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EXHIBIT 10.21
ASSETS PURCHASE AGREEMENT
between
HIGH SPEED ACCESS CORP.
and
ATLANTA ON-LINE INTERNET, INC.
joined in by
▇▇▇▇▇▇ ▇▇▇▇▇▇
and
▇▇▇▇▇ ▇▇▇▇▇▇
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ASSETS PURCHASE AGREEMENT
This is an Assets Purchase Agreement dated March 17, 1999 (this
"Agreement"), among High Speed Access Corp. ("Purchaser"), a Delaware
corporation, and Atlanta On-Line InterNet, Inc., a Georgia corporation
("Seller"), joined in by ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and ▇▇▇▇▇ ▇▇▇▇▇▇ (together,
the "Shareholders"), the sole shareholders of Seller.
RECITALS
A. Seller is engaged in the business of providing internet access and
related services to residential and commercial customers in Atlanta, Georgia and
surrounding areas (the "Business").
B. Seller wishes to sell, and Purchaser wishes to purchase, upon the
terms and conditions set forth in this Agreement, substantially all of Seller's
assets used in the Business. Purchaser shall also assume specific liabilities of
the Seller as described herein.
C. This Agreement is the definitive acquisition agreement contemplated
by and among the parties.
NOW, THEREFORE, in consideration of the mutual benefits and covenants
contained herein, and subject to the terms and conditions set forth herein, the
parties agree as follows:
SECTION 1
DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
(a) "▇▇▇▇▇▇ Employment Agreement" shall mean the Employment
Agreement dated as of the Closing Date, in substantially the form attached
hereto as Annex 1.1(a), to be entered into between Purchaser and ▇▇▇▇▇▇ at the
Closing.
(b) "Assets" shall mean all of Seller's assets (other than
Seller's Cash or Cash Equivalents and Pre-Execution Accounts Receivable)
including, without limitation, the Customers, Contracts, Equipment, Good Will,
Leases, Intellectual Property, Prepaid Assets, and Post-Execution Accounts
Receivable. "Assets" shall not include the corporate charter, taxpayer and other
identification numbers, corporate seals, minute book, stock transfer book, or
other documents relating to the organization, maintenance and existence of
Seller as a corporation.
(c) "Assignment and Assumption Agreement" shall mean the
Assignment and Assumption Agreement dated the Closing Date, in substantially the
form attached hereto
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as Annex 1.1(c), pursuant to which Seller shall assign, and Purchaser shall
assume, the Contracts.
(d) "Assignment of Lease" shall mean the Assignment of Lease,
in substantially the form attached hereto as Annex 1.1(d), pursuant to which
Seller shall assign the Lease to Purchaser.
(e) "▇▇▇▇ of Sale" shall mean the ▇▇▇▇ of Sale, in
substantially the form attached hereto as Annex 1.1(e), pursuant to which Seller
shall transfer to Purchaser all of the Assets other than the Contracts and the
Trademarks.
(f) "Cash or Cash Equivalents" shall mean all of Seller's cash
or cash equivalents other than cash or cash equivalents received in satisfaction
of Post-Execution Accounts Receivable generated after the date of this
Agreement.
(g) "Closing" shall mean the consummation of the transactions
contemplated in this Agreement in accordance with the provisions of Section 7.
(h) "Closing Date" shall mean the date first set forth above
in this Agreement.
(i) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(j) "Contracts" shall mean all purchase orders, contracts
(including contracts with Customers), leases (other than the Lease) and other
commitments, whether written or oral, to which Seller is a party or otherwise
obligated, true and correct copies or written descriptions of which have been
delivered previously to Purchaser and all of which are listed on Annex 1.1(j)
hereto.
(k) "Customers" shall mean all persons or entities utilizing
the Seller's internet and related services including, without limitation,
customer email addresses and registered customer domain names, all of which are
listed on Annex 1.1(k) hereto.
(l) "Equipment" shall mean all of Seller's technical, computer
and ISP equipment, and any and all tangible personal property necessary for
operation of the Business, including, without limitation, the items described on
Annex 1.1(l)(1) hereto, but excluding the equipment, furniture and fixtures
listed on Annex 1.1(l)(2) hereto.
(m) "Financial Statements" shall mean (i) Seller's unaudited
balance sheet, and related unaudited statements of income and cash flows for its
fiscal years ended December 31, 1998 and December 31, 1997 (the "Financial
Statements"), and (ii) Seller's unaudited balance sheet (the "Current Balance
Sheet") and related statement of income for the period ended February 28, 1999
(the "Current Financial Statements"), copies of which have previously been
delivered to Purchaser.
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(n) "Good Will" shall mean Seller's good will (if any),
customer list, and telephone numbers, and the name "Atlanta On-Line" and any
variations thereof including "Atlanta On-Line InterNet, Inc.", and the going
concern value of the Business.
(o) "Intellectual Property" shall mean all Seller's internet
domain names, trade names, trademarks or service marks (the "Trademarks"),
together with the Good Will associated therewith; copyrights; pending or issued
registrations for any of the foregoing; patents and patent applications;
Software; unpatented inventions; trade secrets and other confidential or
proprietary information, processes, formulas and methods; and all other
intangible property rights of any kind, including, without limitation, the items
described on Annex 1.1(o) hereto.
(p) "Lease" shall mean Seller=s lease of its administrative
offices located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
(the "Real Property"), a true and correct copy of which has been previously
delivered to Purchaser.
(q) "Liabilities" shall mean all accounts payable, notes
payable, liabilities, commitments, indebtedness or obligations of any kind
whatsoever, whether absolute, accrued, contingent, matured or unmatured, direct
or indirect, of Seller, or to which any of the Assets are subject.
(r) "Noncompetition Agreement" shall mean the Noncompetition
Agreement dated as of the Closing Date, in substantially the form attached
hereto as Annex 1.1(r), to be entered into among Purchaser, Seller and the
Shareholders at the Closing.
