Asset Purchase Agreement - Fleet National Bank and Mangosoft Inc.
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT is dated as of February 11, 2002 by and
between Mangosoft, Inc., a Nevada corporation (the "Buyer"), and Fleet National
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Bank, a national banking association (the "Seller").
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The Seller provides the service known as fileTRUST(SM), which is an
internet-based safe deposit box for the storage of electronic documents
("Filetrust" or the "Purchased Business").
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This Agreement contemplates a transaction in which (i) the Seller sells
certain specified assets to the Buyer, (ii) the Buyer assumes certain specified
liabilities of the Seller, and (iii) thereafter the Buyer operates the Purchased
Business on the terms and conditions set forth below.
In consideration of the mutual promises and agreements set forth
herein, the Buyer and the Seller agree as follows:
Article 1
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Purchase and Sale
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1.1 Acquired Assets. Subject to the terms and conditions set forth in
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this Agreement, at the Closing referred to in Article 4 hereof, the Seller shall
sell, assign, transfer and deliver to the Buyer, and the Buyer shall purchase,
acquire and take assignment and delivery of, the following assets of the Seller
used in or relating to the Purchased Business, with the exception of the
Excluded Assets (as defined in Section 1.2, with all of such assets included in
this Section 1.1 hereinafter referred to collectively as the "Acquired Assets"):
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(a) all of the Seller's rights to the name "fileTRUST"
and the service mark "FILETRUST," Serial No.
76056426, registration of which is currently pending
before the U.S. Patent and Trademark Office (the
"Mark"), the internet domain name www.filetrust.com
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(http://www.filetrust.com) (the "Domain Name"),
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together with the production records, technical
information, manufacturing and design know-how,
software systems, processes, trade secrets, including
but not limited to the code base for the FileTrust
application and accompanying documentation (all of
the foregoing are collectively referred to as the
"Intangibles");
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(b) the servers and other hardware owned by the Seller
and described on Schedule 1.1 (b) hereto (the
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"Equipment");
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(c) all of Seller's rights in all agreements with
customers and users of FileTrust (excluding as users
Seller, Affiliates of Seller, and their respective
employees), such agreements being terminable at will
by such customers and users on a monthly basis, and
in the form of "Terms and Conditions" accepted by
customers and users of Filetrust on the Filetrust
internet web site from time to time (the "Customer
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Agreements"); and
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(d) any and all of Seller's rights in any agreements with
Microsoft Corporation or its Affiliates relating to
Filetrust (the "Microsoft Agreements"), subject to
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the provisions of Section 8.1 below.
1.2. Excluded Assets. Notwithstanding the foregoing, the Seller is not
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selling and the Buyer is not purchasing pursuant to this Agreement, and the term
"Acquired Assets" shall not include, any of the following assets (collectively,
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the "Excluded Assets"):
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(a) except for the Customer Agreements and Microsoft
Agreements, all of the rights of Seller and Seller's Affiliates with
respect to any contracts, bids, subcontracts or other agreements for
the provision of Filetrust services, including without limitation, one
or more agreements with StorageNetworks, Inc., and Exodus
Communications, Inc. (with such contracts, bids, subcontracts and
agreements, together with all related change orders, extra work orders
and other amendments and modifications thereto being referred to herein
as the "Retained Contracts");
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(b) all other assets relating specifically to Retained
Contracts.
(c) any capital stock or equity interest in the Seller;
(d) all foreign, federal, state or local Tax (as defined in
Article 13) refunds, Tax refund claims and Tax credits, deductions or
other Tax benefits of the Seller relating to periods prior to the
Closing Date;
(e) all indemnity and contribution rights granted to the
Seller or owed by third parties to the Seller with respect to Excluded
Liabilities (as defined in Article 2) and any and all rights or assets
arising from and related to the defense, release, compromise,
discharge, administration, management or satisfaction by the Seller of
the Excluded Liabilities;
(f) all of Seller's rights, claims, actions, causes of action,
vendor, supplier and similar claims, judgments and demands of whatever
nature relating to Excluded Assets;
(g) all of Seller's deferred charges, advance payments,
prepaid items, security and other deposits, claims for refunds, rights
of offset, and credits of all kinds, relating specifically to the
Excluded Assets or to the Excluded Liabilities;
(h) the consideration received by the Seller pursuant to this
Agreement;
(i) the rights of the Seller under this Agreement; and
(j) any and all rights in and to the names "Fleet",
"FleetBoston Financial Corporation" or any names containing any reference or
references thereto, including without limitation, the registered designmark for
Filetrust containing the words "from Fleet", filed as Application No. 76098670
with the U.S. Patent and Trademark Office (the "Designmark"), subject to the
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provisions of Section 8.2 below.
1.3 Seller's Affiliates. Notwithstanding anything to the contrary
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in this Agreement, Seller represents that the Mark, Designmark and Domain Name
are owned by one or more Affiliates of Seller, and accordingly, any
representations with respect to the Mark or Domain Name in this Agreement shall
be deemed to have been made by such Affiliate (provided that the provisions of
Article 12 shall apply as if such representations had been made by Seller), and
Seller shall cause such Affiliate to take any and all action required by this
Agreement with respect to the Mark, Domain Name and/or Designmark.
Article 2
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Assumption of Certain Obligations
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Subject to the obligation of the Seller to indemnify the Buyer with
respect to certain obligations and liabilities of the Seller pursuant to Section
12.1, at the Closing the Buyer shall assume, and agree to pay, perform,
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fulfill and discharge, the following obligations of the Seller relating to the
Purchased Business (collectively, the "Assumed Liabilities"): all obligations
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under the Customer Agreements and the Microsoft Agreements to the extent such
obligations accrue after the Closing and relate to the operation of the
Purchased Business after the Closing. The Buyer shall not assume, and shall not
be deemed to have assumed, any liability or obligation of any nature, fixed or
contingent or known or unknown, of the Seller whatsoever other than as
specifically set forth in this Article 2 (with all such unassumed liabilities
and obligations referred to in this Agreement as the "Excluded Liabilities").
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Article 3
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Purchase Price
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3.1. Purchase Price to be Paid at Closing. At the Closing, the Buyer
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shall pay to the Seller the sum of One Hundred Seventy Five Thousand Dollars
($175,000.00) by certified check or wire transfer to an account designated in
writing by Seller, and Buyer shall issue Three Hundred Fifty Thousand (350,000)
shares of Buyer's common stock to Seller or to Seller's Affiliate designated by
Seller, pursuant to Section 3.2 below (collectively, the "Purchase Price").
