Exhibit 99- 6e
SHARE PURCHASE AGREEMENT
SOFTCARE ▇▇.▇▇▇, INC. and FINANCIAL MANAGEMENT GROUP (FMG)
February 2000
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS
1.1 Defined Terms
ARTICLE II. ASSETS TO BE CONVEYED
2.1 Assets
2.1.1 Receivables
2.1.2 Contracts
2.1.3 Warranties
2.1.4 Claims
2.1.5 Promotional Materials and Intangibles
2.1.6 Personal Property
2.1.7 Real Property
2.1.8 Records
2.1.9 Inventory
2.2 Excluded Assets
ARTICLE Ill. ASSUMPTION OF LIABILITIES
3.1 Liabilities Assumed
3.2 Liabilities Not Assumed
ARTICLE IV. PURCHASE PRICE AND PAYMENT
4.1 Total Consideration and Terms
4.2 Contingent Payments
4.3 Allocation
ARTICLE V. PRORATIONS AND ADJUSTMENTS
5.1 Working Capital Adjustment
5.2 Proration
ARTICLE VI. RELATED AGREEMENTS AT CLOSING
6.1 Non-competition
6.2 Employment of Certain Shareholders
6.3 Options to Purchase Shares of Buyer
ARTICLE VII. REPRESENTATIONS AND WARRANTIES OF SELLER AND THE SHAREHOLDERS
7.1 Organization
7.2 Authorization
7.3 No Breach
7.4 Governmental Authorizations
7.5 Consents
7.6 Title to Assets
7.7 Condition of Personal Property
7.8 Condition of Real Property
7.9 Contracts
7.10 Employees
7.11 Employee Benefit Plans
7.12 Litigation
7.13 Taxes
7.14 Compliance with Laws
7.15 Insolvency Proceedings
7.16 Patents, Trademarks, Copyrights
7.17 Financial Statements; Absence of Undisclosed Liabilities
7.18 Absence of Certain Changes or Events
7.19 Sufficiency of Assets
7.20 Environmental Protection
7.21 Insurance
7.22 Brokers' Fees
7.23 No Other Agreements to Sell the Assets
7.24 Transactions with Certain Persons
7.25 Accounts Receivable
7.26 Inventory
7.27 Investment
7.28 No Misleading Statements
ARTICLE VIII. REPRESENTATIONS AND WARRANTIES OF BUYER
8.1 Organization
8.2 Authorization
8.3 No Breach
8.4 Litigation
ARTICLE IX. PRE-CLOSING OBLIGATIONS
9.1 Financial Information
9.2 Consents
9.3 Confidentiality
9.4 Access
9.5 Employee Matters
9.6 Operations Prior to Closing
9.7 Adverse Developments
9.8 Administrative Violations
9.9 Bulk Sales Act
9.10 Removal of Restrictions
9.11 HSR Act Notification
ARTICLE X. CONDITIONS PRECEDENT
10.1 Mutual Conditions
10.1.1 Governmental Consents
10.1.2 Absence of Litigation
10.2 Conditions to Buyer's Obligation
10.2.1 Representations and Warranties
10.2.2 Compliance with Conditions
10.2.3 No Material Adverse Development
10.2.4 Closing Documents
10.2.5 Third Party Consents
10.2.6 Estoppel Certificates
10.2.7 Settlement of Claims
10.3 Conditions to Seller's Obligation
10.3.1 Representations and Warranties
10.3.2 Compliance with Conditions
10.3.3 Payment
10.3.4 Closing Documents
ARTICLE XI. CLOSING
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11.1 Closing Date
11.2 Performance at Closing
11.2.1 Sellers and the Shareholders' Deliveries
11.2.2 Buyer's Deliveries
11.2.3 Other Documents and Acts
ARTICLE XII. POST-CLOSING OBLIGATIONS
12.1 Indemnification
12.1.1 Buyer's Right to Indemnification
12.1.2 Seller's Right to Indemnification
12.1.3 Conduct of Proceedings
12.1.4 Right of Offset
12.1.5 Limits on and Conditions of Indemnification; Threshold
and Cap
12.1.6 Purchase Price Adjustment
12.2 Post-Closing Access
12.3 Post-Closing Tax Covenant
12.4 Failure to Obtain Consents
ARTICLE XIII. DEFAULT AND REMEDIES; DAMAGE
13.1 Termination by Seller Upon Buyer's Default
13.2 Termination by Buyer Upon Seller's Default
13.3 Breach and Opportunity to Cure
13.4 Seller's Remedies
13.5 Buyer's Remedies
13.6 Damage
13.6.1 Risk of Loss
13.7 Legal Actions
13.8 Failure to Obtain Consents
ARTICLE XIV. GENERAL PROVISIONS
14.1 Expenses
14.2 Notices
14.3 Attorneys' Fees
14.4 Survival of Representations Warranties and Indemnification Rights
14.5 Exclusive Dealings
14.6 Waiver
14.7 Assignment
14.8 Entire Agreement
14.9 Counterparts
14.10 Construction
14.11 Schedules and Exhibits
14.12 Severability
14.13 Choice of Law
14.14 Counsel
14.15 Public Statements
14.16 Arbitration
Voluntary Pooling Agreement
Business Protection Agreements for ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
including Form of Non competition Agreements and Form of Employment Agreements,
Attachment BPA Section 12;
Seller's Representation Opinion
Buyer's Counsel Opinion, Sellers Confirmation Certificate, Power of Attorney
▇▇▇▇▇ ▇▇▇▇▇ Patagonia Corp.
Schedule 2.1.2 Contracts
Schedule 2.1.5 Intangible Property
Schedule 2.1.6 Personal Property
Schedule 2.1.7 Real Property
Schedule 3.1 (b) Long Term Bank Debt (See Financial Statements attached)
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Schedule 7.1 Seller's Addresses and Places of Business
Schedule 7.6(a) Exceptions to Title to Assets
Schedule 7.6(b) Permitted Liens
Schedule 7.8(b) Real Property Exceptions
Schedule 7.8(c) Lease Agreements
Schedule 7.1 0(b) Labor Agreements
Schedule 7.11 Employee Plans
Schedule 7.12 Litigation
Schedule 7.13 Taxes
Schedule 7.17 Financial Statements (See attached statements and attachments)
Schedule 7.18 Changes or Events
Schedule 7.20 Environmental Compliance
Schedule 7.21 Insurance Policies
Schedule 7.24 Transactions with Certain Persons
This Share Purchase Agreement (the "Agreement") is made and entered on February
14, 2000 (the "Contract Date"), by and between Patagonia Corp. a company
incorporated in Turks & Caicos With registered office at ▇.▇. ▇▇▇ ▇▇▇ Charter
House, the Centre, Leeward Highway, Providenciales, British West Indies,
("Seller"), ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Jointly and Severally
(hereinafter called "▇▇▇▇▇▇▇▇▇") and Financial Management Group LLC a Nevada LLC
authorized to do business in the State of California of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Financial Marketing Group LLC a
California LLC or registration of Financial Management Group LLC (together the
"Company") and Softcare ▇▇.▇▇▇, Inc. a British Columbia corporation or such
assignee that is a subsidiary of Softcare ▇▇.▇▇▇, Inc. as Softcare ▇▇.▇▇▇, Inc.
may in Its discretion provide ("Buyer") with an address at 107 980 West 1st
Street, North Vancouver British Columbia, Canada, V7P 3N4, and where Patagonia
Corp is sometimes called a "Shareholders".
BACKGROUND:
▇▇▇▇▇▇▇▇▇ manages a business the shares of which are owned by the Seller. The
business involves servicing credit counseling businesses in the United States of
America and elsewhere. Based upon warranties and representations contained in
this Agreement, the Buyer has agreed to purchase all of the shares in the
Company from the Seller with the purpose of obtaining the cashflows of the
Company currently and to develop and install, operate and market a vertical
portal on the Internet for the credit counseling industry (the "Creditsolv
Vertical Portal") ("collectively the "Business"). It is intended that ▇▇▇▇▇▇▇▇▇
will apply full time efforts in the employ of the Buyer or a subsidiary thereof
as the Buyer determines is appropriate to develop and implement the Creditsolv
Vertical Portal in a timely manner. The peculiar marketing skills and history of
▇▇▇▇▇▇▇▇▇ and their organization with the Company are an essential element of
the basis for this Agreement. Seller and the Shareholders desire to sell and
assign to Buyer and Buyer desires to purchase and acquire from Seller
substantially all of the shares of the Company and all of the property and
assets used or held for use in the operation of the Business upon the terms set
forth in this Agreement (the "Transaction"). Accordingly, in consideration of
the foregoing and of the mutual promises, covenants, and conditions set forth
below, the parties agree as follows:
ARTICLE 1.
DEFINITIONS
1.1 DEFINED TERMS. As used herein, the following terms shall have the following
meanings:
"ACTIVE CUSTOMER CONTRACTS" shall have the meaning set forth in SECTION 7.9.
"ADJUSTMENT DATE" shall have the meaning set forth in SECTION 5.2.
"ADMINISTRATIVE VIOLATION" shall have the meaning set forth in SECTION 9.8.
"AGGREGATE FAIR MARKET VALUE" shall have the meaning set forth in SECTION 4.3.
"AGREEMENT" shall have the meaning set forth in the Preamble.
"APPLICABLE STOCK PRICE" shall have the meaning set forth in SECTION 4.2.
"ASSETS" shall have the meaning set forth in SECTION 2.1.
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"ASSUMED DEBT" shall have the meaning set forth in SECTION 3.1 (b).
"ASSUMED LIABILITIES" shall have the meaning set forth in SECTION 3.1.
"BALANCE SHEET" shall mean the balance sheet of Seller, as of the date
indicated thereon, together with the notes thereto, prepared in accordance with
GAAP or as otherwise agreed in writing by the CFO of the Buyer as regards GAAP
applicability.
"BUSINESS" shall have the meaning set forth in the Background.
"BUYER" shall have the meaning set forth in the Preamble.
"BUYER INDEMNITEES" shall have the meaning set forth in SECTION 12.1.1.
"BUYER STOCK" shall have the meaning set forth in SECTION 4.1.
"CASH PAYMENT" shall have the meaning set forth in SECTION 4.1.
"CLOSING" shall have the meaning set forth in SECTION 3.1
"CLOSING DATE" shall have the meaning set forth in SECTION 11.1.
"CLOSING DATE ADJUSTMENTS" shall have the meaning set forth in SECTION 5.2.
"CLOSING DATE STOCK PRICE" shall have the meaning set forth in SECTION 4.2.
"CLOSING WORKING CAPITAL" shall have the meaning set forth in Section 5.1.2.
"CODE' shall mean the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
"CONTINGENT PAYMENT" shall have the meaning set forth in SECTION 4.2.
"CONTINGENT PAYMENT DATE" shall have the meaning set forth in SECTION 4.2.
"CONTINGENT PAYMENT DATE STOCK PRICE" shall have the meaning set forth
in SECTION 4.2.
"CONTRACT DATE" shall have the meaning set forth in the Preamble.
"CONTRACTS" shall have the meaning set forth in SECTION 2.1.2.
"COVENANTS" shall have the meaning set forth in SECTION 6. 1.
"CUSTOMER CONTRACT" shall have the meaning set forth in Section 2.1.2.
"EMPLOYEE PLAN" shall have the meaning set forth in SECTION 7.11.
"EMPLOYMENT AGREEMENTS" shall have the meaning set forth in SECTION 6.2.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"ESTIMATED CLOSING DATE WORKING CAPITAL" shall have the meaning set forth in
SECTION 5.1.1.
"ENVIRONMENTAL LAWS" shall mean all foreign, federal, state, local or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, legally binding
decrees or other requirement of any governmental agency (including, without
limitation, common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of the environment or of human health
relating to handling of or exposure to any kind of hazardous substance,
gasoline, or petroleum (including crude oil or any fraction thereof) or
petroleum products, polychlorinated biphenyls, ureaformaldehyde insulation,
asbestos or asbestos-containing materials, pollutants, contaminants,
radioactivity, and any other materials or substances of any kind, whether solid,
liquid, or gas, and whether or not any such substance is defined as hazardous
under any law, that is regulated pursuant to any law or that could give rise to
liability under any law, as has been, is now, or may at any time hereafter be,
in effect.
"EXCLUDED ASSETS" shall mean those assets not included among the Assets
purchased, as listed in SECTION 2.2.
"EXERCISE PRICE" shall have the meaning set forth in SECTION 4.1.
"FINANCIAL STATEMENTS" shall have the meaning set forth in SECTION 7.17.
"GAAP" shall mean United States generally accepted accounting principles
consistently applied.
"HIRED EMPLOYEES" shall have the meaning set forth in SECTION 9.5.
"HSR ACT" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvement Act of 1976,
as amended.
"INDEMNIFIED PARTY" shall have the meaning set forth in SECTION 12.1.3.
"INDEMNITOR" shall have the meaning set forth in SECTION 12.1.3.
"INSURANCE POLICIES" shall have the meaning set forth in SECTION 7.21.
"INTANGIBLE PROPERTY" shall have the meaning set forth in SECTION 2.1.8.
"INTEREST EXPENSE" shall mean, with respect to any entity, for any period, the
sum (without duplication) of (i) the interest expense of such entity and its
subsidiaries for such period as determined on a consolidated basis in accordance
with GAAP, including, without limitation, (a) any amortization of debt discount;
(b) the net cost under any interest rate protection agreement, future, option,
swap, cap, or other interest rate hedge or arrangement (including any
amortization of discounts); (c) the interest portion of any deferred payment
obligation; (d) all commissions, discounts, and other fees and charges owed with
respect to letters of credit, bankers' acceptance financing, or similar
facilities; and (e) all accrued interest,
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and (ii) the interest component of any capitalized lease obligations paid or
accrued by such person and its subsidiaries during such period as determined on
a consolidated basis in accordance with GAAP.
"INVENTORY" shall have the meaning set forth in SECTION 2. 1.10.
"IRS" shall mean the United States Internal Revenue Service.
HIT PRODUCTS AND SERVICES" shall have the meaning set forth in SECTION 12.1.1.
"LEASE AGREEMENTS" shall have the meaning set forth in SECTION 7.8.
"LEASE CONSENTS" shall have the meaning set forth in Section 9.2.
"LETTER OF CREDIT" shall have the meaning set forth in SECTION 4. 1.
"LIENS" shall have the meaning set forth in SECTION 7.6.
"MAXIMUM AMOUNT" shall have the meaning set forth in SECTION 4.2.
"MINIMUM WORKING CAPITAL" shall have the meaning set forth in SECTION 5.1.
"NET INCOME" shall mean, with respect to any entity, for any period, the
aggregate net income (or loss) of such entity and its subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP; provided
that there shall be excluded therefrom, without duplication, (i) gains and
losses from any sale of assets or abandonments or reserves relating thereto, and
the related tax effects according to GAAP; (ii) items classified as
extraordinary or non-recurring gains and losses, and the related tax effects
according to GAAP; (iii) the net income (or loss) of any other entity acquired
in a pooling of interests transaction accrued prior to the date it becomes a
subsidiary of such first referred to entity or is merged or consolidated with it
or any of its subsidiaries; (iv) the net income of any subsidiary of such entity
to the extent that the declaration of dividends or similar distributions by that
subsidiary of that income is restricted by contract, operation of law, or
otherwise; and (v) the net income of any other entity, other than a subsidiary,
except to the extent of the lesser of (a) dividends or distributions paid to
such first referred to entity or its subsidiary by such entity and (b) the net
income of such entity (but in no event less than zero), and the net loss of such
entity shall be included only to the extent of the aggregate investment of the
first referred to entity or a consolidated subsidiary of such entity.
"NON-CASH CHARGES" shall mean, with respect to any entity, for any period, the
aggregate depreciation, amortization, and other non-cash expenses of such entity
and its subsidiaries reducing the Net Income of such entity and its subsidiaries
for such period, determined on a consolidated basis in accordance with GAAP
(excluding any such charges constituting an extraordinary or non-recurring
item).
"NON-CONSENTED CONTRACT" shall have the meaning set forth in SECTION 12.4.
"NOTE" shall have the meaning set forth in SECTION 4.1.
"OPTION AMOUNT" shall have the meaning set forth in SECTION 4. 1.
"OPTIONS" shall have the meaning set forth in SECTION 4.1.
"PAYMENT AT CLOSING" shall have the meaning set forth in SECTION 4.1.
"PAYMENT DATE" shall have the meaning set forth in SECTION 5.2.
"PERIOD ONE" shall have the meaning set forth in SECTION 4.2.
"PERMITTED CORRECTIVE ACTION" shall mean action to correct or repair a problem
with a product or service that was previously provided to a customer pursuant to
a Customer Contract, where such correction or repair is provided in the ordinary
course of business and without the unreimbursed expenditure of more than a DE
MINIMIS amount of funds (other than payroll) or commitment of a material amount
of resources.
"PERIOD TWO" shall have the meaning set forth in SECTION 4.2.
"PERMITTED LIENS" shall have the meaning set forth in SECTION 7.6.
"PERSON" shall mean any individual, corporation, partnership, Limited Liability
Company, joint venture, association, joint-stock company, trust, unincorporated
organization, labor union or governmental authority.
"PERSONAL PROPERTY" shall have the meaning set forth in SECTION 2.1.6.
"POST-CLOSING ESCROW" shall have the meaning set forth in SECTION 12.1.4.
"PRE-CLOSING TAXES" shall have the meaning set forth in SECTION 3.2.
"REAL PROPERTY" shall have the meaning set forth in SECTION 2.1.7.
"RECORDS" shall have the meaning set forth in SECTION 2.1.9.
"REQUIRED CONSENT" shall have the meaning set forth in SECTION 10.2.5.
"SHARE" or "SHARES" means all of the issued and outstanding shares in the
capital of the Company and more particularly XXX common shares free and clear
of all encumbrances, charges, liens, claims or limitation that would affect the
transfer of all rights with respect thereto to the Buyer;
"SELLER" shall have the meaning set forth in the Preamble.
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"SELLER INDEMNITEES" shall have the meaning set forth in SECTION 12.1.2.
"SHAREHOLDER" shall have the meaning set forth in the Preamble.
"TAX" or "TAXES" shall mean all federal, state, local, and foreign taxes, net or
gross income, gross receipts, sales, use, transfer, franchise, employment,
excise, stamp, personal property, real property, social security, unemployment,
disability, registration, value added, estimated, alternative or add-on minimum
taxes, or any other taxes of any kind whatsoever, (whether imposed directly or
through withholding), including any interest, additions to tax, or penalties
applicable thereto, imposed by any Tax authority, whether as a primary obligor
or as a result of being a "transferor" (within the meaning of Section 6901 of
the Code and any corresponding state and local law) of another person.
"TAX RETURNS" shall mean all federal, state, local, and foreign tax returns,
declarations, statements, reports, schedules, forms, and information returns and
any amendments thereto.
"TOTAL CONSIDERATION" shall have the meaning set forth in SECTION 4. 1.
"TRANSACTION" shall have the meaning set forth in the Background.
"WORKING CAPITAL" shall mean, with respect to accounting principles, current
assets less current liabilities excluding owners' compensation liabilities, and
the current portion of long-term debt.
"YEAR 2000 CONDITIONS" shall have the meaning set forth in Section 12.1.1.
ARTICLE 11.
SHARES AND ASSETS TO BE CONVEYED
2.1 Shares and related Assets. On the Closing Date, subject to and in reliance
upon the covenants, representations, warranties, and agreements set forth
herein, and subject to the terms and conditions contained herein (including
without limitation the terms and conditions of Section 12.4 regarding Seller's
obligation to obtain any consent deemed by the Buyer to be reasonably necessary
to confirm that the change in ownership of the Company is acceptable to material
parties to business with the Company), Seller shall sell, assign, transfer and
deliver to Buyer and Buyer shall purchase from Seller, all of the issued and
outstanding Shares in the Company while ensuring that all of the assets used or
held for use in the operation of the Business, other than Excluded Assets,
including without limitation, the following are maintained in the Company
(collectively, the "Assets"):
2.1.1 RECEIVABLES. All accounts and notes receivable (whether current or non-
current), refunds, deposits, prepayments, or prepaid expenses.
2.1.2 CONTRACTS. All rights of Seller and/or Company or others for the benefit
of the Business including, without limitation, those rights under (a) all
agreements, contracts, or leases described on SCHEDULE 2.1.2; (b) such other
contracts, agreements, or leases entered into by Seller and/or Company (i) with
the written consent of Buyer, or (ii) in the ordinary course of business and
consistent with past practice, between the date hereof and the Closing Date,
that (x) are approved in writing by Buyer, (y) are new contracts for provision
of products or services to customers of Seller and/or Company (such contracts,
generally, "Customer Contracts"), or (z) do not impose obligations on Buyer for
the payment of money in amounts in excess of three thousand dollars USF for any
one contract or fifteen thousand dollars USF in the aggregate (the contracts,
agreements, and leases described in clauses (a) and (b) are collectively
referred to as the "Contracts") and always provided that those Contracts that
provide payables and those Contracts that provide receivables offset each other
such that net position of the Company at the closing is a positive number taking
as well into consideration any doubtful accounts on both sides of the ledger.
2.1.3 WARRANTIES. All rights under or pursuant to all warranties,
representations, and guarantees made by suppliers in connection with the Assets
or services furnished to Seller and/or Company, to the extent such warranties,
representations, and guarantees (i) are not required by Seller to fulfill its
obligations under this Agreement and (ii) are assignable.
2.1.4 CLAIMS. All claims, causes of action, choses in action, rights of recovery
and rights of set-off of any kind relating to the Shares, Assets or the Assumed
Liabilities, against any Person, including, without limitation, any liens,
security interests, pledges or other rights to payment or to enforce payment in
connection with products delivered or services provided by Seller and/or Company
on or prior to the Closing Date.
2.1.5 PROMOTIONAL MATERIALS AND INTANGIBLES. All of Company's or its affiliates'
rights in the copyrights, patents, trademarks, trade names, slogans, logos,
service marks, computer software, magnetic media, data processing files, systems
and programs, business lists, trade secrets, sales and
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operating plans of the Business and all goodwill of the Business, and other
similar intangible property rights used or held for use in the Business and for
clarity but not so as to limit the generality of the foregoing, the credit
counseling software, the technical specifications for the credit counseling
software package, the design for the Creditsolv Vertical Portal, including but
not limited to the intangible property identified on SCHEDULE 2.1.5 (the
"Intangible Property").
2.1.6 PERSONAL PROPERTY. All the fixed and tangible personal property used or
held for use in the operation of the Business including, but not limited to, the
equipment, hardware, software, furnishings, and vehicles listed on SCHEDULE
2.1.6 together with any replacements, improvements, or additions thereto made
between the Contract Date and the Closing Date (the "Personal Property").
2.1.7 REAL PROPERTY. All right, title and interest in the real property used or
held for use or necessary in the operation of the Business and owned, leased, or
licensed by Seller, Company and its affiliates, as described in SCHEDULE 2.1.7,
or acquired for the benefit of the Business by Company or Seller or its
affiliates with the written consent of Buyer between the Contract Date and
Closing Date (the "Real Property").
2.1.8 RECORDS. All records, including but not limited to all books of account,
customer lists, supplier lists, computer programs and software, employee
personnel files, engineering data, purchase orders, service logs, consultants'
reports, budgets, marketing data, financial reports and projections, and sales,
operating, and business plans, relating to or used in the Business and not
pertaining solely to Seller's internal corporate affairs (the "Records").
2.1.9 INVENTORY. All inventory held by Company for resale, and all of Company's
raw materials, works in process, finished products, wrapping, supply, and
packaging items, in each case wherever the same may be located (collectively,
"Inventory"). 2.2 EXCLUDED ASSETS. It is understood and agreed that the
following assets shall not be among the Assets retained in the Company pursuant
to this Agreement: NONE
ARTICLE Ill.
ASSUMPTION OF LIABILITIES
3.1 LIABILITIES. Upon the terms and subject to the conditions contained herein,
at the closing of the Transaction (the "Closing"), Buyer confirms that the
Company shall be responsible for the following obligations of Company (the
"Assumed Liabilities"):
(a) to the extent reflected in the Balance Sheet of Company as of the Closing
Date, Company's accounts payable, deferred income, accrued expenses (excluding
deferred compensation of any Shareholder), and to the extent included in the
calculation of Working Capital used in the Balance Sheet, Company's shortterm
debt (to be paid by Buyer when due) and without limiting the generality of the
foregoing the following matters are specifically acknowledged and agreed upon:
(1) that current assets (generally for this purpose being cash + accounts
receivable (being only receivables for software installed and services, support
and maintenance delivered up to the Closing Date) + loans receivable + prepaid
expenses all according to GAAP) less current liabilities (generally for this
purpose being accounts payable + loans payable + payroll liabilities + ▇▇▇▇▇
Fargo business line of credit but specifically excluding contingent liability on
Company books of $25,000 for wrongful dismissal claim) (and excluding deferred
salaries payable to Casabonnes) be equal to deferred salaries but not less than
$30,OOOUSF and not greater than $45,OOOUSF; (ii) should the previously noted
wrongful dismissal claim result in payment being due in any amount such amount
will be paid by the Seller or Casabonnes in cash or offset of salaries or by
reduction in the consideration payable by the Buyer for the purchase;
(b) long-term bank debt of Company, as listed in SCHEDULES 3.1 (b), including
the current portion of such debt, in an amount up to ten thousand US dollars
($1O,OOOUSFunds) (the "Assumed Debt"), which may, at Buyer's discretion and
subject to requisite consents, be paid by Buyer at Closing; provided that any
fees, expenses, or penalties payable to the lender arising as a result of such
repayment of the Assumed Debt shall be paid by Seller, and that the parties
shall take all necessary action prior to the Closing date to release Seller and
the Shareholders from any obligations, including guarantees, with respect to the
Assumed Debt; and further that the Seller shall reimburse the Buyer for such
Assumed Debt within 90 days of the date of closing;
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(c) the liabilities arising and accruing after and relating exclusively to the
operation of the Business by Buyer after the Closing under the Contracts
described in Section 2.1.2 above or of which the benefits are made available to
Company and
(d) the obligation to perform Permitted Corrective Action with respect to
services and products provided by Seller, prior to Closing, pursuant to Customer
Contracts hereunder or of which the benefits are made available to Buyer by
Seller in accordance with Section 12.4.
