EXHIBIT 10.13
ASSET PURCHASE AGREEMENT
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BY AND AMONG
PARKERVISION, INC.
AND
SIGNAL TECHNOLOGIES INC.
AND
XXXXXXX XXXXXXX AND XXXXX XXXXXXX
DATED AS OF MARCH 2, 2000
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ASSET PURCHASE AGREEMENT
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ASSET PURCHASE AGREEMENT, dated as of March 2, 2000, by and among
XXXXXXX XXXXXXX and XXXXX XXXXXXX (together "Xxxxxxx"), SIGNAL TECHNOLOGIES,
INC., a Florida corporation ("Seller"), and PARKERVISION, INC., a Florida
corporation ("Purchaser").
W I T N E S S E T H:
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WHEREAS, Seller is engaged in the business of providing electronic and
wireless engineering consulting services to various entities on a work for hire
basis; and
WHEREAS, Seller desires to sell to Purchaser and Purchaser desires to
purchase from Seller all the assets of the Seller used in its business, upon the
terms and subject to the conditions set forth herein; and
WHEREAS, the Xxxxxxx are the owners of all of the shares of capital
stock of Seller and Xxxxxxx Xxxxxxx has been the chief executive officer of
Seller; and
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, Xxxxxxx, Seller and Purchaser
hereby agree as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings:
"ACTION" means any claim, action, suit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
"AFFILIATE" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with, such specified
Person.
"AFFILIATED PARTY TRANSACTION" means any agreement, arrangement or
transaction with any of its managers, members or with any relative of such
Person or any Affiliate of them.
"AGREEMENT" or "THIS AGREEMENT" means this Asset Purchase Agreement,
dated as of March 2, 2000, among Xxxxxxx, Seller and Purchaser (including all of
the Exhibits and Schedules hereto), and all amendments hereto made in accordance
with the provisions of Section 9.1(e).
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other
day on which banks are required or authorized by law to be closed in The City of
New York.
"CODE" means the Internal Revenue Code of 1986, as the same may be
amended from time to time.
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"CONTROL" (including the terms "controlling", "controlled by" and
"under common control with"), with respect to the relationship between or among
two or more Persons, means the possession, directly or indirectly or as trustee
or executor, of the power to direct or cause the direction of the affairs or
management of a Person, whether through the ownership of voting securities, as
trustee or executor, by contract or otherwise, including, without limitation,
the ownership, directly or indirectly, of securities having the power to elect a
majority of the board of directors or similar body governing the affairs of such
Person.
"DOLLARS" and "$" means the lawful currency of the United States of
America.
"ENCUMBRANCE(S)" means any security interest, pledge, mortgage, lien
(including, without limitation, environmental and tax liens), charge,
encumbrance, adverse claim, preferential arrangement with a creditor or
restriction of any kind, including, without limitation, any restriction on the
use, voting, transfer, receipt of income or other exercise of any attributes of
ownership.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GOVERNMENTAL AUTHORITY" means any United States federal, state or
local or any foreign government, governmental, regulatory or administrative
authority, agency or commission or any court, tribunal (mediation, alternative
dispute resolution or otherwise) or judicial or arbitral body.
"GOVERNMENTAL ORDER" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any Governmental
Authority.
"INDEBTEDNESS" means, with respect to any Person, (a) all indebtedness
of such Person, whether or not contingent, for borrowed money or for the
deferred purchase price of property or services, except trade accounts payable
and accrued liabilities that arise in the ordinary course of business, (b) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (c) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (d) all obligations of such Person as lessee under
leases that have been or should be, in accordance with GAAP, recorded as capital
leases, (e) all obligations, contingent or otherwise, of such Person under
letters of credit, guaranties or similar facilities or agreements, (f) all
obligations of such Person to purchase, redeem, retire, defease or otherwise
acquire for value any capital stock of such Person or any warrants, rights or
options to acquire such capital stock, and (g) all indebtedness referred to in
clauses (a) through (e) above secured by any Encumbrance on property (including,
without limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Indebtedness.
"INTELLECTUAL PROPERTY" means (a) inventions, whether or not
patentable, (b) national (including the United States) and multinational
statutory invention registrations, patents, patent registrations and patent
applications and all rights therein provided by international treaties or
conventions and all improvements to the inventions disclosed in each such
registration, patent or application, (c) trademarks, service marks, trade dress,
logos, trade names, brand names and corporate names, whether or not registered,
including all common law rights, and registrations and applications for
registration thereof, and the goodwill of Seller relating thereto; (d)
copyrights (registered or otherwise) and registrations and applications for
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registration thereof, (e) computer software, including, without limitation,
source codes, operating systems and specifications, data, databases, files,
documentation and other materials related thereto, (f) trade secrets and
confidential, technical and business information, (g) whether or not
confidential, technology (including know-how), manufacturing and production
processes and techniques, procedures and processes owned by Seller, research and
development information, financial, marketing and business data, pricing and
cost information, business and marketing plans and customer and supplier lists
and information, (h) trade secrets of Seller, (i) ASIC design cells, (j) copies
and tangible embodiments of all the foregoing, (k) all rights to obtain and
rights to apply for patents, and to register trademarks and copyrights and to
register domain names, (l) all rights to xxx or recover and retain damages and
costs and attorneys' fees for present and past infringement of any of the
foregoing, in each case used primarily in, or relating to, the operation of the
business of Seller, and (m) domain names and URL's of or relating to the
Company, but not the names "Signal Technologies, Inc.," "STI" and variations of
these names.
"IRS" means the Internal Revenue Service of the United States or any
successor agency.
"LAW" means any federal, state, local or foreign statute, law,
ordinance, regulation, rule, code, order, other requirement or rule of law.
"LIABILITIES" means any and all debts (including all Indebtedness),
liabilities and obligations, whether accrued or fixed, absolute or contingent,
matured or unmatured or determined or determinable, including, without
limitation, those arising under any Law, Action or Governmental Order and those
arising under any contract, agreement, arrangement, commitment or undertaking.
"MATERIAL ADVERSE EFFECT" means any circumstance, change in, or effect
on the Acquired Assets or Seller that, individually or together with any other
circumstances: (a) is, or is reasonably likely to be, materially adverse to the
business, results of operations, business or financial prospects, condition
(financial or otherwise), employee relationships or customer or supplier
relationships of Seller or its operations, the Acquired Assets or Liabilities.
"PERMITTED ENCUMBRANCES" means imperfections or exceptions to title,
if any, as do not, and could not reasonably be expected to, individually or in
the aggregate, materially diminish the value of any material Acquired Asset,
materially interfere with the alienability, financeability, ownership, use,
occupancy or operation of any such property, or materially impair or interfere
with the operations of the business of Seller.
"PERSON" means any individual, partnership, firm, corporation, limited
liability company, association, trust, unincorporated organization or other
entity, as well as any syndicate or group that would be deemed to be a "person"
under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.
