Conformed Copy
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
April 17, 1997
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Date of Report (Date of earliest event reported)
NEW PARADIGM SOFTWARE CORP.
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(Exact name of registrant as specified in its charter)
New York 0-26336 13-3725764
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
733 Third Avenue, New York, New York 10017
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code
(212)-557-0933
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EXHIBIT INDEX ON SEQUENTIALLY NUMBERED PAGE 3
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INFORMATION TO BE INCLUDED IN THE REPORT
Item 5. Other Events.
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Registrant's press release dated April 17, 1997 is filed
herewith as exhibit 20 and is incorporated herein by
reference.
Item 7. Financial Statements and Exhibits.
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(c) Exhibits.
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20. Press release of Registrant dated April 17, 1997.
SIGNATURE
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Pursuant to the requirements of the Securities Exchange
Act of 1934, as amended, the registrant has duly caused this
Current Report to be signed on its behalf by the undersigned
thereunto duly authorized.
NEW PARADIGM SOFTWARE CORP.
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(Registrant)
By /s/ John Brann
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John Brann
VP Technology
and Secretary
Date: May 2, 1997
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EXHIBIT INDEX
Sequentially
Exhibit Numbered Page
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20. Press release of Registrant dated 4
April 17, 1997
99. Other Exhibits. - Asset Purchase Agreement 5
<PAGE>
NEW PARADIGM SOFTWARE CORP.
REPORTS SALE OF EDI BUSINESS FOR $300,000
NEW YORK, NEW YORK APRIL 17, 1997 - New Paradigm Software
Corporation (OTC Symbol: NPSC) today announced that it has
completed the sale of its EDI service bureau business to
Custom Information Systems Corp. of New York for
approximately $300,000. CIS operates a similar EDI service
bureau in Manhattan.
"In order to enhance stockholder value, New Paradigm is
continuing to negotiate with various parties regarding
potential significant investments in the company, and
possible additional asset sales." said Mark Blundell, Chief
Executive Officer.
ASSET PURCHASE AGREEMENT
AGREEMENT, dated as of the 15th day of April, 1997, by
and among New Paradigm Commerce, Inc. ("NPC"), a New York
corporation, and a wholly-owned subsidiary of New Paradigm
Software Corp. ("NPS"), a New York corporation (NPS collectively
with NPC the "Seller"), and Custom Information Systems Corp.,
d/b/a CIS-E.Commerce Company ("Buyer").
W I T N E S S E T H :
WHEREAS, NPS is the owner of all of the issued and
outstanding Common Stock of NPC; and
WHEREAS, NPC is engaged in the electronic data
integration business and services retail customers and other
distributors primarily in the New York metropolitan area (the
"Business"); and
WHEREAS, the Seller wishes to sell to Buyer, and Buyer
wishes to purchase from Seller, the Business and substantially all
of the properties and assets of Seller related to the Business,
all subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of and in reliance upon
the covenants, conditions, representations and warranties herein
contained, the parties hereto hereby agree as follows:
1. Purchase and Sale Agreement.
1.1 Agreement of Purchase and Sale. Subject to
the terms and conditions set forth in this Agreement and in
reliance upon the representations, warranties, covenants and
conditions herein contained, on the Closing Date (as defined in
Section 2 hereof) Seller shall sell, convey, assign, transfer and
deliver to Buyer, and Buyer shall purchase from Seller, the
Purchased Assets (as defined in Section 1.2 hereof), including,
without limitation, the assets set forth on Exhibits A-1 and A-2
annexed hereto, each of which shall be taken by Buyer free and
clear of any and all liens, claims, charges or encumbrances of any
nature whatsoever.
1.2 Purchased Assets. As used in this Agreement,
the term "Purchased Assets" means the Business and (i)
substantially all of the assets utilized in operating and
conducting the Business; such assets are set forth on Exhibit A-1
hereto, (ii) all accounts, files and other information relating to
the clients set forth on Exhibit A-2, (iii) all accounts
receivable (including payments to Seller in payment thereof),
billings, work-in-process and payments in respect of client
transactions generated or created during the period from March 1,
1997 through and including the Closing Date, (iv) without limiting
the provisions of the foregoing clause (iii), any and all amounts
that remain uncollected with respect to the accounts receivable
set forth on Exhibit A-3 as of the Closing Date and (v) any and
all amounts collected by the Seller with respect to the accounts
receivable set forth on Exhibit A-3; provided that, with respect
to Exhibit A-3, the Purchased Assets shall not include monies
collected by the Seller on account of accounts receivables
generated with respect to transactions entered into prior to
October 1, 1996. Exhibit A-1 sets forth the equipment, software
and other assets included in the Purchased Assets. Exhibit A-2
sets forth a list of the client accounts of the Business as of the
date hereof (and also includes a list of trading partners for each
client). Exhibit A-3 sets forth the billings, accounts
receivables and amounts paid in respect of such accounts
receivables for the period commencing October 1, 1996 and ending
April 2, 1997. Seller shall cause all liens, claims, charges and
encumbrances, if any, upon any of the Purchased Assets to be
terminated or otherwise discharged at or prior to the Closing.
1.3 Purchase Price. The purchase price to be paid
by the Buyer for the Purchased Assets shall be the aggregate of
the amounts set forth in (a) and (b) (the "Purchase Price")
(provided that the Purchase Price shall be subject to adjustment
as set forth in Section 4 below and Section 2 of the Promissory
Note (as defined below)) as follows: (a) $6,000, which has already
been paid to Seller and Seller acknowledges receipt thereof and
(b) the net present value of $365,000, calculated as of the
Closing Date using a discount factor of either 12 1/4 % or 10% per
annum, as set forth in Section 2 of the Promissory Note (the
"Note") in the gross aggregate principal amount of $365,000 (the
"Gross Aggregate Principal Amount"), which amount is payable to
the Seller pursuant to the Buyer's execution and delivery of the
Note. A copy of the Note is annexed hereto as Exhibit B.
1.4 No Assumption of Liability. Buyer expressly
does not assume and will not be responsible for any liabilities or
obligations of Seller or otherwise related to the Business
including, without limitation, tax liabilities for periods prior
to the Closing Date, employee contracts or employee-related
liabilities.
2. Closing Date. The closing of the sale and purchase
provided for herein (the "Closing") shall take place at 10:00
A.M., New York time, at the offices of Tenzer Greenblatt LLP, 405
Lexington Avenue, New York, New York 10174 on April 15, 1997, or
at such other place, time and date as may hereafter be mutually
agreed upon by the parties (such time and date of Closing being
hereinafter called the "Closing Date").
