EXHIBIT 10.38
ASSET PURCHASE AGREEMENT AMONG CYNET, INC.,
FINANCIAL WARFARE, INC. AND COVENANT ECONET, INC.
NOVEMBER 2, 2001
TABLE OF CONTENTS
PAGE
1. Purchase and Sale of Acquired Assets.....................................................................1
(a) SALE OF THE ACQUIRED ASSETS TO THE BUYER.......................................................1
(b) ASSUMPTION OF LIABILITIES.......................................................................1
(c) PURCHASE PRICE..................................................................................1
(d) THE CLOSING.....................................................................................2
(e) DELIVERIES AT THE CLOSING.......................................................................2
2. Representations and Warranties of the Buyer.............................................................2
(a) ORGANIZATION OF THE BUYER.......................................................................2
(b) AUTHORIZATION OF TRANSACTION....................................................................2
(c) Noncontravention................................................................................2
(d) BROKERS' FEES...................................................................................3
(e) NO CONSENTS.....................................................................................3
3. Representations and Warranties of the Sellers............................................................3
(a) ORGANIZATION AND CORPORATE POWER................................................................3
(b) AUTHORIZATION OF TRANSACTION....................................................................3
(c) NONCONTRAVENTION................................................................................3
(d) BROKERS' FEES...................................................................................4
(e) ASSETS; TITLE; CONDITION AND SUFFICIENCY........................................................4
(f) FINANCIAL STATEMENTS............................................................................4
(g) EVENTS SUBSEQUENT TO MOST RECENT FISCAL MONTH END...............................................4
(h) LEGAL COMPLIANCE................................................................................5
(i) LIABILITIES.....................................................................................5
(j) TAX MATTERS.....................................................................................5
(k) REAL PROPERTIES.................................................................................5
(l) INTELLECTUAL PROPERTY...........................................................................5
(m) CONTRACTS.......................................................................................5
(n) LITIGATION......................................................................................6
(o) EMPLOYEE PLANS..................................................................................6
(p) EMPLOYEES.......................................................................................6
(q) NO CONSENTS.....................................................................................6
4. Pre-Closing Covenants....................................................................................6
(a) GENERAL.........................................................................................6
(b) NOTICES AND CONSENTS............................................................................7
(c) OPERATION OF BUSINESS...........................................................................7
(d) FULL ACCESS; CONFIDENTIALITY....................................................................7
(e) NOTICE OF DEVELOPMENTS; UPDATING DISCLOSURE SCHEDULE............................................7
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(f) EXCLUSIVITY.....................................................................................7
5. Post-Closing Covenants...................................................................................8
(a) GENERAL.........................................................................................8
(b) LITIGATION SUPPORT..............................................................................8
(c) TRANSITION......................................................................................8
(d) EMPLOYEE MATTERS................................................................................8
(e) UNASSIGNABLE CONTRACTS..........................................................................8
6. Noncompetition Covenants.................................................................................8
(a) BACKGROUND......................................................................................8
(b) CONSIDERATION...................................................................................9
(c) TERRITORY.......................................................................................9
(d) NONCOMPETITION..................................................................................9
(e) NOTICE TO OTHERS................................................................................9
(f) REMEDIES........................................................................................9
(g) MODIFICATION...................................................................................10
(h) INDEPENDENT....................................................................................10
7. Conditions to Obligation to Close.......................................................................10
(a) CONDITIONS TO OBLIGATION OF THE BUYER..........................................................10
(b) CONDITIONS TO OBLIGATION OF THE SELLERS........................................................11
8. Remedies for Breaches of This Agreement.................................................................12
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES.....................................................12
(b) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE BUYER............................................12
(c) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE SELLERS..........................................12
(d) MATTERS INVOLVING THIRD PARTIES................................................................12
(e) DETERMINATION OF ADVERSE CONSEQUENCES..........................................................13
(f) OTHER INDEMNIFICATION PROVISIONS...............................................................13
9. Termination.............................................................................................13
(a) TERMINATION OF AGREEMENT.......................................................................14
(b) EFFECT OF TERMINATION..........................................................................14
10. Miscellaneous...........................................................................................14
(a) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS........................................................14
(b) STATEMENTS QUALIFIED BY KNOWLEDGE..............................................................14
(c) NO THIRD-PARTY BENEFICIARIES...................................................................15
(d) ENTIRE AGREEMENT...............................................................................15
(e) SUCCESSION AND ASSIGNMENT......................................................................15
(f) COUNTERPARTS...................................................................................15
(g) HEADINGS.......................................................................................15
(h) NOTICES........................................................................................15
(i) GOVERNING LAW..................................................................................16
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(j) AMENDMENTS AND WAIVERS.........................................................................16
(k) SEVERABILITY...................................................................................16
(l) EXPENSES.......................................................................................16
(m) CONSTRUCTION...................................................................................16
(n) INCORPORATION OF EXHIBITS AND SCHEDULES........................................................16
EXHIBITS AND SCHEDULES:
Exhibit A: Description of Acquired Assets
Disclosure Schedule, initialed by the Parties
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ASSET PURCHASE AGREEMENT
This
Asset Purchase Agreement (the "AGREEMENT") is made and entered into as
of November 2, 2001, by and among CYNET, INC., a
Texas corporation (the
"BUYER"), FINANCIAL WARFARE, INC., a Nevada corporation and COVENANT ECONET,
INC., a Nevada corporation (the "SELLERS"). The Buyer and the Sellers are
sometimes referred to collectively herein as the "PARTIES."
