AGREEMENT FOR THE
PURCHASE AND SALE
OF ASSETS
BY AND BETWEEN
▇-▇▇▇▇▇▇▇▇.▇▇▇, INC.
(AS "BUYER")
AND
AFENEH, INC.
(AS "SELLER)
AGREEMENT FOR THE PURCHASE
AND SALE OF ASSETS
THIS AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS "Agreement),
effective as of March 22, 2000 by and between AFENEH, Inc., a Texas
corporation, (the "Seller") and ▇-▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Texas corporation a
subsidiary of Lakota Technologies, Inc., a Texas corporation (collectively
the "Buyer"), with respect to the following:
RECITALS
A Seller is the owner of business known as ▇▇▇▇▇▇, Inc.,
operated and located at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ (referred to hereafter as the "business").
1. Buyer desires to purchase from Seller ONLY THAT certain asset
described as Contract entitled Resale Agreement Between
Southwestern ▇▇▇▇ Telephone Company and ▇▇▇▇▇▇, Inc.
(hereinafter referred to as the "Contract" or "Assets") a true
and correct copy of which is attached hereto as Exhibit "A"
hereof; and Seller desires to sell the Contract to Buyer on
the terms and subject to the conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants, agreements and
representations contained in this Agreement, the parties hereto agree as
follows:
1. ASSETS TO BE TRANSFERRED TO BUYER FROM SELLER
Effective as of the Closing Date, Seller shall sell, assign
and transfer to Buyer all of Seller's right, title and
interest in and to the Contract set forth on Exhibit "A".
Page 1 of 16
1. Accounts Receivable. Both Buyer and Seller hereby acknowledge
that the accounts receivable of the Business as of the Closing
Date will not be transferred to Buyer and shall remain the
exclusive property of the Seller. Buyer hereby agrees that in
the event any payments are received by Buyer which are to be
credited against any accounts receivable, the Buyer will,
within five (5) business days of receipt of any such funds,
forward the entire amount paid and received to Seller.
2. PRICE AND TERMS
2.1 ASSET PURCHASE PRICE. Buyer shall deliver to Seller, on
or before the Closing Date, as and for the purchase price
of the Assets the following items of Compensation:
2.1a CASH: A total one-time payment of Two Hundred
Seventeen Thousand Dollars (US $217,000); and
2.1b STOCK: A total one-time distribution of One
Hundred Thousand Shares (100,000) of Lakota
Technologies, Inc. Seller shall deliver the
Share Certificate to Buyer within sixty (60)
days from Closing Date.
2.2 SECURITY RESTRICTIONS. On or before the Closing Date,
Buyer shall deliver to Seller, or cause to be delivered
to Seller a stock certificate or certificates representing
the shares specified under 2.1.b. above, in a form and
substance satisfactory to Seller, and which shall
effectively vest in Seller, as of the Closing Date, all
right, title and interest in and to the shares except
as set forth in the legend on the certificate(s), which
legend shall provide as follows:
("THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE,
AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF FOR A PERIOD OF ONE
YEAR FROM THE ISSUANCE THEREOF, EXCEPT (I) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY
APPLICABLE STATE LAW, OR (II) UPON THE EXPRESS WRITTEN
AGREEMENT OF THE COMPANY AND COMPLIANCE, TO THE EXTENT
APPLICABLE, WITH RULE 144 UNDER THE ACT (OR ANY SIMILAR
RULE UNDER THE ACT RELATING TO THE DISPOSITION OF
SECURITIES)."
2.3 ASSUMPTION OF SPECIFIC LIABILITIES. Effective as of the
Closing Date, Buyer shall assume any and all of those
liabilities and obligations of Seller contained in
and/or associated with the Contract (the "Assumed
Liabilities"). It
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is specifically understood and agreed, however, that any
payments due by Seller relating to the Assumed
Liabilities prior to the Closing Date which have not
been paid, shall be paid by Seller, unless otherwise
agreed on writing by Buyer subsequent to the Closing
Date. Buyer hereby agrees to assume the obligations of
Seller for the Assumed Liabilities as of, and after the
Closing Date. Nothing contained in this Agreement or any
of the documents of certificates delivered pursuant
hereto or contemplated hereby shall ever be deemed to
constitute an assumption by the Buyer or an agreement by
the buyer to assume any liability of Seller other than
the Assumed Liabilities specified on Exhibit "B", and as
provided for under this Section 2.4.
