EXHIBIT 99.2
ASSET PURCHASE AGREEMENT
Dated as of November 7, 2000, by and between
VAST TECHNOLOGIES HOLDING CORPORATION,
a Delaware corporation,
and ACCELERATED LEARNING INSTITUTE, INC.,
a Nevada corporation
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into as of
November 7, 2000, between Vast Technologies Holding Corporation ("Vast" or
"Buyer"), a Delaware corporation, and Accelerated Learning Institute, Inc.
("ALI"), a Nevada corporation, upon the following premises:
RECITALS
A. Vast is a dormant state Company whose shares are quoted on the Nasdaq
Electronic Bulletin Board under the symbol "VTHC."
B. ALI is a privately held corporation in the business of developing
courses in the Accelerated Learning modality that provide optimum learning
efficiency for the user. ALI owns certain proprietary technology and other
property and assets, and related tradenames, copyrights and trademarks, which
are used in the operation of ALI's business.
C. This Agreement provides for the sale by ALI, and the purchase by Vast,
of certain Acquired Assets, defined hereinafter, in exchange for cash,
consistent with all of the terms and conditions as hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and of the
provisions, representations, warranties, covenants and agreements contained
herein and other good and valuable consideration, the parties agree as follows.
ARTICLE I
DEFINITIONS
"ACQUIRED ASSETS" means all right, title, and interest in and to the
following ALI assets: (i) ESL Spanish course currently being developed under
contract to Vigillio Lopez Ivish; (ii) Intellectual property rights relating to
Cocokids, a foreign language training course for preschool children. Currently
available for French, Spanish and English as a foreign language. (There is an
author's royalty payable to a third party on this product); and (iii) The
home-study foreign language distribution business of ALI including French,
German, Italian and Spanish courses. This will involve the transfer of the
inventory, Web site, (www.learnalanguage.com) and goodwill (existing repeat
customers). ALI is the sole distributor of these courses under an agreement with
Accelerated Learning Systems Ltd., a British company.
"BASIS" means any past or present fact, situation, circumstance, status,
condition, activity, practice, plan, occurrence, event, incident, action,
failure to act, or transaction that forms or could form the basis for any
specified consequence.
"CASH" means cash and cash equivalents (including marketable securities and
short term investments) calculated in accordance with GAAP.
"GAAP" means United States generally accepted accounting principles as in
effect from time to time.
"INTELLECTUAL PROPERTY" means (a) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof, (b) all trademarks, service marks, trade dress, logos,
trade names, and corporate names, together with all translations, adaptations,
derivations, and combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals in connection
therewith, (c) all copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith, (d) all mask works and all
applications, registrations, and renewals in connection therewith, (e) all trade
secrets and confidential business information (including ideas, research and
development, know-how, formulas, compositions, manufacturing and production
processes and techniques, technical data, designs, drawings, specifications,
customer and supplier lists, pricing and cost information, and business and
marketing plans and proposals), and (f) all copies and tangible embodiments
thereof (in whatever form or medium).
"KNOWLEDGE" means actual knowledge after reasonable investigation.
"LIABILITY" means any liability (whether known or unknown, whether asserted
or unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due), including
any liability for Taxes.
"ORDINARY COURSE OF BUSINESS" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"PARTY" has the meaning set forth in the preface above.
"PERSON" means an individual, a partnership, a corporation, an association,
a joint stock company, a trust, a joint venture, an unincorporated organization,
or a governmental entity (or any department, agency, or political subdivision
thereof).
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"SECURITY INTEREST" means any mortgage, pledge, lien, encumbrance, charge,
or other security interest, other than (a) mechanic's, materialmen's, and
similar liens, (b) liens for Taxes not yet due and payable (or for Taxes that
the taxpayer is contesting in good faith through appropriate proceedings), (c)
purchase money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of Business and
not incurred in connection with the borrowing of money.
"SUBSIDIARY" means any corporation with respect to which a specified Person
(or a Subsidiary thereof) owns a majority of the common stock or has the power
to vote or direct the voting of sufficient securities to elect a majority of the
directors.
"TAX" means any federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental (including taxes under Code Sec. 59A), customs
duties, capital stock, franchise, profits, withholding, social security (or
similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest penalty,
or addition thereto, whether disputed or not.