(s) "Other Agreements" shall mean the Assignment of Lease,
Assignment and Assumption Agreement, ▇▇▇▇ of Sale, Employment Agreements,
Noncompetition Agreement and Warrant and all other agreements, certificates,
guaranties, instruments or other documents contemplated by, required by,
referred to in, or executed in connection with, this Agreement or the
consummation of the transactions contemplated hereby.
(t) "Permits" shall mean all permits, licenses, franchises,
approvals, certificates or authorizations of any federal, state or local
governmental or regulatory body required in order to permit Seller to carry on
its business, a list of which is set forth on Annex 1.1(t) hereto.
(u) "Person" shall mean any person, firm, trust, partnership,
corporation or other business entity.
(v) "Post-Execution Accounts Receivable" shall mean all of
Seller's accounts receivable generated after the date of this Agreement.
(w) "Pre-Execution Accounts Receivable" shall mean all of
Seller's accounts
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receivable existing as of the date of this Agreement.
(x) "Prepaid Assets" shall mean all of Seller's prepaid
assets, including, without limitation, any prepaid insurance or rent.
(y) "Software" shall mean all computer software developed or
owned by Seller, or used by Seller under a valid licensing agreement, and all
source and object codes and rights under any license or other agreements related
to such software, all of which is listed on Annex 1.1(y) hereto.
(z) "Tax" shall mean any federal, state, local or foreign
income or other tax of any kind whatsoever, including any interest, penalty, or
addition thereto, whether or not disputed.
(aa) "Tax Return" shall mean any return, declaration, report,
claim for refund, or information return or statement relating to Taxes,
including any schedule or attachment thereto, and including any amendment
thereof.
(bb) "Warrant" shall mean the Warrant dated as of the Closing
Date, in substantially the form attached hereto as Annex 1.1(bb).
1.2 ADDITIONAL TERMS. Other capitalized terms used in this Agreement
but not defined in Section 1.1 above shall have the meanings ascribed to them
wherever such terms first appear in this Agreement.
SECTION 2
PURCHASE AND SALE
2.1 PURCHASE OF THE ASSETS. Subject to the terms and conditions of this
Agreement, Seller hereby agrees to sell, transfer and deliver to Purchaser, and
Purchaser hereby agrees to purchase, the Assets.
2.2 PURCHASE PRICE. The purchase price (the "Purchase Price") for the
Assets shall be: (a) $240,000, in cash or immediately available funds to be
delivered by the Purchaser to the Seller at the Closing; and (b) the Warrant.
2.3 ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be allocated
among the Assets for tax purposes as set forth on Annex 2.3 hereto. Purchaser
and Seller shall report the transactions contemplated herein for all tax
purposes in accordance with such allocation and, in any proceeding related to
the determination of any tax, neither Purchaser nor Seller or Shareholders shall
contend or represent that such allocation is not a correct allocation.
2.4 SELLER'S LIABILITIES AND WARRANTY OBLIGATIONS. Except for the
obligations
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assumed by Purchaser pursuant to the Assignment and Assumption Agreement and the
Assignment of Lease, Purchaser is not assuming, and the parties do not intend
for Purchaser to assume, pursuant to this Agreement or otherwise, any
Liabilities. Seller and Shareholders agree and confirm that Seller and
Shareholders are, and will remain, responsible for and will pay any and all
Liabilities other than those specifically assumed by Purchaser hereunder. Seller
and Shareholders agree to pay Purchaser the full amount of any costs incurred by
Purchaser to settle any Liabilities related to Customer complaints regarding
services rendered by Seller prior to Closing which Seller fails to resolve
within five (5) days after receipt of notice from Purchaser. Purchaser may
offset against the balance of the Purchase Price remaining hereunder, any
amounts due under the ▇▇▇▇▇▇ Employment Agreement, or the value of, or shares
issuable pursuant to, the Warrant, any amounts owed to Purchaser pursuant to
this Section 2.4 and not paid promptly by Seller upon demand by Purchaser.
2.5 EMPLOYEES OF SELLER.
(a) At the Closing, Purchaser shall enter into the ▇▇▇▇▇▇
Employment Agreement and make offers of at-will employment to ▇▇▇▇ ▇▇▇▇▇▇▇ at an
annual salary of $30,000, and ▇▇▇ ▇▇▇▇▇ at an annual salary of $25,000. At or
before the Closing, Purchaser shall enter into a six month employment agreement
with ▇▇▇▇ ▇▇▇▇▇▇▇▇ on terms reasonably satisfactory to Purchaser. Purchaser will
also assume any accrued vacation earned by ▇▇. ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇▇▇.
(b) Other than the employment arrangements set forth in
Section 2.5(a), Purchaser will not purchase, recognize, assume or otherwise
acquire any rights, obligations, assets or liabilities under, arising from or
resulting from any employment agreement or relationship in existence between
Seller and any employee, or any person employed to consult with or perform
services for Seller, or otherwise. Seller understands that Purchaser shall not
be obligated to hire any of Seller's employees, except to the extent provided in
Section 2.5(a), but that Purchaser, in its sole discretion, may hire some or all
of such employees on such terms as Purchaser and the employees so hired may
agree. Seller and the Shareholders agree to cooperate with Purchaser in
Purchaser's selection of Seller's employees to be hired by Purchaser.
(c) Seller agrees to either layoff or terminate all of its
employees as of the Closing Date, in compliance with any and all laws applicable
to such termination.
(d) Purchaser shall not be responsible to Seller or to any
current or former employee of Seller for any employee benefits (whether earned,
accrued or vested) due to Seller's employees with respect to their employment on
or prior to the Closing Date.
(e) Seller shall provide all notices to its employees and
their dependents upon the termination of an employee or dependent's group health
care coverage required by the Consolidated Omnibus Reconciliation Act of 1985
(COBRA) due to termination of an employee's employment with Seller, without
regard to whether Purchaser re-hires any or all of
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Seller's employees; Seller specifically undertakes to provide any continuation
coverage under COBRA elected by Seller employees and their dependents, whether
or not Purchaser re-hires any or all of such employees.
