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EXHIBIT 10.8
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated February 27, 1992 by and among
INTELLIGENT INFORMATION INCORPORATED, a Delaware corporation with offices at
1315 Washington Blvd., Stamford, Connecticut 06902 (the "Purchaser"), and
MICHAEL J. PRYSLAK ("Pryslak") and DENNIS M. ROLAND ("Roland", and together with
Pryslak, the "Sellers").
WHEREAS, each of the Sellers owns fifty (50) shares (the "Shares")
of the Common Stock, no par value (the "Common Stock"), of Quotes, Plus ...,
Inc., a Colorado corporation (the "Company"), which Shares constitute all of the
issued and outstanding capital stock of the Company; and
WHEREAS, the Sellers desire to sell to the Purchaser, and the
Purchaser desires to purchase from the Sellers, the Shares for the Purchase
Price (as hereinafter defined) and upon the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, covenants and provisions herein contained, the parties hereto hereby
agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
Section 1.1 Sale of the Shares. Upon the terms and subject to the
conditions of this Agreement, the Sellers hereby sell, transfer and assign to
the Purchaser the Shares and deliver to the Purchaser certificates representing
the Shares, duly endorsed in blank, against receipt of payment of the Purchase
Price therefor as provided in Section 1.2 hereof.
Section 1.2 Purchase of Shares; Payment.
(a) Upon the terms and subject to the conditions of this Agreement,
the Purchaser hereby purchases, acquires and accepts the Shares and, in
consideration therefore, in addition to amounts already paid to Sellers by
Purchaser, Purchaser shall pay to Sellers on a monthly basis an amount equal to
two and a half percent (2.5%) of Purchaser's gross revenues (as determined in
accordance with generally accepted accounting principles) (the "Purchase Price
Payment"), provided, however, that the Purchase Price Payment shall, in no event
be less than three thousand dollars ($3,000) per month.
(b) Notwithstanding the provisions of Section 1.2(a) hereof, the
sum of all Purchase Price Payments to Sellers commencing on
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the date hereof, in the aggregate, shall be capped at specified amounts as
follows:
(i) If, at any time commencing on the date hereof and ending
on December 31, 2002, the sum total of all Purchase Price Payments to Sellers,
in the aggregate, by Purchaser equals or exceeds $6,000,000 (the "Purchase
Price Payment Cap"), then Purchaser shall have no further obligation to make
additional Purchase Price Payments;
(ii) If, by December 31, 2002, the sum total of all Purchase
Price Payments to Sellers, in the aggregate, by Purchaser is less than
$6,000,000 and Purchaser does not pay Sellers such additional amounts as are
necessary to make up the difference between the aggregate Purchase Price
Payments and the Purchase Price Payment Cap, then for the period commencing
January 1, 2003 and ending December 31, 2003 (as set forth in Sections
1.2(b)(i) above), the Purchase Price Payment Cap shall be adjusted
to $7,000,000;
(iii) If, by December 31, 2003, the sum total of all Purchase
Price Payments to Seller by Purchaser is less than the Purchase price payment
cap (as set forth in Sections 1.2(b)(i) and (ii) above) and Purchaser does not
pay Sellers such additional amounts as are necessary to make up the difference
between the aggregate Purchase Price Payments and the Purchase Price Payment
Cap, then the Purchase Price Payment Cap shall be further adjusted to
$8,000,000 for all times thereafter.
(c) Except as provided in Article VI hereof, amounts payable
pursuant to this Section 1.2 shall be paid by the Purchaser within fifteen (15)
days after the end of each calendar month. Each payment made by the Purchaser
hereunder shall be accompanied by a statement, signed by the Purchaser, setting
forth in reasonable detail the calculation thereof. Sellers or their agents
shall have the right to review records and check computers during reasonable
hours and for reasonable times. Purchaser agrees have its accountants provide
each year, within a reasonable time, certified copies of its regular annual
audits to each Seller until the year following the time when the Purchaser
shall have no further obligation to make additional Purchase Price Payments.
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Section 1.3 Closing Date. The closing (the "Closing") of the
transactions contemplated hereby was held at the offices of Brown Raysman &
Millstein, 120 West 45th Street, New York, New York, at 10:00 A.M., New York
City time, on the date hereof. The time and date of the Closing is referred to
herein as the "Closing Date". At the Closing, in addition to the sale and
transfer of the Shares, there was delivered by the parties hereto such
certificates, opinions and other documents as are specified in Article IV
hereof.
Section 1.4 Transfer Taxes. Each of the Sellers shall be responsible
for all transfer and similar taxes assessed or payable in connection with the
sale and transfer of the Shares and the transactions contemplated herein.
ARTICLE II
REPRESENTATIONS AND
WARRANTIES OF THE SELLERS
The Sellers hereby jointly and severally represent and warrant to,
and agree with, the Purchaser as follows:
Section 2.1 Standing.
(a) Except as set forth in Schedule 2.1 hereto, the Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Colorado. The Company has the corporate power to own or lease
its properties (such properties being hereinafter referred to as "Property") and
assets and to carry on its business as now conducted. The Company is duly
qualified, admitted or otherwise authorized to transact business, and is in good
standing, as a foreign corporation in the state of Florida, and such
jurisdiction constitutes the only jurisdiction in which the conduct or nature of
the Company's business or the ownership or leasing of its properties or assets
requires it to be so qualified, admitted or otherwise authorized. The copies of
the Certificate of Incorporation, By-Laws, stock transfer records and minute
books of the Company previously delivered or exhibited to the Purchaser
constitute true, correct and complete copies of such documents and reflect all
amendments of the Company's Certificate of Incorporation and By-Laws and minutes
of all actions taken by the stockholders and directors of the Company held
through and including the date of this Agreement. The Company does not own any
shares of, or control, directly or indirectly, or have any equity interest in,
any
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corporation, partnership, joint venture, association or other business
organization.
Section 2.2 Capitalization; Options or Other Rights.
(a) The Company has authorized capital stock consisting of one
thousand (1,000) shares of Common Stock, no par value, of which one hundred
(100) Shares are issued and outstanding as of the date hereof. All of such
issued and outstanding Shares have been duly authorized and validly issued, are
fully paid and nonassessable and have not been issued in violation of any
preemptive rights. There are no commitments, plans or arrangements to issue or
sell, and no outstanding options, warrants, convertible securities or other
rights calling for the issuance of, additional shares of authorized but
unissued, unauthorized or treasury shares of the capital stock or other equity
securities of the Company.
(b) Each of the Sellers is the record and beneficial owner of fifty
(50) Shares of the Company, free and clear of any Lien. None of such Shares is
the subject of any voting trust agreement or other agreement relating to the
voting thereof or restricting in any way the sale or transfer thereof. Each of
the Sellers has full right and authority to transfer such Shares pursuant to the
terms of this Agreement.
Section 2.3 Authorization; Contravention; Consents and Approvals.
(a) Each of the Sellers is of full age and has the legal capacity to
enter into this Agreement and to carry out the transactions contemplated hereby,
and this Agreement constitutes the valid and binding obligation of each of the
Sellers enforceable in accordance with its terms.
(b) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will not, with respect
to the Company or either of the Sellers, as the case may be, result in a breach
in the terms or conditions of, or constitute a default under, or violate, or
require, as the case may be: (1) any provision of any law, regulation or
ordinance, (2) the Certificate of Incorporation or By-Laws of the Company, (3)
any agreement, lease, mortgage or other instrument or undertaking, oral or
written, to which the Company or either of the Sellers is a party or by which
any of them or any of their properties or assets is or may be bound or affected,
(4) any judgment, order, writ, injunction or decree of any court, administrative
agency or governmental body or (5) any action of or by, or filing with, any
governmental body, agency or official.
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(c) The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, require any
action, consent or approval of any person, entity or governmental body.
Section 2.4 Property and Assets. The Company has good, valid and
marketable title to, or valid and enforceable leasehold interests in, all of its
properties and assets, in all cases subject to no liens, claims, restrictions,
options or other agreements or rights to purchase or sell, charges, security
interests or other encumbrances of any kind (such rights being hereinafter
referred to as "Liens") or other defects in title of any nature whatsoever, and
all of such properties and assets are set forth on Schedule 2.4 hereto.
Section 2.5 Undisclosed Liabilities. Except as set forth in Schedule
2.5 hereto, the Company does not have any direct or indirect liability,
indebtedness, claim, loss, damage, deficiency, obligation or responsibility,
fixed or unfixed, choate or inchoate, liquidated or unliquidated, secured or
unsecured, accrued, absolute, known or unknown, contingent or otherwise (such
liabilities being hereinafter referred to as "Liabilities") and whether due or
to become due, or arising out of transactions entered into, or any state of
facts existing, on or prior the date hereof.
Section 2.6 Tax Matters. The Sellers have elected, in compliance
with all applicable legal requirements to be taxed under Subchapter S of the
Internal Revenue Code of 1986, as amended (the "Code"), and the corresponding
provisions under any applicable state or local laws, and such elections are in
effect for the Company. The Company does not have any liability, absolute or
contingent, for the payment of any income taxes under the Code or under the laws
of such states or localities which afford tax treatment similar to that under
Subchapter S. For all periods since its inception, the Company has filed and
will file within the time prescribed by law (including extensions of time
approved by the appropriate taxing authorities) all tax and information returns
and reports required to be filed under applicable law and all such returns and
reports are accurate and complete, including without limitation, all matters
concerning withholding on amounts payable to employees as compensation. The
Company has paid, or has made adequate provision for, the payment of all taxes
and levies of every kind, character and description relating to the Company
(including interest and penalties thereon) (collectively "Taxes") which have
become due on or before the date hereof. Neither the Sellers nor the Company
have taken any action which would jeopardize the eligibility of the Company to
be taxed pursuant to the provisions of Subchapter S under the Code or under any
comparable state or local law. The Company has not been the subject of any
audit, examination or adjustment of any Taxes and, to the knowledge of the
Sellers, there are no
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audits pending or threatened. There are no liens for Taxes imposed or threatened
by any Federal, state, local or foreign authority outstanding against the
Company or any of its properties or assets except for liens for current taxes
not yet due and payable. There is not now in force any extension of time with
respect to the date on which any tax return was or is due to be filed by or with
respect to the Company, or any waiver or agreement by the Company, for the
extension of time for the assessment of any Taxes.
Section 2.7 Proprietary Property.
