ASSET PURCHASE AGREEMENT AND ASSIGNMENT
THIS ASSET PURCHASE AGREEMENT AND ASSIGNMENT ("Agreement") is made and
entered into this _____ day of May, 2000 by and between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
("Seller"), on the one hand, and ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation
("Purchaser"), and JVWeb, Inc., a Delaware corporation and the majority
stockholder of Purchaser (the "Company"), on the other hand.
RECITALS:
WHEREAS, Seller is the owner of the entire right, title and interest in
and to the domain name "▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇" and certain computer and
related hardware, hardware configurations, operations systems and related
software, proprietary and other software algorithms, and other data and
facilities assembled by Seller for purposes of developing, operating and
maintaining a site on the World Wide Web currently under development using the
foregoing domain name (such site is referred to hereinafter as the "Web Site");
and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, full right, title and interest in and to all of the
personal property of every kind or nature assembled by Seller for use in
connection with the operation of the Web Site (the "Assets"), including, without
limitation, the personal property that is more fully described in ARTICLE ONE
below and on Schedules 1.1(a), 1.1(b) and 1.1(c) hereto, free and clear of any
security interest, lien, mortgage, encumbrance, claim, or limitation or
restriction on the transfer thereof, except as set forth on Schedule 2.4 hereto,
all upon the terms, provisions and conditions set forth hereinafter;
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises, covenants,
agreements, representations and warranties set forth hereinafter, $10.00 and
other good and valuable consideration (the receipt, adequacy and sufficiency of
which each of Seller and Purchaser hereby acknowledges) and subject to the
terms, provisions and conditions hereof, each of Seller and Purchaser hereby
agrees as follows:
ARTICLE ONE
SALE AND PURCHASE OF ASSETS
1.1 Purchase of Assets. In consideration of the purchase price provided
for in Section 1.2 below, Seller does hereby assign, transfer, convey and sell
to Purchaser (without any further act or deed except as otherwise indicated
herein), full right, title and interest in and to the Assets, and Purchaser does
hereby acquire and receive full right, title and interest in and to the Assets,
free and clear of any security interest, lien, mortgage, encumbrance, claim, or
limitation or restriction on the transfer thereof, except as set forth on
Schedule 2.4 hereto. The Assets consist of all privileges, rights, claims,
causes of action, interests, properties, options and assets associated with the
Web Site of every kind and description and wherever located which are intended
for use in connection with, or which are necessary to the conduct of, the
proposed operations and business of the Web Site as presently planned,
including, without limitation, all of the following:
(a) Any and all names, logos, slogans, colors, common law
rights, state registrations, federal registrations, whether owned or
not, on primary or secondary registrations, in the United States and
worldwide, of, for, or relating to the Web Site; together with all
copyright powers, rights, and benefits relating to the foregoing,
including, but not limited to, the right to produce, sell, modify,
distribute, license, and copy in full or in part those items described
above; all related trademarks, trade names, service marks, logos,
marketing concepts, and trade dress of the foregoing; all rights,
including copyright and other intellectual property rights, in the
foregoing and in all advertising, instructional, or technical
documents, whether printed or computerized, relating to the foregoing;
legal title and ownership or assignment of any and all Internet
properties, including, but not limited to, domain names, domain
addresses, unique URL's, and service agreements relating to the
foregoing, including, without limitation, the domain name
"▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇"; any and all inventions, conceptions,
improvements, enhancements, derivatives, or modifications to any of the
foregoing made by Seller or his agents hereafter; all rights to enforce
and/or recover, for infringement or other legal claims, past, present,
or future, against any third party, and any and all rights to apply
for, acquire, or retain the benefit of any patentable subject matter
derived from or relating to the foregoing (the items and matters
described in this Section 1.1(a) include, but are not limited to, all
of those items and matters listed and described on the attached
Schedule 1.1(a)); and
(b) All federal, state and local permits, authorizations,
certificates, approvals, registrations, variances, exemptions,
franchises, rights of other kind and character which are required by
law with respect to the proposed operations and business of the Web
Site as it is now planned, including, but not limited to, all of those
listed and described on the attached Schedule 1.1(b); and
(c) All agreements, contracts, understandings, plans,
obligations, commitments and other documents which are material to,
and/or were entered into by Seller with respect to, the proposed
operations and business of the Web Site, including, but not limited to,
all of those listed and described on the attached Schedule 1.1(c); and
(d) All books, records, papers and instruments of whatever
nature and wherever located which (i) relate to and/or are utilized in
the proposed operations or business of the Web Site, or (ii) are
required or necessary in order for Purchaser to conduct the proposed
operations and business of the Web Site hereafter in the manner in
which it is presently planned, including, without limitation,
accounting and financial records, maintenance and production records,
operations and management reports, personnel and labor relations
records, customer lists, sales records and other customer data relating
to the proposed operations and business of the Web Site; and
(e) All other or additional privileges, rights, claims, causes
of action, interests, properties, options and assets associated with
the Web Site of every kind and description and wherever located which
are used or intended for use in connection with, or which are necessary
to the conduct of, the proposed operations and business of the Web Site
as presently planned.