SECTION 3
REPRESENTATIONS AND WARRANTIES
OF SELLER AND THE SHAREHOLDERS
Seller and the Shareholders, jointly and severally, represent and
warrant to Purchaser that, except as set forth in a letter of even date herewith
and signed by Seller's authorized officer and the Shareholders (the "Seller
Disclosure Letter"):
3.1 ORGANIZATION. Seller is a corporation duly organized and validly
existing under the laws of the State of Georgia, and has full corporate power
and authority to own, lease and operate its Assets as such Assets are now owned,
leased and operated, and to conduct the Business as and where the Business is
now conducted. Seller is qualified to do business and is in good standing in all
jurisdictions in which the character of the properties owned or leased by it, or
the nature of the activities conducted by it, makes such qualification
necessary.
3.2 STOCK. Seller's outstanding capital stock is duly authorized,
validly issued and outstanding, fully paid and nonassessable, and held of record
by the Shareholders. There are no stock options, stock rights or stock warrants
outstanding pursuant to which any Person could acquire an interest in Seller.
3.3 AUTHORITY.
(a) Seller and Shareholders have full right, power, authority
and capacity to execute and deliver this Agreement and the Other Agreements, and
to perform their respective obligations under this Agreement and the Other
Agreements. This Agreement and the Other Agreements constitute valid and legally
binding obligations of Seller and Shareholders, enforceable in accordance with
their terms.
(b) The execution and delivery of this Agreement and the Other
Agreements, the consummation of the transactions contemplated hereby and
thereby, and the performance and fulfillment of their respective obligations and
undertakings hereunder and thereunder by Shareholders and Seller will not, (i)
violate any provision of, or result in the breach of or accelerate or permit the
acceleration of any performance required by the terms of, the Articles of
Incorporation or Bylaws of Seller; any contract, agreement, arrangement or
undertaking to which either Seller or Shareholders is a party or by which any of
them may be bound; any judgment, decree, writ, injunction, order or award of any
arbitration panel, court or governmental authority; or any applicable law,
ordinance, rule or regulation of any governmental body; (ii) result in the
creation of any claim, lien, charge or encumbrance upon any of the Assets; or
(iii) terminate or cancel, or result in the termination or cancellation of,
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any agreement or undertaking to which Seller is a party.
(c) The execution and delivery of, and the performance and
consummation of the transactions contemplated by, this Agreement and the Other
Agreements have been duly authorized by all requisite corporate action of
Seller. All other consents, approvals, authorizations, releases and orders
required of or for Seller and Shareholders for the authorization, execution, and
delivery of, and for the performance and consummation of the transactions
contemplated by, this Agreement and the Other Agreements have been obtained.
3.4 FINANCIAL STATEMENTS. Seller has previously delivered to Purchaser
true and complete copies of the Financial Statements. The Financial Statements
(a) present fairly, accurately and correctly the results of operation of Seller
for the periods covered thereby and the financial condition of Seller as at the
dates thereof; and (b) were prepared in conformity with generally accepted
accounting principles; provided, however, that the Current Financial Statements
are subject to normal year-end adjustments (which will not be material
individually or in the aggregate) and lack footnotes and other presentation
items. Since December 31, 1997, the Business and affairs of Seller have been
conducted only in the ordinary course and there has been no material change in
the condition (financial or otherwise), Assets, liabilities, earnings, Business,
operations, affairs or prospects of Seller, other than minor changes in the
ordinary course, none of which either singly or in the aggregate has been
materially adverse.
3.5 TITLE TO ASSETS. Seller shall deliver to Purchaser at the Closing,
good and marketable title to all of the Assets, free and clear of any claims,
liens, charges, mortgages, security interests or other encumbrances whatsoever
notwithstanding encumbrances disclosed on the Seller Disclosure Letter which
shall be terminated and released to Purchaser's satisfaction at or before the
Closing.
3.6 REAL PROPERTY. No instrument of record, easement, license, grant,
applicable zoning or building law, ordinance, administrative regulation, urban
redevelopment law or other impediment of any kind prohibits or interferes with,
limits or impairs, or would, if not permitted by any prior non-conforming use,
prohibit or interfere with, or limit or impair, the use of, operation,
maintenance of or access to, the Real Property leased by Seller as now used,
operated or maintained by Seller. No notice of any violation of any applicable
zoning or building law or ordinance or administrative regulation has been
received by Seller, and neither Seller nor the Shareholders know of the threat
of any such notice. No condemnation proceeding has been instituted or is, to
Seller's and Shareholders' knowledge threatened with respect to any of the Real
Property.
3.7 CONDITION OF ASSETS. The Assets of Seller, including, without
limitation, all of the Equipment and the Software (including source and object
codes and rights under any license or other agreements related to such
software), are in good condition and repair, ordinary wear and tear excepted and
in the state of maintenance, repair and operating condition required for the
proper operation and the use thereof in the ordinary course.
3.8 TAX MATTERS. Seller has properly and accurately prepared in all
material
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respects and filed all Tax Returns and reports required to be filed by Seller
under all applicable statutes, laws and regulations on or before the due dates
thereof. Seller has paid all Taxes, including all interest, penalties, and
assessments, which are due and payable, and all such Taxes due and payable by
Seller have been fully discharged. Seller has set up an amount as a reserve for
Taxes that is sufficient for the payment of all unpaid federal withholding,
state, local, and other Taxes, including interest, penalties and assessments
accrued, applicable or attributable to the period ending up through the Closing
Date, and to all prior years and periods. The federal income Tax Returns of
Seller have never been examined by the Internal Revenue Service, no deficiencies
have ever been proposed, no examinations are pending, and in Seller's reasonable
belief, no basis for any such deficiencies exists. Proper and accurate amounts
have been withheld by Seller from employees for all periods in full and complete
compliance with the tax withholding provisions of applicable federal, state and
local laws. Seller is not a party to any action for collection of Taxes, and
neither Seller nor Shareholders know, or has any reasonable grounds to know, of
any contemplated actions for collection of any Taxes whatsoever from Seller.
