ASSET PURCHASE AGREEMENT
THIS
ASSET PURCHASE AGREEMENT (“Agreement”),
dated
as of March 12, 2008 (the “Closing
Date”),
is
entered into by and among XXXXXXX
X. XXXXXX
(“Seller”),
GEEKS
ON CALL HOLDINGS, INC.,
a
Delaware corporation (“Parent”)
and
GEEKS
ON CALL AMERICA, INC.,
a
Delaware corporation and a wholly-owned subsidiary of Parent (“Buyer”).
WHEREAS,
Seller
has developed and is the owner of the entire right, title and interest in and
to
that certain software known as “quiXsupport Helpdesk Software” and related
intellectual property assets; and
WHEREAS,
Seller
desires to sell to Buyer, and Buyer desires to purchase from Seller, the
Purchased Assets (defined below), on the terms and conditions set forth herein;
and
NOW,
THEREFORE,
in
consideration of the foregoing recitals and the mutual covenants, conditions
and
agreements set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto hereby agree as follows:
1. SALE
AND PURCHASE.
1.1 Closing.
At the
closing of the transactions contemplated in this Agreement (the “Closing”),
which
is occurring contemporaneously with the execution of this Agreement on the
Closing Date, Seller is selling, assigning, transferring, conveying, and
delivering the Purchased Assets to Buyer, and Buyer is purchasing the Purchased
Assets from Seller. The Closing may take place by conference call, telecopy
and
wiring of funds with the exchange of original signatures to required Closing
documents to be made by overnight courier. At the Closing, Seller is delivering,
or causing to be delivered, the following items to Buyer: (i) a Xxxx of Sale
and
Assignment (the “Xxxx
of Sale”),
executed by Seller; (ii) a
Consulting Agreement by and between Buyer and Seller, executed by Seller (the
“Consulting
Agreement”);
(iii)
evidence of the termination of that certain Software License Agreement dated
May
20, 2003, between Seller and Cloverlick Interactive, Inc. (“Cloverlick”),
(iv)
an Assignment and Release Agreement for the benefit of Buyer, executed by
Cloverlick; and (v)
all
such other documents, agreements, certificates or materials reasonably requested
by Buyer to transfer, assign and convey good and marketable title to the
Purchased Assets to Buyer, free and clear of all Liens, and to consummate the
transactions contemplated hereby. At
the
Closing, Buyer is delivering, or causing to be delivered, the following items
to
Buyer the following items to Seller: (i) the Closing Date Payment; (ii) the
Consulting Agreement, executed by an appropriate officer of Buyer; and (iii)
the
Shares.
1.2 Purchased
Assets.
For
purposes of this Agreement, the term “Purchased
Assets”
shall
mean and include all of the following:
(a) that
certain software or protocol known as “quiXsupport Helpdesk Software,” which is
more fully described on Exhibit
A
hereof,
in source code form, object code form and/or any other existing form or medium,
together with any directly related computer software, programs and program
code
(in any form or medium) (collectively, the “Acquired
Software”),
and
all technical and descriptive materials and documentation relating to the
acquisition, design, development, use, or maintenance of the Acquired Software
(the “Documentation”);
(b) all
contracts, agreements, licenses, and other commitments and arrangements, oral
or
written, with any Person, respecting the ownership, license, acquisition,
design, development, distribution, marketing, use, or maintenance of the
Acquired Software and/or the Documentation, including without limitation, all
contracts, agreements, and licenses with respect to the Third-Party Plug-Ins
and
Platforms;
(c) all
rights, title and interest in, and the use of the trade names and Domain Names
“XxxxxxXx.xxx”,
“Xxxxxxx-Xxxx.xxx” or “XxXxxxxxxx.xxx”
and
trade or service marks relating thereto, and any other trade names, Domain
Names
or logos which have been or currently are used in connection with Acquired
Software, together with all translations, adaptations, derivations and
combinations thereof, including all goodwill associated therewith;
(d) all
other
Seller Helpdesk Intellectual Property and all rights thereunder or in respect
thereof including, without limitation, rights to xxx for and remedies against
past, present and future infringements thereof, and rights of priority and
protection of interests therein under the laws of any jurisdiction worldwide
and
all tangible embodiments thereof; and
(e) all
guarantees, warranties, indemnities and similar rights in favor of Seller with
respect to any Purchased Asset.
Notwithstanding
anything to the contrary contained herein, as further described in Section
1.5
below, Seller is not selling, assigning, transferring or conveying, and Buyer
is
not accepting or purchasing, the Excluded Assets.
1.3 No
Assumption of Liabilities.
Buyer
is not assuming, and will not be deemed by virtue of the execution of this
Agreement to have assumed, any claims, liabilities or obligations of Seller,
whether known, unknown, absolute, contingent, accrued or otherwise, and whether
or not related to the Purchased Assets, and all such claims, liabilities and
obligations shall remain the claims, liabilities and obligations of Seller
(the
“Excluded
Liabilities”).
1.4 Purchase
Price.
On
the
Closing Date, in consideration of the Purchased Assets, Parent, on behalf of
Buyer, shall (a) pay One Hundred Thousand Dollars ($100,000) by wire transfer
of
immediately available funds (the “Closing
Date Payment”)
to
Seller; and (b) issue one hundred twenty-five thousand (125,000) shares of
stock
of Parent (the “Shares”)
to
Seller (the Closing Date Payment and the Shares are collectively the
“Purchase
Price”).