3. Required Actions To Be Taken By The Parties.
3.1 Action by Buyer. Subject to the terms and
conditions herein contained, on the Closing Date Buyer shall
deliver to Seller the Note, substantially in the form annexed
hereto as Exhibit B.
3.2 Action by NPC. Subject to the terms and
conditions herein contained, on the Closing Date Seller shall
convey, assign, deliver, transfer and sell the Purchased Assets to
the Buyer free and clear of all liens, claims, charges and
encumbrances. Contemporaneously therewith, Seller shall execute
and deliver a Bill of Sale substantially in the form annexed
hereto as Exhibit C and an opinion of its counsel, substantially
in the form annexed hereto as Exhibit D. Seller shall also
provide a Certificate to Buyer certifying that, as of the Closing
Date, all representations and warranties of the Seller are true
and accurate in every respect and that Seller is in compliance
with each of its covenants herein set forth.
4. Post-Closing Adjustments.
4.1 Receivables. In the event the accounts
receivable are less than the amounts set forth on Exhibit A-3,
then the Purchase Price and the Gross Aggregate Principal Amount
of the Note shall be reduced by an amount equal to the amount by
which the accounts receivable represented on Exhibit A-3, on an
annualized basis, exceed the actual amount of such accounts
receivable, on an annualized basis (i.e., the annualized amounts
for each of the accounts listed on Exhibit A-3 will be deemed to
be equal to twice the applicable amounts for the six-month period
commencing October 1, 1996 and ending March 31, 1997); provided,
however, that with respect to the accounts receivable outstanding
and unpaid as of March 31, 1997, Buyer shall only be permitted to
reduce the Purchase Price and the Gross Aggregate Principal Amount
in the event that Buyer receives less than $50,000 in respect of
such accounts receivable, in which case the Purchase Price and the
Gross Aggregate Principal Amount shall be reduced by an amount
equal to (a) (i) $50,000 minus (ii) the amount paid to Buyer in
respect of such accounts receivable, (i.e., including any amounts
collected by Buyer on account of such outstanding accounts
receivable) plus (b) the applicable Interest Component referred to
in the Note.
4.2 Client Accounts. In the event of a Triggering
Event (as defined below), then the Purchase Price and the Gross
Aggregate Principal Amount of the Note shall be reduced by an
amount (the "Client Account Reduction") calculated according to
the following formula: "Client Account Reduction" equals: (i)
Average Client Value multiplied by (ii) Terminated Client Factor
where:
(a) "Total Client Number" shall mean the aggregate number of
client accounts set forth on the list annexed hereto as Exhibit A-
2;
(b) "Triggering Event" shall mean that either (a) a minimum of 140
of the client accounts set forth on Exhibit A-2 are not
transferred to Buyer or (b) such numbers of clients set forth on
Exhibit A-2 otherwise terminate their accounts with Buyer within
thirty (30) days of the Closing Date such that the aggregate
number of remaining clients thirty (30) days after the Closing
date is less than 140.
(c) "Aggregate Terminated Clients" shall mean (i) Total Client
Number minus (ii) number of clients included in the Total Client
Number which are then current customers of the Buyer thirty (30)
days after the Closing Date;
(d) "Aggregate Terminated Client Value" shall mean the aggregate
of the annualized billings for all Aggregated Terminated Clients;
(e) "Average Client Value" shall mean (i) the Aggregate Terminated
Client Value divided by (ii) the number of Aggregate Terminated
Clients;
(f) "Terminated Client Factor" shall equal (i) 140 minus (ii) a
number equal to (x) the Total Client Number minus (y) Aggregate
Terminated Clients.
4.3 Prepayment of Note. As set forth in the Note
annexed hereto as Exhibit B, to the extent Buyer either
voluntarily determines to prepay all or a portion of the then
outstanding Gross Aggregate Principal Amount, or such prepayment
is mandated by the terms of the Note and/or this Agreement, the
Purchase Price shall be reduced to the applicable amount
calculated pursuant to Section 2 of the Note.
5. Additional Covenants.
5.1 Further Assurances. Seller hereby agrees that
it shall from time to time after the Closing Date, at its sole
cost and expense, take any and all actions, and execute,
acknowledge, deliver, file and/or record any and all documents and
instruments, as Buyer may reasonably request, in order to more
fully perfect the rights which are intended to be granted to Buyer
hereunder.
5.2 All Necessary Assets Being Transferred.
Seller hereby agrees that prior to the Closing Date, Seller shall
deliver to Buyer and reconstruct for Buyer at Buyer's choice of
location, a computer network and facility comprised of the
Purchased Assets such that Buyer, at a minimum, shall be able to
operate and conduct the Business in the same manner and to the
same extent as Seller operated the Business during the period
ending as of March 1, 1997. Without limiting the foregoing or any
other obligation, representation or warranty of Seller set forth
herein, Seller hereby agrees to transfer to and construct for
Buyer a computer network such that Buyer will not be required to
(a) obtain any consent, waiver, license, right or title to use or
operate any software, operating systems, licenses, hardware,
licenses, networks, interface mechanisms, file servers, electronic
addresses, data and other intellectual property and/or proprietary
rights, or (b) purchase any additional equipment (other than is
included in the Purchased Assets) in order to operate the Business
in the same manner and to the same degree as conducted by Seller
during the period ending as of March 1, 1997.
5.3 Client List. Seller hereby agrees that the
list provided to Buyer and annexed hereto as Exhibit A-2 shall
contain, without limitation, the name, address, phone number and
contact person at each client account, as well as the applicable
trading partner(s) for each client account.
5.4 Cooperation. Each of the parties hereto
hereby agrees to fully cooperate with the other parties hereto in
preparing and filing any notices, applications, reports and other
instruments and documents which are required by, or which are
desirable in the opinion of any of the parties hereto, in respect
of any statute, rule, regulation or order of any governmental or
administrative body in connection with the transactions
contemplated hereby.
5.5 Accuracy of Representations. Each party
hereto agrees that prior to the Closing Date it will enter into no
transaction and take no action, and will use its best efforts to
prevent the occurrence of any event which would result in
representations, warranties or covenants contained in this
Agreement or in any agreement, document or instrument delivered
pursuant hereto not to be true and correct, or not to be performed
as contemplated, at and as of the time immediately after the
occurrence of such transaction or event.