(a) Schedule 2.7 hereto sets forth a complete list of (i) all
computer programs, including the related documentation and specifications, owned
or used by the Company or Pryslak in connection with the Company's business,
(ii) all inventions which are the subject of issued United States or foreign
letters patent or applications therefor or with respect to which ownership is
otherwise claimed, all trade names and trade and service marks used by the
Company, including those for which an application for registration is pending,
and all writings for which copyright is claimed, has been recorded or is
pending, in each case which are used or held for use by the Company, (iii) all
license or other agreements pursuant to which the Company is obligated to pay or
entitled to receive royalties or other fees in connection with the sale,
development or licensing of the above and (iv) all other agreements relating to
know-how, including, without limitation, technology, technical knowledge, source
code, object code, proprietary rights, patented or unpatented inventions, trade
secrets, analytical methodology, processes, data and all other information or
experience possessed by the Company, the Sellers or any of their respective
affiliates, or which the Company, the Sellers or any of their respective
affiliates has the right to use or which the Company, the Sellers or their
respective affiliates is licensed or authorized to use by others or licenses or
authorizes others to use ("Know-how", and together with all of the foregoing,
the "Proprietary Property"). Except as set forth in Schedule 2.7, the Company is
the sole and exclusive holder of all patents, copyrights and trade name and
trademark registrations and is the sole and exclusive owner of, with all right,
title and interest in and to (in each case, free and clear of any Liens
excluding any license agreement set forth in Schedule 2.7), the Proprietary
Property and Know-how set forth in Schedule 2.7 and has sole and exclusive
rights (without being contractually obligated to pay any compensation to any
third party in respect thereof) to the use thereof or the material covered
thereby in connection with the services or products in respect of which they are
being used, and no consent of third parties is required for the use thereof by
the Company or the Purchaser upon completion of the transactions contemplated
hereby.
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(b) Except as set forth in Schedule 2.7, no claims have been
asserted by any person to the ownership or use of any Proprietary property or
Know-how or challenging or questioning the validity or effectiveness of any such
license or agreement, and the Sellers do not know of any reason that could
result in any such claim and, except as set forth herein, the use of the
Proprietary Property and the Know-how by the Company and the disclosure and
delivery of the Proprietary Property and the Know-how to the Purchaser do not
infringe on the rights of any person nor is there any pending, or, to the
knowledge of the Sellers, threatened, claim or allegation that the Company is
engaged in such infringement. All of the patent, copyright, trademark and trade
name registrations listed or required to be listed in Schedule 2.7 are in full
force and effect. No other person has any right to use any patent, copyright,
trademark or trade name listed or required to be listed in Schedule 2.7 for
similar or related products in competition with any Proprietary Property, and to
the best of the knowledge of the Sellers, no other person is infringing any of
the Proprietary Property or Know-how.
(c) The computer programs included within the Proprietary Property
and offered or being developed by the Company are, or shall be, free from any
defects which would in any way have a material adverse effect on the functioning
of such software in accordance with the specifications therefor and contain, or
shall contain, all current revisions of such computer programs, including all
specifications, documentation and other Know-how related thereto. See Schedule
2.7 for further specifications and known limitations.
Section 2.8 Litigation. There is no pending or, to the knowledge of
the Sellers, threatened, legal, administrative, arbitration or other proceeding
or governmental investigation which could affect the Company or the Sellers or
the transactions contemplated hereby, and the Sellers do not know of any reason
that could result in any such proceeding or investigation. Neither the Company
nor either of the Sellers is subject to, and there is not outstanding, any
judgment, award, order, writ, injunction or decree of any court, administrative
agency, governmental body or arbitration tribunal relating to the Company or the
Sellers.
Section 2.9 Compliance with Applicable Laws. The Company is not in
violation or breach of any, and the business and operations of the Company
comply in all material respects and are being conducted in accordance with all,
governing laws, regulations and ordinances applicable thereto, federal, state,
local or foreign, and the Company is not in violation of or in default under,
any judgment, award, order, writ, injunction or decree of any court,
administrative agency, governmental body or arbitration tribunal.
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Section 2.10 Employee Compensation; Labor Matters.
(a) The Company does not have any outstanding liability for payment
of wages, commissions, vacation pay (whether accrued or otherwise), salaries,
fees, bonuses, reimbursable employee business expenses, pensions, contributions
under any employee benefit plans or any other compensation or perquisites,
current or deferred, under any labor, employment or consulting contracts,
whether oral or written, based upon or accruing with respect to those services
of the employees of the Company performed prior to the Closing Date.
(b) There are no employment, severance, termination, consulting,
bonus, profit sharing, percentage compensation, deferred compensation, stock
purchase or stock option plans, collective bargaining or other compensation
plans, agreements, commitments or arrangements maintained by the Company with
any present or former directors, officers or employees thereof or any of their
affiliates. The Company maintains no "employee pension benefit plan" or
"employee benefit plan" as such terms are defined in Sections 3(2) and 3(3) of
the Employee Retirement Income Security Act of 1974, as amended.
Section 2.11 Agreements and Other Rights. Schedule 2.11 hereto lists
all agreements, commitments or arrangements, whether written or oral to which
the Company is a party (the "Contracts"), copies of which have previously been
delivered to the Purchaser. The Contracts have been duly authorized and
delivered by the Company, are in full force and effect and constitute the valid
and binding obligations of the Company enforceable in accordance with their
respective terms. As to the Contracts, (1) there are no existing breaches or
defaults by any party thereunder, (2) no event, act or omission has occurred or,
as a result of the consummation of the transactions contemplated hereby, will
occur which (with or without notice, lapse of time or the happening or
occurrence of any other event) would result in a default thereunder or give
cause for termination thereof, (3) none of them will result in any material loss
to the Company upon completion or performance thereof and (4), to the knowledge
of the Sellers, none of the parties to such Contracts intends to cancel,
renegotiate or exercise or not exercise any option under any such Contract. See
notations on Schedule 2.11 for exceptions to the foregoing representations.
Section 2.12 Entire Business; Competing Activities.
(a) No portion of the business of the Company is conducted by the
Sellers (except in their capacities as officers and/or directors of the Company)
or any affiliate thereof and all of the assets and properties necessary for the
conduct of the business of the Company as presently conducted are exclusively
owned or leased by the Company and used by the Company and its
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customers and not by the Sellers or any of their affiliates. Schedule 2.12 sets
forth all agreements, commitments or arrangements between the Company, on the
one hand, and the Sellers or any of their affiliates, on the other hand, and all
agreements, commitments or arrangements by and among the Sellers relating to the
Company (the "Related Party Agreements").
(b) Neither the Sellers nor any of their respective affiliates has
any direct or indirect interest, either by way of stock ownership or otherwise,
in any firm, corporation, association or business enterprise which competes with
the Company or is a supplier, client, customer or agent of, or is otherwise
engaged in the business engaged in by, the Company.
Section 2.13 Copies of Documents. The Sellers have delivered to
Purchaser true and correct copies of all documents listed on the Schedules
hereto.
Section 2.14 Finders' Fee. There is no investment banker, broker,
finder or other intermediary which has been retained by, or is authorized to act
on behalf of, the Sellers who might be entitled to any fee or commission from
the Purchaser, any of its affiliates or the Company upon the consummation of the
transactions contemplated by this Agreement.
Section 2.15 Accuracy of Representations, Etc. The representations
and warranties made in this Agreement, and in any statement, certificate,
exhibit, schedule or other document furnished or made available by the Sellers
to the purchaser pursuant to this Agreement or in connection with the
transactions contemplated hereby, do not contain any statement which is false or
misleading with respect to any material fact and do not omit to state a material
fact required to be stated herein or therein or necessary in order to make the
statements contained herein or therein not materially false or misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
The Purchaser hereby represents and warrants to the Sellers as
follows:
Section 3.1 Corporate Standing. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the corporate power to own or lease its properties and assets
and to carry on its business as now being conducted.
Section 3.2 Authorization, Etc. The Purchaser has full corporate
power and authority to execute and deliver this
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Agreement and to carry out the transactions contemplated hereby. The Board of
Directors of the Purchaser has duly authorized the execution and delivery of
this Agreement and the transactions contemplated hereby, and no other corporate
proceedings on the part of the Purchaser is necessary to authorize this
Agreement and the transactions contemplated hereby. This Agreement constitutes
the valid and binding obligation of the Purchaser, enforceable in accordance
with its terms. No further action, consent or approval of any person, entity or
governmental body is required by the Purchaser for the execution and delivery
of, this Agreement or the consummation of the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby will not result in a breach of the terms or
conditions of, or constitute a default under, or violate, as the case may be,
(1) any provision of any law, regulation or ordinance, (2) the Certificate of
Incorporation or By-Laws of the Purchaser, (3) any agreement, lease, mortgage or
other instrument or undertaking, oral or written, to which the Purchaser is a
party or by which it or any of its properties or assets is or may be bound or
affected, or (4) any judgment, order, writ, injunction or decree of any court,
administrative agency or governmental body.
Section 3.3 Purchase for Investment. The Purchaser is acquiring the
Shares for investment and not with a view to the sale or distribution thereof in
violation of the Securities Act of 1933, as amended.
Section 3.4 Finders' Fee. There is no investment banker, broker,
finder or other intermediary which has been retained by, or is authorized to act
on behalf of, the Purchaser or any of its affiliates who might be entitled to
any fee or commission from the Sellers or any of their affiliates upon
consummation of the transactions contemplated by this Agreement.
Section 3.5 Accuracy of Representations. The representations and
warranties made by the Purchaser in this Agreement, and in any statement,
certificate, exhibit, schedule or other document furnished or made available by
the Purchaser to the Sellers pursuant to this Agreement or in connection with
the transactions contemplated hereby, do not contain any statement which is
false or misleading with respect to any material fact and do not omit to state a
material fact required to be stated herein or therein or necessary in order to
make the statements contained herein or therein not materially false or
misleading.
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ARTICLE IV
CLOSING DELIVERABLES
At the Closing, the following actions took place:
Section 4.1 Authority. The Purchaser and the Sellers, as the case
may bet, received all documents it or they may have reasonably requested
relating to the authority of each of the Sellers and the Purchaser to enter into
this Agreement and to consummate the transactions contemplated hereby.