The Sellers are providers of educational programs, general consulting
services and organizers of membership associations, including the business
operations of FINANCIAL WARFARE, INC. (the "BUSINESS"). FINANCIAL WARFARE, INC.
is the wholly owned subsidiary of COVENANT ECONET, INC. This Agreement
contemplates a transaction in which the Buyer will purchase from the Sellers,
and the Sellers will sell to the Buyer, the membership database of the Business
in return for issuance to COVENANT ECONET, INC. certain shares of common stock
of the Buyer.
Now, therefore, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
1. PURCHASE AND SALE OF ACQUIRED ASSETS.
(a) SALE OF THE ACQUIRED ASSETS TO THE BUYER. On and subject to the
terms and conditions of this Agreement, the Sellers agree to sell, convey,
assign, and transfer to the Buyer the FINANCIAL WARFARE, INC. membership
database along with any and all contact information related to the membership
database and prospective members for Sellers' Financial Warfare Membership
program (the "ACQUIRED ASSETS"). It is agreed that the Buyer will acquire by
this Agreement only the Acquired Assets and that the Sellers shall retain on and
following the Closing Date all of their properties and assets not so identified.
Nevertheless, the Acquired Assets do not include any rights to collect
membership fees pursuant to Sellers' offer of educational or membership
services.
(b) ASSUMPTION OF LIABILITIES. On and subject to the terms and
conditions of this Agreement, the Buyer agrees to assume only the liability to
provide its Basic FlyMail communication service and a monthly newsletter to the
acquired database of Financial Warfare Membership until the anniversary date of
the person's membership in the Financial Warfare Membership Club (the "ASSUMED
LIABILITIES") after such time, Buyer will charge the person's related to the
Acquired Assets Buyer's customary subscription fee for Buyer's enhanced
communication services. The Buyer will not assume or have any responsibility,
however, with respect to any other obligation or liability of the Sellers other
than the Assumed Liabilities. Specifically, Buyer assumes no liability to
provide membership and/or educational services Seller offered to the persons
related to the Acquired Assets.
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(c) PURCHASE PRICE. The consideration for the Acquired Assets and the
agreements between the Buyer and Sellers described herein shall be set at the
November 2, 2001 market value of the shares of Buyers stock being offered (the
"PURCHASE PRICE"), plus the assumption of the Assumed Liabilities. The Purchase
Price is payable as follows:
(1) 10,000,000 shares of Cynet, Inc. Class A Common Stock to be
issued to the Sellers within ten (10) business days of entering
into this Agreement; and
(2) 20 shares of Cynet, Inc. Series H Preferred Stock which shares
may be exchanged for up to 20,000,000 shares of Cynet, Inc. Class
A Common Stock at such time after February 28, 2002 that Buyer
has enough authorized Class A Common Stock to satisfy the
conversion.
(d) THE CLOSING. The closing of the transactions contemplated by this
Agreement (the "CLOSING") shall take place by the exchange of facsimile
signatures on the relevant documents followed by the delivery of executed
original documents by the second business day following the facsimile exchange
(the "CLOSING DATE"); provided that the Closing Date shall be no later than
November 9, 2001.