2.4 PRORATION OF TAXES. All property taxes and special
assessments payable but not yet due with respect to any
of the Assets listed on Exhibit "A", shall be prorated
between Buyer and Seller on the basis of actual days
elapsed between the commencement of the current fiscal
year and the Closing Date, based upon a 365-day year,
with Buyer assuming the obligations effective as of and
on the Closing Date, and Seller assuming the obligations
from the commencement of the fiscal year to the day
before the Closing Date. In connection with such
proration of taxes, in the event that the actual tax
figures for the year of the Closing are not available at
the Closing Date, an estimated, provisional proration of
taxes shall be made using tax figures from the preceding
year. When actual tax figures for the year of Closing
become available, a corrected and definitive proration
of taxes shall be promptly made. In the event that taxes
for the year of Closing exceed the amount estimated in
each provisional proration, Seller shall pay Buyer its
pro rata share of the amount by which the actual taxes
exceeded the estimated taxes. Similarly, in the event
that taxes for the year of Closing are less than the
amount estimated in such provisional prorations, Buyer
shall pay Seller its pro rata share of the amount by
which the estimated taxes exceed the actual taxes.
2.5 TRANSACTION TAXES AND OTHER CLOSING COSTS. Any sales,
use or similar transfer taxes, and any transfer,
recording or similar fees and charges arising out of or
in connection with this Agreement and the transfer of
Assets from Seller to
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Buyer, shall be paid in full by the Buyer.
2.6 COMMISSIONS AND BROKERAGE FEES. Each of the parties hereto is
responsible for, and shall indemnify the other against, any
claim by third party to a fee, commission, bonus, or other
remuneration arising by reason of any services alleged to have
been rendered to or at the instance of said party to this
Agreement, with respect to the negotiation, execution or
implementation of this Agreement, or any of the transactions
contemplated hereby.
2.7 LIENS OR RESTRICTIONS ON THE ASSETS. Seller shall deliver a
fully executed Assignment of Contract and Contract Rights to
Buyer at time of Closing.
3. REPRESENTATION AND WARRANTIES BY SELLER. Seller represents and warrants
to Buyer as of the date hereof and as of the Closing Date the following:
3.1 FINANCIAL STATEMENTS. Seller has delivered to Buyer and Buyer
acknowledges receipt and/or opportunity to review copies of its
books and records, which correctly and fairly reflect gross
revenues, operating expenses and net profit of the business
attributable to the Contract through the periods shown on or
reported by such records. All such books and records fairly
represent the financial condition of the Seller's Assets and,
although unaudited, have been prepared and maintained in a manner
consistent with prior periods and correctly and fairly reflect the
financial status of the assets, including any applicable changes in
liabilities and capital.
3.2 TITLE TO ASSETS AND INDEMNITY. Seller has not made any prior
assignment of any interest in and to the Contract to any other
entity or party and has full authority to make the assignment of
the Contract as set forth herein. Additionally, Seller has not
pledged or hypothecated any interest in the Contract and Seller is
not, to its knowledge delinquent on any obligation under the
Contract as of or prior to Closing Date.