3.2 LIABILITIES NOT ASSUMED. Other than as specified above, Company shall not
assume or undertake to pay, satisfy, or discharge any of Seller's liabilities,
obligations, commitments, or responsibilities not expressly acknowledged by
Buyer in this Agreement, including without limitation:
(a) all liabilities and obligations relating to operation of the Business or
ownership or use of the Assets arising and accruing in respect of periods prior
to the Closing;
(b) all liabilities and obligations arising under the Employee Plans, except to
the extent otherwise expressly provided in Section 7.11 or other provisions of
this Agreement;
c) all liabilities and obligations for fees and expenses incurred by or on
behalf of Seller and/or Company in connection with the transactions contemplated
by this Agreement, except to the extent that Buyer has specifically agreed to
assume responsibility for such fees and expenses in this Agreement or any other
written instrument;
(d) all liabilities arising out of or relating to the Excluded Assets including,
without limitation, all Taxes of the Seller and/or Company for periods ending on
or prior to the Closing Date and for periods beginning prior to and ending after
the Closing Date to the extent such Taxes are attributable to the portion of
such period ending on the Closing Date, ("Pre-Closing Taxes");
(e) all liabilities and obligations for which Seller has expressly assumed
responsibility pursuant to this Agreement; and
(f) all liabilities and obligations relating to former employees of Seller
and/or Company no longer employed by Seller and/or Company as of the close of
business on the Closing Date.
ARTICLE IV.
PURCHASE PRICE AND PAYMENT
4.1 TOTAL CONSIDERATION AND TERMS. The aggregate consideration for the Shares to
be purchased by Buyer hereunder and for the Covenants (the "Total
Consideration") will, subject to adjustments as provided in Sections 3 and 4.2
and Article V, consist of:
(a) subject to applicable regulatory approvals and securities laws applicable to
the Buyer, Seller and/or Company and ▇▇▇▇▇▇▇▇▇, issue and allot 100,000 common
shares in the capital of the Buyer to the Seller (the 'First Shares"). The First
Shares will be issued subject to a hold period of two years from the date of
issuance such hold period to be specified in a pooling agreement exhibited to
this Agreement and to specify the terms affecting both these shares and any
other shares issued pursuant to other terms of this Agreement. If the required
regulatory approvals or securities laws prohibit or otherwise impair the
issuance of the First Shares then the parties will take all reasonable steps
resolve any such limitations and
(b) upon establishment of the First Stage of the Creditsolv Vertical Portal
(First Stage means completion of the basic E-services package) to the reasonable
satisfaction of the Buyer and subject to applicable regulatory approvals and
securities laws applicable to the Buyer, Seller and/or Company and ▇▇▇▇▇▇▇▇▇,
the issuance to the Seller of a further 95,000 common shares of the Buyer (the
"Second Shares"). The Second Shares will similarly be subject to a hold period
of two years from the date of the issuance of the First Shares or the issuance
of the Second Shares which ever is acceptable to the applicable regulatory
authorities PLUS a completion bonus of US$12,000 upon confirmation by Buyer of
satisfactory completion of design of Creditsolv Vertical Portal;
(c) upon the Creditsolv Vertical Portal itself generating US300,000 dollars in
any month in confirmed contracted enforceable recurring monthly revenues, and
subject to applicable regulatory approvals and securities laws applicable to the
Buyer, Seller and/or Company and ▇▇▇▇▇▇▇▇▇, the issuance to the Seller of a
further 55,000 common shares of the Buyer (the "Third Shares"). The Third Shares
will not be subject to a hold period unless required by regulatory authorities.
(d) upon the Creditsolv Vertical Portal itself generating US1,000,000 dollars in
any month in confirmed contracted enforceable recurring monthly revenues, and
subject to applicable regulatory approvals and securities laws applicable to the
Buyer, Seller and/or Company and ▇▇▇▇▇▇▇▇▇, the issuance to the
9
Seller of a further 50,000 common shares of the Buyer (the "Fourth Shares"). The
Fourth Shares will not be subject to a hold period unless required by regulatory
authorities.
(e) deferred salaries for Casabonnes referenced in Section 3 and elsewhere are
to amount to not less than $30,000 and not more than $45,000 depending upon
adjustments provided for in this agreement and shall be paid as to $30,000 on
the Closing Date and to a maximum of $7,500 on June 1, 2000 and the balance on
August 1, 2000.
4.2 VALUATION AND IRS INDEMNITY. Buyer and Seller agree that the aggregate fair
market value of the Shares (the "Aggregate Fair Market Value") based on
Company's/Seller's Financial Statements for the period ending FEBRUARY 29, 2000
would be as attached hereto as Exhibit C. Buyer MAY file with income Tax Return
for the tax year in which the Closing occurs, EITHER IN CANADA OR THE USA AS THE
BUYER DETERMINES, IF USA containing the information agreed upon by the parties
pursuant to the immediately preceding sentence as updated due to any changes to
Working Capital or to any changes by Seller between now and Closing, which shall
be agreed to by Buyer and Seller prior to filing. THE SELLER HAS REPRESENTED it
and its principal(s) is/are not resident(s) of the USA and accordingly is/are
not filing IRS returns. Seller and ▇▇▇▇▇▇▇▇▇ (arising out of and in part
consideration for the employment of ▇▇▇▇▇▇▇▇▇ by the Buyer) indemnify and save
the Buyer harmless from any and all claims, costs, damages, expenses whatsoever
that may accrue or be assessed or awarded against Buyer or the Company in
relation to the Seller's tax situation. All the terms of the indemnities in this
Agreement shall apply to this particular indemnity. Buyer agrees to report the
purchase of the Shares, and Seller agrees to report the sale of such Shares on
all applicable foreign, federal, state, and local Tax Returns in a manner
consistent with the information agreed upon by the parties pursuant to this
Section and contained in its forms. Buyer and Seller agree that if there is an
increase or decrease in the Purchase Price after the taxable year that includes
the Closing Date as a result of an adjustment pursuant to Section 4.1, 4.2 or
12.1 of this Agreement, then the Seller's amount realized with respect to, and
the buyer's cost of, the Assets shall be allocated by the Buyer and Seller in a
manner that is consistent with the information agreed upon by the parties
pursuant to this Section and in accordance with the regulations issued under the
Code. In such an event, Buyer shall file a supplemental share acquisition
statement that is consistent with the information agreed upon by the parties
pursuant to the immediately preceding sentence with its respective income Tax
Return for the taxable year in which the increase or decrease, as the case may
be, is properly taken into account. Notwithstanding any other provision of this
Agreement, the provisions of this Section 4.2 shall survive the Closing without
limitation.
ARTICLE V.
PRORATIONS AND ADJUSTMENTS
5.1 WORKING CAPITAL ADJUSTMENT.
(a) At Closing, Seller shall deliver to Buyer a certificate certifying its best
good-faith estimate of the amount of Seller's aggregate Working Capital as of
the Closing Date on a consolidated basis (the "Estimated Closing Date Working
Capital"). In the event that the Estimated Closing Date Working Capital is less
than the amount of Working Capital reflected on the Balance Sheet adjusted as
provided for in this Agreement and provided to Buyer by Seller (the "Minimum
Working Capital"), the Total Consideration will be reduced on a
dollar-for-dollar basis in an amount equal to such deficiency.
(b) Within sixty (60) business days after Closing, Buyer shall conduct or have
conducted its expense an audit of the Company and Business sufficient to
determine Working Capital as of the close of business on the day immediately
preceding the Closing Date (the "Closing Working Capital"), and shall deliver a
statement of the Closing Working Capital to Seller. If (i) Closing Working
Capital exceeds Estimated Closing Date Working Capital, then Buyer shall pay to
Seller an amount equal to such excess, and (ii) Estimated Closing Date Working
Capital exceeds Closing Working Capital, then Seller shall pay Buyer an amount
equal to such excess, in either case within ten (10) business days after the
delivery of the statement of Closing Working Capital to Seller, together with
interest thereon from the Closing Date to the date of payment at the prime rate
of interest as published in the Money Rates column of the Eastern Edition of the
Wall Street Journal (or the average of such rates if more than one rate is
indicated) as of the Closing Date. If Closing Working Capital is equal to
Estimated Closing Working Capital, then neither Buyer nor Seller shall owe any
amount to the other Party pursuant to this section. 5.2 Proration. The operation
of the Business and the income and normal operating expenses, including without
limitation assumed liabilities and prepaid expenses, attributable thereto
through 11:59 p.m. of the
10
day prior to the Closing Date (the "Adjustment Date") shall be for the account
of Buyer and thereafter for the account of Buyer. Expenses for goods or services
received both before and after the Adjustment Date, interest expenses, Taxes and
assessments, power and utilities charges, and rents and similar prepaid and
deferred items shall be prorated between Seller and Buyer as of the Adjustment
Date (the "Closing Date Adjustments"). All special assessments and similar
charges or liens imposed in respect of any period of time through the Adjustment
Date, whether payable in installments or otherwise, shall be the responsibility
of Seller, and amounts payable with respect to such special assessments, charges
or liens in respect of any period of time after the Adjustment Date shall be the
responsibility of Buyer, and such charges shall be adjusted as required
hereunder. Three (3) days prior to the Closing Date, Seller shall estimate all
apportionments pursuant to this Article V and shall deliver a statement of its
estimates to Buyer (which statement shall set forth in reasonable detail the
basis for those estimates). At the Closing, Buyer shall pay to Seller, or Seller
shall pay to Buyer, as the case may be, the net amount due as a result of the
estimated apportionments (excluding any item that is in dispute). By ninety (90)
days after the Closing Buyer shall deliver to Seller a statement of any
adjustments to Seller's estimate of the apportionments, and Buyer shall pay to
Seller, or Seller shall pay to Buyer, as the case may be, any amount due as a
result of the adjustment (or, if there is any dispute, the undisputed amount).
If Seller disputes Buyer's determinations, or if at any time after delivery of
Buyer's statement of determinations, either party determines that any item
included in the apportionments is inaccurate, or that an additional item should
be included in the apportionments, the party shall confer with regard to the
Matter and an appropriate adjustment and payment shall be made as agreed upon by
the parties (or, if they are unable to resolve the matter, they shall select a
firm of independent certified public accountants to resolve the matter, whose
decision on the matter shall be binding and whose fees and expenses shall be
borne equally by the parties). If the amount of Taxes for any period that begins
before and ends after the Closing Date, which are to be prorated pursuant to
this Section, are not known three days prior to the Closing Date, then the
amount of such Taxes will be estimated as of such date. If the amount of such
Taxes is not known by sixty days after the Closing Date, once the amount of such
Taxes is known, Buyer shall pay to Seller, or Seller shall pay to Buyer, as the
case may be, the net amount due as a result of the actual apportionment of such
Taxes. All amounts due pursuant to this subsection that are not paid on the
Closing Date or the Payment Date shall bear interest until paid at a rate per
annum equal to generally prevailing prime interest rate (as reported by The Wall
Street Journal) plus five percent (5%). For purposes of this Agreement, in the
case of Taxes that are payable with respect to any period that begins before and
ends after the Closing Date, the portion of such Taxes payable for the period
ending on the Closing Date shall be (a) in the case of any Tax based upon or
measured by income, and in the case of sale or use tax, the amount which would
be payable if the taxable year ended as of the end of the Closing Date and (b)
in the case of any other Tax, such as property, the amount of such tax for the
entire period multiplied by a fraction, the numerator of which is the number of
days in the period ending on the Closing Date and the denominator of which is
the number of days in the entire period.
ARTICLE VI.
RELATED AGREEMENTS AT CLOSING
6.1 NON-COMPETITION. As further consideration of the agreements set forth herein
and sale by Seller of the Assets, at the Closing, Seller and ▇▇▇▇▇▇▇▇▇ shall
enter into a Business Protection Agreement and related Employment Agreement with
Buyer in the form attached hereto (collectively, the "Covenants"). The Covenants
shall become effective as of the Closing Date and shall continue in effect for a
period equal to the longer of: (i) one (1) year from the termination of the
Covenantor's employment with Buyer but at least and (ii) two (2) years after the
Closing Date.
6.2 EMPLOYMENT OF ▇▇▇▇▇▇▇▇▇. At Closing, Buyer will enter into two-year
employment agreements, in the form attached hereto (collectively, the
"Employment Agreements"), with (i) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, pursuant to which ▇▇▇▇
▇▇▇▇▇▇▇▇▇ will serve as sales manager of Buyer's Creditsolv Vertical Portal
development team and international marketing sales representative, for a base
salary of US$1 0,000 per month plus US$600.00 per month car allowance together
with commissions and bonuses and (ii) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ will serve as design
and sales executive of the Buyer's Creditsolv Vertical Portal development team,
for a base salary of US$8,000 per month plus US$600.00 per month car allowance
as well as bonuses.
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ARTICLE VII.
REPRESENTATIONS AND WARRANTIES OF SELLER AND THE SHAREHOLDERS
Seller and ▇▇▇▇▇▇▇▇▇ make the following representations and warranties, all of
which have been relied upon by Buyer in entering into this Agreement and, except
as otherwise specifically provided, all of which shall be true and correct at
Closing.
7.1 ORGANIZATION. Seller is a corporation duly organized, validly existing and
in good standing under the laws of the Turks & Caicos and is duly qualified to
do business in, and is in good standing under, the laws of that jurisdiction and
has full power and authority to own the Assets and to conduct the Business as
currently conducted and proposed to be conducted and to enter into and perform
this Agreement. The address of Seller's chief executive offices, all of Seller's
additional places of business, and the locations of all tangible personal
property included in the Assets are listed in SCHEDULE 7.1. Except as set forth
in Schedule 7.1, during the past five (5) years, Seller has not been known by or
used any corporate, partnership, fictitious, or other name in the conduct of the
Business or in connection with the use or operation of the Assets.
Company is a corporation duly organized, validly existing and in good standing
under the laws of the state of Nevada and is duly qualified to do business in,
and is in good standing under, the laws of that California and has full power
and authority to own, lease, and operate the Assets and to conduct the Business
as currently conducted and proposed to be conducted and to enter into and
perform this Agreement. The address of Company's chief executive offices, all of
Company's additional places of business, and the locations of all tangible
personal property included in the Assets are listed in
SCHEDULE 7.1. Except as set forth in Schedule 7.1, during the past five (5)
years, Company has not been known by or used any corporate, partnership,
fictitious, or other name in the conduct of the Business or in connection with
the use or operation of the Assets.
7.2 AUTHORIZATION. The execution and delivery of this Agreement by Seller and
Company has been duly authorized by all necessary corporate action on its part.
Seller and Company will deliver evidence of such authorization at Closing. This
Agreement has been duly executed by Seller and Company and delivered to Buyer
and constitutes the legal, valid and binding obligation of Seller and Company,
enforceable against Seller and Company in accordance with its terms, except as
limited by laws affecting the enforcement of creditors' rights generally or
equitable principles.
7.3 NO BREACH. None of (i) the execution, delivery and performance of this
Agreement by Seller and Company, (ii) the consummation of this Agreement and all
other documents or instruments related thereto or executed in connection
therewith or in contemplation of the Transaction, or (iii) Seller's and
Company's compliance with the terms and conditions hereof will, with or without
the giving of notice or the lapse of time or both, conflict with, breach the
terms and conditions of, constitute a default under, or violate Seller's or
Company's certificate of incorporation or bylaws; any judgment, decree, order,
injunction, agreement, lease, or other instrument to which Seller and/or
Company is a party or by which Seller and/or Company is legally bound; or any
law, rule, or regulation applicable to Seller and/or Company, the Assets, or the
operation of the Business.
7.4 GOVERNMENTAL AUTHORIZATIONS. There are no licenses, permits, or other
authorizations used or necessary to lawfully operate the Business in the manner
and to the full extent as now operated except city and county business licenses.
7.5 CONSENTS. Assuming the truth and completeness of the representations and
warranties of Buyer contained in this Agreement, no consent, approval, or
authorization of, or designation, declaration or filing with, any governmental
authority or other third party is required with respect to Seller's and/or
Company's or any Shareholder's execution or delivery of this Agreement or the
consummation of the transactions contemplated hereby, except for consent to
assign any of the Contracts, as reflected herein.
7.6 TITLE TO ASSETS. Except as set forth on SCHEDULE 7.6(a), Seller and/or
Company has good and marketable title to the Assets, in the case of owned
Assets, and a valid leasehold interest, in the case of leased Assets, in each
case free and clear of all debts, liens, charges, security interests, mortgages,
deeds of trust, pledges, judgments, trusts, adverse claims, liabilities,
collateral assignments, leases, easements, covenants, encumbrances, and other
impairments of title ("Liens"), other than as set forth on Schedule 7.6(a). At
Closing, Seller shall convey to Buyer good and marketable title to the Shares
free and clear of all Liens other than those set forth on Schedule 7.6(b)
("Permitted Liens").
12
7.7 CONDITION OF PERSONAL PROPERTY. The Personal Property listed on SCHEDULE
2.1.6 constitutes all of the personal property that is used, held by the Company
or others for use in, or necessary to operate the Business as now operated. The
Personal Property is in good operating condition and repair (reasonable wear and
tear excepted), is performing satisfactorily, is not in need of repair, has been
properly maintained in accordance with the manufacturers' recommendations and
industry practices, is available for immediate use and is otherwise sufficient
to permit the Business to operate as now operated.
7.8 CONDITION OF REAL PROPERTY (Including Leases under negotiation)
(a) The Real Property listed on SCHEDULE 2.1.7 constitutes all the real property
used by Company or others in connection with the operation of the Business.
Seller does not own any Real Property.
(b) Except as set forth on SCHEDULE 7.8(b), neither Seller, any Shareholder, nor
any affiliate thereof owns or has owned any Real Property that is or has been
used or held for use in conjunction with the Business. Except as set forth on
SCHEDULE 7.8(b), all Real Property that is being or has been used in conjunction
with the Business has been leased Real Property.
(c) The leased Real Property is leased at the rates and for terms ending on the
dates shown on SCHEDULE 7.8(c) pursuant to the agreements described in SCHEDULE
2.1.2 (the "Lease Agreements"), which are the sole and complete agreements
concerning Seller's and/or Company's use of the leased premises. Each Lease
Agreement is legal, valid, binding, enforceable, and in full force and effect.
Neither Seller, Company nor any other party is in default, violation, or breach
in any respect under any Lease Agreement, and no event has there occurred and is
there continuing an event that constitutes or, with notice or the passage of
time or both, would constitute a default, violation, or breach thereunder. No
amount payable under any Lease Agreement is past due. Seller and/or Company has
not received any notice of a default, offset, or counterclaim under any Lease
Agreement or any other communication asserting non-compliance with any Lease
Agreement. Company has the exclusive right to use and occupy the premises leased
under each Lease Agreement. Company enjoys peaceful and undisturbed possession
of the premises leased by Company under each Lease Agreement. Except as set
forth on SCHEDULE 7.8(c), the Lease Agreements are free and clear of all Liens,
except for lessors' interests in the leases. Company has delivered to Buyer,
true and complete copies of the Lease Agreements, together, in the case of any
subleases or similar occupancy agreements, with copies of all overleases.
(d) All utilities that are required for the full and complete occupancy and use
of the Real Property for the purposes for which such properties are presently
being used by Company, including without limitation electric, water, sewer,
telephone, and similar services, have been connected and are in good working
order. By the Closing Date, Company will have paid all charges for such
utilities, including without limitation any "tie-in' charges or connection fees,
except for those charges that will not become due until after the Closing Date
and that are to be prorated between Seller and Buyer pursuant to Article V.
7.9 CONTRACTS. The Contracts are all of the agreements (i) currently in effect
to which Company is a party, and (ii) necessary to operate the Business as it is
presently operated. Subject to Seller receiving consent to assign those
Contracts for which such consent is required, the Contracts are assignable to
Buyer on terms and conditions no less favorable than those in effect on the date
hereof. Each Contract is in full force and effect and is unimpaired by any acts
or omissions of Company, Seller's and/or Company's employees, agents, officers,
directors or shareholders. Company has complied in all material respects with
all Contracts to be purchased by Buyer by virtue of the Agreement, and there has
not occurred as to any Contract any default by Company or any event that, with
notice or the lapse of time or otherwise, could become a default by Company.
Company has not granted or been granted any waiver or forbearance with respect
to any of the Contracts. To the best knowledge of Seller and/or Company, there
has not occurred as to any Contract any default by any other party thereto or
any event that, with notice or the lapse of time or at the election of any
person other than Company, could become a default by such party. Those Contracts
whose stated duration extends beyond the Closing Date will, at Closing, be in
full force and effect and will be unimpaired by any acts or omissions of Seller
and/or Company, Seller's and/or Company's agents, employees, officers, directors
or shareholders. Schedule 2.1.2 lists all contracts to which Company is a party
for the benefit of the Business other than those described in Section 2.1.2(b).
Schedule 2.1.2 also indicates which Contracts (of those that are available)
require consent of any other party in order to be assigned to Buyer. Customer
Contracts under which products or services have been ordered but either have not
yet been delivered or were delivered within 30 days prior to the date hereof
("Active Customer Contracts") are also designated on Schedule 2.1.2. Except for
certain Customer Contracts, Seller and/or Company has provided to Buyer true and
correct copies of all 13
13
written Contracts, as modified to date, or true and complete memoranda
describing the terms of all oral Contracts, and all liabilities and obligations
under such Contracts can be ascertained from such copies or memoranda. All of
the Customer Contracts of which copies have not been provided to Buyer, and
which are in effect or as to which any provision or liability survives, contain
or are subject to terms and conditions providing no materially greater benefit,
obligation, or liability than as set forth in the forms of customer contracts
included as Exhibit F, without material addition or alteration. The Contracts as
amended through the date of this Agreement will not be modified without Buyer's
written consent, which consent shall not be unreasonably withheld.
7.10 EMPLOYEES.
(a) Seller and/or Company has furnished to Buyer a true and complete list of all
persons employed by Seller and/or Company in conjunction with the Business, each
such person's compensation and bonus arrangements and the Employee Plans listed
in SCHEDULE 7.11, if any, applicable to each such person, and the allocation of
Options to each such person, if any, as determined by Seller and/or Company.
Seller and/or Company is not a party to any agreement or arrangement, written or
oral, with salaried or non-salaried employees except as described in such
information provided to Buyer or in SCHEDULE 7.11 or included among the
Contracts. Seller and/or Company has no knowledge that any employee identified
to Buyer currently plans to terminate employment, whether by reason of the
transactions contemplated by this Agreement or otherwise.
(b) Except as disclosed in SCHEDULE 7.1 0(b), Seller and/or Company is not a
party to or subject to any Contract with any labor organization, nor has Seller
and/or Company agreed to recognize any union or other collective bargaining
unit, nor has any union or other collective bargaining unit been certified as
representing any of Seller's and/or Company's employees. Seller and/or Company
has no knowledge of any organizational effort currently being made or threatened
by or on behalf of any labor union with respect to employees of Company. There
are no unfair labor practice charges pending or, to the best of Seller's and/or
Company's knowledge, threatened against Company; there are no pending or
threatened strikes, arbitration proceedings involving labor matters or other
labor disputes affecting Company or the Business; and Company has not
experienced any strikes, work stoppages or other significant labor difficulties
of any nature in the past two (2) years.
7.11 EMPLOYEE BENEFIT PLANS. SCHEDULE 7.11 sets forth a true and complete list
of each employee or retiree benefit or compensation plan within the meaning of
Section 3(3) of ERISA, or compensation, bonus, incentive, deferral, equity
based, severance, termination, retention, change in control, employment,
consulting or other similar program, agreement, arrangement, trust or other
funding arrangement, whether or not subject to the provisions of ERISA, to which
Company is bound or that is or has been established or maintained or in respect
of which Company has ever had any obligation to contribute (each, an "Employee
Plan"). Except pursuant to an Employee Plan, Company has no fixed or contingent
liability or obligation to or in respect of any current or former employee,
consultant or director of Company or any beneficiary or dependent of any such
person, including, without limitation, in respect of pension or thrift benefits
or payments, individual or supplemental pension benefits or payments or
compensation arrangements, contributions to hospitalization or other health,
life or other welfare benefits, incentive benefits or payments, bonus benefits
or payments or vacation, sick leave, disability and termination benefits or
payments, including workers' compensation. No trade or business (whether or not
incorporated) is or has been as of any date within the preceding six (6) years
treated as a single employer together with Company pursuant to Section 414 of
the Code. Company has not incurred or does not reasonably expect to incur
(either directly or indirectly, including as a result of any indemnification
obligation) any liability that could become a liability of Buyer or, following
the Closing, remain a liability of the Business under or pursuant to Title I or
IV of ERISA or the penalty, excise tax or joint and several liability provisions
of the Code relating to employee benefit plans and, to the best knowledge of
Seller and/or Company, no event, transaction or condition has occurred or exists
which could result in any such liability. Each of the Employee Plans has been
operated and administered in all respects in accordance with all applicable
laws, including but not limited to ERISA and the Code. It is expressly
understood that buyer is not assuming any obligation of Company under or with
respect to any Employee Plan, including without limitation any obligation to pay
any fee, tax, or charge in respect of any Employee Plan arising as a result of
the Transaction or of termination or cancellation of any Employee Plan.