5.6 Conduct of Business. Subject to the express
provisions of this Agreement as to actions to be taken or not to
be taken by Seller between the date hereof and the Closing Date,
Seller hereby agrees that it shall, during the period commencing
of the date hereof and ending on the Closing Date, conduct the
Business in a normal manner in accordance with the ordinary course
of business and Seller's existing policies and practices.
5.7 No Other Solicitations. Subject to the
express provisions of this Agreement as to actions to be taken or
not to be taken by Seller between the date hereof and the Closing
Date, Seller hereby agrees that it shall neither solicit any
offers to purchase the Business nor enter into any arrangements,
agreements or understandings with respect to the sale of the
Business to any other person or entity. Without limiting, in any
way, the provisions of Section 11 below, Seller and its
principal(s) agree not to hire or solicit employees of Buyer or
otherwise compete with Buyer's operation of the Business for a
period of eighteen months following the Closing Date.
5.8 Waiver of Compliance with Bulk Transfer Laws.
With respect to the transactions contemplated by this Agreement,
Buyer and Seller hereby waive compliance with any applicable
provisions of the so-called "bulk transfer laws" (Article 6 of the
Uniform Commercial Code) of any relevant jurisdiction.
5.9 Payment of Taxes Upon Transfer of Purchased
Assets. Seller shall be responsible for, and shall pay, any and
all sales, use, purchase, transfer and similar taxes, and any and
all filing, recording, registration and similar fees, arising out
of the transactions contemplated by this Agreement; provided,
however, that Buyer shall be liable for all sales tax on amounts
collected by Buyer from those receivables transferred to Buyer
pursuant to Section 1.1 above.
5.10 Survival of Representations and Warranties.
Each of the parties hereto hereby agrees that all representations
and warranties made by or on behalf of it in this Agreement or in
any document or instrument delivered pursuant hereto shall survive
the Closing Date and the consummation of the transactions
contemplated hereby.
5.11 Books and Records. Buyer shall, for a period
of at least one year following the Closing Date, maintain and make
available to Seller and its representatives for inspection and
reproduction, during regular business hours, all books and records
relating to Seller, the Purchased Assets and/or the Business.
5.12 Remittances. Seller shall (i) within ten
days after the end of each month following the Closing Date, remit
to Buyer any and all amounts which are received by it during such
month in respect of the accounts receivable or any other assets
which are included among the Purchased Assets, (ii) provide Buyer
with such information relating to said remittances as Buyer may
reasonably require in order to properly maintain its records
relating to the Purchased Assets. Pending such remittances, all
such amounts shall be held by Seller in trust for Buyer and (iii)
with respect to the receivables remaining uncollected after the
close of business on April 2, 1997, as set forth on Exhibit A-3,
Seller shall cooperate with Buyer in the collection of such
receivables.
Representations and Warranties as to Seller. Seller hereby
represents and warrants to Buyer as follows:
6.1 Organization.
(a) NPC. NPC is a corporation duly
organized, validly existing and in good standing under the laws of
the State of New York and has all requisite corporate power and
authority to carry on its business as now conducted and as
proposed to be conducted. NPC is duly qualified to transact
business and is in good standing in each jurisdiction in which the
failure to so qualify would have a material adverse effect on its
business or properties.
(b) NPS. NPS is a corporation duly
organized, validly existing and in good standing under the laws of
the State of New York and has all requisite corporate power and
authority to carry on its business as now conducted and as
proposed to be conducted. NPS is duly qualified to transact
business and is in good standing in each jurisdiction in which the
failure to so qualify would have a material adverse effect on its
business or properties.
6.2 Authorization.
(a) NPC. All corporate action on the part
of NPC, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the
performance of all obligations of NPC hereunder and thereunder,
and this Agreement constitute valid and legally binding
obligations of NPC, enforceable in accordance with their
respective terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally,
(ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies, and
(iii) to the extent the indemnification provisions contained
herein may be limited by applicable federal or state securities
laws.
(b) NPS. All corporate action on the part
of NPS, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the
performance of all obligations of NPS hereunder and thereunder,
and this Agreement constitute valid and legally binding
obligations of NPS, enforceable in accordance with their
respective terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally,
(ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies, and
(iii) to the extent the indemnification provisions contained
herein may be limited by applicable federal or state securities
laws.
1.1 Governmental Consents. No consent, approval,
order or authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state or
local governmental authority on the part of the Seller is required
in connection with the consummation of the transactions
contemplated by this Agreement.
1.2 Litigation. There is no action, suit,
proceeding or investigation pending or threatened against the
Seller relating to the Business or any of the Purchased Assets.
The Seller is not a party or subject to the provisions of any
order, writ, injunction, judgment or decree of any court or
government agency or instrumentality relating to the Business.
1.3 Compliance with Other Instruments. The Seller
is not in violation or default of any provision of its Certificate
or Bylaws, or of any instrument, judgment, order, writ, decree or
contract to which it is a party or by which it is bound, or of any
provision of any federal or state statute, rule or regulation
applicable to the Seller. The execution, delivery and performance
of this Agreement and the consummation of the transactions
contemplated hereby and thereby will not result in any such
violation or be in conflict with or constitute, with or without
the passage of time and giving of notice, either a default under
any such provision, instrument, judgment, order, writ, decree or
contract or an event that results in the creation of any lien,
charge or encumbrance upon any assets of the Seller or the
suspension, revocation, impairment, forfeiture, or nonrenewal of
any material permit, license, authorization, or approval
applicable to the Seller, its business or operations or any of its
assets or properties.
1.4 Absence of Undisclosed Liabilities. There are
no liabilities or obligations of any nature whatsoever, whether
accrued, absolute, contingent or otherwise relating to the
Business or any of the Purchased Assets, which have not been
previously disclosed to Buyer in writing.
1.5 Properties. The Purchased Assets comprise all
of the properties and assets which are necessary in order for
Buyer to carry on the Business after the Closing Date on
substantially the same basis as is now conducted by Seller. As
set forth above in Section 1.1, Seller conveys the Purchased
Assets free and clear of all liens, claims, charges and
encumbrances. All equipment which is material to the business,
operation or condition (financial or otherwise) of the Business is
in substantially good operating condition and repair, and is
suitable for the purposes for which it is used; and none of the
same is in need of maintenance or repairs except for ordinary,
routine maintenance and repairs which are not substantial in
nature or cost.