(e) DELIVERIES AT THE CLOSING. At the Closing: (i) the Sellers will
execute, acknowledge (if appropriate), and deliver to the Buyer (A) assignments
(including intellectual property transfer documents) in form and substance
acceptable to the Buyer, (B) each of the Security Documents and (C) such other
instruments of transfer, sale, conveyance and assignment as the Buyer reasonably
may request; (ii) the Buyer will execute, acknowledge (if appropriate), and
deliver to the Sellers an original of the documents executed by the authorized
person(s) representing the Buyer; (iii) the Sellers shall have received from
counsel to the Buyer an opinion in form and substance acceptable to the Sellers;
and (iv) the Buyer shall have received from counsel to the Sellers an opinion in
form and substance acceptable to the Buyer; and (v) the Buyer will deliver to
the Sellers the shares of stock as specified in Section 1(c)(i) above.
2. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents and
warrants to the Sellers that the statements contained in this Section 2 are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Section 2).
(a) ORGANIZATION OF THE BUYER. The Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(b) AUTHORIZATION OF TRANSACTION. The Buyer has full power and
authority (including full corporate power and authority) to execute and deliver
this Agreement and to perform its obligations hereunder. This Agreement
constitutes the valid and legally binding obligation of the Buyer, enforceable
in accordance with its terms and conditions, except as may be limited by
bankruptcy, reorganization, fraudulent conveyance and other laws affecting
creditors' rights generally.
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(c) NONCONTRAVENTION. To the knowledge of the Buyer, neither the
execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (A) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which the Buyer
is subject or any provision of its charter or bylaws or (B) conflict with,
result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any agreement, contract, lease, license, instrument,
or other arrangement to which the Buyer is a party or by which it is bound or to
which any of its assets is subject. The Buyer need not give any notice to, make
any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the transactions
contemplated by this Agreement.
(d) BROKERS' FEES. The Buyer has no liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Sellers could become
liable or obligated.
(e) NO CONSENTS. To the knowledge of the Buyer, no consent, approval,
order or authorization of, or registration, declaration or filing with any
governmental authority or other person on the part of the Buyer is required in
connection with the execution or delivery of, or the performance of its
obligations under this Agreement, the agreements to be executed and delivered
pursuant to this Agreement or the consummation of any transaction contemplated
hereby or thereby.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. The Sellers represent
and warrant to the Buyer, that the statements contained in this Section 3 are
correct and complete as of the date of this Agreement, and will be correct and
complete as of the Closing Date (as though made then and as though the Closing
Date were substituted for the date of this Agreement throughout this Section 3),
except as set forth in the Disclosure Schedule accompanying this Agreement and
initialed by the Parties (the "DISCLOSURE SCHEDULE"). The Disclosure Schedule
will be arranged in sections corresponding to the lettered and numbered sections
contained in this Section 3.
(a) ORGANIZATION AND CORPORATE POWER. The Sellers each and
individually are a corporation duly organized, validly existing, and in good
standing under the laws of the State of
Texas. The Sellers have full corporate
power and authority to carry on the Business as it is presently conducted.
(b) AUTHORIZATION OF TRANSACTION. The Sellers have full power and
authority (including full corporate power and authority) to execute and deliver
this Agreement and to perform their obligations hereunder. Without limiting the
generality of the foregoing, the board of directors of the Sellers have duly
authorized the execution, delivery, and performance of this Agreement by the
Sellers. This Agreement constitutes the valid and legally binding obligation of
the Sellers, enforceable in accordance with its terms and conditions, except as
may be limited by bankruptcy, reorganization, fraudulent conveyance and other
laws affecting creditors' rights generally.
(c) NONCONTRAVENTION. To the knowledge of the Sellers, neither the
execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will
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(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Sellers are subject or any provision
of the charter or bylaws of the Sellers or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument, or other
arrangement to which the Sellers are a party or by which they are bound or to
which any of their assets (including the Acquired Assets) are subject (or result
in the imposition of any Lien (defined below) upon any of their assets), except
where the violation, conflict, breach, default, acceleration, termination,
modification, cancellation, failure to give notice, or Lien would not have a
material adverse effect on the financial condition of the Sellers taken as a
whole or on the ability of the Parties to consummate the transactions
contemplated by this Agreement. To the knowledge of the Sellers, the Sellers do
not need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in
order for the Parties to consummate the transactions contemplated by this
Agreement, except where the failure to give notice, to file, or to obtain any
authorization, consent, or approval would not have a material adverse effect on
the financial condition of the Sellers taken as a whole or on the ability of the
Parties to consummate the transactions contemplated by this Agreement. As used
in this Agreement, the term "LIEN" means any mortgage, deed to secure debt, deed
of trust, security interest, lien, pledge, charge, right of first refusal,
encumbrance, adverse claim of any kind and any other security arrangement of any
nature whatsoever, including any conditional sale or title retention
arrangement, and any assignment, deposit arrangement or lease intended as, or
having the effect of, security and the interest of a lessor or lessee under a
lease treated as a capitalized lease under generally accepted accounting
principles.