ARTICLE II
SALE AND PURCHASE OF ASSETS
On and subject to the terms and conditions of this Agreement, Vast agrees
to purchase from ALI, and ALI agrees to sell, transfer, convey, and deliver to
Vast, all of the Acquired Assets in exchange for Vast paying ALI the sum of
$500,000.
ARTICLE III
DIRECTORS AND OFFICERS OF VAST
3.1 DIRECTORS. Following the execution hereof, Vast shall take such action
as is necessary to appoint Peter Kenyon, Thomas L. Madden and Anne Kenyon as
additional directors. The Directors shall serve, until their successors are duly
appointed or elected in accordance with applicable law.
3.2 VAST OFFICERS. Following the execution hereof, Vast shall take such
action as is necessary to elect as the officers of Vast effective immediately:
Name Office
- ----------- -----------
Peter Kenyon President and Secretary
Thomas L. Madden Chairman and Chief Executive Officer
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ALI
ALI represents and warrants to Vast as of the date of this Agreement as
follows:
4.1 EXISTENCE; GOOD STANDING; CORPORATE AUTHORITY; COMPLIANCE WITH LAW.
(a) ALI is a corporation duly incorporated, validly existing, and in
good standing (including tax good standing) under the laws of the State of
Nevada. ALI is duly licensed or qualified to do business as a foreign
corporation.
(b) ALI has all requisite corporate power and authority to own,
operate, and lease its properties and carry on its business as presently
conducted and as proposed to be conducted.
(c) ALI is not in violation of any law, ordinance, governmental rule
or regulation to which it or any of its properties or assets is subject, except
as would not, individually or in the aggregate, reasonably be expected to have
an ALI Material Adverse Effect, nor is ALI in violation of any order, judgment,
or decree of any court, governmental authority, or arbitration board or
tribunal. An "ALI Material Adverse Effect" means a material adverse change in
the business, properties, financial condition, results of operations, or
prospects of ALI, taken as a whole.
(d) The copies of the ALI Articles of Incorporation and Bylaws of ALI,
which have been delivered to Vast, include any and all amendments made thereto
at any time prior to the date of this Agreement and are true, correct, and
complete.
(e) ALI's corporate minute books are accurate as to their content and
include therein the Articles of Incorporation and Bylaws with any amendments
thereto. The meetings of the directors or stockholders referred to in the
corporate minute books were duly called and held. The signatures appearing on
all documents contained in the corporate minute books are the true signatures of
the persons purporting to have executed the same and no minutes of meetings or
written consents of the directors or stockholders of ALI are omitted from such
minute books that would contain any resolutions or other actions that would be
inconsistent with any of the representations and warranties contained in Article
IV hereof or prevent or limit any of the transactions contemplated by this
Agreement.
4.2 AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS.
(a) ALI has the requisite corporate power and authority to execute and
deliver this Agreement and all agreements and documents contemplated hereby and
thereby. The consummation by ALI of the transactions contemplated hereby has
been duly authorized by all requisite corporate action of ALI. This Agreement
has been duly executed and delivered by ALI and, assuming the due authorization,
execution and delivery by Vast, constitutes, and all agreements and documents
contemplated hereby (when executed and delivered pursuant hereto for value
received) will constitute valid and legally binding obligations of ALI,
enforceable against ALI in accordance with their respective terms, except to the
extent that enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, or other similar laws relating to creditors' rights and general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law), including, without limitation, possible
unavailability of specific performance, other injunctive relief or other
equitable remedies and an implied covenant of good faith and fair dealing.
