Securities and Exchange Commission
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): September 4, 1998.
Internet Media Corporation
(Exact name or registrant as specified in its charter)
NEVADA 333-26385 72-1346591
(State or other (Commission (I.R.S. Employer
jurisdiction of File No.) Identification No.)
incorporation)
8748 Quarters Lake Road, Baton Rouge, Louisiana 70809
(Address of principal executive offices, including zip code)
Registrant's telephone number,
including area code: (504) 922-7744
Media Entertainment, Inc.
(Former name or address, if changed since last report)
Form 8-K
Internet Media Corporation
Item 2. Acquisition or Disposition of Assets.
On September 4, 1998, Internet Media Corporation, a Nevada corporation (the
"Company"), through its wholly-owned subsidiary, Santa Fe Wireless
Internet, Inc., a New Mexico corporation ("SFWI"), acquired all of the
assets, including the name and good will, of a Santa, Fe, New Mexico-based
sole proprietorship known as "Desert Rain Internet Service" ("DSRT"). The
assets acquired from DSRT are useful in the operation of an Internet
Service Provider (ISP) and included, without limitation, modems, computer
hardware and office equipment. With the acquired assets, SFWI currently
operates an ISP under the Desert Rain Internet Service trade name. The
assets of DSRT were acquired from Katrina Koehler for $25,000 in cash,
which sale price was determined through negotiations with Ms. Koehler. The
source of funds for the acquisition of DSRT was the Company's capital
reserves.
Item 7. Financial Statements and Exhibits.
The financial statements required by this Item 7 are not filed herewith.
However, the required financial statements shall be filed by amendment to
this Current Report on Form 8-K not later than 75 days from date of the
event to which this Current Report on Form 8-K relates.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Dated: September 18, 1998.
INTERNET MEDIA CORPORATION
By: /s/ David M. Loflin
David M. Loflin
President
INDEX OF EXHIBITS
Exhibit # Description of Document
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10.1 Business Acquisition Agreement, dated as of
August 7, 1998, between Santa Fe Wireless
Internet, Inc., a New Mexico corporation
and Katrina Koehler, d/b/a Desert Rain
Internet Service, a sole proprietorship.
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EXHIBIT 10.1
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BUSINESS PURCHASE AGREEMENT
BUSINESS PURCHASE AGREEMENT, dated as of August 7, 1998 (the "Agreement"),
between Santa Fe Wireless Internet, Inc., a New Mexico corporation
("Purchaser"), and Katrina Koehler ("Owner"), d/b/a Desert Rain Internet
Service, a sole proprietorship (the "Proprietorship").
WHEREAS, the Proprietorship operates as an Internet Service Provider in
Santa Fe, New Mexico; and
WHEREAS, Owner is the sole owner of the Proprietorship; and
WHEREAS, Purchaser desires to purchase all of the assets, including the
name and good will, of the Proprietorship from Owner, and Owner desires to
sell all of the assets, including the name and good will, of the
Proprietorship to Purchaser (the "Purchase"); and
WHEREAS, each of the parties to this Agreement desires to make certain
representations, warranties and agreements in connection herewith and also
to prescribe various conditions thereto; and
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby,
Purchaser and Owner hereby agree as follows:
ARTICLE I. THE PURCHASE
Section 1.1. Purchase and Sale. Owner hereby sells to Purchaser and
Purchaser hereby buys from Owner all of the assets, including the name and
good will, of the Proprietorship, at the price and subject to all of the
terms and conditions set forth herein.
Section 1.2. Purchase Price; Payment. The purchase price for all of the
assets, including the name and good will, of the Proprietorship shall be
$25,000, payable in cash at the Closing under this Agreement.
Section 1.3. Delivery of Bill of Sale. At the Closing, Owner shall
deliver to Purchaser a Bill of Sale, in the form of Exhibit "A" attached
hereto, relating to the assets of the Proprietorship purchased and sold
hereunder.
Section 1.4. Closing. The closing (the "Closing") of the transactions
contemplated by this Agreement shall take place (a) at the offices of the
Proprietorship at 3:00 p.m., local time, on September 1, 1998, or (b) at
such other time and place and on such other date as all of the parties
shall agree in writing (the "Closing Date").
ARTICLE II. FURTHER AGREEMENTS
Section 2.1. Non-Competition Agreement - Owner. At or prior to the
Closing, Purchaser and Owner shall execute a non-competition agreement (the
" Owner Non-Compete") substantially in the form attached hereto as Exhibit
"B".
Section 2.2. Non-Competition Agreement - Gray. At or prior to the
Closing, Purchaser, Owner and Mike Gray ("Gray"), a key employee of the
Proprietorship, shall execute a non-competition agreement (the "Gray
Non-Compete") substantially in the form attached hereto as Exhibit "C".
Section 2.3. Consulting Agreement. At or prior to the Closing, Purchaser
and Gray shall execute a consulting agreement (the "Consulting Agreement")
substantially in the form attached hereto as Exhibit "D".
Section 2.4. Access to Information; Confidentiality. (a) From the date
hereof to the Closing Date, Owner shall, and shall cause her affiliates,
managers, officers, employees, auditors and agents to, afford the officers,
employees and agents of Purchaser complete access at all reasonable times
to the Proprietorship's officers, employees, agents, properties, offices,
plants and other facilities and to all books and records, and shall furnish
Purchaser with all financial, operating and other data and information as
Purchaser, through its officers, employees or agents, may reasonably
request; provided, however, that Owner shall not be required to provide
access or furnish information which it is prohibited by law or contract to
provide or furnish.
(b) Each of Purchaser and Owner shall, and shall cause their respective
affiliates and their respective officers, directors, employees and agents,
to hold in strict confidence all data and information obtained by them from
one another or their respective subsidiaries, affiliates, directors,
officers, employees and agents (unless such information is or becomes
readily ascertainable from public or published information or trade sources
or public disclosure or such information is required by law) and shall
insure that such officers, directors, employees and agents do not disclose
such information to others without the prior written consent of Purchaser
and Owner, as the case may be.
(c) In the event of the termination of this Agreement, Purchaser shall,
and shall cause its affiliates, officers, directors, employees and agents
to, (i) return promptly every document furnished to it by Owner or any of
Owner's affiliates, managers, officers, employees and agents in connection
with the transactions contemplatehereby and any copies thereof, and (ii)
cause others to whom such documents may have been furnished promptly to
return such documents and any copies thereof Purchaser may have made.