1.6 Accounts Receivable. The accounts and notes
receivable which are reflected on Exhibit A-3 hereto are good and
collectible in the ordinary course of business at the aggregate
recorded amounts thereof, less the amount of the allowance for
accounts reflected thereon, and are not subject to offsets.
Seller represents that the accounts receivable of the Business
have historically been collected, on average, on a sixty (60) day
basis or less. Should the forgoing representation not be
accurate, the Purchase Price shall be reduced as set forth in the
Note and in Section 4.1 above. Seller represents that Exhibit A-3
represents all of the outstanding account receivables of the
Seller as of April 2, 1997. Seller agrees that it shall update
Exhibit A-3 as of the Closing Date with respect to all payments
received in respect of accounts receivable and all additional
accounts receivable of the Business generated or accrued for the
period commencing on March 1, 1997.
1.7 Absence of Changes. Since February 28, 1997,
there has not been, in each case relating to the Business and the
Purchased Assets, (i) any material adverse change in the condition
(financial or otherwise), assets, liabilities, business,
prospects, or results of operations of Seller (including, without
limitation, any such adverse change resulting from damage,
destruction or other casualty loss, whether or not covered by
insurance), or (ii) any waiver by Seller of any right, or
cancellation of any debt or claim, of substantial value.
1.8 Licenses. Seller has good and clean title to
any and all licenses, trademarks, copyrights or other agreements
or proprietary rights included in the Purchased Assets to which
Seller is a party or otherwise bound which relate to any of the
foregoing. Use or implementation by Buyer of any of the Purchased
Assets shall not violate or infringe upon the proprietary rights
of any third parties.
1.9 Relationship with Trading Partners and
Clients. Seller represents that all of its relationships with
trading partners and the majority (calculated by amount of
annualized billings) of the clients of the Business, as set forth
on Exhibit A-3 hereto, are in good standing and that there are no
facts, claims or litigations, threatened or pending, which may
have an adverse material effect on any such relationship.
2. Representations and Warranties as to Buyer. Buyer
hereby represents and warrants to Seller as follows:
2.1 Organization. The Buyer is a corporation duly
organized, validly existing and in good standing under the laws of
the State of New York and has all requisite corporate power and
authority to carry on its business as now conducted. The Buyer is
duly qualified to transact business and is in good standing in
each jurisdiction in which the failure to so qualify would have a
material adverse effect on its business or properties.
2.2 Authorization. All corporate action on the
part of the Buyer, its officers, directors and stockholders
necessary for the authorization, execution and delivery of this
Agreement and the Note referred to in Section 1.3 hereof, the
performance of all obligations of the Buyer hereunder and
thereunder, and this Agreement and the Note constitute valid and
legally binding obligations of the Buyer, enforceable in
accordance with their respective terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of
creditors' rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief, or
other equitable remedies, and (iii) to the extent the
indemnification provisions contained herein may be limited by
applicable federal or state securities laws.
3. Enforcement and Indemnification. In the event of
(a) a breach of any of the representations, warranties or
covenants contained in this Agreement, the Note or the Bill of
Sale or (b) any claim or action arising out of the operation of
the Business or the Purchased Assets (including without
limitation, any claim by a client, customer, vendor or supplier to
or of the Business) by the Seller, the Seller shall indemnify and
hold Buyer harmless from and against any and all damages,
deficiencies, liabilities, losses, claims, costs and expenses
which are incurred by Buyer as a result of such breach, including,
without limitation, payment of reasonable attorneys' fees and all
other costs and expenses incurred in connection with such breach
or occurrence and Buyer's pursuit of its remedies hereunder or
otherwise available under applicable laws.
4. Accuracy of Representations and Warranties. The
representations and warranties of Seller contained in this
Agreement or in any document, agreement or instrument delivered by
any or all of them pursuant hereto shall have been true when made,
and, in addition, shall be true on and as of the Closing Date with
the same force and effect as though made on and as of the Closing
Date.
5. Performance of Agreements. Seller shall have
performed all obligations and agreements, and complied with all
covenants and conditions, contained in this Agreement or in any
document, agreement or instrument delivered by it pursuant hereto
and required to be performed or complied with by it at or prior to
the Closing Date.
6. Nondisclosure; Noncompete.
6.1 "Confidential Information" Defined. As used
in this Section 11, the term "Confidential Information" shall mean
any and all information (verbal and written) relating to the
Business or the Purchased Assets, other than such information
which can be shown by Seller to be in the public domain (such
information not being deemed to be in the public domain merely
because it is embraced by more general information which is in the
public domain) other than as the result of a breach of the
provisions of Section 11.2 below, including, but not limited to,
information relating to: identity and description of goods and
services used; purchasing; costs; pricing; equipment; technology;
research; customers and prospects; marketing; and selling and
servicing.
6.2 Nondisclosure of Confidential Information.
Seller hereby agrees not to, at any time, directly or indirectly,
use, communicate, disclose or disseminate any Confidential
Information in any manner whatsoever. Seller represents that all
employees or consultants who have access to confidential or
proprietary information relating to the Business are subject to
confidentiality agreements.
6.3 Noncompete Covenant. Seller and each of its
principals, officers, directors, employees and consultants hereby
agrees not to, during the eighteen (18) month period commencing on
the Closing Date, directly or indirectly (A) engage or become
interested in the electronic data integration business which
services retail customers and other distributors (whether as
owner, manager, operator, licensor, licensee, lender, partner,
stockholder, joint venturer, employee, consultant or otherwise) in
the Continental United States, or (B) take any other action which
constitutes an interference with or a disruption of Buyer's
operation of the Business or Buyer's use, ownership and enjoyment
of the Purchased Assets; provided that with respect to employees
and consultants, the prohibitions of this Section 11 shall only
apply to such employees and consultants while they are employed by
Seller.
6.4 Certain Activities. For purposes of
clarification, but not of limitation, Seller and each of its
principals, officers and directors hereby acknowledges and agrees
that the provisions of Section 11.3 above shall serve as a
prohibition against him or it, during the period described
therein, from directly or indirectly, hiring, offering to hire,
enticing away or in any other manner persuading or attempting to
persuade any officer, employee, agent, lessor, lessee, licensor,
licensee, customer, prospective customer or supplier of the
Business to discontinue or alter his or its relationship with the
Business.