Section 4.2 Opinion of the Company's and Sellers' Counsel. The
Sellers delivered to the Purchaser the opinion of Russo & Baker, P.A., counsel
to the Company and the Sellers, as to certain matters covered by Article II
hereof in the form of Exhibit A hereto.
Section 4.3 Resignations. The Purchaser received the resignations of
all directors and officers of the Company effective as of the Closing Date.
Section 4.4 Employment Agreements. The Purchaser and each of the
Sellers entered into Employment Agreements in the form of Exhibits B-1 and B-2
hereto.
Section 4.5 Releases. The Purchaser received releases from each of
the Sellers from all claims which the Sellers may have against the Company in
the form of Exhibit C hereto.
Section 4.6 Consents. The Purchaser and the Sellers, as the case may
be, were furnished with appropriate evidence of the granting of all approvals,
authorizations and consents required to consummate the transactions contemplated
hereby.
Section 4.7 Opinion of Purchaser's Counsel. The Purchaser delivered
to the Sellers the opinion of Brown Raysman & Millstein, counsel to the
Purchaser, as to certain matters covered by Article III hereof in the form of
Exhibit D hereto.
Section 4.8 Assignment of Trademark. The Sellers and the Company
assigned to the Purchaser all of their right, title and interest in and to
certain property used by the Company pursuant to an Assignment in the form of
Exhibit E hereto.
ARTICLE V
NATURE AND SURVIVAL OF
REPRESENTATIONS AND WARRANTIES
All statements contained herein or in any certificate, schedule or
other document delivered pursuant hereto shall be
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deemed representations and warranties by the person delivering the same. All
representations and warranties shall survive the Closing and shall not be
affected by any investigation at any time made by or on behalf of the Purchaser,
on the one hand, or the Sellers, on the other hand.
ARTICLE VI
INDEMNIFICATION
(a) The Sellers hereby agree to indemnify and hold harmless the
Purchaser, its affiliates and the Company from and against any liabilities or
obligations, damages, losses, claims, encumbrances, costs or expenses (including
attorneys' fees) of any nature, whether absolute, contingent or otherwise (any
or all of the foregoing herein referred to as "Loss") insofar as a Loss (or
actions in respect thereof) whether existing or accruing prior or subsequent to
the Closing Date arises out of or is based upon any misrepresentation (or
alleged misrepresentation) or breach (or alleged breach) of any of the
warranties, covenants or agreements made by the Sellers or any of them in this
Agreement or in any statement, certificate, schedule, exhibit or other document
made or delivered pursuant hereto to the Purchaser by or on behalf of the
Sellers or any of them.
(b) The Purchaser hereby agrees to indemnify and hold harmless the
Sellers and their respective affiliates from and against Loss insofar as such
Loss (or actions in respect thereof) whether existing or accruing prior or
subsequent to the Closing Date arises out of or is based upon any
misrepresentation (or alleged misrepresentation) or breach (or alleged breach)
of any of the warranties, covenants or agreements made by the Purchaser in this
Agreement or in any statement, certificate, schedule, exhibit or other document
made or delivered pursuant hereto to the Sellers by or on behalf of the
Purchaser.
(c) No claim for indemnification hereunder shall be valid unless
notice of the matter which may give rise to such claim is given in writing by
the Indemnitees to the persons against whom indemnification is sought (the
"Indemnitors") as soon as reasonably practicable after such Indemnitees become
aware of such claim, provided that the failure to notify the Indemnitors shall
not relieve them from any liability which they may have to the Indemnitees
otherwise than under this Article VI unless the Indemnitors shall be irreparably
prejudiced by such failure. Such notice shall state that the Indemnitors are
required to indemnify the Indemnitees for a Loss and shall specify the amount of
Loss and the relevant details thereof. If, within 60 calendar days of receipt of
such notice, the Indemnitors have not notified the Indemnitees that they object
to such claimed Loss explaining the relevant details of the reasons for
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such objection, then the Indemnitors shall be deemed to have waived any
objections to such claimed Loss.
(d) The Indemnitors shall have the right to settle and to defend,
through counsel reasonably satisfactory to the Indemnitees at the Indemnitors'
expense, any action which may be brought in connection with all indemnifiable
matters subject to this Article VI (a "Third Party Action"). In such event, the
Indemnitees of the Loss in question and any successor thereto shall permit the
Indemnitors access to their books and records to the extent necessary for the
defense of any Third Party Action and otherwise cooperate with the Indemnitors
in connection with such action, provided that the Indemnitees shall have the
right fully to participate in such defense at their own expense. The defense by
Indemnitors of any such action shall not be deemed a waiver by the Indemnitors
of their right to assert a Dispute with respect to the responsibility of the
Indemnitors with respect to the Loss in question. The Indemnitors shall have the
right to settle or compromise any claim against the Indemnitees without the
consent of the Indemnitees provided that the terms thereof provide for the
unconditional release of the Indemnitees and require the payment of monetary
damages only. If the Indemnitors shall fail to take timely action to defend any
such action, the Indemnitees involved shall have the right to assume the defense
thereof with counsel of its choosing, at the Indemnitors' expense, and defend,
settle or otherwise dispose of such action.
(e) Amounts payable to the Purchaser pursuant to the indemnification
provided in section (a) of this Article VI may, at the Purchaser's option, be
set off against the payments to be made by the Purchaser in accordance with
Section 1.2 hereof.
ARTICLE VII
NON-COMPETITION
The Purchaser agrees that it will not develop, directly or
indirectly, any assets having a functionality that is substantially similar to
those assets of the Company that are currently operational or are foreseeable
extensions or enhancements of currently operational programs, unless the
development of such assets will not have any adverse effect on the Purchase
Price Payments. The Purchaser further agrees that, in the event (a) Purchaser
sells or otherwise transfers the System or the controlling shares of the Company
to a third party, (i) the Purchaser will not, for a period of two (2) years
after such sale or transfer, directly or indirectly, engage in the same or
similar programs as are presently produced by the Company or that would be
considered competition for the same customers, and (ii) such third party shall
agree to be bound by all of the terms and conditions of this Agreement or (b)
Purchaser grants a security interest in the System to any third party, Purchaser
shall
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require such third party to agree that its security interest in the System is
subject to the terms and conditions of this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Governing Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
(without giving effect to conflicts of law).
Section 8.2 Headings and Captions. The headings and captions
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
Section 8.3 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute but one and the same instrument.
Section 8.4 Entire Agreement. This Agreement, including all Exhibits
and Schedules, constitutes the entire understanding among the parties with
respect to the subject matter hereof, superseding all negotiations, prior
discussions and preliminary agreements made prior to the date hereof.
Section 8.5 Assignment. This Agreement shall not be assignable by
any party hereto; provided, however, that the Purchaser may assign its rights
hereunder to any entity which acquires all or substantially all of its capital
stock or assets, provided such assignee agrees to be bound by all of the terms
and conditions of this Agreement, and Sellers may assign all of their right,
title and interest in and to the Purchase Price Payment.
Section 8.6 Separability. If any section, subsection or provision of
this Agreement, or the application of such section, subsection or provision, is
held invalid, the remainder of this Agreement and the application of such
section, subsection or provision to persons or circumstances other than those to
which it is held invalid shall not be affected thereby.
Section 8.7 Notices. All notices, consents or other communications
required or permitted to be given by any party hereunder shall be in writing
(including telecopy or similar writing) and shall be given by delivery or by
certified or registered mail, postage prepaid, as follows:
- 14 -
15
(a) If to Sellers, to them at:
Mr. Michael J. Pryslak
10850 SW 42nd Street
Miami, Florida 33165
Telecopy: 305-223-5671
Mr. Dennis M. Roland
2020 South Fairplay Street
Aurora, Colorado 80014-4526
Telecopy: 303-369-8791
With a copy to:
Edmund P. Russo, Esq.
Russo & Baker, P.A.
4675 Ponce de Leon Blvd, Suite 301
Coral Gables, Florida 33146
Telecopy: (305) 665-4011
(b) If to Purchaser, to it at:
1315 Washington Blvd.
Stamford, Connecticut 06902
Attn: Mr. Robert M. Unnold
Telecopy: 800-554-9157
With a copy to:
Brown Raysman & Millstein
120 West 45th Street
New York, New York 10036
Attn: Michael Hirschberg, Esq.
Telecopy: (212) 840-2429
or at such other address or telecopy number (or other similar number) as any
party may from time to time specify to the other parties hereto. Any notice,
consent or other communication required or permitted to be given hereunder shall
be deemed to have been given on the date of mailing, personal delivery or
telecopy (provided the appropriate answerback is received) thereof and shall be
conclusively presumed to have been received on the second business day following
the date of mailing or, in the case of personal delivery, the actual day of
personal delivery thereof, or, in the case of telecopy delivery, when such
telecopy is transmitted, except that a change of address shall not be effective
until actually received.
Section 8.8 Costs. Except as provided in Article VI and Section 8.13
hereof, each party will pay its own costs and
- 15 -
16
expenses involved in carrying out the transactions contemplated by this
Agreement.
Section 8.9 Waiver. Waiver by any of the parties of any term,
provision or condition of this Agreement shall not be construed to be a waiver
of any other term, provision or condition. Failure or delay by any party to
require performance of any provision of this Agreement will not affect or impair
such party's right to require full performance of such provision at any time
thereafter.
Section 8.10 Exhibits and Schedules. The Exhibits and Schedules are
part of this Agreement as if set forth fully herein.
Section 8.11 Amendment. This Agreement may not be amended except by
an instrument in writing signed by or on behalf of the parties hereto.
Section 8.12 Further Assurances. Subject to the terms and conditions
of this Agreement, each of the parties hereto will use all reasonable efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable, under applicable laws and regulations or
otherwise, to fulfill its or his obligations under this Agreement and to
consummate the transaction's contemplated by this Agreement.
Section 8.13 Attorneys' Fees. In the event of any litigation
hereunder, the prevailing party shall be entitled to recover the reasonable
attorneys' fees and other costs incident to such litigation, including appeals,
from the losing party.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
INTELLIGENT INFORMATION INCORPORATED
By: /s/ Robert M. Unnold
----------------------------
Robert M. Unnold
Chief Executive Officer
/s/ Michael J. Pryslak
----------------------------
Michael J. Pryslak
/s/ Dennis M. Roland
----------------------------
Dennis M. Roland
- 16 -
17
Schedule 1.2
Allocation of Purchase Price Payments
The Sellers agree that at the date of this Agreement, the Company owes Mr.