3.9 UNDISCLOSED LIABILITIES. The Assets are not subject to any,
liability, commitment, indebtedness or obligation of any kind whatsoever,
whether absolute, accrued, contingent, known or unknown, matured or unmatured
which is not reflected and adequately reserved against in the Current Financial
Statements or incurred since February 28, 1999, in the ordinary course of
business and not in breach of any provision of this Agreement. Seller and
Shareholders have disclosed to Purchaser all material information known to
Seller and Shareholders regarding Seller's product warranty, claims handling,
and product repair procedures and practices, and Seller's product warranty and
liability history, including, without limitation, the existence of recurring
defects.
3.10 CONTRACTS.
(a) Except for the Contracts and the Lease, Seller is not a
party to or bound by, and neither the Assets nor the Business are bound or
affected by, any written or oral contract, agreement or commitment of any kind
whatsoever.
(b) Seller has performed all obligations required to be
performed by it to date under all Contracts and the Lease, and neither Seller
nor Shareholders know, or has any reasonable grounds to know, that any other
party is in default (or would be in default on the giving of notice or the lapse
of time or both) under any Contract or Lease.
(c) True and complete copies of all Contracts and the Lease to
which Seller is a party have been delivered to Purchaser and there are no
amendments to or modifications of, or significant agreements of the parties
relating to, any such Contract or Lease, which have not been disclosed in
writing to Purchaser, and each such Contract and Lease is valid and binding on
the parties thereto in accordance with its respective terms. There are no
unwritten contracts or commitments to which Seller is a party or by which the
Seller is bound.
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3.11 LITIGATION AND PENDING PROCEEDINGS. There are no claims of any
kind or any actions, suits, proceedings, arbitrations or investigations pending,
or, to the knowledge of Seller and Shareholders, threatened in any court or
before any governmental agency or instrumentality or arbitration panel or
otherwise against, by or affecting Seller, the Assets, or the Business, the
prospects or condition (financial or otherwise) of the Business, or which would
prevent the performance of this Agreement or the Other Agreements or any of the
transactions contemplated hereby or thereby, or which declare the same unlawful
or cause the rescission thereof. Seller has complied with and is not in default
in any respect under (and has not been charged or, to the knowledge of Seller
and Shareholders, threatened with, and is not under an investigation with
respect to, any charge concerning any violation of any provision of) any
federal, state or local law, regulation, ordinance, rule or order (whether
executive, judicial, legislative or administrative), or any order, writ,
injunction or decree of any court, agency or instrumentality.
3.12 NOTES AND ACCOUNTS RECEIVABLE. All notes and accounts receivable
of Seller shown on the Current Balance Sheet or thereafter acquired by Seller
have been collected or are current and collectible in the ordinary course (in
the case of any such note in accordance with its terms, and in the case of any
such account within sixty (60) days after billing) at the aggregate recorded
amounts thereof on Seller's books, less the bad debt reserves provided therefor
on the Current Balance Sheet as such reserves may have been adjusted on Seller's
books in the ordinary course of business to date. No note or account receivable
of Seller is subject to counterclaim or setoff.
3.13 PERMITS, ETC. All the Permits are currently in full force and
effect, and no misrepresentations or willful or negligent omissions were made of
any material fact in obtaining any such Permits. Such Permits are sufficient to
permit Seller to conduct the Business in the manner in which it is now being
conducted. No proceedings have been instituted or are, to the knowledge of
Seller and the Shareholders, threatened, seeking the suspension, termination,
modification, revocation, alteration or amendment of any such Permits, or to
declare any of them invalid in any respect, and neither Seller nor any of the
Shareholders know of any reason for any such revocation or limitation.
3.14 INTELLECTUAL PROPERTY. Annex 1.1(o) sets forth a true and complete
identification and summary description of all Intellectual Property either owned
by Seller or utilized by Seller in the Business, including a description of the
nature of Seller's interest therein. All of the Intellectual Property is owned
by Seller and is free and clear of all liens, security interests, charges,
encumbrances, equities and other adverse claims; Seller is not a party to any
licenses, consents, settlements or other agreements involving the Intellectual
Property; there are, and have been, no claims, actions or judicial or
adversarial proceedings involving the Intellectual Property, and no such actions
or proceedings are threatened or to the knowledge of Seller and Shareholders,
anticipated; Seller has the right and authority to use the Intellectual Property
in connection with the conduct of the Business and to the knowledge of the
Seller and the Shareholders, such use has not and will not infringe upon,
constitute a misappropriation of, or otherwise violate the rights of any other
person in, any Intellectual
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Property; and neither Seller nor Shareholders know of any past or present
occurrences of any probable infringement or misappropriation of, or violation of
Seller's rights in, any of the Intellectual Property.
3.15 PROPRIETARY INFORMATION. Prior to or in conjunction with the
Closing, Seller and Shareholders shall have fully disclosed to Purchaser all
customer lists, trade secrets, processes, inventions, formulas, methods,
know-how and other proprietary information used or developed by Seller in
connection with the Business. Neither Seller nor Shareholders have disclosed or
permitted the disclosure of any such proprietary information to any other Person
except for disclosures to employees in the ordinary course of business, and the
use by Seller of such proprietary information does not violate any other
Person's proprietary rights.
3.16 CUSTOMERS, ETC.
(a) Seller has delivered to Purchaser a true and accurate list
of the names and addresses of all of Seller's suppliers, distributors, sales
representatives, and business partners with whom or which Seller has done
business since Seller's inception. Neither Seller nor the Shareholders know that
any supplier, distributor, sales representative, or business partner has
terminated or expects to terminate a portion of its normal business with Seller.