7.12 LITIGATION. Except as set forth on SCHEDULE 7.12, there is no unsatisfied
judgment outstanding and no litigation, proceeding, claim or investigation of
any nature pending or, to Seller's and/or Company's best knowledge, threatened
against Company, any Shareholder, or any of the Assets which might 14
14
adversely affect the continued operation of the" Business or impair the value of
the Assets or which might adversely affect Company's ability to perform in
accordance with the terms of this Agreement. Company has no knowledge of any
facts that could reasonably result in any such proceedings. With respect to each
matter set forth therein, Schedule 7.12 sets forth a description of the forum
for the matter, the parties thereto and the type and amount of relief sought.
7.13 TAXES. Except as set forth on SCHEDULE 7.13:
(a) Company and Seller have duly filed IN THE ORDINARY COURSE OF BUSINESS with
the appropriate Tax authorities all Tax Returns required to be filed by it on or
prior to the date hereof, and such Tax Returns are true, complete, and correct
in all material respects. Company and Seller have paid in full all Taxes that
accrue or are payable by Company and Seller in respect of taxable periods that
end on or before the Closing Date and
(ii) in respect of any taxable period that begins before the Closing Date and
ends thereafter, to the extent that such Taxes are attributable to the portion
of such period ending on the Closing Date, except to the extent (i) such Taxes
are to be prorated under Section 5.2 of this Agreement or (ii) the amount of
such Taxes are included in the Calculation of Working Capital pursuant to
Section 5.1 of this Agreement. All Taxes that Company and Seller has been
required to collect or withhold have been duly collected or withheld and, to the
extent required when due, have been or will be (prior to the Closing Date) duly
paid to the proper Tax authority, excluding current payroll taxes which will be
paid by the Seller at the appropriate time;
(b) There is no audit or other matter in controversy with respect to any Taxes
due and owing by Company and/or Seller, and there is no Tax deficiency or claim
assessed or, to the best of the Company's and/or Sellers' knowledge, proposed or
threatened (whether orally or in writing) against Company and/or Seller;
(c) No claim has ever been made by an authority in a jurisdiction where Company
and/or Seller does not file Tax Returns that Seller is or may be subject to
taxation by that jurisdiction;
(d) There are no liens for Taxes (other than for current Taxes not yet due and
payable) on the Assets;
Company and Seller has paid in full or discharged all Taxes the nonpayment of
which would result in a lien or other encumbrance on the Assets in the hands of
the Buyer, excepting in each case such Taxes as will not be due until after the
Closing Date.
7.14 COMPLIANCE WITH LAWS. Seller, Company and ▇▇▇▇▇▇▇▇▇ have complied in all
material respects with, and are not in violation of any federal, state, or local
laws, regulations, or orders (including any applicable statutes, ordinances, or
codes relating to zoning and land use, health and sanitation, environmental
protection, occupational safety, and the use of electrical power) affecting the
Shares, Assets or the Business. Without limiting the generality of the
foregoing:
(a) Seller and Company have, in the conduct of the Business, complied in all
material respects with all applicable laws, rules and regulations relating to
the employment of labor, including those concerning wages, hours, equal
employment opportunity, collective bargaining, pension and welfare benefit
plans, and the payment of Social Security and similar taxes, and Company and
Seller are not liable for any arrearages of wages or any tax penalties due to
any failure to comply with any of the foregoing.
(b) All reports, tax returns, and other documents required to be filed by
Company and Seller or, to the extent related to the Business or the Shares or
Assets, by all Shareholders, with any governmental authorities have been filed.
All information contained in the foregoing documents is true, complete and
accurate in all material respects.
7.15 INSOLVENCY PROCEEDINGS. Neither Company or Seller nor the Shares or Assets
are the subject of any pending or threatened insolvency proceedings of any
character, including without limitation bankruptcy, receivership,
reorganization, composition, or arrangement with creditors, voluntary or
involuntary. Company or Seller has not made an assignment for the benefit of
creditors or taken any action in contemplation of or which would constitute a
valid basis for the institution of any such insolvency proceedings. After giving
effect to the Transaction, Company (i) will have sufficient capital to carry on
its business and transactions, (ii) will be able to pay its debts as they mature
or become due, and (iii) will own assets the fair value of which will be greater
than the sum of all liabilities (including contingent liabilities) of Company
not specifically assumed by Buyer pursuant to the terms of this Agreement.
Company and Seller are not insolvent nor will it become insolvent as a result of
entering into this Transaction.
7.16 PATENTS, TRADEMARKS, COPYRIGHTS. All Intangible Property and all rights
therein, including registrations and applications to register or renew the
registrations of any of the foregoing, currently used to promote or identify the
Business or otherwise used in connection with the Business, are listed or
15
described on SCHEDULE 2.1.7. The Intangible Property is either owned or validly
licensed by Company, and SCHEDULE 2.1.7 identifies which Intangible Property is
so owned and which is licensed, and if licensed, the royalties paid thereon and
the parties paid thereunder. Company and Seller do not have any knowledge, nor
has Company or Seller or ▇▇▇▇▇▇▇▇▇ received any notice to the effect that its
use of any of the Intangible Property may be or are claimed to infringe on the
right of another. Company, Seller and ▇▇▇▇▇▇▇▇▇ have no knowledge of any
infringement or unlawful or unauthorized use of such Intangible Property. The
Business does not infringe any copyright, patent, trademark, trade name, service
▇▇▇▇, or other similar right of any third party. Except as reflected in the
Contracts, Company has not sold, licensed, or otherwise disposed of any
Intangible Property to any person or entity and Company has not agreed to
indemnify any person or entity for any patent, trademark, or copyright
infringement. SCHEDULE 2.1.7 lists all of the Intangible Property which has been
duly registered with, filed in or issued by, as the case may be, the United
States Patent and Trademark Office and United States Copyright Office or other
filing offices, domestic or foreign.
7.17 FINANCIAL STATEMENTS; ABSENCE OF UNDISCLOSED LIABILITIES. Seller and
▇▇▇▇▇▇▇▇▇ have furnished Buyer with the financial statements listed or described
on SCHEDULE 7.17 (the "Financial Statements"). The year-end Financial
Statements:
(i) have been prepared in accordance with GAAP on a consistent basis throughout
the periods involved and as compared with prior periods and (ii) fairly and
accurately reflect the financial condition and the results of operations and
cash flows of the Business as of the dates and for the periods indicated. The
monthly and other interim Financial Statements, including the Balance Sheet of
Seller as of the Closing Date: (i) except as set forth on SCHEDULE 7.17, have
been prepared in accordance with GAAP on a consistent basis throughout the
periods involved (except to the extent noted thereon) and on a basis consistent
with the year-end Financial Statements; and (ii) fairly and accurately reflect
the financial condition and the results of operations and cash flows of the
Business as of the dates and for the periods indicated in all material respects.
Except as reflected in the Financial Statements or otherwise disclosed to Buyer
in writing, no event has occurred since the preparation of the most recent
Financial Statements that would make such Financial Statements misleading in any
respect. Except as set forth on SCHEDULE 7.17, the Business has no material
liabilities except for liabilities and obligations (a) reflected or reserved for
on the most recent interim Financial Statements provided to Buyer or (b) that
have arisen since the date of such Financial Statements in the ordinary course
of the operation of the Business and consistent with past practice of Company
(all of which are liabilities similar in type to those reflected on such
Financial Statements).
7.18 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since the date the interim Financial
Statements provided to Buyer were prepared, except as disclosed on SCHEDULE
7.18, there has not been any:
(a) as of the date hereof, material adverse change in the operations, condition
(financial or otherwise), assets, or liabilities of Company or the Business;
(b) except for normal periodic increases in the ordinary course of business
consistent with past practice, increase in the compensation payable or to become
payable by Company to any of its officers, employees, or agents, (ii) bonus,
incentive compensation, service award, or other like benefit granted, made or
accrued, contingently or otherwise, for or to the credit of any of officer,
employee, or agent of Company and/or Seller, (iii) employee welfare, pension,
retirement, profit-sharing or similar payment or arrangement made or agreed to
by Company and/or Seller for any officer, employee, or agent of Company except
pursuant to the existing plans and arrangements described in the Schedules
hereto, or (iv) new employment agreement to which Seller is a party,
(c) addition to or modification of the Employee Plans of Company, arrangements
or practices affecting employees other than (i) contributions made for 1999 in
accordance with the normal practices of Company or (ii) the extension of
coverage to other employees who became eligible after the date of the most
recent Financial Statements provided to Buyer;
(d) sale, assignment, or transfer of any material assets of Company other than
in the ordinary course;
(e) cancellation of any indebtedness or waiver of any rights of substantial
value to Company (other than accounts receivable), whether or not in the
ordinary course of business;
(f) amendment, cancellation, or termination of any Contract, license, or other
instrument material to
Company or the Business;
(g) capital expenditure or commitments for capital expenditures or the execution
of any lease by Company involving payments in excess of Fifty Thousand Dollars
($50,000) in the aggregate;
16
(h) failure to operate the Business in the ordinary course so as to use
reasonable efforts to preserve the Business intact, to keep available the
services of all officers, employees, or agents of Company, and to preserve the
goodwill of Company's suppliers, customers, and others having business relations
with Company;
(i) change in accounting methods or practices by Company;
(j) revaluation by Company of any of the Assets, including without limitation,
writing off notes, inventory, or accounts receivable (other than, in the case of
accounts receivable, in the ordinary course of business and so as not to exceed
Company's reserve for bad debt as reflected in Company's most recent balance
sheet);
(k) damage, destruction, or loss (whether or not covered by insurance) adversely
affecting the Business or any of the Assets; or
(l) indebtedness incurred by Company for borrowed money or commitment to borrow
money entered into
by Company, or any loans made or agreed to be made by Company.
--REMOVED--7.19. SUFFICIENCY OF ASSETS. The Assets are sufficient to operate the
business as it is now operated.
7.20 ENVIRONMENTAL PROTECTION. Except as set forth on Schedule 7.20: (i) Company
is, and at all times has been, in compliance in all material respects with all
Environmental Laws. There are no consent decrees, consent orders, judgments,
judicial or administrative orders, agreements with, or liens by, any
governmental agency or quasi-governmental entity relating to any Environmental
Laws that regulate, obligate, or bind Company. Neither Company nor Seller nor
▇▇▇▇▇▇▇▇▇ have released any person from any claim under any Environmental Laws
or waived any rights concerning any environmental condition. Company has given
all material notices and warnings, made all material reports, and has kept and
maintained all material records required by," and in compliance in all material
respects with, all Environmental Laws.
7.21 INSURANCE. SCHEDULE 7.21 contains an accurate and complete description of
all policies of property, fire, and casualty, product liability, workers'
compensation, errors and omissions and other forms of insurance held by the
Company ("INSURANCE POLICIES"). True, correct and complete copies of such
Insurance Policies have been made available to Buyer. All policies listed on
SCHEDULE 7.21 (i) are valid, outstanding, and enforceable policies, (ii) provide
coverage for the Assets and the operations of the Business for all material
risks normally insured against by an entity carrying on the same business as
Company, and (iii) will not terminate or lapse by reason of the Transaction. The
Company has not received (i) any notice of cancellation of any policy described
in this Section or refusal of coverage thereunder, (ii) any notice that any
issuer of such policy has filed for protection under applicable bankruptcy laws
or is otherwise in the process of liquidating or has been liquidated, or (iii)
any other notice that such policies are no longer in full force or effect or
that the issuer of any such policy is no longer willing or able to perform its
obligations thereunder. The Insurance Policies shall not be assigned to Buyer.
7.22 BROKERS' FEES. No broker, finder, investment banker or other person or
entity is entitled to any brokerage fee, finders' fee or other commission for
which Buyer could become liable in connection with the Transactions based upon
arrangements made by Company or any Shareholder.
7.23 NO OTHER AGREEMENTS TO SELL THE SHARES OR ASSETS. None of Seller, Company
or Casabonnes are subject to any commitment or legal obligation, absolute or
contingent, other than to Buyer, to sell, assign, transfer, or effect a sale of
any of the Shares or any Assets, to effect any merger, consolidation,
liquidation, dissolution, or other reorganization of Company, or to enter into
any agreement or cause the entering into of an agreement with respect to any of
the foregoing.
7.24 TRANSACTIONS WITH CERTAIN PERSONS. Except as set forth on SCHEDULE 7.24, no
officer, director, or employee of Company and/or Seller nor any member of any
such person's immediate family is presently, or within the past year has been, a
party to any transaction with Company and/or Seller, including without
limitation, any contract, agreement, or other arrangement (a) providing for the
furnishing of services by, (b) providing for the rental of real or personal
property from, or (c) otherwise requiring payments to (other than for services
as officers, directors, or employees of Company) any such person or corporation,
partnership, trust, or other entity in which any such person has an interest as
a shareholder, officer, director, trustee, or partner. Furthermore, except as
set forth on SCHEDULE 7.24, Company has no liability or obligation to make any
payment on behalf of or for the benefit of any of the Shareholders, or any
officer, director, or employee of Seller or any such person's immediate family
that is not directly related to, and in furtherance of, the Business. 17
17
7.25 ACCOUNTS RECEIVABLE. The amount of accounts receivable, unbilled invoices,
and other debts due or recorded in the records and books of account of Company
as being due to Company as of the Closing Date will be, subject to the reserves
reflected on the interim Financial Statements and except for accounts receivable
required to be written off due to the insolvency of a debtor of Company, good
and collectible in full in the ordinary course of business and in any event not
later than: (i) in the case of accounts receivable for sales of its products,
the dates for payment in the current payment schedule used and (ii) in the case
of all other accounts, one hundred (100) days after the Closing Date; and to the
knowledge of the Shareholders and Seller's and/or Company, none of such accounts
receivable or other debts is subject to any counterclaim or set-off except to
the extent of any such reserve. Since the date of the interim Financial
Statements, Company has not made any change in its credit policies nor has it
materially deviated from its credit policies.
7.26 INVENTORY. Each item of Inventory reflected on the Financial Statements (a)
is owned by Company free and clear of all encumbrances, except for Permitted
Liens and purchase money liens arising from accounts payable reflected on the
Financial Statements, (b) exists in salable condition, and (c) has a book value
as reflected on the Financial Statements of the lesser of Company's actual cost
for such item of Inventory and the wholesale price for such item of Inventory as
of the date of the Financial Statements.
7.27 INVESTMENT. Seller, Company and ▇▇▇▇▇▇▇▇▇ (i) understands that the Shares
of Buyer Stock to be issued pursuant hereto have not been, and will not be,
registered under the Securities Act of 1933, as amended, (the "Securities Act")
or under any state securities laws, and are being offered and sold in reliance
upon federal and state exemptions for transactions not involving any public
offering, (ii) is acquiring Buyer Stock solely for its or his own account for
investment purposes, and not with a view to the distribution thereof; it is
acknowledged that the shares of the Buyer trade in Canada on the Canadian
Venture Exchange and that regulatory restrictions apply and that the residence
of the shareholders of the Seller may affect the potential for jurisdictional
claims by other securities regulators; (iii) is a sophisticated investor with
knowledge and experience in business and financial matters, (iv) has received
certain information concerning Buyer and has had the opportunity to obtain
additional information as desired in order to evaluate the merits and the risks
inherent in receiving Buyer Stock, and (v) is able to bear the economic risk and
lack of liquidity inherent in holding Buyer Stock.
7.28 NO MISLEADING STATEMENTS. No statement made by Seller to Buyer and no
information provided or to be provided by Seller to Buyer pursuant to this
Agreement or in connection with the negotiations covering the Transaction,
contains or will contain any untrue statement of a material fact or omits or
will omit a material fact necessary in order to make such statements or
information not misleading.
ARTICLE VIII.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer makes the following representations and warranties, all of which have been
relied upon by Seller in entering into this Agreement and, except as otherwise
specifically provided, all of which shall be true and correct as of Closing.
8.1 ORGANIZATION. Buyer is a corporation duly organized, validly existing, and
in good standing, under the laws of the Province of British Columbia, and is
duly qualified to do business in the Province of British Columbia as well as the
State of Washington.
8.2 AUTHORIZATION. The execution and delivery of this Agreement by Buyer has
been duly authorized by all necessary corporate action on the part of Buyer.
Evidence of such authorizations shall be delivered to Seller at Closing. This
Agreement has been duly executed by Buyer and delivered to Seller and
constitutes a valid and binding agreement of Buyer, enforceable in accordance
with its terms.
8.3 NO BREACH. None of (i) the execution, delivery and performance of this
Agreement by Buyer, (ii) the consummation of the Transaction, or (iii) Buyer's
compliance with the terms and conditions hereof will, with or without the giving
of notice or the lapse of time or both, conflict with, breach the terms and
conditions of, constitute a default under, or violate Buyer's articles of
incorporation, bylaws, any judgment, decree, order, agreement, lease or other
instrument to which Buyer is a party or by which Buyer is legally bound, on any
law, rule or regulation applicable to Buyer.
18
8.4 LITIGATION. There is no action, suit, investigation or other proceeding
pending or, to Buyer's best knowledge, threatened which may adversely affect
Buyer's ability to perform in accordance with the terms of this Agreement, and
Buyer is unaware of any facts which could reasonably result in any such
proceeding.
ARTICLE IX.
PRE-CLOSING OBLIGATIONS
The parties covenant and agree as follows with respect to the period prior to
the Closing Date:
9.1 FINANCIAL INFORMATION. Between the date hereof and the Closing Date, Company
and Seller shall furnish Buyer with monthly financial statements within fifteen
(15) days after the end of each calendar month, and with such additional data
concerning the financial condition of the Business as are prepared by Company
and Seller in the ordinary course of business, in the same form as the Financial
Statements contained in SCHEDULE 7.17.
9.2 CONSENTS. Company and Seller shall use its reasonable best efforts to obtain
the consents of the other contracting parties as needed to the change in control
of Contracts requiring such consent, which, for Contracts listed on SCHEDULE
2.1.2, are indicated therein. Two weeks from the date hereof, Seller shall
inform Buyer of the status of such efforts to obtain the consents, including the
number and nature of responses to Seller's requests for such consents.
9.3 CONFIDENTIALITY. Each party agrees that any and all information learned or
obtained by it from the other (and that is not otherwise public or known in the
information technology industry) shall be confidential and agrees not to
disclose any such information to any person whatsoever other than as is
necessary for the purpose of effecting the Transaction or as otherwise required
by law.
9.4 ACCESS. Between the date hereof and the Closing Date, Seller shall give,
upon prior notice, Buyer or representatives of Buyer (including underwriters,
lenders, consultants, attorneys, accountants, and investors) reasonable access
to the Company and Assets and to the books and records of Seller and Company
relating to the Business. It is expressly understood that, pursuant to this
Section, Buyer, at its sole expense, shall be entitled to make such audits of
the Business' financial records as Buyer may desire, so long as the same do not
unreasonably interfere with Seller's operation of the Business. Any such
investigations on the part of the Buyer shall in no way relieve the Seller,
Company and ▇▇▇▇▇▇▇▇▇ of responsibility for the continuing truth and full
disclosure all of representations, warranties conditions and covenants contained
in this Agreement and its exhibits, recitals and schedules.
9.5 EMPLOYEE MATTERS.
(a) Seller has provided to Buyer an accurate list of all current employees of
Company together with a description of the terms and conditions of their
respective employment and their duties as of the date of this Agreement. Seller
shall promptly notify Buyer of any changes that occur prior to Closing with
respect to such information.
(b) Buyer may extend offers of employment to all employees of Seller (such
employees as accept such offers of employment are hereinafter referred to as the
"Hired Employees"), which offers shall be on terms and conditions that Buyer
shall determine in its sole discretion. Seller waives any claims against Buyer
or any of the Hired Employees arising from such employment, including without
limitation any claims arising from any employment agreement or non-compete
agreement. Seller shall cooperate with, and use its best efforts to assist,
Buyer in its efforts to secure satisfactory employment arrangements with the
Hired Employees to whom Buyer makes offers of employment.
(c) Nothing contained in this Agreement shall confer upon any employee of
Company any right with respect to continued employment by Buyer, nor shall
anything herein interfere with the right of Buyer to terminate the employment of
any of the Hired Employees at any time, with or without cause or restrict Buyer
in the exercise of its independent business judgment in modifying any of the
terms and conditions of the employment of the Hired Employees.
(d) Seller shall be solely responsible for all of the Employee Plans and all
obligations and liabilities thereunder. Buyer shall not assume any of the
Employee Plans or any obligation or liability thereunder. Nonetheless, Buyer
shall accord each Hired Employee full credit for the time such Hired Employee
was continuously employed by Seller prior to Closing.
(e) No provision of this Agreement shall create any third party beneficiary
rights in any Hired Employee, any beneficiary or dependent thereof, or any
collective bargaining representative thereof, with respect to
19
the compensation, terms and conditions of employment and benefits that may be
provided to any Hired Employee by Buyer or under any benefit plan which Buyer
may maintain.
9.6 OPERATIONS PRIOR TO CLOSING. Between the date of this Agreement and the
Closing Date:
(a) Seller and Company shall operate the Business in the normal and usual
manner, consistent with past practice, and shall conduct the Business only in
the ordinary course. To the extent consistent with such operations, Seller shall
use its best efforts to: (i) keep available for Buyer the services and number of
Seller's present employees reasonably necessary for the operation of the
Business; (ii) preserve Company's present customers and business relations;
(iii) continue to make expenditures and engage in activities designed to promote
the Business; (iv) continue making capital expenditures in accordance with the
capital expenditure budget for the Business and otherwise consistent with past
practices of Company; and (v) undertake to collect the accounts receivable in
accordance with Company's normal and customary collection practices.
(b) Company and Seller shall, subject to Section 13.6, maintain the Assets in
their present condition (reasonable wear and tear in normal use excepted).
(c) Company and Seller shall maintain its books and records in the usual and
ordinary manner, on a basis consistent with prior
periods.
(d) Seller and/or Company shall comply with all laws, rules, ordinances and
regulations applicable to it, to the Shares and Assets and to the Business.
(e) Seller and/or Company shall perform all Contracts without default and shall
pay all of Company's accounts payable in a timely manner; provided, however,
that Company may dispute, in good faith, any alleged obligation of Company.
(f) Company shall not, without the express written consent of Buyer which shall
not be unreasonably withheld, and which shall be deemed given in the event Buyer
has not responded to a written request therefor within ten (10) days: (i) sell
or agree to sell or otherwise dispose of any of the Assets (A) other than in the
ordinary course of business, and (B) unless such Assets are replaced prior to
Closing by assets of equal or greater worth, quality, and utility; (ii)
acquiesce in any infringement, unauthorized use or impairment of the Intangible
Property; (iii) enter into any employment contract on behalf unless the same is
terminable at will and without penalty; or (iv) enter into any other contract,
lease, or agreement that will be binding on Buyer after Closing.
(g) Company shall not, without the express written consent of Buyer, which shall
not be unreasonably withheld, (i) enter into any new loan agreement, credit
facility, line of credit, or other credit agreement or arrangement or (ii) agree
to any modification of the material terms of any existing loan, credit facility,
line of credit, or other credit agreement or arrangement, including without
limitation the maximum principal amount thereof.
9.7 ADVERSE DEVELOPMENTS. Company shall promptly notify Buyer of any unusual or
materially adverse developments that occur prior to Closing with respect to the
Assets or the operation of the Business; provided, however, that Seller's
compliance with the disclosure requirements of this Section 9.7 shall not
relieve Seller of any obligation with respect to any representation, warranty,
or covenant of Seller in this Agreement or waive any condition to Buyer's
obligations under this Agreement.
9.8 ADMINISTRATIVE VIOLATIONS. If Seller and/or Company receives any finding,
order, complaint, citation or notice prior to the Closing Date that states that
any aspect of the Business' operations violates any rule or regulation of any
governmental authority (an "Administrative Violation"), including without
limitation any rule or regulation concerning environmental protection or the
employment of labor, Seller and/or Company shall promptly notify Buyer of the
Administrative Violation, remove or correct the Administrative Violation, and be
responsible for the payment of all costs associated therewith, including any
fines or back pay that may be assessed.
--REMOVED--9.9 BULK SALES ACT. Seller Company and ▇▇▇▇▇▇▇▇▇ agree to indemnify,
defend, and hold Buyer harmless against any claims, liabilities, costs, or
expenses, including reasonable attorney's fees buyer may incur as a result of
the failure to comply with the bulk sales provisions of the Uniform Commercial
Code or similar laws.
9.10 REMOVAL OF RESTRICTIONS. Seller, Company and ▇▇▇▇▇▇▇▇▇ agree to take such
action as necessary prior to Closing to remove all restrictions on the rights or
abilities of the Seller and ▇▇▇▇▇▇▇▇▇ to enter into and perform their
obligations hereunder and under the Covenants and Employment Agreements,
including but not limited to rescission of provisions in the governing documents
of Seller and Company and any agreements among ▇▇▇▇▇▇▇▇▇ prohibiting activities
by ▇▇▇▇▇▇▇▇▇ in competition with
20
Seller or Company or that require any ▇▇▇▇▇▇▇▇▇ or other person to devote his
full-time efforts to work on behalf of Seller.