(d) BROKERS' FEES. The Sellers have no liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement.
(e) FINANCIAL STATEMENTS. The Sellers have delivered or made
available to the Buyer the following financial statements (collectively the
"FINANCIAL STATEMENTS") (i) audited consolidated balance sheets and statements
of operations, statements of stockholders' equity, and cash flows for all years
such as of and for the fiscal years ended May 31, 2001 the Sellers and their
subsidiaries; (ii) unaudited consolidated balance sheets and statements of
income, changes in stockholders' equity, and cash flow (the "MOST RECENT
FINANCIAL STATEMENTS") as of and for the nine months ended September 30, 2001,
(the "MOST RECENT FISCAL MONTH END") if any.
(f) EVENTS SUBSEQUENT TO MOST RECENT FISCAL MONTH END. Since the Most
Recent Fiscal Month End, there has not been any material adverse change in the
Business which would adversely affect the Acquired Assets.
(g) LEGAL COMPLIANCE. Except as disclosed in Section 3(g) of the
Disclosure Schedule, to the knowledge of the Sellers, the Sellers have conducted
the Business in compliance with all applicable laws (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder) of federal, state, local, and foreign governments (and all
agencies thereof), except where the failure to comply would not have a material
adverse effect upon
4
the financial condition of the Sellers taken as a whole. The Sellers are not in
receipt of any notice or warning of, or to Sellers's knowledge, charged with or
under investigation with respect to any failure or alleged failure to comply
with any provision of any applicable law.
(h) LIABILITIES. None of the Acquired Assets is subject to any Liens
or liabilities of any nature, whether accrued, absolute, contingent or
otherwise, that are not reflected in the Fax Broadcasting Statements, other than
(i) as disclosed in Section 3(h) of the Disclosure Schedule.
(i) TAX MATTERS. The Sellers have filed all required tax returns and
reports relating to the Acquired Assets and the Business required to be filed or
made on or prior to the Closing Date. Sellers have paid (or has made adequate
provision for) all taxes (including penalties and interest), withholdings and
other governmental charges relating to the Acquired Assets and the Business for
all periods ending on or prior to the Closing Date.
(j) CONTRACTS. Except as disclosed in Section 3(l) of the Disclosure
Schedule, the Sellers are not party to any contract pertaining to any of the
Acquired Assets other than the contracts listed on EXHIBIT A (collectively, the
"SELLERS CONTRACTS"). Sellers have delivered to Buyer true and accurate copies
of all written contracts comprising the Sellers Contracts (or a written summary
of the terms of any oral contract), together with all amendments, modifications
and supplements thereof and waivers and consents thereunder. Except as disclosed
in Section 3(m) of the Disclosure Schedule: (i) the Sellers have not assigned
any of their rights in the Acquired Assets.
(k) LITIGATION. Except as described in Section 3(k) of the Disclosure
Schedule, there is no litigation, action, claim, proceeding or governmental
investigation pending or, to the knowledge of Sellers, threatened against
Sellers relating to the Business or the Acquired Assets, and to the knowledge of
Sellers, there is no basis for any such action that is likely to have a material
adverse effect on the Acquired Assets.
(l) NO CONSENTS. To the knowledge of the Sellers, no consent,
approval, order or authorization of, or registration, declaration or filing with
any governmental authority or other person on the part of the Sellers is
required in connection with the execution or delivery of, or the performance of
their obligations under this Agreement, the agreements to be executed and
delivered pursuant to this Agreement or the consummation of any transaction
contemplated hereby or thereby.
4. PRE-CLOSING COVENANTS. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing.
(a) GENERAL. Each of the Parties will use its reasonable best efforts
to take all action and to do all things necessary, proper, or advisable in order
to consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the closing conditions set forth in
Section 7 below).
(b) NOTICES AND CONSENTS. The Sellers will give any notices to third
parties, and will use their reasonable best efforts to obtain any third party
consents, that the Buyer reasonably may request in connection with the matters
referred to in Section 3(c) above. Each of the Parties will give any notices to,
make any filings with, and use its reasonable best efforts to obtain any
5
authorizations, consents, and approvals of governments and governmental agencies
in connection with the matters referred to in Sections 3(c) above.
