSES: SELLER:
------------------------------------ -------------------------------------
Xxxxxxxx X. Xxxxxx
------------------------------------
as to Seller
BUYER
------------------------------------ XXXXXXXXXXXX.XXX, INC., a Florida
corporation
------------------------------------ By:
as to Buyer Title:
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SCHEDULE 1.2 (A)
INTELLECTUAL PROPERTY
VIP
A fully integrated solution that allows Internet Telephony Service Providers,
Carriers, and Private corporations to inexpensively route Voice communications
over the Internet. Golden Access's ViP Gateway provides all of the elements -
IP Gateway, Gatekeeper, Global Network and Billing on one easy to configure
platform.
IN & OUT
The In&Out(TM) service lets businesses track the job activities of their
off-site employees or subcontractors in real-time. With specialized
communications technology, the location and job status of field workers can be
monitored with up the minute information using only regular telephone service
and the Internet. The enables businesses to accurately xxxx customers for
services provided, without the need to invest in costly computer systems.
I'M AVAILABLE
This is the reverse of In&Out. Individuals who perform services can use the
system to indicate that they are available by clocking in to I'm available.
Users view the Website to find persons who are to perform jobs or services for
them. Services can be grouped by type and geographic locations. Graphical maps
can also be incorporated so that the person seeking a service can find the
available person closest to them.
AUDIO BROADCAST
This product provides radio stations anywhere in the world with the capability
to broadcast their content over the Internet. By the use of our server located
in the U.S., and the ability to capture real-time or taped audio broadcasts, we
can create a global presence for any radio station.
VIDEO BROADCAST
Through the use of sophisticated technology and Internet capabilities, any type
of programming can be captured either live, via satellite or on submitted
videotape and held on our RealPlayer Server for customers to view at any time.
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VOICE MAIL
Allows a subscriber to send and retrieve voice mail messages from anywhere in
the world via the Internet. This provides an inexpensive way staying in touch
with business, family or friends. The subscriber would purchase a prepaid voice
message calling car for $19.95 a month, which allows the user to have a voice
mail account with Golden Access. The user can leave unlimited voice mail
messages of up to 5 minutes each.
FOLLOW ME
Offers the same functionality as the Voice Mail plus the capability to have
calls forwarded to you anywhere in the world, thus providing the subscriber
with a greater degree of privacy. With these forwarded calls, the subscriber
has the option of receiving the call or having it transferred to your mailbox.
IP TELEPHONY GATEWAY & GATEKEEPER
The Gateway is connected to the Internet and to the regular local telephone
lines. Gateways are placed in numerous cities and countries. A person who wants
to make an inexpensive long distance call dials the local gateway phone number.
The gateway then routes the call over the internet to the gateway in the local
calling areas of the destination. The destination gateway the places a local
call to the destination number and the connection between the caller and
recipient is established. Since the local calls and the Internet route have no
charge, the calls can be priced very inexpensively.
VIDEO CONFERENCING
Allows the subscriber to conduct face to face meetings over the internet via
their multimedia PC.
WEBSURVEY
A security system using webcams and the Internet to transmit images to a
central monitoring location. Multiple locations can be simultaneously monitored
from anywhere in the world.
14
SCHEDULE 1.2(b)
Hard Assets
15
SCHEDULE 1.2(c)
Contracts
16
SCHEDULE 1.2(d)
Trademarks and Patents
17
SCHEDULE 1.2(e)
Lease
18
SCHEDULE 3.2
Seller Consents and Approvals
None.
19
SCHEDULE 3.6
Litigation
None.
20
SCHEDULE 4.3
Buyer Consents and Approvals
None.
21
SCHEDULE 4.4
Governmental Inquiry
None.
22
XXXX OF SALE
This XXXX OF SALE is given by XXXXXXXX X. XXXXXX ("Seller"), to
XXXXXXXXXXXX.XXX, INC., a Florida corporation ("Buyer").
WHEREAS, Seller and Buyer are parties to a certain Agreement For Sale
and Purchase of Assets dated July 30, 1999 (the "Agreement"), providing for the
sale, assignment, transfer, conveyance and delivery by Seller to Buyer of all of
the Acquired Assets (as defined in the Agreement).
NOW, THEREFORE, in consideration of the issuance by Buyer to Seller of
the Shares (as defined in the Agreement) and in further consideration of the
premises, terms and conditions contained in the Agreement, the receipt and
sufficiency of such consideration being hereby acknowledged, Seller does hereby
sell, assign, transfer and deliver to Buyer, as of the date set forth below, on
an "as is" and "where is" basis, all of Seller's right, title and interest in
and to all of the Acquired Assets. All of Seller's representations, warranties
and agreements and all of the limitations in the Agreement relating to the
Acquired Assets are incorporated herein by reference.
EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND
WARRANTIES WHATSOEVER RELATING TO THE ASSETS, WHETHER WRITTEN OR ORAL, EXPRESS
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR MERCHANTABILITY OR OF
FITNESS FOR A PARTICULAR PURPOSE.
IN WITNESS WHEREOF, the undersigned has caused this Xxxx of Sale to be
duly executed this 30TH day of July, 1999.
By:
---------------------------
Xxxxxxxx X. Xxxxxx