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3.2. Common Stock At the Closing, the Buyer or its transfer agent,
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shall deliver to the Seller or Seller's Affiliate (as designated by Seller), a
stock certificate for Three Hundred Fifty Thousand (350,000) shares of common
stock of the Buyer, $0.001 par value per share (the "Shares"). If the Shares are
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not registered under the United States Securities Act of 1933, as amended (the
"Act"), or the securities laws of any State of the United States (the "State
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Acts"), the Shares shall be issued to the Seller or Seller's Affiliate with the
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following rights:
(a) Piggyback Registration Rights. If at any time the Buyer shall
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determine to register any of its shares of common stock under the Act,
the Buyer shall include in such registration statement all of the
Shares for registration therewith.
(b) [Intentionally Omitted]
(c) Transfers Pursuant to Rule 144. The Buyer shall use its
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commercially reasonable best efforts to take all action as may be
reasonably required as a condition to the availability of Rule 144
under the Act (or any successor exemptive rule hereinafter in effect)
with respect to the Shares. The Buyer agrees to provide to the Seller
upon written notice (i) a written statement by the Buyer as to its
compliance with the reporting requirements of Rule 144, (ii) a copy of
the most recent annual report or quarterly report of the Buyer as filed
with the Securities and Exchange Commission (the "SEC"), and (iii) such
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other reports and documents as a stockholder of the Buyer may
reasonably request in availing itself of any rule or regulation of the
SEC allowing a stockholder of the Buyer to sell any of its shares of
the Buyer without registration under the Act. The Buyer further agrees
to use its commercially reasonable best efforts to facilitate and
expedite transfers of the Shares pursuant to Rule 144 under the Act,
which efforts shall include, but not be limited to, timely notice to
its transfer agent to expedite such transfer(s) of the Shares.
(d) Expenses. The Buyer agrees to assume all costs and expenses of
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each such registration pursuant to this Paragraph 3.2, including, but
not limited to, printing, legal and accounting professional fees, SEC
and National Association of Securities Dealers, Inc. filing fees and
expenses and all "blue sky" fees and expenses.
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(e) Transferability to Successors. The registration rights
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provided in this Paragraph 3.2 shall inure for the benefit of the
successors in interest of the Seller or Seller's Affiliate, whether by
merger, consolidation or acquisition.
The Buyer represents and warrants the Shares shall be issued to the
Seller free and clear of all claims, liens, charges and encumbrances and if not
registered with the SEC, shall be validly issued pursuant to an available
exemption from the Act. This Section 3.2 shall survive the Closing.
3.3. Warrants. At the Closing, the Buyer or its transfer agent,
shall deliver to the Seller or Seller's Affiliate (as designated by Seller)
warrants to purchase one hundred fifty thousand shares of Buyer's common stock,
as further described in Section 4.3 below.
Article 4
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Closing
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4.1. Time and Place. The closing of the transfer and delivery of
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all documents and instruments necessary to consummate the transactions
contemplated by this Agreement (the "Closing") shall be held on February 4,
2002, or on such other date and time as shall be mutually agreed to by the Buyer
and the Seller, at the offices of Seller, 100 Federal Street, Boston,
Massachusetts, it being understood and agreed that time is of the essence of
this Agreement. The date on which the Closing is actually held hereunder is
sometimes referred to herein as the "Closing Date". The Closing will be deemed
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to be effective for purposes of this Agreement as of the opening of business on
the Closing Date.
4.2. Transactions at Closing. At the Closing:
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(a) The Seller and Buyer shall duly execute and deliver an
Assignment and Assumption Agreement with respect to the Acquired Assets
and Assumed Liabilities, to be in the form of Exhibit A attached
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hereto.
(b) The Buyer shall deliver the Purchase Price as set forth in
Article 3 above.
(c) The Buyer and the Seller shall enter into a two-year
enterprise license (the "License") for the internal use of Filetrust by
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employees of Seller and its Affiliates, such License to be
substantially in the form of Exhibit B hereto.
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(d) The Buyer shall grant Seller a license to re-market
Filetrust-related products and other Buyer-related products (the
"Re-Licensing Agreement"), whereby Seller shall receive the following:
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50% of all revenues received for Filetrust-related products (whether
called "Filetrust" or identified by some other name) and 20% of
revenues received for other Buyer-related products, such Re-Licensing
Agreement to be substantially in the form of Exhibit C hereto.
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(e) Seller shall cause its Affiliate to execute and deliver to
the Buyer the trademark assignment to effect a transfer of the Mark in
the form attached of Exhibit D hereto, which Buyer shall be responsible
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for filing at the U.S. Trademark and Patent Office together with the
so-called "Recordation Form Cover Sheet."
(f) Seller shall cause its Affiliate to file with the U.S.
Trademark and Patent Office a cancellation of the Designmark.
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(g) Seller shall have the right to designate one (1) member to
Buyer's Board of Advisors.
4.3. Additional Purchase Price. The Buyer agrees to pay the Seller
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or Seller's Affiliate (as designated by Seller), as additional consideration for
the Acquired Assets ("Additional Purchase Price"), up to one million (1,000,000)
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warrants (subject to adjustment as described in the Warrant Agreement in the
form attached hereto as Exhibit E (the "Warrant Agreement")) to purchase common
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stock of Buyer, subject to the following terms and conditions:
(a) Buyer shall issue to Seller, or Seller's Affiliate (as
designated by Seller), on the Closing Date, warrants to purchase one
hundred fifty thousand (150,000) shares of common stock of Buyer (the
"Initial Warrants"), and subsequent to the Closing, one (1) warrant to
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purchase one (1) share of common stock of Buyer for every one ($1.00)
dollar of revenue (the "Revenue Warrants"; the Initial Warrants and the
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Revenue Warrants are collectively referred to as the "Warrants")
generated by Filetrust or its derivative products for a period of two
(2) years from the Closing Date, whether referred to by the "Filetrust"
name or otherwise (the "Revenue"), provided, however, that for the
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purpose of calculating such revenue generated, any amounts received
from Seller pursuant to the License shall be excluded (the "Excluded
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Revenue"). The Initial Warrants shall be issued at the Closing and the
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Revenue Warrants shall be issued on an annual basis, all pursuant to
the Warrant Agreement. Commencing as of Closing Date and for a period
of two (2) years thereafter, no later than the thirtieth (30th) day of
the calendar month after the end of each fiscal quarter of the Buyer,
Buyer shall provide to Seller a report, certified by Buyer's chief
financial officer, detailing the calculation of the Revenue and the
Excluded Revenue for the prior fiscal quarter. In the event that the
Seller disagrees with such calculation it shall notify the Buyer in
writing. At the request of either party, the Seller and the Buyer will
meet to attempt to resolve any such disagreement prior to invoking the
procedures set forth in Section 14.12 below. In addition, the Buyer
will provide the Seller and its accountants access to the Buyer's books
and records to the extent reasonably necessary to verify the
calculation of the Revenue and Excluded Revenue.