(c) FULL ACCESS; CONFIDENTIALITY. The Sellers will permit
representatives of the Buyer to have full access at all reasonable times, and in
a manner so as not to interfere with the normal business operations of the
Sellers, to all premises, properties, personnel, books, records (including tax
records), contracts, and documents of or pertaining to the Acquired Assets. The
Buyer will treat and hold as confidential any information concerning the
businesses and affairs of the Sellers, the Acquired Assets or the Sellers'
Business that is not already generally available to the public it receives from
the Sellers and will not use any of such non-public information except in
connection with this Agreement, and, if this Agreement is terminated for any
reason whatsoever, will return to the Sellers all tangible embodiments (and all
copies) of such non-public information which is in its possession.
(c) NOTICE OF DEVELOPMENTS; UPDATING DISCLOSURE SCHEDULE. The Sellers
may elect at any time to notify the Buyer of any development causing a breach of
any of the representations and warranties in Section 3 above. Unless the Buyer
has the right to terminate this Agreement pursuant to Section 9(a)(ii) below by
reason of the development and exercises that right within the period of 10
business days referred to in Section 9(a)(ii) below, the written notice pursuant
to this Section 4(e) will be deemed to have amended the Disclosure Schedule, to
have qualified the representations and warranties contained in Section 3 above,
and to have cured any misrepresentation or breach of warranty that otherwise
might have existed hereunder by reason of the development.
(d) EXCLUSIVITY. Until November 9, 2001 or the termination of this
Agreement, whichever occurs first, the Sellers will not solicit, initiate, or
encourage the submission of any proposal or offer from any Person (defined
below) relating to the acquisition, encumbrance, lease or rental of the Acquired
Assets (including any acquisition structured as a stock purchase, merger,
consolidation, or share exchange); PROVIDED, HOWEVER, that the Sellers and their
directors and officers will remain free to participate in any discussions or
negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by any
Person to do or seek any of the foregoing to the extent their fiduciary duties
may require. As used herein, the term "PERSON" means an individual, a
partnership, a corporation, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof).
5. POST-CLOSING COVENANTS. The Parties agree as follows with respect to
the period following the Closing.
(a) GENERAL. In case at any time after the Closing any further
action is necessary or desirable to carry out the purposes of this Agreement,
each of the Parties will take such further action (including the execution and
delivery of such further instruments and documents) as any other Party
reasonably may request, all at the sole cost and expense of the requesting Party
(unless the requesting Party is entitled to indemnification therefor under
Section 8 below).
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(b) LITIGATION SUPPORT. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(i) any transaction contemplated under this Agreement or (ii) any fact,
situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior
to the Closing Date involving the Acquired Assets, the other Party shall
cooperate with the defending Party and its counsel in the defense or contest,
make available their personnel, and provide such testimony and access to its
books and records as shall be necessary in connection with the defense or
contest, all at the sole cost and expense of the contesting or defending Party
(unless the contesting or defending Party is entitled to indemnification
therefor under Section 8 below).
(c) TRANSITION. The Sellers will not take any action that is
designed or intended to have the effect of discouraging any of the persons who
are related to the Acquired Assets from conducting business with the Buyer prior
to the Closing.
(d) UNASSIGNABLE CONTRACTS. Any provision of this Agreement or of
any instrument executed and delivered pursuant to this Agreement
notwithstanding, to the extent that the assignment of any Sellers Contract shall
require the consent of any other party thereto, the Sellers shall not be deemed
to have assigned the same and the Buyer shall not be deemed to have assumed the
same unless and until such consent shall have been granted. The Sellers and the
Buyer shall use their best efforts to procure consents to the assignment of
those Sellers Contracts which require consent. For so long as any such consent
is not obtained, the Sellers shall cooperate with the Buyer in any reasonable
arrangement to provide to the Buyer the benefits under any such Sellers
Contract, including enforcement of any and all rights of the Sellers arising out
of any breach or cancellation by any other party thereto. If after the Closing
any previously unobtained consent shall be obtained, the Buyer shall assume such
Sellers Contract and the Sellers shall be deemed to have assigned it to the
Buyer, as of the Closing Date.
6 NONCOMPETITION COVENANTS.
(a) BACKGROUND. The Sellers understand that the Buyer will not
consummate the acquisition of the Acquired Assets without the assurance that the
Sellers will not engage in the business of offering to the persons related to
the Acquired Assets communication services in competition with Buyer. The
Sellers further acknowledges and agree that such restrictions are reasonable in
light of the business of the Sellers and the direct and substantial benefit to
the Sellers to be derived by the transactions contemplated by the
Asset Purchase
Agreement.
