EXHIBIT 10.25
TECHNOLOGY RESCISSION AND STOCK PURCHASE AND SALE AGREEMENT
THIS TECHNOLOGY RESCISSION AND STOCK PURCHASE AND SALE AGREEMENT (the
"Agreement") is made and entered into effective as of the 28th day of
December, 2000, by and between Mariah Communications, Inc. formerly known as
MC32, Inc., a Colorado corporation ("Mariah"), 0000 Xxxx Xxxxxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000, and 1st Net Technologies, Inc., a Colorado
corporation ("1st Net"), 00000 Xxxx Xxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000.
RECITALS:
WHEREAS, 1st Net sold certain telecommunications technology, including
certain Internet Protocol ("IP") telephony technology and the low level radio
frequency wireless technology known as Wisper(tm) collectively, the
"Technology"), to Mariah in consideration for Mariah's issuance of 4,000,000
newly-issued restricted shares of its common stock, $.001 par value per share
(the "Mariah Common Shares"), and payment of the sum of $150,000 in cash (the
"Technology Cash Consideration") to 1st Net, pursuant to the terms and
conditions of that certain Technology Purchase and Sale Agreement (the
"Technology Agreement") dated as of August 15, 1998, between the parties.
WHEREAS, the parties desire to rescind and cancel the Technology
Agreement, excepting the re-payment by 1st Net of the Technology Cash
Consideration to Mariah, thus providing for Mariah' s return of the Technology
to 1st Net and 1st Net's return of said 4,000,000 Mariah Common Shares to
Mariah.
WHEREAS, 1st Net desires to issue and sell 493,600 newly-issued,
restricted shares of its common stock, no par value per share (the "1st Net
Common Shares"), to Mariah in consideration for Mariah's forgiveness of 1st
Net's re-payment to Mariah of the Technology Cash Consideration and, in
addition thereto, Mariah' s forgiveness of 1st Net's re-payment to Mariah of
the $90,000 unpaid principal balance of Mariah's $100,000 loan to 1st Net,
together with all unpaid, accrued interest (the "Loan"), together with
Mariah's cancellation of the Promissory Note dated September 20, 1999 (the
"Note"}, due September 19,2000, in the principal amount of $100,000, bearing
interest at the rate of eight per cent per annum, payable by 1st Net, as maker
thereof, to Mariah, holder thereof, evidencing the Loan.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
promises, covenants, agreements representations and warranties set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Rescission and Cancellation of Technology Agreement. Subject to
the terms and conditions set forth in this Agreement, the parties hereto
hereby agree to rescind and cancel the Technology Agreement, excepting 1st
Net's re-payment of the Technology Cash Consideration to Mariah and, as a
result of said rescission and cancellation, Mariah hereby agrees to return and
deliver the Technology to 1st Net and 1st Net hereby agrees to return and
deliver to Mariah the stock certificate(s) evidencing 4,000,000 Mariah Common
Shares owned of record and beneficially by 1st Net. The stock certificate(s)
evidencing said 4,000,000 Mariah Common Shares owned of record and
beneficially by 1st Net that are being returned shall be duly executed,
endorsed and/or authenticated for transfer to Mariah. It is the intention of
the parties hereto that, from and after the date of this Agreement, 1st Net
and Mariah shall have good, marketable and indefeasible title to the
Technology and the 4,000,000 Mariah Common Shares, respectively, free and
clear of all security interests, liens, pledges, restrictions, charges and
encumbrances whatsoever.
2. Purchase and Sale of 1st Net Common Shares. Subject to the terms
and conditions set forth in this Agreement, 1st Net hereby agrees to issue,
sell and deliver 493,600 newly-issued, restricted 1st Net Common Shares to
Mariah in consideration for Mariah's forgiveness of 1st Net's re-payment to
Mariah of the Technology Cash Consideration and, in addition thereto, Mariah's
forgiveness of 1st Net's re-payment to Mariah of the $90,000 unpaid principal
balance of the Loan, together with all unpaid, accrued interest, and the
related cancellation by Mariah of the Note evidencing the Loan.