"RECEIVABLES" means any and all accounts receivable, notes and other
accounts receivable by Seller or Affiliates from third parties, billed or
unbilled arising exclusively from the conduct of the business of Seller before
the Closing Date.
"SEC" means the Securities and Exchange Commission.
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"SEC REPORTS" means those reports filed by the Purchaser in compliance
with the Exchange Act, including, but not limited to, Forms 10-K, 10-Q and 8-K
and proxy statement.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLER'S TRANSACTION COSTS" shall mean costs and expenses paid or
accrued to third parties by Seller in connection with the transactions
contemplated by this Agreement.
"TAX" or "TAXES" means federal, state, local or foreign (A) any and
all taxes, fees, levies, duties, tariffs, imposts, and other charges of any kind
(together with any and all interest, penalties, additions to and additional
amounts imposed with respect thereto) imposed by any government or taxing
authority, including, without limitation: taxes or other charges on or with
respect to income, franchises, windfall or other profits, gross receipts,
property, sales, use, capital stock, payroll, employment, social security,
disability, workers' compensation, unemployment compensation, natural resources,
occupation or net worth; taxes or other charges in the nature of excise,
withholding, ad valorem, stamp, transfer, value added, alternative minimum or
gains taxes or other tax of any kind whatsoever; license, registration and
documentation fees, and customs duties, tariffs, and similar charges and (B)
liability of Seller for the payment of any amounts of the type described in
clause (A) as a result of any express or implied obligation to indemnify or
otherwise assume or succeed to the liability of any other person.
"TAX RETURNS" means returns, declarations, reports, claims for refund,
information returns or other documents (including any related or supporting
schedules, statements or information) filed or required to be filed in
connection with the determination, assessment or collection of Taxes of any
party or the administration of any laws, regulations or administrative
requirements relating to any Taxes.
"TRANSACTION COSTS" means the costs of Seller's attorneys, accountants
and other agents employed by Seller in connection with this Agreement and the
Transaction Documents.
"TRANSACTION DOCUMENTS" means this Agreement and the other agreements,
certificates, documents and instruments executed and delivered by a party in
connection with the transactions contemplated hereby.
ARTICLE II
PURCHASE AND SALE
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SECTION 2.1 PURCHASE AND SALE OF ACQUIRED ASSETS; EXCLUDED ASSETS.
(a) PURCHASE AND SALE OF ACQUIRED ASSETS. Except as otherwise provided
in Section 2.1(b), pursuant to the terms and subject to the conditions set forth
in this Agreement, at the Closing, Seller shall sell, assign, transfer, convey
and deliver to Purchaser and Purchaser shall purchase and accept from Seller,
all of Seller's right, title and interest in, to the following assets as they
exist at the Closing Date (collectively the "Acquired Assets") used in or being
part of the business of the Seller:
(i) all items of Seller's tangible personal property set forth on
SCHEDULE 2.1(A)(I) (collectively "Tangible Personal Property");
(ii) Intellectual Property of Seller set forth on SCHEDULE
2.1(A)(II);
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(iii) accounts receivable of Seller from Purchaser ("ParkerVision
Accounts Receivable");
(iv) all prepaid expenses and deposits of Seller set forth on
SCHEDULE 2.1(A)(IV) (collectively "Prepaid Expenses");
(v) all contracts relating to the Tangible Personal Property,
Intellectual Property, ParkerVision Accounts and Prepaid Expenses ("Assigned
Contracts") set forth on SCHEDULE 2.1(A)(V);
(vi) all general, financial and other records, computer software
programs and data bases (including source codes), correspondence and other
files, operating data, and documents of Seller relating to or used with the
Tangible Personal Property, Intellectual Property, ParkerVision Accounts
Receivable, and Prepaid Expenses;
(vii) all claims, warranty rights, causes of action, chooses in
action, rights of recovery and rights of set-off of Seller of any kind
pertaining to or arising out of the Tangible Personal Property, Intellectual
Property, ParkerVision Accounts Receivable and Prepaid Expenses; and;
(viii) all rights to goods and services and all other economic
benefits arising out of prepayments, payments in advance and deposits by Seller
to the extent related to the Tangible Personal Property, Intellectual Property,
ParkerVision Accounts Receivable and Prepaid Expenses but excluding prepaid
taxes;
(b) EXCLUDED ASSETS. Notwithstanding anything to the contrary
contained in Section 2.1(a), it is expressly understood and agreed that all of
Seller's right, title and interest as of the Closing Date in and to the
following properties and assets (the "Excluded Assets") are specifically
excepted from the Acquired Assets to be transferred to Purchaser pursuant to
Section 2.1(a):
(i) Seller's right, title and interest in the contracts and
accounts receivable identified on SCHEDULE 2.1(B)(I) (the "Excluded Contracts");
(ii) all cash and cash equivalents or similar types of
investments, such as certificates of deposit, Treasury bills and other
marketable securities;
(iii) all owned or leased real property of Seller, including all
buildings, structures and other improvements situated thereon;
(iv) all insurance policies of Seller and all rights of Seller of
every nature and description under or arising out of such insurance policies;
(v) real estate prepaid rent amounts and real estate lease
deposits not specifically included on Schedule 2.1(a)(iv); and
(vi) the other assets listed on SCHEDULE 2.1(B)(VI).
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SECTION 2.2 ASSUMED LIABILITIES; EXCLUDED LIABILITIES.
(a) LIABILITIES ASSUMED BY PURCHASER. Purchaser shall undertake,
assume, perform and otherwise pay, satisfy and discharge, only the following
Liabilities and obligations of Seller (collectively, the "Assumed Liabilities"):
(i) all debts, obligations and liabilities of Seller which arise
on account of Purchaser's ownership or use of the Acquired Assets after the
Closing Date.
(b) EXCLUDED LIABILITIES. Except for the Assumed Liabilities,
Purchaser shall not assume or otherwise become liable for any Liabilities or
obligations of Seller, whether or not arising out of the operation of the
business of Seller (collectively, the "Excluded Liabilities"), all of which
shall be retained by Seller. The Excluded Liabilities shall include, without
limitation:
(i) any Indebtedness of Seller;
(ii) any Liability of Seller for any Taxes, including any sales
or other Taxes arising in connection with the consummation of the transactions
contemplated hereby;
(iii) any Liability of Seller for Seller's Transaction Costs;
(iv) any Liability of Seller resulting from, arising out of,
relating to, in the nature of, or caused by, any breach of warranty, product
liability, breach of contract, or tort arising or resulting from any actions
taken by Seller at any time, including without limitation (A) Liabilities or
obligations arising with respect to work performed by Seller prior to the
Closing Date, (B) Liabilities arising in connection with Seller's employment or
termination of employment of any employee or consultant prior to the Closing
Date (including, without limitation, severance payments, bonuses, deferred
compensation or commissions due to employees and consultants) and (C) any
Liabilities or obligations arising under the Excluded Assets or in connection
with the termination thereof or any dispute thereunder;
(v) any Liability of Seller resulting from, arising out of,
relating to, in the nature of, or caused by any infringement or violation of
Law;
(vi) any obligations of Seller pursuant to any Affiliated Party
Transaction; and
(vii) any obligation of Seller to indemnify any Person by reason
of the fact such Person was a director, officer, employee or agent of Seller or
was serving at the request of Seller as a director, officer, employee or agent
of another Person (whether such indemnification is pursuant to any statute,
charter, bylaw, agreement or otherwise).