(b) The Warrants granted shall be fully vested and exercisable
in full. Each Warrant granted shall have an exercise price equal to the
trading price of a share of Buyer's common stock as of the close of
trading as of the date of this Agreement. The term of each Warrant
shall be five (5) years from the date of issuance of the Warrant.
(c) The Warrants shall entitle Seller to receive upon payment
of the exercise price, shares of common stock of Buyer, subject to the
same registration rights as set forth in Section 3.2 (a) above.
(d) The Warrants and associated rights provided in this
Paragraph 4.3 shall inure for the benefit of the successors in interest
of the Seller, whether by merger, consolidation or acquisition.
(e) This Paragraph 4.3 shall survive the Closing.
Article 5
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Representations and Warranties of the Seller
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The Seller represents and warrants to the Buyer as follows:
5.1. Organization; Authority. The Seller is a corporation duly
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organized, validly existing and in good standing under the laws of its
jurisdiction of organization with corporate power and authority to enter into
this Agreement, and to perform its obligations hereunder. The Seller has
sufficient corporate power and authority to own or lease its interests in the
Acquired Assets and to carry on the Purchased Business as now conducted.
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5.2. Binding Effect. This Agreement has been duly authorized by all
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necessary corporate action of the Seller and this Agreement has been duly
executed and delivered by the Seller and constitutes the legal, valid and
binding obligation of the Seller enforceable against it in accordance with its
terms.
5.3. Non-Contravention. Except for consent to transfer the Microsoft
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Agreements, neither the execution and delivery of this Agreement by the Seller
nor the consummation by the Seller of the transactions contemplated hereby will
constitute a violation of; or be in conflict with, or constitute or create a
default under, or result in the creation or imposition of any encumbrance upon
any of the Acquired Assets pursuant to (a) any agreement or commitment to which
the Seller is a party or by which the Seller or any of its properties
(including, without limitation, any of the Acquired Assets) is bound or to which
the Seller or any of its properties is subject, or (b) the articles of
incorporation or By-laws or other constitutive documents of the Seller.
5.4. Litigation. etc. No action, suit, proceeding or investigation is
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pending or, to the knowledge of the Seller, threatened, against the Seller, any
of its Affiliates (as defined in Article 13) or any of its directors or officers
relating to or affecting the Purchased Business or any of the Acquired Assets,
or which questions the validity of this Agreement or challenges any of the
transactions contemplated hereby or thereby, except for any actions, suits,
proceedings or investigations that individually or in the aggregate will not
have a material adverse effect on the business, financial condition or results
of operations of the Purchased Business or the ability of the Seller to
consummate the transactions contemplated by this Agreement (with each of the
foregoing referred to herein as a "Material Adverse Effect").
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5.5. Conformity to Law. The Seller has complied in all material
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respects with, and is in compliance in all material respects with, all laws,
statutes, governmental regulations and all judicial or administrative or
tribunal orders, judgments, writs, injunctions, decrees or similar commands
applicable to the Purchased Business or any of the Acquired Assets. The Seller
has not committed, been charged with, or to the knowledge of the Seller been
under investigation with respect to, nor to the knowledge of the Seller does
there exist, any violation of any provision of any national, state or local law
or administrative regulation in respect of the Purchased Business or any of the
Acquired Assets, except for any violation that singly or in the aggregate will
not have a Material Adverse Effect and will not restrict or limit the ability of
the Buyer to operate the Purchased Business after the Closing Date.
5.6. Title to Acquired Assets. The Seller is the lawful owner of, has
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good and valid record and marketable title to, and, except for consents to
transfer required from other parties to the Microsoft Agreements, has the full
right to sell, convey, transfer, assign and deliver the Acquired Assets and all
of the Acquired Assets are free and clear of any security interests, liens,
claims, charges, options, mortgages, debts, leases (or subleases), conditional
sales agreements, title retention agreements, encumbrances of any kind, material
defects as to title or restrictions against the transfer or assignment thereof.
5.7. Equipment. Schedule 1.1(b) hereto sets forth a complete and
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accurate list of the Equipment, which is being transferred in its "as is"
condition without any further representation or warranty.
5.8 Intangibles.
(a) The Seller owns or has the sole and exclusive right to use
all Intangibles, and the consummation of the transactions contemplated
hereby will not alter or impair any such right.
(b) Neither the Seller, nor to the knowledge of the Seller, the
other party or parties thereto, is in breach of any agreement or
license relating to Intangibles, except for any breaches that singly or
in
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the aggregate would not have a Material Adverse Effect. No claims have
been asserted, and to the knowledge of the Seller, no claims are
pending, by any Person regarding use of any such Intangibles, or
challenging or questioning the validity or effectiveness of any license
or agreement relating to Intangibles, and to the knowledge of the
Seller, there is no basis for such claim except in the case of any of
the foregoing for any claims that individually or in the aggregate will
not have a Material Adverse Effect. To the knowledge of the Seller, the
use by the Seller of any Intangibles does not conflict with or infringe
on the rights of any Person and the Seller has not received any claim
or written notice from any Person to such effect, except for any
conflicts, infringements or violations that singly or in the aggregate
will not have a Material Adverse Effect. To the knowledge of the
Seller, no third party is infringing, violating or otherwise using, in
an unauthorized manner, any Intangibles of the Seller relating to the
Purchased Business, except for any conflicts, infringements or
violations that singly or in the aggregate will not cause any
Intangibles to no longer be available to the Seller or otherwise have a
Material Adverse Effect.
5.9. Brokers. The Seller has not retained, utilized or been
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represented by any broker or finder in connection with the
transactions contemplated by this Agreement.
5.10. Accredited Investor. The Seller is an "accredited investor" as
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defined in Regulation D under the Act.
5.11. Assets. Other than the Excluded Assets and the Acquired
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Assets, there are no other assets necessary to operate the
Purchased Business in Seller's working environment.