6.5 Injunctive Relief, etc. The parties hereto
hereby acknowledge and agree that (i) Buyer would be irreparably
injured in the event of a breach by Seller or any of its officers,
directors or principals of any of his or its obligations under
this Section 11, (ii) monetary damages would not be an adequate
remedy for any such breach, and (iii) Buyer shall be entitled to
injunctive relief, in addition to any other remedy which it may
have, in the event of any such breach. It is hereby also agreed
that the existence of any claims which Seller or any of its
principals, officers or directors may have against Buyer, whether
under this Agreement or otherwise, shall not be a defense to the
enforcement by Buyer of any of its rights under this Section 11.
6.6 Scope of Restriction. It is the intent of the
parties hereto that the covenants contained in this Section 11
shall be enforced to the fullest extent permissible under the laws
of and public policies of each jurisdiction in which enforcement
is sought (Seller hereby acknowledging that said restrictions are
reasonably necessary for the protection of Buyer). Accordingly,
it is hereby agreed that if any one or more of the provisions of
this Section 11 shall be adjudicated to be invalid or
unenforceable for any reason whatsoever, said provision shall be
(only with respect to the operation thereof in the particular
jurisdiction in which such adjudication is made) construed by
limiting and reducing it so as to be enforceable to the extent
permissible.
6.7 Additional Undertakings. The provisions of
this Section 11 shall be in addition to, and not in lieu of, any
other obligations with respect to the subject matter hereof,
whether arising as a matter of contract, by law or otherwise.
7. Use of Present Employees. Although Buyer shall not
be required to employ any of Seller's present employees, Seller
shall provide to Buyer, at Buyer's request, the services of Marco
Romero and Felix Malinin (the "Employees") to assist Buyer in the
transition of ownership of the Business and the initial operation
of such business by Buyer for a period ending 20 business days
after the Closing Date. Seller shall pay the salaries of, and the
cost of all benefits for, such Employees during such 20 business
day period. Without limiting the generality of the provisions of
Section 11 above, Seller agrees to cause such individuals to
execute a confidentiality agreement in a form agreeable to Buyer,
prohibiting such Employees from distributing to third parties any
information relating to the Business, the Purchased Assets, the
Buyer or any other business or operation of Buyer, including
without limitation, information regarding any trading partner or
clients.
8. Miscellaneous Provisions.
8.1 Joint and Several Obligations. As used
herein, the term "Seller" shall refer to each of NPS and NPC as
the context requires. All covenants, representations and
warranties made by "Seller" hereunder shall be deemed to be the
joint and several obligations of each of NPS and NPC.
8.2 Expenses. Except as otherwise provided in
this Agreement, each of the parties hereto shall pay its own costs
and expenses in connection with this Agreement and the
transactions contemplated hereby.
13.44 Execution in Counterparts. This Agreement
may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which shall be
deemed to be an original but all of which taken together shall
constitute one and the same agreement, and shall become effective
when one or more counterparts has been signed by each of the
parties hereto and delivered to each of the other parties hereto.
1.1 Notices. All notices, requests, demands and
other communications hereunder 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, as
follows:
If to Buyer, to:
Custom Information Systems Corp.
380 Lexington Avenue, Suite 820
New York, New York 10168
Attn: Dan Friedman, President
Copy to: Tenzer Greenblatt LLP
405 Lexington Avenue, 23rd Fl.
New York, New York 10174
Attn: Barbara C. Meili, Esq.
If to Seller, to:
New Paradigm Software Corp.
733 Third Avenue
New York, New York 10017
Attn: Mark A. Blundell
Copy to: Arthur M. Mitchell, III, Esq.
Chadbourne & Parke
30 Rockefeller Plaza
New York, New York 10112
or to such other address as any party shall have designated by
like notice to the other parties hereto (except that a notice of
change of address shall only be effective upon receipt).
6.3 Amendment. This Agreement may only be amended
by a written instrument executed by each of the parties hereto.
6.4 Entire Agreement. This Agreement (together
with the other agreements and documents being delivered pursuant
to or in connection with this Agreement) constitutes the entire
agreement of the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings of
the parties, oral and written, with respect to the subject matter
hereof.
6.5 Applicable Law. This Agreement shall be
governed by the laws of the State of New York applicable to
contracts made and to be wholly performed therein.
6.6 Headings. The headings contained herein are
for the sole purpose of convenience of reference, and shall not in
any way limit or affect the meaning or interpretation of any of
the terms or provisions of this Agreement.
6.7 Binding Effect; Benefits. This Agreement
shall inure to the benefit of, and shall be binding upon, the
parties hereto and their respective heirs, legal representatives,
successors and permitted assigns. Nothing herein contained,
express or implied, is intended to confer upon any person other
than the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns, any rights or
remedies under or by reason of this Agreement.
6.8 Waiver, etc. The failure of any of the
parties hereto to at any time enforce any of the provisions of
this Agreement shall not be deemed or construed to be a waiver of
any such provision, nor to in any way affect the validity of this
Agreement or any provision hereof or the right of any of the
parties hereto to thereafter enforce each and every provision of
this Agreement. No waiver of any breach of any of the provisions
of this Agreement shall be effective unless set forth in a written
instrument executed by the party or parties against whom or which
enforcement of such waiver is sought; and no waiver of any such
breach shall be construed or deemed to be a waiver of any other or
subsequent breach.
6.9 Severability. Any provision of this Agreement
which is held by a court of competent jurisdiction to be
prohibited or unenforceable in any jurisdiction(s) shall be, as to
such jurisdiction(s), ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
6.10 Exhibits. The Exhibits delivered pursuant to
this Agreement are an integral part hereof. Each such Exhibit
shall be in writing, shall indicate the Section pursuant to which
it is being delivered, and shall be initialled by the delivering
party.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered by the parties hereto as of the date first above
written.
NEW PARADIGM SOFTWARE CORP.
Attest:
By:
President
Secretary
NEW PARADIGM COMMERCE, INC.
Attest:
By:
President
Secretary
CUSTOM INFORMATION SYSTEMS
CORP.
Attest:
By:
President
Secretary
<PAGE>
BILL OF SALE AND ASSIGNMENT
BILL OF SALE AND ASSIGNMENT, dated as of the 15th day of
April, 1997, by New Paradigm Software Corp., a New York
corporation and New Paradigm Commerce, Inc., a New York
corporation (collectively "Seller"), to Custom Information Systems
Corp., d/b/a CIS-E.Commerce Company, a New York corporation
("Buyer").