SECTION 2.3 PURCHASE PRICE.
(a) PURCHASE PRICE. In consideration for the Acquired Assets, and
subject to the terms and conditions of this Agreement, Purchaser shall on the
Closing Date (i) assume the Assumed Liabilities as provided in Section 2.1(a),
and (ii) issue to the Seller 79,868 shares of the Series D Preferred Stock of
the Purchaser, (together the "Purchase Price") with the terms as set forth in
the Certificate of Designations attached hereto as EXHIBIT A, which will be
convertible into shares of Common Stock of the Purchaser on or after the
one-year anniversary
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of the Closing Date having a fair market value as determined in the terms of the
Series D Preferred Stock equivalent to $1,996,700 ("Preferred Stock Cash
Value").
(b) ALLOCATION OF PURCHASE PRICE. Purchaser and Seller agree that the
Purchase Price payable by Purchaser for the Acquired Assets and the
non-competition agreement set forth in Section 5.7 of this Agreement shall be
allocated as required by Section 1060 of the Code and the Treasury regulations
promulgated thereunder. Such allocation shall be $496,700.00 for goodwill and
intellectual property, $1,200,000.00 for assets, and $300,000.00 for
non-competition. All Tax Returns and reports filed by Purchaser and Seller with
respect to the transactions contemplated by this Agreement shall be consistent
with the allocation determined in accordance herewith.
(c) ADJUSTMENTS.
(i) If upon the sale of the underlying shares of Common Stock of
the Series D Preferred Stock within ten (10) business days of the
date of conversion of the Series D Preferred Stock, Seller does
not realize at least the Stated Value (as defined in the
Certificate of Designations) of the entire class of Series D
Preferred Stock, Purchaser will pay in cash or by check to Seller
the difference between the aggregate Stated Value of the entire
class of Series D Preferred Stock less (a) the stated value of
any Series D Preferred Stock relating to the Common Stock not
sold by the Seller by the close of business on such tenth day and
(b) the aggregate dollar amount realized by Seller from the sale
of any Common Stock received on conversion of the Series D
Preferred Stock sold prior to the close of business on such tenth
day. If upon the sale of the underlying shares of Common Stock of
the Series D Preferred Stock within ten (10) business days of the
date of conversion of the Series D Preferred Stock, Seller
receives aggregate net proceeds in excess of the Stated Value of
the entire class of Series D Preferred Stock, Seller will pay to
the Purchaser the difference between the Stated Value of the
Series D Preferred Stock and the aggregate net proceeds within
five business days after the receipt of the proceeds from the
sale of any Common Stock received on conversion of the Series D
Preferred Stock. The above ten day period may be extended by
written agreement between the Seller and Purchaser.
(ii) Nothwithstanding subparagraph 2.3(c)(i) above, if Seller is
unable to sell the Class D Preferred Stock and the Purchaser does
not pay the amount specified in subparagraph 2.3(c)(i) above,
then the Seller will not be obligated to repay any sum due from
Xxxxxxx Xxxxxxx to the Purchaser under his Employment Agreement.
(iii) The provision of 2.3(c)(iii) shall survive the closing.
SECTION 2.4 CLOSING. Upon the terms and subject to all of the conditions of
this Agreement, the sale and purchase of the Acquired Assets contemplated by
this Agreement shall take place at a closing (the "Closing") to be held at the
offices of the Company, at 10:00 a.m. on the date which is three (3) Business
Days after the satisfaction of the conditions set forth in Section 6.2 hereof,
or at such other place or at such other time or on such other date as
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Purchaser and Seller may mutually agree upon in writing (the day on which the
Closing takes place being the "Closing Date").
SECTION 2.5 CLOSING DELIVERIES BY SELLER. At or before the Closing, Seller
shall deliver or cause to be delivered to Purchaser:
(a) an original counterpart, duly executed by Seller, of a xxxx of
sale ("Xxxx of Sale"), substantially in the form of EXHIBIT B, and sufficient to
transfer to Purchaser valid and marketable title to all the Tangible Personal
Property included in the Acquired Assets, free and clear of all Encumbrances;
(b) an original counterpart, duly executed by Seller, of an agreement
in the form attached as EXHIBIT C hereto ("Assignment and Assumption Agreement")
by which Seller transfers to Purchaser all of Seller's rights and interests to
the other property or interests included in the Acquired Assets and not
transferred under the Xxxx of Sale, free and clear of all Encumbrances, and
Purchaser assumes the Assumed Liabilities and an agreement in the form attached
as EXHIBIT D hereto ("Intellectual Property Assignment") by which Seller
transfers to Purchaser all of Sellers rights and interests to the Intellectual
Property;
(c) evidence of payment and discharge of the NationsBank Loan by
Seller and release of the security interest of NationsBank, N.A. in the Acquired
Assets;
(d) in form acceptable for recording, assignments of Intellectual
Property; and
(e) all other Transaction Documents required to be executed and
delivered by Seller hereunder.