9.11 HSR ACT NOTIFICATION. Seller to assist and cooperate with Buyer as
necessary to file, within five business days after the date hereof, all
necessary filings required under the HSR Act with respect to the Transaction.
ARTICLE X.
CONDITIONS PRECEDENT
10. 1 MUTUAL CONDITIONS. The obligation of Seller, Company, ▇▇▇▇▇▇▇▇▇ and Buyer
to consummate this Agreement is subject to the satisfaction of each of the
following conditions:
10.1.1 GOVERNMENTAL CONSENTS. All governmental consents required for the
consummation of the Transaction, if any, shall have been obtained, including but
not limited to the expiration or earlier termination of the waiting period under
the HSR Act.
10.1.2 ABSENCE OF LITIGATION. As of the Closing Date, no action, claim, suit or
proceeding seeking to enjoin, restrain, or prohibit the consummation of the
Transaction shall be pending before any court or governmental authority;
provided, however, that this condition may not be invoked by a party if any such
action, suit, or proceeding was solicited or encouraged by, or instituted as a
result of any act or omission of, such party.
10.2 CONDITIONS TO BUYER'S OBLIGATION. In addition to satisfaction of the mutual
conditions contained in Section 10.1, the obligation of Buyer to consummate this
Agreement is subject to the satisfaction of each of the following conditions:
10.2.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Seller, Company and ▇▇▇▇▇▇▇▇▇ to Buyer shall be true, complete, and correct in
all material respects as of the Closing Date with the same force and effect as
if then made.
10.2.2 COMPLIANCE WITH CONDITIONS. All of the terms, conditions and covenants to
be complied with or performed by Seller, Company and ▇▇▇▇▇▇▇▇▇ on or before the
Closing Date shall have been timely complied with and performed in all material
respects.
10.2.3 NO MATERIAL ADVERSE DEVELOPMENT. No material adverse development shall
have occurred with respect to the Business that results in a significant
impairment to the ability of Buyer to operate the Business as it is currently
and contemplated to be operated or represents a substantial impairment of the
aggregate value of the Business or Shares or Assets being conveyed.
10.2.4 CLOSING DOCUMENTS. Seller, Company and ▇▇▇▇▇▇▇▇▇ shall deliver to Buyer
all of the closing documents specified in Section 11.2.1, all of which documents
shall be dated as of the Closing Date, duly executed, and in a form customary in
the state where the Assets are located and reasonably acceptable to Buyer.
10.2.5 THIRD PARTY CONSENTS. Seller shall have obtained the Required Consents,
as defined below, and, subject to Section 12.4, all other consents as indicated
on Schedule 2.1.2, such that Buyer will enjoy all of the rights and privileges
of Seller under the Contracts subject only to the same obligations as are
binding on Seller and/or Company thereunder, pursuant to the present terms
thereof. "Required Consents" for purposes hereof include consents to the
assignment of (i) the Contracts identified by Buyer on SCHEDULE 2.1.2 as
required; and (ii) a sufficient number of remaining Active Customer Contracts
requiring consent to assignment such that the Active Customer Contracts to be
assigned at Closing (whether or not requiring consent to such assignment)
represent, in the aggregate, 90% of the total revenue value of products ordered
or work ongoing under all Active Customer Contracts.
10.2.6 ESTOPPEL CERTIFICATES. Seller/Company shall have obtained such fee
owner's consents and mortgagee's estoppel and non-disturbance agreements with
respect to the lease agreements for the leased premises used in the Business as
are reasonably requested by Buyer not less than thirty (30) days prior to the
Closing Date.
10.2.7 SETTLEMENT OF CLAIMS. Seller, Company and ▇▇▇▇▇▇▇▇▇ shall have settled
any and all claims that affect or concern the Shares or Assets.
10.3 CONDITIONS TO SELLER'S OBLIGATION. In addition to satisfaction of the
mutual conditions contained in Section 10.1, the obligation of Seller, Company
and ▇▇▇▇▇▇▇▇▇ to consummate this Agreement is subject to satisfaction of each of
the following conditions:
10.3.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Buyer to Seller shall be true, complete, and correct in all material respects as
of the Closing Date with the same force-_ and effect as if then made.
21
10.3.2 COMPLIANCE WITH CONDITIONS. All of the terms, conditions, and covenants
to be complied with or performed by Buyer on or before the Closing Date shall
have been timely complied with and performed in all material respects.
10.3.3 PAYMENT. Buyer shall document to Seller the consideration as provided in
Article IV.
10.3.4 CLOSING DOCUMENTS. Buyer shall deliver to Seller all the closing
documents specified in Section 11.2.2, all of which documents shall be dated as
of the Closing Date, duly executed, and in a form customary in transactions of
this type and reasonably satisfactory to Seller.
ARTICLE XI.
CLOSING
11.1 CLOSING DATE. Provided the other conditions to the parties' obligations to
close are satisfied, the Closing hereunder shall occur on April 10, 2000 (the
"Closing Date") The Closing shall be effective as of 11:59 p.m. on the Closing
Date. The Closing shall take place at the offices of Buyer's counsel in
Vancouver British Columbia commencing at 10:00 a.m. on the Closing Date. If, as
of the Closing Date, any condition precedent described in Article X has not been
satisfied, the party that is entitled to require that such condition be
satisfied may (in its sole discretion) notify the other party of the absence of
such condition precedent at or before the Closing and simultaneously therewith
postpone the Closing until a date ten (10) days after all such conditions have
been (or are able to be) performed, and such postponed date shall constitute the
new Closing Date for all purposes hereunder.
11.2 PERFORMANCE AT CLOSING. The following documents shall be executed and
delivered at Closing:
11.2.1 SELLER'S, COMPANY'S AND ▇▇▇▇▇▇▇▇▇'▇ DELIVERIES. Seller, Company and
▇▇▇▇▇▇▇▇▇ shall deliver to Buyer:
(a) A certificate executed by Seller, ▇▇▇▇▇▇▇▇▇ and Company attesting to
Seller's compliance with the matters set forth in Sections 10.2.1, 10.2.2, and
10.2.7 together with certified copies of (i) the Certificate of Incorporation of
Seller and Company and (ii) appropriate evidence of Seller's and Company's
authorization to enter into and consummate this Agreement;
(b) Certificates evidencing the transfer of the Shares to the Buyer;
(c) One or more evidence of consents of third parties as required to Buyer all
of the Contracts or making available to Buyer the benefits of such Contracts in
accordance with Section 12.4 including the Records and the Intangible Property,
(d) The certificate specified in Section 5.1;
(e) The statement of Estimated Closing Date Working Capital;
(f) The Covenants;
(g) The Employment Agreements;
--REMOVED--(h) An executed affidavit, dated not more than thirty (30) days prior
to the Closing Date, in accordance with Code Section 1445(b)(2) and Treasury
Regulation section 1.1445-2(b), which statement certifies that Seller is not a
foreign person and sets forth Seller's name, identification number, and address.
(i) An opinion of Seller's and Company's Counsel OR SUCH OTHER AUTHORITY
ACCEPTABLE TO COUNSEL FOR THE BUYER substantially in the form set forth in
Exhibit G, subject to customary qualifications AND ACCEPTABLE TO COUNSEL FOR THE
BUYER.
11.2.2 BUYER'S DELIVERIES. Buyer shall deliver to Seller:
(a) A certified copies of legended certificates and the applicable pooling
agreements to be delivered to the Transfer Agent of the Buyer for holding the
Buyer's Shares to be delivered according to the intent of this Agreement. A
certificate executed by Buyer attesting to Buyer's compliance with the matters
set forth in Sections 10.3.1 and 10.3.2, together with certified copies of (i)
the Certificate of Incorporation of Buyer and (ii) appropriate evidence of
Buyer's authorization to enter into and consummate this Agreement.
(b) An opinion of Buyer's Counsel relating to the matters described in and
substantially in the form set forth in Exhibit H, subject to customary
qualifications.
11.2.3 OTHER DOCUMENTS AND ACTS. The parties will also execute such other
documents and perform such other acts, before and after the Closing Date, as may
be necessary for the complete implementation and consummation of this Agreement.
ARTICLE XII.
POST-CLOSING OBLIGATIONS
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The parties covenant and agree as follows with respect to the period subsequent
to the Closing Date:
12.1 INDEMNIFICATION.
12.1.1 BUYER'S RIGHT TO INDEMNIFICATION.
(a) Seller, Company and ▇▇▇▇▇▇▇▇▇, jointly and severally, undertake and agree to
indemnify, defend by counsel reasonably acceptable to Buyer, and hold harmless
Buyer, its subsidiaries, affiliates, successors and assigns and their respective
directors, officers, employees, shareholders, representatives, and agents
(hereinafter referred to collectively as "Buyer Indemnitees") from and against
and in respect of any and all losses, costs, liabilities, claims, obligations,
diminution in value and expenses, including reasonable attorneys' fees, incurred
or suffered by a Buyer Indemnitee arising from (i) the claims of third parties
with respect to operation of the Business or ownership of the Assets prior to
Closing not expressly assumed by Buyer pursuant to this Agreement or otherwise
consented to by Buyer in writing; (ii) a breach, misrepresentation, or other
violation of any of Seller's, Company's or ▇▇▇▇▇▇▇▇▇'▇ covenants, warranties, or
representations contained in this Agreement; (iii) all liabilities of Seller,
Company or ▇▇▇▇▇▇▇▇▇ or the Business not expressly assumed by Buyer pursuant to
this Agreement or otherwise consented to by Buyer in writing; (iv) all liens,
charges, or encumbrances on any of the Shares or Assets which are not expressly
permitted by this Agreement or otherwise consented to by Buyer in writing; (v)
all Administrative Violations and alleged Administrative Violations occurring
prior to Closing; and (vi) any breach or default by Seller, Company or ▇▇▇▇▇▇▇▇▇
under any Contract prior to Closing; and (vii) non-compliance with any Year 2000
Condition, as defined below, including but not limited to third party claims
arising therefrom (except to the extent that such non-compliance with a Year
2000 Condition can be remedied through Permitted Corrective Action). The
foregoing indemnity is intended by Seller, Company and ▇▇▇▇▇▇▇▇▇ to cover all
acts, suits, proceedings, claims, demands, assessments, adjustments, costs, and
expenses with respect to any and all of the specific matters in this indemnity
set forth.
(b) For purposes hereof, the following are "Year 2000 Conditions": (i) that all
data-processing hardware, systems, software, and stored data included among the
Assets and all hardware products that have been sold and services that have been
provided in conjunction with the Business (collectively, the "IT Products and
Services") include and incorporate all systems and software solutions necessary
or appropriate to address and accommodate Year 2000 computer systems issues;
(ii) that, where applicable, the IT Products and Services have been tested and
are fully capable of providing accurate results using data having date ranges
spanning the twentieth and twenty-first centuries; and (iii) that, without
limiting the generality of clauses (i) and (ii) of this Section, the IT Products
and Services are able to (A) manage and manipulate data involving all dates from
the twentieth and twenty-first centuries without functional or data abnormality
related to such dates, (B) manage and manipulate data involving all dates from
the twentieth and twenty-first centuries without inaccurate results related to
such dates, (c) have user interfaces and data fields formatted to distinguish
between dates from the twentieth and twenty-first centuries, and (D) represent
all data related to include indications of the millennium, century, and decade
as well as the actual year.
12.1.2 SELLER'S RIGHT TO INDEMNIFICATION. Buyer undertakes and agrees to
indemnify, defend by counsel reasonably acceptable to Seller, and hold harmless
Seller, Company and ▇▇▇▇▇▇▇▇▇, its subsidiaries, affiliates, successors and
assigns and their respective directors, officers, employees, shareholders,
representatives, and agents (hereinafter referred to collectively as "Seller
Indemnitees") against any and all losses, costs, liabilities, claims,
obligations, and expenses, including reasonable attorneys' fees, incurred or
suffered by a Seller Indemnitee arising from (i) the operation of the Business
or ownership of the Shares or Assets after Closing, including Permitted
Corrective Action with respect to products or services delivered by Seller
pursuant to a Customer Contract prior to Closing; (ii) a breach,
misrepresentation, or other violation of any of Buyer's covenants, warranties
and representations contained in this Agreement; (iii) all liabilities under the
Contracts to the extent specifically assumed by
Buyer pursuant to this Agreement; and (iv) any breach or default by Buyer under
any Contract after Closing. The foregoing indemnity is intended by Buyer to
cover all acts, suits, proceedings, claims, demands, assessments, adjustments,
costs, and expenses with respect to any and all of the specific matters in this
indemnity set forth.
12.1.3 CONDUCT OF PROCEEDINGS. If any claim or proceeding covered by the
foregoing agreements to indemnify and hold harmless shall arise, the party who
seeks indemnification (the "Indemnified Party") shall give written notice
thereof to the other party (the "Indemnitor") promptly after the Indemnified
Party
23
learns of the existence of such claim or proceeding; provided, however, that the
Indemnified Party's failure to give the Indemnitor prompt notice shall not bar
the Indemnified Party's right to indemnification unless such failure has
materially prejudiced the Indemnitor's ability to defend the claim or
proceeding. The Indemnitor shall have the right to employ counsel reasonably
acceptable to the Indemnified Party to defend against any such claim or
proceeding, or to compromise, settle or otherwise dispose of the same, if the
Indemnitor deems it advisable to do so, all at the expense of the Indemnitor;
provided that the Indemnitor shall not have the right to control the defense of
any such claim or proceeding unless it has acknowledged in writing its
obligation to indemnify the Indemnified Party fully from all liabilities
incurred as a result of such claim or proceeding and then and periodically
thereafter provides the Indemnified Party with reasonably sufficient evidence of
the ability of the Indemnitor to satisfy any such liabilities. The parties will
fully cooperate in any such action, and shall make available to each other any
books or records useful for the defense of any such claim or proceeding. If the
Indemnitor fails to acknowledge in writing its obligation to defend against or
settle such claim or proceeding within twenty (20) days after receiving notice
thereof from the Indemnified Party (or such shorter time specified in the notice
as the circumstances of the matter may dictate), the Indemnified Party shall be
free to dispose of the matter, at the expense of the Indemnitor, in any way in
which the Indemnified Party deems to be in its best interest.
12.1.4 RIGHT OF OFFSET. Each of Buyer, Seller, Company and ▇▇▇▇▇▇▇▇▇ shall have
the right to offset against amounts in the aggregate owing to the other amounts
owing to such party pursuant to this Article XII. In such case, Buyer's right of
offset under this Section shall also apply to the Post-Closing Escrow, and
Seller shall take such action as necessary under the terms of the Post-Closing
Escrow to make such amount available to Buyer.
12.1.5 LIMITS ON AND CONDITIONS OF INDEMNIFICATION; THRESHOLD AND CAP.
--REMOVED--Notwithstanding any other provision hereof, no Idemnified Party shall
be entitled to make a claim against an Indemnitor in respect of any breach of
this Agreement except to the extent that the aggregate amount of such damages
exceeds the amount of ten thousand dollars ($10,000).
Notwithstanding any other provision of the Agreement, (i) the total
indemnity obligation of either Seller or Buyer shall be limited to the amount of
the Total Consideration paid by Buyer hereunder, and (ii) the total indemnity
obligation hereunder required to be paid by ▇▇▇▇▇▇▇▇▇ shall be limited to the
sum of (A) the shares of Buyer Stock delivered by Buyer that have been received
and still held by Seller, valued at the fair market value of such shares as of
the date issued by Buyer; plus (B) the amount received by such Shareholder in an
arm's length, bona fide sale of such shares to a third party that is not
affiliated with the Seller or any Shareholder; provided, that if such sale was
not in an arm's length, bona fide transaction with a non-affiliated third party,
then the indemnity amount for such selling Shareholder in respect of such shares
shall be the fair market value of the shares sold as of the date of such sale;
plus (C) the amount paid under employment contracts of the ▇▇▇▇▇▇▇▇▇.
12.1.6 PURCHASE PRICE ADJUSTMENT. The parties agree to treat all payments made
under Sections 12.1.1 and 12.1.2 as adjustments to the Purchase Price for Tax
purposes.
12.2 POST-CLOSING ACCESS. Each party agrees that it will cooperate with and make
available to the other party, during normal business hours and upon reasonable
notice, all books and records which are necessary or useful in connection with
any Tax inquiry, audit, investigation, or dispute, any litigation or
investigation or any other matter requiring any such books and records,
information or employees for any reasonable business purpose. The party
requesting any such books and records, information or employees shall bear all
of the out-of-pocket costs and expenses reasonably incurred in connection with
providing such books and records, information or employees. All information
received pursuant to this Section 12.2 shall be kept confidential by the party
receiving it. If Buyer or Seller is required by legal process or operation of
law to disclose any confidential information, it shall provide the other party
with prompt written notice of such request so that such other party may seek an
appropriate protective order.
12.3 POST-CLOSING TAX COVENANT. Seller, Company and ▇▇▇▇▇▇▇▇▇ shall, jointly and
severally, pay after the Closing any Pre-Closing Taxes that have given rise to,
or could give rise to any, lien or encumbrance on the Shares or Assets in the
hands of the Buyer
12.4 FAILURE TO OBTAIN CONSENTS. If any Contract requires the consent of a third
party in order to assign it to Buyer and such consent has not been obtained by
the Closing Date (a "Non-Consented Contract"), then Seller (i) shall use its
reasonable best efforts to make available to Buyer the benefits that arise after
the Closing Date under the Non-Consented Contract, and (ii) shall continue after
the Closing Date to use its reasonable best efforts to obtain such consent. To
the extent that Seller has made available to Buyer the benefits that arise after
the Closing Date under a Non-Consented Contract, Buyer
24
shall assume Seller's obligations that arise under the Non-Consented Contract
after the Closing Date, whether or not any such benefits are actually received
by Buyer.
ARTICLE XIII.
DEFAULT AND REMEDIES; DAMAGE
13.1 TERMINATION BY SELLER UPON BUYER'S DEFAULT. This Agreement may be
terminated by Seller and the purchase and sale of the Shares abandoned, if
Seller is not then in material default, upon written notice to Buyer, upon the
occurrence of any of the following:
(a) If on the date that would otherwise be the Closing Date (subject to the
right of Buyer to cure provided in Section 13.3 hereof) any of the conditions
precedent to the obligations of Seller set forth in this Agreement have not been
satisfied in all material respects or waived in writing by Seller.
(b) If there shall be in effect on the date that would otherwise be the Closing
Date any judgment, decree, or order that would prevent or make unlawful the
Closing.
(c) If the Closing shall not have occurred by April 15, 2000.
13.2 TERMINATION BY BUYER UPON SELLER'S DEFAULT. This Agreement may be
terminated by Buyer and the purchase and sale of the Shares and Assets
abandoned, if Buyer is not then in material default, upon written notice to
Seller, upon the occurrence of any of the following:
(a) If on the date that would otherwise be the Closing Date (subject to the
right of Seller to cure provided in Section 13.3 hereof) any of the conditions
precedent to the obligations of Buyer set forth in this Agreement have not been
satisfied in all material respects or waived in writing by Buyer.
(b) If there shall be in effect on the date that would otherwise be the Closing
Date any judgment, decree or order that would prevent or make unlawful the
Closing.
(c) If the Closing shall not have occurred by April 15, 2000.
13.3 BREACH AND OPPORTUNITY TO CURE. If either party believes the other to be in
default hereunder, the non-defaulting party shall provide the defaulting party
with notice specifying in reasonable detail the nature of such default. If such
default has not been cured by the earlier of: (i) the Closing Date, or (ii)
within thirty (30) days after delivery of such notice, then the party giving
such notice may (x) extend the Closing Date under Section 11.1 (but no such
extension shall constitute a waiver of such non defaulting party's right to
terminate as a result of such default), (y) exercise the remedies available to
such party pursuant to Section 13.4 or 13.5, subject to the right of the other
party to contest such action through appropriate proceedings AND/OR (z)
terminate this Agreement.
13.4 SELLER'S REMEDIES. If this Agreement is terminated by Seller or ▇▇▇▇▇▇▇▇▇
as a result of a material breach of this Agreement by Buyer, and Seller and
▇▇▇▇▇▇▇▇▇ are not in material breach of this Agreement, then the payment to
Seller of One Hundred fifty THOUSAND USDollars (US$150,000) shall be liquidated
damages and shall constitute full payment and the exclusive remedy for any
damages suffered by Seller. Seller and Buyer agree in advance that actual
damages would be difficult to ascertain and that the amount of the payment to be
made to Seller pursuant to this Section is a fair and equitable amount to
reimburse Seller for damages sustained due to Buyer's breach of this Agreement.
Seller waives all claims to damages arising from any termination of this
Agreement except for liquidated damages under the circumstances set forth in the
first sentence of this Section.
13.5 BUYER'S REMEDIES. The parties recognize that if, prior to Closing, Seller
breaches this Agreement and refuses to perform under the provisions of this
Agreement, monetary damages alone would not be adequate to compensate Buyer for
its injury. Buyer shall therefore be entitled, in addition to any other remedies
that may be available (including but not limited to the provisions of Section
12.1 (relating to Indemnification)), to obtain specific performance of the terms
of this Agreement prior to Closing. If any action is brought by Buyer to enforce
this Agreement prior to Closing, Seller shall waive the defense that there is an
adequate remedy at law. Following the Closing, Buyer shall be entitled, in
addition to any other remedies that may be available, to seek specific
performance of the terms of this Agreement if such remedy is available at
equity. In the event Buyer elects to terminate this Agreement as a result of
Seller's default instead of seeking specific performance, Buyer shall be
entitled to recover Buyer's damages but such damages shall be limited in quantum
to the value determined by arbitration based upon the cost of the development
work and a reasonable profit on the CreditSovl portal value.
13.6 DAMAGE.
13.6.1 RISK OF LOSS. The risk of loss or damage to the Shares and Assets shall
be upon Seller at all times prior to the Closing, and upon Buyer from and after
the Closing. In the event of loss or damage prior to Closing, Seller shall
promptly notify Buyer thereof and shall repair, replace, and restore the lost or
25
damaged property to its former condition as soon as possible. If such repair,
replacement, and restoration has not been completed prior to the Closing Date,
Buyer may, at its option:
(a) elect to terminate this Agreement, but only if the failure to repair,
replace and restore the lost or damaged Asset continues for a period in excess
of sixty (60) days from the Closing Date without consideration of this Section
13.6;
(b) elect to consummate the Transaction on the Closing Date in which event
Seller shall pay to Buyer the amount necessary to restore the lost or damaged
Asset to its former condition and against such obligation shall assign to Buyer
all of Seller's rights under any applicable insurance policies; or
(c) elect to postpone the Closing Date until a date within fifteen (15) business
days after Seller gives written notice to Buyer of completion of the repair,
replacement, and restoration of such lost or damaged Asset. If, after the
expiration of that extension period, the lost or damaged property has not been
adequately repaired, replaced, or restored, Buyer may terminate this Agreement,
and the parties shall be released and discharged from any further obligation
hereunder.
13.7 LEGAL ACTIONS. If, prior to the Closing Date, any action, suit, or
proceeding shall have been instituted by or before any court or other
governmental authority to enjoin, restrain, or prohibit the consummation of the
Transaction, the Closing may be adjourned at the option of either party, for a
period of up to ninety (90) days, and if, at the end of such period, the action,
suit, or proceeding shall not have been favorably resolved, either party may, by
written notice to the other, terminate this Agreement; provided, however, that
if such action, suit, or proceeding shall have been solicited or encouraged by,
or instituted as a result of any act or omission of, Seller or Buyer, then such
party shall not have any right of adjournment or termination pursuant to this
Section In the event of termination pursuant to this Section, the parties shall
be released and discharged from any further obligation hereunder.
13.8 FAILURE TO OBTAIN CONSENTS. Buyer's sole remedy (assuming that Seller has
satisfied its obligations under this Agreement, including its obligation under
Section 9.2 to use its reasonable best efforts to obtain all necessary consents
and its obligation under Section 12.4 to use its reasonable best efforts to make
the benefits of the Non-Consented Contracts available to Buyer) for Seller's
failure to obtain sufficient numbers of consents within the time period provided
herein shall be to elect whether or not to proceed with the Closing hereunder,
and in no event shall Buyer be entitled to collect damages from Seller, whether
or not a Closing takes place hereunder.
ARTICLE XIV.
GENERAL PROVISIONS
14.1 EXPENSES. Except as otherwise provided herein, all expenses involved in the
preparation and consummation of this Agreement shall be borne by the party
incurring the same whether or not the Transaction is consummated. All recording
costs for instruments of transfer, and all stamp, sales, use and transfer taxes
shall be paid by Seller or ▇▇▇▇▇▇▇▇▇.
14.2 NOTICES. All notices, requests, demands, and other communications
pertaining to this Agreement shall be in writing and shall be deemed duly given
when delivered personally (which shall include delivery by Federal Express or
other nationally recognized, reputable overnight courier service that issues a
receipt or other confirmation of delivery) to the party for whom such
communication is intended, or three (3) business days after the date mailed by
certified or registered U.S. mail, return receipt requested, postage prepaid,
addressed as follows:
(a) If to Seller, Company or ▇▇▇▇▇▇▇▇▇:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Financial Management Group LLC Patagonia Corp.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ at address set out above.