4.3 NO VIOLATION. Neither the execution or delivery by ALI of this
Agreement and all agreements or documents contemplated therein nor the
consummation by ALI of the transactions contemplated therein, will: (i) conflict
with or result in a breach of any provisions of the Articles of Incorporation or
Bylaws of ALI; (ii) violate, conflict with, result in a breach of any provision
of, constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, result in the termination or in a right
of termination or cancellation of, accelerate the performance required by,
result in the triggering of any payment or other obligations pursuant to, result
in the creation of any lien, security interest, charge or encumbrance upon any
of the Acquired Assets of ALI under, or result in being declared void, voidable,
or without further binding effect, any of the terms, conditions, or provisions
of any note, bond, mortgage, indenture, loan agreement, deed of trust, or any
license, franchise, permit, lease, contract, agreement or other instrument,
commitment or obligation to which ALI is a party, or by which ALI or any of its
Acquired Assets is bound or affected; (iii) violate any law, statute, rule,
regulation, judgment, or decree applicable to ALI; or (iv) other than the
filings provided for in Article I, filings required under the Act, or applicable
state securities and "Blue Sky" laws or filings in connection with the
maintenance or qualification to do business in other jurisdictions
(collectively, the "Regulatory Filings"), require any consent, approval, or
authorization of, or declaration, filing, or registration with, any governmental
or regulatory authority.
4.4 LITIGATION. To the knowledge of ALI, there are no claims, actions,
suits, investigations, or proceedings (public or private) pending against or
affecting ALI or any of its properties or assets, at law or in equity, before or
by any federal, state, municipal, or
other governmental or non-governmental department, commission, board, bureau,
agency, court, or other instrumentality, or arbitrator or by any private person
or entity. To the knowledge of ALI, there are no claims, actions, suits,
investigations, or proceedings (public or private) threatened against or
affecting ALI or any of its properties or assets, at law or in equity, before or
by any federal, state, municipal, or other governmental or non-governmental
department, commission, board, bureau, agency, court, or other instrumentality,
or arbitrator or by any private person or entity, except for any of the
foregoing which would not, individually or in the aggregate, reasonably be
expected to have an ALI Material Adverse Effect.
4.5 AUTHORIZATION. The execution, delivery and performance by ALI of this
Agreement and the consummation by ALI of the transactions contemplated hereby
require no consents of any party and no action by or in respect of, or filing
with, any governmental body, agency, official or authority other than (a)
compliance with any applicable requirements of the Act, the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), or Blue Sky laws, and (b) any
other filings, approvals or authorizations, which, if not obtained, would not,
individually or in the aggregate, have a material adverse effect on ALI or
materially impair the ability of ALI to consummate the transactions contemplated
by this Agreement.
4.6 PROPRIETARY RIGHTS.
(i) To ALI's knowledge, ALI has not interfered with, infringed
upon, misappropriated, or otherwise come into conflict with any Proprietary
Rights of third parties, (ii) ALI (and its employees with responsibility for
Proprietary Rights matters) has not received any written charge, complaint,
claims, demand, or notice alleging any such interference, infringement,
misappropriation, or violation (including any claim that ALI must license or
refrain from using any Proprietary Rights of any third party), (iii) to ALI's
knowledge, there is no basis for any as-yet unasserted charge, complaint, claim,
demand, or notice alleging any such interference, infringement,
misappropriation, or violation (including any claim that ALI must license or
refrain from using any Proprietary Rights of any third party), or (iv) to ALI's
knowledge, no third party has interfered with, infringed upon, misappropriated,
or otherwise come into conflict with any Proprietary Rights of ALI.
4.7 FEES. There are no claims for legal, accounting, financial advisory, or
investment bankers' fees, brokerage commissions, finders' fees, or similar
compensation in connection with the transactions contemplated by this Agreement
based on any arrangement or agreement made by or on behalf of ALI.
4.8 Disclosure. No representation or warranty by ALI in this Agreement and
no statement contained in any document, certificate, or other writing prepared
by ALI or its representatives and furnished by ALI to Vast pursuant to the
provisions hereof, affirmatively misstates a material fact or omits a material
fact necessary for such document, certificate, or writing to be, in good faith,
accurately and completely
responsive in all material respects to the purpose identified by ALI to Vast for
which such information was furnished by ALI to Vast.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF VAST
Vast represents and warrants to ALI and its shareholders as of the date of
this Agreement as follows.
5.1 EXISTENCE; GOOD STANDING; CORPORATE AUTHORITY; COMPLIANCE WITH LAW.
(a) Vast is a corporation duly incorporated, validly existing, and in
good standing (including tax good standing) under the laws of the State of
Delaware. Vast is duly licensed or qualified to do business as a foreign
corporation.