SECTION 2.6 CLOSING DELIVERIES BY PURCHASER. At the Closing, Purchaser
shall deliver or cause to be delivered to Seller:
(a) 79,868 shares of the Series D Preferred Stock to be delivered at
Closing to Seller;
(b) an original counterpart, duly executed by Purchaser, of the
Assignment and Assumption Agreement;
(c) certified copy of the Certificate of Designations of the Series D
Preferred Stock as filed and accepted by the Secretary of State of Florida and
in effect; and
(d) all other Transaction Documents required to be executed and
delivered by Purchaser hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER AND XXXXXXX
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As an inducement to Purchaser to enter into this Agreement, Seller and
Xxxxxxx hereby, jointly and severally, represent and warrant to Purchaser as
follows:
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SECTION 3.1 ORGANIZATION; AUTHORITY, ETC. Seller (i) is a company duly
organized, validly existing and in good standing under the laws of the State of
Florida, (ii) has all the requisite corporate power and authority to own, lease
and operate its properties and assets and to carry on its business as now being
conducted and (iii) has all necessary corporate power and authority to enter
into this Agreement and the Transaction Documents and to perform its obligations
as contemplated hereunder and thereunder. All action necessary to be taken by
Seller to authorize the execution, delivery and performance of this Agreement
and all other Transaction Documents delivered and to be delivered by it in
connection herewith has been duly and validly taken. This Agreement constitutes
the valid and binding obligation of Seller and Xxxxxxx, enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors rights generally or by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
SECTION 3.2 NO CONFLICTS; NO VIOLATION. The execution, delivery and
performance of this Agreement and the Transaction Documents by Seller and
Xxxxxxx and the consummation of the transactions contemplated hereby and thereby
do not and will not (i) violate or result in any default under any provision of
the Certificate of Incorporation of By-Laws of Seller, (ii) violate or result in
any default under or give rise to any right of termination, revocation or
modification of any indenture, license or other agreement to which either of
them is a party or (iii) violate or result in any default under any law,
regulation, order, writ, judgment or decree applicable to either of them or any
of the Acquired Assets or by which the ability of either of them to consummate
the transactions to be consummated by it hereunder would be adversely affected
as a consequence of such violation or default (except in the case of clauses
(ii) and (iii), for such violations, defaults, terminations, revocations or
modifications, as the case may be, which would not have a Material Adverse
Effect). Except as described on SCHEDULE 3.2, the execution and delivery of this
Agreement and the Transaction Documents by Seller and Xxxxxxx do not and will
not, and the performance of this Agreement and the Transaction Documents and the
consummation of the transactions contemplated hereby and thereby by them will
not, require any consent, approval, authorization or other action by, or filing
with or notification to, any Governmental Authority or other third party (except
for such consents, approvals, authorizations, actions, filings or notifications,
the absence of which or the result of which, as the case may be, would not have
a Material Adverse Effect). Seller is not in violation of any term of its
Certificate of Incorporation or By-Laws or the provisions of any mortgage,
indenture, contract, agreement, instrument, judgment, decree, order, statute,
rule or regulation or writ or decree of any court, governmental agency or
instrumentality to which it or any of the Acquired Assets is subject, a
violation of which would have a material adverse effect on its ability to
perform its obligations under this Agreement or the Transaction Documents.
SECTION 3.3 BOOKS AND RECORDS AND OPERATING DATA. To the best of Seller's
and Xxxxxxx' knowledge, the books of account and other financial records of
Seller (i) reflect all material items of income and expense and all material
assets and Liabilities of Seller, (ii) are in all material respects complete and
correct and do not contain or reflect any material inaccuracies or discrepancies
and (iii) have been maintained in accordance with good business and accounting
practices in all material respects.
SECTION 3.4 LITIGATION. To Seller's or Xxxxxxx' knowledge, there are no
Actions by any Person pending before any Governmental Authority or, , threatened
in writing to be brought by or before any Governmental Authority relating to the
Acquired Assets or which could hinder, prevent or materially delay the
consummation of the transactions contemplated by this Agreement. To Seller's or
Xxxxxxx' knowledge, Seller is not subject to any Governmental Order
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relating to or affecting the Acquired Assets or Seller, nor, is any such
Governmental Order threatened in writing to be imposed by any Governmental
Authority.
SECTION 3.5 COMPLIANCE WITH LAWS. Seller has conducted and continues to
conduct the business of Seller in accordance with all applicable Laws and
Governmental Orders, and Seller is not in violation of any such Law or
Governmental Order, except where the failure to conduct its business in
accordance with, or where the violation of, such Laws and Governmental Orders
would not have a Material Adverse Effect.
SECTION 3.6 MATERIAL CONTRACTS. The material contracts and agreements
(including, without limitation, oral and informal arrangements) to which Seller
is a party with respect to Seller or the Acquired Assets are otherwise subject
(such contracts and agreements being "Material Contracts") are listed in
SCHEDULE 3.6 and true and complete copies of each of which have been heretofore
provided to Purchaser. Each Material Contract: (i) is valid and binding on
Seller and, to Seller's or Xxxxxxx' knowledge, on the other respective parties
thereto and is in full force and effect and (ii) upon consummation of the
transactions contemplated by this Agreement, shall continue in full force and
effect without penalty or other adverse consequence. Seller is not, and to
Seller's or Xxxxxxx' knowledge no other party thereto is, in material breach of,
or material default under, any Material Contract. Neither party to a Material
Contract has given notice to the other of termination of such contract or
asserted or threatened to assert any claims with respect to any such contract.
No other party to a Material Contract has prepaid any amount for work which has
not been performed.
SECTION 3.7 INTELLECTUAL PROPERTY. The Intellectual Property described in
SCHEDULE 2.1(A)(II) constitutes all the Intellectual Property (both owned and
licensed) being sold under this Agreement to Purchaser. Except as set forth on
SCHEDULE 3.7, to the best of Seller's and Xxxxxxx' knowledge, Seller has clear
record title to or a presumably valid or subsisting license to use all such
Intellectual Property being sold under this Agreement, has not granted an
exclusive license to use such Intellectual Property being sold under this
Agreement to any third party, does not know of any third party that may be
infringing on such Intellectual Property being sold under this Agreement, has
not had asserted against it any claim for infringement of any trademark, service
xxxx, or trade name of another Person, and is not infringing any trademark,
service xxxx or trade name of another Person.
SECTION 3.8 OWNERSHIP OF ACQUIRED ASSETS.
(a) Seller owns, leases or has the legal right to use all the Acquired
Assets (other than the Intellectual Property), and, with respect to contract
rights related to the Acquired Assets, is a party to and enjoys the right to the
benefits of all contracts, agreements and other arrangements. Seller has good
and marketable title to all the Acquired Assets, free and clear of all
Encumbrances, except for Permitted Encumbrances, which are listed on SCHEDULE
3.8(A) hereto and the Intellectual Property.
(b) Seller has caused the Acquired Assets to be maintained, including
maintaining the value or benefits to Seller of any intangible property, in
accordance with good business practice and, if applicable, in good operating
condition and repair, ordinary wear and tear excepted.
(c) Following the consummation of the transactions contemplated by
this Agreement, Purchaser will own, pursuant to good and marketable title, or
otherwise retain Seller's respective interest in the Acquired Assets without
incurring any penalty or other adverse
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consequence, including, without limitation, any increase in royalties, or
licenses or other fees imposed as a result of, or arising from, the consummation
of the transactions contemplated by this Agreement except as maybe required as
per existing license agreements of items on SCHEDULE 3.8(A)
SECTION 3.9 TAXES. All Taxes payable by Seller and by any other person,
firm or corporation which will or may be liabilities of Seller, for all periods
ending on or before the Closing Date have been paid in full or have been fully
and specifically reserved. Seller has timely filed all federal, state, local and
foreign Tax Returns required to have been filed by it to the Closing Date. There
are no Actions now threatened or pending against Seller in respect of Taxes,
governmental charges or assessments.
SECTION 3.10 BROKERS. No broker, finder or investment banker is entitled to
any brokerage, finder's fee or other fee or commission in connection with the
purchase of the Acquired Assets contemplated by this Agreement.
SECTION 3.11 NO OTHER ARRANGEMENTS. The Seller has no other legal
obligation, absolute or contingent, to any other person or firm to sell or
effect a sale of any or all of the Acquired Assets.
SECTION 3.12 PRIVATE PLACEMENT.
(a) Seller understands that the issuance of the Series D Preferred
Stock is intended to be exempt from registration under the Securities Act
pursuant to Section 4(2) of the Securities Act and any applicable state
securities or blue sky laws.