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
(b) If to Buyer:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Softcare Electronic Commerce Inc.
107 ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
26
Copy to ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 307 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇
Any party may change its address for notices by notice to the others given
pursuant to this Section.
14.3 ATTORNEYS' FEES. If either party initiates any litigation against the other
party involving this Agreement, the prevailing party in such action shall be
entitled to receive reimbursement from the other party for all reasonable
attorneys' fees and other costs and expenses incurred by the prevailing party in
respect of that litigation, including any appeal, and such reimbursement may be
included in the judgment or final order issued in that proceeding.
14.4 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION RIGHTS. The
several representations and warranties of the parties contained herein, and the
parties' respective indemnification rights pursuant to Section 12.1, shall
survive the Closing for a period of twelve (12) months, at which time the same
shall expire (except for claims asserted during such twelve-month); provided,
however, that representations and warranties with respect to title,
authorization, and environmental matters shall survive in perpetuity and the
representation with respect to Taxes shall survive the Closing until Ninety days
after the applicable statute of limitations.
14.5 EXCLUSIVE DEALINGS. For so long as this Agreement remains in effect,
neither Seller Company or ▇▇▇▇▇▇▇▇▇, its officers, directors, employees, any
person acting on Seller's behalf, shall, directly or indirectly, solicit or
initiate any offer from, or conduct any negotiations with, any person other than
Buyer or Buyer's assignee(s) concerning the acquisition of the Shares, Assets or
the Business.
14.6 WAIVER. Unless otherwise specifically, agreed in writing to the contrary:
(i) the failure of any party at any time to require performance by any other of
any provision of this Agreement shall not affect such party's right thereafter
to enforce the same; (ii) no waiver by any party of any default by any other
shall be valid unless in writing and acknowledged by an authorized
representative of the non-defaulting party, and no such waiver shall be taken or
held to be a waiver by such party of any other preceding or subsequent default;
and (iii) no extension of time granted by any party for the performance of any
obligation or act by any other party shall be deemed to be an extension of time
for the performance of any other obligation or act hereunder.
14.7 ASSIGNMENT. No party may assign its rights or obligations hereunder without
the prior written consent of the other parties except: (i) Buyer may assign its
rights and obligations to a corporation, partnership, or other business entity
that controls, is controlled by, or is under common control with Buyer, and (ii)
Buyer may make a collateral assignment of its rights under this Agreement to any
lender that provides funds to Buyer for the acquisition of the Shares, Assets or
operation of the Business.
14.8 ENTIRE AGREEMENT. This Agreement and the Exhibits and Schedules hereto
(which are incorporated by reference herein) constitute the entire agreement
between the parties with respect to the subject matter hereof and referenced
herein, supersede and terminate any prior agreements between the parties
(written or oral). This Agreement may not be altered or amended except by an
instrument in writing signed by the party against whom enforcement of any such
change is sought. 1
4.9 COUNTERPARTS. This Agreement may be signed in any number of counterparts
with the same effect as if the signatures on each such counterpart were on the
same instrument.
14.10 CONSTRUCTION. The Section headings of this Agreement are for convenience
only and in no way modify, interpret or construe the meaning of specific
provisions of the Agreement. As used herein, the neuter gender shall also denote
the masculine and feminine, and the masculine gender shall also denote the
neuter and feminine, where the context so permits.
14.11 SCHEDULES AND EXHIBITS. The Schedules and Exhibits to this Agreement are a
material part of this Agreement.
14.12 SEVERABILITY. If any one or more of the provisions contained in this
Agreement should be found invalid, illegal, or unenforceable in any respect, the
validity, legality, and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. Any illegal or
unenforceable term shall be deemed to be void and of no force and effect only to
the minimum extent necessary to bring such term within the provisions of
applicable law and such term, as so modified, and the balance of this Agreement
shall then be fully enforceable.
14.13 CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without regard to the
choice of law rules utilized in that jurisdiction.
14.14 COUNSEL. Each party has been or has had the opportunity of being
represented by its own counsel and advisors in connection with the negotiation
and preparation of this Agreement and,
27
consequently, each party hereby waives the application of any rule of law that
would otherwise be applicable in connection with the interpretation of this
Agreement, including but not limited to any rule of law to the effect that any
provision of this Agreement shall be interpreted or construed against the party
whose counsel drafted that provision.
14.15 PUBLIC STATEMENTS. Neither Seller, Company nor ▇▇▇▇▇▇▇▇▇ shall, without
the prior written approval of the Buyer, make any press release or other public
announcement concerning the transactions contemplated by this Agreement except
to the extent that either party shall be so obligated by law, in which case the
other party shall be so advised and the parties shall use their best efforts to
cause a mutually agreeable release or announcement to be issued.
14.16 ARBITRATION. Notwithstanding anything herein to the contrary, in the event
that there shall be a dispute among the parties after the Closing arising out of
or relating to this Agreement, including without limitation the indemnities
provided in Section 12.1, or the breach thereof, the parties agree that such
dispute shall be resolved by final and binding arbitration in San Francisco
California administered by the American Arbitration Association in accordance
with its rules for commercial arbitration then in effect or such other
procedures as the parties may agree to prior to the Closing. Any award issued as
a result of such arbitration shall be final and binding between the parties
thereto, and shall be enforceable by any court having jurisdiction over the
party against whom enforcement is sought. The fees and expenses of such
arbitration (including reasonable attorneys' fees) or any action to enforce an
arbitration award shall be paid by the party that does not prevail in such
arbitration.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
by a respective duly authorized officer as of the date first written above.
Softcare ▇▇.▇▇▇, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------------
Per: ▇▇▇▇▇ ▇▇▇▇▇▇, CFO
▇▇▇▇ ▇▇▇▇▇▇▇▇▇:
-------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Patagonia Corp.
/s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------
Per:
Financial Management Group LLC
/s/
--------------------------------------------------------
Per:
Financial Marketing Group LLC
/s/ 4/10/00
--------------------------------------------------------
Per:
28
VOLUNTARY POOLING AGREEMENT
---------------------------
THIS AGREEMENT DATED FOR REFERENCE THE 10th DAY OF APRIL 2000.
BETWEEN Patagonia Corp., a company incorporated under the laws of Turks
and Caicos and having its registered off ice at ▇.▇. ▇▇▇ ▇▇▇
Charter House, the Centre, Leeward Highway, Providenciales,
British West Indies;
(the "Pooled Shareholder")
AND: Softcare ▇▇.▇▇▇, Inc., a company incorporated under the laws of
British Columbia and having offices at 107 ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇; ("Softcare")
AND: PACIFIC CORPORATE TRUST COMPANY, having an office at ▇▇▇ - ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇;
(the "Trustee")
WHEREAS the Pooled Shareholder is desirous of placing in a pool certain shares
in the capital of Softcare, being in respect of the Pooled Shareholder the
number of shares set out in Schedule "A" hereto attached (the "Softcare
Shares"), upon and subject to the terms and conditions hereinafter more
particularly set out;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the premises
and in consideration of the sum of Ten Dollars ($10) now paid by the parties
hereto, each to the other, the receipt and sufficiency of which is hereby
acknowledged, and in further consideration of the mutual covenants and
conditions hereinafter contained, the parties hereto agree (the "Agreement") as
follows:
1. In this Agreement:
(a) "Exchange" shall mean the Vancouver Stock Exchange;
(b) "Issue Date" shall mean the day the Pooled Shareholder is issued the
applicable shares;
(c) "Termination Date" means the date this Agreement is terminated in
accordance with paragraph 5;
2. The Pooled Shareholder hereby agrees with the Trustee that it will deliver or
cause to be delivered to the Trustee certificates for their Softcare Shares as
set out in the said Exhibit A. These shares are to be held by the Trustee and
released, subject to early termination of the pooling restrictions of the
Softcare Shares as are applicable in accordance with paragraph 5. The Share
Purchase Agreement between the Pooled Shareholder and Softcare inter alia with
respect to the Creditsolv Vertical Portal an extract from which is attached (the
"Credit Agreements) identifies those Softcare Shares defined in the Credit
Agreement and as are specified in Exhibit A to this Agreement.
3. The Pooled Shareholder is entitled to a letter or receipt from the Trustee
stating the number of Softcare Shares represented by certificates held for that
Pooled Shareholder by the Trustee subject to the terms of this Agreement, but
such letter or receipt shall not be assignable.
4. Upon receipt by the Trustee of a statutory declaration authorized by the
Board of Directors of Softcare that the terms for release such Shares as are
specified therein the Trustee shall cause such declaration to be forwarded to
the last know address of the Pooled Shareholder. If no response to such delivery
is received within 20 business days of confirmed delivery then the Trustee shall
release the shares noted as the case may be. If a dispute is raised by the
Pooled Shareholder then the Trustee shall be a liberty to submit such dispute to
the parties for resolution. The Trustee shall retain such shares until such time
as the Trustee shall receive direction by sufficient authority (in the
discretion of the Trustee to accept) to enable it to release or maintain pooling
restrictions on such shares.
5. The terms and provisions of this Agreement may not be amended or modified and
the Pooled Shareholder will not sell, deal in, assign, or transfer in any manner
whatsoever or agree to sell, deal in
29
assign or transfer in any manner whatsoever any of the Softcare Shares or
beneficial ownership of or any interest in them and, except with the written
consent of the full Board of Directors of Softcare. The Trustee shall not accept
or acknowledge any transfer, assignment, declaration of trust or any other
document evidencing a change in legal or beneficial ownership of or any interest
in the Softcare Shares, except as may be required by reason of the death or
bankruptcy of a Pooled Shareholder, in which case the Softcare Shares of that
Pooled Shareholder subject to this Agreement shall be transferred to the person
or persons, firm or corporation who thus become legally entitled thereto,
provided however that this Agreement shall continue to apply to those Softcare
Shares and shall bind the transferee.
6. This Agreement shall terminate on the date (the "Termination Date") which is
the earlier of:
(a) Two years from the date of this pooling agreement, or
(b) the date a written notice, signed by authority of written
resolution of the Board of Directors of Softcare is delivered to
the Trustee instructing the Trustee that the Agreement is to be
terminated and that certificates representing the balance of the
Softcare Shares then held by the Trustees are to be released to
the Pooled Shareholder.
7. This Agreement shall enure to the benefit of and be binding upon the parties
hereto and each of their heirs, executors, administrators, successors and
permitted assigns.
8. This Agreement may be executed in several parts in the same form and such
part as so executed shall together constitute one original agreement, and such
parts, if more than one, shall be read together and construed as if all the
signing parties hereto had executed one copy of this Agreement.
9. The parties hereto agree that in consideration of the Trustee agreeing to act
as Trustee as aforesaid, the Pooled Shareholder do hereby covenant and agree
from time to time and at all times hereinafter well and truly to save, defend,
and keep harmless and fully indemnify the Trustee, its successors and assigns,
from and against all loss, costs, charges, damages and expenses which the
Trustee, its successors or assigns, may at any time or times hereafter bear,
sustain, suffer or be put to for or by reason or on account of its acting as
Trustee pursuant to this Agreement.
10. It is further agreed by and between the parties hereto and, without
restricting the foregoing indemnity, that in case proceedings should hereafter
be taken in any Court respecting the shares hereby pooled, the Trustee shall not
be obliged to defend any such action or submit its rights to the Court until it
shall have been indemnified by other good and sufficient security in addition to
the indemnity hereinbefore given against costs of such proceedings.
11. It is further agreed by and between the parties hereto that this Agreement
shall be construed in accordance with the laws of the Province of British
Columbia.
IN WITNESS WHEREOF the Pooled Shareholder and the Trustee have executed the
presents as from the day and year first above written
Softcare ▇▇.▇▇▇, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Per: ▇▇▇▇▇ ▇▇▇▇▇▇, CFO
Patagonia Corp.
/s/ ▇▇▇▇▇ ▇▇▇▇▇ POA
------------------------------------------
Per:
Pacific Corporate Trust Company
------------------------------------------
Per: Authorized Signatory
30
Exhibit A to Pooling Agreement
ARTICLE IV.
PURCHASE PRICE AND PAYMENT
4.1 TOTAL CONSIDERATION AND TERMS. The aggregate consideration for the Shares to
be purchased by Buyer hereunder and for the Covenants (the "Total
Consideration") will, subject to adjustments as provided in Section 4.2 and
Article V, consist of:
(a) subject to applicable regulatory approvals and securities laws applicable to
the Buyer, Seller and/or Company and ▇▇▇▇▇▇▇▇▇, issue and allot 100,000 common
shares in the capital of the Buyer to the Seller (the "First Shares"). The First
Shares will be issued subject to a hold period of two years from the date of
issuance such hold period to be specified in a pooling agreement exhibited to
this Agreement and to specify the terms affecting both these shares and any
other shares issued pursuant to other terms of this Agreement. If the required
regulatory approvals or securities laws prohibit or otherwise impair the
issuance of the First Shares then the parties will take all reasonable steps
resolve any such limitations and failing a satisfactory resolution the First
Shares will be canceled and the Shares returned by the Buyer to the Seller. and
(b) upon establishment of the first stage of the Creditsolv Vertical Portal
(completion of the E-services package) to the reasonable satisfaction of the
Buyer and subject to applicable regulatory approvals and securities laws
applicable to the Buyer, Seller and/or Company and ▇▇▇▇▇▇▇▇▇, the issuance to
the Seller of a further 95,000 common shares 61 the Buyer (the "Second Shares").
The Second Shares will similarly be subject to a hold period of two years from
the date of the issuance of the First Shares or the issuance of the Second
Shares which ever is acceptable to the applicable regulatory authorities plus a
$USF12,000;
(c) upon the Creditsolv Vertical Portal itself generating US300,000 dollars in
any month in contracted enforceable recurring monthly revenues, and subject to
applicable regulatory approvals and securities laws applicable to the Buyer,
Seller and/or Company and ▇▇▇▇▇▇▇▇▇, the issuance to the Seller of a further
55,000 common shares of the Buyer (the "Third Shares").
(d) upon the Creditsolv Vertical Portal itself generating US1,000,000 dollars in
any month in contracted enforceable recurring monthly revenues, and subject to
applicable regulatory approvals and securities laws applicable to the Buyer,
Seller and/or Company and ▇▇▇▇▇▇▇▇▇, the issuance to the Seller of a further
50,000 common shares of the Buyer (the "Fourth Shares").
31
BUSINESS PROTECTION AGREEMENT
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
In consideration of employment by Softcare ▇▇.▇▇▇, Inc., a British Columbia
corporation or its subsidiaries, affiliates, joint venturers, successors or
assigns (collectively referred to in this Agreement as "Employer"), ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ("Employee") agrees as follows:
1. Services
Employee has been engaged by Employer to perform the duties (this term is used
interchangeably with the term "Services") generally described in the Employment
Agreement ("Employment Agreement") that is referred to in Schedule 1 and
attached to this Business Protection Agreement ("Agreement"). Employee
understands that during his/her employment the scope of the Services may change,
and that Employer may from time to time add to or amend Schedule 1 as needed to
ensure that it accurately describes the scope of the Services Employee has been
engaged to provide to Employer. Employee understands and agrees that while
Employer will endeavor to keep Schedule 1 current, Employer's failure to include
in Schedule 1 a particular task or aspect of work actually delivered by the
Employee shall not be construed as excluding such task or aspect of work from
this Agreement. Accordingly, Employee agrees that for the purposes of this
Agreement, the term Services shall mean not only the services described in
Schedule 1 (which is attached hereto and incorporated herein by this reference),
including any amendments by Employer, but also any additional task or work
actually performed by Employee for Employer.
2. Disclosure and Assignment to Employer
Employee will disclose immediately and assign to Employer, or to any other
person designated in writing by Employer, all inventions, discoveries and
improvements, patentable or unpatentable, made, conceived or first reduced to
practice by Employee, alone or jointly with others, during his/her employment,
which inventions or improvements:
(a) are made, conceived or first reduced to practice in the performance of
Services assigned to or undertaken by the Employee as a part of such employment,
or
(b) are made, conceived or first reduced to practice with the material use
of the Employer's time, material, facilities, or funds, or
(c) make material use of any trade secrets, know how, or other confidential
information of the Employer's with which Employee comes into contact, or
(d) relate to any investigations or obligations undertaken by the Employer,
the details of which the Employee became aware of because of this employment, or
(e) relate to investigations or obligations undertaken by the Employer
which are being performed at the location of Employee's employment and regarding
which the Employee has any access or information whatsoever.
All such inventions, discoveries and improvements ("Inventions") will be the
sole and exclusive property of Employer. Employee hereby disclaims any and all
interest in such Inventions and agrees not to take or do any act or to authorize
any other person to take or do any act that could reasonably be expected to
impair Employer's rights therein.
Employee and Employer understand and agree that the provisions of this Agreement
requiring assignment of Inventions to the Employer do not apply to any invention
which qualifies fully under the provisions of California Labor Code Section 2870
(attached hereto as Exhibit A, and incorporated herein by this reference).
Employee will advise the Company promptly in writing of any inventions that
Employee believes meet the criteria in California Labor Code Section 2870 and
not otherwise disclosed on Exhibit A (which is attached hereto and incorporated
herein by this reference).
32
3. Perfection of Rights, Title and Interest, and Obtaining of Patent
Employee will, during his/her employment for Employer and thereafter, perform at
the request and expense of Employer all lawful acts and execute, acknowledge and
deliver all instruments deemed necessary or desirable by Employer to vest in
Employer the entire right, title and interest in the Inventions referenced
above, and to enable Employer to properly prepare, file and prosecute
applications for and obtain and defend patents of the United States and of
foreign countries, as well as reissues, renewals and extensions thereof, and to
obtain and record title to such applications and patents, so that Employer shall
be the sole and absolute owner thereof in any and all countries in which it may
desire patent or like protection.
4. Work for Hire
To the extent not otherwise covered by the provisions above, Employee agrees
that all creative work, including without limitation designs, drawings,
specifications, techniques, models, and processes, prepared or originated by
Employee during or within the scope of employment, whether or not subject to
protection under federal copyright or other law ('Works"), constitutes work made
for hire, all rights to which are owned by Employer; and, in any event, employee
hereby assigns to Employer all right, title and interest, whether by way of
copyright, trade secret, or otherwise, in all such Works, whether or not subject
to protection by copyright or other law.
5. Need for Employer Protection.
Employee recognizes and acknowledges that:
(a) In the course of performing his/her duties for Employer, he/she will
have access to Confidential Information (as defined below), the ownership and
confidential status of which are highly important to Employer. Employee also
acknowledges that except as otherwise specifically provided for in this
Agreement such Confidential Information is and shall continue to be the
exclusive and permanent property of Employer, whether or not prepared in whole
or in part by Employee, and whether or not disclosed or entrusted to Employee in
connection with his/her duties for Employer. Confidential Information shall not
be deemed disclosed to the public due to its being disclosed to Employee or to
any past, present, or potential employees of Employer.
(b) Employer has a vital and substantial interest in maintaining the
confidentiality of its Confidential Information, in maintaining a stable work
force, in continuing its relationships with its Business Contacts, in remaining
in business, and in avoiding or minimizing any disruption of, damage or
impairment to, or interference with its business.
c) The Confidential Information and Business Contacts that Employee will
obtain as a result of his/her employment hereunder is special and unique to
Employer, and a breach by Employee of any of the terms and covenants of this
Agreement will result in irreparable and continuing harm to Employer for which
there will be no adequate remedy at law and for which the injury could not be
adequately compensated by money damages.
6. Confidential Information
As used in this Agreement, the term "Confidential Information" shall mean any
information of Employer (including any parent, subsidiary, joint venturer,
predecessor, successor, or otherwise affiliated corporation, partnership or
other business enterprise, hereinafter collectively referred to as the
"Company"), whether or not in written form, which has not been previously
disclosed or otherwise made generally available to the public at large by the
Company and which is either (1) designated or treated by the Company as
confidential or proprietary or as a trade secret or (2)
33
the Employee knows or should know is considered confidential by the Company.
Consistent with the definition set forth above, the term "Confidential
Information" shall include, but is not limited to, documents or other
information related to the Company's: manufacturing processes; business plans;
specifications, designs, schematics, drawings, formulae, processes, compositions
and material formulations; current products or technology; computer programs;
plant facilities; operations; sales; price information; new products or
technology which are under or being considered for development; distribution
network; source of supplies or raw materials; production techniques; costs;
specialized requirements or preferences of the Company's customers, inventions,
discoveries, or improvements; methods of conducting or obtaining business,
including methods of marketing, customer acquisition and development; non-public
lists of actual or prospective clients, customers, suppliers, vendors or
investors provided to Employee by Employer or developed or learned by Employee
while employed by Employer (collectively "Business Contacts"); corporate plans
or manuals; software and data; finances; legal affairs; labor or other reports;
current or future business opportunities; relationships and/or terms with third
party companies; the terms of Employer's agreements with Business Contacts; and
other information marked, designated and/or treated by the Company as
confidential.
Employee understands that Employer uses products and services supplied by third
parties in the course of its business ("Third Party, Products") and that these
products and services and the manner in which they are used by Employer are
necessary to the success of the Employer's business. Employee acknowledges that
the selection, arrangement, location, combination, and distribution of Third
Party Products and the manner in which they are used or deployed by Employer in
the course of its business constitutes Employer Confidential Information and
that all such information is subject to the terms of this Agreement.
7. Third Party Information
Employee understands that in order for the Employer to use Third Party Products,
a third party may provide the Employer with information that such third party
deems proprietary and that may be subject to protection under trade secret,
copyright and other laws, and that, as a condition to such disclosure, the third
party may place restrictions on how the Employer may use the Third Party
Products and any related information. During the course of his/her employment by
Employer, Employee will have access to the Third Party Products and related
information and understands that his/her failure to comply with such
restrictions could subject the Employer to liability and damage the Employer's
business. Employee therefore agrees that all information regarding Third Party
Products shall be deemed Confidential Information and that Employee shall not
use or disclose any such information for any purpose other than for the benefit
of the Employer without the Employer's prior written consent. Employee further
agrees that Employer shall own all right, title and interest in and to such
information and all Inventions and Works based on, using or related to the third
party products, services or information, and hereby transfers, assigns and
conveys to Employer all rights he/she may have therein.
8. Additional Protections
Employee understands that he/she may have access to information that does not
meet the definition of Confidential Information, but is nevertheless protected
from unauthorized use by copyright, patent, and other laws and that most
Confidential Information, including, but not limited to, any documents and
information regarding pricing, costs, and the specialized requirements of
Company's customers, also constitutes Company Trade Secrets. Employee
acknowledges that the fact such information is not Confidential Information does
give Employee
34
any right or license to use such information or limit the other protections
available to the Company for such information under statute or common law.
Employee acknowledges that his/her position with Employer is such that he/she
will have access to important and sensitive information that is unique to
Employer regarding Employer's business, including without limitation its
strategies for designing and delivering communications services, identifying
markets for services, selecting and building sites for communications
facilities, developing and introducing services, selecting business partners and
Third Party Products, targeting and exploiting business opportunities, and
pricing services. Employee acknowledges that all such information is critical to
Employer's success, constitutes Confidential Information and Trade Secret, and
gives Employer an advantage over its competitors. Employee understands that such
information would be extremely valuable to a competitor since it would permit
the competitor to anticipate and potentially pre-empt Employer's future business
plans and that such disclosure would seriously damage Employer's business.
Employee further acknowledges that if he/she were to be employed by any person
(other than Employer) to perform services similar to those described in Schedule
1 he/she could not provide such services without being influenced by information
obtained or created by Employee in the course of performing his/her duties for
Employer. Accordingly, Employee agrees that he/she will not, during the term of
his/her employment by Employer and for a period of one year thereafter, enter
into any agreement with any person to provide services that would place Employee
in a position in which Employee's knowledge of Employer's Confidential
Information and Trade Secrets could influence Employee's actions or otherwise be
used for the benefit of any such person.
9. Scope of Employer Protection
Employer is or expects to be a multi-national concern that conducts or expects
to conduct business throughout the world. In his/her employment with Employer,
Employee may perform services in more than one city, county, state or country,
and may gain access to Confidential Information that pertains not only to the
specific area in which Employee lives and/or works but also to other cities,
counties, states and countries in which Employer does business. The parties
acknowledge that due to the character of Employer's business, a geographic
restriction on this Agreement would not adequately protect Employer's legitimate
business interests. The Employer protections stated herein are intended to
protect Employer to the fullest extent possible in all of the cities, counties,
states, and countries in which Employer does business. Employer and Employee
expressly acknowledge and agree that each of the Employer protections stated
herein is intended to be as broad as may be permitted under the provisions of
applicable law. Employer and Employee further acknowledge and agree that if any
of the protections herein are deemed unenforceable, the unenforceability of any
one or more Employer protections stated herein (or any portion thereof), shall
not affect the enforceability of any other protection (or portion thereof)
stated herein.
10. Nondisclosure of Confidential Information
Employee shall hold all Confidential Information in a fiduciary capacity and
shall exercise the highest degree of care in safeguarding Confidential
Information against loss, theft, or other inadvertent disclosure, and shall take
all steps reasonably necessary to maintain the confidentiality thereof. Employee
shall not, directly or indirectly, either during the term of his/her employment
(except as required in the course of the performance of her/his duties), or at
any time after her/his employment is terminated for any reason:
35
(a) disclose or furnish to any person, corporation or other entity, or use
in his/her own or in any other person's business, any Confidential Information;
(b) utilize any such Confidential Information for the gain, advantage, or
profit of anyone other than Employer; or
(c) take advantage of any business opportunity which, because of
Confidential Information obtained in Employee's employment capacity or as a
result of his/her employment, Employee knows the Company may or is likely to
consider. If Employee is served with any subpoena or other compulsory judicial
or administrative process calling for production of Confidential Information,
Employee will immediately notify Employer in order that the Company may take
such action as it deems necessary to protect its interests.