1.5 Purchase
Price Allocation.
Within
forty-five (45) calendar days after the Closing Date, Buyer shall in good faith
prepare a schedule (the “Allocation
Schedule”)
allocating the Purchase Price among the Purchased Assets, which Allocation
Schedule shall be final and binding upon the parties. Each of the parties agrees
to cooperate with each other and to report the transactions contemplated hereby
consistent with the allocation set forth on the Allocation Schedule in computing
their taxable income and otherwise in preparing and filing their tax returns
for
federal, state and local income tax purposes, and no party shall thereafter
take
a return position inconsistent with such allocation.
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2. REPRESENTATIONS
AND WARRANTIES.
2.1 Seller.
The
representations and warranties of Seller are set forth on Exhibit
B
hereof.
2.2 Buyer.
The
representations and warranties of Buyer are set forth on Exhibit
C
hereof.
3. ADDITIONAL
COVENANTS AND AGREEMENTS.
3.1 Use
of Names.
After
the Closing, Seller will not, directly or indirectly, use or do business, or
allow any Affiliate to use or do business, or assist any third party in using
or
doing business under the names and marks “RemoteMe”,
“Virtual-Geek” or “MrHelpdesk”
(or any
other name confusingly similar to such names and marks), and Seller shall cause
all public records to be amended to reflect the proper ownership of such names
and marks.
3.2 Transition.
Seller
shall use commercially reasonable efforts to make an orderly transition of
the
Purchased Assets to Buyer.
3.3 Confidentiality.
Seller
agrees, at all times after the Closing Date, to treat and hold as confidential
all “Proprietary Information” (as defined herein) and to refrain from using or
disclosing (or aiding others in using or disclosing) any and all such
Proprietary Information. For purposes hereof, “Proprietary
Information”
means
and includes all information about, or with respect to, the Purchased Assets,
regardless of the medium in which such information exists; provided, however,
that Proprietary Information shall not include information that is or becomes
generally available to the public, other than as a result of a disclosure by
Seller, any Affiliate of Seller, or his agents or representatives. In the event
that Seller is required in any legal proceeding (including, without limitation,
interrogatory, subpoena, civil investigative demand, or similar process) to
disclose any Proprietary Information, Seller shall notify Buyer promptly of
the
request or requirement so that Buyer may seek an appropriate protective order
or
waive compliance with the provisions hereof.
3.4 Covenant
Not to Compete.
(a) Seller
acknowledges and agrees that Buyer would not consummate the transactions
contemplated hereby unless Seller agrees to ensure that Buyer’s ability to
utilize the Purchased Assets being transferred to Buyer hereunder shall not
in
any way be adversely affected or diminished by Seller’s actions after the
Closing. Seller acknowledges that these obligations bind not only him, but
also
his present or future successors, assigns and Affiliates. Further, Seller agrees
that the foregoing restrictions are necessary and reasonably required for the
protection of the legitimate business interests of Buyer. Accordingly, Seller
agrees that for a period of three (3) years after the Closing Date, Seller
shall
not directly or indirectly, on his own behalf or as a partner, officer,
director, stockholder, member, employee, agent or consultant of any other
Person, anywhere within the United States:
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(i) develop,
produce, sell, license, or assist in the development, production, sale, or
licensing of any software that competes with the Acquired Software or any
similar product of Buyer, or the services provided by Buyer in connection
therewith;
(ii) provide
any service that competes with the services provided by Buyer using or related
to the Acquired Software or any similar product of Buyer;
(iii) solicit
for itself or any Person (other than Buyer or any of its Affiliates), the
business of any customer of Buyer or any of its Affiliates, for the marketing,
sale or licensing of a software product or service the same as, or competitive
with, the Acquired Software or any similar product of Buyer, or the services
provided by Buyer in connection therewith;
(iv) solicit,
hire, entice, or aid, or cooperate with others in soliciting, hiring, enticing
or aiding, any (i) employee of Buyer or any of its Affiliates to leave Buyer’s
or any of its Affiliates’ employ, or (ii) any Person who at any time during the
six-month period immediately prior to the making of such solicitation, was
employed by Buyer or any of its Affiliates;
(v) make
any
disparaging remarks about the businesses, services, products, stockholders,
officers, directors or other personnel of Buyer or any of its
Affiliates.
Notwithstanding
anything herein to the contrary, the parties acknowledge and agree that Seller
may own or hold, as a passive investment, not more than one percent (1.0%)
of
the outstanding securities of any Person that competes with the Acquired
Software or any similar product of Buyer, or the services provided by Buyer
in
connection therewith, if the securities of such Person are publicly
traded.
(b) Seller
acknowledges and agrees that if he breaches any of the provisions of Section
3.3
or this Section 3.4, Buyer will suffer immediate and irreparable harm for which
monetary damages alone will not be a sufficient remedy, and that, in addition
to
all other remedies that Buyer may have, Buyer shall be entitled to seek
injunctive relief, specific performance or any other form of equitable relief
to
remedy a breach or threatened breach of Section 3.3 or this Section 3.4 by
Seller and to enforce such provisions. The existence of this right shall not
preclude or otherwise limit the applicability or exercise of any other rights
and remedies which Buyer may have at law or in equity.