(b) Vast has all requisite corporate power and authority to own,
operate, and lease its properties and carry on its business as presently
conducted and as proposed to be conducted.
(c) Vast is not in violation of any law, ordinance, governmental rule
or regulation to which it or any of its properties or assets is subject, except
as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, nor is Vast in violation of any order, judgment, or
decree of any court, governmental authority, or arbitration board or tribunal.
(d) The copies of Vast's Certificate of Incorporation and Bylaws,
which have been delivered to ALI and the Principal Shareholders, include any and
all amendments made thereto at any time prior to the date of this Agreement and
are true, correct, and complete.
(e) Vast's corporate minute books are accurate as to their content and
include therein the Certificate of Incorporation and Bylaws with any amendments
thereto. The meetings of the directors or stockholders referred to in the
corporate minute books were duly called and held. The signatures appearing on
all documents contained in the corporate minute books are the true signatures of
the persons purporting to have executed the same and no minutes of meetings or
written consents of the directors or stockholders of Vast are omitted from such
minute books that would contain any resolutions or other actions that would be
inconsistent with any of the representations and warranties contained in Article
V hereof or prevent or limit any of the transactions contemplated by this
Agreement.
5.2 AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS.
(a) Vast has the requisite corporate power and authority to execute
and deliver this Agreement and all agreements and documents contemplated hereby
and thereby. The consummation by Vast of the transactions contemplated hereby
has been duly authorized by all requisite corporate action of Vast. This
Agreement has been duly executed and delivered by Vast and, assuming the due
authorization, execution and delivery by Vast and all agreements and documents
contemplated hereby (when executed and delivered pursuant hereto for value
received) will constitute, the valid and legally binding obligations of Vast
enforceable in accordance with their respective terms.
5.3 CAPITALIZATION. The authorized capital stock of Vast consists of
50,000,000 shares of Common Stock, $.0001 par value, and 5,000,000 shares of
preferred stock, $.0001 par value, of which 16,444,465 shares of common stock
are issued and outstanding. There are no shares of preferred stock issued or
outstanding and no commitment exists to issue any preferred stock. Vast has no
outstanding bonds, debentures, notes, or other obligations the holders of which
have the right to vote (or which are convertible into or exercisable for
securities having the right to vote) with the stockholders of Vast on any
matter. All issued and outstanding shares of Vast Stock are duly authorized,
validly issued, fully paid, nonassessable, free of preemptive or rescission
rights, and were issued in compliance with all applicable federal and state
securities laws. There are not, at the date of this Agreement, any authorized,
issued, or outstanding options, warrants, calls, subscriptions, convertible
securities, conversion privileges, preemptive rights, or other rights,
agreements, or commitments (whether or not presently exercisable) that obligate
Vast to issue, transfer, or sell any shares of capital stock or other securities
convertible into or evidencing the right to purchase or otherwise acquire any
capital stock of Vast. There are no outstanding or authorized stock
appreciation, phantom stock, profit participation, or similar plans, contracts,
or rights with respect to Vast that are effective as of the date hereof or that
have been executed or agreed to as of the date hereof with an effective date
after the date hereof. There are no stockholders' agreements, voting trusts,
proxies, or other agreements or understandings with respect to the voting of the
capital stock of Vast to which Vast is a party that are presently effective or
have been executed or agreed to as of the date hereof or, to the best knowledge
of Vast, to which any officer or director of Vast or any stockholder owned or
controlled by such officer or director is or will be a party, except in
accordance with the terms hereof. There are no restrictions upon the sale,
voting, or transfer of any shares of Vast Stock pursuant to Vast's Certificate
of Incorporation, Bylaws, or other governing instruments (other than
restrictions typically applicable to unregistered stock under the Securities
Act).
5.4 OTHER INTERESTS. Vast does not own, directly or indirectly, any
interest or investment (whether equity or debt) in any corporation, partnership,
joint venture, business, trust, or entity.
5.5 NO VIOLATION. Neither the execution and delivery by Vast of this
Agreement and all agreements and documents contemplated hereby, nor the
consummation by Vast of the transactions contemplated hereby or thereby in
accordance with the terms hereof, will: (i) conflict with or result in a breach
of any provision of the
Certificate of Incorporation, as amended, or Bylaws of Vast; (ii) violate any
law, statute, rule, regulation, judgment, or decree applicable to Vast; or (iii)
other than the Regulatory Filings, require any consent, approval, or
authorization of, or declaration, filing, or registration with, any governmental
or regulatory authority.