Article 6
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Representations And Warranties of the Buyer
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The Buyer represents and warrants to the Seller as follows:
6.1. Organization and Standing of Buyer. The Buyer is a corporation
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duly organized, validly existing and in good standing under the laws of the
State of Nevada. The Buyer has full power and authority under its Certificate of
Incorporation and By-Laws and applicable laws to execute and deliver this
Agreement and to consummate the transactions contemplated hereby.
6.2. Corporate Approval; Binding Effect. The Buyer has obtained all
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necessary corporate authorizations and approvals required for the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Buyer and
constitutes the legal, valid and binding obligation of the Buyer, enforceable
against the Buyer in accordance with its terms.
6.3. Non-Contravention; Approvals. Neither the execution and delivery
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of this Agreement by the Buyer nor the consummation by the Buyer of the
transactions contemplated hereby will constitute a violation of, or be in
conflict with, constitute or create a default under, or result in the creation
or imposition of any liens upon any property of the Buyer pursuant to (a) the
Certificate of Incorporation or By-Laws of the Buyer; (b) any agreement or
commitment to which the Buyer is a party or by which the Buyer or any of its
properties is bound or to which the Buyer or any of its properties is subject;
or (c) any statute, regulation, rule, judgment, order, decree, stipulation,
injunction, charge or other restriction of any government, governmental agency
or court or other tribunal to which the Buyer or any of its properties is
subject. No consent, approval or authorization of, or registration,
qualification or filing by the Buyer with, any governmental agency or authority
is required for the
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execution and delivery of this Agreement by the Buyer or for the consummation by
the Buyer of the transactions contemplated hereby.
6.4. Litigation, Etc. No action, suit, proceeding or investigation is
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pending or, to the knowledge of the Buyer, threatened, against the Buyer
relating to or affecting the Purchased Business or any of the Acquired Assets,
or which questions the validity of this Agreement or challenges any of the
transactions contemplated hereby, nor to the Buyer's knowledge, is there any
basis for any such action, suit, proceeding or investigation.
6.5. Brokers. The Buyer has not retained, utilized or been represented
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by any broker or finder in connection with the transactions contemplated by this
Agreement.
Article 7
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Conduct of Business Pending Closing
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Each of the Seller and the Buyer covenant and agree that, from and
after the date of this Agreement and until the Closing or termination of this
Agreement, except as otherwise specifically consented to or approved by the
other party or parties hereto, each of the Seller and the Buyer shall perform
their respective covenants set forth below.
7.1 Full Access. The Seller shall afford to the Buyer and its
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authorized representatives full access during normal business hours to all
properties, books, records, contracts and documents of the Seller relating to
the Purchased Business and a full opportunity to make such investigations as it
shall desire to make of the Purchased Business or with respect to the Acquired
Assets and Assumed Liabilities, and the Seller shall furnish or cause to be
furnished to the Buyer and its authorized representatives all such information
with respect to the Purchased Business as the Buyer may reasonably request. The
Buyer agrees to conduct its investigation in a manner so as not to unreasonably
disrupt the Purchased Business.
7.2. Carry on in Regular Course. The Seller shall carry on the
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Purchased Business substantially in the same manner as it is currently
conducting the Purchased Business and shall not make or institute any unusual or
novel methods of purchase, sale, lease, accounting or operation.
7.3. No Default. The Seller shall not do any act or omit to do any act,
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or permit any act or omission to act, which will cause a material breach of any
of the Customer Agreements or Microsoft Agreements.
7.4. Compliance with Laws. The Seller shall comply in all material
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respects with all laws, regulations and orders applicable with respect to the
Purchased Business or the Acquired Assets or as may be required for the valid
and effective transfer of the Acquired Assets.
7.5. Advice of Change. The Seller will promptly advise the Buyer in
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writing of any material adverse change in the business, financial condition,
operations, prospects or assets of the Seller of which the Seller has or obtains
knowledge.
7.6. Satisfaction of Conditions Precedent. The Seller shall use its
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commercially reasonable efforts to cause the conditions set forth in Article 9
to be satisfied as promptly as practicable. The Buyer shall use its commercially
reasonable efforts to cause the conditions set forth in Article 10 to be
satisfied as promptly as practicable.
Article 8
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Covenants
8.1. Microsoft Agreements. Seller hereby represents that assignment of
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the Microsoft Agreements is subject to the prior written consent of Microsoft or
its Affiliates. Seller is willing to seek such consent, provided that Microsoft
or its Affiliates release Seller from all liability under the Microsoft
Agreements arising after the Closing Date. Notwithstanding anything to the
contrary in this Agreement, to the extent that such consent and release are not
obtained prior to the Closing, nothing in this Agreement will constitute a
transfer or an attempted transfer thereof, and Seller shall terminate the
Microsoft Agreements, in which such case, Buyer shall enter into new agreements
with Microsoft and/or its Affiliates in order to operate Filetrust.
8.2. Future Use of Name. The Buyer agrees that Buyer shall have no
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right to use the words "Fleet" or "FleetBoston" or any other name that is
deceptively similar thereto in conducting any business endeavor (collectively,
"Seller's Name"). The Buyer agrees, effective as of the Closing Date to delete
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all references to Seller's Name in any document, instrument, material or matter
relating to Filetrust, and to delete all links to internet sites with the
Seller's Name from the www.filetrust.com internet site. Neither Seller nor its
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Affiliates shall object to Buyer's registering after the Closing Date a
designmark similar to the registered Designmark for Filetrust without any
reference to Seller's Name.
8.3 Future Operation. For a period of two (2) years following the
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Closing Date, Buyer shall use best efforts to operate the Purchased Business as
a commercially viable enterprise, and Buyer shall not assign, transfer or sell
the Purchased Business without the prior written consent of Seller, which
consent Seller shall have the right to withhold if such transaction would have a
Material Adverse Effect on the Additional Purchase Price, provided however, that
such consent shall not be necessary if the Purchased Business is sold by Buyer
as part of a transaction in which Buyer is selling all or substantially all of
Buyer's assets to an entity that is not an Affiliate of Buyer or if Buyer is
acquired by an entity that is not an Affiliate of Buyer.
8.4 Notification regarding Customer Agreements. Prior to the Closing
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Date, Seller shall have the right to give notice to the persons with whom Seller
has entered in to the Customer Agreements informing them of the sale of the
Purchased Business. Such notification shall be made in accordance with Seller's
then existing policies relating to privacy matters.
Article 9
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Conditions Precedent To Buyer's Obligations.