11. Non-solicitation of Employees/Contractors
a) Unless Employee receives the prior express written consent of the
Employer, Employee shall not during the term of Employee's employment and for
one year after termination of his/her employment, induce or attempt to induce,
directly or by assisting others, any person who is in the employment of, or is
providing services to, the Employer to leave such employment or business
relationship.
(b) If Employee violates Section 1 above, then at the sole election of
Employer, Employee shall pay to Employer an amount equal to one year's salary
and benefits for each such identified employee (this being an amount reflective
of the costs to the Employer to train such person. This remedy, if elected by
Employer, shall be in addition to any other remedies provided to Employer under
this Agreement or by law.
12. Non-Provision of Services to Business Contacts
(a) Unless Employee receives the prior, express, written consent of
Employer, Employee shall not, during the term of Employee's employment and for
one year after termination of her/his employment, solicit [or accept], or
attempt to solicit [or accept], directly or by assisting others, any work,
services, goods, or other business from any of Business Contacts of Employer (as
defined above) or solicit or entice any Business Contact to discontinue,
terminate, cancel or revoke its contractual relationship with the company. This
protection is in addition to, and not a substitute for, the protections
contained in Section 10.
(b) If Employee violates this Section above, then at the sole election of
Employer, Employee shall pay to Employer fifty percent (50%) of the actual fees
billed or billable to such Business Contacts during that period of time. This
remedy, if elected by Employer, shall be in addition to any other remedies
provided to Employer under this BPA or by law.
13. Delivery of Models and Other Materials
During or after his/her employment for Employer, Employee will deliver
immediately to Employer upon its request all models, drawings, maps, plans,
reports, memoranda, diaries, notes, records, plats, blueprints, sketches,
letters, manuals, documents, chemicals, biological materials and all other
writings, graphic records and materials made or compiled by, or delivered or
made available to, or otherwise obtained by him/her, containing or relating to
any inventions, discoveries and improvements which the Employee is required to
disclose under this Agreement, or with respect to any other trade secrets or
other confidential information, knowledge or data designated by Employer which
Employee has obtained as the result of
36
his/her employment. Employee will retain no excerpts, notes, photographs,
reproductions or copies or recorded storage media of any kind of any such
material.
14. List of Inventions Not Subject to This Agreement
Employee attaches as Schedule 2 to this Agreement, a list and description of all
patented and unpatented inventions (including those for which patent
applications are pending), which he/she has made, conceived or first reduced to
practice prior to his/her employment by Employer. Employee acknowledges and
agrees that she/he was given an ample opportunity to prepare Schedule 2 and that
Schedule 2 lists all inventions, discoveries and improvements that Employee may
later claim to be excluded from this Agreement. By executing this Agreement
Employee represents and warrants that except as listed on Schedule 2, he/she has
not made, conceived, or reduced any invention to practice prior to his/her
employment by Employer. Employee acknowledges and agrees that except for
inventions excluded under Section 2, all other inventions he/she makes,
conceives, or reduces to practice while he/she is employed by Employer,
including without limitation any modifications or improvements to the inventions
listed in Schedule 2, are subject to this Agreement and shall be the property of
Employer.
Notice: Schedule 2 contains the only pre-employment inventions, discoveries and
improvements that Employee may claim to be excluded from this Agreement.
Employee may not add inventions, discoveries or improvements to Schedule 2 that
were developed before his/her employment after he/she executes this Agreement or
after the termination of his/her employment with Employer. However, during
Employee's employment Employer may add inventions, discoveries and improvements
that Employee discloses to Employer pursuant to Section 2 as having been
developed by Employee entirely on his/her own time if they were developed
without using Employer's equipment, supplies, facilities, or trade secret
information, or are not otherwise subject to this Agreement. Except for such
additions, Employee hereby waives any right to claim that any inventions,
discoveries or improvements not listed on Schedule 2 are excluded from this
Agreement.
Employee understands that Employer is relying on the accuracy of the information
provided in Schedule 2 and the truthfulness of representations Employee has made
in Sections 2, 14, 15 and 16 and that Employer would not continue Employee's
employment or utilize any of the inventions, discoveries and improvements or
other works developed by Employee if Employer believed them to be false.
Employee further understands that Employer would suffer substantial damage if it
utilized inventions, discoveries and improvements or works made by Employee
during his/her employment and Employee later claimed or a court determined that
such inventions were excluded from this Agreement or not Employees property.
Therefore, to the extent that Employee later claims or a court determines that
any inventions, discoveries, improvements or works made by Employee but not
listed or otherwise excluded under Section 2, is excluded from this Agreement or
not Employer's property, you (the Employee) hereby grant to Employer a
perpetual, royalty free, irrevocable license to make, have made, use and sell
the inventions, discoveries, improvements and works.
15. Disclosure of Prior Restrictions
Employee understands that Employer is not employing Employee in order to obtain
any information that is the property of any previous employers or any other
person or entity for whom Employee has performed services. Employee represents
that he/she is not currently subject to any restriction that would prevent or
limit Employee from carrying out his/her duties for Employer. Employee further
represents that he/she will not disclose or provide any
37
information to Employer (a) relating to any inventions, discoveries, or
improvements excluded from this Agreement which Employer shall not be free to
use without restriction or (b) which, if used by Employer, would cause Employer
to infringe or violate the rights of any person, including without limitation,
Employee.
16. Other Legal Rights of Employer
The rights and duties of Employer and Employee under this Agreement are in
addition to, and not in lieu of, those rights and duties afforded to and imposed
upon them by law, or at equity. The parties acknowledge that although a
condition of continued employment, this Agreement does not constitute a contract
of employment, nor does it entitle Employee to employment for any specific term.
All of Employer's employees are employees "at-will" unless specifically provided
otherwise by written agreement signed by Employee and Employer's President.
17. Breach
In the event of breach of any of the terms or covenants contained in this
Agreement, Employee agrees that Employer shall be entitled to temporary and/or
permanent injunctive relief upon a showing that Employee has breached this
Agreement without proof of actual damage and without posting a bond therefore,
against the Employee and any of the Employee's partners, agents, employers or
employees, or any persons acting for or with the Employee, and/or an order of
temporary specific performance enforcing this Agreement, and any other temporary
and/or permanent remedies provided to Employer by applicable law. Such temporary
and/or permanent relief shall remain in effect until the matter in dispute is
permanently resolved or longer as determined by a Court of competent
jurisdiction.
18. Severability of Provisions
The provisions of this Agreement are severable, and if any provision hereof is
held invalid or unenforceable the remaining provision of this Agreement shall
not be affected thereby.
19. Successors, Heirs, Assignees or Nominees
This Agreement shall inure to the benefit of and be binding upon Employer, its
successors, assigns or nominees and also upon Employee, his/her estate, heirs
and assigns. Employee's contractual obligations under this Agreement are
personal and neither Employee's rights or obligations under this Agreement may
be assigned or transferred. Employer's rights and obligations, however, may be
assigned or transferred.
20. Waiver
No provision of this Agreement may be waived by either party, except by a
writing signed by that party. The waiver of any portion of this Agreement with
respect to any person or invention shall be construed narrowly and shall not
affect the right of the party granting the waiver to enforce any other provision
of this Agreement or to enforce any provision of this Agreement with respect to
any other person or invention.
21. California Law to Be Applied
The interpretation of and performance under this Agreement shall be governed by
the laws of the State of California, without giving effect to its choice of law
principles.
38
22. Attorney Fees
In the event of default under this Agreement, the defaulting party shall
reimburse the nondefaulting party for all costs and expenses reasonably incurred
by the non-defaulting party in connection with the default, including without
limitation, attorney fees. In addition, the prevailing party in any suit or
action to enforce this Agreement, or any term hereof, shall be entitled to
recover all its costs and expenses incurred in connection with such suit or
action, including, without limitation, reasonable attorneys' fees, arbitration
costs, and other legal costs incurred at all levels and proceedings.
23. Venue/Jurisdiction
Venue for any action hereunder shall lie in the Superior Court of Orange County,
California (the "Venue"), provided that, if Employer simultaneously brings suit
against Employee and/or a subsequent employer of Employee in the Venue and
within one or more other jurisdictions, venue will also be proper in the other
jurisdiction or jurisdictions. Both parties waive the right to change such venue
and hereby consent to the jurisdiction of such courts for all potential claims
under this Agreement.
24. Term of this Agreement
This Agreement shall continue until no longer applicable. For example, by their
stated terms the non-solicitation and non-provision of services provisions apply
during the term and for one year after termination of Employee's employment.
Also, for example, the non-disclosure obligations set forth in Sections 5-10 of
this Agreement will continue beyond the term of employment of Employee and until
the covered information is released to the public by Employer.
NOTICE TO EMPLOYEE
This agreement may require transfer to your Employer of certain inventions and
may impact your ability to perform services in the future. You may wish to
consult your legal counsel for advice concerning your rights and obligations.
This agreement is entered into by the parties hereto freely and without coercion
and with their full knowledge of its present future legal effect.
X /s/▇▇▇▇▇ ▇▇▇▇▇▇ April 10/2000
--------------------------------- ------------------------------
Employer Signature Date
X /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ April 10/2000
--------------------------------- ------------------------------
Employee Signature Date
39
Schedule 1 to Business Protection Agreement
Description of Services to be provided by Employee and Countries Served by
Employer
See Employment Agreement attached hereto for Services listed
Jurisidictions:
Canada
United States of America
Argentina
40
Exhibit A - California Labor Code Section 2870
Employment Agreements; Assignment of Rights
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer.
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an Employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision the provision is against the public
policy of this state and is unenforceable."
41
Schedule 2 to Business Protection Agreement
List of Inventions Not Subject to this Agreement
NONE
/s/
-----------(initial)
42
Schedule 1 to Business Protection Agreement
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
And as Exhibit to Share Purchase Agreement
of Financial Management Group LLC
THIS AGREEMENT made the 1st day of April 2000
BETWEEN: SOFTCARE ▇▇.▇▇▇, Inc. a corporation incorporated under the laws
of British Columbia with business offices located at 107 ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(the "Employer")
AND: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Employee")
WHEREAS:
A. The Employer is engaged in the business of ENGINEERING, DESIGN
IMPLEMENTATION AND MARKETING OF COMPUTER PROGRAMS and BUSINESS SOLUTIONS
FOR ELECTRONIC COMMERCE (the "Business"); and
B. The involvement of the Employee is important to the Employer in the
provision of credit services by establishing a vertical portal and the
Employee has entered into an agreement as part of a transaction to vend a
credit counselling business associated with the Employee to the Employer;
NOW THEREFORE in consideration of the premises and the agreements herein
contained and other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
1. Employment
The Employer hereby agrees to employ the Employee as VP Latin American Business
Development and VP Business Development/Financial Services of the Employer
reporting to the President or persons he designates, and the Employee hereby
accepts such employment with the Employer on the terms and subject to the
conditions herein set forth.
2. Duties
Subject to instructions that may be received from time to time by the Employee
from the President and Vice President the Employer, the Employee shall do the
following:
i. serve the Employer faithfully;
ii. observe all policies of the Employer and perform all services
normally associated with the position to the best of his ability;
43
iii devote all of his normal working time and attention to such
duties as may be assigned to her by the Employer;
iv. carry out all lawful instructions given to her by the Employer;
and
v. endeavour to further the best interests of the Employer generally.
3. Term
The term of this agreement shall be for two years commencing on the date hereof,
unless terminated earlier pursuant to the provisions of paragraph 8 hereof. The
term shall be automatically renewed thereafter from year to year subject to the
ability of either party to decline to renew by notice in writing to the other
given at least thirty (30) days prior to any renewal date.
4. Annual Salary
For all services rendered by the Employee pursuant to this agreement, the
Employee shall receive a gross annual salary, subject to lawful and normal
withholdings and deductions, of US$120,000 per annum payable in equal monthly
instalments in arrears. The annual salary shall be subject to annual review by
the board of directors.
5. Business Expenses
The Employer agrees to reimburse the Employee periodically for all reasonable
ordinary and necessary business expenses actually and properly incurred by the
Employee in the performance of his duties under this agreement. The Employee
shall provide budgets that are pre approved and then substantiate expenses with
vouchers and statements in respect of all such expenses.
6. Vacation
The Employee shall be entitled to three weeks of paid vacation for each
consecutive twelve month period in which he is employed by the Employer pursuant
to this agreement, the timing of such vacation to be mutually agreed upon
between the Employee and the Employer; however, generally notice of vacation
will be given 30 days prior to the proposed taking thereof.
7. Other Remuneration
The Employee will be paid the following commissions based upon revenues
generated by the Creditsolv Vertical Portal for which the Employee was hired to
develop, implement and market:
A one percent commission on gross revenues generated exclusively
through the Creditsolv Portal while employed and to last for a maximum
of five years; plus
For each customer introduced to the Creditsolv Portal by the Employee
while employed by the Employer a five percent commission on gross
revenue generated by that client through the Creditsolv Portal in the
first year; three percent in years 2 and 3 and one percent in years 4
and 5 with no commission payable in respect of that client after year
5.
44
For each customer introduced to the Company other than to the
Creditsolv Portal which is dealt with above, the Employee while
employed by the Employer shall be paid a normal company commission
including sharing of commissions where several parties efforts are
involved in closing and receipt of payment for such new customer.
In addition to the share consideration paid to Patagonia Corp. in acquiring the
Creditsolv Software by virtue of the acquisition of Financial Management Group
LLC and Financial Marketing Group LLC, the Employee shall be entitled to receive
a USF$75,000 bonus upon annual revenues of the Employer generally attaining $US1
1,000,000 by May 31, 2001. If revenues fall short of the goal in the subject
time frame then this obligation shall terminate.
Employee shall receive a car allowance equal to $US600 per month.
8. Termination and Compensation at Termination
Notwithstanding anything herein contained to the contrary, the employment of the
Employee shall terminate in the following manner and the Employee shall be
compensated as indicated:
a. Termination by the Employer
This agreement and the employment of the Employee hereunder may be
terminated effective at any time for cause by the Employer giving notice in
writing of such termination to the Employee. As used herein, "cause" shall
include, without limitation, gross misconduct, gross negligence or
incompetence by the Employee in performing his duties hereunder, the
commission by the Employee of an act of theft, dishonesty, embezzlement or
vandalism against the Employer or any of its subsidiaries or the conviction
of the Employee for any crime except minor traffic offences. If this
agreement and the employment of the Employee hereunder is so terminated by
the Employer in its discretion, pursuant to this clause, the Employee shall
continue to accrue and receive his said annual salary and bonus to the date
of termination, subject to such adjustments as may be appropriate
considering the basis for termination (for example but not necessarily
limited to setoffs for theft).
b. Termination by Mutual Agreement
This agreement and the employment of the Employee hereunder may be
terminated by mutual agreement in writing of the parties hereto in which
event the Employee shall continue to accrue and receive his said annual
salary to the agreed date of termination. Notwithstanding any other
provision of this Agreement, if the Employee leaves the employment of the
Employer of his own accord while commissions provided for in this Agreement
are otherwise continuing to be payable, then in order to allow the Employer
to attract alternative staff to replace the voluntarily departing Employee,
commissions remaining due
45
or coming due for the balance of the term provided for in this Agreement
shall be reduced by TWENTY FIVE percent with the Employer retaining the
balance remaining.
c. Termination by Death, Bankruptcy or Insolvency
This agreement and the employment of the Employee hereunder shall be
terminated by the death of the Employee or if the Employee shall become and
remain physically or mentally incapable of performing substantially the
essential functions of the job with or without reasonable accommodation. No
salary shall accrue or be paid thereafter. The Employee shall be entitled
to participate in any disability insurance program, if any, subscribed to
by the Employer.
d. Termination by Notice
This agreement and the employment of the Employee hereunder shall terminate
without cause upon SIX month's notice from the earlier of June 1, 2001 or
six months from the date that the Creditsolv Portal is operational, by the
Employer to the Employee. Employer, at its option, may require the Employee
terminate forthwith upon payment of an amount equal to salary that the
Employee would have been entitled to receive for such period, including
provisions being made for benefits, bonuses and stock options during the
noted period. SESB Trust plan participation, if any, and restrictions
therein would continue to apply to all unvested trust stock.
9. Notices
Whenever this agreement requires or permits any consent, approval, notice,
request or demand from one party to the other, the consent, approval, notice,
request or demand must be in writing (including, without limitation, telex or
telecopy communications) to be effective and shall be deemed to have been given
on the earlier of receipt or the fifth day after it is enclosed in an envelope,
addressed to the party to be notified, at the address set out for that party
above (or such other address as may have been designated by written notice),
properly stamped, sealed and deposited in the Canadian mail system. Any consent,
approval, notice, request or demand aforesaid if delivered, telexed or
telecopied shall be deemed to have been given on the date of such delivery,
telexed or telecopied transmission. Any such delivery shall be sufficient, inter
alia, if left with a person resident in the house at the above address of the
Employee in the case of the Employee and a receptionist at the above address of
the Employer or to the Secretary in the case of the Employer. The Employer or
the Employee may change its or his address for service, from time to time, by
notice given in accordance with the foregoing.
9. Entire Agreement
This agreement taken together with the terms of any Business Protection
Agreement between the Employee and the Employer constitutes the entire
understanding between the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous agreement, understandings, negotiations
and discussions, whether oral or written, of the parties.
46
10. Applicable Law
Whether pursuant to court proceedings or otherwise, the rights and obligations
of the parties under and pursuant to this agreement shall be construed under and
governed by the laws of the State of California.
11. Assignment
Neither the rights nor the obligations under this agreement shall be assigned or
otherwise disposed of without the prior written consent of the non-assigning
party, except that the Employer may assign this agreement to any successor
corporation without such consent.
12. Binding Agreement
Subject to the provisions hereof, this agreement shall be binding upon and shall
enure to the benefit of the parties hereto and upon their respective heirs,
legal representative, successors and permitted assigns.
13. Waivers and Consents
One or more consents to or waivers of any breach of a term or provision of this
agreement by either party shall not be construed as a consent to or waiver of a
subsequent breach of the same term or provision, nor shall it be considered a
consent to or waiver of any other then existing or subsequent breach of a
different term or provision. The consent or waiver by either party to or of any
act by the other party requiring such consent or waiver shall be deemed not to
waive or render unnecessary consent to or waiver of any subsequent similar act.
No custom or practice of either party shall constitute a waiver of either
party's rights to insist upon strict compliance with the terms and provisions
hereof.
14. Severability
If any term or provision of this agreement shall be or shall become illegal or
unenforceable, the remaining terms and provisions shall nevertheless be valid,
binding, and subsisting.
15. Survival of Covenants
The provisions of paragraph 9 shall survive termination of the employment of the
Employee under this agreement.
16. Headings
The insertion of headings is for convenience of reference only and shall not
affect the construction or interpretation of this
agreement.
IN WITNESS WHEREOF this agreement is executed by the parties as of the date
first above written.
THE CORPORATE SEAL of the Employer )
was hereunto affixed in the presence of: )
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ) C/S
47
SIGNED, SEALED AND DELIVERED )
by the Employee in the presence of: )
)
/s/ ) -------------------------------
------------------------------------------- ) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Signature of Witness )
Name: )
----------------------------------
Address )
-------------------------------)
48
BUSINESS PROTECTION AGREEMENT
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
In consideration of employment by Softcare ▇▇.▇▇▇, Inc., a British Columbia
corporation or its subsidiaries, affiliates, joint venturers, successors or
assigns (collectively referred to in this Agreement as "Employer"), ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ("Employee") agrees as follows:
1. Services
Employee has been engaged by Employer to perform the duties (this term is used
interchangeably with the term "Services") generally described in the Employment
Agreement ("Employment Agreement") that is referred to in Schedule 1 and
attached to this Business Protection Agreement ("Agreement"). Employee
understands that during his/her employment the scope of the Services may change,
and that Employer may from time to time add to or amend Schedule 1 as needed to
ensure that it accurately describes the scope of the Services Employee has been
engaged to provide to Employer. Employee understands and agrees that while
Employer will endeavor to keep Schedule 1 current, Employer's failure to include
in Schedule 1 a particular task or aspect of work actually delivered by the
Employee shall not be construed as excluding such task or aspect of work from
this Agreement. Accordingly, Employee agrees that for the purposes of this
Agreement, the term Services shall mean not only the services described in
Schedule 6 1 (which is attached hereto and incorporated herein by this
reference), including any amendments by Employer, but also any additional task
or work actually performed by Employee for Employer.
2. Disclosure and Assignment to Employer
Employee will disclose immediately and assign to Employer, or to any other
person designated in writing by Employer, all inventions, discoveries and
improvements, patentable or unpatentable, made, conceived or first reduced to
practice by Employee, alone or jointly with others, during his/her employment,
which inventions or improvements:
(a) are made, conceived or first reduced to practice in the performance of
Services assigned to or undertaken by the Employee as a part of such employment,
or
(b) are made, conceived or first reduced to practice with the material use
of the Employer's time, material, facilities, or funds, or
(c) make material use of any trade secrets, know how, or other confidential
information of the Employer's with which Employee comes into contact, or
(d) relate to any investigations or obligations undertaken by the Employer,
the details of which the Employee became aware of because of this employment, or
(e) relate to investigations or obligations undertaken by the Employer
which are being performed at the location of Employee's employment and regarding
which the Employee has any access or information whatsoever. All such
inventions, discoveries and improvements ("Inventions") will be the sole and
exclusive property of Employer. Employee hereby disclaims any and all interest
in such Inventions and agrees not to take or do any act or to authorize any
other person to take or do any act that could reasonably be expected to impair
Employer's rights therein.
Employee and Employer understand and agree that the provisions of this Agreement
requiring assignment of Inventions to the Employer do not apply to any invention
which qualifies fully under the provisions of California Labor Code Section 2870
(attached hereto as Exhibit A, and incorporated herein by this reference).
Employee will advise the Company promptly in writing of any inventions that
Employee believes meet the criteria in California Labor Code Section 2870 and
not otherwise disclosed on Exhibit A (which is attached hereto and Incorporated
herein by this reference).
49
3. Perfection of Rights, Title and Interest, and Obtaining of Patent
Employee will, during his/her employment for Employer and thereafter, perform at
the request and expense of Employer all lawful acts and execute, acknowledge and
deliver all instruments deemed necessary or desirable by Employer to vest in
Employer the entire right, title and interest in the Inventions referenced
above, and to enable Employer to properly prepare, file and prosecute
applications for and obtain and defend patents of the United States and of
foreign countries, as well as reissues, renewals and extensions thereof, and to
obtain and record title to such applications and patents, so that Employer shall
be the sole and absolute owner thereof in any and all countries in which it may
desire patent or like protection.
4. Work for Hire
To the extent not otherwise covered by the provisions above, Employee agrees
that all creative work, including without limitation designs, drawings,
specifications, techniques, models, and processes, prepared or originated by
Employee during or within the scope of employment, whether or not subject to
protection under federal copyright or other law ("Works"), constitutes work made
for hire, all rights to which are owned by Employer; and, in any event, employee
hereby assigns to Employer all right, title and interest, whether by way of
copyright, trade secret or otherwise, in all such Works, whether or not subject
to protection by copyright or other law.
5. Need for Employer Protection.
Employee recognizes and acknowledges that:
(a) In the course of performing his/her duties for Employer, he/she will
have access to Confidential Information (as defined below), the ownership and
confidential status of which are highly important to Employer. Employee also
acknowledges that except as otherwise specifically provided for in this
Agreement such Confidential Information is and shall continue to be the
exclusive and permanent property of Employer, whether or not prepared in whole
or in part by Employee, and whether or not disclosed or entrusted to Employee in
connection with his/her duties for Employer. Confidential Information shall not
be deemed disclosed to the public due to its being disclosed to Employee or to
any past, present, or potential employees of Employer.
(b) Employer has a vital and substantial interest in maintaining the
confidentiality of its Confidential Information, in maintaining a stable work
force, in continuing its relationships with its Business Contacts, in remaining
in business, and in avoiding or minimizing any disruption of, damage or
impairment to, or interference with its business.
(c) The Confidential Information and Business Contacts that Employee will
obtain as a result of his/her employment hereunder is special and unique to
Employer, and a breach by Employee of any of the terms and covenants of this
Agreement will result in irreparable and continuing harm to Employer for which
there will be no adequate remedy at law and for which the injury could not be
adequately compensated by money damages.