Pryslak $47,484.62 and Mr. Roland owes the Company $31,389.20.
The Sellers agree to waive this net liability to the Company and the
Purchaser agrees to allocate the Purchase Price Payments as follows:
Of the first $157,748.00 of Purchase Price Payments, Mr. Pryslak will
receive $0.75 and Mr. Roland will receive $0.25 of each $1.00 due, then
for all additional Purchase Price Payments, Mr. Pryslak will receive $0.50
and Mr. Roland will receive $0.50 of each $1.00 due.
18
Schedule 2.1
Standing
The Company failed to file a biannual report with the Secretary of State
of Colorado which was due on February 1, 1992 and is now suspended. To
bring the Company back to "good" standing, a corporate report must be
filed with the Secretary of State of Colorado. On February 18, 1992 the
biannual report was mailed with the required $125.00 fee to the Secretary
of State of Colorado. The Sellers shall pay or reimburse the Purchasers
for all costs and expenses incurred in connection with restoring the good
corporate status of the Company.
19
Schedule 2.4
Property and Assets
Hollywood Federal Bank Account 751475
Balance at time of Closing: $20.00
Blank checks numbered 101 through 112 and __________ through 412.
Novell Btrieve Database Management Software Library
CXL Interface Software Library
Greenleaf Serial Communications Software Library
Microsoft C Compiler Software Version 6.0
Business files and corporate minutes and stock transfer books including
various records and correspondence.
See also Proprietary Property set forth on Schedule 2.7 and Contracts set
forth on Schedule 2.11.
20
Schedule 2.5
Liabilities
As of November 22, 1991, Mr. Thomas M. Vockrodt, 13900 East Harvard
Avenue, Suite 212, Aurora, Colorado 80014 claimed that Quotes Plus owed
$985.12 for unspecified legal services. The Sellers shall remain liable
for this amount and shall pay or reimburse the Company for all costs and
expenses incurred in connection with the foregoing.
21
Schedule 2.7
Proprietary Property
Copyrighted Quote Alert Computer Program (Quote Alert Software or QAS). The QAS
was written by Mr. Pryslak in the "C" computer language and is compiled with the
Microsoft C Compiler, Version 6.0. The QAS source code is provided on computer
diskettes along with object code for the following commercial software libraries
which are used by the QAS to perform certain functions:
Novell Btrieve Database Manager
CXL Interface Library
Greenleaf Serial Communications Library
PC Quote DBAX Application Program Interface Software
Intelligent Information Incorporated has been using the Quote Alert software
under a Quote Alert Service Agreement since August 1, 1991. Currently there are
no known defects in the Quote Alert software.
The functions and use of the software are described in the Quote Alert System
User's Guide dated October 1, 1990. While the QAS is intended to provide highly
specialized functions relating to monitoring real-time financial data and
sending such data to radio pagers, there are several known limitations of the
QAS which apply to these specialized functions. These known limitations are:
1. The QAS can only be used with a single user interface. That means only
one person and one computer can be used to operate the system. To upgrade
the system to support simultaneous multiple users the software must be
modified to operate in a multi-user environment and additional equipment
must be added. The Novell Btrieve database management system was selected
for the QAS to more easily develop a multi-user interface on a Novell
Local Area Network.
2. The QAS can only dial out to one paging company computer at one time.
To upgrade the system to support simultaneous calling to multiple paging
company computers will require changing the logic of the out-dialing
portion of the software and the addition of multi-channel equipment in the
system computer.
3. The QAS software is limited in the total number of Watched Items as
bound by conventional computer memory. A Watched Item is either an item
for a Price Alert or an item for a Volume Alert. For example, the stock
IBM is an item. Each time a new item is added to the system, conventional
computer memory is utilized. Adding an additional Price or Volume Alert
for an item already being watched does not require additional
22
memory, so no additional memory resource is required when a second
customer desires to monitor IBM. This limitation can be upgraded to be
bound by "Expanded" computer memory with software changes and hardware
additions. it is estimated that the QAS can support approximately 1,100
Watched Items before use of Expanded computer memory is necessary.
4. The number of customer records, including the number of customers, the
number of Price Alerts, the number of Timed Quotes and the number of
volume Alerts, is limited only by the disk storage capacity of the system
computer.
5. The QAS can only transfer messages to paging system computers that are
"hard coded" into the computer program. This means that the addition or
modification of the parameters associated with transferring messages to a
paging company computer requires changing the source code of the program
and recompiling the program. This limitation can be removed by changing
the logic of the program to store paging company parameters in disk files
instead of computer program memory.
6. The QAS is limited to accessing real-time financial data provided
through PC Quote's DBAX Application Program Interface, which includes
software, security hardware and monthly service of a continuous stream of
data. To access data from additional sources would require significant
system changes.
7. The QAS requires an uninterrupted power source.
The Sellers represent and warrant that neither the Quote Alert System User's
Guide nor any document provided to or statements made to any person are
inconsistent with the foregoing limitations.
Pending Trademark/Service Mark for the mark "QUOTE ALERT". Mr. Pryslak filed an
application for a trademark for the term "QUOTE ALERT" on October 18, 1990 with
the U.S. Department of Commerce, Patent and Trademark Office, Washington D.C.
20231. The application was assigned Serial Number 74/108661 on October 24, 1990.
Mr. Gerald Seegars is the Examining Trademark Attorney in Law Office 6,
telephone number 703 308-1031. On September 23, 1991 Mr. Seegars filed an
"Examiner's Amendment" to the application to modify the international class the
mark would be registered under. By executing this Stock Purchase Agreement, Mr.
Pryslak assigns his rights to the "QUOTE ALERT" trademark application to the
Purchaser, Intelligent Information Incorporated.
23
March 20, 1990
Quote Alert System Copyright Form TX
Registration Number TX 2-787-062
24
Schedule 2.11
Agreements and Other Rights
March 20, 1990
License Agreement between Quotes Plus, Inc. and Page America of New York, Inc.
This Agreement provides Page America with a license to use the Quote Alert
software in the New York and Chicago areas. Page America has never paid Monthly
Per Subscriber Fees (Section 8) or Monthly Maintenance Fees (Section 9). Page
America has provided payment of the Lifetime License Fee (Section 10) and
Installation and Training Costs (Section 11). No notices have been sent to or
received from Page America regarding this Agreement. Contact Mr. Steve Sinn,
201 342-6676.
March 26, 1990
Confidential Information Agreement between Mr. Timothy J. Pusieko and Quotes
Plus, Inc.
Mr. Pusieko was considered for a marketing position. Contact Mr. Timothy J.
Pusieko, 404 978-1254 or 800 800- 3638.
March 26, 1990
Novell, Runtime License Agreement
This Agreement provides Quotes Plus with authority to use Novell software within
its Quote Alert computer programs.
August 13, 1990
Service Facilitator Agreement between PC Quote, Inc. and Quotes Plus, Inc.
This Agreement gives QPI the ability to distribute Market Data through its Quote
Alert software technology. PC Quote has agreements with various stock markets
and financial exchanges to distribute Market Data for various purposes. This
Service Facilitator Agreement provides Quotes Plus authority to further
distribute Market Data through its applications. Included as Exhibit C is a
Joint Marketing Agreement between PC Quote, Inc. and Quotes Plus, Inc. This
Joint Marketing Agreement provides per-subscriber monthly royalties from Quotes
Plus, Inc. to PC Quote, Inc. and per-system monthly royalties from PC Quote,
Inc. to Quotes Plus, Inc. Contact Mr. Jay Keller, 312 786-5400 or 800 225-5657.
25
August 16, 1990
Copies of sections of agreements between PC Quote, Inc. and the New York Stock
Exchange authorizing a Pilot Test of the Quote Alert service. These documents
describe test of the Quote Alert service using Market Data from the Consolidated
Tape Association exchanges, including the New York Stock Exchange and the
American Stock Exchange. The Pilot Test program is scheduled to end on August 1,
1992. Contact Mr. John F. Cipriano, New York Stock Exchange, 212 656-2052 and
Mr. Charles H. Faurot, American Stock Exchange, 212 306-1340.
August 30, 1990
Non-Disclosure Agreement between Motorola, Inc. and Quotes Plus, Inc. QPI fully
disclosed its business plans and financial information monitoring application to
Motorola. Contact Mr. Jim Page, 407 364-2776.
October 1, 1990
Licensing Agreement between USA Mobile Communications, Inc. and Quotes Plus,
Inc.
USA Mobile used the Quote Alert system for the one year term. USA Mobile is
currently not using the system and has an outstanding balance owed to Quotes
Plus of $1,410.00 as of February 10, 1992. No notices have been sent to or
received from USA Mobile regarding this Agreement. Contact Mr. Stan Sech, 513
489-0122.
December 7, 1990
Copy of letter from NASDAQ Stock Market to PC Quote, Inc. authorizing use of
NASDAQ Market Data on Quote Alert service. Contact Ms. Anne Pittman Durand, 301
590-6526.
March 19, 1991
Non-Written Understanding between SkyTel, NASDAQ Stock Market and Quotes Plus,
Inc.
A service test began in the Spring of 1991 offering officers of NASDAQ-listed
companies SkyTel paging services with Quote Alert service. Originally, NASDAQ
was prepared to buy services from SkyTel and Quotes Plus and provide these
services to NASDAQ-listed companies. No formal agreements exist. Contact Mr.
Chris Ritter, SkyTel, 212 351-2333 or 800 759-6344 and Ms. Barbara Sweeney,
NASDAQ, 202 728-8016.
26
March 25, 1991
Non-Written Understanding between The National Dispatch Center (NDC) and Quotes
Plus, Inc.
Quotes Plus and NDC have agreed to offer the Quote Alert service under NDC's
name STOCKMASTER for an equal sharing of profits. No written agreements have yet
been proposed and no funds have been exchanged. Quotes Plus has been providing
service to NDC (including service to customers of NDC) on a demonstration basis
since early 1991. Contact Mr. John MacLeod, 619 481-9500 or 800 800-8449.
April 29, 1991
Copy of Agreement between PC Quote, Inc. and the Options Price Reporting
Authority (OPRA).