1.2 Purchase Price. In consideration of the sale of the Assets to
Purchaser, the Company agrees to issue to Seller 200,000 of the shares of the
Company's common stock, $.01 par value per share (the "Common Stock"),
registered pursuant to the Company's effective Registration Statement on Form
SB-2 (Registration No. 333-43379). The 200,000 shares of Common Stock shall be
delivered in four equal installments comprised of 50,000 shares each. The first
installment of shares of Common Stock shall be due and deliverable to Seller on
or before the 10th day after the date of this Agreement. Every 30 days
thereafter, one of the other three installments shall be due and deliverable to
Seller until all four installments have been delivered to Seller. The stock
certificates representing the Common Stock issued to Seller pursuant to this
Section 1.2 shall bear no restrictive legend.
1.3 Assumed Liabilities. Purchaser hereby agrees to assume and be
obligated to pay, perform or discharge only those liabilities that are expressly
set forth on Schedule 1.3 hereto (referred to hereinafter as the "Assumed
Liabilities"). Purchaser assumes no obligations, liabilities and debts other
than the Assumed Liabilities. Seller agrees to pay or perform timely any and all
obligations, liabilities and debts of Seller other than for the Assumed
Liabilities.
1.4 Consents. Seller shall use his best efforts to assist in obtaining
any third party consents necessary to contribute the Assets to Purchaser. To the
extent that any of the Assets are not assignable without the consent of another
party and such consent has not been obtained on or prior to the date hereof,
such Assets shall not be assigned or attempted to be assigned if such assignment
or attempted assignment would constitute a breach thereof. While Seller is
trying to procure all necessary consents, Seller and Purchaser shall cooperate
in any reasonable arrangements designed to provide to Purchaser the benefits of
any such Assets, including enforcement at the cost and for the account of
Purchaser of any and all rights of Seller against the other party thereto
arising out of a cancellation or breach by such other party or otherwise.
ARTICLE TWO
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
OF SELLER
Seller hereby represents, warrants and agrees to and with Purchaser
that (except as expressly set forth on a disclosure schedule attached hereto and
signed by Purchaser):
2.1 Capacity to Enter into Agreement. Seller has full right, power and
authority to execute and deliver this Agreement and all other agreements,
documents and instruments to be executed in connection herewith and perform his
obligations hereunder and thereunder. When this Agreement and all other
agreements, documents and instruments to be executed by Seller in connection
herewith are executed by Seller and delivered to Purchaser, this Agreement and
such other agreements, documents and instruments will vest in Purchaser full
right, title and interest in and to the Assets, free and clear of any and all
encumbrances, security interests, liens, charges, claims, restrictions or
limitations, whatsoever, by any person of any kind, including those on the
transfer thereof, whether known or unknown, and will constitute the valid and
binding agreements of Seller enforceable against Seller in accordance with their
respective terms.
2.2 Conflicts. The execution, delivery, and consummation of the
transactions contemplated by this Agreement will not (a) violate, conflict with
or result in the breach or termination of, or otherwise give any other
contracting party the right to terminate, or constitute a default (by way of
substitution, novation or otherwise) under the terms of, any contract to which
Seller is a party or by which Seller is bound or by which any of the Assets is
bound or affected, (b) violate any judgment against, or binding upon, Seller or
the Assets, or (c) result in the creation of any lien, charge or encumbrance
upon any Assets pursuant to the terms of any such contract.
2.3 Consents. No consent from, or other approval of, any governmental
entity or any other person, which has not been obtained, is necessary in
connection with the execution, delivery, or performance of this Agreement by
Seller.
2.4 Assets. Seller has good and indefeasible title to all of the
Assets, free and clear of all mortgages, liens, pledges, charges, or
encumbrances of any nature whatsoever, except (a) liens and encumbrances
expressly disclosed in Schedule 2.4, and (b) liens for current taxes not yet due
and payable.