EXCEPT AS SET FORTH IN THIS SECTION 3, THERE ARE NO UNDERSTANDINGS,
REPRESENTATIONS, CONDITIONS OR WARRANTIES, EXPRESS OR IMPLIED,
BETWEEN THE PARTIES WITH RESPECT TO ANY NON-CONFORMANCE THE ASSETS
WITH REGARD TO ANY SPECIFICATION OR
Page 4 of 16
EXPECTATION OF BUYER, OR REGARDING ANY DEFECT IN THE ASSETS OR ANY
OTHER THING DELIVERED UNDER THIS AGREEMENT. BUYER HEREBY WAIVES,
RELEASES AND RENOUNCES ALL OTHER REMEDIES, WARRANTIES, GUARANTEES,
OBLIGATIONS, REPRESENTATIONS OR LIABILITIES, EXPRESS OR IMPLIED, OF
SELLER, ITS OFFICERS, DIRECTORS, PRINCIPALS AND ITS AFFILIATES WITH
RESPECT TO ANY KNOWN OR SUBSEQUENTLY DISCOVERED DEFECTS IN EACH OF
THE ASSETS BEING TRANSFERRED HEREUNDER, OR ANY PART THEREOF,
INCLUDING ANY PRODUCT, DOCUMENT OR SERVICE DELIVERED OR PROVIDED
UNDER THIS AGREEMENT, ARISING IN FACT, IN LAW, IN CONTRACT, IN
TORT, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION: (a) ANY IMPLIED
WARRANTY OR CONDITION OF MERCHANTABILITY OF FITNESS; (b) ANY
IMPLIED WARRANTY OR CONDITION ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE; (c) ANY OBLIGATION, LIABILITY,
RIGHT, CLAIM OR REMEDY IN TORT (INCLUDING NEGLIGENCE OR STRICT
PRODUCT LIABILITY) OR OTHERWISE OF SELLER, ITS OFFICERS, DIRECTORS,
PRINCIPALS OR ITS AFFILIATES, BY REASON OF THE DESIGN, MANUFACTURE,
SALE, REPAIR, LEASE OR USE OF THE ASSETS OR ANY PRODUCT AND
SERVICES DELIVERED HEREUNDER; AND (d) ANY OBLIGATION, LIABILITY,
RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY ASSET OR PART
THEREOF.
BUYER HEREBY RELEASES AND AGREES TO DEFEND, INDEMNIFY AND HOLD
HARMLESS SELLER, ITS SUBSIDIARIES, AFFILIATES, SUBCONTRACTORS AND
LESSORS, AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS AND
AGENTS, AND EACH OF THEM, FROM AND AGAINST ALL LIABILITIES, CLAIMS,
DAMAGES, LOSSES, COSTS, AND EXPENSES FOR LOSS OF OR DAMAGE TO
PROPERTY INCLUDING ANY ASSET DESCRIBED HEREIN, AND LOSS OF USE
THEREOF, OR INJURIES TO OR DEATH OF ANY AND ALL PERSONS (INCLUDING
BUYERS, DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES BUT EXCLUDING
SELLER'S DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES), ARISING
DIRECTLY OR INDIRECTLY OUT OF OR IN CONNECTION WITH ANY SERVICE
PROVIDED UNDER
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THIS AGREEMENT, SUCH INJURY OR LOSS AROSE IN CONTRACT (INCLUDING
WITHOUT LIMITATION, WARRANTY) IN TORT (INCLUDING NEGLIGENCE OR
STRICT PRODUCT LIABILITY) OR OTHERWISE, EXCEPT TO THE EXTENT CAUSED
BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF SELLER, ITS
SUBSIDIARIES, AFFILIATES, SUBCONTRACTORS AND LESSOR, OR THE
EMPLOYEES, DIRECTORS, OFFICERS AND AGENTS OF ANY OF THEM.
SELLER HEREBY RELEASES AND AGREES TO DEFEND, INDEMNIFY AND HOLD
HARMLESS BUYER, ITS SUBSIDIARIES, AFFILIATES, SUBCONTRACTORS AND
LESSORS, AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS AND
AGENTS, AND EACH OF THEM, FROM AND AGAINST ALL LIABILITIES,
CLAIMS, DAMAGES, LOSSES, COSTS AND EXPENSES FOR LOSS OF OR DAMAGE
TO PROPERTY INCLUDING ANY ASSET DESCRIBED HEREIN, AND LOSS OF USE
THEREOF, OR INJURIES TO OR DEATH OF ANY AND ALL PERSONS (INCLUDING
SELLER'S DIRECTORS, OFFICERS, AGENTS AND EMPLOYES BUT EXCLUDING
BUYER'S DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES), ARISING
DIRECTLY OR INDIRECTLY OUT OF OR IN CONNECTION WITH ANY SERVICE
PROVIDED UNDER THIS AGREEMENT, SUCH INJURY OR LOSS AROSE IN
CONTRACT (INCLUDING WITHOUT LIMITATION, WARRANTY) IN TORT (INCLUDING
NEGLIGENCE OR STRICT PRODUCT LIABILITY) OR OTHERWISE, EXCEPT TO THE
EXTENT CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF
BUYER, ITS SUBSIDIARIES, AFFILIATES, SUBCONTRACTORS AND LESSORS, OR
THE EMPLOYEES, DIRECTORS, OFFICERS AND AGENTS OF ANY OF THEM.
NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUCTED AS, AND
BUYER SPECIFICALLY DOES NOT AGREE TO DEFEND, INDEMNIFY, HOLD
HARMLESS SELLER OR ANY AFFILIATE OR THEIR AGENTS OR EMPLOYEES FROM
ANY CLAIM OF ANY KIND WHATSOEVER CAUSED BY THE WILLFUL MISCONDUCT
OR SOLE NEGLIGENCE OF SELLER OR ITS AFFILIATES OR ANY OF THEIR
AGENTS OR EMPLOYEES.
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(a) ACCOUNTS RECEIVABLE. Seller and Buyer acknowledge that the
primary purpose of this agreement is to effectuate the
transfer assignment of the Contract, but that Buyer does not
desire to acquire and/or service the individual accounts
derived therefrom. To the extent that it is legally
permissible, Buyer desires that Seller service the individual
accounts and retain all funds received pursuant to same for
Seller's account.
3.3 CONTRACTS. Attached thereto as Exhibit "C" is a "Schedule of
Contracts" listing the following contracts, understandings,
commitments and agreements to which Seller is a party or bound
solely with respect to and/or arising from the Contract:
1. All oral or written contracts, understandings or commitments,
whether in the ordinary course of business or not,
involving a present or future obligation to deliver goods
or services of an amount or value in excess of Five Hundred
Dollars ($500.00) whatsoever, pertaining to the Assets
and/or business associated with the Name.
2. All bonus, incentive or deferred compensation, profit
sharing, pension, vacation, group insurance or employee
welfare plans of any nature whatsoever, pertaining to the
Assets and/or the business associated with the Name.
3. All collective bargaining agreements or other contracts or
commitments to or with any labor union, employee
representative or group of employees of any nature
whatsoever, pertaining to the Assets and/or the business
associated with the name.
4. All employment contracts, and all other contracts,
agreements or Commitments (whether written or oral) to or
with individual employees, agents of representatives, for a
period of thirty (30) days, or for a remuneration which
exceeds or will exceed in accordance with present
commitments, one Thousand Dollars ($1,000) per annum,
identifying the
Page 7 of 16
individual and his position provided the document and
individual pertain to the Assets and/or the business
associated with the Name.
5. Any oral or written contract, understanding or commitment
which requires the consent of any party thereto to the
consummation of the transactions contemplated by the
Agreement.
6. All contracts, agreements or commitments which restrict the
ability of Seller to carry on its business anywhere in the
world; and
7. Any other contract or commitment not listed on other
Exhibits or Schedules hereto which is or may be material to
the business or Operation of Seller.
There has not been any default in any obligation to be performed by
Seller under any contract, commitment or agreement listed in
Exhibit "C" which default could adversely affect the property,
operations, business or prospects of Seller, and Seller has not
knowingly waived any right under any such contract, commitment or
agreement so as to adversely affect the property, operations,
business or prospects of Seller. True and complete copies of all
such written contracts and written summaries of all such oral
contracts will be furnished of made available to Buyer at least
seven (7) days before the Closing Date.
3.4 LITIGATION. Except ans set forth on Exhibit "E" attached hereto,
there is, to the best of Seller's knowledge, no actual or
threatened litigation, action, proceeding, claim, complaint,
accusation, or governmental investigation pending or threatened,
nor is there basis for any against of affecting Seller of Seller's
assets. There is no outstanding order, judgement or award by any
court, arbitrator or governmental body against of affecting
Seller's Assets.