(c) Seller
has carefully considered the possible effects of its obligations contained
in
Section 3.3 and this Section 3.4, and recognizes that Buyer has made every
effort to limit the restrictions placed upon it to those that are reasonable
and
necessary to protect Buyer’s and its Affiliates’ legitimate business interests.
It is the intention of the parties hereto that the covenants, provisions and
agreements contained herein shall be enforceable to the fullest extent allowed
by law. If any covenant, provision, or agreement contained herein is found
by a
court having jurisdiction to be unreasonable in duration, geographic scope
or
character of restrictions, such covenant, provision or agreement shall not
be
rendered unenforceable thereby, but rather the duration, geographic scope or
character of restrictions of such covenant, provision or agreement shall be
deemed reduced or modified with retroactive effect to render such covenant,
provision or agreement reasonable, and such covenant, provision or agreement
shall be enforced as modified. If the court having jurisdiction will not revise
the covenant, provision or agreement, the parties hereto shall mutually agree
to
a revision having an effect as close as permitted by applicable law to the
provision declared unenforceable. Moreover, to the extent that any provision
is
declared unenforceable, Buyer shall have any and all rights under applicable
statutes, civil law or common law to enforce its rights with respect to any
and
all unfair competition by Seller.
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3.5 Original
Author.
Based
upon the representations and warranties of Seller set forth in this Agreement,
Seller is the “original author” of the Acquired Software. Seller may identify
himself as the “original author” of the Acquired Software in Seller’s marketing
materials, provided that Seller shall do so (i) in accordance with all
applicable laws, (ii) in accordance with any requirements required by Buyer,
(iii) in a manner that does not in any way imply that Seller is the owner or
a
licensee of the Acquired Software, and (iv) in accordance with the other terms
of this Section 3.5. Seller acknowledges and agrees that neither he nor any
of
his Affiliates will acquire any ownership interest or license rights in or
to
the Acquired Software or any of the other Purchased Assets as a result of this
Section 3.5 or any activity pursuant hereto. Upon request of Buyer, Seller
shall
submit samples of any of his materials in which he identifies himself as the
“original author” of the Acquired Software. Seller may not use or distribute any
such materials unless and until Seller has received Buyer’s prior written
approval, which may be granted or withheld in Buyer’s sole discretion. After any
materials have been fully approved pursuant to this Section 3.5, Seller shall
not depart therefrom in any material respect without first submitting to Buyer
a
sample of the modified material and obtaining Buyer’s prior written consent to
such modification. Any such approval by Buyer shall not constitute waiver of
Buyer’s rights or Seller’s duties hereunder.
3.6 Rule
144 Compliance.
Upon
(i)
Seller fulfilling all holding period requirements of Rule 144 under the
Securities
Act of 1933, as amended (the “Securities
Act”),
and
(ii) Parent satisfying all other requirements of Rule 144, Parent shall
use
commercially reasonable efforts to assist Seller in taking all actions necessary
to remove the legend “restricted securities” from the Shares related to a resale
of such securities.
4. INDEMNIFICATION.
4.1 Indemnification
by Seller.
Seller
hereby agrees to indemnify and hold harmless Buyer, Parent, and their respective
Affiliates, successors, assigns, officers, directors, employees, agents and
representatives from and against any and all liability, loss, cost, damages,
claims, obligations, fees and expenses (including reasonable attorney’s fees)
(collectively, “Losses”)
which
any of them may sustain by reason of:
(a) the
inaccuracy or breach of, or the existence of any facts resulting in the
inaccuracy or breach of, any of the warranties or representations of Seller
contained in this Agreement;
(b) Seller’s
breach or nonfulfillment of, or failure to comply with, any of the covenants
or
agreements of Seller contained in this Agreement or in any other agreement
delivered to Buyer in connection with the Closing of the transactions
contemplated hereby;
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(c) the
Excluded Liabilities and any and all claims, liabilities and obligations of
any
nature whatsoever relating to the ownership, use or operation of the Purchased
Assets on or before the Closing Date; and/or
(d) any
and
all actions, suits, proceedings, claims, demands, assessments and judgments
incident to any of the foregoing.
4.2 Indemnification
by Buyer.
Buyer
hereby agrees to indemnify and hold harmless Seller, its successors, assigns,
agents and representatives from and against any and all Losses which any of
them
may sustain by reason of:
(a) the
inaccuracy or breach of, or the existence of any facts resulting in the
inaccuracy or breach of, any of the warranties or representations of Buyer
contained in this Agreement;
(b) Buyer’s
breach or nonfulfillment of, or failure to comply with, any of the covenants
or
agreements of Buyer contained in this Agreement or in any other agreement
delivered to Seller in connection with the Closing of the transactions
contemplated hereby; and/or
(c) any
and
all actions, suits, proceedings, claims, demands, assessments and judgments
incident to any of the foregoing.
4.3 Third
Party Claims.
(a) If
any
third party shall notify any Party (the “Indemnified
Party”)
with
respect to any matter (a “Third
Party Claim”)
which
may give rise to a claim for indemnification against any other Party (the
“Indemnifying
Party”)
under
this Section 4, then the Indemnified Party shall promptly notify each
Indemnifying Party thereof in writing; provided,
however,
that no
delay on the part of the Indemnified Party in notifying any Indemnifying Party
shall relieve the Indemnifying Party from any obligation hereunder unless (and
then solely to the extent) the Indemnifying Party thereby is
prejudiced.