(b) The Series D Preferred Stock to be acquired by Seller pursuant to
this Agreement is being acquired for its own account and without a view to the
resale or distribution of the Series D Preferred Stock or any interest therein
other than in a transaction exempt from registration under the Securities Act.
(c) Seller and its Control Persons have sufficient knowledge and
experience in financial and business matters so as to be capable of evaluating
the merits and risks of its investment in the Series D Preferred Stock and
Seller and its Control Persons are capable of bearing the economic risks of such
investment, including a complete loss of its investment in the Series D
Preferred Stock. Seller and its Control Persons understand that Purchaser's
investment in the Securities involves a high degree of risk.
(d) Seller has been furnished with and the Control Persons have
carefully read a copy of the Form 10-K, each of the Form 10-Qs, the Form 8-K and
proxy statement comprising of the SEC Reports filed since January 1, 1999 and
this Agreement and has been given the opportunity to ask questions of, and
receive answers from, the Issuer concerning the terms and conditions of the
Series D Preferred Stock and other related matters. Purchaser has made available
to Seller or its agents all documents and information relating to an investment
in the Series D Preferred Stock requested by or on behalf of such Purchaser.
(e) Seller and its Control Persons understand that the Series D
Preferred Stock have not been and are not being registered under the Securities
Act or any state securities laws, and may not be offered, sold, pledged or
otherwise transferred except in compliance with the Securities Act and
applicable state securities laws.
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(f) Seller understands that the Series D Preferred Stock shall bear a
restrictive legend limiting the transferrability of the securities and
underlying Common Stock on conversion.
(g) Seller's principal place of business is in the State of Florida.
SECTION 3.13 FULL DISCLOSURE. No representation or warranty of Seller in
this Agreement, nor any statement or certificate furnished or to be furnished to
Purchaser pursuant to this Agreement, or in connection with the transactions
contemplated by this Agreement, contains or will contain any untrue statement of
a material fact, or omits or will omit to state a material fact necessary to
make the statements contained herein or therein not misleading.
SECTION 3.14 BULK SALES LAWS. The sale of the Acquired Assets is not
subject to the bulk sales laws of the State of Florida.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER AND PARENT
------------------------------------------------------
As an inducement to Seller to enter into this Agreement, Purchaser
represents and warrants to Seller as follows:
SECTION 4.1 ORGANIZATION; AUTHORITY, ETC. Purchaser (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Florida, (ii) has all the requisite corporate power and authority to
own, lease and operate its properties and assets and to carry on its business as
now being conducted and (iii) has all necessary power and authority to enter
into this Agreement and the Transaction Documents to which it is a party and to
perform its obligations as contemplated hereunder and thereunder. All action
necessary to be taken by Purchaser to authorize the execution, delivery and
performance of this Agreement and all other Transaction Documents delivered and
to be delivered by Purchaser in connection herewith has been duly and validly
taken. This Agreement constitutes the valid and binding obligation of Purchaser,
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors rights generally or by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
SECTION 4.2 NO CONFLICTS; NO VIOLATION. The execution, delivery and
performance of this Agreement and the Transaction Documents by Purchaser and the
consummation of the transactions contemplated hereby and thereby do not and will
not (i) violate or result in any default under any provision of its Certificate
of Incorporation or By-Laws, (ii) violate or result in any default under or give
rise to any right of termination, revocation or modification of any indenture,
license or other agreement to which Purchaser is a party, or (iii) violate or
result in any default under any law, regulation, order, writ, judgment or decree
applicable to Purchaser or by which the ability of Purchaser to consummate the
transactions to be consummated hereunder would be adversely affected as a
consequence of such violation or default (except in the case of clauses (ii) and
(iii), for such violations, defaults, terminations, revocations or
modifications, as the case may be, which would not have a material adverse
effect on Purchaser or materially delay the ability of Purchaser to consummate
the transactions contemplated hereunder). The execution and delivery of this
Agreement and the Transaction Documents by Purchaser does not, and the
performance of this Agreement and the Transaction Documents and the consummation
of the transactions contemplated hereby and thereby by Purchaser will not,
require any consent, approval, authorization or other action by, or filing with
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or notification to, any Governmental Authority or other third party (except for
such consents, approvals, authorizations, actions, filings or notifications, the
absence of which, or the result of which, as the case may be, would not have a
material adverse effect on Purchaser or materially delay the ability of
Purchaser to consummate the transactions contemplated hereunder). Purchaser is
not in violation of any term of its Certificate of Incorporation or By-Laws or
the provisions of any mortgage, indenture, contract, agreement, instrument,
judgment, decree, order, statute, rule or regulation or writ or decree of any
court, governmental agency or instrumentality to which it is subject, a
violation of which would have a material adverse effect on its ability to
perform its obligations under this Agreement or the Transaction Documents.
SECTION 4.3 LITIGATION. There is no material Action pending to the
knowledge of Purchaser, threatened in any jurisdiction which seeks to restrain
or enjoin the consummation of the transactions contemplated by this Agreement.
SECTION 4.4 SEC REPORTS. Since January 1, 1999, the Purchaser has filed all
required SEC Reports when due (or within permitted extension periods) in
accordance with the Exchange Act. As of their respective dates (or, in the case
of any amended SEC Report, as of the date of the amendment), the SEC Reports
complied in all material respects with all applicable requirements of the
Exchange Act or the Securities Act, as the case may be. As of their respective
dates (or, in the case of any amended SEC Report, as of the date of the
amendment), none of the SEC Reports contained any untrue statement of a material
fact or omitted to state a material fact required to be stated or incorporated
by reference therein or necessary in order to make the statements made therein,
in light of the circumstances under which they were made, not misleading.
SECTION 4.5 NO OTHER REPRESENTATIONS OR WARRANTIES. Except for the
representations and warranties contained in this Agreement and the other
Transaction Documents, neither Purchaser nor any other Person makes any other
express or implied representation or warranty on behalf of Purchaser.
ARTICLE V
ADDITIONAL AGREEMENTS
---------------------
SECTION 5.1 CONDUCT OF BUSINESS OF SELLER PRIOR TO THE CLOSING. Seller and
Xxxxxxx covenant and agree that, from the date hereof to the Closing Date,
Seller shall conduct its business in the ordinary course consistent with
Seller's prior practices, and Seller shall use its reasonable efforts to (A)
preserve intact its business organization, (B) continue in full force and effect
without material modification, except as agreed to by Purchaser, all existing
policies or binders of insurance currently maintained in respect of Seller, (C)
preserve Seller's current relationships with its customers, suppliers and other
Persons of Seller with which it has significant business relationships; (D)
exercise, but only after notice to Purchaser, any rights of renewal pursuant to
the terms of any Material Contract which by its terms would otherwise expire;
and (E) not engage in any practice, take any action, fail to take any action or
enter into any transaction which could cause any representation or warranty of
Seller in this Agreement to be untrue or result in a breach of any covenant made
by Seller herein.