6. Confidential Information
As used in this Agreement, the term "Confidential Information" shall mean any
information of Employer (including any parent, subsidiary, joint venturer,
predecessor, successor, or otherwise affiliated corporation, partnership or
other business enterprise, hereinafter collectively referred to as the
"Company"), whether or not in written form, which has not been previously
disclosed or
50
otherwise made generally available to the public at large by the Company and
which is either (1) designated or treated by the Company as confidential or
proprietary or as a trade secret or (2) the Employee knows or should know is
considered confidential by the Company. Consistent with the definition set forth
above, the term "Confidential Information" shall include, but is not limited to,
documents or other information related to the Company's: manufacturing
processes; business plans; specifications, designs, schematics, drawings,
formulae, processes, compositions and material formulations; current products or
technology; computer programs; plant facilities; operations; sales; price
information; new products or technology which are under or being considered for
development; distribution network; source of supplies or raw materials;
production techniques; costs; specialized requirements or preferences of the
Company's customers, inventions, discoveries, or improvements; methods of
conducting or obtaining business, including methods of marketing, customer
acquisition and development; non-public lists of actual or prospective clients,
customers, suppliers, vendors or investors provided to Employee by Employer or
developed or learned by Employee while employed by Employer (collectively
"Business Contacts"); corporate plans or manuals; software and data; finances;
legal affairs; labor or other reports; current or future business opportunities;
relationships and/or terms with third party companies; the terms of Employer's
agreements with Business Contacts; and other information marked, designated
and/or treated by the Company as confidential. Employee understands that
Employer uses products and services supplied by third parties in the course of
its business ("Third Party Products") and that these products and services and
the manner in which they are used by Employer are necessary to the success of
the Employer's business. Employee acknowledges that the selection, arrangement,
location, combination, and distribution of Third Party Products and the manner
in which they are used or deployed by Employer in the course of its business
constitutes Employer Confidential Information and that all such information is
subject to the terms of this Agreement.
7. Third Party Information
Employee understands that in order for the Employer to use Third Party Products,
a third party may provide the Employer with information that such third party
deems proprietary and that may be subject to protection under trade secret,
copyright and other laws, and that, as a condition to such disclosure, the third
party may place restrictions on how the Employer may use the Third Party
Products and any related information. During the course of his/her employment by
Employer, Employee will have access to the Third Party Products and related
information and understands that his/her failure to comply with such
restrictions could subject the Employer to liability and damage the Employer's
business. Employee therefore agrees that all information regarding Third Party
Products shall be deemed Confidential Information and that Employee shall not
use or disclose any such information for any purpose other than for the benefit
of the Employer without the Employer's prior written consent. Employee further
agrees that Employer shall own all right, title and interest in and to such
information and all Inventions and Works based on, using or related to the third
party products, services or information, and hereby transfers, assigns and
conveys to Employer all rights he/she may have therein.
8. Additional Protections
Employee understands that he/she may have access to information that does not
meet the definition of Confidential Information, but is nevertheless protected
from unauthorized use by copyright, patent, and other laws and that most
Confidential Information, including, but not limited to, any documents and
information regarding pricing, costs, and the specialized requirements of
Company's customers, also constitutes Company Trade Secrets. Employee
51
acknowledges that the fact such information is not Confidential Information does
give Employee any right or license to use such information or limit the other
protections available to the Company for such information under statute or
common law. Employee acknowledges that his/her position with Employer is such
that he/she will have access to important and sensitive information that is
unique to Employer regarding Employer's business, including without limitation
its strategies for designing and delivering communications services, identifying
markets for services, selecting and building sites for communications
facilities, developing and introducing services, selecting business partners and
Third Party Products, targeting and exploiting business opportunities, and
pricing services. Employee acknowledges that all such information is critical to
Employer's success, constitutes Confidential Information and Trade Secret, and
gives Employer an advantage over its competitors. Employee understands that such
information would be extremely valuable to a competitor since it would permit
the competitor to anticipate and potentially pre-empt Employer's future business
plans and that such disclosure would seriously damage Employer's business.
Employee further acknowledges that if he/she were to be employed by any person
(other than Employer) to perform services similar to those described in Schedule
1 he/she could not provide such services without being influenced by information
obtained or created by Employee in the course of performing his/her duties for
Employer. Accordingly, Employee agrees that he/she will not, during the term of
his/her employment by Employer and for a period of one year thereafter, enter
into any agreement with any person to provide services that would place Employee
in a position in which Employee's knowledge of Employers Confidential
Information and Trade Secrets could influence Employee's actions or otherwise be
used for the benefit of any such person.
9. Scope of Employer Protection
Employer is or expects to be a multi-national concern that conducts or expects
to conduct business throughout the world. In his/her employment with Employer,
Employee may perform services in more than one city, county, state or country,
and may gain access to Confidential Information that pertains not only to the
specific area in which Employee lives and/or works but also to other cities,
counties, states and countries in which Employer does business. The parties
acknowledge that due to the character of Employer's business, a geographic
restriction on this Agreement would not adequately protect Employer's legitimate
business interests. The Employer protections stated herein are intended to
protect Employer to the fullest extent possible in all of the cities, counties,
states, and countries in which Employer does business.
Employer and Employee expressly acknowledge and agree that each of the Employer
protections stated herein is intended to be as broad as may be permitted under
the provisions of applicable law. Employer and Employee further acknowledge and
agree that if any of the protections herein are deemed unenforceable, the
unenforceability of any one or more Employer protections stated herein (or any
portion thereof), shall not affect the enforceability of any other protection
(or portion thereof) stated herein.
10. Nondisclosure of Confidential Information
Employee shall hold all Confidential Information in a fiduciary capacity and
shall exercise the highest degree of care in safeguarding Confidential
Information against loss, theft, or other inadvertent disclosure, and shall take
all steps reasonably necessary to maintain the confidentiality thereof. Employee
shall not, directly or indirectly, either during the term of his/her
52
employment (except as required in the course of the performance of her/his
duties), or at any time after her/his employment is terminated for any reason:
(a) disclose or furnish to any person, corporation or other entity, or use
in his/her own or in any other person's business, any Confidential Information;
(b) utilize any such Confidential Information for the gain, advantage, or
profit of anyone other than Employer; or
(c) take advantage of any business opportunity which, because of
Confidential Information obtained in Employee's employment capacity or as a
result of his/her employment, Employee knows the Company may or is likely to
consider.
If Employee is served with any subpoena or other compulsory judicial or
administrative process calling for production of Confidential Information,
Employee will immediately notify Employer in order that the Company may take
such action as it deems necessary to protect its interests.
11. Non-solicitation of Employees/Contractors
(a) Unless Employee receives the prior express written consent of the
Employer, Employee shall not during the term of Employee's employment and for
one year after termination of his/her employment, induce or attempt to induce,
directly or by assisting others, any person who is in the employment of, or is
providing services to, the Employer to leave such employment or business
relationship.
(b) If Employee violates Section 1 above, then at the sole election of
Employer, Employee shall pay to Employer an amount equal to one year's salary
and benefits for each such identified employee (this being an amount reflective
of the costs to the Employer to train such person. This remedy, if elected by
Employer, shall be in addition to any other remedies provided to Employer under
this Agreement or by law.
12. Non-Provision of Services to Business Contacts
(a) Unless Employee receives the prior, express, written consent of
Employer, Employee shall not, during the term of Employee's employment and for
one year after termination of her/his employment, solicit [or accept], or
attempt to solicit [or accept], directly or by assisting others, any work,
services, goods, or other business from any of Business Contacts of Employer (as
defined above) or solicit or entice any Business Contact to discontinue,
terminate, cancel or revoke its contractual relationship with the company. This
protection is in addition to, and not a substitute for, the protections
contained in Section 10.
(b) If Employee violates this Section above, then at the sole election of
Employer, Employee shall pay to Employer fifty percent (50%) of the actual fees
billed or billable to such .Business Contacts during that period of time. This
remedy, if elected by Employer, shall be in addition to any other remedies
provided to Employer under this BPA or by law.
13. Delivery of Models and Other Materials
During or after his/her employment for Employer, Employee will deliver
immediately to Employer upon its request all models, drawings, maps, plans,
reports, memoranda, diaries, notes, records, plats, blueprints, sketches,
letters, manuals, documents, chemicals, biological materials and all other
writings, graphic records and materials made or compiled by, or delivered or
made available to, or otherwise obtained by him/her, containing or relating to
any inventions, discoveries and improvements which the Employee is required to
disclose under this Agreement, or with respect to any other trade secrets or
other confidential information.
53
knowledge or data designated by Employer which Employee has obtained as the
result of his/her employment. Employee will retain no excerpts, notes,
photographs, reproductions or copies or recorded storage media of any kind of
any such material.
14. List of Inventions Not Subject to This Agreement
Employee attaches as Schedule 2 to this Agreement, a list and description of all
patented and unpatented inventions (including those for which patent
applications are pending), which he/she has made, conceived or first reduced to
practice prior to his/her employment by Employer. Employee acknowledges and
agrees that she/he was given an ample opportunity to prepare Schedule 2 and that
Schedule 2 lists all inventions, discoveries and improvements that Employee may
later claim to be excluded from this Agreement. By executing this Agreement
Employee represents and warrants that except as listed on Schedule 2, he/she has
not made, conceived, or reduced any invention to practice prior to his/her
employment by Employer. Employee acknowledges and agrees that except for
inventions excluded under Section 2, all other inventions he/she makes,
conceives, or reduces to practice while he/she is employed by Employer,
including without limitation any modifications or improvements to the inventions
listed in Schedule 2, are subject to this Agreement and shall be the property of
Employer.
Notice: Schedule 2 contains the only pre-employment inventions, discoveries and
improvements that Employee may claim to be excluded from this Agreement.
Employee may not add inventions, discoveries or improvements to Schedule 2 that
were developed before his/her employment after he/she executes this Agreement or
after the termination of his/her employment with Employer. However, during
Employee's employment Employer may add inventions, discoveries and improvements
that Employee discloses to Employer pursuant to Section 2 as having been
developed by Employee entirely on his/her own time if they were developed
without using Employers equipment, supplies, facilities, or trade secret
information, or are not otherwise subject to this Agreement. Except for such
additions, Employee hereby waives any right to claim that any inventions,
discoveries or improvements not listed on Schedule 2 are excluded from this
Agreement.
Employee understands that Employer is relying on the accuracy of the information
provided in Schedule 2 and the truthfulness of representations Employee has made
in Sections 2, 14, 15 and 16 and that Employer would not continue Employee's
employment or utilize any of the inventions, discoveries and improvements or
other works developed by Employee if Employer believed them to be false.
Employee further understands that Employer would suffer substantial damage if it
utilized inventions, discoveries and improvements or works made by Employee
during his/her employment and Employee later claimed or a court determined that
such inventions were excluded from this Agreement or not Employer's property.
Therefore, to the extent that Employee later claims or a court determines that
any inventions, discoveries, improvements or works made by Employee but not
listed or otherwise excluded under Section 2, is excluded from this Agreement or
not Employer's property, you (the Employee) hereby grant to Employer a
perpetual, royalty free, irrevocable license to make, have made, use and sell
the inventions, discoveries, improvements and works.
15. Disclosure of Prior Restrictions
Employee understands that Employer is not employing Employee in order to obtain
any information that is the property of any previous employers or any other
person or entity for whom Employee has performed services. Employee represents
that he/she is not currently subject to any restriction that would prevent or
limit Employee from carrying out his/her duties
54
for Employer. Employee further represents that he/she will not disclose or
provide any information to Employer (a) relating to any inventions, discoveries,
or improvements excluded from this Agreement which Employer shall not be free to
use without restriction or (b) which, if used by Employer, would cause Employer
to infringe or violate the rights of any person, including without limitation,
Employee.
16. Other Legal Rights of Employer
The rights and duties of Employer and Employee under this Agreement are in
addition to, and not in lieu of, those rights and duties afforded to and imposed
upon them by law, or at equity. The parties acknowledge that although a
condition of continued employment, this Agreement does not constitute a contract
of employment, nor does it entitle Employee to employment for any specific term.
All of Employer's employees are employees "at-will" unless specifically provided
otherwise by written agreement signed by Employee and Employer's President.
17. Breach
In the event of breach of any of the terms or covenants contained in this
Agreement, Employee agrees that Employer shall be entitled to temporary and/or
permanent injunctive relief upon a showing that Employee has breached this
Agreement without proof of actual damage and without posting a bond therefore,
against the Employee and any of the Employee's partners, agents, employers or
employees, or any persons acting for or with the Employee, and/or an order of
temporary specific performance enforcing this Agreement, and any other temporary
and/or permanent remedies provided to Employer by applicable law. Such temporary
and/or permanent relief shall remain in effect until the matter in dispute is
permanently resolved or longer as determined by a Court of competent
jurisdiction.
18. Severability of Provisions
The provisions of this Agreement are severable, and if any provision hereof is
held invalid or unenforceable the remaining provision of this Agreement shall
not be affected thereby.
19. Successors, Heirs, Assignees or Nominees
This Agreement shall inure to the benefit of and be binding upon Employer, its
successors, assigns or nominees and also upon Employee, his/her estate, heirs
and assigns. Employee's contractual obligations under this Agreement are
personal and neither Employee's rights or obligations under this Agreement may
be assigned or transferred. Employer's rights and obligations, however, may be
assigned or transferred.
20. Waiver
No provision of this Agreement may be waived by either party, except by a
writing signed by that party. The waiver of any portion of this Agreement with
respect to any person or invention shall be construed narrowly and shall not
affect the right of the party granting the waiver to enforce any other provision
of this Agreement or to enforce any provision of this Agreement with respect to
any other person or invention.
21. California Law to Be Applied
The interpretation of and performance under this Agreement shall be governed by
the laws of the State of California, without giving effect to its choice of law
principles.
55
22. Attorney Fees
In the event of default under this Agreement, the defaulting party shall
reimburse the nondefaulting party for all costs and expenses reasonably incurred
by the non-defaulting party in connection with the default, including without
limitation, attorney fees. In addition, the prevailing party in any suit or
action to enforce this Agreement, or any term hereof, shall be entitled to
recover all its costs and expenses incurred in connection with such suit or
action, including, without limitation, reasonable attorneys' fees, arbitration
costs, and other legal costs incurred at all levels and proceedings.
23. Venue/Jurisdiction
Venue for any action hereunder shall lie in the Superior Court of Orange County,
California (the "Venue"), provided that, if Employer simultaneously brings suit
against Employee and/or a subsequent employer of Employee in the Venue and
within one or more other jurisdictions, venue will also be proper in the other
jurisdiction or jurisdictions. Both parties waive the right to change such venue
and hereby consent to the jurisdiction of such courts for all potential claims
under this Agreement.
24. Term of this Agreement
This Agreement shall continue until no longer applicable. For example, by their
stated terms the non-solicitation and non-provision of services provisions apply
during the term and for one year after termination of Employee's employment.
Also, for example, the non-disclosure obligations set forth in Sections 5-10 of
this Agreement will continue beyond the term of employment of Employee and until
the covered information is released to the public by Employer.
NOTICE TO EMPLOYEE
This agreement may require transfer to your Employer of certain inventions and
may impact your ability to perform services in the future. You may wish to
consult your legal counsel for advice concerning your rights and obligations.
This agreement is entered into by the parties hereto freely and without coercion
and with their full knowledge of its present future legal effect.
X /s/▇▇▇▇▇ ▇▇▇▇▇▇ April 10/2000
--------------------------------- ------------------------------
Employer Signature Date
X /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ April 10/2000
--------------------------------- ------------------------------
Employee Signature Date
56
Schedule 1 to Business Protection Agreement
Description of Services to be provided by Employee and Countries Served
by Employer
See Employment Agreement for Services
Canada
United States of America
Argentina
57
Exhibit A - California Labor Code Section 2870
Employment Agreements; Assignment of Rights
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer.
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an Employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision the provision is against the public
policy of this state and is unenforceable."
58
Schedule 2 to Business Protection Agreement
List of Inventions Not Subject to this Agreement
NONE
-----------(initial)
59
Schedule 1 to Business Protection Agreement
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
And as Exhibit to Share Purchase Agreement
of Financial Management Group LLC
THIS AGREEMENT made the 1st day of April 2000
BETWEEN: SOFTCARE ▇▇.▇▇▇, Inc. a corporation incorporated under the laws
of British Columbia with business offices located at 107 ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(the "Employer")
AND: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Employee")
WHEREAS:
C. The Employer is engaged in the business of ENGINEERING, DESIGN
IMPLEMENTATION AND MARKETING OF COMPUTER PROGRAMS and BUSINESS SOLUTIONS
FOR ELECTRONIC COMMERCE (the "Business"); and
D. The involvement of the Employee is important to the Employer in the
provision of credit services by establishing a vertical portal and the
Employee has entered into an agreement as part of a transaction to vend a
credit counselling business associated with the Employee to the Employer;
NOW THEREFORE in consideration of the premises and the agreements herein
contained and other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
1. Employment
The Employer hereby agrees to employ the Employee as Director Product Design and
Operations/Financial Services of the Employer reporting to the Vice President of
Engineering or as assigned by the President, and the Employee hereby accepts
such employment with the Employer on the terms and subject to the conditions
herein set forth.
2. Duties
Subject to instructions that may be received from time to time by the Employee
from the President and Vice President the Employer, the Employee shall do the
following:
i. serve the Employer faithfully;
ii. observe all policies of the Employer and perform all services
normally associated with the position to the best of
his ability;
iii devote all of her normal working time and attention to such
duties as may be assigned to her by the Employer;
iv. carry out all lawful instructions given to her by the Employer;
and
60
v. endeavour to further the best interests of the Employer generally.
3. Term
The term of this agreement shall be for two years commencing on the date hereof,
unless terminated earlier pursuant to the provisions of paragraph 8 hereof. The
term shall be automatically renewed thereafter from year to year subject to the
ability of either party to decline to renew by notice in writing to the other
given at least thirty (30) days prior to any renewal date.
4. Annual Salary
For all services rendered by the Employee pursuant to this agreement, the
Employee shall receive a gross annual salary, subject to lawful and normal
withholdings and deductions, of US$96,000 per annum payable in equal monthly
instalments in arrears. The annual salary shall be subject to annual review by
the board of directors.
5. Business Expenses
The Employer agrees to reimburse the Employee periodically for all reasonable
ordinary and necessary business expenses actually and properly incurred by the
Employee in the performance of his duties under this agreement. The Employee
shall provide budgets that are pre approved and then substantiate expenses with
vouchers and statements in respect of all such expenses.
6. Vacation
The Employee shall be entitled to three weeks of paid vacation for each
consecutive twelve month period in which he is employed by the Employer pursuant
to this agreement, the timing of such vacation to be mutually agreed upon
between the Employee and the Employer; however, generally notice of vacation
will be given 30 days prior to the proposed taking thereof.
7. Other Remuneration
In addition to the share consideration paid to Patagonia Corp. in acquiring the
Creditsolv Software by virtue of the acquisition of Financial Management Group
LLC and Financial Marketing Group LLC, the Employee shall be entitled to receive
USF$30,000 bonus upon annual revenues of the Employer generally attaining
$US11,000,000 by May 31, 2001. If revenues fall short of the goal in the subject
time frame then this obligation shall terminate.
Employee shall receive a car allowance equal to $US600 per month.
8. Termination and Compensation at Termination
Notwithstanding anything herein contained to the contrary, the employment of the
Employee shall terminate in the following manner and the Employee shall be
compensated as indicated:
a. Termination by the Employer
61
This agreement and the employment of the Employee hereunder may be
terminated effective at any time for cause by the Employer giving notice in
writing of such termination to the Employee. As used herein, "cause" shall
include, without limitation, gross misconduct, gross negligence or
incompetence by the Employee in performing his duties hereunder, the
commission by the Employee of an act of theft, dishonesty, embezzlement or
vandalism against the Employer or any of its subsidiaries or the conviction
of the Employee for any crime except minor traffic offences. If this
agreement and the employment of the Employee hereunder is so terminated by
the Employer in its discretion, pursuant to this clause, the Employee shall
continue to accrue and receive his said annual salary and bonus to the date
of termination, subject to such adjustments as may be appropriate
considering the basis for termination (for example but not necessarily
limited to setoffs for theft).
b. Termination by Mutual Agreement
This agreement and the employment of the Employee hereunder may be
terminated by mutual agreement in writing of the parties hereto in which
event the Employee shall continue to accrue and receive his said annual
salary to the agreed date of termination. Notwithstanding any other
provision of this Agreement, if the Employee leaves the employment of the
Employer of his own accord while commissions provided for in this Agreement
are otherwise continuing to be payable, then in order to allow the Employer
to attract alternative staff to replace the voluntarily departing Employee,
commissions remaining due or coming due for the balance of the term
provided for in this Agreement shall be reduced by TWENTY FIVE percent with
the Employer retaining the balance remaining.
c. Termination by Death, Bankruptcy or Insolvency
This agreement and the employment of the Employee hereunder shall be
terminated by the death of the Employee or if the Employee shall become and
remain physically or mentally incapable of performing substantially the
essential functions of the job with or without reasonable accommodation. No
salary shall accrue or be paid thereafter. The Employee shall be entitled
to participate in any disability insurance program, if any, subscribed to
by the Employer.
d. Termination by Notice
This agreement and the employment of the Employee hereunder shall terminate
without cause upon SIX month's notice from the Employer or, at its option,
upon payment of an amount equal to salary that the Employee would have been
entitled to receive for such period, including provisions being made for
benefits, bonuses and stock options, during the noted period. Any SESB
Trust plan restrictions would continue to apply to all unvested trust
stock.
9. Notices
Whenever this agreement requires or permits any consent, approval, notice,
request or demand from one party to the other, the consent, approval, notice,
request or demand must be in writing (including, without limitation, telex or
telecopy communications) to be effective and shall be deemed to have been given
on the earlier of receipt or the fifth
62
day after it is enclosed in an envelope, addressed to the party to be notified,
at the address set out for that party above (or such other address as may have
been designated by written notice), properly stamped, sealed and deposited in
the Canadian mail system. Any consent, approval, notice, request or demand
aforesaid if delivered, telexed or telecopied shall be deemed to have been given
on the date of such delivery, telexed or telecopied transmission. Any such
delivery shall be sufficient, inter alia, if left with a person resident in the
house at the above address of the Employee in the case of the Employee and a
receptionist at the above address of the Employer or to the Secretary in the
case of the Employer. The Employer or the Employee may change its or his address
for service, from time to time, by notice given in accordance with the
foregoing.
10. Entire Agreement
This agreement taken together with the terms of any Business Protection
Agreement between the Employee and the Employer constitutes the entire
understanding between the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous agreement, understandings, negotiations
and discussions, whether oral or written, of the parties.
11. Applicable Law
Whether pursuant to court proceedings or otherwise, the rights and obligations
of the parties under and pursuant to this agreement shall be construed under and
governed by the laws of the State of California.
12. Assignment
Neither the rights nor the obligations under this agreement shall be assigned or
otherwise disposed of without the prior written consent of the non-assigning
party, except that the Employer may assign this agreement to any successor
corporation without such consent.
13. Binding Agreement
Subject to the provisions hereof, this agreement shall be binding upon and shall
enure to the benefit of the parties hereto and upon their respective heirs,
legal representative, successors and permitted assigns.
14. Waivers and Consents
One or more consents to or waivers of any breach of a term or provision of this
agreement by either party shall not be construed as a consent to or waiver of a
subsequent breach of the same term or provision, nor shall it be considered a
consent to or waiver of any other then existing or subsequent breach of a
different term or provision. The consent or waiver by either party to or of any
act by the other party requiring such consent or waiver shall be deemed not to
waive or render unnecessary consent to or waiver of any subsequent similar act.
No custom or practice of either party shall constitute a waiver of either
party's rights to insist upon strict compliance with the terms and provisions
hereof.
15. Severability
63
If any term or provision of this agreement shall be or shall become illegal or
unenforceable, the remaining terms and provisions shall nevertheless be valid,
binding, and subsisting.
16. Survival of Covenants
The provisions of paragraph 9 shall survive termination of the employment of the
Employee under this agreement.
17. Headings
The insertion of headings is for convenience of reference only and shall not
affect the construction or interpretation of this agreement.
IN WITNESS WHEREOF this agreement is executed by the parties as of the date
first above written.
THE CORPORATE SEAL of the Employer )
was hereunto affixed in the presence of: )
) C/S
/s/▇▇▇▇▇ ▇▇▇▇▇▇ )
--------------------------------------- )
SIGNED, SEALED AND DELIVERED )
by the Employee in the presence of: )
)
) ------------------------------
-------------------------------------- ) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Signature of Witness )
Name: )
---------------------------- )
Address )
----------------------------- )
64
To Softcare ▇▇.▇▇▇, Inc.
April 10, 2000
We are the principals or otherwise fully informed of the affairs of the Seller,
Patagonia Corp. and the Companies, Financial Management Group LLC (Nevada) and
Financial Marketing Group LLC (California). We have been advised to employ legal
advisors and to the extent we felt necessary we have done so in the preparation
and delivery of this certificate. We provide this certificate pursuant to the
Agreement.
We have considered such questions of law and examined such statutes and
regulations, corporate records, certificates and other documents and have made
such other examinations, searches and investigations as we have considered
necessary for the purpose of the certification hereinafter confirmed and we
understand the personal legal and financial responsibilities placed upon and our
consequent potential liabilities to the Buyer arising from such
responsibilities. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
certified or as photocopies.
Based on and subject to the foregoing, we certify that:
1. Financial Management Group LLC (Nevada) and Financial Marketing Group LLC
(California) collectively called FMG herein are both LLC; companies duly
incorporated and validly existing under the laws of Nevada and California
respectively. FMG is in good standing with respect to the filing of annual
reports with the secretary of state for each jurisdiction and both are duly
licensed to carry on business in the jurisdiction in which that carry on
business.
2. FMG has all requisite corporate power and authority to conduct the business
now carried on by it, and to own its property and assets as described in
the Agreement and FMG has all requisite corporate power and authority to
enter into and to perform its obligations under the Agreement.
3. All necessary steps and corporate action and proceedings have been taken to
authorize the execution and delivery of the Agreement by FMG.
