ON THIS WAIVER IN ANY RELATED
FUTURE DEALINGS BETWEEN ANY SELLER AND PURCHASER.
THE SELLERS AND PURCHASER
FURTHER WARRANT AND REPRESENT THAT THEY EACH KNOWINGLY AND VOLUNTARILY WAIVE
THEIR RESPECTIVE JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
(K)
HEADINGS.
SECTION HEADINGS HEREIN ARE INCLUDED HEREIN FOR
CONVENIENCE OF REFERENCE ONLY AND SHALL NOT CONSTITUTE A PART HEREOF FOR ANY
OTHER PURPOSE OR BE GIVEN ANY SUBSTANTIVE EFFECT.
(L)
SEVERABILITY OF PROVISIONS.
IN THE EVENT THAT ANY PROVISION OF
THIS AGREEMENT IS DEEMED TO BE INVALID BY REASON OF THE OPERATION OF ANY LAW OR
BY REASON OF THE INTERPRETATION PLACED THEREON BY ANY COURT, THIS AGREEMENT
SHALL BE CONSTRUED AS NOT CONTAINING SUCH PROVISION, THE INVALIDITY OF SUCH
PROVISION WILL NOT AFFECT THE VALIDITY OF ANY OTHER PROVISION OF THIS AGREEMENT
AND ALL OTHER PROVISIONS OF THIS AGREEMENT WHICH ARE OTHERWISE LAWFUL AND VALID
SHALL REMAIN IN FULL FORCE AND EFFECT.
(M)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN MULTIPLE
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL, AND ALL OF WHICH
TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
DELIVERY OF AN EXECUTED
COUNTERPART OF THIS AGREEMENT BY FACSIMILE OR
12
EMAIL SHALL BE EQUALLY AS EFFECTIVE AS DELIVERY OF AN ORIGINAL EXECUTED
COUNTERPART OF THIS AGREEMENT.
(N)
SETOFF.
EACH SELLER HEREBY AGREES THAT PURCHASER IS AUTHORIZED AT
ANY TIME OR FROM TIME TO TIME, UPON TEN (10) BUSINESS DAYS WRITTEN NOTICE TO
SELLER (OR ONE (1) BUSINESS DAY NOTICE IF THE APLA HAS BEEN TERMINATED), TO
SETOFF AND TO APPROPRIATE AND APPLY ANY AND ALL AMOUNTS HELD BY PURCHASER FOR
THE ACCOUNT OF SELLER (INCLUDING, WITHOUT LIMITATION, ANY PURCHASE PRICE)
AGAINST AND ON ACCOUNT OF ANY AMOUNTS DUE AND OWING TO PURCHASER BY ANY SELLER
AT ANY TIME, INCLUDING, WITHOUT LIMITATION, AMOUNTS DUE AND OWING TO PURCHASER
UNDER THE OTHER TRANSACTION DOCUMENTS.
(Signature Page Follows)
13
IN WITNESS WHEREOF, each of the Sellers and Purchaser has caused this Asset
Purchase Agreement to be executed by their respective duly authorized officers
as of the day first written above.
THE SELLERS:
DYNTEK, INC.
By
Name:
Title:
DYNTEK SERVICES, INC.
By
Name:
Title:
PURCHASER:
NEW ENGLAND TECHNOLOGY FINANCE, LLC
By
Name:
Title:
ANNEX A
Purchased Accounts
(see attached)
SCHEDULE I
Addresse(s)
19700 Fairchild Road, Suite 350
Irvine, CA 92612
24401 Halstead Road
Farmington Hills, Michigan 48335
SCHEDULE II
Schedule of Exceptions
EXHIBIT A
FORM OF
PURCHASE SUPPLEMENT
This Purchase Supplement, dated as of [
], 200[
] (this "Purchase
Supplement"), is delivered pursuant to that certain Asset Purchase Agreement,
dated as of
, 2005 (as amended, restated, supplemented or
otherwise modified from time to time, the "Agreement") from Dyntek, Inc., a
Delaware corporation, and Dyntek Services, Inc., a Delaware corporation
(collectively, the "Sellers"), to New York Technology Finance, LLC, a Delaware
limited liability company, as purchaser ("Purchaser").
Capitalized terms used
herein but not otherwise defined herein shall have the meanings ascribed thereto
in the Agreement.
Pursuant to Section 1(b) of the