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The obligations of the Buyer to consummate the Closing shall be subject
to the satisfaction at or prior to the Closing of each of the following
conditions (to the extent noncompliance is not waived in writing by the Buyer):
9.1. Representations and Warranties True at Closing. The
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representations and warranties made by the Seller in this Agreement hereto shall
be true and correct in all material respects (with the foregoing materiality
standard not to be construed in a manner giving duplicative effect to any
materiality standard contained in the terms of such representation or warranty)
at and as of the Closing Date with the same effect as though such
representations and warranties had been made or given at and as of the Closing
Date.
9.2. Compliance With Agreement. The Seller shall have performed and
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complied in all material respects (with the foregoing materiality standard not
to be construed in a manner giving duplicative effect to any materiality
standard contained in the terms of any such obligation) with all of its
obligations under this Agreement to be performed or complied with by it at or
prior to the Closing.
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9.3. No Material Adverse Change. There shall not have been, or
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threatened to be, any material damage to or loss or destruction of any property
or assets owned or leased by the Seller (whether or not covered by insurance) or
any Material Adverse Change in the Purchased Business.
9.4. Closing Certificates. The Seller shall have delivered to the
--------------------
Buyer in writing, at and as of the Closing, a certificate certifying that the
conditions in each of Sections 9.1, 9.2 and 9.3 have been satisfied.
9.5. No Litigation. No restraining order or injunction shall prevent
-------------
the transactions contemplated by this Agreement and no action, suit or
proceeding shall be pending or threatened before any court or administrative
body (i) in which it will be or is sought to restrain or prohibit or obtain
damages or other relief in connection with this Agreement or the consummation of
the transactions contemplated hereby, or (ii) in connection with any claim for
damages against the Seller or with respect to the Acquired Assets, except for
any such claims that singly or in the aggregate would not have a material
adverse effect on the business, condition (financial or otherwise) or prospects
of the Purchased Business.
Article 10
----------
Conditions Precedent to the Obligations of the Seller.
------------------------------------------------------
The obligation of the Seller to consummate the Closing shall be subject
to the satisfaction, at or prior to the Closing, of each of the following
conditions (to the extent noncompliance is not waived in writing by the Seller):
10.1. Representations and Warranties True at Closing. The
----------------------------------------------
representations and warranties made by the Buyer in this Agreement shall be true
and correct in all material respects (with the foregoing materiality standard
not to be construed in a manner giving duplicative effect to any materiality
standard contained in the terms of such representation or warranty) at and as of
the Closing Date with the same effect as though such representations and
warranties had been made or given at and as of the Closing Date.
10.2. Compliance with Agreement. The Buyer shall have performed and
-------------------------
complied in all material respects (with the foregoing materiality standard not
to be construed in a manner giving duplicative effect to any materiality
standard contained in the terms of any such obligation) with all of its
obligations under this Agreement that are to be performed or complied with by it
at or prior to the Closing.
10.3. Closing Certificate. The Buyer shall have delivered to the Seller
-------------------
in writing, at and as of the Closing, a certificate to the effect that the
conditions in each of Sections 10.1 and 10.2 have been satisfied.
10.4. No Litigation. No restraining order or injunction shall prevent
-------------
the transactions contemplated by this Agreement and no action, suit or
proceeding shall be pending or threatened before any court or administrative
body in which it will be or is sought to restrain or prohibit or obtain damages
or other relief in connection with this Agreement or the consummation of the
transactions contemplated hereby.
Article 11 [INTENTIONALLY OMITTED]
Article 12
----------
Indemnification
12.1. Indemnity by the Seller. Subject to the provisions of Sections
-----------------------
12.3 through 12.7, the Seller agrees to indemnify and hold the Buyer and its
Affiliates harmless from and with respect to any and all claims, liabilities,
losses, damages, costs and expenses, including without limitation the reasonable
fees and
10
<PAGE>
disbursements of counsel (collectively, the "Losses"), related to or arising
directly or indirectly out of any of the following:
(i) Any inaccuracies in any representation or warranty made
by the Seller in this Agreement or any failure or breach by the Seller
of any covenant, obligation, or undertaking made by the Seller in this
Agreement;
(ii) Except for the Assumed Liabilities, and whether or not the event,
circumstance or fact giving rise to Losses also constitutes a breach of any
of the representations or warranties or covenants of the Seller, any and all
claims, liabilities and obligations arising out of the operation of the
Purchased Business or the use of the Acquired Assets in the operation thereof
or any business carried on by the Seller or any of its predecessors on or
prior to the Closing Date (whether asserted before or after the Closing Date);
(iii) any claim, liability or obligation relating to any
broker or finder retained or utilized by the Seller or representing the
Seller in connection with the transactions contemplated by this
Agreement.
12.2. Indemnity by the Buyer. Subject to the provisions of Sections
----------------------
12.3 through 12.7, the Buyer agrees to indemnify and hold the Seller and its
Affiliates harmless from and with respect to any and all claims, liabilities,
losses, damages, costs and expenses, including without limitation the reasonable
fees and disbursements of counsel (also referred to herein as "Losses"), related
to or arising directly or indirectly out of any of the following:
(i) any inaccuracies in any representation or warranty made
by the Buyer in this Agreement or any failure;
(ii) any breach by the Buyer of any covenant, obligation or
undertaking made by the Buyer in this Agreement (including without
limitation any failure by the Buyer to pay or perform any of the
Assumed Liabilities);
(iii) any claim, liability or obligation relating to any
broker or finder retained or utilized by the Buyer or representing the
Buyer in connection with the transactions contemplated by this
Agreement; or
(iv) except for those matters for which the Buyer is entitled
to indemnification under Section 12.1 and whether or not the event,
circumstance or fact giving rise to Losses also constitutes a breach of
any of the Buyer's representations or warranties or covenants, any and
all claims, liabilities and obligations arising out of the operation of
the Purchased Business after the Closing Date.
12.3. Time Limitations. Neither the Seller nor the Buyer shall be
----------------
liable to the other under this Article 12 for any claim under Section 12.1 or
Section 12.2(i) or (iii) (each a "Specified Misrepresentation Claim") unless the
---------------------------------
claim is asserted in writing by the party seeking indemnification hereunder no
later than six months from the Closing Date. Any claim for indemnification under
Sections 12.2(ii) or (iv) may be made at any time in the future, subject to any
applicable statute of limitations.