3. Relationship of the Parties. Neither party is continuing or
assuming the business of the other party or assuming any liability or
liabilities of the other party arising from or in connection with its
business, nor commencing a merger or other consolidation with said other
party. This Agreement does not and shall not be deemed to create a
partnership, joint venture or other agency relationship between the parties,
or result in a merger, de facto merger or any other type of combination of
either party with or into the other party.
4. No Assumption of Liabilities. Neither party shall assume any
debts, liabilities or obligations of the other party arising with respect to
periods prior or subsequent to the date of this Agreement. Anything herein to
the contrary notwithstanding, except for the Technology Cash Consideration and
the Loan from which 1st Net shall be relieved of re-payment as provided in
Section 2 above, each party hereby agrees to retain and discharge, and to
indemnify and hold the other party harmless from and against, any and all
debts, liabilities and obligations of such party.
5. Mariah's Representations. Mariah hereby represents, warrants,
covenants and agrees that:
A. Mariah is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado and is duly qualified to
transact business as a corporation in the State of Colorado. Mariah has all
requisite corporate power and authority to own and operate its properties and
to carry on its business as now and where being conducted. Mariah is
qualified to transact business as a foreign entity in all states in which the
nature of its business or the character or ownership of its properties make
such licensing registration or qualification necessary.
B. The execution and delivery of this Agreement by Mariah have been
duly and validly authorized and approved by all necessary action of Mariah.
Mariah has full corporate power and authority and the legal right to enter
into this Agreement and to consummate the transactions contemplated hereby.
This Agreement is a valid and binding obligation of Mariah, enforceable
against Mariah in accordance with its terms.
C. Mariah has full legal power, right and authority to assign,
transfer and convey legal and beneficial title to the Technology to 1st Net
and Mariah's assignment, transfer and conveyance of the Technology to 1st Net
shall transfer good, marketable and indefeasible title thereto, free and clear
of all security interests, liens, pledges, charges and encumbrances. Mariah
has full legal power, right and authority to forgive 1st Net's re-payment of
the Technology Cash Consideration and the $90,000 unpaid principal balance of
the Loan, together with all unpaid, accrued interest, to Mariah, and to cancel
the Note.
D. Mariah has all licenses, permits, operating authorizations and
other agreements and approvals from governmental authorities necessary to own
and operate Mariah's business lawfully and in the manner in which it is now
operated by Mariah. Mariah has not received notice of any violation of or
default under, and is in substantial compliance in all material respects.
with, each such license, permit, operating authorization or approval from
governmental authorities.
E. Mariah's business has been operated in substantial compliance with
all applicable local, state and federal laws.
F. The execution, delivery and performance of this Agreement by
Mariah will not violate any provisions of law and will not, with or without
the giving of notice or the passage of time, conflict with or result in any
breach of any of the terms or conditions of, or constitute a default under,
any mortgage, agreement or other instrument to which Mariah is a party or by
which Mariah or the Technology is bound. The execution, delivery and
performance of this Agreement will not result in the creation of any security
interest, lien, pledge, charge or encumbrance upon the Technology or Mariah.
G. There is no outstanding judgment against Mariah and there is no
litigation, arbitration, proceeding or investigation pending or, to Mariah's
knowledge, threatened against Mariah or relating to or affecting Mariah's
business operations or affairs. Mariah or the transactions contemplated by
this Agreement, or that questions the validity of any action taken or to be
taken pursuant to or in connection with the provisions of this Agreement.
Mariah warrants and represents that there is no existing litigation matter or
arbitration claim or demand for money damages. There are no proceedings
pending to which Mariah is a party or, to Mariah's knowledge, are threatened,
nor any demands by any governmental agency or other party to terminate, modify
or materially and adversely change the terms and conditions of Mariah's rights
with respect to the Technology.
H. Mariah is not a party to any employment agreement, collective
bargaining agreement, pension, profit sharing, retirement, referred
compensation or bonus or stock purchase plan relating to Mariah's employees
for which 1st Net shall have any obligation or liability. There are no
disputes or controversies pending or, to Mariah's knowledge, threatened with
or by any employees of Mariah that would materially and adversely affect the
Technology. Mariah does not have in effect, or have any obligation to
establish or contribute to, any plan, fund or program covered by the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), for which 1st
Net shall have any obligation or liability.