2.5 Contracts. Schedule 1.1(c) contains a true, correct and complete
list of all contracts, agreements, commitments and leases relating to the Web
Site, whether or not made in the ordinary course of business, that either (a)
involve or may involve aggregate payments by or to Seller exceeding $5,000 per
year; (b) are not by their terms terminable by Seller without premium or penalty
within 60 or fewer days notice, or (c) otherwise materially adversely affect or,
to the knowledge of Seller, might materially adversely affect the financial
condition, property, assets, liabilities (accrued, absolute, contingent, or
otherwise), income or business of the Web Site. Except as set forth on Schedule
2.5 hereto,
(a) All leases, contracts, agreements, arrangement or commitments
(b) There is not, under any such lease, contract, agreement,
arrangement or commitment, any existing or prospective default
or event of default by Seller or event which with notice or
lapse of time, or both would constitute a default and in
respect to which Seller has not taken adequate steps to
prevent a default from occurring; and, to the knowledge of
Seller, no other party to any such lease, contract, agreement,
arrangement or commitment, is in default or breach thereof nor
has any event occurred which with notice or lapse of time
would constitute a breach or default of any of such lease,
contract, agreement, arrangement or commitment.
2.6 Permits. Schedule 1.1(b) contains a true, correct and
complete list of all licenses, permits and authorizations
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relating to the Web Site. Except as set forth on Schedule 2.6 hereto,
(a) Seller holds all licenses, permits and authorizations required
to carry on the proposed business of the Web Site, and all
such licenses, permits and authorizations are in good
standing;
(b) Seller is in full compliance with and not in default or
violation with respect to any term or provision of any of
its licenses, permits and authorizations;
(c) No notice of pending, threatened, or possible violation or
investigation in connection with, or loss of, any license,
permit, or authorization relating to the Web Site, has been
received by Seller;
(d) Seller has no knowledge that the issuance of such a notice
is being considered or of any facts or circumstances
which form the basis for the issuance of such a notice; and
(e) No license, permit, or authorization of relating to the Web
Site is affected by the transactions provided for herein or
contemplated hereby.
2.7 Intellectual Property.
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(a) "Proprietary Rights" shall mean all of the following items
owned by or licensed to Seller for the Web Site, and any
and all corresponding rights that, prior to the date hereof,
may be secured by Seller throughout the world: (i)
patents, patent applications, patent disclosures and
inventions (whether or not patentable and whether or not
reduced to practice) and any reissue, continuation,
continuation-in-part, division, revision, extension or
reexamination thereof; (ii) trademarks, service marks, trade
dress, logos, trade names and corporate names together
with all goodwill associated therewith, copyrights
registered or unregistered and copyrightable works and mask
works; (iii) all registrations, applications and renewals
for any of the foregoing; (iv) trade secrets and
confidential information (including, without limitation,
ideas, formulae, compositions, know-how, manufacturing and
production processes and techniques, research and development
information, drawings, specifications, designs, plans,
proposals, technical data, financial, business and
marketing plans, and customer and supplier lists and related
information); (v) computer software and software systems
(including, without limitation, data, databases and related
documentation); (vi) Internet properties, including, but not
limited to, domain names, addresses, unique URL's and
service agreements; (vii) other proprietary rights;
(viii) licenses or other agreements to or from third parties
regarding the foregoing; and (ix) all copies and tangible
embodiments of the foregoing (in whatever form or medium),
in each case including, without limitation, the items set
forth on Schedule 1.1(a).
(b) Schedule 1.1(a) sets forth a complete and correct list of: (i)
all patented or registered Proprietary Rights and all pending
patent applications or other applications for registration of
Proprietary rights owned, filed or used by Seller, (ii) all
trade names and unregistered trademarks used by Seller, (iii)
all unregistered copyrights, mask works, and computer software
owned or used by Seller, and (iv) all licenses or similar
agreements or arrangements to which Seller is a party either
as licensee or licensor for the Proprietary Rights.