3.5 TEXAS STATE LAWS. SELLER REPRESENTS TO THE BUYER THAT THE PURCHASE
AND SALE OF THE CONTRACT IS SUBJECT TO REVIEW AND APPROVAL BY THE
PUBLIC UTILITY COMMISSION AND SOUTHWESTERN ▇▇▇▇ TELEPHONE COMPANY.
SELLER HAS, HOWEVER, COMPLIED WITH ALL LEGAL REQUIREMENTS OF THE
SELLER RELATED TO THE TRANSFER AND SALE OF THE CONTRACT TO THE
BUYER.
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3.6 BOOKS AND RECORDS. Seller maintains its books, records and accounts
related to the Contract (including, but not limited to, those kept
for financial reporting purposes and for tax purposes) in
accordance with good business practice and in sufficient detail to
reflect accurately and fairly the transaction and dispositions of
its assets, liability and equities.
3.7 NO VIOLATION. Except for those consents and agreements set forth on
Exhibit "F" attached hereto which will have to be obtained prior to
Closing, the execution and delivery of this Agreement does not, and
the consummation of the transactions contemplated hereby will not:
1. Violate, conflict with or cause any default under or
acceleration of (or give any party any right to declare any
default or acceleration upon notice or passage of time or
both), in whole or in part, any character, certificate of
incorporation, by-law, mortgage, lien, deed of trust,
indenture, lease, agreement, instrument, order, injunction,
decrees, judgement or any other restrictions of any kind of
character to which Seller is a party or by which it or any
of its properties is bound;
2. Result in the certain of any security interest, lien,
encumbrance, adverse claim, proscription or restriction on
any property or asset (whether real, personal, mixed,
tangible, or intangible) right contract, agreement or
business of Seller; violate any statute or any rule or
regulation of any governmental body; or Permit and
governmental body to impose any restrictions or limitations
of any nature on Seller or its activities.
3.8 CONSENTS. Except as set forth in Exhibit "G" attached hereto, no
consent, approval, authorization or order of or filing with any court,
any governmental body, or any insurer of or other party to agreements,
licenses, leases, sales orders, permits, franchises, rights and other
obligations of Seller is required for the execution and delivery of
this Agreement and the consummation of the transactions contemplated
in this Agreement.
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3.9 DUE AUTHORIZATION AND VALIDITY OF AGREEMENT. Seller has all
requisite power and authority to enter into this Agreement, to
sell and convey the Assets and to carry out the other
provisions and conditions hereof. This Agreement has been duly
authorized, executed and delivered by Seller and constitutes a
valid and legally binding agreement of Seller enforceable in
accordance with its terms.
3.10 FULL DISCLOSURE. No representation or warranty of Seller made
in this Agreement, or any written statement furnished to Buyer
pursuant hereto, or in connection with the transactions
contemplated hereby, heretofore furnished Buyer by Seller,
contains or will contain any untrue statement of a material
fact which affects the Assets of Seller, or Seller's title to
the Assets or omits or will omit to state a material fact
unnecessary to make the statements or facts contained herein
or therein not misleading. Seller has not withheld and will
not withhold from Buyer knowledge of any events, conditions or
facts which may affect the Assets or Seller's title to the
Assets.
4. REPRESENTATIONS AND WARRANTIES BY BUYER. Buyer represents and
warrants to Seller as of the date hereof and as of the Closing Date
as follows:
4.1 ORGANIZATION AND GOOD STANDING. Buyer is duly organized and
existing and in good standing under the laws of the State of
Texas.
4.2 AUTHORITY. The execution of this Agreement by Buyer, its
delivery to Seller and the performance of its terms have been
fully authorized by the Board of Directors of Buyer, and not
further corporate action will be necessary on its part to make
this Agreement valid and binding upon Buyer in accordance with
its terms. Neither the execution or delivery of this Agreement
nor its performance will result in a violation breach of any
term or provision or, nor constitute a default under, its
Articles of Incorporation or By-laws.
4.3 FULL DISCLOSURE. No representation or warranty of Buyer made
in this Agreement, nor any written statement furnished to
Seller pursuant hereto, or in connection with the transactions
contemplated hereby, heretofore furnished to Seller by Buyer,
contains or will contain any untrue statement of a material
fact
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which affects the business or financial condition of Buyer, or
omits or will omit to state a material fact necessary to make
the statements or facts contained herein or therein not
misleading.