I. Mariah has paid all taxes, assessments, governmental charges and
penalties due and payable by it, and there are no suits, actions, claims,
investigations, inquiries or proceedings pending or, to Mariah's knowledge,
threatened against Mariah in respect of any taxes, assessments, governmental
charges or penalties.
J. Mariah has good and marketable title to all of its properties and
assets, real and personal, except as since sold or otherwise disposed of in
the ordinary course of business, and Mariah's properties and assets are
subject to no mortgage, pledge, lien or encumbrance with respect to which a
default exists as of the date hereof.
K. No representation or warranty by Mariah, or any statement or
certificate furnished by Mariah to 1st Net pursuant hereto or in connection
with the transactions contemplated hereby, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements contained therein not misleading.
L. Mariah, through its executive officers and directors, has the
knowledge and experience in business and financial matters to meaningfully
evaluate the merits and risks of the purchase and acquisition of 493,600 1st
Net Common Shares in exchange and consideration for Mariah's forgiveness of
1st Net's re-payment to Mariah of the Technology Cash Consideration and, in
addition thereto, Mariah's forgiveness of 1st Net's re-payment to Mariah of
the $90,000 unpaid principal balance of the Loan, together with all unpaid,
accrued interest, and Mariah's cancellation of the Note evidencing the Loan,
as contemplated hereby. Mariah shall conduct an independent review of the
business, assets, properties, books and records of 1st Net for the purpose of
satisfying itself as to the truth, accuracy and completeness of the
representations and warranties made by 1st Net. Mariah understands and
acknowledges that the 493,600 1st Net Common Shares to be issued, sold and
delivered to it in the transactions contemplated hereby will be issued, sold
and delivered by 1st Net without registration or qualification or other
filings being made under the U.S. Securities Act of 1933, as amended, or any
applicable state securities or "Blue Sky" law, in reliance upon specific
exemptions therefrom, and in furtherance thereof Mariah represents that the
1st Net Common Shares will be taken and received by it for its own account for
investment, with no present intention of a distribution or disposition thereof
to others. Mariah further acknowledges and agrees that the certificate(s)
representing the 1st Net Common Shares issued and sold to it shall be subject
to a stop-transfer order and shall bear a restrictive legend, in substantially
the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), ARE
"RESTRICTED SECURITIES," AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR IN A
TRANSACTI0N WHICH, IN THE OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, IS
NOT REQUIRED TO BE REGISTERED UNDER THE ACT."
Mariah acknowledges that 1st Net is relying upon the above
representations, warranties and agreements in entering into this Agreement.
6. 1st Net's Representations. 1st Net hereby represents, warrants,
covenants and agrees that:
A. 1st Net is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado and is duly qualified to
transact business as a. corporation in the State of Colorado. 1st Net has all
requisite corporate power and authority to own and operate its properties and
to carry on its business as now and where being conducted. 1st Net is
qualified to transact business as a foreign entity in all states in which the
nature of its business or the character or ownership of its properties make
such licensing, registration or qualification necessary.
B. The execution and delivery of this Agreement by 1st Net have been
duly and validly authorized and approved by all necessary action of 1st Net.
1st Net has full corporate power and authority and the legal right to enter
into this Agreement and to consummate the transactions contemplated herein.
This Agreement is a valid and binding obligation of 1st Net, enforceable
against 1st Net in accordance with its terms.
C. 1st Net has all licenses, permits, operating authorizations and
other agreements and approvals from governmental authorities necessary to own
and operate 1st Net's business lawfully and in the manner in which it is now
operated by 1st Net. 1st Net has not received notice of any violation of or
default under, and is in substantial compliance in all material respects with,
each such license, permit, operating authorization or approval from
governmental authorities.
D. 1st Net's business has been operated in substantial compliance
with all applicable local, state and federal laws.