(d) No investigation pursuant to this Article II shall affect any
representations or warranties of the parties herein or the conditions to
the obligations of the parties hereto.
Section 2.5. Notification of Certain Matters. Owner shall give prompt
notice to Purchaser of (a) the occurrence or non-occurrence of any event,
the occurrence or non-occurrence of which would be likely to cause a
representation or warranty contained in this Agreement to bentrue or
inaccurate, and ) any failure of Owner to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder; provided, however, that the delivery of any notice pursuant to
this Article II shall not limit or otherwise affect the remedies available
hereunder.
Section 2.6. Further Action. Upon the terms and subject to the conditions
hereof, each of the parties hereto shall use its best efforts to take, or
cause to be taken, all actions and to do, orause to be done, all other
things necessary, proper or advisable to consummate and make effective as
promptly as practicablthe transactions contemplated by this Agreement.
Section 2.7. Public Announcements. Purchaser shall have the exclusive
right to issue a press release or otherwise make any public statements with
respect to the Purchase, at such time or times as Puraser shall determine,
in its sole discretion.
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Owner that:
Section 3.1. Organization and Corporate Authority. Purchaser is a
corporation duly organized, validly existing and in good standing under the
laws of the State of New Mexico and is qualified do business as a foreign
corporation in all jurisdictions where the ownership of property or
maintenance of an office would requi qualification. Purchaser has all
requisite corporate power and authority, governmental permits, consents,
authorizations, gistrations, licenses and memberships necessary to own its
property and to carry on its business in the places where such prerties are
now owned and operated or such business is being coucted.
Section 3.2 Authority Relative to this Agreement. Purchaser has l
necessary corporate power and authority to enter into this Agreement and to
carry out its obligations hereunder. The execution and delivery of this
Agreement by Purchaser and the consummation by Purchaser the transactions
contemplated hereby have been duly authorizeby all necessary corporate
action on the part of Purchaser. This Agreement has been duly executed and
delivered by Purchas and, assuming the due execution and delivery by Owner,
constitutes a legal, valid and binding obligation of Purchaser.
Section 3.3. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by Purchaser do not, and the
performance of this Agreement by Purchaser shall not, (i) conflict with or
violate either the Articles of Incorporation or Bylaws of Purchaser, (ii)
conflict with or violate any law, rule, regulation, order, judgment or
decree applicable to Purchaser or by which it or its properties is bound or
affected, or (iii) result in any breach of or constitute default (or an
event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration
or cancellation of, or result in the creation of a lien or encumbrance on
any of the property or assets of Purchaser pursuant to any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise
or other instrument or obligation to which Purchaser is a party or by which
Purchaser or any of its properties is bound or affected, except for any
such breaches, defaults or other occurrences which would not, individually
or in the aggregate, have a Material Adverse Effect.
(b) The execution and delivery of this Agreement by Purchaser do not, and
the performance of this Agreement by Purchaser shall not, require any
consent, approval, authorization or permit o or filing with or notification
to, any governmental or regulory authority, domestic or foreign, except for
applicable requirements of the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934 and State securities laws.
Section 3.4. Brokers. No broker, finder or investment banker is entitled
to any brokerage, finder's or her fee or commission in connecti with the
transactions contelated by this Agreement based upon arrangements made by
and on behalf of Purchaser.
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF OWNER
Owner hereby represents and warrants to Puraser that, except as set for in
the Disclosure Schedule delivered prior to the date which is three days
prior to the Closing Date by Owner to Purchaser (e "Owner Disclosure
Schedule"):
Section 4.1. Status. The Proprietorship the sole proprietorship of Owner
doing business under the fictitious name "Desert Rain Internet Service" in
the City of Santa Fe, County of Santa Fe, New Mexico, and has the requisite
power and authority and is in possession of all franchises, grants,
authorizations, licenses, permits, easements, consents, certificates,
approvals and orders to own, operate or lease the properties that it
purports to own, operate or lease and to carry on its business as it is now
being conducted, and is duly qualified as a foreign entity to do business,
and is in good standing, in each jurisdiction where the character of its
properties owned, operated or leased or the nature of its activities makes
such qualification necessary, except for such failures which, when taken
together with all other such failures, would not have a Material
Adverseffect. The Proprietorship has not received any notice of
proceedings relating to the revocatioor modification of any such
franchises, grants, authorizations, licenses, permits, easements, consents,
certificates, approvs or orders. The term "Merial Adverse Effect" as used
ithis Article IV, means any change in or effect on the business of the
Proprietorship that is or is reasonably likely to be materially adverse to
the business, operations, properties (including intangible properties),
prospects, condition (financial or otherwise), assets or liabilities of the
Proprietorship taken as a whole.
Section 4.2. Options. Except as set forth in the Owner Disclosure
Schedule, there are no options, warrants or other rights, agreements,
arrangements or commitments of any character relating to the purchase of
any such interest in the Proprietorship or obligating Owner to sell any
interest in the Proprietorship.
Section 4.3. No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by Owner does not, and the
performance of this Agreement by Owner shall not, (i) conflict with or
violate any law, rule, regulation, order, judgment or decree applicable to
Owner or the Proprietorship or by which its properties are bound or
affected, or (ii) result in any breach of or constitute a default (or an
event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration
or cancellation of, or result in the creation of a lien or encumbrance on
any of the properties or assets of the Proprietorship pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the
Proprietorship is a party or by which the Proprietorship or its properties
are bound or affected, except for such breaches, defaults or other
occurrences which would not, individually or in the aggregate, have a
Material Adverse Effect.
(b) The execution and delivery of this Agreement by Owner does not, and
the performance of this Agreement shall not, require any consent, approval,
authorization or permit of, or filing with or notification of, any
governmental or regulatory authority, domestic or foreign.
Section 4.4. Compliance. The Proprietorship is not in conflict with, or
in default or violation of, (a) any law, rule, regulation, order, judgment
or decree applicable to the Proprietorship or by which its properties are
bound or affected, including, without limitation, health and safety,
environmental and civil rights laws and regulations and zoning ordinances
and building codes, or (b) any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise, easement, consent, order or
other instrument or obligation to which the Proprietorship is a party or by
which the Proprietorship or its properties are bound or affected, except
for any such conflicts, defaults or violations which would not have,
individually or in the aggregate, a Material Adverse Effect.