(c) Except as set forth in Schedule 1.1(a), (i) Seller owns and possesses all
right, title and interest in and to, or has a valid and enforceable right
to use, each of the Proprietary Rights free and clear of all liens, and no
claim by any third party contesting the validity, enforceability, use or
ownership of any of the Proprietary Rights has been made, is currently
outstanding or to Seller's knowledge is threatened, (ii) the Proprietary
Rights comprise all proprietary rights necessary for the operation of the
proposed business of the Web Site as currently planned, (iii) the loss or
expiration of any Proprietary Right or related group of Proprietary Rights
has not and would not result in a material adverse affect on the proposed
business of the Web Site, and no such loss or expiration is threatened or
pending, (iv) Seller has not received any notices of, nor is Seller aware
of any facts which indicate a likelihood of, any infringement or
misappropriation by, or conflict with, any third party with respect to any
Proprietary Right including, without limitation, any demand or request that
Seller license rights from a third party, (v) Seller has not infringed,
misappropriated or otherwise conflicted with any proprietary rights of any
third parties and Sellers are not aware of any infringement,
misappropriation or conflict which shall occur as a result of the proposed
operation of the business of the Web Site as currently planned, and (vi)
the Proprietary Rights owned or licensed to Seller have not been infringed,
misappropriated or conflicted by any third party. In addition, Seller has
and is passing on to Purchaser all rights to use the name and trademark
"▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇" for use in connection with the proposed business
of the Web Site. In addition, Seller represents that Purchaser may use the
content currently and previously featured on the Web Site as a guide for
further use and Purchaser can copy the format of such content.
(d) All of the Proprietary Rights are or shall be owned by, or
licensed to, Seller immediately prior to the consummation of
the transactions provided for herein. The transactions
contemplated by this Agreement shall have no adverse effect on
Seller's right, title and interest in and to any of the
Proprietary Rights. Seller has not disclosed any of his trade
secrets or confidential information pertaining to the Web Site
and existing at the date of this Agreement to any third party
other than pursuant to a written confidentiality agreement.
Seller has taken all other commercially reasonable actions to
maintain and protect the Proprietary Rights.
(e) As of the date hereof, Purchaser is entitled to all income,
royalties, damages and payments relating to any of the
Proprietary Rights due or payable to Seller as of the date
hereof or at any time hereafter, including, without
limitation, damages and payments for past, present or future
infringements or misappropriations of any Proprietary Rights,
and the right to ▇▇▇ and recover for past infringements or
misappropriations of any Proprietary Rights.
2.8 Litigation. There is no pending suit, action, or legal,
administrative, arbitration, or other proceeding or governmental investigation
to which Seller is a party or which adversely affects or might adversely affect
the proposed business of the Web Site. Seller is not subject to any judgment,
order, writ, injunction, decree, or award applicable to the proposed business of
the Web Site of any court or other governmental instrumentality or arbitrator.
There is no action, suit, proceeding, or claim pending or, to the knowledge of
Seller, threatened against Seller by persons not a party to this Agreement
wherein an unfavorable decision, ruling, or finding would render unlawful or
otherwise adversely affect the consummation of the transactions contemplated by
this Agreement.
2.9 Compliance with Law. Seller is not in violation of, or in default
with respect to, or in alleged violation of or alleged default with respect to,
any applicable law, rule, regulation, permit, or any writ or decree of any court
or any governmental commission, board, bureau, agency, or instrumentality,
including without limitation, any laws, ordinances, rules, regulations, permits,
or orders relating to the proposed business of the Web Site, or the business
operations and practices, health and safety, and employment practices with
respect to the Web Site. Seller is not delinquent with respect to any report
required to be filed with any governmental commission, board, bureau, agency, or
instrumentality, or with any trade association or certification organization
that has in the past certified or endorsed the proposed business of the Web
Site. Seller is not delinquent with respect to any reports required by private
covenants or agreements with respect to the Web Site.
2.11 Successor Liability. Purchaser will have no successor
liability for any liability of Seller (relating to any taxes
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or otherwise) as a result of Purchaser's acquisition of the Assets.
2.11 Finder's Fees; Certain Expenses. All negotiations relative to this
Agreement and the transactions contemplated hereby have been carried on by
Seller, and his counsel directly with Purchaser and its counsel, without the
intervention of any other person as the result of any act of any of them, and as
far as is known to Seller, without the intervention of any other person in such
manner as to give rise to any valid claim against any of the parties hereto for
a brokerage commission, finder's fee, or any similar payment.
2.12 Untrue Statements. This Agreement, the schedules and exhibits
hereto, and all other documents and information furnished by any Seller or his
representatives pursuant hereto or in connection herewith do not include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements made herein and therein not misleading or otherwise.
ARTICLE THREE
REPRESENTATIONS, WARRANTIES, AND AGREEMENTS
OF PURCHASER
Purchaser hereby represents, warrants, and agrees to and with Seller,
that:
3.1 Organization and Standing of Purchaser. Purchaser is a
corporation duly organized, validly existing, and in good
--------------------------------------
standing under the laws of the state of Delaware.