(b) A list of the names and addresses of all of Seller's
Customers is attached hereto as Annex 1.1(k). Such list comprises, in the
aggregate, at least 308 residential and 206 commercial Customers of Seller, and
neither Seller nor Shareholders know that any Customer has terminated or expects
to terminate all or a portion of its normal business with Seller.
3.17 INSURANCE. Seller's tangible Assets, whether owned or leased, of
Seller are insured against the hazards and in the amounts stated in the policies
of insurance listed on the Seller Disclosure Letter. Seller carries insurance
against personal injury and property damage to third persons and in respect of
its services and operations and such other insurance as is stated in the
policies of insurance listed on the Seller Disclosure Letter. All such insurance
is in full force and effect. The Seller Disclosure Letter sets forth a true and
complete list of all claims in excess of $5,000 made by Seller during the past
three (3) years under any such policy.
3.18 EMPLOYEE BENEFIT PLANS. As used in this Agreement, the term
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended; and the terms "employee welfare benefit plan" and "employee pension
benefit plan" shall have the meanings ascribed to them in Sections 3(1) and 3(2)
of ERISA, respectively. With respect to each employee welfare benefit plan and
employee pension benefit plan, if any, which is maintained by Seller or in which
at least one of Seller's employees participates: (a) each such plan is listed on
Seller Disclosure Letter; and (b) a true and correct copy of each such plan, and
any trust instrument, investment manager contract or insurance policy used in
conjunction with such plan or to provide benefits thereunder, and any summary
plan description, have been made available to Purchaser. Purchaser shall have no
liability under any of Seller's employee
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welfare benefit plans or employee pension benefit plans.
3.19 LABOR RELATIONS. Seller is not a party to, or negotiating, and has
no obligations under any agreement, collective bargaining or otherwise, with any
party relating to the compensation or working conditions of any of Seller's
employees. Seller is not obligated under any agreement to recognize or negotiate
with any labor organization or union on behalf of its employees. Neither Seller
nor Shareholders know of any union organizational or representational activities
underway among any of its employees. Seller has not been charged or threatened
with a charge of any unfair labor practice.
3.20 BULK SALES. The purchase and sale of the Assets and the other
transactions contemplated in this Agreement will be free and clear of any and
all claims by creditors of Seller under any bulk sales or similar laws or
statutes. Seller and the Shareholders shall, in accordance with Section 6 of
this Agreement, jointly and severally, indemnify and hold Purchaser harmless
from and against, and shall pay to Purchaser the full amount of, any loss,
claim, damage, liability or expense (including reasonable attorneys' fees)
resulting to Purchaser from or in connection with any applicable bulk sales or
similar laws or statutes to the extent that the same may apply to the
transactions contemplated herein and provided such claim, loss, damage,
liability or expense does not arise from any Liabilities assumed by Purchaser
hereunder.
3.21 YEAR 2000. All information technology, including but not limited
to, file servers, operating systems, workstations and other computer software
and hardware used by Seller in the Business as presently conducted ("Information
Technology") that contains or relies upon a calendar function, provides specific
dates or calculates spans of dates, either (a) is able to record, store, process
and provide true and accurate dates and calculations for dates and spans of
dates into, and between the twentieth and twenty-first centuries, and through
the years 1999 and 2000 including leap years, without degradation in
performance, and without requiring intervention or modification ("Y2K
Compliant"), or (b) is capable of being made Y2K Compliant through standard
upgrades provided by the manufacturer. Seller will cooperate with Buyer in
performing Year 2000 testing and completing Year 2000 upgrades to make all
Seller's Information Technology Y2K Compliant.
3.22 ACCESS TO INFORMATION. Seller has received and reviewed a draft
copy of Purchaser's registration statement on Form S-1. Seller has had a
reasonable opportunity to ask questions of and receive information and answers
from Purchaser concerning the business, financial condition and prospects of
Purchaser and all such questions have been answered and all such information has
been provided to the full satisfaction of Seller; all documents, records and
books which Seller has requested pertaining to Purchaser have been made
available for inspection by Seller. Seller is not relying on Purchaser with
respect to the tax and other economic considerations of Seller relating to the
issuance of the Warrant. In regard to such considerations, Seller has relied on
the advice of, or has consulted with, only his own advisors.
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3.23 PREPAID ACCOUNTS RECEIVABLE. The aggregate dollar amount of
prepayments received by Seller as of the Closing Date for customer services not
provided prior to the Closing Date, net of Prepaid Assets, shall not exceed
$7,000.00.
3.24 COMPLETENESS OF STATEMENTS. No statement, Annex, certificate,
information, representation or warranty of Seller or the Shareholders contained
in this Agreement or the Other Agreements, or furnished by or on behalf of
Seller or the Shareholders to Purchaser or any of its agents pursuant hereto or
thereto, or in connection with the transactions contemplated hereby or thereby,
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary in order to make a statement
contained herein or therein not materially misleading.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
4.1 ORGANIZATION. Purchaser is a corporation duly organized and validly
existing under the laws of the State of Delaware, and has full corporate power
and authority to own and lease its properties as such properties are now owned
and leased, and to conduct its business as and where its business is now
conducted.
4.2 AUTHORITY.
(a) Purchaser has full right, power, and authority to execute
and deliver, and to perform its obligations under, this Agreement and the Other
Agreements to which it is a party. This Agreement and the Other Agreements to
which Purchaser is a party constitute valid and legally binding obligations of
Purchaser enforceable in accordance with their terms.