(b) Any
Indemnifying Party will have the right to defend the Indemnified Party against
the Third Party Claim with counsel of its choice reasonably satisfactory to
the
Indemnified Party so long as (i) the Indemnifying Party notifies the Indemnified
Party in writing within fifteen (15) days after the Indemnified Party has given
notice of the Third Party Claim that the Indemnifying Party will indemnify
the
Indemnified Party from Losses the Indemnified Party may suffer resulting from,
relating to, or caused by the Third Party Claim, in accordance with and subject
to the terms of this Agreement, (ii) the Indemnifying Party provides the
Indemnified Party with evidence reasonably acceptable to the Indemnified Party
that the Indemnifying Party will have the financial resources to defend against
the Third Party Claim and fulfill its indemnification obligations hereunder,
(iii) the Third Party Claim involves only money damages and does not seek an
injunction or other equitable relief, (iv) the settlement of, or an adverse
judgment with respect
to, the
Third Party Claim is not, in the good faith judgment of the Indemnified Party,
likely to establish a precedential custom or practice materially adverse to
the
continuing business interests of the Indemnified Party, and (v) the Indemnifying
Party conducts the defense of the Third Party Claim actively and
diligently.
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(c) So
long
as the Indemnifying Party is conducting the defense of the Third Party Claim
in
accordance with Section 4.3(b), (i) the Indemnified Party may retain separate
co-counsel at its sole cost and expense and participate in the defense of the
Third Party Claim, (ii) the Indemnified Party will not consent to the entry
of
any judgment or enter into any settlement with respect to the Third Party Claim
without the prior written consent of the Indemnifying Party, and (iii) the
Indemnifying Party will not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without the prior written
consent of the Indemnified Party.
(d) In
the
event any of the conditions in Section 4.3(b) is or becomes unsatisfied,
however, (i) the Indemnified Party may defend against, and consent to the entry
of any judgment or enter into any settlement with respect to, the Third Party
Claim in any manner it reasonably may deem appropriate (and the Indemnified
Party need not consult with, or obtain any consent from, any Indemnifying Party
in connection therewith), (ii) the Indemnifying Parties will reimburse the
Indemnified Party promptly and periodically for the costs of defending against
the Third Party Claim (including reasonable attorneys’ fees and expenses)
provided that the Indemnifying Party is otherwise required to indemnify the
Indemnified Party with respect to that Third Party Claim under this Section
4,
and (iii) the Indemnifying Parties will remain responsible for any Losses the
Indemnified Party may suffer resulting from, arising out of, relating to, in
the
nature of, or caused by the Third Party Claim to the fullest extent provided
in
this Section 4.
4.4 Other
Claims.
If an
Indemnified Party has any claim or demand against an Indemnifying Party pursuant
to this Article 4 (which claim or demand is not a third party claim, the
procedure for which is set forth in Section 4.3 above), such Indemnified Party
shall promptly notify the Indemnifying Party in writing; provided, however,
that
no delay on the part of the Indemnified Party in notifying the Indemnifying
Party shall relieve the Indemnifying Party from any obligation hereunder, unless
(and then solely to the extent) the Indemnifying Party thereby is prejudiced.
If
the Indemnified Party is not notified (within fifteen (15) days from the
delivery of such notice) by the Indemnifying Party that the Indemnifying Party
disputes its liability to the Indemnified Party pursuant to this Article 4,
such
claim shall be conclusively deemed a liability of the Indemnifying Party, and
the Indemnifying Party shall pay such claim in cash immediately upon
demand.
4.5 Remedies
Not Exclusive.
The
foregoing indemnification provisions are in addition to, and not in derogation
or lieu of, any statutory, equitable or common law remedy any party may have
for
a breach of a representation, warranty or covenant contained herein.
4.6 Survival
of Representations and Warranties.
All
covenants, agreements, representations and warranties contained in this
Agreement shall survive the Closing; provided, however, that (i) subject to
clause (ii) hereof, the representations and warranties of the parties contained
in this Agreement shall survive for a period of three (3) years after the
Closing Date, (ii) the representations and warranties of Seller set forth
in Section 3 (Purchased Assets) and Section 4 (Litigation and Claims) of Exhibit
B hereto shall survive until the expiration of the applicable statute of
limitations, and (iii) if an Indemnified Party provides proper notice to the
Indemnifying Party hereunder of any then existing matter within the scope of
an
Indemnifying Party’s indemnity obligation within such survival periods, the
Indemnified Party may pursue its claim for indemnification after such period,
in
which case the representation or warranty on which it is based shall survive
until such claim is resolved. Notwithstanding any investigation made by Buyer
prior to Closing, which shall not constitute a waiver as to enforcement of
any
right or remedy which Buyer may have, Buyer shall be presumed to have relied
upon the representations and warranties of Seller set forth in Exhibit
B
in
connection with the execution of this Agreement and the consummation of the
transactions contemplated hereby. Notwithstanding any investigation made by
Seller prior to Closing, which shall not constitute a waiver as to enforcement
of any right or remedy which Seller may have, Seller shall be presumed to have
relied upon the representations and warranties of Buyer set forth in
Exhibit
C
in
connection with the execution of this Agreement and the consummation of the
transactions contemplated hereby.