This Agreement provides authorization for PC Quote to allow Quotes Plus to
distribute OPRA Market Data through the Quote Alert system for a monthly
per-subscriber fee. See the Federal Register, Volume 56, No. 104, May 30, 1991,
Notices, Page 24434, Release No. 34-29214, File No. s7-8-90. Contact Mr. Joseph
P. Corrigan, 312 786-7190.
June 1, 1991
Service Agreement between Forsythe Communications, Inc. and Quotes Plus, Inc.
Forsythe is not using the Quote Alert service.
August 1, 1991
Service Agreement between Intelligent Information Incorporated and Quotes Plus,
Inc.
December 9, 1991
Pending agreement between PC Quote, Inc. and the Toronto Stock Exchange to allow
all Canadian Market Data to be distributed on the Quote Alert service. Contact
Mr. Robert A. Moores, 416 947-4456.
27
Schedule 2.12
Entire Business; Competing Activities
Schedule of Assets owned by Sellers and used for the Company. The depreciated
value of these Assets were. transferred from the Company's books effective
February 29, 1992 as credit against the net outstanding loan from the Company to
the Sellers. While employed by III, the Sellers will continue to use these
Assets for the benefit of III.
Pryslak's Assets: Value
Furniture 97.19
Folding Table 8.48
Filing Cabinet 16.40
Printer EXP420 37.22
Epson Equity II+ Computer 486.24
Telephones 58.43
Hewlett Packard LaserJet IIP Printer 286.53
MIT 386-25 Computer 1146.56
Answering Machine 34.44
Everex 2400 Baud Modem 76.05
Compaq LTE/286 Model 20 Computer 1349.04
2 GTE Telephones 171.50
Tripp Lite UPS 174.19
Roland's Assets: Value
Furniture 97.19
Target Computer Monitor 22.72
Mr. Pryslak is an Officer and equity partner in The Wright Agency, Inc., a
Florida Corporation that provides telecommunications consulting and sales
services to small businesses. Quotes Plus, Inc. uses long distance telephone
service from Fairfield County Telephone Company and The Wright Agency receives
commissions from Fairfield County Telephone Company for Quotes Plus' use of such
services.
28
EXHIBIT A
February __, 1992
Intelligent Information Incorporated
1315 Washington Blvd.
Stamford, Connecticut 06902
Re: Stock Purchase Agreement by and among Intelligent Information
Incorporated, Michael J. Pryslak and Dennis M. Roland
Dear Sirs:
We are counsel to Quotes, Plus. . ., Inc., a Colorado corporation
("QPI"), and Michael J. Pryslak and Dennis M. Roland (the "Sellers") in
connection with that certain Stock Purchase Agreement (the "Agreement") dated
February __, 1992 by and among Intelligent Information Incorporated ("III") and
the Sellers, and in connection with the consummation of the transactions
contemplated by the Agreement.
In so acting and as a basis for the opinions expressed below, we
have examined executed copies of the Agreement and the documents delivered in
connection with the Agreement (the "Documents"), certified copies of the
Certificate of Incorporation and By-Laws of QPI, minutes of the meetings of the
Board of Directors and stockholders of QPI and original or photostatic copies of
such other records and other documents as we have deemed relevant and necessary
for the opinions hereinafter set forth. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to original documents of all documents submitted
to us as certified or photostatic copies. As to various questions of fact
material to such opinions, we have relied upon certificates of the Sellers and
officers of QPI and certificates of public officials of the States of Colorado
and Florida.
For purposes of the opinions expressed below, we have assumed that
III has all requisite power and authority and has taken all necessary action to
authorize, execute and deliver the Agreement and to consummate the transactions
contemplated thereby.
29
Intelligent Information -2- February __, 1992
Incorporated
Terms which are not otherwise defined herein have the respective
meanings ascribed to them in the Agreement.
Based upon and subject to the foregoing, we are of the opinion that:
(1) QPI is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado. QPI has the corporate
power to own or lease its properties and assets and to carry on its business as
now conducted. QPI is duly qualified to transact business, and is in good
standing, as a foreign corporation in the State of Florida.
(2) QPI has authorized capital stock consisting of one thousand
(1,000) shares of Common Stock, no par value, of which one hundred (100) Shares
are issued and outstanding as of the date hereof. All of such issued and
outstanding Shares have been duly authorized and validly issued, are fully paid
and nonassessable and have not been issued in violation of any preemptive
rights. There are no commitments, plans or arrangements to issue or sell, and no
outstanding options, warrants, convertible securities or other rights calling
for the issuance of, additional shares of authorized but unissued, unauthorized
or treasury shares of the capital stock or other equity securities of QPI.
(3) Each of the Sellers is the record and beneficial owner of fifty
(50) Shares of QPI, free and clear of any Lien. None of such Shares is the
subject of any voting trust agreement or other agreement relating to the voting
thereof or restricting in any way the sale or transfer thereof. Each of the
Sellers has full right and authority to transfer such Shares pursuant to the
terms of this Agreement.
(4) Each of the Sellers is of full age and has the legal capacity to
execute and deliver the Agreement and the Documents and to carry out the
transactions contemplated thereby. The Agreement and the Documents have been
duly executed and delivered by each of the Sellers and constitute the valid and
binding obligations of each of the Sellers enforceable against the Sellers in
accordance with their respective terms, except to the extent that such
enforcement may be limited by any applicable bankruptcy, reorganization,
insolvency and other similar laws affecting the enforcement of creditors' rights
generally and except as such terms may be limited by the application of such
general principles of equity as a court with proper jurisdiction may apply.
(5) The execution, delivery and performance of the Agreement and the
Documents and the consummation of the transactions contemplated thereby will not
result in a breach in the
30
Intelligent Information -3- February __, 1992
Incorporated
terms or conditions of, or constitute a default under, or violate, as the case
may be: (a) any provision of any law, regulation or ordinance, (b) the
Certificate of Incorporation or By-Laws of QPI, (c) any agreement, lease,
mortgage or other instrument or undertaking, oral or written, of which we are
aware, to which QPI or either of the Sellers is a party or by which any of them
or any of their respective properties or assets is or may be bound or affected
or (d) any judgment, order, writ, injunction or decree of any court,
administrative agency or governmental body.
(6) The execution and delivery by the Sellers of the Agreement and
the Documents and the consummation of the transactions contemplated thereby
require no further action, consent or approval of any person or entity.
(7) There is no pending or, to the best of our knowledge, threatened
legal, administrative, arbitration or other proceeding or governmental
investigation which could affect QPI or the Sellers or the transactions
contemplated by the Agreement. Neither QPI nor either of the Sellers is subject
to any, and there is no outstanding, judgment, award, order, writ, injunction or
decree of any court, administrative agency, governmental body or arbitration
tribunal relating to QPI or the Sellers.
(8) To the best of our knowledge, QPI is not in violation or breach
of any, and the business and operations of QPI comply in all material respects
and are being conducted in accordance with all, governing laws, regulations and
ordinances applicable thereto, Federal, state, local or foreign, and QPI is not
in violation of or in default under, any judgment, award, order, writ,
injunction or decree of any court, administrative agency, governmental body or
arbitration tribunal.
Very truly yours,
Russo & Baker, P.A.
31
EXHIBIT B-1
EMPLOYMENT AGREEMENT
AGREEMENT dated this ____ day of February, 1992, by and between
INTELLIGENT INFORMATION INCORPORATED, a Delaware corporation with principal
executive offices at 1315 Washington Blvd., Stamford, Connecticut 06902 ("III"),
and DENNIS H. ROLAND, residing at 2020 South Fairplay Street, Aurora, Colorado
80014-4526 ("Employee").
W I T N E S S E T H :
III is desirous of employing Employee, and Employee is desirous of
being employed by III, all upon the terms and subject to the conditions
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto, intending to be legally bound,
agree as follows:
1. Employment. III agrees to employ Employee, and Employee agrees to
be employed by III, upon the terms and subject to the conditions of this
Agreement.
2. Term. The employment of Employee by III as provided in Section 1
will be for a period of one (1) year commencing on the date hereof, unless
sooner terminated as hereinafter provided (the "Term"), and shall automatically
renew from year to year thereafter unless either party gives at least sixty (60)
days prior written notice of termination.
3. Duties; Best Efforts. Employee shall be responsible for creating
and improving paging company contracts for equipment and air time in support of
the delivery nationwide of the Quote Alert Service owned by III's wholly-owned
subsidiary Quotes Plus..., Inc. ("QPI") and shall perform such other duties and
responsibilities in reasonable support of the goals of III which may be assigned
to him from time to time by the Chief Executive Officer of III. Employee shall
devote substantially all of his business time, attention and energies to the
business and affairs of III, shall use his best efforts to advance the best
interests of III and shall not during the Term be actively engaged in any other
business activity in any way to the detriment of III, whether or not such
business activity is pursued for gain, profit or other pecuniary advantage.
4. Compensation.
(a) Base Salary. III shall pay to Employee a base salary (the "Base
Salary") at a rate of $42,000 per annum, payable in equal semi-monthly
installments during the Term.
32
(b) Out-of-Pocket-Expenses. III shall promptly pay to Employee the
reasonable expenses incurred by him in the performance of his duties hereunder,
including, without limitation, those incurred in connection with business
related travel or entertainment, or, if such expenses are paid directly by
Employee, shall promptly reimburse him for such payment, provided that Employee
properly accounts therefor.
(c) Participation in Benefit Plans. Employee shall be entitled to
participate in or receive benefits under any pension plan, profit sharing plan,
health and accident plan or any other employee benefit plan or arrangement made
available by III to its employees, with the minimum being a paid family health
plan.
(d) Vacation. Employee shall be entitled to two (2) weeks paid
vacation days during the Term, prorated in the event Employee is employed
hereunder for less than an entire year in accordance with the number of days in
such year during which he is so employed. Employee shall also be entitled to all
paid holidays given by III to its employees.
(e) Bonus. Employee shall receive a bonus of $4,500 for securing the
extension of the ongoing pilot programs with the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers, Inc.
and the Options Price Reporting Authority, of which $2,700 has been paid on the
date hereof and $l,800 shall be paid on March 27, 1992. In the event that such
pilot programs are not extended, then the amount of the bonus shall be set off
from the amounts payable to Employee pursuant to Section 1.2 of that certain
Stock Purchase Agreement dated the date hereof by and among III, Employee and
Michael J. Pryslak.