12.4. Materiality Standards; Dollar Thresholds.
----------- ---------- ------ ----------
(a) For purposes of determining those Losses arising from
breaches of representations, warranties or covenants that will be
considered immaterial in nature and accordingly not subject to
indemnification hereunder, the Buyer and the Seller have agreed to use
predictable dollar thresholds as
11
<PAGE>
provided in this paragraph (a). Accordingly, the Buyer and the Seller
agree that with respect to any representation, warranty or covenant
referred to in Section 12.1(i) or 12.2(i), if such representation,
warranty or covenant contains a materiality qualification (e.g.
"material," "materially," "material to the Purchased Business," "in all
material respects," or similar qualifiers), such materiality
qualification shall be deemed to have been met, and such
representation, warranty or covenant shall be deemed to have been
breached, if the Buyer or the Seller, as applicable, incurs or is
alleged to have incurred Losses in excess of $5,000 in connection with
the matter or event to which such representation, warranty or covenant
relates.
(b) Neither the Seller nor the Buyer shall be liable to the
other for any Specified Misrepresentation Claim, if the total Losses
with respect to such Specified Misrepresentation Claim do not exceed
$5,000 ("Minor Claims").
------------
(c) The Seller shall not be liable to the Buyer for any
Specified Misrepresentation Claims, unless and until the total Losses
suffered by the Buyer with respect to all Specified Misrepresentation
Claims exceeds $100,000, excluding Losses with respect to Minor Claims,
and then only to the extent of such excess. The Buyer shall not be
liable to the Seller for any Specified Misrepresentation Claims unless
and until the total Losses suffered by the Seller with respect to all
Specified Misrepresentation Claims exceeds $100,000, excluding Losses
with respect to Minor Claims, and then only to the extent of such
excess.
(d) The total amount payable under Sections 12.1 or 12.2 by
either party shall not exceed $500,000 and the provisions of this
Article 12 shall be the exclusive remedy of the parties.
12.5. Claims.
------
(a) Any party seeking indemnification hereunder (the
"Indemnified Party") shall promptly notify the other party hereto
-----------------
obligated to provide indemnification hereunder (the "Indemnifying
------------
Party") of any action, suit, proceeding, demand or breach (a "Claim")
----- -----
with respect to which the Indemnified Party claims indemnification
hereunder. If such Claim relates to any action, suit, proceeding or
demand instituted against the Indemnified Party by a third party (a
"Third Party Claim"), upon receipt of such notice from the Indemnified
-----------------
Party, the Indemnifying Party shall be entitled to participate in the
defense of such Third Party Claim, and if and only if each of the
following conditions is satisfied, the Indemnifying Party may assume the
defense of such Third Party Claim, and in the case of such an assumption
the Indemnifying Party shall have the authority to negotiate, compromise
and settle such Third Party Claim.
(i) the Indemnifying Party confirms in writing that it
is obligated hereunder to indemnify the Indemnified Party with
respect to such Third Party Claim;
(ii) the Indemnified Party does not give the
Indemnifying Party written notice that it has determined, in
the exercise of its reasonable discretion, that matters of
corporate or management policy or a conflict of interest make
separate representation by the Indemnified Party's own counsel
advisable; and
(iii) the Indemnifying Party establishes to the
reasonable satisfaction of the Indemnified Party that the
Indemnifying Party has (and will continue to have) adequate
financial resources to satisfy and discharge such action or
claim.
The Indemnified Party shall retain the right to employ its own
counsel and to participate in the
12
<PAGE>
defense of any Third Party Claim, the defense of which has been assumed
by the Indemnifying Party pursuant hereto, but the Indemnified Party
shall bear and shall be solely responsible for its own costs and
expenses in connection with such participation.
(b) Notwithstanding the foregoing provisions of this Section
12.5, (i) no Indemnifying Party shall be entitled to settle any Third
Party Claim without the Indemnified Party's prior written consent unless
as part of such settlement the Indemnified Party is released in writing
from all liability with respect to such Third Party Claim and (ii) no
Indemnified Party shall be entitled to settle any Third Party Claim
without the Indemnifying Party's prior written consent unless as part of
such settlement the Indemnifying Party is released in writing from all
liability with respect to such Third Party Claim.
(c) In the event one party hereunder should have a claim for
indemnification that does not involve a Third-Party Claim, the party
seeking indemnification shall promptly send notice of such Claim to the
other party. If the latter disputes such Claim, such dispute shall be
resolved by agreement of the parties or by arbitration pursuant to
Section 14.13.
12.6. Method and Manner of Paying Claims; Set-Off. Subject to the
-------------------------------------------
Indemnifying Party's right pursuant to Section 12.5 to defend, negotiate,
compromise and settle a Third Party Claim, the amount of any Claim shall be paid
by the Indemnifying Party forthwith on demand. The unpaid balance of a Claim
shall bear interest at the Seller's base rate plus 2% from the date notice
thereof is given by the Indemnified Party to the Indemnifying Party; provided
that the Indemnifying Party shall only be obligated to pay interest on that
portion of such Claim ultimately determined to be owed to the Indemnified Party.
Any amounts owed by the Seller or to the Buyer or one of its Affiliates (whether
under this Agreement or otherwise) may be set off in satisfaction of amounts
owed by the Buyer or one of its Affiliates to the Seller (whether under this
Agreement or otherwise) and vice versa.
12.7. Insurance Proceeds.
--------- --------
(a) No Indemnified Party shall be obligated to pursue or
collect from any insurer prior to making a claim for indemnification
pursuant to this Article 12 and no Indemnifying Party shall be entitled
to postpone performance of any indemnification obligation under this
Article 12 while an insurance claim is pending. However, without
limiting any of the provisions of Sections 12.1 through 12.6, in
connection with any matter subject to indemnification under this Article
12, all parties shall cooperate with each other in giving notice of any
claim to any insurer (including an insurer of an Indemnified Party) and
shall provide reasonable assistance in the collection of any such claim;
provided however, that there is no duty to provide notice, cooperate or
-------- -------
assist with respect to an Indemnified Party's insurance policies
(including the Insurance Policies) where the Indemnified Party
determines in its sole discretion that such notice, cooperation or
assistance could invalidate any portion of the coverage available under
such policy or result in the imposition of retroactive premiums or
prospective premium increases. In addition, if an Indemnified Party
makes such a determination after it has notified its insurer, it shall
be entitled to retract such notice.
(b) If an Indemnified Party actually receives insurance
proceeds, the amount for which such Indemnified Party is entitled to
indemnification under this Article 12 shall be reduced appropriately. In
the event an Indemnified Party receives insurance proceeds after being
paid by the Indemnifying Party with respect to an indemnifiable matter
under this Article 12) the Indemnified Party will remit such proceeds to
the Indemnifying Party, up to the amount previously paid by the
Indemnifying Party with respect to such matter. Nothing in this Section
12.7 shall be deemed to waive or limit the subrogation rights of any
insurer.