W I T N E S S E T H:
WHEREAS, pursuant to the provisions of the Asset
Purchase Agreement (the "Agreement"), dated as of April 15, 1997,
by and among Seller and Buyer, Seller agreed to sell to Buyer, and
Buyer agreed to purchase from Seller, the business, properties and
assets which are defined in Section 1.2 of the Agreement as the
"Purchased Assets";
WHEREAS, in accordance with the foregoing, Seller is (a)
simultaneously herewith transferring and assigning to Buyer those
properties and assets included among the Purchased Assets which
are required to be, or are more conveniently, transferred or
assigned by separate instruments, and (b) executing and delivering
this Bill of Sale and Assignment to Buyer for the purpose of
transferring to and vesting in Buyer all of the business,
properties and assets comprising the Purchased Assets which have
not otherwise been transferred to and vested in Buyer as
aforesaid.
NOW, THEREFORE, in consideration of the covenants
contained in the Agreement, and for other good and valuable
consideration, the receipt and adequacy of which is hereby
acknowledged, Seller hereby sells, conveys, transfers and assigns
to, and vests in, Buyer, full ownership of, and full right, title
and interest in and to, all of the business, properties and assets
comprising the Purchased Assets, free and clear of any and all
liens, claims, charges or encumbrances of any nature whatsoever.
TO HAVE AND TO HOLD all of the Purchased Assets unto
Buyer, its successors and assigns, forever.
Seller hereby irrevocably constitutes and appoints
Buyer, its successors and assigns, its true and lawful attorney
and attorneys, with full power of substitution, in its name and
stead, but on behalf and for the benefit of Buyer, its successors
and assigns, to demand and receive any and all of the Purchased
Assets, and to give receipts and releases for and in respect of
the same, and any part thereof, and from time to time to prosecute
in its name, or otherwise, for the benefit of Buyer, its
successors and assigns, any and all proceedings at law, in equity
or otherwise, which Buyer, its successors or assigns, may deem
proper for the collection or reduction to possession of any of the
business, properties or assets comprising the Purchased Assets or
for the collection and enforcement of any claim or right of any
kind hereby sold, conveyed, transferred and assigned, and to take
all such other actions with respect to the Purchased Assets as
Buyer, its successors and assigns, in its sole discretion, shall
deem to be desirable in order to carry out the intent hereof.
This Bill of Sale and Assignment shall be governed by
the laws of the State of New York.
NEW PARADIGM SOFTWARE CORP.
Attest:
By____Mark Blundell__________
President
____/s/John Brann____
Secretary
NEW PARADIGM COMMERCE
Attest:
By___/s/Mark Blundell_________
President
____/s/John Brann______
Secretary
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On April 17, 1997, before me _____________ personally
came, to me known, who, by me duly sworn, did depose and say that
deponent resides at __________________________, that deponent is
the President of ________________________, the Corporation
described in, and which executed, the foregoing Bill of Sale and
Assignment.
______________________________
Notary Public
<PAGE>
$365,000 April 15, 1997
CUSTOM INFORMATION SYSTEMS CORP.
PROMISSORY NOTE
FOR VALUE RECEIVED, Custom Information Systems Corp., a
New York corporation (the "Company"), promises to pay to New
Paradigm Software Corporation or its permitted assigns (the
"Holder"), in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the
payment of public and private debts, at the principal office of
the Holder, the gross aggregate principal amount of Three Hundred
Sixty-five Thousand U.S. Dollars $365,000 (the "Gross Aggregate
Principal Amount"), subject to reduction as set forth herein,
together with any other sum(s) due as specified below, without
interest; the Gross Aggregate Principal Amount shall be paid to
the Holder in installments as set forth below in Section 1 hereof
(each such installment payment is referred to herein as an
"Installment Payment"). The outstanding Gross Aggregate Principal
Amount outstanding at any time shall be calculated as set forth
herein. The term "Repayment Date" shall mean the respective
applicable date set forth in paragraph 1 below with respect to
each Installment Payment; provided however that the full
outstanding balance of the Gross Aggregate Principal Amount shall
immediately become due and repayable as set forth in Sections 3
and 4 below. Reference is made to the Asset Purchase Agreement
dated April 15, 1997 by and among New Paradigm Commerce, Inc., New
Paradigm Software Corp. and Custom Information Systems Corp. (the
"Agreement"). All defined terms used herein without definition
shall have the meaning assigned to such term in the Agreement.
1. Payment of Note. The Company shall punctually pay
or cause to be paid the applicable portion of the Gross Aggregate
Principal Amount at the date and place and in the manner specified
herein. Any sums required to be withheld from any Installment
Payment by operation of law or pursuant to any order, judgment,
execution, treaty, rule or regulation may be withheld by the
Company and paid over in accordance therewith. In the event that
any restriction is placed upon payment of the applicable portion
of the Gross Aggregate Principal Amount by virtue of a currency or
monetary control law, rule or regulation of the United States
Federal Government, such payments shall be deposited to the
account of the Holder or as the Holder otherwise directs in a
bank, trust company or other financial institution as reasonably
requested by the Holder. Such payment or deposit shall be deemed
payment to the Holder. The Company shall notify the Holder within
30 days of the Company's becoming aware of the imposition of such
a restriction requesting details of the Holder's account. The
Repayment Dates shall be as follows, for the amounts set out
below:
April 30th 1997 $5,000
May 31st 1997 $5,000
June 30th 1997 $5,000
July 31st 1997 $10,000; and monthly
thereafter on the last day of each month, $10,000 until the full
amount of the loan has been repaid (the "Maturity Date").
2. Reductions in Gross Aggregate Principal Amount.
(a) Calculation of Reduction in Payment.
(i) Voluntary Prepayment of Outstanding Gross
Aggregate Principal Amount. If the Company voluntarily determines
to prepay the entire Outstanding Gross Aggregate Principal Amount
(as defined below) (a "Voluntary Entire Prepayment"), the amount
to be paid by the Company in complete satisfaction of any and all
monies due and owing to Holder shall be calculated as follows: the
net present value of the then Outstanding Gross Aggregate
Principal Amount discounted to the date of the Voluntary Entire
Prepayment using a discount factor equal to an annual rate of ten
percent (10%). Annexed hereto as Exhibit A-1 is a schedule
exemplifying the reduction to Outstanding Gross Aggregate
Principal Amount assuming a Voluntary Entire Prepayment as of June
30, 1997.