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SECTION 5.2 ACCESS TO INFORMATION.
(a) From the date hereof until the Closing, upon reasonable notice,
Seller and Xxxxxxx shall cause Seller and Seller's officers, directors,
employees, agents, representatives, accountants and counsel to: (i) afford the
officers, employees and authorized agents, accountants, counsel and
representatives of Purchaser reasonable access, during normal business hours, to
the offices, properties, plants, other facilities, books and records of Seller
as they relate to Seller and to those officers, directors, employees, agents,
accountants and counsel of Seller who have knowledge relating to Seller or its
business, and (ii) furnish to the officers, employees and authorized agents,
accountants, counsel and representatives of Purchaser such additional financial
and operating data and other information regarding the assets, properties and
goodwill of Seller (or legible copies thereof) as Purchaser may from time to
time reasonably request.
(b) In order to facilitate the resolution of any claims made by or
against Purchaser, Seller or Xxxxxxx with respect to Seller or the Acquired
Assets after the Closing Date or for any other reasonable purpose, for a period
of seven years following the Closing, each party shall (i) retain the books and
records which relate to Seller or the Acquired Assets in their possession for
the period of time set forth in the record retention policies of each party as
of the date hereof or for such longer period as may be required by law or any
applicable court order; provided, however, that the parties shall retain books
and records relating to Taxes or Tax Returns until a date that is no earlier
than six months after the expiration of the applicable statute of limitations
with respect to such Taxes or Tax Returns and (ii) upon reasonable notice,
afford the officers, employees and authorized agents and representatives of
Purchaser, Seller or Xxxxxxx, as the case may be, reasonable access (including
the right to make photocopies), during normal business hours, to such books and
records.
SECTION 5.3 CONFIDENTIALITY. Xxxxxxx and Seller hereto agree, and shall
cause their respective agents, representatives, Affiliates, employees, officers
and directors to, treat and hold as confidential (and not disclose or provide
access to any Person) all non-public information of the other parties hereto,
including without limitation, information relating to trade secrets, processes,
patent and trademark applications, product development, price, customer and
supplier lists, pricing and marketing plans, policies and strategies, details of
client and consultant contracts, operations methods, product development
techniques, business acquisition plans, new personnel acquisition plans and all
other confidential information with respect to the other parties hereto and
their respective businesses and operations. In the event that Xxxxxxx and Seller
or any agent, representative, Affiliate, employee, officer or director becomes
legally compelled to disclose any such information, such party shall provide the
other with prompt written notice of such requirement so that such other party
may seek a protective order or other remedy or waive compliance with this
Section 5.3. In the event that such protective order or other remedy is not
obtained, or such other party waives compliance with this Section 5.3, the
disclosing party shall furnish only that portion of such confidential
information which is legally required to be provided and shall exercise its
reasonable efforts to obtain assurances that confidential treatment will be
accorded such information. Each party hereto agrees and acknowledges that
remedies at law for any breach of its obligations under this Section 5.3 are
inadequate and that in addition thereto the other parties hereto shall be
entitled to seek equitable relief, including injunction and specific
performance, in the event of any such breach. Notwithstanding any other
provision of this Section 5.3, the obligations of Purchaser and its agents,
representatives, Affiliates, employees, officers and directors under this
Section 5.3, with respect to information regarding Seller, shall terminate upon
the Closing.
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SECTION 5.4 NOTICES AND CONSENTS. Seller shall promptly give such notices
to third parties and use its best efforts to obtain such third party consents
and as Purchaser may, in its reasonable discretion, deem necessary or desirable
in connection with the transactions contemplated by this Agreement.
SECTION 5.5 NOTICE OF DEVELOPMENTS. Prior to the Closing, each party to
this Agreement shall promptly notify the other parties to this Agreement in
writing of any of the following matters which come to such party's attention:
(i) all events, circumstances, facts and occurrences, including the commencement
or threat of any Action, which are reasonably likely to result in a breach of a
representation or warranty or covenant of such party in this Agreement or which
has the effect of making any representation or warranty of such party in this
Agreement untrue or incorrect, and (ii) all other material developments
affecting the Acquired Assets, Assumed Liabilities, business, operations,
customer or supplier relations of Seller or any other event which is reasonably
likely to prohibit or materially delay the consummation of the transactions
contemplated hereby.
SECTION 5.6 FURTHER ASSURANCES.
(a) Seller from time to time after the Closing, at Purchaser's
reasonable request, will execute, acknowledge and deliver to Purchaser such
other instruments of conveyance and transfer and will take such other actions
and execute and deliver such other documents, certifications and further
assurances as Purchaser may reasonably require in order to vest more effectively
in Purchaser, or to put Purchaser more fully in possession of, any of the
Acquired Assets, or to better enable Purchaser to complete, perform or discharge
any of the Assumed Liabilities.
(b) Subject to the terms and conditions of this Agreement, each of the
parties hereto agrees to use its best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable Laws and regulations to consummate and make effective
the transactions contemplated by this Agreement.
SECTION 5.7 NON-COMPETITION. Seller and Xxxxxxx (other than as an employee
or consultant of Purchaser) agree that neither they nor any of their Affiliates
under their control will, for a period of three (3) years from the Closing Date
(unless there is a Change of Control, in which case the foregoing period will be
two (2) years from the Closing Date) directly or indirectly, engage or
participate in any business that is the same as or similar to the business of
Seller or use any name used by Seller or any trade name used by Seller (other
than retained names, domain names or tradenames) as of the Closing Date. In the
event that Xxxxxxx (other than as an employee or consultant of Purchaser),
Seller or any of their controlled Affiliates are asked to provide any of the
services prohibited by the first sentence of this Section 5.7, they agree that
they will, and will cause their controlled Affiliates to, make reasonable
efforts to recommend the Purchaser as the provider of those services, but they
will not provide any such services (other than as an employee or consultant of
Purchaser). Seller and Xxxxxxx acknowledge and agree that a legally sufficient
portion of Purchase Price is attributable to the non-competition provisions of
this Section 5.7, and Seller and Xxxxxxx expressly waive any right to assert
inadequacy of consideration as a defense to enforcement of the non-competition
provision of this Section 5.7 should such enforcement ever become necessary.
Seller and Xxxxxxx acknowledge that a remedy at law for any breach or attempted
breach of this Section 5.7 will be inadequate and further agrees that any breach
of this Section 5.7 will result in irreparable harm to the business of Seller;
and Seller and Xxxxxxx covenant and agree not to
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oppose any demand for specific performance and injunctive and other equitable
relief in case of any such breach or attempted breach. Whenever possible, each
provision of this Section 5.7 shall be interpreted in such manner as to be
effective and valid under applicable law but if any provision of this Section
5.7 shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Section 5.7. If any provision of this Section 5.7 shall, for any reason, be
judged by any court of competent jurisdiction to be invalid or unenforceable,
such judgment shall not affect, impair or invalidate the remainder of this
Section 5.7 but shall be confined in its operation to the provision of this
Section 5.7 directly involved in the controversy in which such judgment shall
have been rendered. In the event that the provisions of this Section 5.7 should
ever be deemed to exceed the time or geographic limitations permitted by the
applicable laws, then such provision shall be reformed to the maximum time or
geographic limitations permitted by applicable law.