5.6 SEC DOCUMENTS. For the last four fiscal quarters through August
31,2000, Vast has filed all forms, reports, and other documents (including all
exhibits, schedules and annexes thereto) required to be filed by Vast with the
SEC and Nasdaq ("Vast Report"). Except to the extent that information contained
in any Vast Report has been revised or superseded by a later Vast Report filed
and publicly available prior to the date of this Agreement, as of their
respective dates, Vast Reports (a) were (and any Vast Report filed after the
date hereof will be) in all material respects in accordance with the
requirements of the Act or the Exchange Act, as the case may be, and the rules
and regulations promulgated thereunder, and (b) as of their respective filing
dates did not (and any Vast Report filed after the date hereof will not) contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein,
in the light of the circumstances under which they were made, not misleading.
The financial statements of Vast included in such reports (or incorporated
therein by reference) were prepared in accordance with GAAP applied on a
consistent basis during the periods involved (except as may be indicated in the
notes thereto and subject to normal year-end adjustments) and fairly present in
all material respects the financial position of Vast.
5.7 ABSENCE OF UNDISCLOSED LIABILITIES. Vast does not have any obligation
or liability of any kind whatsoever (whether accrued, absolute, contingent,
unliquidated, civil, criminal, or otherwise and whether due or to become due).
5.8 AUTHORIZATION. The execution, delivery and performance by Vast of this
Agreement and the consummation by Vast of the transactions contemplated hereby
require no consents of any party and no action by or in respect of, or filing
with, any governmental body, agency, official or authority other than (a)
compliance with any applicable requirements of the Act, the Exchange Act, or
Blue Sky laws, and (b) any other filings, approvals or authorizations, which, if
not obtained, would not, individually or in the aggregate, have a material
adverse effect on Vast or materially impair the ability of Vast to consummate
the transactions contemplated by this Agreement.
5.9 LITIGATION. There are no claims, actions, suits, investigations, or
proceedings (public or private) pending against or affecting Vast, or any of its
properties or assets, at law or in equity, before or by any federal, state,
municipal, or other governmental or non-governmental department, commission,
board, bureau, agency, court, or other instrumentality, or arbitrator or by any
private person or entity. There are no existing orders, judgments, settlements,
injunctions, or decrees of any court or governmental agency that apply to Vast
or any of its assets, properties, business, or operations. No product liability,
warranty, or similar claims have been made against
Vast. Vast has not entered into any settlement agreements relating to the
compromise or dismissal of any litigation involving Vast or any of its
properties or assets.
5.10 TAXES. All Taxes (as hereinafter defined) required to be filed by
Vast, have been timely filed and are true, correct, and complete in all material
respects, and all Taxes payable pursuant thereto have been timely paid. No
deficiency or adjustment in respect of any Taxes that was assessed against Vast
remains unpaid and no such claim or assessment is pending or, to the knowledge
of Vast, threatened. Vast has made all withholding of Taxes required to be made
under all applicable federal, state, and local tax regulations and such
withholdings have been paid on a timely basis to the respective governmental
agencies. There are no outstanding agreements or waivers extending the statutory
period of limitations applicable to any tax return or tax liability of Vast, and
there is no proposed liability for any Taxes. Vast has not filed any consent
with the Internal Revenue Service described in Section 341(f) of the Code.
5.11 FEES. There are no claims for legal, accounting, financial
advisory, or investment bankers' fees, brokerage commissions, finders' fees,
or similar compensation in connection with the transactions contemplated by
this Agreement based on any arrangement or agreement made by or on behalf of
Vast.
5.12 DISCLOSURE. No representation or warranty by Vast in this Agreement
and no statement contained in any document, certificate, or other writing
prepared by Vast or its representatives and furnished by Vast to ALI pursuant to
the provisions hereof, affirmatively misstates a material fact or omits a
material fact necessary for such document, certificate, or writing to be, in
good faith, accurately and completely responsive in all material respects to the
purpose identified by Vast to ALI for which such information was furnished by
Vast to ALI.