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5. MISCELLANEOUS.
5.1 Certain
Defined Terms.
Capitalized terms not otherwise defined in this Agreement shall have the
respective meanings set forth in Exhibit
D
attached
hereto.
5.2 Further
Assurances.
After
the Closing Date, Seller agrees, at Buyer’s request, to execute and deliver to
Buyer all such additional or confirmatory instruments, reports and
acknowledgments as may be reasonably furnished for such purpose by Buyer and
to
take all such other actions as Buyer may reasonably request (i) to evidence
the sale, assignment, transfer and conveyance to Buyer of the Purchased Assets,
(ii) to obtain possession thereof for Buyer, free and clear of all Liens,
or (iii) to confirm Buyer’s non-assumption of any obligations or
liabilities of Seller.
5.3 Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties pertaining to
the
subject matter hereof and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions of the parties, whether oral or
written. All Schedules and Exhibits attached to this Agreement shall be deemed
part of this Agreement and incorporated herein, where applicable, as if fully
set forth herein. No amendment, supplement, modification, waiver or termination
of this Agreement shall be binding unless executed in writing by all parties
hereto, or in the case of a waiver, by the party for whom such benefit was
intended.
5.4 Expenses;
Tax Matters.
(a) Seller
shall be responsible for the timely payment of, and shall indemnify and hold
harmless Buyer against, all sales, use, value, added, documentary, stamp, gross
receipts, registration, transfer, conveyance, excise, recording, license and
other similar Taxes and fees (“Transfer
Taxes”),
arising out of or in connection with or attributable to the transactions
effected pursuant to this Agreement. Seller shall prepare and timely file all
tax returns required to filed in respect of Transfer Taxes (including, without
limitation, all notices required to be given with respect to bulk sales taxes),
provide that Buyer shall be permitted to prepare any such tax returns that
are
the primary responsibility of Buyer under applicable law.
(b) Each
of
the parties hereto shall pay the fees and expenses of its respective legal
counsel and other representatives incident to the negotiation and preparation
of
this Agreement, the consummation of the transactions contemplated by this
Agreement, and any disputes between the parties arising out of the transactions
contemplated by this Agreement.
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5.5 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Notwithstanding
anything to the contrary herein, neither party may assign any of its/his rights
or delegate any of its/his responsibilities, liabilities or obligations under
this Agreement, without the prior written consent of the other
party.
5.6 Severability.
Any
provision, clause or part of this Agreement or the application thereof that
is
held invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof, or the validity or enforceability of the offending term or provision
in
any other situation or in any other jurisdiction.
5.7 Applicable
Law; Consent to Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the laws of
the
Commonwealth of Virginia, without regard to principles of conflicts of laws.
Except as provided in Section 5.8 hereof, any suit involving any dispute or
matter arising under this Agreement may only be brought in the United States
District Court for the Eastern District of Virginia, Norfolk Division or in
any
state court located in Virginia Beach, Virginia; each of the parties hereto
consents to the exercise of personal jurisdiction by such court with respect
to
all such proceedings; and each of the parties hereto hereby knowingly and
voluntarily waives any and all rights to a jury trial in any proceeding
involving any dispute or matter arising under this Agreement.
5.8
Setoff.
In
addition to all other rights and remedies that Buyer may have, if Buyer becomes
aware of any right to indemnification pursuant to Section 4, it may, in addition
to any other available remedy, notify Seller in writing of the basis of such
right to indemnification and the amount thereof, and may suspend and offset
such
amount, against all or any portion of any payment due to
Seller
from Parent or Buyer under this Agreement, the Consulting Agreement, or
otherwise. Notwithstanding the foregoing, if upon notice from Buyer of Buyer’s
right to indemnification and the amount thereof, Seller posts a bond for the
benefit of Buyer for the claimed amount properly securing the payment thereof,
Buyer will not exercise such setoff rights. Buyer’s and Parent’s rights under
this Agreement shall not be in any manner limited by or to this right of setoff.
5.9 Notice.
All
notices, requests, demands, waivers and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given if (a) delivered personally, (b) mailed by
first-class, registered or certified mail, return receipt requested, postage
prepaid, or (c) sent by next-day or overnight mail or delivery, to the
following:
|
If
to Seller, to:
|
Xxxxxxx
X. Xxxxxx
|
000
00xx
Xxxxxx
Xxxxx
Xxxxxxxxx,
Xxxxxxxxx 00000
|
If
to Buyer, to:
|
Geeks
On Call America, Inc.
|
000
Xxxxxxxxxx Xxxx
Xxxxxxx,
XX 00000
Attn:
Xxxxxxx X. Xxxx
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or,
in
each case, at such other address as may be specified in writing to the other
parties hereto.
All
such
notices, requests, demands, waivers and other communications shall be deemed
to
have been received (w) if by personal delivery on the day after such delivery,
(x) if by certified or registered mail, on the seventh business day after the
mailing thereof, (y) if by next-day or overnight mail or delivery, on the day
delivered, (z) if by telecopy or telegram, on the next day following the day
on
which such telecopy or telegram was sent, provided that a copy is also sent
by
certified or registered mail.