(b) The execution and delivery of this Agreement and the Other
Agreements, the consummation of the transactions contemplated hereby and
thereby, and the performance and fulfillment of their respective obligations and
undertakings hereunder and thereunder by Purchaser will not, (i) violate any
provision of, or result in the breach of or accelerate or permit the
acceleration of any performance required by the terms of, Purchaser's Articles
of Incorporation or Bylaws; any contract, agreement, arrangement or undertaking
to which Purchaser is a party or by which Purchaser may be bound; any judgment,
decree, writ, injunction, order or award of any arbitration panel, court or
governmental authority; or any applicable law, ordinance, rule or regulation of
any governmental body; (ii) result in the creation of any claim, lien, charge or
encumbrance upon any of the properties or assets (whether real or personal,
tangible or intangible) of Purchaser; or (iii) terminate or cancel, or result in
the termination or cancellation of, any agreement or undertaking to which
Purchaser is a party.
(c) The execution and delivery of, and the performance and
consummation
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of the transactions contemplated by, this Agreement and the Other Agreements
have been duly authorized by all requisite corporate action of Purchaser. All
other consents, approvals, authorizations, releases and orders required of or
for Purchaser for the authorization, execution, and delivery of, and for the
performance and consummation of the transactions contemplated by, this Agreement
and the Other Agreements have been obtained.
4.3 COMPLETENESS OF STATEMENTS. No statement, Annex, certificate,
information, representation or warranty of Purchaser contained in this Agreement
or the Other Agreements, or furnished by or on behalf of Purchaser to Seller or
any of its agents pursuant hereto or thereto, or in connection with the
transactions contemplated hereby or thereby, contains or will contain any untrue
statement of a material fact, or omits or will omit to state a material fact
necessary in order to make a statement contained herein or therein not
misleading.
SECTION 5
CONDITIONS TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser to consummate the transactions
contemplated herein shall be subject to the satisfaction of the following
conditions at or before the Closing:
5.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. The representations and
warranties of Seller and Shareholders contained herein shall be true on the
Closing Date in all material respects, with the same effect as though made at
such time, except to the extent of changes permitted by the terms of this
Agreement. Seller and Shareholders shall have performed all obligations and
complied with all covenants required by this Agreement to be performed or
complied with by them prior to the Closing. In addition, the President of Seller
and Shareholders shall have delivered to Purchaser a certificate (the "Seller's
Closing Certificate") dated the Closing Date and signed by each of them to the
effect that, except as disclosed in the certificate, they do not know of any
failure or breach of any representation, warranty or covenant made by Seller or
Shareholders.
5.2 NO MATERIAL ADVERSE CHANGE. There shall not have occurred any
material adverse change since the date of this Agreement in the financial
condition, business, assets or results of operations of Seller.
5.3 STATUTORY REQUIREMENTS. All statutory requirements for the valid
consummation by Purchaser of the transactions contemplated in this Agreement
shall have been fulfilled, and all authorizations, consents and approvals of all
federal, state, local and foreign governmental agencies and authorities required
to be obtained in order to permit the consummation by Seller of the transactions
contemplated by this Agreement, and to permit the business presently carried on
by Purchaser to continue unimpaired in all material respects immediately
following the Closing, shall have been obtained.
5.4 DELIVERIES. Seller and Shareholders shall have made all of their
deliveries contemplated in this Agreement, including, without limitation, all of
the deliveries set forth in
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Section 7.2.
5.5 ANNEXES AND SELLER DISCLOSURE LETTER. Seller shall have delivered
to Purchaser certain Annexes hereto and the Seller Disclosure Letter five (5)
days prior to the Closing. Purchaser's obligation to perform hereunder shall be
subject to Purchaser's review and approval of such Annexes and the Seller
Disclosure Letter.
5.6 INVESTMENT INTENT LETTER. Seller shall have delivered to Purchaser
an investment intent letter dated the date hereof in connection with the
issuance of the Warrant in a form reasonably satisfactory to Purchaser.
5.7 CLOSING. The Closing shall occur on or before March 31, 1999.
SECTION 6
CONDITIONS TO OBLIGATIONS OF SELLER AND SHAREHOLDERS
The obligations of Seller and Shareholders to consummate the
transactions contemplated herein shall be subject to the satisfaction of the
following conditions at or before the Closing:
6.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. The representations and
warranties of Purchaser contained herein shall be true on the Closing Date in
all material respects, with the same effect as though made at such time, except
to the extent of changes permitted by the terms of this Agreement. Purchaser
shall have performed all obligations and complied with all covenants required by
this Agreement to be performed or complied with by it prior to the Closing. In
addition, Purchaser shall have delivered to Seller a certificate (the "Purchaser
Closing Certificate") dated the Closing Date and signed by its President to the
effect that, except as disclosed in the certificate, they do not know of any
failure or breach of any representation, warranty or covenant made by Purchaser.
6.2 STATUTORY REQUIREMENTS. All statutory requirements for the valid
consummation by Seller of the transactions contemplated in this Agreement shall
have been fulfilled, and all authorizations, consents and approvals of all
federal, state, local and foreign governmental agencies and authorities required
to be obtained in order to permit the consummation by the Seller of the
transactions contemplated in this Agreement, shall have been obtained.
6.3 DELIVERIES. At or before the Closing, Purchaser shall make all of
its deliveries contemplated in this Agreement, including, without limitation,
all of the deliveries set forth in Section 7.3.
6.4 CLOSING. The Closing shall occur on or before March 31, 1999.
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SECTION 7
THE CLOSING
7.1 DATE AND PLACE. The Closing shall be held on the Closing Date at
10:00 a.m. in the offices of ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, PLLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other place or
time on the Closing Date as the parties may mutually agree.
7.2 CLOSING DELIVERIES OF SELLER AND SHAREHOLDERS. Seller and
Shareholders shall make the following deliveries to Purchaser, and execute the
following documents, as appropriate, at or before the Closing:
(a) ▇▇▇▇ of Sale;
(b) Assignment and Assumption Agreement;
(c) Assignment of Lease and related landlord consent;
(d) Noncompetition Agreement;
(e) ▇▇▇▇▇▇ Employment Agreement;
(f) Articles of Amendment changing Seller's corporate
name;
(g) All necessary consents to the assignment of the
Contracts; and
(h) Seller Closing Certificate.