SECTION 5.8 LEASE REIMBURSEMENT. Purchaser will reimburse Seller a monthly
fee of $6,602.00 for the use of its facilities located at 000 Xxxxxxx Xxxxxxx
Xxxxxxx or the period from the Closing Date until the date Purchaser makes
available for general use by its employees office facilities in the greater
Orlando metropolitan area.
SECTION 5.9 ADJUSTMENT TO PURCHASE PRICE. Any adjustment to the Shares of
Series D Preferred Stock or indemnification payments made pursuant to this
Agreement will be deemed to be an adjustment to the Purchase Price.
ARTICLE VI
CONDITIONS TO CLOSING
---------------------
SECTION 6.1 CONDITIONS TO OBLIGATIONS OF SELLER. The obligation of Seller
to consummate the transactions contemplated by this Agreement shall be subject
to the fulfillment, at or prior to the Closing Date, of each of the following
conditions:
(a) Purchaser shall have delivered to Seller at the Closing the items
specified in Section 2.6 hereof.
SECTION 6.2 CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligations of
Purchaser to consummate the transactions contemplated by this Agreement shall be
subject to the fulfillment, at or prior to the Closing, of each of the following
conditions:
(a) Seller shall have delivered to Purchaser at the Closing the items
specified in Section 2.5 hereof;
(b) Evidence of payment and discharge of the NationsBank Loan by
Seller and release of the security interest of NationsBank, N.A. and Agilent
Technologies in the Acquired Assets under UCC-1 Financing Statements filed in
Florida Numbered 970000046879-9, 990000113371-1 and 200000014005-1;
(c) The acceptance for filing by the Secretary of State of Florida of
the Certificate of Designations of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock;
(d) Each of Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx and
Xxxxxxx Xxxxx will have entered into written employment agreements with
Purchaser, satisfactory to
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Purchaser in its sole discretion, and each of Xxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxx
Xxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxx and Xxxx Xxxxxxxx will have accepted
employment on an at-will basis with ParkerVision, and each of the above will
have terminated their employment with the Seller.
ARTICLE VII
INDEMNIFICATION
---------------
SECTION 7.1 INDEMNIFICATION AND REIMBURSEMENT.
(a) (i) Seller and Xxxxxxx, jointly and severally, shall indemnify,
defend and hold harmless Purchaser from and against, and shall reimburse
Purchaser for, any Damages (as hereinafter defined) which may be sustained,
suffered or incurred by Purchaser, whether as a result of third-party claims or
otherwise, and which arise from or in connection with or are attributable to (i)
the breach of any of representations, warranties or covenants of Seller
contained in this Agreement, (ii) the ownership and operation of the Acquired
Assets before the Closing Date, or (iii) any Excluded Liability. This indemnity
shall survive the Closing for a period of four years after the Closing Date
except that with respect to claims arising as a result of a breach or alleged
breach of the representations and warranties in Sections 3.7 and 3.8, they shall
survive without limitation as to time and that with respect to claims arising as
a result of a breach or alleged breach of the representations and warranties in
Section 3.9 it shall survive until three months after the expiration of the
statute of limitations with respect to each Tax at issue. Any claim for
indemnity asserted within the relevant period shall survive until resolved.
(ii) Notwithstanding the foregoing, the Seller shall not be
liable under this Section 7.1(a) unless the aggregate amount of Damages with
respect to all matters, other than the representations of Section 2.1(a)(i),
2.1(a)(v) and 3.8, (determined without regard to any materiality qualification
contained in any representation, warranty or covenant giving rise to the claim
for indemnity hereunder) exceeds $50,000, in which case Purchaser may claim all
Damages subject to indemnification hereunder provided that the maximum amount of
all damages claimed in the aggregate does not exceed the Class D Preferred Stock
cash value.
(b) Purchaser shall indemnify, defend and hold harmless Seller from
and against, and shall reimburse Seller for, any Damages which may be sustained,
suffered or incurred by Seller, whether as a result of third-party claims or
otherwise, and which arise from or in connection with or are attributable to (i)
the breach of any of the representations, warranties and covenants of Purchaser
contained in this Agreement, or (ii) any Assumed Liability. This indemnity shall
survive the Closing for a period of four years after the Closing Date. Any claim
for indemnity asserted within the relevant period shall survive until resolved.
(c) As used herein, the term "Damages" means the dollar amount of any
loss, damage, expense or liability, including, without limitation, reasonable
attorneys' fees and disbursements incurred by an Indemnified Party in any action
or proceeding between the indemnified party and the indemnifying party or
between the Indemnified Party and a third party, which is determined to have
been sustained, suffered or incurred by a party and to have arisen from or in
connection with an event or state of facts which is subject to indemnification
under this Agreement. The amount of Damages shall be the amount finally
determined by a court of competent jurisdiction (after the exhausting of all
appeals) or the amount agreed to upon settlement in accordance with the terms of
this Agreement, if a third-party claim, or by the parties, if a direct claim of
one party against another.
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(d) Any party seeking indemnification hereunder (an "Indemnified
Party") shall, with reasonable promptness, notify in writing the party required
to make such indemnification payment (the "Indemnifying Party") of such claim,
identifying the basis for such claim and the amount or the estimated amount
thereof to the extent then determinable, which estimate shall not be conclusive
of the final amount of such claim (the "Claim Notice"); provided, however, that
any failure to give such Claim Notice will not be deemed a waiver of any rights
of the Indemnified Party except to the extent the rights of the Indemnifying
Party are actually prejudiced by such failure. If such claim is a third party
claim, the Indemnifying Party, upon request of the Indemnified Party, shall
retain counsel (who shall be reasonably acceptable to the Indemnified Party) to
represent the Indemnified Party and shall pay the reasonable fees and expenses
of such counsel with regard thereto, provided; however, that any Indemnified
Party is hereby authorized, prior to the date on which it receives written
notice from the Indemnifying Party designating such counsel, to retain counsel,
whose reasonable fees and expenses shall be at the expense of the Indemnifying
Party, to file any motion, answer or other pleading and take such other action
which it reasonably shall deem necessary to protect its interests or those of
the Indemnifying Party until the date on which the Indemnified Party receives
such notice from the Indemnified Party. After the Indemnifying Party shall
retain such counsel, the Indemnified Party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties of any such proceeding (including any impleaded parties) included
both the Indemnifying Party and the Indemnified Party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. If requested by the Indemnifying Party, the
Indemnified Party agrees to cooperate with the Indemnifying Party and its
counsel in contesting any claim or demand which the Indemnifying Party defends.