(b) CONSIDERATION. The Sellers acknowledge and agree that the
substantial benefits to it of the transactions consummated pursuant to this
Section 6 are a significant benefit to the Sellers and also constitute good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged by the Sellers.
(c) NONCOMPETITION. Effective as of the Closing Date, the Sellers
agree that during the period extending from the date of this Agreement through
the third (3rd) anniversary hereof neither it, ▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇ will
not, directly or indirectly:
7
(i) solicit, divert or take away, or attempt to solicit, divert or
take away, persons from the Acquired Assets; or
(ii) attempt or seek to cause any of the persons related to the
Acquired Assets to refrain from entering into a new business
relationship with the Buyer.
PROVIDED, HOWEVER, that it is understood and agreed that Buyer may engage the
services of ▇▇▇▇▇▇ ▇▇▇▇▇ and/or ▇▇▇▇▇▇ ▇▇▇▇▇ to assist Buyer in the conduct of
Buyer's separate business.
(c) NOTICE TO OTHERS. The Sellers hereby agree that the Buyer may
disclose the provisions of this Section 6 to any person.
(d) REMEDIES.
(i) EQUITABLE RELIEF. The Sellers acknowledge that any violation of
this Section 6 may cause irreparable harm to the Buyer and that
damages are not an adequate remedy. The Sellers therefore agree
that the Buyer shall be entitled to injunctive relief, including
temporary, preliminary and permanent injunctions, by an
appropriate court in the appropriate jurisdiction, enjoining,
prohibiting and restraining the Sellers from the continuance of
any such violation, in addition to any monetary damages which
might occur by reason of the violation of this Agreement.
(ii) CUMULATIVE. The remedies provided in this Section 6 are
cumulative and shall not exclude any other remedies to which any
party to this Agreement may be entitled under this Agreement or
applicable law, and the exercise of a remedy shall not be deemed
an election excluding any other remedy (any such claim by the
other party to this Agreement being hereby waived).
(e) MODIFICATION. It is understood and agreed by the parties hereto
that should any portion, provision or clause of the foregoing be deemed too
broad to permit enforcement to its full extent, then it shall be enforced to the
maximum extent permitted by law, and each party hereby consents and agrees that
such scope may be judicially modified accordingly in any proceeding brought to
enforce such restriction.
(f) INDEPENDENT. The covenants and agreements set forth in this
Section 6 represent separate and independent covenants and agreements, and
should any part or provision of such covenants or agreements be held invalid,
void or unenforceable by any court of competent jurisdiction, such invalidity,
voidness or unenforceability shall in no way render invalid, void or
unenforceable any other part or provision thereof or any separate covenant not
declared invalid, void or unenforceable; and this Section 6 shall in that case
be construed as if the void, invalid or unenforceable provisions were omitted.
7 CONDITIONS TO OBLIGATION TO CLOSE.
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(a) CONDITIONS TO OBLIGATION OF THE BUYER. The obligation of the
Buyer to consummate the transactions to be performed by it in connection with
the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties of the Sellers set forth in
Section 3 above shall be true and correct in all material
respects at and as of the Closing Date;
(ii) the Sellers shall have performed and complied with all of their
covenants hereunder in all material respects through the
Closing;
(iii) there shall not be any injunction, judgment, order, decree,
ruling, or charge in effect preventing consummation of any of
the transactions contemplated by this Agreement;
(iv) the Sellers shall have delivered to the Buyer a certificate to
the effect that each of the conditions specified above in
Section 7(a)(i)-(iii) is satisfied in all respects;
(v) the Buyer shall have received from counsel to the Sellers an
opinion in form and substance reasonably aceptable to the
Sellers, addressed tothe Buyer, and dated as of the Closing
Date; and
(vi) all actions to be taken by the Sellers in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents
required to effect the transactions contemplated hereby will be
reasonably satisfactory in form and substance to the Buyer.
The Buyer may waive any condition specified in this Section 7(a) if it executes
a writing so stating at or prior to the Closing.
(b) CONDITIONS TO OBLIGATION OF THE SELLERS. The obligation of the
Sellers to consummate the transactions to be performed by them in connection
with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties of the Buyer set forth in
Section 2 above shall be true and correct in all material
respects at and as of the Closing Date;
(ii) the Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the
Closing;
(iii) there shall not be any injunction, judgment, order, decree,
ruling, or charge in effect preventing consummation of any of
the transactions contemplated by this Agreement;
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(iv) the Buyer shall have delivered to the Sellers a certificate to
the effect that each of the conditions specified above in
Section 7(b)(i)-(iii) is satisfied in all respects;
(v) the Buyer shall have executed and delivered to the Sellers the
Purchase Note and each of the Security Documents in a form
reasonably acceptable to the Sellers;
(vi) the Sellers shall have received from counsel to the Buyer an
opinion in form and substance reasonably acceptable to the
Buyer, addressed to the Sellers, and dated as of the Closing
Date; and
(vii) all actions to be taken by the Buyer in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents
required to effect the transactions contemplated hereby will be
reasonably satisfactory in form and substance to the Sellers.