5. Termination. Employee's employment hereunder shall be terminated
upon Employee's death and may be terminated as follows:
(a) In the event that Employee hereafter (i) shall fail to comply
with any of the material terms of this Agreement, (ii) shall fail to perform his
duties hereunder, (iii) shall disregard policy directions from the President or
the Board of Directors of III, (iv) shall engage, in his capacity as an employee
of III, in gross misconduct injurious to III or (v) shall be convicted of a
crime involving moral turpitude.
(b) Upon not less than thirty (30) days' written notice in the event
that (i) Employee shall have become so incapacitated as to be unable to resume
within the ensuing six (6) months his employment hereunder by reason of physical
or mental illness or injury or (ii) Employee shall not have substantially
performed his duties hereunder for three (3) consecutive
-2-
33
months by reason of any such physical or mental illness or injury.
If Employee disputes any termination pursuant to this Section 5,
either Employee or III may seek to have such dispute adjudicated by arbitration
in accordance with the then existing rules of the American Arbitration
Association.
6. Covenant Regarding Inventions and Copyrights. Employee shall
disclose promptly to III any and all inventions, discoveries, improvements and
patentable or copyrightable works initiated, conceived or made by him, either
alone or in conjunction with others, during the Term and related to the business
or activities of III, and he assigns all of his interest therein to III or its
nominee; whenever requested to do so by III, Employee shall execute any and all
applications, assignments or other instruments which III shall deem necessary to
apply for and obtain letters patent or copyrights of the United States or any
foreign country, or otherwise protect III's interest therein. These obligations
shall continue beyond the conclusion of the Term with respect to inventions,
discoveries, improvements or copyrightable works initiated, conceived or made by
Employee during the Term and shall be binding upon Employee's assigns,
executors, administrators and other legal representatives.
7. Protection of Confidential Information. Employee acknowledges
that he has been and will be provided with information about, and his employment
by III will, throughout the Term, bring him into close contact with, many
confidential affairs of III, including proprietary information about costs,
profits, markets, sales, products, key personnel, pricing policies, operational
methods, technical processes and other business affairs and methods, plans for
future developments and other information not readily available to the public,
all of which are highly confidential and proprietary and all of which were
developed by III at great effort and expense. Employee further acknowledges that
the services to be performed by him under this Agreement are of a special,
unique, unusual, extraordinary and intellectual character, that the business of
III will be conducted throughout the world (the "Territory"), that its products
will be marketed throughout the Territory, that III competes and will compete in
nearly all of its business activities with other organizations which are located
in nearly any part of the Territory and that the nature of the relationship of
Employee with III is such that Employee is capable of competing with III from
nearly any location in the Territory. In recognition of the foregoing, Employee
covenants and agrees:
(i) That he will keep secret all confidential matters of III
and not disclose them to anyone outside of III, either during or after the Term,
except with III's prior written consent;
-3-
34
(ii) That he will not make use of any of such confidential
matters for his own purposes or the benefit of anyone other than III; and
(iii) That he will deliver promptly to III on termination of
this Agreement, or at any time III may so request, all confidential memoranda,
notes, records, reports and other confidential documents (and all copies
thereof) relating to the business of III, which he may then possess or have
under his control.
8. Restriction on Competition. In recognition of the considerations
described in Section 7 hereof and that the following covenant is a specific
condition for the purchase by III of all of the shares of the capital stock of
QPI owned by Employee, Employee covenants and agrees that, during the Term and
for a period of two (2) years thereafter, Employee will not, directly or
indirectly, (A) enter into the employ of, or render any services to, any person,
firm or corporation engaged in any business competitive with the business of III
or QPI in any part of the Territory in which III or QPI is actively engaged, or
proposes to engage, in business on the date of termination; (B) engage in any
such business for his own account; (C) become interested in any such business as
an individual, partner, shareholder, creditor, director, officer, principal,
agent, employee, trustee, consultant, advisor, franchisee or in any other
relationship or capacity; (D) contact or solicit, or attempt to contact or
solicit, any person, business or enterprise which has been contacted, orally or
in writing, by III or QPI as a potential customer on or prior to the date of
termination; or (E) hire, subcontract, employ or engage, or contact or solicit,
or attempt to contact or solicit, for the purpose of hiring, contracting,
employing or engaging, any person or entity who was an employee or subcontractor
of III or QPI on or prior to the date of termination; provided, however, that
(x) the provisions of clause (A) shall not be deemed to preclude Employee from
engagement by a corporation some of the activities of which are competitive with
the business of III or QPI if Employee's engagement does not relate, directly or
indirectly, to such competitive business and (y) nothing contained in this
Section 8 shall be deemed to prohibit Employee from acquiring or holding, solely
for investment, publicly traded securities of any corporation some of the
activities of which are competitive with the business of III so long as such
securities do not, in the aggregate, constitute more than 2% of any class or
series of outstanding securities of such corporation. Notwithstanding the
foregoing, in the event III commits a material breach of its obligations under
this Agreement and its obligations to make the payments specified in Section 1.2
of that certain Stock Purchase Agreement dated February __, 1992 by and among
III, Employee and Michael J. Pryslak, the restrictions set forth in this Section
8 shall terminate.
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35
9. Specific Remedies. If Employee commits a breach of any of the
provisions of Sections 6, 7 or 8 hereof, such violation shall be deemed to be
grounds for termination pursuant to Section 5(a) hereof and III shall have (i)
the right to have such provisions specifically enforced by any court having
equity jurisdiction, it being acknowledged and agreed that any such breach will
cause irreparable injury to III and that money damages will not provide an
adequate remedy to III, and (ii) the right to require Employee to account for
and pay over to III all compensation, profits, monies, accruals, increments and
other benefits (collectively "Benefits") derived or received by Employee as a
result of any transaction constituting a breach of any of the provisions of
Sections 6, 7 or 8, and Employee hereby agrees to account for and pay over such
Benefits to III.
10. Independence, Severability and Non-Exclusivity. Each of the
rights enumerated in Sections 6, 7 or 8 hereof and the remedies enumerated in
Section 9 hereof shall be independent of the others and shall be in addition to
and not in lieu of any other rights and remedies available to III at law or in
equity. If any of the covenants contained in Sections 6, 7 or 8, or any part of
any of them, is hereafter construed or adjudicated to be invalid or
unenforceable, the same shall not affect the remainder of the covenant or
covenants or rights or remedies which shall be given full effect without regard
to the invalid portions. The parties intend to and do hereby confer jurisdiction
to enforce the covenants contained in Sections 6, 7 or 8 and the remedies
enumerated in Section 9 upon the courts of any state of the United States and
any other governmental jurisdiction within the geographical scope of such
covenants. If any of the covenants contained in Sections 6, 7 or 8 is held to be
invalid or unenforceable because of the duration of such provision or the area
covered thereby, the parties agree that the court making such determination
shall have the power to reduce the duration and/or area of such provision and in
its reduced form said provision shall then be enforceable. No such holding of
invalidity or unenforceability in one jurisdiction shall bar or in any way
affect III's right to the relief provided in Section 9 or otherwise in the
courts of any other state or jurisdiction within the geographical scope of such
covenants as to breaches of such covenants in such other respective states or
jurisdictions, such covenants being, for this purpose, severable into diverse
and independent covenants.
11. Successors; Binding Agreement. This Agreement shall be binding
upon and inure to the benefit of, and be enforceable by, the parties hereto and
their respective personal or legal representatives, executors, administrators,
administrators cta, heirs, distributees, devisees, legatees, successors and
assigns.
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36
12. Notices. All notices, consents or other communications required
or permitted to be given by any party hereunder shall be in writing (including
telecopy or other similar writing) and shall be given by personal delivery,
certified or registered mail, postage prepaid, or telecopy (or other similar
writing) as follows:
To III:
1315 Washington Blvd.
Stamford, Connecticut
Attn: Mr. Robert N. Unnold
Chief Executive Officer
Telecopy: 800-554-9157
With a copy to:
Brown Raysman & Millstein
120 West 45th Street
New York, New York 10036
Attn: Michael Hirschberg, Esq.
Telecopy: 212-840-2429
To Employee:
2020 South Fairplay Street
Aurora, Colorado 80014-4526
Telecopy: 303-369-8791
With a copy to:
T. Michael Carrington, Esq.
3201 South Tamarac Drive, Suite 204
Denver, Colorado 80231
Telecopy: 303-745-1585
or at such other address or telecopy number (or other similar number) as either
party may from time to time specify to the other. Any notice, consent or other
communication required or permitted to be given hereunder shall have been deemed
to be given on the date of mailing, personal delivery or telecopy or other
similar means (provided the appropriate answerback is received) thereof and
shall be conclusively presumed to have been received on the second business day
following the date of mailing or, in the case of personal delivery or telecopy
or other similar means, the day of delivery thereof, except that a change of
address shall not be effective until actually received.
13. Modifications and Waivers. No term, provision or condition of
this Agreement may be modified or discharged unless such modification or
discharge is authorized by the Board of Directors of III and is agreed to in
writing and signed by
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37
Employee. No waiver by either party hereto of any breach by the other party
hereto of any term, provision or condition of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
14. Entire Agreement. This Agreement constitutes the entire
understanding between the parties hereto relating to the subject matter hereof,
superseding all negotiations, prior discussions, preliminary agreements and
agreements relating to the subject matter hereof made prior to the date hereof.
15. Law Governing. Except as otherwise explicitly noted, this
Agreement shall be governed by and construed in accordance with the laws of the
State of New York (without giving effect to conflicts of law).
16. Invalidity. Except as otherwise specified herein, the invalidity
or unenforceability of any term or terms of this Agreement shall not invalidate,
make unenforceable or otherwise affect any other term of this Agreement which
shall remain in full force and effect.
17. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
18. Attorneys' Fees. In the event of any litigation hereunder, the
prevailing party shall be entitled to recover the reasonable attorneys' fees and
other costs incident to such litigation, including appeals, from the losing
party.
19. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year set forth above.
INTELLIGENT INFORMATION INCORPORATED
By: _____________________________________
` Robert M. Unnold
Chief Executive Officer
_________________________________
Dennis M. Roland
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38
EXHIBIT B-2
EMPLOYMENT AGREEMENT
AGREEMENT dated this ____ day of February, 1992, by and between
INTELLIGENT INFORMATION INCORPORATED, a Delaware corporation with principal
executive offices at 1315 Washington Blvd., Stamford, Connecticut 06902 ("III"),
and MICHAEL J. PRYSLAK, residing at 10850 SW 42nd Street, Miami, Florida 33165
("Employee").