(ii) Mandatory Prepayment of Outstanding Gross
Aggregate Principal Amount. If the Company is required to prepay
the entire Outstanding Gross Aggregate Principal Amount (a
"Mandatory Prepayment") pursuant to Sections 3 or 4 below, the
amount to be paid by the Company in complete satisfaction of any
and all monies due and owing to Holder shall be calculated as
follows: net present value of the then Outstanding Gross Aggregate
Principal Amount discounted to the date of the Mandatory
Prepayment using a discount factor equal to an annual rate of ten
percent (10%). Annexed hereto as Exhibit A-1 is a schedule
exemplifying the reduction to Outstanding Gross Aggregate
Principal Amount assuming a Mandatory Entire Prepayment as of June
30, 1997.
(iii) Voluntary Partial Prepayment of
Outstanding Gross Aggregate Principal Amount. If the Company
determines to prepay a portion of the Outstanding Gross Aggregate
Principal Amount (a "Partial Prepayment"), the amount by which the
Outstanding Gross Aggregate Principal Amount shall be reduced (the
"Reduction Amount") shall be calculated according to the following
formula: Reduction Amount = (i) Amount of Partial Prepayment +
(ii) Interest Component. For purposes of this Section 2(a)(iii),
"Interest Component" shall mean the amount of the Partial
Prepayment multiplied by the "Interest Factor" where "Interest
Factor" shall mean an annual rate of ten percent (10%) per annum.
Each Partial Prepayment shall be deducted from the Installment
Payments starting with the final Maturity Date (i.e. the final
Repayment Date) and continuing with the next Installment Payments
in descending order of maturity. Annexed hereto as Exhibit A-2 is
a chart exemplifying the reduction to Outstanding Gross Aggregate
Principal Amount assuming a Voluntary Partial Prepayment of
$40,000 on June 30, 1997.
(iv) Mandatory Reduction of Outstanding Gross
Aggregate Principal Amount. If a mandatory reduction in
Outstanding Gross Aggregate Principal Amount is required pursuant
to Sections 4.1 or 4.2 of the Agreement ("Mandatory Reduction"),
the amount by which the Outstanding Gross Aggregate Principal
Amount shall be calculated according to the formula set forth in
Section 2(a)(iii) above with respect to the "Reduction Amount" as
if such Mandatory Reduction were a Partial Prepayment; provided
that the term "Interest Factor" shall mean an annual rate of
twelve and one-quarter percent (12-1/4%) per annum. Each
Mandatory Reduction shall be deducted from the Installment
Payments starting with the final Maturity Date (i.e. the final
Repayment Date) and continuing with the next Installment Payments
in descending order of maturity. Annexed hereto as Exhibit A-3 is
a chart exemplifying the reduction to Outstanding Gross Aggregate
Principal Amount assuming a Mandatory Reduction of $20,000.
(b) Calculation of Outstanding Gross Aggregate
Principal Amount. For purposes of this Note and the Agreement,
"Outstanding Gross Aggregate Principal Amount" shall be calculated
as follows: Gross Aggregate Principal Amount less Installment
Payments previously paid to Holder, less any and all prior
reductions in Gross Aggregate Principal Amount, whether as a
result of a Partial Prepayment or a Mandatory Reduction. The
Outstanding Gross Aggregate Principal Amount of this Note may be
paid at any time or from time to time, prior to the Maturity Date
in whole or in part, on five days' prior notice and without
penalty or premium.
(c) The Company must assert its right to Mandatory
Reduction, pursuant to Sections 4.1 or 4.2 of the Agreement, no
later than seventy-five (75) days after the Closing Date.
3. Late Payments. In the event that any payment is
received by the Holder after the 10th day of the month following
the Repayment Date on which the payment was due (a "Default"), the
following additional amounts (the "Assessments") shall be due and
owing and added to the then Outstanding Gross Aggregate Principal
Amount (a) a five percent (5%) administration and collection fee
and (b) late interest calculated as one and one-half percent (1-
1/2%) per month (or the highest rate allowable under the
applicable law) multiplied by the unpaid amount of the Installment
Payment which is the subject of the Default. In the event of an
Event of Default (as defined pursuant to Section 8.1 below), the
entire Outstanding Gross Aggregate Principal Amount shall become
due and repayable in full in accordance with Section 8.2 below.
4. Maintenance of Corporate Existence; Merger and
Consolidation. The Company covenants and agrees that, so long as
any obligation of the Company to pay principal, interest or other
amounts under the Note shall be outstanding, if the Company
consolidates with or merges with or sells, leases or otherwise
transfers all or substantially all of its assets to any person,
the Outstanding Gross Aggregate Principal Amount of the Note,
along with any outstanding Assessments payments and other amounts
owing, shall be due and payable in full; provided, however, that
if the person or entity formed by such consolidation or into or
with which the Company is merged or the person which acquires by
sale, lease or transfer all or substantially all of the assets of
the Company shall: (a) be a person or entity whose net worth is
equal to or greater than that of the Company's immediately prior
to such transfer, sale, consolidation or merger (valued using
generally accepted accounting principles) and (b) expressly assume
in writing the due and punctual payment of the then Outstanding
Gross Aggregate Principal Amount on the Note and the performance
of every covenant of this Note on the part of the Company to be
performed or observed, the Note shall not become immediately due
and payable and payments shall continue to be made as set forth
above in Section 1. The Company hereby undertakes to provide
Holder with balance sheets and profit and loss statements for the
preceding year on execution hereof, and represents and warrants
that it shall provide such information to the Holder at least
annually thereafter for as long as the Note remains outstanding.
5. Compliance with Statutes. The Company covenants
and agrees that, so long as any obligation of the Company to pay
principal, interest or other amounts under this Note shall be
outstanding, the Company covenants and agrees to comply in all
material respects with all applicable statutes and regulations of
the United States of America and of any applicable state or
municipality, and of any applicable agency thereof, in respect of
the conduct of business and the ownership of property by the
Company; provided, however, that nothing contained in this Section
5 shall require the Company to comply with any such statute or
regulation so long as its legality or applicability shall be
contested in good faith, and, provided further, that an
unintentional violation of this covenant that is reasonably likely
not to have (and has no) material, adverse effect on the Company's
operations, business, prospects, earnings, properties, assets or
condition, financial or otherwise, shall not be or become a breach
of or considered or deemed non-compliance with this covenant as
set forth in this Section 5.
6. Restrictions on Dividends, Redemptions, Etc.
Company hereby agrees that to the extent it declares or pays any
cash dividend before the Outstanding Gross Aggregate Principal
Amount of this Note, as may be adjusted, is paid in full, Company
shall make a Voluntary Partial Prepayment to Holder in an amount
equal to the aggregate amount of such cash dividends.