Section 4.5. Financial Statements. Owner has delivered to Purchaser
copies of the unaudited financial statements of the Proprietorship since
inception through July 31, 1998, which financial statements are accurate to
the best knowledge of Owner.
Section 4.6. Absence of Certain Changes or Events. Since July 31, 1998,
except as contemplated by this Agreement or disclosed in the Owner
Disclosure Schedule, the Proprietorship has conducted its business only in
the ordinary course and in a manner consistent with past practice and,
since such date, there has not been (a) any change in the financial
condition, results of operations, business or prospects of the
Proprietorship having a Material Adverse Effect, (b) any damage,
destruction or loss (whether or not covered by insurance) with respect to
any assets of the Proprietorship having a Material Adverse Effect, (c) any
material change by the Proprietorship in its accounting methods, principles
or practices, or (d) any revaluation by the Proprietorship of any of its
assets, including, without limitation, writing down the value of inventory
or any notes, accounts receivable or other investments which would,
individually or in the aggregate, exceed five percent of the total assets
of the Company as reflected on the financial statements of the
Proprietorship delivered to Purchaser hereunder.
Section 4.7. Absence of Litigation. Except as disclosed in the Owner
Disclosure Schedule, there are no claims, actions, proceedings or
investigations pending or, to the best knowledge of Owner, threatened
against the Proprietorship, or any properties or rights of the
Proprietorship, before any court, arbitrator, or administrative,
governmental or regulatory authority or body, that, individually or in the
aggregate, would have a Material Adverse Effect. As of the date hereof,
neither Owner, the Proprietorship nor its properties is subject to any
order, writ, judgment, injunction, decree, determination or award having a
Material Adverse Effect.
Section 4.8. Labor Matters. Except as set forth in the Owner Disclosure
Schedule, (a) there are no controversies pending or, to the knowledge of
Owner, threatened, between the Proprietorship and any of its employees,
which controversies have a Material Adverse Effect; and (b) the
Proprietorship is not a party to any collective bargaining agreement or
other labor union contract.
Section 4.9. Contracts. The Owner Disclosure Schedule lists or describes
all contracts, authorizations, approvals or arrangements to which Owner
and/or the Proprietorship is a party, or by which it is bound, as of the
date hereof, and which (a) obligates or may obligate Owner and/or the
Proprietorship to pay more than $500; or (b) are financing documents, loan
agreements or agreements providing for the guarantee of the obligations of
any party in each case involving an obligation in excess of $1,000.
Section 4.10. Title to Property and Leases. (a) Each asset owned or
leased by Owner and/or the Proprietorship is owned or leased free and clear
of any mortgages, pledges, liens, security interests, conditional and
installment sale agreements, encumbrances, charges or other claims of third
parties of any kind.
(b) All leases of real property leased for the use or benefit of the
Proprietorship to which Owner and/or the Proprietorship is a party, and all
ammendments and modifications thereof are in full force and effect and
have not been modified or amended and there exists no material default under
leases by Owner and/or the Proprietorship, nor any event which, with the
giving of notice or lapse of time, or both, would consistute a material
default thereunder by Owner and or the Proprietorship.
(c) A statement describing all assets and liabilities, absolute and
contingent, of the Proprietorship is included in the Owner Disclosure Schedule.
Section 4.11 Insurance. All material properties of the Proprietorship are
covered by valid and currently effective insurance policies issued in favor
of the Owner and/or the Proprietorship, in such amounts and against such risks
and losses as are customary in their locales of operation for companies
operating similar businesses and operations, and Owner and/or Proprietorship
is included as an insured party under such policies, with full rights as a
loss payee. Copies of all such insurance policies shall be included in the
Owner Disclosure Schedule.
Section 4.12 Taxes. Owner has filed all federal and state tax returns and
reports and, to the best of Owner's knowledge, all state, local and foreign
tax returns and reports required to be filed have been filed and Owner has
paid and discharged all taxes, including sales and use taxes, shown as due
thereon and has paid all applicable state and local ad valorem taxes as are
due, except such as are being contested in good faith by appropriate
proceedings and except for such filings, payments or other occurances which
would not have a Material Adverse Effect. Neither the IRS nor any other
taxing authority or agency is now asserting or, to the best of Owner's
knowledge, threatening to assert against Owner any deficiency or claim for
additional taxes or interest thereon or penalties in connection therewith.
Owner has not granted any waiver of any statue of limitations with respect
to, or any extension of a period for the assessment of, any federal, state,
county, municipal or foreign income tax.
Section 4.13 No Legal Disability. Owner represents and warrants to Purchaser
that she is under no legal disability with respect to entering into this
Agreement.
Section 4.14 Ownership of the Proprietorship. Owner represents and warrants
that she is the sole owner of the Proprietorship free and clear of any
encumbrances and liens, except as disclosed in the Owner Disclosure Schedule.
Section 4.15 Cooperation of Owner. Owner represents and warrants that she
will assist and cooperate, or shall cause Gray to assist and cooperate, with
the auditors of Purchaser as such firm conducts its audit of the operations
of the Proprietorship.
ARTICLE V. CONDUCT OF BUSINESS PRIOR TO THE CLOSING
Section 5.1 Conduct of Business by the Proprietorship Prior to the Closing.