ARTICLE VI
ADDITIONAL COVENANTS OF THE PARTIES
6.1 FILINGS; OTHER ACTION. Subject to the terms and conditions herein
provided, ALI and Vast shall cause any appropriate other party to: (a) use all
reasonable efforts to cooperate with one another in (i) determining which
filings are required to be made in connection with the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby and
(ii) timely making all such filings and timely seeking all such consents,
approvals, permits, or authorizations; and (iii) use all reasonable efforts to
take, or cause to be taken, all other action and do, or cause to be done, all
other things necessary, proper, or appropriate to consummate and make effective
the transactions contemplated by this Agreement.
6.2 EXPENSES. If this Agreement is not consummated, all costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such expenses.
ARTICLE VII
GENERAL PROVISIONS
7.1 ASSIGNMENT, BINDING EFFECT. Neither this Agreement nor any of the
rights, interests, or obligations hereunder shall be assigned by either of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other party. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
7.2 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings between the parties with respect thereto. No
information previously provided, addition to or modification of any provision of
this Agreement shall be binding upon any party hereto unless made in writing and
signed by all parties hereto.
7.3 AMENDMENT. This Agreement may be amended by the parties hereto, by
action taken by their respective Boards of Directors, at any time, but no
amendment shall be made which by law requires the further approval of
stockholders without obtaining such further approval. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties hereto.
7.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its rules of
conflict of laws.
7.5 COUNTERPARTS. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto.
Executed counterparts transmitted by fax shall be effective as originals.
7.6 HEADINGS. Headings of the Articles and Sections of this Agreement are
for the convenience of the parties only, and shall be given no substantive or
interpretive effect whatsoever.
7.7 INTERPRETATION. In this Agreement, unless the context otherwise
requires, words describing the singular number shall include the plural and vice
versa, and words denoting any gender shall include all genders and words
denoting natural persons shall include corporations and partnerships and vice
versa.
7.8 WAIVERS. Except as provided in this Agreement, no action taken pursuant
to this Agreement, including, without limitation, any investigation by or on
behalf of any party, shall be deemed to constitute a waiver by the party taking
such action of compliance with any representations, warranties, covenants or
agreements contained in this Agreement. The waiver by any party hereto of a
breach of any provision hereunder shall not operate or be construed as a waiver
of any prior or subsequent breach of the same or any other provision hereunder.
7.9 ATTORNEYS' FEES. If any arbitration, litigation, action, suit or other
proceeding is instituted to remedy, prevent or obtain relief from a breach of
this Agreement, in relation to a breach of this Agreement or pertaining to a
declaration of rights under this Agreement, the prevailing party will recover
all such party's attorneys' fees incurred in each and every such action, suit or
other proceeding, including any and
all appeals or petitions therefrom. As used in this Agreement, attorneys' fees
will be deemed to be the full and actual cost of any legal services actually
performed in connection with the matters involved, including those related to
any appeal or the enforcement of any judgment, calculated on the basis of the
usual fee charged by attorneys performing such services, and will not be limited
to "reasonable attorneys' fees" as defined in any statute or rule of court.
7.10 SURVIVAL. All representations and warranties of either party contained
in this Agreement shall survive the execution and delivery of this Agreement
until 24 months after the date hereof.
7.11 SEVERABILITY. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction unless the same is
material to the terms of this Agreement, in the judgment of either party to this
Agreement, in which case the parties shall negotiate in good faith to revise the
same so as to be valid or enforceable. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.
7.12 ENFORCEMENT OF AGREEMENT. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement was
not performed in accordance with its specific terms or was otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof, this being in addition to any other remedy to
which they are entitled at law or in equity.
7.13 CONSENT. Whenever the consent or approval of a party is required by
the terms of this Agreement, unless otherwise provided, the same shall not be
unreasonably withheld or delayed.
VAST TECHNOLOGIES HOLDING CORPORATION
a Delaware corporation
By: /s/ Michael A. Drew
------------------------------
Michael A. Drew, President
ACCERLERATED LEARNING INSTITUTE, INC.
a Nevada corporation
By: /s/ Peter Kenyon
------------------------------
Peter Kenyon, President