W I T N E S S E T H :
III is desirous of employing Employee, and Employee is desirous of
being employed by III, all upon the terms and subject to the conditions
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto, intending to be legally bound,
agree as follows:
1. Employment. III agrees to employ Employee, and Employee agrees to
be employed by III, upon the terms and subject to the conditions of this
Agreement.
2. Term. The employment of Employee by III as provided in Section 1
will be for a period of one (1) year commencing on the date hereof, unless
sooner terminated as hereinafter provided (the "Term"), and shall automatically
renew from year to year thereafter unless either party gives at least sixty (60)
days prior written notice of termination.
3. Duties; Best Efforts. Employee shall be responsible for
maintaining and enhancing the Quote Alert System owned by III's wholly-owned
subsidiary Quotes Plus..., Inc. ("QPI") and shall perform such other duties and
responsibilities in reasonable support of the goals of III which may be assigned
to him from time to time by the Chief Executive Officer of III. Employee shall
devote an average of twenty (20) hours per week, during normal business hours,
to the business and affairs of III and shall use his best efforts to advance the
best interests of III.
4. Compensation.
(a) Base Salary. III shall pay to Employee a base salary (the "Base
Salary") at a rate of $24,000 per annum, payable in equal semi-monthly
installments during the Term.
(b) Out-of-Pocket-Expenses. III shall promptly pay to Employee the
reasonable expenses incurred by him in the performance of his duties hereunder,
including, without limitation, those incurred in connection with business
related travel or entertainment, or, if such expenses are paid directly by
Employ-
39
ee, shall promptly reimburse him for such payment, provided that Employee
properly accounts therefor.
(c) Participation in Benefit Plans. Employee shall be entitled to
participate in or receive benefits under any pension plan, profit sharing plan,
health and accident plan or any other employee benefit plan or arrangement made
available by III to its employees, with the minimum being a paid family health
plan.
(d) Bonus. Employee shall receive a bonus of $5,000 in the event
that QPI secures the extension of the ongoing pilot programs with the New York
Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc. and the Options Price Reporting Authority.
5. Termination. Employee's employment hereunder shall be terminated
upon Employee's death and may be terminated as follows:
(a) In the event that Employee hereafter (i) shall fail to comply
with any of the material terms of this Agreement, (ii) shall fail to perform his
duties hereunder, (iii) shall disregard policy directions from the President or
the Board of Directors of III, (iv) shall engage, in his capacity as an employee
of III, in gross misconduct injurious to III or (v) shall be convicted of a
crime involving moral turpitude.
(b) Upon not less than thirty (30) days' written notice in the event
that (i) Employee shall have become so incapacitated as to be unable to resume
within the ensuing six (6) months his employment hereunder by reason of physical
or mental illness or injury or (ii) Employee shall not have substantially
performed his duties hereunder for three (3) consecutive months by reason of any
such physical or mental illness or injury.
If Employee disputes any termination pursuant to this Section 5,
either Employee or III may seek to have such dispute adjudicated by arbitration
in accordance with the then existing rules of the American Arbitration
Association.
6. Covenant Regarding Inventions and Copyrights. Employee shall
disclose promptly to III any and all inventions, discoveries, improvements and
patentable or copyrightable works initiated, conceived or made by him, either
alone or in conjunction with others, during the Term and related to the business
or activities of III, and he assigns all of his interest therein to III or its
nominee; whenever requested to do so by III, Employee shall execute any and all
applications, assignments or other instruments which III shall deem necessary to
apply for and obtain letters patent or copyrights of the United States or any
foreign country, or otherwise protect III's interest therein.
-2-
40
These obligations shall continue beyond the conclusion of the Term with respect
to inventions, discoveries, improvements or copyrightable works initiated,
conceived or made by Employee during the Term and shall be binding upon
Employee's assigns, executors, administrators and other legal representatives.
7. Protection of Confidential Information. Employee acknowledges
that he has been and will be provided with information about, and his employment
by III will, throughout the Term, bring him into close contact with, many
confidential affairs of III, including proprietary information about costs,
profits, markets, sales, products, key personnel, pricing policies, operational
methods, technical processes and other business affairs and methods, plans for
future developments and other information not readily available to the public,
all of which are highly confidential and proprietary and all of which were
developed by III at great effort and expense. Employee further acknowledges that
the services to be performed by him under this Agreement are of a special,
unique, unusual, extraordinary and intellectual character, that the business of
III will be conducted throughout the world (the "Territory"), that its products
will be marketed throughout the Territory, that III competes and will compete in
nearly all of its business activities with other organizations which are located
in nearly any part of the Territory and that the nature of the relationship of
Employee with III is such that Employee is capable of competing with III from
nearly any location in the Territory. In recognition of the foregoing, Employee
covenants and agrees:
(i) That he will keep secret all confidential matters of III
and not disclose them to anyone outside of III, either during or after the Term,
except with III's prior written consent;
(ii) That he will not make use of any of such confidential
matters for his own purposes or the benefit of anyone other than III; and
(iii) That he will deliver promptly to III on termination of
this Agreement, or at any time III may so request, all confidential memoranda,
notes, records, reports and other confidential documents (and all copies
thereof) relating to the business of III, which he may then possess or have
under his control.
8. Restriction on Competition. In recognition of the considerations
described in Section 7 hereof and that the following covenant is a specific
condition for the purchase by III of all of the shares of the capital stock of
QPI owned by Employee, Employee covenants and agrees that, during the Term and
for a period of two (2) years thereafter, Employee will not, directly or
indirectly, (A) enter into the employ of, or render any
-3-
41
services to, any person, firm or corporation engaged in any business competitive
with the business of III or QPI in any part of the Territory in which III or QPI
is actively engaged, or proposes to engage, in business on the date of
termination; (B) engage in any such business for his own account; (C) become
interested in any such business as an individual, partner, shareholder,
creditor, director, officer, principal, agent, employee, trustee, consultant,
advisor, franchisee or in any other relationship or capacity; (D) contact or
solicit, or attempt to contact or solicit, any person, business or enterprise
which has been contacted, orally or in writing, by III or QPI as a potential
customer on or prior to the date of termination; or (E) hire, subcontract,
employ or engage, or contact or solicit, or attempt to contact or solicit, for
the purpose of hiring, contracting, employing or engaging, any person or entity
who was an employee or subcontractor of III or QPI on or prior to the date of
termination; provided, however, that (x) the provisions of clause (A) shall not
be deemed to preclude Employee from engagement by a corporation some of the
activities of which are competitive with the business of III or QPI if
Employee's engagement does not relate, directly or indirectly, to such
competitive business and (y) nothing contained in this Section 8 shall be deemed
to prohibit Employee from acquiring or holding, solely for investment, publicly
traded securities of any corporation some of the activities of which are
competitive with the business of III so long as such securities do not, in the
aggregate, constitute more than 2% of any class or series of outstanding
securities of such corporation. Notwithstanding the foregoing, in the event III
commits a material breach of its obligations under this Agreement and its
obligations to make the payments specified in Section 1.2 of that certain Stock
Purchase Agreement dated February __, 1992 by and among III, Employee and Dennis
M. Roland, the restrictions set forth in this Section 8 shall terminate.
9. Specific Remedies. If Employee commits a breach of any of the
provisions of Sections 6, 7 or 8 hereof, such violation shall be deemed to be
grounds for termination pursuant to Section 5(a) hereof and III shall have (i)
the right to have such provisions specifically enforced by any court having
equity jurisdiction, it being acknowledged and agreed that any such breach will
cause irreparable injury to III and that money damages will not provide an
adequate remedy to III, and (ii) the right to require Employee to account for
and pay over to III all compensation, profits, monies, accruals, increments and
other benefits (collectively "Benefits") derived or received by Employee as a
result of any transaction constituting a breach of any of the provisions of
Sections 6, 7 or 8, and Employee hereby agrees to account for and pay over such
Benefits to III.
10. Independence, Severability and Non-Exclusivity. Each of the
rights enumerated in Sections 6, 7 or 8 hereof and
-4-
42
the remedies enumerated in Section 9 hereof shall be independent of the others
and shall be in addition to and not in lieu of any other rights and remedies
available to III at law or in equity. If any of the covenants contained in
Sections 6, 7 or 8, or any part of any of them, is hereafter construed or
adjudicated to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants or rights or remedies which shall be
given full effect without regard to the invalid portions. The parties intend to
and do hereby confer jurisdiction to enforce the covenants contained in Sections
6, 7 or 8 and the remedies enumerated in Section 9 upon the courts of any state
of the United States and any other governmental jurisdiction within the
geographical scope of such covenants. If any of the covenants contained in
Sections 6, 7 or 8 is held to be invalid or unenforceable because of the
duration of such provision or the area covered thereby, the parties agree that
the court making such determination shall have the power to reduce the duration
and/or area of such provision and in its reduced form said provision shall then
be enforceable. No such holding of invalidity or unenforceability in one
jurisdiction shall bar or in any way affect III's right to the relief provided
in Section 9 or otherwise in the courts of any other state or jurisdiction
within the geographical scope of such covenants as to breaches of such covenants
in such other respective states or jurisdictions, such covenants being, for this
purpose, severable into diverse and independent covenants.
11. Successors; Binding Agreement. This Agreement shall be binding
upon and inure to the benefit of, and be enforceable by, the parties hereto and
their respective personal or legal representatives, executors, administrators,
administrators cta, successors, heirs, distributees, devisees, legatees,
successors and assigns.
12. Notices. All notices, consents or other communications required
or permitted to be given by any party hereunder shall be in writing (including
telecopy or other similar writing) and shall be given by personal delivery,
certified or registered mail, postage prepaid, or telecopy (or other similar
writing) as follows:
To III:
1315 Washington Blvd.
Stamford, Connecticut
Attn: Mr. Robert M. Unnold
Chief Executive Officer
Telecopy: 800-554-9157
-5-
43
With a copy to:
Brown Raysman & Millstein
120 West 45th Street
New York, New York 10036
Attn: Michael Hirschberg, Esq.
Telecopy: 212-840-2429
To Employee:
10850 SW 42nd Street
Miami, Florida 33165
Telecopy: 305-223-5671
With a copy to:
Edmund P. Russo, Esq.
Russo & Baker, P.A.