A claim or demand may not be settled by any party without the prior written
consent of the other party (which consent will not be unreasonably withheld)
unless, as part of such settlement, the Indemnified Party shall receive a full
and unconditional release reasonably satisfactory to it. Notwithstanding the
foregoing, the Indemnifying Party may settle any third-party claim without the
prior written consent of the Indemnified Party if such claim is exclusively for
monetary damages.
ARTICLE VIII
TERMINATION AND WAIVER
----------------------
SECTION 8.1 TERMINATION.
(a) This Agreement may be terminated at any time prior to the Closing
as follows:
(ii) by mutual written consent of Seller and Xxxxxxx on the one
hand and Purchaser on the other hand;
(ii) by Seller, (A) if Purchaser shall have failed to perform any
of its covenants or agreements contained in this Agreement, which failure has
not been cured within 10 Business Days after Seller has given notice to
Purchaser of its intention to terminate or (B) if the conditions to the
obligations of Seller to consummate the transactions contemplated by this
Agreement shall not have occurred by twenty (20) days after the date of this
Agreement.
(iii) by Purchaser, (A) if Seller shall have failed to perform
any of its covenants in this Agreement, which failure has not been cured within
10 Business Days after
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Purchaser has given notice to Seller of its intention to terminate or (B) if the
conditions to the obligations of Purchaser to consummate the transactions
contemplated by this Agreement shall not have occurred by twenty (20) days after
the date of this Agreement.
(b) In the event of termination by Seller or Purchaser, or both,
pursuant hereto, written notice thereof shall forthwith be given to the other
party and all further obligations of the parties under this Agreement shall
terminate, no party shall have any right under this Agreement against any other
party except as set forth in this Article VIII, and each party shall bear its
own costs and expenses. In such event:
(i) If this Agreement is terminated by Seller pursuant to Section
8.1(a)(ii)(A) or by Purchaser pursuant to Section 8.1(a)(iii)(A), the
terminating party's right to pursue all legal and equitable remedies for breach
of contract or otherwise, including, without limitation, Damages relating
thereto, shall survive such termination unimpaired; and
(ii) Nothing herein shall preclude any party, upon a breach
hereof by another party, from pursuing all equitable remedies, including
specific performance, it being acknowledged and agreed by the parties that the
transactions contemplated hereby are of a special, unique and extraordinary
character and that any breach will cause irreparable injury to the non-breaching
party for which money damages will not provide a wholly adequate remedy.
ARTICLE IX
GENERAL PROVISIONS
------------------
SECTION 9.1 MISCELLANEOUS.
(a) Except as otherwise provided herein, all costs and expenses,
including, without limitation, fees and disbursements of representatives,
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such costs and expenses.
(b) All notices and other communications given or made pursuant hereto
shall be in writing and shall be deemed to have been duly given or made as of
the date delivered if delivered personally or by nationally recognized overnight
courier or by telecopy to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice, except that
notices of changes of address shall be effective upon receipt):
If to Seller or Xxxxxxx:
Signal Technologies, Inc.
000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
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If to Purchaser:
ParkerVision, Inc.
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx Xxxxxx, Esq.
Telecopier: (000) 000-0000
(c) No party shall make any public announcements in respect of this
Agreement or the transactions contemplated herein without the consent of the
other, which consent shall not unreasonably withheld or delayed, except that a
party may make any public announcement it deems necessary to comply with its
legal obligations (including disclosure by means of filings with the Securities
and Exchange Commission and other Governmental Authorities), and will use
reasonable efforts to provide a copy of such public announcement to Seller prior
to the public dissemination thereof.
(d) Purchaser may assign its rights under this Agreement, or any
portion thereof, to any wholly-owned direct subsidiary (including a
non-corporate subsidiary), provided that such assignee shall assume in writing
the rights and obligations so assigned and such assignment shall not relieve
Purchaser of its obligations hereunder to the extent not fulfilled by such
assignee. Seller shall not assign any of its rights under this Agreement without
the prior written consent of Purchaser.
(e) This Agreement may not be amended or modified except by an
instrument in writing signed by Seller and Purchaser, which instrument shall
thereupon be binding upon all the parties.
(f) Any party may (i) extend the time for the performance of any of
the obligations or other acts of any other party, (ii) waive any inaccuracies in
the representations and warranties contained herein or in any document delivered
pursuant hereto and (iii) waive compliance with any of the agreements or
conditions contained herein. Any such extension or waiver shall be valid only if
set forth in an instrument in writing signed by the party to be bound thereby.
(g) If any provision of this Agreement is determined to be invalid,
illegal or incapable of being enforced by a court or regulatory agency of
competent jurisdiction, the other provisions of this Agreement shall not be
affected and shall remain in full force and effect and the parties shall
negotiate in good faith revisions to this Agreement so as to effect the original
intent of the parties pursuant to the provision so affected.
(h) This Agreement, together with the Schedules and Exhibits hereto
constitute the entire agreement, and supersede all prior agreements and
undertakings, both written and oral, among the parties, with respect to the
subject matter hereof and thereof and,
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except as otherwise expressly provided herein, are not intended to confer upon
any other person any rights or remedies hereunder.
(i) This Agreement shall inure to the benefit of and be binding upon
the successors, distributees and assigns of the parties.
(j) This Agreement shall be governed by, and construed in accordance
with, the law of the State of Florida, without regard to principles of conflicts
of law. EACH PARTY HEREBY IRREVOCABLY CONSENTS AND SUBMITS TO THE JURISDICTION
OF ANY FLORIDA STATE COURT OR UNITED STATES FEDERAL COURT SITTING IN THE STATE
OF FLORIDA, OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY
SUCH ACTION OR PROCEEDING BY REGISTERED MAIL ADDRESSED TO SUCH PARTY AT ITS
ADDRESS SPECIFIED IN SECTION 10.1(b). EACH PARTY FURTHER WAIVES ANY OBJECTION TO
VENUE IN FLORIDA AND ANY OBJECTION TO AN ACTION OR PROCEEDING IN SUCH STATE AND
COUNTY ON THE BASIS OF FORUM NON CONVENIENS. EACH PARTY ALSO WAIVES ANY RIGHT TO
TRIAL BY JURY.
(k) This Agreement may be executed in one or more counterparts, and by
the different parties in separate counterparts, each of which when executed
shall be deemed to be an original but all of which when taken together shall
constitute one and the same agreement.
(l) No provision of this Agreement or any other instrument or other
document delivered in connection with the transactions contemplated hereby will
be interpreted in favor of, or against, any of the parties by reason of the
extent to which such party or its counsel participated in the drafting hereof or
by reason of the extent to which any such provision is inconsistent with any
prior draft hereof or thereof.
IN WITNESS WHEREOF, each of Seller and Purchaser has caused this
Agreement to be executed by its respective officers thereunto duly authorized,
in each case, as of the date first written above.
SIGNAL TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxx
Title: President
/s/ Xxxxx Xxxxxxx
----------------------
XXXXX XXXXXXX
PARKERVISION, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board
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