Owner covenants and agrees that, between the date of this Agreement and the
Closing Date, unless Purchaser shall otherwise agree in writing, the business
of the Proprietorship shall be conducted only in, and the Proprietorship shall
not take any action except in, the ordinary course of business and in a manner
consistent with past practice; and Owner shall use its best efforts to
preserve substantially intact the officers, managers, employees and consultants
of the Proprietorship and to preserve the present relationships of the
Proprietorships with customers, suppliers and other amplification and not
limitation, except as contemplated by this Agreement, Owner shall not cause
the Proprietorship to do, or propose to do, any of the following without the
prior written consent of Purchaser, which consent shall not be unreasonably
withheld:
(a) issue, sell, pledge, dispose of, encumber or authorize the issuance,
sale, pledge, disposition or encumbrance of (i) any interest of any class,
or any options, warrants, convertible securities or other rights of any
kind to acquire any ownership interest, in the Proprietorship or (ii) any
assets of the Proprietorship or any other material assets of the
Proprietorship other than in the ordinary course of business consistent
with past practices;
(b) (i) acquire (by merger, consolidation or acquisition of stock or
assets) any corporation, partnership or other business organization or
division thereof; (ii) incur any indebtedness for borrowed money or issue
any debt securities or assume, guaranty or endorse or otherwise as an
accommodation become responsible for, the obligations of any person, or
make any loans or advances, except in the ordinary course of business and
consistent with past practice; (iii) authorize any single capital
expenditure which is in excess of $1,000 or capital expenditures which are,
in the aggregate, in excess of $3,000 for the Proprietorship; or (iv) enter
into or amend any contract, agreement, commitment or arrangement to any of
the effects set forth in this paragraph (b) of Section 5.1;
(c) increase the compensation payable or to become payable to its
managers, officers or employees, except for increases in salary or wages of
employees of the Proprietorship who are not managers or officers of the
Proprietorship in accordance with past practices, or grant any severance or
termination pay to, or enter into any employment or severance agreement
with, any manager, officer or employee of the Proprietorship, or establish,
adopt, enter into or amend any collective bargaining, bonus, profit
sharing, thrift, compensation, pension, retirement, deferred compensation,
employment, termination, severance or other plan, agreement, trust, fund,
policy or arrangement for the benefit of any managers, officers or employees;
(d) take any action other than in the ordinary course of business and in a
manner consistent with past practice with respect to accounting policies or
procedures (including, without limitation, procedures with respect to the
payments of accounts payable and collection of accounts receivable);
(e) settle or compromise any material federal, state, local or foreign
income tax liability; or
(f) pay, discharge, compromise or consent to any arrangements concerning
or satisfy any claims, liabilities or obligations (absolute, accrued,
asserted or unasserted, contingent or otherwise), other than the payment,
discharge, compromise, settlement, arrangement or satisfaction in the
ordinary course of business and consistent with past practice of
liabilities reflected or reserved against in the financial statements of
the Proprietorship or incurred in the ordinary course of business and
consistent with past practice.
Section 5.2. Third Party Consents. Each party to this Agreement shall use
its best efforts to obtain, as soon as reasonably practicable, all permits,
authorizations, consents, waivers and approvals from third parties or
governmental authorities necessary to consummate this Agreement and the
transactions contemplated hereby.
ARTICLE VI. CONDITIONS OF THE PURCHASE
Section 6.1. Conditions to Obligation of Each Party to Effect the
Purchase. The respective obligations of each party to effect the Purchase
shall be subject to the fulfillment of all of the following conditions
precedent at or prior to the Closing Date:
(a) No Order. No United States or state governmental authority or other
agency or commission or United States or state court of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered
any statute, rule, regulation, injunction or other order (whether
temporary, preliminary or permanent) which is in effect and has the effect
of making the purchase and sale of the Interests contemplated hereunder
illegal or otherwise prohibiting consummation of the transactions
contemplated by this Agreement.
(b) No Challenge. There shall not be pending or threatened any action,
proceeding or investigation before any court or administrative agency by
any government agency or any other person challenging, or seeking material
damages in connection with the purchase and sale of the assets of the
Proprietorship contemplated hereunder or otherwise materially adversely
affecting the business, assets, prospects, financial condition or results
of operations of the Proprietorship.
Section 6.2. Additional Conditions to Obligations of Purchaser. The
obligations of Purchaser to effect the Purchase are also subject to the
fulfillment of all of the following conditions precedent at or prior to the
Closing Date:
(a) Due Diligence Investigation. Purchaser's obligations hereunder shall
be subject to its due diligence investigation of the Proprietorship whereby
Purchaser shall not find any unacceptable (as determined by Purchaser in
its sole discretion) item, condition or liability (an "Unacceptable Item").
Should Purchaser find an Unacceptable Item with respect to the
Proprietorship, Purchaser shall notify Owner in writing of such finding and
this Agreement shall become null and void, with no party having liability
hereunder. Purchaser's written notice pursuant to this Section 6.2(a)
shall be delivered to Owner prior to the close of business on the date that
is 14 days from the date of the mutual execution of this Agreement. Should
no written notice be delivered by Purchaser under this Section 6.2(a) prior
to such date, Purchaser will be deemed to have not found an Unacceptable
Item with respect to the Proprietorship.
(b) Representations and Warranties. The representations and warranties of
Owner contained in this Agreement shall be true and correct in all material
respects on and as of the Closing Date, except for changes contemplated by
this Agreement and except for those representations and warranties which
address matters only as of a particular date (which shall remain true and
correct as of such date), with the same force and effect as if made on and
as of the Closing Date, and Purchaser shall have received a Certificate of
the Owner of the Proprietorship which is to that effect, which certificate
shall be in the form attached hereto as Exhibit "E".
(c) Consents Obtained. All consents, waivers, approvals, authorizations
or orders required to be obtained, and all filings required to be made, by
Owner for the authorization, execution and delivery of this Agreement and
the consummation by her of the transactions contemplated hereby shall have
been obtained and made by Owner.
(d) Non-Competition Agreement - Owner. Purchaser and Owner shall have
executed the Owner Non-Compete.
(e) Non-Competition Agreement - Gray. Purchaser, Owner and Gray shall
have executed the Gray Non-Compete.
(f) Consulting Agreement. Purchaser and Gray shall have executed the
Consulting Agreement.
(g) No Material Adverse Change. There shall have been no material adverse
change in the condition, financial or otherwise, of the Proprietorship.
Section 6.3. Additional Conditions to Obligation of Owner. The obligation
of Owner to effect the Purchase is also subject to fulfillment of all of
the following conditions precedent, at or prior to the Closing Date:
(a) Representations and Warranties. The representations and warranties of
Purchaser contained in this Agreement shall be true and correct in all
material respects on and as of the Closing Date, except for changes
contemplated by this Agreement and except for those representations and
warranties which address matters only as of a particular date (which shall
remain true and correct as of such date), with the same force and effect as
if made on and as of the Closing Date, and the Company shall have received
a Certificate of the President of Purchaser which is to that effect, which
certificate shall be in the form attached hereto as Exhibit "F".
(b) Consents Obtained. All consents, waivers, approvals, authorizations
or orders required to be obtained, and all filings required to be made, by
Purchaser for the authorization, execution and delivery of this Agreement
and the consummation by them of the transactions contemplated hereby shall
have been obtained and made by Purchaser.