5.10 Construction.
In
the
event of any ambiguity or mistake herein, or any dispute among the parties
with
respect to the provisions hereto, no provision of this Agreement shall be
construed unfavorably against any of the parties on the ground that it or its
counsel was the drafter thereof. Nothing in a schedule shall be deemed adequate
to disclose an exception to a representation or warranty made herein unless
the
Schedule describes the exception in reasonable detail. Without limiting the
generality of the foregoing, the mere listing (or inclusion of a copy) of a
document or other item shall not be deemed adequate to disclose an exception
to
a representation or warranty made herein (unless the representation or warranty
has to do with the existence of the document or other item itself). The
information contained in any Schedule referred to in any representation and
warranty shall be deemed to have been disclosed in connection with, and be
a
part of, that particular representation and warranty only, and shall not be
deemed a part of any other representation and warranty unless cross-referenced
to the schedule related to such representation or warranty.
5.11
Specific
Performance.
The
parties hereto recognize that in the event either party fails to fulfill or
perform any of its/his covenants or agreements set forth in, or contemplated
by,
this Agreement, monetary damages alone will not be adequate. The non-breaching
party shall therefore be entitled, in addition to any other remedies which
may
be available, including money damages, to obtain specific performance of the
terms of this Agreement. In the event of any action to enforce this Agreement,
each party hereby waives any defense that there is an adequate remedy at
law.
5.12 Public
Announcements
No party
shall issue any press release or make any public announcement relating to the
subject matter of this Agreement without the prior written approval of the
other
party; provided, however, that Parent or Buyer may make any public disclosure
it
believes in good faith is required by applicable law or by any agreement
concerning Parent’s publicly-traded securities.
5.13 Headings.
The
headings in this Agreement are for reference purposes and shall not affect
the
meaning or interpretation of this Agreement.
5.14 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. All facsimile executions shall be treated as originals for all
purposes.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
-10-
IN
WITNESS WHEREOF,
the
parties hereto have executed, or caused to be executed by duly authorized
officers, this Agreement as of the Closing Date.
WITNESS:
|
/s/
Xxxxxxx Xxxxxx
|
/s/ Xxxxxxx X. Xxxxxx
|
(SEAL)
|
||
|
XXXXXXX
X. XXXXXX
|
||||
|
/s/
Xxxxxxx Xxxxxx
|
By:
|
/s/ Xxxxxxx X. Xxxx
|
(SEAL)
|
|
|
Name:
Xxxxxxx X. Xxxx
|
||||
|
Title:
Chief Executive Officer
|
||||
|
GEEKS
ON CALL AMERICA, INC.
|
||||
|
/s/
Xxxxxxx Xxxxxx
|
By:
|
/s/
Xxxxxxx X. Xxxx
|
(SEAL)
|
|
|
Name:
Xxxxxxx X. Xxxx
|
||||
|
Title:
Chief Executive Officer
|
||||
EXHIBIT
A
Description
of Software
quiXsupport
is a
support protocol, that effectively and instantly combines live, interactive
support to paying customers.
|
o
|
Features:
|
|
§
|
quiXsupport
Helpdesk General
Description
|
|
§
|
A
turnkey, fully-staffed, fully-equipped helpdesk management system
providing state-of-the-art revenue-generating support services and
technology through unlimited sales channels/portals, instantly, to
a
global audience of customers.
|
|
§
|
Centralized
Management of Unlimited Channel Operations
|
|
§
|
One
support “team” can handle multiple brands, portals, operations, support
protocols, chats, calls and vertical sales pipelines through a single,
managed Internet GUI (graphical user
interface)
|
|
§
|
Sales
Channels can be instantly created and managed for various franchisees,
brands, products, resellers, portals and partners
|
|
§
|
Sales
Channels include
|
|
§
|
Front-End
“store” for on-line sales
|
|
§
|
Web
presence with sub-pages / agreements / user
interfaces
|
|
§
|
Independent
phone numbers, virtual call-center allocations and phone traffic
routing
|
|
§
|
Independent
web traffic routing, reporting and geo-location tracking
|
|
§
|
Independent
Channel administrator and end-user management, tracking and reporting
|
|
§
|
Employee
Management
|
|
§
|
quiXsupport
is a proprietary, customizable virtual-office environment
|
|
§
|
Anywhere
an employee has Internet access, that employee has the following
|
|
§
|
Full,
encrypted access to the live ticket queue
|
A-1
|
§
|
Full,
encrypted access to the system, system tools, databases, interfaces,
resources and other online employees
|
|
§
|
Remote
control system (any employee, can remote into, and perform services
on,
any other PC or Mac machine on the planet that has Internet access)
|
|
§
|
One,
heavily encrypted employee interface that is centrally managed and
controlled
|
A-2
EXHIBIT
B
Seller’s
Representations and Warranties
Seller
hereby represents and warrants to Buyer that, as of the Closing
Date:
1. Enforceability.
This
Agreement is, and the other documents and instruments required hereby are,
the
valid and binding obligations of Seller enforceable against Seller in accordance
with their respective terms, subject to applicable bankruptcy, insolvency,
moratorium, reorganization and other similar laws affecting the rights of
creditors generally, and to the exercise of a court’s equitable
powers.
2. Consents.
The
execution, delivery and performance by Seller of this Agreement and all of
the
documents and instruments required hereby do not conflict with or violate or
result in a breach of the terms, conditions or provisions of any agreement,
document or instrument to which Seller is a party or by which Seller is bound.