13
<PAGE>
Article 13
----------
Certain Definitions
-------------------
Certain capitalized terms are defined elsewhere in this
Agreement and are used in this Agreement as so defined. As used herein the
following terms not otherwise defined have the following respective meanings:
"Affiliate": with respect to any Person, any Person controlling,
---------
controlled by or under common control with such Person.
"Control": (including its correlatives "controlled by" and "under
------- -----
common control with") the possession, directly or indirectly, of the power to
--------------
direct or cause the direction of the management or policies of any Person
through ownership of a majority of securities or partnership or other ownership
rights or agreements.
"Knowledge" or "to knowledge of the Seller" or similar knowledge
---------
qualifications shall be deemed to include all facts or circumstances that any of
the following persons knew or should have known after a diligent inquiry into
the relevant subject matter: Matthew Lehman.
"Person": A corporation, an association, a partnership, a limited
------
liability company, an organization, a business, an individual, a government or
political subdivision thereof or a governmental agency.
"Tax": Any federal, state, local, or foreign income, gross receipts,
---
franchise, estimated, alternative minimum, add-on minimum, sales, use, transfer,
registration, value added, excise, natural resources, severance, stamp,
occupation, premium, windfall profit, environmental, customs, duties, real
property, personal property, capital stock, intangibles, social security,
unemployment, disability, payroll, license, employee, or other tax or levy, of
any kind whatsoever, including any interest, penalties, or additions to tax in
respect of the foregoing.
Article 14
----------
General
14.1. Expenses. All sales taxes payable with respect to the sale and
--------
conveyance of the Acquired Assets to the Buyer shall be paid by the Seller. All
filing fees payable with respect to transfer of the Acquired Assets (to the U.S.
Patent and Trademark Office or otherwise) shall be paid by the Buyer and,
pursuant to Section 3.2(d) above, all registration expenses shall be paid by the
Buyer. Except as otherwise set forth in this Section 14.1, all expenses of the
preparation, execution and consummation of this Agreement and of the
transactions contemplated hereby, including, without limitation, attorneys',
accountants' and outside advisers' fees and disbursements, shall be borne by the
party incurring such expenses.
14.2. Notices. All notices, demands and other communications hereunder
-------
shall be in writing or by written telecommunication, and shall be deemed to have
been duly given if delivered personally or if mailed by certified mail, return
receipt requested, postage prepaid, or if sent by overnight courier, or sent by
written telecommunication, as follows:
If to the Seller, to: Fleet National Bank
100 Federal Street
Global Internet Strategy
MA/DE/10023C
Boston, MA 02110
Attn: Matthew Lehman
14
<PAGE>
With a copy sent contemporaneously to:
Fleet National Bank
100 Federal Street
Law Department
MA/DE/10019D
Boston, MA 02110
Attn: Robert Fitzpatrick
If to the Buyer, to: Mangosoft, Inc.
1500 West Park Drive, Suite 190
Westborough, MA 01581
Attn: Chief Financial Officer
with a copy sent contemporaneously to:
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
Attn: Arnold Levine, Esq.
14.3. Entire Agreement. This Agreement (including the Exhibits and
----------------
Schedules hereto) contains the entire understanding of the parties, supersedes
all prior agreements and understandings relating to the subject matter hereof
and shall not be amended except by a written instrument hereafter signed by all
of the parties hereto.
14.4. Governing Law. The validity and construction of this Agreement
-------------
shall be governed by the internal laws (and not the choice-of-law rules) of the
State of New York.
14.5. Sections and Section Headings. The headings of sections and
-----------------------------
subsections are for reference only and shall not limit or control the meaning
thereof.
14.6. Assigns. This Agreement shall be binding upon and inure to the
-------
benefit of the parties hereto and their respective heirs and successors. Neither
this Agreement nor the obligations of any party hereunder shall be assignable or
transferable by such party without the prior written consent of the other
parties hereto, which shall not be unreasonably withheld, except that such
consent shall not be necessary in connection with an assignment if the Purchased
Business is sold by Buyer as part of a transaction in which Buyer is selling all
or substantially all of Buyer's assets to an entity that is not an Affiliate of
Buyer, nor such consent be necessary if either party is acquired (directly or
indirectly) by an entity that is not an Affiliate of such party. No such
assignment shall relieve the parties from their obligations under this
Agreement.
14.7 Survival and Materiality of Representations and Warranties.
----------------------------------------------------------
The representations and warranties of the parties hereto contained in this
Agreement or otherwise made in writing in connection with the transactions
contemplated hereby (in each case except as affected by the transactions
contemplated by this Agreement) shall survive the Closing and the consummation
of the transactions contemplated hereby. Such representations and warranties
shall expire on the last day (if any) on which a claim for indemnification may
be made pursuant to Article 12 for a breach thereof.
14.8 Further Assurances. From time to time, at the request of the
------------------
Buyer and without further consideration, the Seller shall execute and
deliver such further instruments of conveyance and transfer and take
15
<PAGE>
such other actions as the Buyer may reasonably require more effectively to
convey and transfer any of the Acquired Assets to the Buyer. The Seller and the
Buyer shall also execute and deliver to the appropriate other party such other
instruments as may be reasonably required in connection with the performance
this Agreement and each shall take all such further actions as may be reasonably
required to carry out the transactions contemplated by this Agreement.
14.9. No Implied Rights or Remedies. Except as otherwise expressly
-----------------------------
provided herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or to give any person, firm or corporation, except the
Seller and the Buyer, any rights or remedies under or by reason of this
Agreement.
14.10. Counterparts. This Agreement maybe executed in multiple
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14.11. Public Statements or Releases. The parties hereto each agree
-----------------------------
that both prior to and following the consummation of the Closing, no party to
this Agreement will make, issue or release any public announcement, statement or
acknowledgment of the existence of, or reveal the status of; this Agreement or
the transactions provided for herein, without first obtaining the consent of the
other parties hereto to the form of such announcement or statement. Nothing
contained in this Section 14.11 shall prevent any party from making such public
announcements as such party may consider necessary in order to satisfy such
party's legal or contractual obligations or to satisfy the closing conditions
contained herein.