ARTICLE VII. INDEMNIFICATION
Section 7.1. General Indemnification Covenants - Owner. Owner shall
indemnify, save and keep Purchaser and its affiliates, agents, attorneys,
successors and permitted assigns (the "Purchaser Indemnitees"), harmless
against and from all liability, demands, claims, actions or causes of
action, assessments, losses, fines, penalties, costs, damages and expenses,
including reasonable attorneys' fees, disbursements and expenses
(collectively, the "Damages"), sustained or incurred by any of the
Purchaser Indemnitees as a result of, arising out of or by virtue of any
misrepresentation, breach of any warranty or representation or
non-fulfillment of any agreement or covenant on the part of Owner, whether
contained in this Agreement or any exhibit or schedule hereto or any
written statement or certificate furnished or to be furnished to Purchaser
pursuant hereto or in any closing document delivered by Owner to Purchaser
in connection herewith.
Section 7.2. General Indemnification Covenants - Purchaser. Purchaser
shall indemnify, save and keep Owner and her affiliates, agents, attorneys,
successors and permitted assigns (the "Owner Indemnitees"), harmless
against and from all liability, demands, claims, actions or causes of
action, assessments, losses, fines, penalties, costs, damages and expenses,
including reasonable attorneys' fees, disbursements and expenses
(collectively, the "Damages"), sustained or incurred by any of the Owner
Indemnitees as a result of, arising out of or by virtue of any
misrepresentation, breach of any warranty or representation or
non-fulfillment of any agreement or covenant on the part of Purchaser,
whether contained in this Agreement or any exhibit or schedule hereto or
any written statement or certificate furnished or to be furnished to Owner
pursuant hereto or in any closing document delivered by Purchaser to Owner
in connection herewith.
Section 7.3. Tax Indemnity. (a) Owner hereby agrees to pay, indemnify,
defend and hold Purchaser harmless from and against any and all taxes
associated with the operations of the Proprietorship with respect to any
period (or any portion thereof) up to and including the Closing Date,
except for taxes associated with the operations of the Proprietorship which
are reflected as current liabilities for taxes that exist as of the Closing
Date ("Current Tax Liabilities") on the financial statements delivered to
Purchaser hereunder, together with all reasonable legal fees, disbursements
and expenses incurred by Purchaser in connection therewith.
(b) Owner shall prepare and file any tax return with respect to the
operations of the Proprietorship which is required to be filed after the
Closing Date and which relates to any period (or portion thereof) up to and
including the Closing Date.
(c) The indemnity provided for in this Section 7.3 shall be independent of
any other indemnity provision hereof and, anything in this Agreement to the
contrary notwithstanding, shall survive until the expiration of the
applicable statutes of limitation for the taxes referred to herein, and any
taxes subject to the indemnification for taxes set forth in this Section
7.3 shall not be subject to the provisions of Sections 8.1 or 8.4 hereof.
Section 7.4. Release by Owner. Owner hereby releases and discharges
Purchaser and each of its officers, directors, agents and attorneys from,
and agrees and covenants that, in no event, will Owner commence any
litigation or other legal or administrative proceeding against, Purchaser
or any of its officers, directors, agents or attorneys, whether in law or
equity, relating to any and all claims and demands, known and unknown,
suspected and unsuspected, disclosed and undisclosed, for damages, actual
or consequential, past, present and future, arising out of or in any way
connected with her ownership or alleged ownership of the Proprietorship
prior to the Closing Date, other than claims or demands arising out of the
transactions contemplated by this Agreement.
Section 7.5. Release by Purchaser. Purchaser hereby releases and
discharges Owner and each of her affiliates, agents and attorneys from, and
agrees and covenants that, in no event, will Purchaser commence any
litigation or other legal or administrative proceeding against, Owner or
any of her affiliates agents or attorneys, whether in law or equity,
relating to any and all claims and demands, known and unknown, suspected
and unsuspected, disclosed and undisclosed, for damages, actual or
consequential, past, present and future, other than claims or demands
arising out of the transactions contemplated by this Agreement.
ARTICLE VIII. TERMINATION, AMENDMENT AND WAIVER
Section 8.1. Termination. This Agreement may be terminated at any time
prior to the Closing Date:
(a) By mutual written consent of the parties hereto.
(b) By either Purchaser or Owner, if (i) any governmental or regulatory
body, the consent of which is a condition to the obligations of Purchaser
and Owner to consummate the transactions contemplated hereby, shall not
have been secured, or (ii) any court of competent jurisdiction in the
United States or any state shall have issued an order, judgment or decree
(other than a temporary restraining order) restraining, enjoining or
otherwise prohibiting the purchase and sale of the Interests contemplated
hereunder and such order, judgment or decree shall have become final and
non-appealable.
Section 8.2. Effect of Termination. In the event of termination of this
Agreement as provided in Section 8.1, this Agreement shall forthwith become
void and there shall be no liability on the part of either Purchaser or its
officers or directors, or Owner, except that nothing in this Section 8.2
shall relieve any party from liability for any breach of this Agreement.
Section 8.3. Expenses. Unless otherwise provided herein, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses,
whether or not the Purchase is consummated.
Section 8.4. Amendment. This Agreement may be amended by the parties
hereto at any time prior to the Closing Date. This Agreement may not be
amended except by an instrument in writing signed by the parties hereto.
Section 8.5. Waiver. At any time prior to the Closing Date, any party
hereto may (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in
any document delivered pursuant hereto and (c) waive compliance with any of
the agreements or conditions contained herein. Any such extension or
waiver shall be valid if set forth in an instrument in writing signed by
the party or parties to be bound thereby.
ARTICLE IX. GENERAL PROVISIONS
Section 9.1. Survival of Representations, Warranties and Agreements. The
representations, warranties and agreements in this Agreement shall survive
the Closing Date indefinitely.
Section 9.2. Publicity. (a) The right to publicize the execution of this
Agreement and the Closing hereunder shall be that of Purchaser.
(b) The existence of this Agreement and the knowledge of the future
consummation or termination of this Agreement constitutes privileged and
"insider" information as that term is used in the securities markets.
Owner and each of the employees of the Proprietorship each agree that they
will refrain from purchasing or selling any of the stock of Purchaser at
any time when a material fact relating to this Agreement, its existence or
performance, breach or termination are not made publicly announced by
Purchaser.