4675 Ponce de Leon Blvd., Suite 301
Coral Gables, Florida 33146
Telecopy: (305) 665-4011
or at such other address or telecopy number (or other similar number) as either
party may from time to time specify to the other. Any notice, consent or other
communication required or permitted to be given hereunder shall have been deemed
to be given on the date of mailing, personal delivery or telecopy or other
similar means (provided the appropriate answerback is received) thereof and
shall be conclusively presumed to have been received on the second business day
following the date of mailing or, in the case of personal delivery or telecopy
or other similar means, the day of delivery thereof, except that a change of
address shall not be effective until actually received.
13. Modifications and Waivers. No term, provision or condition of
this Agreement may be modified or discharged unless such modification or
discharge is authorized by the Board of Directors of III and is agreed to in
writing and signed by Employee. No waiver by either party hereto of any breach
by the other party hereto of any term, provision or condition of this Agreement
to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time.
14. Entire Agreement. This Agreement constitutes the entire
understanding between the parties hereto relating to the subject matter hereof,
superseding all negotiations, prior discussions, preliminary agreements and
agreements relating to the subject matter hereof made prior to the date hereof.
15. Law Governing. Except as otherwise explicitly noted, this
Agreement shall be governed by and construed in
-6-
44
accordance with the laws of the State of New York (without giving effect to
conflicts of law).
16. Invalidity. Except as otherwise specified herein, the invalidity
or unenforceability of any term or terms of this Agreement shall not invalidate,
make unenforceable or otherwise affect any other term of this Agreement which
shall remain in full force and effect.
17. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
18. Attorneys' Fees. In the event of any litigation hereunder, the
prevailing party shall be entitled to recover the reasonable attorneys' fees and
other costs incident to such litigation, including appeals, from the losing
party.
19. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year set forth above.
INTELLIGENT INFORMATION INCORPORATED
By:______________________________________
Robert M. Unnold
Chief Executive Officer
______________________________________
Michael J. Pryslak
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45
EXHIBIT C
RELEASE
In consideration for the acquisition by Intelligent Information
Incorporated ("III") of all of the shares of capital stock of Quotes, Plus. . .,
Inc. ("QPI") owned by the undersigned and for other good and valuable
consideration, receipt of which is hereby acknowledged, the undersigned hereby
fully and forever releases, remises and discharges QPI and its successors and
assigns from any and all claims that the undersigned has had, may have had or
now has against QPI for or by reason of any matter, cause or thing whatsoever.
The undersigned represents and warrants that he has not assigned or
in any other way conveyed, transferred or encumbered all or any portion of the
claims or rights covered by this Release.
IN WITNESS WHEREOF, the undersigned has duly executed this Release
this 27th day of February, 1992.
______________________________________
Michael J. Pryslak
Sworn to before me this
27th day of February, 1992
_____________________________
Notary Public
46
RELEASE
In consideration for the acquisition by Intelligent Information
Incorporated ("III") of all of the shares of capital stock of Quotes, Plus. .
., Inc. ("QPI") owned by the undersigned and for other good and valuable
consideration, receipt of which is hereby acknowledged, the undersigned hereby
fully and forever releases, remises and discharges QPI and its successors and
assigns from any and all claims that the undersigned has had, may have had or
now has against QPI for or by reason of any matter, cause or thing whatsoever.
The undersigned represents and warrants that he has not assigned or
in any other way conveyed, transferred or encumbered all or any portion of the
claims or rights covered by this Release.
IN WITNESS WHEREOF, the undersigned has duly executed this Release
this 27th day of February, 1992.
______________________________________
Dennis M. Roland
Sworn to before me this
27th day of February, 1992
____________________________
Notary Public
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47
EXHIBIT D
February __, 1992
Mr. Michael Jr. Pryslak
10850 SW 42nd Street
Miami, Florida 33165
Mr. Dennis M. Roland
2020 South Fairplay Street
Aurora, Colorado 80014-4526
Re: Stock Purchase Agreement by and among Intelligent Information
Incorporated, Michael J. Pryslak and Dennis M. Roland
Gentlemen:
We are counsel to Intelligent Information Incorporated, a Delaware
corporation ("III"), in connection with that certain Stock Purchase Agreement
(the "Agreement") dated February __, 1992 by and among III, Michael J. Pryslak
and Dennis Roland (the "Sellers"), and in connection with the consummation of
the transactions contemplated by the Agreement.
In so acting and as a basis for the opinions expressed below, we
have examined executed copies of the Agreement and the documents delivered in
connection with the Agreement (the "Documents"), certified copies of the
Certificate of Incorporation and By-Laws of III, minutes of the meetings of the
Board of Directors and stockholders of III and original or photostatic copies of
such other records and other documents as we have deemed relevant and necessary
for the opinions hereinafter set forth. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to original documents of all documents submitted
to us as certified or photostatic copies. As to various questions of fact
material to such opinions, we have relied upon certificates of officers of III
and certificates of public officials of the State of Delaware.
For purposes of the opinions expressed below, we have assumed that
the Sellers have all requisite power and authority and have taken all necessary
action to authorize, execute and deliver the Agreement and to consummate the
transactions contemplated thereby.
48
Michael J. Pryslak -2- February __, 1992
Dennis M. Roland
Terms which are not otherwise defined herein have the respective
meanings ascribed to them in the Agreement.
Based upon and subject to the foregoing, we are of the opinion that:
(1) III is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has the corporate
power to own or lease its properties and assets and to carry on its business as
now conducted.
(2) III has full corporate power and authority to execute and
deliver the Agreement and the Documents and to carry out the transactions
contemplated thereby. III has duly authorized the execution and delivery of the
Agreement and the Documents and the transactions contemplated thereby, and no
other corporate proceedings on the part of III are necessary to authorize the
Agreement and the Documents and the transactions contemplated thereby. The
Agreement and the Documents have been duly executed and delivered by III and
constitute the valid and binding obligation of III enforceable against it in
accordance with their respective terms, except to the extent that such
enforcement may be limited by any applicable bankruptcy, reorganization,
insolvency and other similar laws affecting the enforcement of creditors' rights
generally and except as such terms may be limited by the application of such
general principles of equity as a court with proper jurisdiction may apply.
(3) The execution, delivery and performance of the Agreement and the
Documents and the consummation of the transactions contemplated thereby will not
result in a breach in the terms or conditions of, or constitute a default under,
or violate, as the case may be: (a) any provision of any law, regulation or
ordinance, (b) the Certificate of Incorporation or By-Laws of III, (c) any
agreement, lease, mortgage or other instrument or undertaking, oral or written,
of which we are aware, to which III is a party or by which it or its properties
or assets is or may be bound or affected or (d) any judgment, order, writ,
injunction or decree of any court, administrative agency or governmental body.
We are counsel admitted to practice only in the State of New York,
and we express no opinion as to the applicable laws of any jurisdiction other
than those of the State of New York and the United States of America and the
General Corporation Law of the State of Delaware. This opinion has been
delivered for your
49
Michael J. Pryslak -3- February __, 1992
Dennis M. Roland
use only in connection with the consummation of the transactions contemplated by
the Agreement and may not be relied upon by any other person.
Very truly yours,
BROWN RAYSMAN & MILLSTEIN
50
EXHIBIT E
ASSIGNMENT OF PROPRIETARY PROPERTY
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, MICHAEL J. PRYSLAK and DENNIS M. ROLAND (the
"Assignors"), pursuant to that certain Stock Purchase Agreement dated February
27, 1992 by and among Intelligent Information Incorporated and the Assignors
(the "Agreement"), hereby sell, convey, transfer, assign and deliver to QUOTES,
PLUS. . ., INC. (the "Company") all of Assignors' right, title and interest in
and to the proprietary property more particularly described in Section 2.7 to
the Agreement and the related Schedule thereto (the "Proprietary Property"),
including, but not limited to, the following:
(i) the computer software program, routines and components
known collectively as the "Quote Alert System" and all programs, routines
and components relating thereto, including, but not limited to, all
present and predecessor versions of such programs, routines and components
(whether or not actually marketed), related source and object code, all
specifications, documentation and written descriptions of such programs,
products or components thereof, in each case owned by the Assignors and
used in the business of the Company (the "Programs");
(ii) all trade names and trade and service marks and
applications and licenses relating to the Programs, and all writings
relating to the Programs for which copyright is claimed, including, but
not limited to, (A) the pending trademark/service mark application for the
mark "Quote Alert" which was filed by Michael J. Pryslak on October 18,
1990 with the United States Patent and Trademark Office, and now assigned
Serial Number 74/10B661 and (B) the Certificate of Copyright Registration,
Registration Number TX 2-787-062, effective March 3, 1990, issued by the
United States Copyright Office to the Company; and
(iii) any and all other technical knowledge, proprietary
rights, patented or unpatented inventions, trade secrets, analytical
methodology, processes, data and all other information or experience
possessed by the Assignors relating to the Programs or which the Assignors
have the right to use, including, but not limited to, specifications,
documents and written descriptions, user guides and interfaces,
installation guides, narrative descriptions, screen and file layouts,
logic flow diagrams, command sequences, source and load modules, output
reports, test or other data, test programs, and other necessary
information that is owned or used by the Assignors in connection with the
Company's business.
51
This Assignment may be executed in counterparts, each of which shall
be deemed to be an original but all of which together shall constitute but one
and the same instrument.
This Assignment shall be binding upon and inure to the benefit of
the Assignors and the Company and their respective heirs, successors and
assigns.
This Assignment shall be governed by and construed in accordance
with the laws of the State of New York (without giving effect conflicts of
laws).
If any provision of this Assignment is held invalid or
unenforceable, the remainder of this Assignment and the application of provision
to persons or circumstances other than those to which it is held invalid or
unenforceable shall not be affected thereby.
The Assignors agree, without additional compensation, to assist the
Company in claiming, perfecting and recording the assignment of the rights
granted hereunder, including, without limitation, executing additional documents
as requested by the Company.
The Assignors hereby constitute and appoint the Company and its
successors and assigns as the Assignors' true and lawful attorney-in-fact, with
full power of substitution, to take any appropriate action in connection with
said Proprietary Property, in the Company's name and stead, it being understood
that the foregoing powers are coupled with an interest and are and shall be
irrevocable.
IN WITNESS WHEREOF, the undersigned have duly executed this
Assignment on this 27th day of February, 1992.
_________________________________________
Michael J. Pryslak
_________________________________________
Dennis M. Roland
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