7.3 CLOSING DELIVERIES OF PURCHASER. Purchaser shall make the following
deliveries to Seller and Shareholders, and execute the following documents, as
appropriate, at or before the Closing:
(a) Purchase Price payable at Closing;
(b) Warrant;
(c) Assignment and Assumption Agreement;
(d) Assignment of Lease;
(e) ▇▇▇▇▇▇ Employment Agreement;
(f) Noncompetition Agreement; and
(g) Purchaser Closing Certificate.
SECTION 8
SURVIVAL OF REPRESENTATIONS AND WARRANTIES--INDEMNIFICATION
8.1 SURVIVAL. Each of the parties' representations, warranties,
covenants and agreements set forth in this Agreement shall survive the Closing.
8.2 INDEMNITY BY SELLER AND SHAREHOLDERS. Seller and the Shareholders
shall, jointly and severally, indemnify and hold harmless Purchaser from and
against, and shall pay to the Purchaser the full amount of, any loss, claim,
damage, liability or expense (including
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17
reasonable attorneys' fees) resulting to the Purchaser ("Indemnifiable Loss"),
from any inaccuracy in any representation or warranty, or any breach of any
covenant or agreement, by Seller or Shareholders contained in this Agreement or
in any of the Other Agreements.
8.3 INDEMNITY BY PURCHASER. The Purchaser shall indemnify and hold
harmless Seller from and against, and shall pay to Seller the full amount of,
any loss, claim, damage, liability or expense (including reasonable attorneys'
fees) resulting to Seller, from any inaccuracy in any representation or
warranty, or any breach of any covenant or agreement, by the Purchaser contained
in this Agreement or in any of the Other Agreements.
8.4 REMEDIES. Upon the occurrence of any event for which a party is
entitled to indemnification under this Agreement, the aggrieved party shall have
all the rights and remedies at law and in equity available to it. Without
limiting the foregoing, Seller, Shareholders and Purchaser hereby agree to pay
promptly upon receipt of notice from the other party any amounts which such
parties may owe to the other party from time to time by reason of the
indemnification provisions of this Agreement or otherwise. In any event, to the
extent Purchaser incurs an Indemnifiable Loss, Purchaser may set off against
such Indemnifiable Loss any amounts owed to Seller or Shareholders pursuant to
the ▇▇▇▇▇▇ Employment Agreement or any amounts due under this Agreement.
8.5 CLAIMS FOR INDEMNIFICATION. Whenever any claim shall arise for
indemnification under this Section 8, the party seeking indemnification (the
"Indemnitee") shall promptly notify the other party or parties (the
"Indemnitor(s)") of the claim and, when known, the facts constituting the basis
for such claim. Such notice shall specify, if known, the amount or a good faith
estimate of the amount of the liability arising therefrom.
SECTION 9
MISCELLANEOUS
9.1 NOTICES. Any notices or other communications required or permitted
hereunder shall be deemed to have been duly given (a) if delivered in person and
a receipt is given; or (b) if sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed as follows:
(a) If to Seller or Shareholders:
Atlanta On-Line InterNet, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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(b) If to Purchaser:
High Speed Access Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ PLLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
or if sent to such substituted address as any of the parties has given to the
others in writing in accordance with this Section 9.1.
9.2 WAIVERS. No waiver or failure to insist upon strict compliance with
any obligation, covenant, agreement or condition of this Agreement shall operate
as a waiver of, or an estoppel with respect to, any subsequent or other failure.
9.3 EXPENSES. Each party shall assume its respective expenses incurred
in connection with the transactions contemplated by this Agreement.
9.4 HEADINGS; INTERPRETATION. The headings in this Agreement have been
included solely for ease of reference and shall not be considered in the
interpretation or construction of this Agreement. All references herein to the
masculine, neuter or singular shall be construed to include the masculine,
feminine, neuter or plural, as applicable.
9.5 ANNEXES AND SELLER DISCLOSURE LETTER. The Annexes to this Agreement
and the Seller Disclosure Letter are incorporated herein by reference and
expressly made a part hereof.
9.6 ENTIRE AGREEMENT. All prior negotiations and agreements by and
among the parties hereto with respect to the subject matter hereof are
superseded by this Agreement, and there are no representations, warranties,
understandings or agreements with respect to the subject matter hereof other
than those expressly set forth herein or in an Annex or Seller Disclosure Letter
delivered in connection herewith.
9.7 REPRESENTATIONS AND WARRANTIES, ETC. The representations and
warranties of each party contained herein shall not be deemed to be waived or
otherwise affected by any investigation made by any other party hereto.
9.8 GOVERNING LAW. This Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of the Commonwealth of Kentucky,
without regard to its conflicts of law principles.
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9.9 BROKERS. The parties covenant and agree with one another that they
have not dealt with any broker or finder in connection with any of the
transactions contemplated in this Agreement and, insofar as they know, no broker
or other Person is entitled to a commission or finders' fee in connection with
these transactions. Each party shall indemnify and hold the other parties
harmless from and against any claim by any agent or broker claiming by or
through it for any fee or other compensation due or allegedly due that broker or
agent.
9.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
9.11 BENEFIT AND BINDING EFFECT. This Agreement shall be binding upon,
and shall inure to the benefit of, Seller and Shareholders and their heirs,
personal representatives, successors and assigns, and Purchaser and each of its
successors and assigns; provided, however, that no party to this Agreement shall
assign his or its rights or obligations hereunder without the express written
consent of the other parties, which consent shall not be unreasonably withheld.
9.12 SEVERABILITY. If any provision of this Agreement or its application
will be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of all other applications of that provision, and of all other
provisions and applications hereof, will not in any way be affected or impaired.
If any court shall determine that any provision of this Agreement is in any way
unenforceable, such provision shall be reduced to whatever extent is necessary
to make such provision enforceable.