Section 9.3. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date delivered or mailed if delivered personally or
mailed by registered or certified mail (postage prepaid, return receipt
requested) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice, except that
notices of changes of address shall be effective upon receipt):
(a) If to Purchaser:
Santa Fe Wireless Internet, Inc.
8748 Quarters Lake Road
Baton Rouge, Louisiana 70809
with copies to:
Newlan & Newlan, Attorneys at Law
2512 Program Drive, Suite 101
Dallas, Texas 75220
(b) if to Owner:
Katrina Koehler
4 Buffalo Canyon
Santa Fe, New Mexico 87505
Section 9.4. Non-Waiver. The failure in any one or more instances of a
party to insist upon performance of any of the terms, covenants or
conditions of this Agreement, to exercise any right or privilege conferred
in this Agreement, or the waiver by said party of any breach of any of the
terms, covenants or conditions of this Agreement, shall not be construed as
a subsequent waiver of any such terms, covenants, conditions, rights or
privileges, but the same shall continue and remain in full force and effect
as if no such forbearance or waiver had occurred. No waiver shall be
effective unless it is in writing and signed by an authorized
representative of the waiving party.
Section 9.5. Arbitration. Any dispute arising under this Agreement, as
well as any of the transactions contemplated hereby, shall be resolved by
arbitration in Dallas, Texas, under the Rules of the American Arbitration
Association, as then in effect. The determination and award of the
arbitrator, which award may include punitive damages, shall be final and
binding on the parties and may be entered as a judgment in any court of
competent jurisdiction. It is expressly agreed that the arbitrators, as
part of their award, can award attorneys' fees to therevailing party.
Section 9.6. Binding Effect; Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their successors and
permitted assigns. Nothing in this Agreement, express or implied, is
intended to confer on any person other than the parties hereto and their
respective successors and permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement, including,
without limitation, third party beneficiary rights.
Section 9.7. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner adverse to any party. Upon such determination that
any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that transactions contemplated
hereby are fulfilled to the extent possible.
Section 9.8. Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and undertakings, both oral
and written, among the parties, or any of them, with respect to the subject
matter hereof and, except as otherwise expressly provided herein, are not
intended to confer upon any other person any rights or remedies hereunder.
Section 9.9. Assignability. This Agreement shall not be assignable by
either party or by operation of law, except with the express written
consent of each other party.
Section 9.10. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Texas applicable to
contracts executed in and to be performed in such State.
Section 9.11. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 9.12. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, Purchaser and Owner have caused this Agreement to be
executed as of the date first written above.
PURCHASER:
SANTA FE WIRELESS INTERNET, INC.
By: /s/ Waddell D. Loflin
Waddell D. Loflin
President
OWNER:
/s/ Katrina Koehler
Katrina Koehler
- --------------------------------------------
Exhibit "A"
Form of Bill of Sale
- --------------------------------------------
BILL OF SALE AND ASSIGNMENT
STATE OF NEW MEXICO )
)
COUNTY OF SANTA FE )
THAT Katrina Koehler, d/b/a Desert Rain Internet Service ("Assignor"),
_________, Santa Fe, New Mexico _____, in consideration of ten dollars and
other good and valuable consideration, the receipt and adedquacy of which
is hereby acknowledged, does hereby assign, sell, transfer and set over
unto Santa Fe Wireless Internet, Inc., a New Mexico corporation
("Assignee"), _______, Santa Fe, New Mexico ____, its successors and
assigns, all of her right title and interest in and to the following
described personal property pursuant to that certain Business Purchase
Agreement between Assignor and Assignee:
Quantity Description
-------- -----------
This Bill of Sale and Assignment shall be effective as to the transfer of
all of the items of personal property described herein as of the ____ day
of _________, 1998.
IN WITNESS WHEREOF, this Bill of Sale and Assignment is executed on this
____ day of _____________, 1998.
Katrina Koehler
d/b/a Desert Rain Internet Service
ACKNOWLEDGMENT
STATE OF NEW MEXICO )
)
COUNTY OF SANTA FE )
This instrument was acknowledged before me on this ___ day of ____________,
1998, by Katrina Koehler.
Notary Public
My Commission Expires:
- --------------------------------------------
Exhibit "B"
Form of Agreement Not to Compete - Owner
- --------------------------------------------
AGREEMENT NOT TO COMPETE
THIS AGREEMENT NOT TO COMPETE is entered into as of ___________, 1998, by
and between Santa Fe Wireless Internet, Inc., a New Mexico corporation
("SFWI"), and Katrina Koehler ("Owner"), owner of Desert Rain Internet
Service (the "Proprietorship").
WHEREAS, SFWI is to purchase all of the assets, including the name and good
will, of the Proprietorship from Owner, pursuant to a Business Purchase
Agreement (the "Purchase Agreement"); and
WHEREAS, as a condition to such Purchase Agreement, Owner has agreed to
sign and be bound by this Agreement Not to Compete; and
NOW, THEREFORE, the parties agree as follows:
Section 1. Agreement Not to Compete. Owner acknowledges that, as owner of
the Proprietorship, Owner enjoys a special background and knowledge of the
Internet Service Provider business. Owner further acknowledges that
employment of Owner by a competitor of SFWI or its affiliates represents a
serious competitive danger to SFWI and its affiliates, and the use of
Owner's talent, knowledge and information about the business, strategies
and plans of SFWI and its affiliates can and would constitute a valuable
competitive advantage over SFWI and its affiliates. In view of the
foregoing, Owner covenants and agrees that, for a period of one year after
the date of the Closing under the Purchase Agreement, Owner will not engage
in any capacity, directly or indirectly, including, but not limited to, as
employee, agent, consultant, manager, executive, owner or stockholder
(except as a passive investor holding less than 1% equity interest in any
enterprise the securities of which are publicly traded) in any business
entity engaged in competition with any business conducted by SFWI and its
affiliates within 100 miles of the following metropolitan areas: St.
George, Utah, Santa Fe, New Mexico, Baton Rouge, Louisiana, and Mesquite
and Las Vegas, Nevada. If any court determines that this Agreement Not to
Compete, or any part hereof, is unenforceable because the duration or
geographic scope of such provision is excessive, such court shall have the
power to reduce the duration or scope of such provision, as the case may
be, and, in its reduced form, such provision shall then be enforceable.