7. Restrictions on Creation of Indebtedness. At all
times while this Note continues to be outstanding, the Company
shall not incur, nor shall there be, any other Indebtedness of the
Company except as set forth below: the Company shall be permitted
to incur and have outstanding up to an aggregate of $300,000 in
Indebtedness in addition to that incurred pursuant to this Note;
provided that only a maximum of $100,000.00 of such amount may be
senior in right of payment to this Note. For purposes of this
Section 7, "Indebtedness" shall exclude trade payables, capital
lease obligations, purchase money obligations for equipment, etc.
and any other obligations for equipment, etc. and other expenses
incurred in the ordinary course of business.
8. Events of Default and Remedies.
8.1 Events of Default. An "Event of Default" shall
occur if:
(a) Payment of Note. Any Installment Payment is
not received before the end of the month after that in which
payment was due or the Company defaults in the payment of any
amount of the principal of this Note, when and as the same shall
become due and payable whether at maturity thereof, or by
acceleration or otherwise; or
(b) Performance of Covenants and Conditions of
Note. The Company fails to comply with any of the covenants,
conditions or agreements set forth in the Note, provided such
default shall continue for a period of thirty (30) days after
receipt of written notice to the Company from the Holder of this
Note stating the specific default or defaults; or
(c) Bankruptcy, Insolvency, etc. The Company shall
file or consent by answer or otherwise to the entry of an order
for relief or approving a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation
or to take advantage of any bankruptcy or insolvency law of any
jurisdiction, or shall make an assignment for the benefit of its
creditors, or shall consent to the appointment of a custodian,
receiver, trustee or other officer with similar powers of itself
or of any substantial part of its property, or shall be
adjudicated a bankrupt or insolvent, or shall take action for the
purpose of any of the foregoing; or if a court or governmental
authority of competent jurisdiction shall enter an order
appointing a custodian, receiver, trustee or other officer with
similar powers with respect to the Company or any substantial part
of its property, or constituting an order for relief or approving
a petition for relief or reorganization or any other petition in
bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding up or liquidation of the Company, provided
that any such order or petition is not dismissed within sixty (60)
days; or
(d) Defaults Under Other Agreements. A default
occurs under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced
any indebtedness of the Company, whether such indebtedness now
exists or shall hereafter be created, which default shall have
caused in any one case or in the aggregate the acceleration of in
excess of $10,000 aggregate principal amount of such indebtedness
to become due and payable prior to the date on which it would
otherwise have become due and payable and such acceleration is not
rescinded or annulled or stayed within thirty (30) days after
receipt of notice from the Holder of this Note.
8.2 Remedies. If an Event of Default shall occur
and be continuing, then the Holder may by notice to the Company
declare all unpaid principal on this Note to be due and payable
immediately. If an Event of Default pursuant to Section 8.1(c)
shall occur, the unpaid principal on this Note shall be due and
payable immediately without any declaration or other act on the
part of the Holder, with interest thereon accruing at the rate of
1.5% per month (or the highest rate allowable under applicable
law) until paid in full.
8.3 Costs of Collection. Should the indebtedness
represented by this Note or any part hereof be collected in any
proceeding, or if this Note should be placed in the hands of
attorneys for collection after default, the Company agrees to pay
as an additional obligation under this Note, in addition to the
Outstanding Gross Aggregate Principal Amount then due and payable
on this Note, all reasonable costs of collecting this Note,
including reasonable attorneys' fees.
9. Amendments. With the written consent of the
Holder, the Company may at any time and from time to time, enter
into a supplement hereto for the purpose of the adding any
provisions to or changing in any manner or eliminating any of the
provisions of this or of modifying in any manner the rights and
obligations of Holder of this Note and of the Company in this
Note.
10. Notice. Any notice or other communication required
or permitted hereunder shall be in writing and shall be delivered
personally, telegraphed or sent by certified, registered, or
express mail, postage prepaid, and shall be deemed given when so
delivered personally, telegraphed or, if mailed, five days after
the date of deposit in the United States mail, as follows:
(i) if to the Company to:
Custom Information Systems Corp.
380 Lexington Avenue, Suite 820
New York, New York 10168
Attention: Dan Friedman, President
(ii) if to the registered Holder of this Note, to the address set
forth below or to such other address as the Holder may designate
by notice to the Company:
New Paradigm Software Corp.
733 Third Avenue
New York, New York 10017
Attn: Mark A. Blundell, Chief Executive Officer
11. Successors and Assigns; Governing Law; Submission
to Jurisdiction. The provisions of this Note shall be binding on
the Company's executors, administrators, successors and assigns
provided that Holder shall not be permitted to assign or transfer
this Note without the prior written consent of the Company.
Notwithstanding the foregoing, the Holder may assign this Note in
connection with a sale or transfer of substantially all of the
assets of Holder; provided however that in the event of any such
permitted assignment, the assignee of this Note shall also
expressly assume Holder's obligations under the Agreement.
(b) THIS NOTE AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(c) Any legal action or proceeding with respect to
this Note and any action for enforcement of any judgment in
respect thereof may be brought in the courts of the State of New
York or of the United States of America for the Southern District
of New York and, by execution and delivery of this Note, the
Company hereby accepts for itself and in respect of its property,
generally and unconditionally, the non-exclusive jurisdiction of
the aforesaid courts and appellate courts from any appeal thereof.
The Company irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the Company at its office of 380 Lexington
Avenue, Suite 820, New York, New York 10168. The Company hereby
irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or
proceeds arising out of or in connection with this Note brought in
the courts referred to above and hereby further irrevocably waives
and agrees not to plead or claim in any such court that any such
action or proceeding brought in any such court has been brought in
any inconvenient forum.
12. Waiver of Demand. The Company does hereby waive
presentment, demand, protest, notice of protest and notice of non-
payment or dishonor of this Note.
13. Waiver of Jury Trial. TO THE EXTENT
PERMITTED BY ALL APPLICABLE LAW, THE COMPANY HEREBY
IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS NOTE OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
. . . . .
IN WITNESS WHEREOF, the Company has placed its seal upon
this Note and has caused this Note to be signed in its corporate
name by a duly authorized officer and to be dated as of the date
first above written.
[SEAL] CUSTOM INFORMATION SYSTEMS
CORP.
ATTEST:____/s/Dan Friedman_______ By:_____/s/Dan Friedman_________
President