E. The execution, delivery and performance of this Agreement by 1st
Net will not violate any provisions of law and will not, with or without the
giving of notice or the passage of time, conflict with or result in any breach
of any of the terms or conditions of or constitute a default under, any
mortgage, agreement or other instrument to which 1st Net is a party or by
which 1st Net is bound. The execution, delivery and performance of this
Agreement will not result in the creation of any security interest, lien,
pledge, charge or encumbrance upon 1st Net.
F. There is no outstanding judgment against 1st Net and there is no
litigation, arbitration, proceeding or investigation pending or, to 1st Net's
knowledge, threatened against 1st Net or relating to or affecting the
Technology, 1st Net's business operations or affairs, 1st Net or the
transactions contemplated by this Agreement, or that questions the validity of
any action taken or to be taken pursuant to or in connection with the
provisions of this Agreement. 1st Net warrants and represents that there is no
existing litigation matter or arbitration claim or demand for money damages.
G. 1st Net is not in default under any employment agreement,
collective bargaining agreement, pension, profit sharing, retirement, deferred
compensation or bonus or stock purchase plan relating to 1st Net's employees.
1st Net does not have in effect, or have any obligation to establish or
contribute to, any plan, fund or program covered by ERISA, for which Mariah
shall have any obligation or liability. There are no disputes or controversies
pending or, to 1st Net's knowledge, threatened with or by any employees of 1st
Net that would materially and adversely affect 1st Net's business.
H. 1st Net has paid all taxes, assessments, governmental charges and
penalties due and payable by it, and there are no suits, actions, claims,
investigations, inquiries or proceedings pending or, to 1st Net's knowledge,
threatened against 1st Net in respect of any taxes, assessments, governmental
charges or penalties.
I. 1st Net has good and marketable title to all of its properties and
assets, real and personal, except as since sold or otherwise disposed of in
the ordinary course of business, and 1st Net's properties and assets are
subject to no mortgage, pledge, lien or encumbrance with respect to which a
default exists as of the date hereof. 1st Net will have continuing business
after this transaction, and shall make adequate provision for payment of any
liabilities of 1st Net arising prior to or after the date of this Agreement.
J. No representation or warranty by 1st Net, or any statement or
certificate furnished by 1st Net to Mariah pursuant hereto or in connection
with the transactions contemplated hereby, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statement contained therein not misleading.
1st Net acknowledges that Mariah is relying upon the above
representations, warranties and agreements in entering into this Agreement.
7. Brokerage. Each party hereto represents and warrants to the other
party that it has not incurred any obligations or liabilities. contingent or
otherwise, for brokerage or finder's fees or agent's commissions or other like
payment in connection with this Agreement or the transactions contemplated
hereby for which either party will have any liability. Each party hereto
agrees to indemnify and hold the other party hereto harmless against and in
respect of any breach by it of the provisions of this Section 7.
8. Indemnity.
A. Each party (defined in this Section 8 as the "Party") agrees to
indemnify and to hold the other party harmless from and against and in respect
of any losses incurred by the party from:
1. All actual or purported debts, liabilities and obligations
of the Party and all claims and demands made in respect thereof whether or not
known or asserted at or prior to the date of this Agreement relating to, or
arising from, ownership, operation or control of the Technology at or prior to
the date of this Agreement, the conduct of business or any other state of
facts that existed at or prior to the date of this Agreement;
2. Any damage or deficiency resulting from any
misrepresentations, breach of warranty or non-fulfillment of any agreement or
covenant on the part of the Party under this Agreement, or from any
misrepresentation in or omission from any exhibit or other instrument
furnished or to be furnished by the Party hereunder; and
3. Any claims made by creditors or customers of the Party
relating to the ownership or operation of the Party's business.
B. Notwithstanding the indemnities provided in Section 8, subsection
A, the Party shall be responsible for and pay all costs and expenses incurred
by the other party attendant to efforts to dismiss or remove it from any
action, claim or controversy prior to any trial or hearing on the matter,
whether by motion to dismiss, motion for summary judgment or other similar
motion, on the basis that the other party is not a successor in liability to
the claims against or debts of the Party. The Party's indemnity as provided
in Section 8, subsection A, shall be for any costs or expenses beyond such
motion to remove the other party from such action and for the amount of any
judgment or award rendered against the other party. Such indemnity shall be
paid directly by the Party.