Section 2. Injunctive Relief. Owner acknowledges that the violation of
the covenants contained in this Agreement would be detrimental and cause
irreparable injury to SFWI and its affiliates which could not be
compensated by money damages. Owner agrees that an injunction from a court
of competent jurisdiction is the appropriate remedy for these provisions,
and consents to the entry of an appropriate judgment enjoining Owner from
violating these provisions in the event there is a finding of their breach.
Section 3. Severability of Covenants. Each of the covenants contained in
this Agreement is an independent covenant, which may be available to or
relied upon by SFWI and its affiliates in any court of competent
jurisdiction. If any one of the separate and independent covenants shall
be deemed to be unenforceable under the laws of any state of competent
jurisdiction, each of the remaining covenants shall not be affected
thereby. Notwithstanding the provisions of this Section 3, it is
understood that every benefit received by Owner by virtue of this Agreement
is consideration for each separate covenant contained herein.
Section 4. Governing Law. This Agreement shall be governed by the laws of
the State of Texas.
Section 5. Other Remedies. The undertakings herein shall not be construed
as any limitation upon the remedies SFWI might, in the absence of this
Agreement, have at law or in equity.
INTENDING to be legally bound hereby, SFWI and Owner hereby duly execute
this Agreement Not to Compete on the date set forth above.
SFWI:
SANTA FE WIRELESS INTERNET, INC.
By:
Waddell D. Loflin
President
OWNER:
Katrina Koehler
- --------------------------------------------
Exhibit "C"
Form of Agreement Not to Compete - Gray
- --------------------------------------------
AGREEMENT NOT TO COMPETE
THIS AGREEMENT NOT TO COMPETE is entered into as of ___________, 1998, by
and among Santa Fe Wireless Internet, Inc., a New Mexico corporation
("SFWI"), and Mike Gray ("Gray"), a key employee of Desert Rain Internet
Service (the "Proprietorship"), a sole proprietorship owned by Katrina
Koehler ("Owner").
WHEREAS, SFWI is to purchase all of the assets, including the name and good
will, of the Proprietorship from Owner, pursuant to a Business Purchase
Agreement (the "Purchase Agreement"); and
WHEREAS, as a condition to such Purchase Agreement, Gray has agreed to sign
and be bound by a Consulting Agreement and, under the Consulting Agreement,
to be bound by this Agreement Not to Compete; and
NOW, THEREFORE, the parties agree as follows:
Section 1. Agreement Not to Compete. Gray acknowledges that, as a key
employee of the Proprietorship, Gray enjoys a special background and
knowledge of the Internet Service Provider business. Gray further
acknowledges that employment of Gray by a competitor of SFWI or its
affiliates represents a serious competitive danger to SFWI and its
affiliates, and the use of Gray's talent, knowledge and information about
the business, strategies and plans of SFWI and its affiliates can and would
constitute a valuable competitive advantage over SFWI and its affiliates.
In view of the foregoing, Gray covenants and agrees that, for a period of
one year after the date of the Closing under the Purchase Agreement, Gray
will not engage in any capacity, directly or indirectly, including, but not
limited to, as employee, agent, consultant, manager, executive, owner or
stockholder (except as a passive investor holding less than 1% equity
interest in any enterprise the securities of which are publicly traded) in
any business entity engaged in competition with any business conducted by
SFWI and its affiliates within 100 miles of the following metropolitan
areas: St. George, Utah, Santa Fe, New Mexico, Baton Rouge, Louisiana, and
Mesquite and Las Vegas, Nevada. If any court determines that this
Agreement Not to Compete, or any part hereof, is unenforceable because the
duration or geographic scope of such provision is excessive, such court
shall have the power to reduce the duration or scope of such provision, as
the case may be, and, in its reduced form, such provision shall then be
enforceable.
Section 2. Injunctive Relief. Gray acknowledges that the violation of the
covenants contained in this Agreement would be detrimental and cause
irreparable injury to SFWI and its affiliates which could not be
compensated by money damages. Gray agrees that an injunction from a court
of competent jurisdiction is the appropriate remedy for these provisions,
and consents to the entry of an appropriate judgment enjoining Gray from
violating these provisions in the event there is a finding of their breach.
Section 3. Severability of Covenants. Each of the covenants contained in
this Agreement is an independent covenant, which may be available to or
relied upon by SFWI and its affiliates in any court of competent
jurisdiction. If any one of the separate and independent covenants shall
be deemed to be unenforceable under the laws of any state of competent
jurisdiction, each of the remaining covenants shall not be affected
thereby. Notwithstanding the provisions of this Section 3, it is
understood that every benefit received by Gray by virtue of this Agreement
is consideration for each separate covenant contained herein.
Section 4. Governing Law. This Agreement shall be governed by the laws of
the State of Texas.
Section 5. Other Remedies. The undertakings herein shall not be construed
as any limitation upon the remedies SFWI might, in the absence of this
Agreement, have at law or in equity.
INTENDING to be legally bound hereby, SFWI and Gray hereby duly execute
this Agreement Not to Compete on the date set forth above.
SFWI:
SANTA FE WIRELESS INTERNET, INC.
By:
Waddell D. Loflin
President
GRAY:
Mike Gray
- --------------------------------------------
Exhibit "D"
Form of Consulting Agreement
- --------------------------------------------
CONSULTING AGREEMENT
This Agreement is made as of the ____ day of_________, 1998, by and between
Mike Gray ("Consultant"), and Santa Fe Wireless Internet, Inc., a New
Mexico corporation (the "Company").
WHEREAS, Consultant possesses experience in the operations of an Internet
Service Provider; and
WHEREAS, the Company is to acquire the business of Desert Rain Internet
Service, a Santa Fe, New Mexico-based Internet Service Provider; and
WHEREAS, the Company desires to hire Consultant and Consultant is willing
to accept the Company as a client.
NOW THEREFORE, in consideration of the mutual covenants herein contained,
it is agreed:
1. The Company hereby engages Consultant to render consulting services
with respect to the operations of an Internet Service Provider. Consultant
hereby accepts such engagement and agrees to render such consulting
services as are listed on Exhibit "A" attached hereto and incorporated
herein by this reference, throughout the term of this Agreement.
It is further agreed that Consultant shall have no authority to bind the
Company to any contract or obligation or to transact any business in the
Company's name or on behalf of the Company, in any manner. The parties
intend that Consultant shall perform its services required hereunder as an
independent contractor.