5. AGREEMENT BY SELLER.
5.1 NOTICES AND APPROVALS. Seller agrees to provide Buyer with
reasonable assistance to give all notices to third parties and
obtain all consents, approvals, permits and authorizations
which may be necessary or deemed desirable by Buyer in
connection with this Agreement and the consummation of the
transactions contemplated herein, including the releases of
all liens and encumbrances attached to the Assets on the date
hereof and the Closing Date.
5.2 EMPLOYEES. Seller will do nothing to dissuade any of its
employees from becoming employed by Buyer after the Closing;
and Seller will not terminate, lay off or transfer any such
employees without the written consent of Buyer, prior to the
Closing.
5.3 FURTHER INSTRUMENTS. Seller will, at the request of Buyer,
execute and deliver to Buyer all such further instruments,
assignments, assurances and documents as Buyer may reasonably
request in connection with the carrying out of this Agreement.
5.4 CUSTOMERS. Buyer and Seller acknowledge and agree that to the
extent that Seller retains and/or continues to service any
specific customer account derived from and/or associated with
the Contract and in the event that a customer complains after
the sale of the Business regarding the services or work
performed prior to the sale, Buyer shall have the initial
contact with such customer. Buyer agrees that prior to taking
actions (other than are reasonably necessary) to remedy the
customer complaint, Buyer shall consult with Seller regarding
the final plans to obtain the customer's satisfaction.
6. CONDITIONS PRECEDENT TO THE OBLIGATION OF BUYER TO CLOSE.
In addition to all obligations of Buyer contained in this Agreement,
the obligation of Buyer to close shall be subject to the following
conditions precedent:
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6.1 COMPLIANCE WITH OBLIGATIONS. Fulfillment by Seller of its
covenants, obligations and agreements as set forth in this
Agreement.
6.2 CORRECTNESS OF REPRESENTATIONS. The representations of Seller
contained in this Agreement shall be accurate in all material
respects on the date when made and shall also be accurate on
the Closing Date to the same extent as if made on such date.
6.3 CONSENTS. Buyer acknowledges that it must contain consent
from Southwestern ▇▇▇▇ Telephone Company to approve Seller's
assignment of the Contract to Buyer.
6.4 NO INJUNCTION. On the Closing Date, there shall be no
effective injunction, writ, preliminary restraining order or
any order of any nature issued by a court of competent
jurisdiction, directing that the transactions provided for
herein or any of them not be consummated as herein provided.
6.5 CONSENTS OF GOVERNMENTAL AGENCIES. Buyer acknowledges that it
must obtain consent from one or more governmental,
administrative and/or regulatory agencies to effectuate the
assignment of the Contract to Buyer. Seller agrees to provide
Buyer with reasonable assistance and cooperation in the
seeking and obtaining of any and all such approvals, provided
however, that the failure of Buyer to receive any such
approvals shall not invalidate this agreement nor be a default
hereunder.
6.6 APPROVAL OF BOARD OF DIRECTORS. Buyer shall have obtained the
approval of its Board of Directors authorizing it to proceed
with the transactions contemplated herein.
7. CONDITIONS PRECEDENT TO THE OBLIGATION OF SELLER TO CLOSE.
In addition to all obligations of Seller contained in the Purchase
Agreement, the obligation of Seller to close shall be subject to the
following conditions precedent:
7.1 AUTHORIZATION. Seller shall have received a certified copy of
the resolutions of the Board of Directors of Buyer, certified
by its Secretary or an Assistant Secretary, authorizating the
execution of this Agreement and the consummation of the
transactions contemplated hereby.
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7.2 CORRECTNESS OF REPRESENTATIONS. The representations and
warranties of Buyer contained in this Agreement shall be
accurate in all material respects on the Closing Date to the
same extent as if made on that date.