9.13 RISK OF LOSS. The risk of any loss or damage to any of the Assets
by fire or any other casualty or cause shall be borne by Seller at all times
through the Closing, and by Purchaser thereafter.
9.14 FURTHER ASSURANCES. From time to time at another party's request
and without further consideration, a party shall execute and deliver such
further instruments of conveyance, assignment and transfer, and take such other
actions as the requesting party may reasonably request, in order to more
effectively convey and transfer any of the Assets. In addition, any monies
collected by a party which are due and payable to another party will be promptly
remitted to such party upon receipt thereof.
9.15 ARBITRATION. All controversies, disputes or claims arising
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among the parties in connection with, or with respect to, any provision of this
Agreement or any of the Other Agreements, which has not been resolved within
fifteen (15) calendar days after either Purchaser or Seller and Shareholders
shall notify the other in writing of such controversy, dispute or claim, may be
submitted to arbitration in accordance with the rules of the American
Arbitration Association or any successor thereof. Unless otherwise mutually
agreed, arbitration shall take place at an appointed time and office location in
Louisville, Kentucky. In the event of arbitration, each of the Purchaser and
Seller and Shareholders shall select one arbitrator (who shall not be counsel
for any such party); and the two so designated shall select a third arbitrator.
If either party shall fail to designate an arbitrator within seven (7) calendar
days after arbitration is requested, or if the two arbitrators shall fail to
select a third arbitrator within fourteen (14) calendar days after arbitration
is requested, then such arbitrator shall be selected by the American Arbitration
Association or any successor thereto upon application of either party. Judgment
upon any award of the majority of arbitrators shall be binding and shall be
entered in a court of competent jurisdiction. The award of the arbitrators may
grant any relief which might be granted by a court of general jurisdiction,
including, without limitation, award of damages and/or injunctive relief, and
may, in the discretion of the arbitrators, assess, in addition, the cost of the
arbitration, including the reasonable fees of the arbitrators and reasonable
attorneys' fees, against either or both parties, in such proportions as the
arbitrators shall determine. Nothing herein contained shall bar the right of any
of the parties to seek and obtain temporary injunctive relief from a court of
competent jurisdiction in accordance with applicable law against threatened
conduct that will cause loss or damage, pending completion of the arbitration.
9.16 SALES AND TRANSFER TAXES AND FEES. All sales and transfer taxes,
and all recording, filing and other fees (including any penalties or interest),
incurred in connection with this Agreement and the transactions contemplated
hereby shall be borne by Seller.
9.17 NAME CHANGE. Seller shall file an amendment to Seller's Articles of
Incorporation immediately following the Closing which changes Seller's name to a
name which is distinguishable from Seller's current name, and which is otherwise
reasonably satisfactory to Purchaser; provided however, Seller shall be entitled
to continue to use the name "Atlanta On-Line InterNet, Inc." for a period of up
to 90 days following the Closing Date for the limited purpose of collecting the
Accounts Receivable, payment of Seller's remaining debts and liabilities and
winding down of Seller's corporate existence.
9.18 PRORATIONS. All operating expenses, other than Prepaid Assets,
pertaining to the conduct and operation of the Business shall be prorated as of
the Closing Date, so that, as between Seller and Purchaser, Seller shall be
responsible for all expenses, costs and liabilities (including, without
limitation, salaries, ad valorem property taxes, lease payments, etc.) allocable
to the period prior to the Closing Date, and Purchaser shall be responsible for
all expenses, costs and liabilities allocable to Purchaser's ownership of the
Assets and operation of the Business on the Closing Date and thereafter. Seller
and Purchaser agree to cooperate and use their best efforts to make such
adjustments no later than thirty (30) days after Closing. Bills received after
Closing which relate to expenses incurred, services performed, or other amounts
allocable to the period prior to the Closing Date shall be paid by Seller.
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9.19 PUBLICITY. Except as required by applicable law, or by this
Agreement, without the prior written consent of the other party, no party shall
disclose or publish or permit the disclosure or publication of any information
concerning the material terms of this Agreement and the transactions
contemplated hereby.
9.20 TERMINATION. This Agreement may be terminated:
(i) by mutual agreement of the parties;
(ii) by Purchaser, by giving written notice of termination to
Seller within five days of the receipt of certain Annexes and the Seller
Disclosure Letter required to be delivered by the Seller and the Shareholders
after the execution of this Agreement, if the items set forth on the Annexes and
the disclosures made in the Seller Disclosure Letter are (a) inconsistent in any
material respect with Purchaser's due diligence investigations of Seller, or (b)
in the reasonable judgment of the Board of Directors of Purchaser, determined to
be either (x) of such significance as to material and adversely affect the
financial condition or results of operations of Seller, or (y) to deviate
materially and adversely from Seller's Financial Statements;
(iii) by either party, upon prior written notice to the other,
if the other party materially breaches any representation or warranty or
covenant contained in this Agreement; and
(iv) by either party, if the Closing shall not have occurred
on or before March 31, 1999.
9.21 PRE-CLOSING OPERATIONS OF SELLER. Between the date of this
Agreement and the Closing, Seller shall, and the Shareholders shall cause the
Seller to, operate the Business only in the usual, regular and ordinary course
and to preserve the Business intact and to keep available to the Purchaser the
services of Seller's present employees to the extent contemplated herein. Seller
shall not take, and the Shareholders shall cause the Seller not to take, any
action inconsistent with the foregoing without the express written consent of
the Purchaser.
9.22 REASONABLE BEST EFFORTS. Between the date of this Agreement and the
Closing, Seller, Shareholders and Purchaser each shall use their reasonable best
efforts to satisfy the conditions to Closing set forth in Sections 5 and 6
hereof.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date set forth in the preamble hereto.
HIGH SPEED ACCESS CORP.
By /s/ ▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Title: President
------------------------------------
ATLANTA ON-LINE INTERNET, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, President
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
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