The Sellers may waive any condition specified in this Section 7(b) if it
executes a writing so stating at or prior to the Closing.
8 REMEDIES FOR BREACHES OF THIS AGREEMENT.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of the Parties contained in Sections 2 and 3
above shall survive the Closing hereunder (unless the damaged Parties knew or
had reason to know of any misrepresentation or breach of warranty at the time of
Closing) and continue in full force and effect for a period of eighteen (18)
months thereafter.
(b) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE BUYER. In the
event the Sellers breach any of their representations, warranties, and covenants
contained herein, provided that the Buyer makes a written claim for
indemnification against any of the Sellers pursuant to Section 10(h) below
within the survival period provided in Section 8(a) above, then the Sellers
agree to indemnify the Buyer from and against any Adverse Consequences (defined
in Section 8(e) below) the Buyer shall suffer through and after the date of the
claim for indemnification (but excluding any Adverse Consequences the Buyer
shall suffer after the end of any applicable survival period) caused proximately
by the breach; PROVIDED, HOWEVER, that the Sellers shall not have any obligation
to indemnify the Buyer from and against any Adverse Consequences caused by the
breach of any representation or warranty of the Sellers: (A) until the Buyer has
suffered Adverse Consequences by reason of all such breaches in excess of a
$100,000 aggregate deductible (after which point the Sellers will be obligated
only to indemnify the Buyer from and against further such Adverse Consequences)
or thereafter (B) to the extent the Adverse Consequences the Buyer has suffered
by reason of all such breaches exceeds a $500,000, aggregate ceiling (after
which point the Sellers will have no obligation to indemnify the Buyer from and
against further such Adverse Consequences).
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(c) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE SELLERS. In the
event the Buyer breaches any of its representations, warranties, and covenants
contained herein, provided that the Sellers make a written claim for
indemnification against the Buyer pursuant to Section 10(h) below within the
survival period provided in Section 8(a) above, then the Buyer agrees to
indemnify the Sellers from and against the entirety of any Adverse Consequences
the Sellers shall suffer through and after the date of the claim for
indemnification (but excluding any Adverse Consequences the Sellers shall suffer
after the end of any applicable survival period) caused proximately by the
breach.
(d) MATTERS INVOLVING THIRD PARTIES.
(i) If any third party shall notify any Party (the "INDEMNIFIED
PARTY") with respect to any matter (a "THIRD PARTY CLAIM") which
may give rise to a claim for indemnification against any other
Party (the "INDEMNIFYING PARTY") under this Section 5, then the
Indemnified Party shall promptly (and in any event within 10
business days after receiving notice of the Third Party Claim)
notify each Indemnifying Party thereof in writing.
(ii) Any Indemnifying Party will have the right to assume and
thereafter conduct the defense of the Third Party Claim with
counsel of his or its choice reasonably satisfactory to the
Indemnified Party; PROVIDED, HOWEVER, that the Indemnifying
Party will not consent to the entry of any judgment or enter
into any settlement with respect to the Third Party Claim
without the prior written consent of the Indemnified Party (not
to be withheld unreasonably) unless the judgment or proposed
settlement involves only the payment of money damages and does
not impose an injunction or other equitable relief upon the
Indemnified Party.
(iii) Unless and until an Indemnifying Party assumes the defense of
the Third Party Claim as provided in Section 8(d)(ii) above,
however, the Indemnified Party may defend against the Third
Party Claim in any manner it reasonably may deem appropriate.
(iv) In no event will the Indemnified Party consent to the entry of
any judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of each of
the Indemnifying Parties.
(e) DETERMINATION OF ADVERSE CONSEQUENCES. For purposes of this
Agreement, the term "ADVERSE CONSEQUENCES" means all actions, suits,
proceedings, hearings, investigations, charges, complaints, claims, demands,
injunctions, judgments, orders, decrees, rulings, damages, dues, penalties,
fines, costs, reasonable amounts paid in settlement, liabilities, obligations,
taxes, liens, losses, expenses, and fees, including court costs and reasonable
attorneys' fees and expenses. The Parties shall make appropriate adjustments for
tax benefits and insurance coverage in determining Adverse Consequences for
purposes of this Section 8. All indemnification payments under this Section 8
shall be deemed adjustments to the Purchase Price.