8. OTHER AGREEMENTS.
8.1 FURTHER ASSURANCES. From time to time, at Buyer's request,
whether at or after the Closing and without further
consideration, Seller, at Buyer's sole expense, including the
reimbursement to Seller of any legal fees which Seller
reasonably incurs with respect to same will execute and
deliver such further instruments of assignment, conveyance and
transfer and take such other action as the Buyer may
reasonably require to assign, convey and transfer to Buyer any
of the Assets intended to be sold hereunder.
8.2 MAINTENANCE AND RETENTION OF BOOKS AND RECORDS. For a period
of seven years after the Closing Date, the parties shall
retain all books and records relating to the Assets, and any
party wishing to dispose or destroy books or records shall
provide not less than 60 days prior written notice to the
other parties of such proposed action. If the recipient of
such notice desires to obtain any of such documents, it may do
so by notifying the other party in writing at any time prior
to the scheduled date for such destruction or disposal. Such
notice must specify the documents which the requesting party
wishes to obtain. The parties shall then promptly arrange for
the delivery of such documents. All out-of-pocket costs
associated with the delivery of the requested documents shall
be paid by the requesting party.
8.3 CONFIDENTIALITY. Each party hereto will hold and will cause
its consultants and advisors to hold in strict confidence,
unless compelled to disclose by judicial or adminstrative
process or, in the opion of its counsel, by other requirements
of law, all documents and information concerning the other
party furnished it by such other party or its representative
in connection with the transactions contemplated by this
Agreement (except to the extent that such information can be
shown to have been (i) previously known by the party to which
it was furnished, (ii) in the public domain through no fault
of such party, or (iii) later lawfully acquired from other
sources by the party to which it was furnished), and each
party will not release or disclose such information to any
other person, except its auditors, attorneys, financial
advisors,
Page 13 of 16
bankers and other consultants and advisors in connection with
this Agreement. Each party shall be deemed to have satisfied
its obligation to hold confidential information concerning or
supplied by the other party if it exercises the same care as
it takes to preserve confidentiality for its own similar
information. In the event of termination of this Agreement,
each party shall use its best efforts to return to the other
party all documents and copies thereof received from the other
party that contain information subject to the confidentiality
requirements of this Section.
9. CLOSING DATE AND TERMINATION.
9.1 CLOSING. The consummation of the transactions contemplated by
this Agreement (the "Closing") shall take place at the
location of the Seller on or before March 22, 2000, or at such
later date as Buyer and Seller may mutually agree upon, such
time and date being herein called the "Closing Date".
9.2 TERMINATION. This Agreement may be terminated at any time (i)
by mutual consent of all parties or (ii) as either Buyer or
Seller at any time in the event of a breach of the other which
remains uncured for thirty (30) days after notice in writing
of such breach.
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. The representations and
agreements made herein are true and binding as of the date hereof
and shall continue in full force and effect on and after the Closing
Date notwithstanding any investigations which may have been made by
any of the parties prior thereto.
11. INDEMNIFICATION. Buyer and Seller shall indemnify and hold harmless
each other from any liability, damage, deficiency, loss, cost or
expense, including attorney fees and any costs of investigation
(being hereafter referred to as "Costs"), arising from or
attributable to any breach of any representation, warranty or
agreement made by either party herein or in any certificate
delivered at the Closing with respect thereto.
12. EXPENSES. Each party hereto shall bear its or his own expenses
incurred pursuant to this Agreement except as otherwise specifically
set forth herein.
13. ENTIRE AGREEMENT. This Agreement, together with the Exhibits and
Schedules referred to herein which are incorporated herein by this
reference, and the agreements referred to herein, shall constitute
the
Page 14 of 14
entire agreement between the parties hereto with respect to the
transactions contemplated hereby.
14. CONSTRUCTION AND JURISDICTION. The parties agree that this
Agreement shall be construed and enforced in accordance with the
governed by the laws of the State of Texas, and any proceeding
instituted as a result of this Agreement shall be brought in the
court of proper jurisdiction in ▇▇▇▇▇▇ County, Texas.
15. ATTORNEYS FEES. In the event an arbitration, suit or action is
brought by any party under this Agreement to enforce any of its
terms, or in any appeal therefrom, it is agreed that the prevailing
party shall be entitled to reasonable attorneys fees to be fixed by
the arbitrator, trial court and/or appellate court.