C. In the event that other party does not succeed in being dismissed
from an action as provided in Section 8, subsection B, said other party sha1l
appoint a two person litigation committee to oversee the conduct of any
hearing or trial on the matter. Such committee shall consist of two members of
said other party's Board of Directors. Decisions concerning any such action,
including settlement of the claim or controversy, shall be made by the
litigation committee. If no decision can be reached, the members will agree to
designate a third party to make such decision.
D. The Party agrees to indemnify and to hold the other party harmless
from and against and in respect of any losses incurred by said other party
from any damage or deficiency resulting from any misrepresentation, breach of
warranty or non-fulfillment of any agreement or covenant on the part of the
Party under this Agreement, or from any misrepresentation in or omission from
any exhibit or other instrument furnished or to be furnished to the other
party hereunder.
9. Miscellaneous. From time-to-time after the date of this
Agreement, either party shall, if requested by the other party, make, execute
and deliver to said other party such additional bills of sale, assignment and
other instruments of transfer as may be necessary or proper to transfer to 1st
Net all of Mariah's right, title and interest in and to the Technology and to
transfer to Mariah all of 1st Net's right, title and interest in and to the
4,000,000 Mariah Common Shares, as covered by this Agreement.
A. All notices and other communications required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly
given if delivered or mailed, registered or certified mail, return receipt
requested, postage prepaid. to the following addresses:
1. If to Mariah, to:
Mariah Communications, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx, Secretary/treasurer
2. If to 1st Net, to:
1st Net Technology, Inc.
00000 Xxxx Xxxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxx. Jr., Chairman of the
Board of Directors/Chief Executive Officer
Notices delivered personally shall be effective upon delivery. Notices
transmitted by facsimile shall be effective when received. Notices delivered
by registered or certified mail shall be effective on the date set forth on
the receipt of registered or certified mail, or seventy-two hours after
mailing, whichever is earlier.
B. All agreements made and entered into in connection with this
transaction shall be binding upon and inure to the benefit of the parties
hereto, their successors and assigns.
C. Mariah and 1st Net shall each bear its own expenses and costs,
including the fees of any attorney retained by it, incurred in connection with
the preparation of this Agreement and the consummation of the transactions
hereby.
D. Any sales, use transfer or documentary taxes imposed in connection
with the return and delivery of the Technology and the Mariah Common Shares
and rights acquired by 1st Net and Mariah, respectively, under this Agreement
shall be paid by 1st Net and Mariah, respectively.
E. This Agreement contains the entire agreement between the parties
and supersedes all prior agreements, understandings and writings between the
parties with respect to the subject matter hereof and thereof. Each party
hereto acknowledges that no representations, inducements, promises or
agreements, verbal or otherwise, have been made by either party, or anyone
acting with authority on behalf of either party, which are not embodied herein
or in an exhibit hereto, and that no other agreement, statement or promise may
be relied upon or shall be valid or binding. Neither this Agreement nor any
term hereof may be changed, waived, discharged or terminated verbally. This
Agreement may be amended or any term hereof may be changed, waived, discharged
or terminated by an agreement in writing signed by both parties hereto.
F. This Agreement may be executed in one of more counterparts, each
of which when so executed shall be an original, but both of which together
shall constitute one agreement.
G. If any provision of this Agreement or the application thereof to
any person of circumstance shall be invalid or unenforceable to any extent,
the remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected thereby and shall be enforced
to the greatest extent pem1itted by law.
H. This Agreement shall be construed and enforceable in accordance
with, and be governed by, the internal laws of the State of Colorado without
regard to the principles of conflict of law.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above, written.
MARIAH:
MARIAH COMMUNICATIONS, INC.
By: ______________________________________
Xxxxxxx X. Xxxxxx, Secretary/Treasurer
1st NET:
1st NET TECHNOLOGIES, INC.
By: ______________________________________
Xxxxx X. Xxxxxx, Xx., Chairman of the
Board of Directors/Chief Executive Officer