3.2 Capacity to Enter into Agreement. Purchaser has full right, power
and authority to execute and deliver this Agreement and all other agreements,
documents and instruments to be executed in connection herewith and perform such
its or his obligations hereunder and thereunder. The execution and delivery by
Purchaser of this Agreement and all other agreements, documents and instruments
to be executed by Purchaser in connection herewith have been authorized by all
necessary corporate action by Purchaser. When this Agreement and all other
agreements, documents and instruments to be executed by Purchaser in connection
herewith are executed by Purchaser and delivered to Purchaser, this Agreement
and such other agreements, documents and instruments will constitute the valid
and binding agreements of Purchaser or enforceable against Purchaser in
accordance with their respective terms.
3.3 Conflicts. The execution, delivery, and consummation of the
transactions contemplated by this Agreement will not (a) violate, conflict with
or result in the breach or termination of, or otherwise give any other
contracting party the right to terminate, or constitute a default (by way of
substitution, novation or otherwise) under the terms of, any contract to which
Purchaser is a party or by which Purchaser is bound or by which any of the
assets of Purchaser is bound or affected, (b) violate any judgment against, or
binding upon, Purchaser or upon the assets of Purchaser, (c) result in the
creation of any lien, charge or encumbrance upon any assets of Purchaser
pursuant to the terms of any such contract, or (d) violate any provision in the
charter documents, bylaws or any other agreement affecting the governance and
control of Purchaser.
3.4 Consents. No consent from, or other approval of, any governmental
entity or any other person, which has not been obtained, is necessary in
connection with the execution, delivery, or performance of this Agreement by
Purchaser.
3.5 Litigation. There is no action, suit, proceeding, or claim pending
or, to the knowledge of Purchaser, threatened against Purchaser by persons not a
party to this Agreement wherein an unfavorable decision, ruling, or finding
would render unlawful or otherwise adversely affect the consummation of the
transactions contemplated by this Agreement.
3.6 Finder's Fees. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by Purchaser and its
counsel directly with Seller, and his counsel, without the intervention of any
other person as the result of any act by Purchaser, and so far as is known to
Purchaser, without the intervention of any other person in such manner as to
give rise to any valid claim against any of the parties hereto for a brokerage
commission, finders' fee, or any similar payment.
ARTICLE FOUR
ADDITIONAL AGREEMENTS
4.1 Further Assurances. Following the date hereof, Seller shall execute
and deliver such other documents, and take such other actions, as may be
reasonably requested by Purchaser to complete the transactions contemplated by
this Agreement and to perfect in Purchaser title to the Assets.
4.2 Non-Compete Agreement. In order to induce Purchaser to enter into
this Agreement, Seller agreed to enter into the Non-Compete Agreement attached
hereto as Exhibit 4.2.
4.3 Publicity. The parties hereto shall jointly prepare any press
release or other public announcement relating to this Agreement, except that the
foregoing shall not prevent any party hereto or any affiliate thereof from
issuing any press release required by applicable law.
ARTICLE FIVE
SURVIVAL AND INDEMNITY
5.1 Survival of Representations and Warranties. All of the
representations and warranties made by the parties hereto in this Agreement or
pursuant hereto, shall be continuing and shall survive the closing hereof and
the consummation of the transactions contemplated hereby, notwithstanding any
investigation at any time made by or on behalf of any party hereto.
5.2 Indemnification by Seller. Seller shall protect, indemnify and hold
harmless Purchaser, and its stockholders, directors, officers, employees,
agents, affiliates, successors and assigns, from any and all demands, claims,
actions, causes of actions, lawsuits, proceedings, judgments, losses, damages,
injuries, liabilities, obligations, expenses and costs (including costs of
litigation and attorneys' fees), arising from any breach of any agreement,
representation or warranty made by any of him in this Agreement.
5.3 Indemnification by Purchaser. Purchaser shall protect, indemnify
and hold harmless Seller, and his agents, affiliates, successors and assigns,
from any and all demands, claims, actions, causes of actions, lawsuits,
proceedings, judgments, losses, damages, injuries, liabilities, obligations,
expenses and costs (including costs of litigation and attorneys' fees), arising
from any breach of any agreement, representation or warranty made by it in this
Agreement.