4. To the best of our knowledge, neither the execution and delivery of, nor
the performance of its obligations under the Agreement by FMG will conflict
with or constitute a breach or default under the constating documents of
FMG or any commitment, agreement or other instrument to which FMG is a
party or by which it is bound.
5. To the best of our knowledge, at the present time there are no claims,
judgement, actions, suits, litigation, proceedings or investigations,
actual, pending or threatened against FMG which might materially affect any
business, properties, assets, prospects or conditions, financial or
otherwise, of FMG or which could result in any material liability to FMG.
6. One hundred percent of the authorized capital of Financial Management Group
LLC is vested in Patagonia Corp. (a Turks and ▇▇▇▇▇ company) and all such.
65
interest is validly authorized, created, allotted, issued and outstanding,
and is fully paid for and non-assessable, as at the date hereof.
7. One hundred percent of the authorized capital of Financial Marketing Group
LLC is vested in Patagonia Corp. (a Turks and Caicos company) and all such
interest is validly authorized, created, allotted, issued and outstanding,
and is fully paid for and non-assessable, as at the date hereof.
8. Subject to the foregoing, all necessary steps and corporate action and
proceedings have been taken to effect the valid transfer of the 100%
interests of both Financial Management Group LLC and Financial Marketing
Group LLC to the Buyer as contemplated under the Agreement. The Buyer is
the registered owner of the 100% interests in both Financial Management
Group LLC and Financial Marketing Group LLC on the books and records of
both Financial Management Group LLC and Financial Marketing Group LLC.
We certify the foregoing to be true knowing that we incur personal
responsibility to Softcare ▇▇.▇▇▇, Inc. for any damages it suffers in the event
that the representations herein and in the Agreement are 'Untrue such that the
material consequences of the transaction contemplated in the Agreement are
detrimentally affected by such untrue representations.
Signed:
--------------------------- ---------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
66
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
B.Comm. LL.B. (Hons)
Barrister & Solicitor
307 1497 Marine Drive
West Vancouver, British Columbia V71 I B8
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
e-mail ▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇
Patagonia Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Dear Mesdames/Sirs:
We are the solicitors the Buyer. We provide this opinion pursuant to the
Agreement. We have acted as counsel for the Buyer in connection with the
negotiation, execution and completion of the Agreement.
All capitalized terms used herein and not otherwise defined shall have the
meaning ascribed to such terms in the Agreement.
We have considered such questions of law and examined such statutes and
regulations, corporate records, certificates and other documents and have made
such other examinations, searches and investigations as we have considered
necessary for the purpose of the opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as certified or as
photocopies.
Based on and subject to the foregoing, we are of the opinion that:
1. The Buyer is a company duly incorporated and validly existing under the
laws of the Province of British Columbia. The Buyer is in good standing
with respect to the filing of annual reports with the British Columbia
Registrar of Companies.
2. The Buyer has all requisite corporate power and authority to enter into and
to perform its obligations under the Agreement.
3. All necessary steps and corporate action and proceedings have been taken
to authorize the execution and delivery of the Agreement by the Buyer.
4. To the best of our knowledge, neither the execution and delivery of, nor
the performance of its obligations under the Agreement by the Buyer will
conflict with or constitute a breach of or default under the constating
documents of the Buyer or any commitment, agreement or other instrument to
which the Buyer is a party or by which it is bound.
67
5. To the best of our knowledge, there are no claims, judgements, actions,
suits, litigation, proceedings or investigations, actual, pending or
threatened against the Buyer which might materially affect any business,
properties, assets, prospects or conditions, financial or otherwise, of the
Buyer or which could result in any material liability to the Buyer.
The opinion expressed is subject to the qualification that enforceability of the
Agreement may be limited by applicable bankruptcy, insolvency or other laws
affecting creditors' rights generally, and that equitable remedies such as the
remedies of specific performance or injunction are in the discretion of the
court from which they are sought.
Yours truly,
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
68
Casabonnes' Confirmation Certificate
Certificate of Confirmation
Pursuant to the Share Purchase Agreement made effective as of the 10th day of
April 2000 (the "Agreement") between Patagonia Corp., Financial Management Group
an ▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (collectively the "Principals"), SoftCare
▇▇.▇▇▇., Inc ("SoftCare"), the Principals hereby jointly and severally confirm
to the Softcare that the representations and warranties of the Principals
contained in the Agreement or contained in any certificates or documents
delivered by either of them pursuant to the Agreement are true and correct in
every respect as of the Time of Closing of the Agreement being 4 o'clock p.m.
local time in Vancouver, B.C. on the l0th day of April 2000. Dated at North
Vancouver, BC this 10th day of April, 2000.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------------------
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------------------
69
NOTES FOR FILE Date 10/4/2000
Schedule of calculation refferred to in 3.1 of the Agreement.
Based on the Balance Sheet of FMG on March 31, 2000 the April 10, 2000 closing
calculations would be as follows:
Closing
March 31, 2000 April 10, 2000(note 1)
1) Total Assets excluding
Intangible Assets:
- Current Assets $ 126,135
- Fixed Assets 38,368
Less: Accounts Receivable
Adjustment for
sales after Closing ( 84,250)
2) Concord Credit Renewal fee for 2000
Due June 2000 29,500
Total Acquired $ 109,753
3) Total Liabilities (156,938)
- ▇. ▇▇▇▇▇▇ Loan 15,552
- Contingent Liability 25,000
- Deferred Salary 45,000
Total Assumed ( 71,386)
4) Surplus/Commissions Payable $ 38,367
=========
Note 1) Final closing calculations to be determined within 60 days closing.
Financial Management Group LLC
Accounts Receivable Schedule
as of February 29, 2000
Open Balance Payment Schedule Balance
Customer Invoice # @ 1/1/00 January February @2/29/00
AAA Fair Credit 1999 16,800 5,600 2,900 8,400.00
2507 4,800 4,800.00
3001 4,800 4,800.00
Customer Total 26,400 18,000.00
Agency Credit Counseling 2520 18,700 18,700.00
3002 4,800 4,800.00
Customer Total 23,500 23,500.00
CC&DC 1994 7,100 7,100 0.00
2000 3,600 3,600.00
3003 3,600 3,600.00
Customer Total 14,300 7,200.00
Concord Credit 29,500 29,500.00
Customer Total 29,500 29,500.00
Consumer Credit Counseling (No. Coast)
5 21,900 14,600 7,300 0.00
2011-1 3,600 3,600.00
3044 3,600 3,600.00
Customer Total 29,100 7,200.00
Consumer Credit Services 1250 27,089.50 5,000 22,089.50
3005 3,600 3,600.00
Customer Total 30,689.50 25,689.50
Family Debt Arbitration 1890 7,800 2,600 5,200.00
3006 3,600 3,600.00
Customer Total 11,400 0 2,600 8,800.00
TOTAL 164,889.50 20,200.00 24,800.00 119,889.50
Per b/s @ 29/2/00 120,739.50
----------
Immaterial. 850.00
==========
Financial Management Group
Bank Statement 1/26/00 through 2/23/00
(Confidential Bank Statement Omitted)
FINANCIAL MANAGEMENT GROUP, LLC
Trial Balance
As of March 31, 2000
Mar 31, '00
------------------
Debit Credit
------------------
Checking 5,391.72
Accounts Receivable 114,439.50
Employee Advance 250.00
Loans Receivable 1,000.00
Loans to Officers 3,275.11
Prepaid Rent 1,455.00
Security Deposits 800.00
Undeposited Funds 0.00
Equipment 33,038.18
Furniture 5,330.00
Intangible Assets 88,047.25
Accounts Payable 34,886.81
Deferred Salaries Payable 45,000.00
Direct Deposit. Liabilities 5,925.77
Loan Payable - ▇. ▇▇▇▇▇▇ 15,551.50
Loan Payable - Patagonia 15,000.00
Loans from Officers 0.00
Payroll Liabilities 6,003.26
Prepaid Receivables 0.00
Sales, Tax Payable 0.00
WF Business Line 9,571.80
Contingent Liabilities 25,000.00
Capital Contribution 79,115.00
Opening Bal Equity 0.00
Retained Earnings 11,645.18
Consulting 51,689.50
Customer Support 38,780.00
Licensing 38,050.00
Reimbursed Expenses 1,000.00
Software Sales 41,400.00
Training 5,000.00
Advertising 223.00
Auto: Gas/Fuel 704.11
Auto:Insurance 1,358.93
Auto:Lease 5,342.68
Auto:Maintenance/Repair 222.00
Auto:Parking & Tolls 307.25
Auto:Registration 266.00
Bank Service Charges 351.23
Bookkeeping 3,455.43
Computer Services 959.70
Contract Labor 1,010.00
Dues/Subscriptions 343.67
Entertainment 1,097.52
Equipment Lease 1,609.83
Gifts 520.40
Graphic Design 70.04
Insurance: Health 740.44
Insurance: Liability 249.24
Insurance: Life 1,204.20
Interest Expense 16.80
Internet 486.57
Late Fees 5.00
Legal 5,696.25
Licenses/Fees 68.00
Maintenance/Repairs:Copier 404.06
Meals/Meetings 4,886.08
Medical 6,119.98
Office Supplies & Expenses 2,967.95
Officer salary 36,000.00
Payroll 31,468.51
Payroll Service Expenses 80.01
Payroll Tax Expense 5,330.24
Postage & Delivery 351.05
Reimbursed Expenses 4,118.42
Rent 6,945.00
FINANCIAL MANAGEMENT GROUP, LLC
Trial Balance
As of March 31, 2000
Mar 31, '00
------------------
Debit Credit
----- ------
Resident Agent Fees 250.00
Software 288.70
Telephone/Paging 4,161.41
Travel:Airfare 4,688.92
Travel:Car Rental 1,726.74
Travel:Hotels/Lodging 7,058.87
Travel:Meals 3,335.90
Travel:Parking/Tips 307.45
Void Checks 0.00
----- ------
411,214.72 411,214.72
FINANCIAL. MANAGEMENT GROUP, LLC
Unpaid Bills Detail
As of March 31, 2000
Type Date Num Due Date Aging Open Balance
------- ------ --------- -------- ----- ------------
2000 COPIER
▇▇▇▇ 3/15/2000 14268 3/25/2000 6 404.06
------------
Total 2000 COPIER 404.06
AIRBORNE EXPRESS
▇▇▇▇ 1/21/2000 W6882455 1/31/2000 60 9.00
▇▇▇▇ 2/22/2000 W9609132 3/3/2000 28 44.10
▇▇▇▇ 2/29/2000 X3475483 3/10/2000 21 38.50
▇▇▇▇ 3/13/2000 X6648714 3/23/2000 8 14.79
▇▇▇▇ 3/30/2000 X8851953 4/9/2000 87.73
------------
Total AIRBORNE EXPRESS 194.12
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ 3/27/2000 Reimb 4/6/2000 81.25
------------
Total ▇▇▇▇ ▇▇▇▇▇ 81.25
AMERICAN EXPRESS
▇▇▇▇ 2/10/2000 1/00 2/20/2000 40 5,391.91
▇▇▇▇ 3/15/2000 3/00 3/25/2000 6 3,791.25
------------
Total AMERICAN EXPRESS 9,183.16
AP-CITYVIEW I ▇▇▇▇▇
▇▇▇▇ 3/22/2000 4/00 4/1/2000 1,455.00
------------
Total AP-CITYVIEW I ABBEY 1,455.00
CHERLYNNE
▇▇▇▇ 3/20/2000 Expense Rep 3/30/2000 1 3,592.33
------------
Total CHERLYNNE 3,592.33
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇▇ 10/5/1999 F300 10/15/1999 168 1,262.00
------------
Total CHRISTIE, PARKER & ▇▇▇▇. LLP 1,262.00
CITY OF GAREDEN ▇▇▇▇▇
▇▇▇▇ 3/28/2000 BUSTAX 4/7/2000 68.00
------------
Total CITY OF GAREDEN GROVE 68.00
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ 3/30/2000 3/00 4/9/2000 907.04
so 3/31/2000 592 4/10/2000 750.00
------------
Total ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1,737.84
DELL FINANCIAL SERVICES
▇▇▇▇ 3/15/2000 334M 3/25/2000 6 206.79
------------
Total DELL FINANCIAL SERVICES 206.79
FARM BUREAU HEALTH INSURANCE PROGRAM
▇▇▇▇ 3/21/2000 4/1-4/30 3/31/2000 64.27
▇▇▇▇ 3/21/2000 000597742 3/31/2000 101.12
------------
Total FARM BUREAU HEALTH INSURANCE PROGRAM 225.39
FARMERS INSURANCE
▇▇▇▇ 3/6/2000 MERC 3/16/2000 15 254.70
------------
Total FARMERS INSURANCE 254.70
FASTPOINT COMMUNICATION INC.
▇▇▇▇ 3/13/2000 2NDQrtr 3/23/2000 8 479.85
------------
Total FASTPOINT COMMUNICATIONS, INC. 479.85
FINANCIAL MANAGEMENT GROUP, LLC
Unpaid Bills Detail
As of March 31, 2000
Type Date Num Due Date Aging Open Balance
------- ------ --------- -------- ----- ------------
FEDERAL EXPRESS
▇▇▇▇ 3/21/2000 7-910-001.73 3/31/2000 13.13
▇▇▇▇ 3/21/2000 79102MOD 4/6/2000 64.48
------------
Total FEDERAL EXPRESS 77.61
▇▇▇▇▇, BRAGIN & ▇▇▇▇▇▇
▇▇▇▇ 8/2/1999 11574 8/12/1999 232 685.79
▇▇▇▇ 9/15/1999 11272 8/25/1999 188 22.86
▇▇▇▇ 10/21/1999 11744 11/10/1999 142 11.08
▇▇▇▇ 1/19/2000 1/29/2000 62 11.08
▇▇▇▇ 2/29/2000 12125 3/10/2000 21 23.25
------------
Total ▇▇▇▇▇, BRAGIN & SASSOE 754.08
GRAFIXWEST
▇▇▇▇ 3/30/200 00-5665 4/9/2000 70.04
------------
Total GRAFIXWEST 70.04
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ FREIDENRICH, LLP
▇▇▇▇ 1/8/2000 10058697 1/18/2000 73 1,470.42
▇▇▇▇ 3/30/2000 40088741 4/9/2000 124.00
------------
Total ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ FREIDENRICH, LLP 1,470.42
▇▇▇▇▇▇▇ NATIONAL LIFE
▇▇▇▇ 2/13/2000 2/00 2/23/2000 37 496.80
------------
Total ▇▇▇▇▇▇▇ NATIONAL LIFE 496.80
JAQUAR CREDIT
▇▇▇▇ 3/22/2000 4/00 4/1/2000 781.43
------------
Total JAQUAR CREDIT 781.43
KIMCO STAFFING
▇▇▇▇ 9/15/1999 520406-2 9/25/1999 188 5,500.00
------------
Total KIMCO STAFFING 5,500.00
MBNA
▇▇▇▇ 2/22/2000 200 3/3/2000 28 2,745.34
------------
Total MBNA 2,745.34
NEXTEL
▇▇▇▇ 101 1/00 -53.46
▇▇▇▇ 36MM 2/00 3/116/2000 15 325.79
------------
Total NEXTEL 275.33
NEXTLINK
▇▇▇▇ 3/6/2000 2/00 3/1 6/2000 15 68.00
▇▇▇▇ 3/18/2000 3/00 3/28/2000 3 68.00
------------
Total NEXTLINK 136.00
PACBELL-home #s
▇▇▇▇ 3/6/2000 7147717862 3/16/2000 15 18.16
▇▇▇▇ 3/6/2000 7147717724 3/16/2000 15 268.11
------------
Total PACBELL - home #s 286.27
PACIFIC ▇▇▇▇
▇▇▇▇ 3/2/2000 71470=00 3MZ200D 19 197.37
▇▇▇▇ 3/28/2000 7147032100 4/7/2000 215.42
------------
Total PACIFIC ▇▇▇▇ 412.79
PARAGON ACCEPTANCE CORP.
▇▇▇▇ 3/22/2000 4100 4/1/2000 554.24
------------
Total PARAGON ACCEPTANCE CORP. 554.24
Reconciliation Report 3/18/2000
Checking account reconciled for the period ending 02/23/2000
Cleared Transactions
Previous Balance 12,430.15
Cleared Checks and Payments 40 Items -43,752-13
Cleared Deposits and Other Credits 6 Items 62,850.00
Cleared Balance 31,529.02
Uncleared Transactions
Uncleared Checks and Payments 4 Items -5,511.00
Uncleared Deposits and Other Credits 1 Item 650.00
New Transactions
Account Balance as of 02/23/2000 (statement closing date) 26,667.02
New Checks and Payments 21 Items -23,544.70
New Deposits and Other Credits 0 items 0.00
Ending Account Balance 3,122.32
Attachment
The below noted items are exempt pursuant to paragraph 12 - "Non Provision of
Services to Business Contacts" (page 36) of the Business Protection Agreement,
on the earlier of June 1, 2001 or six months from the date that the CrediSolv
Portal is operational.
▇▇▇▇▇ ▇▇▇▇▇, Genus Credit Management, In Charge Institute, Concord Credit,
Profina
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Amerix Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CCCS of Central Indiana
▇▇▇▇▇ ▇▇▇▇▇, Credit Guard of America
MMI and its affiliates
NNS and its affiliates
▇▇▇ ▇▇▇▇▇▇, Vanco Credit Services Argentina, The Exxel Group and its affiliate
companies, Argencard, Razzetto-▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ C6rdoba and Associates, Buenos
Aires Bureau, Hynet and all other business contacts in such country
ASI Industry, Themeware Corporation
▇▇▇▇▇▇▇▇▇ Trust Company Ltd
Licensed Professional Trustees
Facsimile: (▇ ▇▇▇) ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇
Telephone: (I ▇▇▇ ▇▇▇▇▇▇▇ Caribbean Place
e-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇ Leeward Highway Providenciales
Turks & Caicos Islands
Transmission by Facsimile
To : ▇▇▇▇▇ ▇▇▇▇▇ From : ▇▇▇▇▇ ▇. Reinebeck
Company : Date : 11 April, 2000
Facsimile : ▇▇▇ ▇▇▇ ▇▇▇▇ Pages : 2 including cover
Cc : ▇▇▇ ▇▇▇ ▇▇▇▇
RE: POWER OF ATTORNEY FOR PATAGONIA CORP.
-----------------------------------------
Dear ▇▇▇▇▇,
Attached please find the requested Power Of Attorney.
I hope that it meets with your approval.
Yours sincerely,
▇▇▇▇▇
Ref: 2939
This message is intended only for the use of the individual or entity to which
it IS addressed and may contain information but is privileged confidential and
exempt from disclosure under applicable law. If you are not the intended
recipient or employee or agent responsible for delivering the message to the
recipient, please notify us.
POWER OF ATTORNEY
Patagonia Corp. of Providenciales Turks & Caicos Islands (the "Principal")
hereby constitutes and appoints ▇▇▇▇▇ ▇. ▇▇▇▇▇ c/o Covenant Group Inc., ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ to be the Principal's true and
lawful Attorney (the "Attorney") in the Principal's name and on the Principal's
behalf limited to the following -
To sign and deliver the following documents:
Share Purchase Agreement
(between Softcare ▇▇.▇▇▇, Inc. and Financial Management Group LLC),
Voluntary ▇▇▇▇▇▇ Agreement including Exhibit A,
Schedule Of Calculation Of Financials Accounts Receivable Schedule,
▇▇▇▇▇ Fargo Bank Statements,
FMG Trial Balance,
FMG Unpaid Bills Detail,
Reconciliation Report
And The Principal Declares That
1) all and every of the acts, deeds and things done by the Attorney for the
aforesaid purposes shall be good, valid and effectual as if the same had
been signed and delivered, given, made or done by the Principal and the
Principal undertakes at all and any times hereafter to ratify and confirm
whatsoever the Attorney shall lawfully do -or cause to be done by virtue of
this Power of Attorney
2) this Power of Attorney shall be irrevocable for the purposes aforesaid.
3) this Power of Attorney shall be governed by and construed in all and any
respects in accordance with the laws of the Turks & Caicos Islands.
Dated this 11th day of April, 2000
for and on behalf of NMS Ltd.
as Director of Patagonia Corp.
----------------------------------- ------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇. Reinebeck
Operations Manager Officer
SIGNATURE GUARANTEED
In the presence of RBC DOMINION SECURITIES
PER:--------------------------------------
ATTORNEY
Schedule 2.1.2 Contracts
Licensing Agreements:
License No. Date Customer
-----------------------------------------
CCDCSL Oct 12, 1999 Consumer Credit and Debt Counselling Inc. NJ
N/A Nov 5, 1999 AAA Fair Credit Foundation
FL-PR-01-01 June 21, 199 Concord Credit, la Funcatcion Hispana de
Credito a Nevada
DFAML1 Oct 11, 1999 Family Debt Arbitration and Counseling, Inc.
1002 Jan 25, 2000 Consumer Credit and Debt Counseling, Inc. NC
Schedule 2.1.5 Intangible Property
Creditsolv Software
Goodwil
Schedule 2.1.6 Personal Property (see financial statements) as well as
listing provided to ▇▇▇▇▇ ▇▇▇▇▇▇
Schedule 2.1.7 Real Property
Lease of premises in Los Angeles California, see lease
provided to ▇▇▇▇▇ ▇▇▇▇▇▇
Schedule 3.1(b) Long Term Bank Debt (see attached financial statements and
working papers
Schedule 7.1 Seller's Addresses and Places of Business: No others
Schedule 7.6(a) Exceptions to Title to Assets: see financial statements
otherwise no exceptions
Schedule 7.6(b) Permitted Liens: see financial statements otherwise no
exceptions
Schedule 7.8(b) Real Property Exceptions: lease of offices
Schedule 7.8(c) Lease Agreements: lease of offices being negotiated by ▇▇▇▇▇
▇▇▇▇▇▇
Schedule 7.10(b) Labor Agreements: no exceptions
Schedule 7.11 Employee Plans: no exceptions
Schedule 7.12 Litigation: none applicable
Schedule 7.13 Taxes: no exceptions
Schedule 7.17 Financial Statements: see attached financial statements and
working papers
Schedule 7.18 Changes or Events: no exceptions or changes altering
representations
Schedule 7.20 Environmental Compliance: no exceptions
Schedule 7.21 Insurance Policies: no insurance policies
schedule 7.24 Transactions with Certain Persons: no non arms length
exceptions
71
Equipment/Furniture that is owned and not leased $37,540
2 Maple Top Desks 1700
2 Marble Top Desks 1200
1 Wood L-shaped desk 150
4 Secretary Desks (black) 300
1 Binding Machine 500
I Trade Show Booth 3700
9 Ceiling Speakers for Office Music 270
1 Copy Machine 5000
2 Round Glass Mini Conference Tables 200
2 Laptops 4200
4 Computers (paid for) 5200 1 ($2260) is a powerful
workstation for design in
Access and 1 used at house
1 Laser Fax with scanner 2500 (original cost $3,500 9 months
ago-Casabonnes were never
reimbursed for 1
2 Laser Printers 1500
1 Executive Leather Chair 100
4 Leather Chairs Conf. Table 400
2 Solid ▇▇▇▇▇ BookShelves 6' 700
3 Phones for non networked capability 300
1 Glass end table for reception 25
2 Black Vertical File Cabinets 100
8 Computer operator chairs 320 (2 used at house for work in
evenings) 75 45
1 Oak bookshelf 75
1 2 drawer lateral file cabinet 45
2 Glass Book Shelf 500
1 Display Case reception 65
I Black book/storage case with doors fc 85
I Refrigerator 100
I CD writer 250
1 Workstation to hold computer 50
1 Workstation to hold computer $50
1 Phone System 1000(was over $5,000 when we bought
it new
2 Leather chairs for guests rec. 100
2 Leather chairs for exec office guests 100
I Mini filing cabinet used for fax 30
4 Motivational Pictures 150
1 Memory for laptop 415
I Color Printer 395
I Disk Drive for GA System 1390
I Sony VAIO Port 225
Software: Microsoft Visual Studio, 4200 (this is a conservative figure
but would take hours to find receipts) RoboHelp, Access 2000, Microsoft Office
2000 Premium Edition, Microsoft Office 2000 Dev. Edition, Mailers Software -
Zip Finder, Laplink, SOL Server, Microsoft Project Seagate Crystal Reports
Intangible Assets
CrediSolv Code $88,047.00
(actual programming paid for code plus subsequent modifications, ongoing
enhancements, upgrades and additions of modules and functionality)
$60,000.00
This does not include actual dollars spent for design, testing, etc. - if we are
to add salaries paid to perform these tasks, an additional $60,000 plus should
be added. These are also hard dollars that have been spent to make the CrediSolv
package the leader In "Mission Critical Software" for the "Credit Counseling
Industry". (This was not included because we never had to value our package).
Credisolv offers the most complete functionality while is the most user friendly
and flexible software package marketed/sold in the Credit Counseling industry.
With only 6 months in the market, and very little marketing, it has sold 7
packages and it is considered the leader in the industry
CrediSolv has an enrollment module, client service module, accounting module
which allow agencies to take client's money in and pay out to creditors either
through the check printing process or via EFT. It has two EFT modules built in
which allow an agency to choose which EFT vendor they want to transmit through.
It has an automatic invoicing system to ▇▇▇▇ creditors. The package has multiple
reports built in to assist the agency In their client analysis, counselor
productivity analysis and financial.