16. INVALID PROVISIONS. If any provision hereof is held to be illegal,
invalid or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable.
This Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a party
hereof, and the remaining provision hereof shall remain in full
force and effect and shall not be affected by the illegal, invalid
or unenforceable provision or by its severance herefrom.
Furthermore, in lieu of such illegal, invalid or unenforceable
provision there shall be added automatically by the Company as part
of a provision as similar in terms of such illegal, invalid or
unenforceable provision as may be possible and legal, valid and
enforceable.
17. NUMBER AND GENDER OF WORDS. When the context so requires in this
Agreement, words of gender shall include either or both of the other
genders and the singular number shall include the plural.
18. ASSIGNMENTS. This Agreement shall be binding upon the parties
hereto, their successors and assigns, and shall not be assignable
without the express written consent of all parties hereto.
19. AMENDMENTS. This Agreement may be amended only by a written
agreement executed by all of the parties thereto.
20. NOTICES. All notices, request, consents and other communications
hereunder shall be in writing and shall be delivered in person, by
facsimile, or by registered or certified mail, return receipt
requested, postage and fees prepaid, first class mail;
Page 15 of 16
If to Seller: ▇▇▇▇▇▇, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: 713.988.1045
If to Buyer: ▇-▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, President
Facsimile: 713.592.0378
Any party hereto may change the address or facsimile number by written
notice to the other party. All such notices shall be deemed to be given
when delivered in person, or if placed in the mail as aforesaid, then
four (4) days thereafter.
21. AUTHORITY. Each party executing this Agreement warrants his authority
to execute this Agreement.
22. COUNTERPARTS. This Agreement may be executed in several counterparts
and it shall not be necessary for each party to execute each of such
counterparts, but when all of the parties have executed and delivered
one of such counterparts, when taken together, shall be deemed to
constitute one and the same instrument, enforceable against each party
in Accordance with its terms.
23. FACSIMILE SIGNATURES. The parties hereto agree that this Agreement may
be executed by facsimile signatures and such signatures shall be deemed
originals. The parties further agree that within three (3) days
following the execution of the Agreement, they shall exchange original
signature pages.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date and year first above written.
"SELLER" "BUYER"
▇▇▇▇▇▇, INC. ▇-▇▇▇▇▇▇▇▇.▇▇▇, INC., a subsidiary of
Lakota Technologies, Inc.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------- -------------------------
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇▇
Its: President Its: President
Page 16 of 16
EXHIBIT A
RESALE AGREEMENT BETWEEN SOUTHWESTERN ▇▇▇▇ TELEPHONE COMPANY
AND ▇▇▇▇▇▇, INC. TO BE ATTACHED AFTER BUYER'S CHECK HAS BEEN PAID
IN GOOD FUNDS TO SELLER'S BANK.
EXHIBIT B
ASSUMED LIABILITIES:
NONE EXCEPT AS SET FORTH IN THE CONTRACT.
EXHIBIT C
SCHEDULE OF CONTRACTS:
NONE EXCEPT AS SET FORTH IN THE CONTRACT.
EXHIBIT D
EXHIBIT E
LITIGATION:
NONE TO THE BEST OF SELLER'S KNOWLEDGE.
EXHIBIT F
VIOLATIONS:
NONE TO THE BEST OF SELLER'S KNOWLEDGE.
EXHIBIT G
CONSENTS:
TO THE BEST OF SELLER'S KNOWLEDGE, THERE ARE NO CONSENTS, APPROVALS,
AUTHORIZATIONS OR ORDERS REQUIRED FOR THE EXECUTION AND DELIVERY OF THIS
AGREEMENT. HOWEVER, AS A CONDITION TO THE ASSIGNMENT OF THE SUBJECT
CONTRACT, BUYER MUST OBTAIN THE APPROVAL OF ONE OR MORE ENTITIES INCLUDING
BUT NOT LIMITED TO SOUTHWESTERN ▇▇▇▇ TELEPHONE COMPANY AND THE PUBLIC UTILITY
COMMISSION.