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(f) OTHER INDEMNIFICATION PROVISIONS. The indemnification provisions
in this Section 8 are in addition to, and not in derogation of, any statutory,
equitable, or common law remedy any Party may have for breach of representation,
warranty, or covenant; PROVIDED, HOWEVER, that the Buyer acknowledges and agrees
that the foregoing indemnification provisions in this Section 8 shall be the
exclusive remedy of the Buyer for any breach of the representations and
warranties in Section 3 above.
9 TERMINATION.
(a) TERMINATION OF AGREEMENT. The Parties may terminate this
Agreement as provided below:
(i) the Buyer and the Sellers may terminate this Agreement by mutual
written consent at any time prior to the Closing;
(ii) the Buyer may terminate this Agreement by giving written notice
to the Sellers at any time prior to the Closing in the event (A)
the Sellers have within the then previous three business days
given the Buyer any notice pursuant to Section 4(e) above and
(B) the development that is the subject of the notice has had a
material adverse effect upon the Acquired Assets taken as a
whole;
(iii) the Buyer may terminate this Agreement by giving written notice
to the Sellers at any time prior to the Closing (A) in the event
the Sellers have breached any material representation, warranty,
or covenant contained in this Agreement in any material respect,
the Buyer has notified the Sellers of the breach, and the breach
has continued without cure for a period of 10 days after the
notice of breach or (B) if the Closing shall not have occurred
on or before November 9, 2001, by reason of the failure of any
condition precedent under Section 7(a) hereof (unless the
failure results primarily from the Buyer itself breaching any
representation, warranty, or covenant contained in this
Agreement); and
(iv) the Sellers may terminate this Agreement by giving written
notice to the Buyer at any time prior to the Closing (A) in the
event the Buyer has breached any material representation,
warranty, or covenant contained in this Agreement in any
material respect, the Sellers have notified the Buyer of the
breach, and the breach has continued without cure for a period
of 10 days after the notice of breach or (B) if the Closing
shall not have occurred on or before November 9, 2001, by reason
of the failure of any condition precedent under Section 7(b)
hereof (unless the failure results primarily from the Sellers
themself breaching any representation, warranty, or covenant
contained in this Agreement).
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10 MISCELLANEOUS.
(a) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue
any press release or make any public announcement relating to the subject matter
of this Agreement without the prior written approval of the Buyer and the
Sellers; PROVIDED, HOWEVER, that any Party may make any public disclosure it
believes in good faith is required by applicable law including the rules,
regulations or practices of the Securities and Exchange Commission or any
listing or trading agreement concerning its publicly-traded securities (in which
case the disclosing Party will use its reasonable best efforts to advise the
other Parties prior to making the disclosure).
(b) STATEMENTS QUALIFIED BY KNOWLEDGE. Whenever a statement in this
Agreement regarding the existence or absence of facts is qualified by a phrase
such as to such Party's "knowledge", the Parties intend that the information to
be attributed to such Party is information that is actually known to an officer
or an employee who has information that is actually known.
(c) NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer
any rights or remedies upon any person other than the Parties and their
respective successors and permitted assigns.
(d) ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or among
the Parties, written or oral, to the extent they have related in any way to the
subject matter hereof.
(e) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of his or its rights, interests, or obligations hereunder without the prior
written approval of the Buyer and the Sellers.
(f) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below.
If to the Sellers: COVENANT ECONET, INC.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
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Copy to: Law Firm of ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
If to the Buyer: CYNET, INC.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Copy to: Chamberlain, Hrdlicka, White, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. Spring III
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Parties
notice in the manner herein set forth.
(i) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of
Texas without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Texas or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of
Texas.
(j) AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Buyer and the Sellers. No waiver by any Party of any default, misrepresentation,
or breach of warranty or covenant hereunder, whether intentional or not, shall
be deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
(k) SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(l) EXPENSES. The Buyer and the Sellers will bear their own costs
and expenses (including legal fees and expenses) incurred in connection with
this Agreement and the transactions contemplated hereby.
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(m) CONSTRUCTION. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
(n) INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on as
of the date first above written.
CYNET, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Chairman and Chief Executive Officer
COVENANT ECONET, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Title: Chairman/CEO
---------------------------------
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Title: Secretary
---------------------------------
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