No notice to, filing with, or consent, authorization or approval of, or any
other action by, any Person is necessary for the execution, delivery and
performance of this Agreement by Seller.
3. Purchased
Assets.
Seller
has complete and unrestricted power and the unqualified right to sell, assign,
transfer and deliver to Buyer, and upon consummation of the transactions
contemplated by this Agreement, Buyer will acquire good, valid and marketable
title to the Purchased Assets, free and clear of all Liens. The Purchased Assets
constitute all of the assets and properties necessary to effectively operate
the
Acquired Software and include all tangible and intangible assets and goodwill
relating to the Acquired Software. The Purchased Assets are free from material
defects, and are adequate for the uses described on Exhibit
A,
provided that notwithstanding the foregoing, Seller makes such no representation
or warranty with respect to the Third-Party Plug-Ins and Platforms. The
Acquired Software is a derivative work of the Cloversite XG Development
Construct. The Cloversite XG Development Construct is an Excluded Asset and
is
not being transferred to Buyer. The Acquired Software is a unique, sovereign,
stand-alone, copyrightable work, and can function for the purposes described
on
Exhibit
A
without
the use of the
Cloversite XG Development Construct.
4. Litigation
and Claims.
There
are no actions, claims, suits, or judicial, administrative or governmental
proceedings or investigations, orders, awards, decrees or judgments, now
pending, or to Seller’s knowledge, threatened against Seller, nor does Seller
know of any basis for the same, in each case, relating to the Purchased
Assets.
5. Compliance
with Laws.
Seller
is not in violation of any law, ordinance, directive or regulation of any
governmental authority, order, writ, decree, judgment, or order of any court,
arbitrator, or governmental or regulatory authority.
6. Broker.
Seller
has not made any agreement with any Person or taken any action that would cause
any Person to become entitled to any agent’s, broker’s or finder’s fee or
commission in connection with the transactions contemplated
hereby.
B-1
7. Intellectual
Property Rights.
(a) Except
for the Third-Party Plug-Ins and Platforms, Seller owns the entire right, title
and interest in the Acquired Software, the Documentation and all other Seller
Helpdesk Intellectual Property, free and clear of all Liens.
(b) No
Intellectual Property of third parties is used in or by, incorporated in, or
necessary for the use, operation, building, reproduction, making of derivative
works of or distribution of the Acquired Software or the Documentation, other
than the Third-Party Plug-Ins and Platforms.
(c) The
Acquired Software and the Documentation do not use, incorporate, or require
for
their use, building, operation, reproduction, distribution or making of
derivative works, any Intellectual Property other than the Third-Party Plug-Ins
and Platforms.
(d) To
Seller’s knowledge, Seller has not violated, misappropriated, infringed, induced
infringement of, or contributed to the infringement of, as the case may be,
any
Intellectual Property or other right of any Person. The use of that the Acquired
Software, Documentation, or other Seller Helpdesk Intellectual Property
described on Exhibit
A
and
contemplated by Buyer, do not and will not violate, misappropriate, infringe
any
Intellectual Property or other right of any Person. There are no claims pending
or threatened against Seller asserting that the Acquired Software,
Documentation, or other Seller Helpdesk Intellectual Property, violates,
misappropriates or infringes the Intellectual Property or other rights of any
Person.
(e) Seller
has not received any infringement opinions or other notices of any nature from
any source which indicate that the Acquired Software, Documentation and/or
other
Seller Helpdesk Intellectual Property violates, misappropriates, infringes
or
may violate, misappropriate or infringe any Intellectual Property or other
right
of any Person.
(f) Seller
has not made, asserted or threatened any claim of violation, misappropriation
or
infringement of Acquired Software, Documentation and/or other Seller Helpdesk
Intellectual Property against any Person, and Seller is not aware of any such
violation, misappropriation or infringement.
(g) Except
for the License Agreement to Cloverlick that is being terminated
contemporaneously with the execution and delivery of this Agreement, Seller
has
not granted any outstanding licenses or other rights to the Acquired Software,
Documentation or other Seller Helpdesk Intellectual Property to any
Person.
(h) The
transactions contemplated by this Agreement will have no adverse effect on
the
Acquired Software, Documentation or other Seller Helpdesk Intellectual
Property.
8. Business
Activity Restriction.
There is
no non-competition or other similar agreement, commitment, judgment, injunction,
order or decree to which Seller is a party or to which it is subject that has
or
could reasonably be expected to have the effect of prohibiting or impairing
Buyer’s use of the Purchased Assets.
B-2
9. Disclosure.
Neither
this Agreement nor any schedule, certificate, exhibit, agreement, instrument
or
document furnished or to be furnished by Seller or its Affiliates pursuant
hereto or in connection with the due diligence process performed by Buyer in
connection herewith, contains any misstatement of fact or omits or fails to
state a material fact necessary in order to make the statements contained
therein not misleading. There is no fact that has not been disclosed to Buyer
in
writing which materially adversely affects or could reasonably be expected
to
materially adversely affect the Purchased Assets.
10. Purchase
Entirely for Own Account.
The
Shares proposed to be acquired by Seller hereunder will be acquired for
investment for his own account, and not with a view to the resale or
distribution of any part thereof, and Seller has no present intention of selling
or otherwise distributing the Shares, except in compliance with applicable
securities laws.
11. Available
Information.