2. The term of this Agreement shall commence upon the date of this
Agreement and shall continue for six months.
3. As a condition to this Agreement, Consultant shall have executed an
Agreement Not to Compete in the form attached hereto as Exhibit "B".
4. In consideration of the services to be performed by Consultant, the
Company agrees to pay Consultant as follows: the Company shall pay
Consultant at the rate of $20.00 per hour of consulting services actually
performed by Consultant on behalf of the Company, up to 40 hours per week;
provided, however, that the Company shall pay Consultant for not less than
20 hours' of consulting services per week, whether or not Consultant
actually performed consulting services during any such week. The Company
shall pay Consultant on a weekly basis, which payments shall be subject to
lawful withholdings, if any.
5. The Company represents and warrants to Consultant that:
A. The Company will cooperate fully and timely with Consultant to
enable Consultant to perform his obligations hereunder.
B. The execution and performance of this Agreement by the Company has
been duly authorized by the Board of Directors of the Company.
C. The performance by the Company of this Agreement will not violate
any applicable court decree, law or regulation, nor will it violate any
provisions of the organizational documents of the Company or any
contractual obligation by which the Company may be bound.
6. Until such time as the same may become publicly known, the parties
agree that any information provided to either of them by the other of a
confidential nature will not be revealed or disclosed to any person or
entity, except in the performance of this Agreement, and upon completion of
Consultant's services and upon the written request of the Company, any
original documentation provided by the Company will be returned to it.
Consultant will not directly or indirectly buy or sell the securities of
the Company at any time when it is privy to non-public information.
7. Consultant hereby represents to the Company that he is under no legal
disability with respect to entering into this Agreement.
8. All notices hereunder shall be in writing and addressed to the party at
the address herein set forth, or at such other address as to which notice
pursuant to this section may be given, and shall be given by personal
delivery, by certified mail (return receipt requested), Express Mail or by
national or international overnight courier. Notices will be deemed given
upon the earlier of actual receipt of three (3) business days after being
mailed or delivered to such courier service.
Notices shall be addressed to Consultant at:
Mike Gray
Santa Fe, New Mexico
and to the Company at:
Santa Fe Wireless Internet, Inc.
8748 Quarters Lake Road
Baton Rouge, Louisiana 70809
with a copy to:
Newlan & Newlan, Attorneys at Law
2512 Program Drive, Suite 101
Dallas, Texas 75220
9. Miscellaneous.
A. In the event of a dispute between the parties arising out of this
Agreement, both Consultant and the Company agree to submit such dispute
through the American Arbitration Association (the "Association") at the
Association's Dallas, Texas, offices, in accordance with the then-current
rules of the Association; the award given by the arbitrators shall be
binding and a judgment may be obtained on any such award in any court of
competent jurisdiction. It is expressly agreed that the arbitrators, as
part of their award, can award attorneys fees to the prevailing party.
B. This Agreement is not assignable in whole or in any part, and shall be
binding upon the parties, their heirs, representatives, successors or assigns.
C. This Agreement may be executed in multiple counterparts which shall be
deemed an original. It shall not be necessary that each party execute each
counterpart, or that any one counterpart be executed by more than one
party, if each party executes at least one counterpart.
D. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Texas.
SANTA FE WIRELESS INTERNET, INC.
By:
Waddell D. Loflin
President
Mike Gray
- ---Exhibit "A" to Consulting Agreement---
Consulting services to be provided by Consultant under the Consulting
Agreement to which this Exhibit "A" is attached include, but shall not be
limited to:
Consultant shall provide consulting services with respect to the operations
of the Company, as requested by the Company, including the training of new
personnel of the Company.
- --------------------------------------------
Exhibit "E"
Form of Certificate of Owner of the Proprietorship
- --------------------------------------------
Certificate of the Owner
Desert Rain Internet Service
The undersigned, the sole owner ("Owner") of Desert Rain Internet Service ,
a New Mexico sole proprietorship ("DRIS"), hereby certifies and affirms
that each of the following is true and correct:
1. The representations and warranties of Owner contained in that certain
Business Purchase Agreement (the "Agreement") to which this Certificate
relates are true and correct as of the date of this Certificate.
2. DRIS has the power and authority to own its properties and carry on its
business in the manner in which such business is conducted.
3. Owner has full capacity, right and authority to enter into the
Agreement and to perform her obligations under the Agreement, and the
Agreement is the legal, valid and binding obligation of Owner and is
enforceable against Owner in accordance with its terms.
4. The assets, including the name and good will, of DRIS, when transferred
and sold to Santa Fe Wireless Internet, Inc. on the Closing Date of the
Agreement, will be free and clear of any liens, claims and encumbrances,
except as disclosed in the Owner Disclosure Schedule delivered by Owner to
Santa Fe Wireless Internet, Inc. pursuant to the Agreement.
Certified and affirmed this ____ day of August, 1998.
Katrina Koehler, Owner
Desert Rain Internet Service
(a New Mexico sole proprietorship)
- --------------------------------------------
Exhibit "F"
Form of Certificate of President of Purchaser
- --------------------------------------------
Certificate of the President
Santa Fe Wireless Internet, Inc.
a New Mexico corporation
The undersigned, the duly elected and acting President of Santa Fe Wireless
Internet, Inc., a New Mexico corporation ("SFWI"), hereby certifies and
affirms that each of the following is true and correct:
1. The representations and warranties of SFWI contained in that certain
Business Purchase Agreement (the "Agreement") to which this Certificate
relates are true and correct as of the date of this Certificate.
2. SFWI is a corporation duly organized and existing under the laws of the
State of New Mexico, and has the power and authority to own its properties
and carry on its business in the manner in which such business is conducted.
3. The execution, delivery and performance by SFWI of the Agreement, in
accordance with the terms and provisions of the Agreement, have been duly
authorized by appropriate corporate action of SFWI.
4. SFWI has full power, right and authority to enter into the Agreement
and to perform its obligations under the Agreement, and the Agreement is
the legal, valid and binding obligation of SFWI and is enforceable against
SFWI in accordance with its terms.
Certified and affirmed this ____ day of August, 1998.
Waddell D. Loflin, President
Santa Fe Wireless Internet, Inc.
(a New Mexico corporation)