14.12. Dispute Resolution.
------------------
(a) In the event that there is a dispute or claim (a "dispute")
between the parties hereto in any way relating to this Agreement or the
acquisition by the Buyer of the Purchased Business, then the complaining party
shall initially give written notice to the other party setting forth the
particulars of such dispute in reasonable detail (a "Dispute Notice"). Following
the receipt of such Dispute Notice, a designated executive of each party shall
negotiate in good faith with its designated counterparty with a view to reaching
an agreement with respect to the dispute referred to in such Dispute Notice. If
following 90 calendar days after the receipt of such Dispute Notice such
executives are unable to reach an agreement with respect to such dispute, such
dispute shall be settled by arbitration before a panel of three arbitrators
(with one designated by the Buyer and one designated by the Seller, and the
third arbitrator designated by the first two) pursuant to the rules of the
American Arbitration Association. Any arbitrator designated by the Buyer or the
Seller must be an "Independent Person." For the purposes of this Section 14.12,
an "Independent Person" shall be an individual who is not and has not been (i) a
----------- ------
director, officer, employee, agent or shareholder of any party hereto, (ii) a
consultant to any party hereto, (iii) a person with a direct or indirect
financial interest in any contract with either party hereto, (iv) a director,
officer or key employee of a company at a time when such company was party to a
contract with either party hereto, or (v) a relative of any person referred to
in clauses (i), (ii), (iii) or (iv) above. As used in the immediately preceding
sentence, the term "any party hereto" shall be deemed to include any Affiliates
of the parties hereto. Any such arbitration shall take place in Boston, MA.
Arbitration may be commenced at any time by either party hereto giving written
notice to the other party hereto that such dispute has been referred to
arbitration under this Section 14.12. The third arbitrator shall be selected as
prescribed above, but if the first two arbitrators do not so agree within 30
days after the date of the notice referred to above, the selection shall be made
pursuant to the rules of the American Arbitration Association from the
Commercial Arbitration Panel (and not the Construction Arbitration Panel)
maintained by such Association Any award rendered by the arbitrators shall be
conclusive and binding upon the parties hereto; provided, however, that any such
-------- -------
award shall be accompanied by a written opinion of the arbitrators giving the
reasons for the award. In making such award, the arbitrators shall be authorized
to award interest on any amount awarded. This provision for arbitration shall be
specifically enforceable by the Seller and the Buyer and, except as otherwise
set forth below, the decision of the arbitrators in accordance herewith shall be
16
<PAGE>
final and binding. Either party to an arbitration may petition the court in
Massachusetts to confirm, correct or vacate the award on the grounds stated in
the Federal Arbitration Act, or to enter judgment on the arbitration award. Each
of the Seller and the Buyer shall pay its own expenses of arbitration and the
expenses of the arbitrators shall be equally shared; provided, however, that if
-------- -------
in the opinion of the arbitrators any claim for indemnification or any defense
or objection thereto was frivolous or in bad faith, the arbitrators may assess,
as part of the award, all or any part of the arbitration expenses of the other
party (including reasonable attorneys' fees) and of the arbitrators against the
party raising such unreasonable claim, defense or objection.
(b) To the extent that arbitration may not be legally permitted
hereunder and the Seller and the Buyer do not at the time of such dispute or
claim mutually agree to submit such dispute or claim to arbitration either the
Seller or the Buyer may commence a civil action in a court of appropriate
jurisdiction to solve disputes or claims hereunder. Nothing contained in this
Section 14.12 shall prevent the Seller and the Buyer from settling any dispute
or claim by mutual agreement at any time.
(c) Neither party shall be precluded hereby from seeking, from
the courts of any jurisdiction, provisional or equitable remedies of a type not
available in arbitration, including without limitation, temporary restraining
orders and preliminary or permanent injunctions, nor shall the pursuit of such
provisional or equitable relief constitute a waiver or modification of such
party's right and obligation to arbitrate any related or unrelated dispute which
is otherwise subject to arbitration under this Agreement, unless such waiver is
expressed in writing and signed by such party. In the event any person not a
party to this Agreement shall commence any interpleader or similar action which
either directly or indirectly raises issues which are subject to arbitration
hereunder, the Seller and the Buyer shall seek a stay of such proceedings
pending arbitration in accordance with this Agreement.
(d) In the event of any Third Party Claim where the
Indemnifying Party does not assume the defense of such Third Party Claim,
nothing in this Section 14.12 shall prevent the Indemnified Party from
impleading the Indemnifying Party or otherwise joining the Indemnifying Party to
any litigation relating to such Third Party Claim.
14.14. Construction. The language used in this Agreement will be deemed
------------
to be the language chosen by the parties to express their mutual intent, and no
rule of strict construction will be applied against any party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
17
<PAGE>
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have caused this Asset Purchase Agreement to be duly executed and
delivered as of the date and year first above written.
BUYER:
MANGOSOFT, INC.
By: /s/ Douglas Edwards
-----------------------------------
Title: Vice President
-----------------------------
SELLER:
FLEET NATIONAL BANK
By: /s/ Blaise Heltai
-----------------------------------
Title: Executive Vice President
-----------------------------
Exhibit A: Assignment and Assumption Agreement
18
<PAGE>
ASSIGNMENT AND ASSUMPTION AGREEMENT
-----------------------------------
This Assignment and Assumption Agreement ("Agreement") is made on this
the 11/th/ day of February, 2002, by and between FLEET NATIONAL BANK ("Seller")
and MANGOSOFT, INC. ("Buyer").
The parties hereby agree and acknowledge that this Agreement is being
executed and delivered pursuant to the terms of an Asset Purchase Agreement (the
"Purchase Agreement") executed by Seller and Buyer on January 28, 2002, and
further agree that any representations or warranties contained in the Purchase
Agreement with respect to the assignment and assumption under this Agreement are
hereby referenced and incorporated herein, subject to the limitations set forth
in the Purchase Agreement. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Purchase Agreement.
For good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, Seller, on its own behalf and behalf of its Affiliates,
hereby assigns unto Buyer, all right, title, benefit and interest in and to the
Acquired Assets.
As of the date hereof, Buyer hereby assumes and agrees to perform all
of Seller's obligations under the Customer Agreements and the Microsoft
Agreements.
Executed as a sealed instrument as of the date first written above.
MANGOSOFT, INC. FLEET NATIONAL BANK
By: /s/ Robert E. Parsons By: /s/ Blaise Heltai
--------------------- ----------------------------
Name: Robert E. Parsons Name: Blaise Heltai
----------------- --------------------------
Its: Vice President and CFO Its: Executive Vice President
---------------------- ---------------------------
19