ARTICLE SIX
MISCELLANEOUS
6.1 Notices. Any notices, requests, demands, or other communications
herein required or permitted to be given shall be in writing and may be
personally served or sent by United States mail and shall be deemed to have been
given if personally served, when served, or if mailed, when deposited in the
mail and shall be deemed to have been received if personally served, when
served, or if mailed at 12:00 noon, Houston, Texas time on the third business
day after deposit in the United States mail with postage pre-paid by certified
or registered mail and properly addressed. As used in this Agreement, the term
"business day" means days other than Saturdays, Sundays, and holidays recognized
by Federal banks. For purposes of this Agreement, the addresses of the parties
hereto shall be the addresses as set forth on the signature pages of this
Agreement until a party subsequently notifies all other parties in writing of a
change of address.
6.2 Counterparts. This Agreement may be executed in any number of
counterparts and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one and the
same instrument.
6.3 Amendments and Waivers. This Agreement may be amended, modified, or
superseded only by written instrument executed by all parties hereto. Any waiver
of the terms, provisions, covenants, representations, warranties, or conditions
hereof shall be made only by a written instrument executed and delivered by the
party waiving compliance. Any waiver granted by a corporate party hereto shall
be effective only if executed and delivered by the chief executive officer,
president, or any vice president of such party. The failure of any party at any
time or times to require performance of any provision hereof shall in no manner
affect the right to enforce the same. No waiver by any party of any condition,
or of the breach of any term, provision, covenant, representation, or warranty
contained in this Agreement in one or more instances shall be deemed to be or
construed as a further or continuing waiver of any such condition or breach or a
waiver of any other condition or the breach of any other term, provision,
covenant, representation, or warranty.
6.4 Time of Essence. Time is of the essence in the performance of
this Agreement.
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6.5 Captions. The captions contained in this Agreement are solely for
convenient reference and shall not be deemed to affect the meaning or
interpretation of any Article, Section, or paragraph hereof.
6.6 Entire Agreement. This Agreement (including the schedules and
exhibits hereto, the Financial Statements, and all supporting agreements
referred to herein, all of which are by this reference fully incorporated into
this agreement) sets forth the entire agreement and understanding of the parties
with respect to the transactions contemplated hereby, and supersedes all prior
agreements, arrangements, and understandings relating to the subject matter
hereof.
6.7 Successors and Assigns. All of the terms, provisions, covenants,
representations, warranties, and conditions of this Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the parties hereto
and their respective heirs, legal representatives, assigns, and successors.
6.8 Knowledge, Gender, and Certain References. A representation or
statement made herein to the knowledge of any corporate party refers to the
knowledge or belief of the companies' directors, officers, and attorneys,
regardless of whether the knowledge of such person was obtained outside of the
course and scope of his corporate employment or duties, and regardless of
whether any such person's interests are adverse to such entity in respect of the
matters as to which his knowledge is attributed. Whenever from the context it
appears appropriate, each term stated in either the singular or the plural shall
include both the singular and the plural, and pronouns stated in the masculine
or the neuter gender shall include the masculine, the feminine and the neuter
gender. The terms "hereof," "herein," or "hereunder" shall refer to this
Agreement as a whole and not to any particular Article, Section, or paragraph
hereof.
6.9 Applicable Law. THIS AGREEMENT SHALL BE GOVERNED EXCLUSIVELY BY ITS
TERMS AND BY THE LOCAL, INTERNAL LAWS OF THE STATE OF DELAWARE. Each party
hereto hereby acknowledges and agrees that he or it has consulted legal counsel
in connection with the negotiation of this Agreement and that he or it has
bargaining power equal to that of the other parties hereto in connection with
the negotiation and execution of this Agreement. Accordingly, the parties hereto
agree that the rule of contract construction that an agreement shall be
construed against the draftsman shall have no application in the construction or
interpretation of this Agreement.
6.10 Severability. If any term, provision, covenant, or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void,
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions shall remain in full force and effect and shall in no way be
affected, impaired, or invalidated.
6.11 Costs, Expenses and Fees. Each party hereto agrees hereby to pay
all costs, expenses, and fees incurred by him or it in connection with the
transactions contemplated hereby, including, without limitation, all attorneys'
and accountants' fees.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"PURCHASER" "SELLER"
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇, President ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:_____________________________ Address:___________________
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"COMPANY"
JVWEB, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇, President
Address:_____________________________
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EXHIBIT 4.2
NON-COMPETE AGREEMENT
SCHEDULE 1.1(a)
INTELLECTUAL PROPERTY
SCHEDULE 1.1(b)
PERMITS
SCHEDULE 1.1(c)
CONTRACTS