Seller
has such knowledge and experience in financial and business matters that he
is
capable of evaluating the merits and risks of investment in Parent.
12. Non-Registration.
Seller
understands that the Shares have not been registered under the Securities Act
and, if issued in accordance with the provisions of this Agreement, will be
issued by reason of a specific exemption from the registration provisions of
the
Securities Act that depends upon, among other things, the bona fide nature
of
the investment intent and the accuracy of Seller’s representations as expressed
herein.
13. Restricted
Securities.
Seller
understands that the Shares are characterized as “restricted securities” under
the Securities Act inasmuch as this Agreement contemplates that, if acquired
by
Seller pursuant hereto, the Shares would be acquired in a transaction not
involving a public offering. Seller further acknowledges that if the Shares
are
issued to Seller in accordance with the provisions of this Agreement, such
Shares may not be resold without registration under the Securities Act or the
existence of an exemption therefrom. In this connection, Seller represents
that
it is familiar with Rule 144 promulgated under the Securities Act, as presently
in effect, and understands the resale limitations imposed thereby and by the
Securities Act. Legends shall be placed on the Shares to the effect that they
have not been registered under the Securities Act or applicable state securities
laws and appropriate notations thereof will be made in Parent’s stock books.
Seller consents to stop transfer instructions being placed with Parent’s
transfer agent.
B-3
EXHIBIT
C
Buyers’
Representations and Warranties
Buyer
hereby represents and warrants to Seller that, as of the Closing
Date:
1. Organization.
Buyer is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, and has all the requisite corporate power and
authority to purchase the Purchased Assets pursuant to this
Agreement.
2. Authorization;
Enforceability.
The
execution, delivery and performance by Buyer of this Agreement are within the
power of Buyer, and have been duly and validly authorized by Buyer, and no
other
proceedings on the part of Buyer are necessary to authorize this Agreement
or
the transactions contemplated hereby. This Agreement constitutes the valid
and
binding obligation of Buyer, enforceable against Buyer in accordance with its
terms, subject to applicable bankruptcy, insolvency, moratorium, reorganization
and other similar laws affecting the rights of creditors generally, and to
the
exercise of a court’s equitable powers.
3. Consents.
No
notice to, filing with, or consent or approval of, or any other action by,
any
Person is necessary for the execution, delivery and performance by Buyer of
this
Agreement.
C-1
EXHIBIT
D
Defined
Terms
The
following capitalized terms shall have the meanings specified in this
Exhibit
D.
Other
terms are defined in the recitals hereto or in the text of this Agreement,
and
shall have the meanings respectively ascribed to them.
“Affiliate”
means,
when used with respect to any Person, any other Person that, directly or
indirectly, through one or more intermediaries, controls, is controlled by,
or
is under common control with, the specified Person; “control” or any form
thereof means, with respect to any Person, the possession, directly or
indirectly, of the power to direct or cause the direction of the management
policies of such Person through the ownership of voting securities, by contract
or otherwise.
“Domain
Names”
means
domain names, uniform resource locators and other Internet or similar addresses
or identifiers.
“Excluded
Assets”
means
that certain software or protocol known as the Cloversite XG Development
Construct, any other software of Seller that is not necessary to provide the
helpdesk functionality described on Exhibit
A,
and any
other Intellectual Property of Seller that (i) is not identified in Sections
1.2
(a) through 1.2 (c) and
(ii) is
not Seller Helpdesk Intellectual Property.
“Intellectual
Property”
means
any or all of the following and all rights in, arising out of, or associated
therewith: (i) all United States, international and foreign patents and
applications therefor and all reissues, divisions, renewals, extensions,
provisionals, continuations and continuations-in-part thereof; (ii) all
inventions (whether or not patentable or patented), invention disclosures,
improvements, trade secrets, proprietary information, know-how, technology,
technical data and customer lists; (iii) all copyrights, copyrights
registrations and applications therefor and all other rights corresponding
thereto throughout the world; (iv) all industrial designs and any
registrations and applications therefor throughout the world; (v) all trade
names, logos, common law trademarks and service marks; (vi) all trademark
and service xxxx registrations and applications therefor and all goodwill
associated therewith throughout the world; (vii) all Domain Names;
(viii) all databases and data collections and all rights therein throughout
the world; and (ix) all computer software including all source code, object
code, firmware, development tools, files, records and data, all media on which
any of the foregoing is recorded; (x) any similar, corresponding or
equivalent rights to any of the foregoing and (xi) all documentation
related to any of the foregoing.
“Lien”
means
any
mortgage, pledge, lien, right, deed, encumbrance, charge or adverse claim
affecting title or resulting in an encumbrance or a security interest of any
kind (including a conditional sale or other title retention agreement), any
option or other agreement to sell or any filing of (or agreement to give) any
financing statement under the Uniform Commercial Code or equivalent statutes
of
any jurisdiction.
“Person”
means
any individual, corporation, association, partnership, limited liability
company, trust, unincorporated organization, governmental entity (or any
department, agency or political subdivision thereof) or any other organization
or entity.
D-1
“Seller
Helpdesk Intellectual Property”
shall
mean any Intellectual Property that (1) (i) is owned by (ii) is
licensed to, or (iii) was developed or created by Seller; and (2) is used
in connection with, relates to, or comprises or is incorporated in, the Acquired
Software or the Documentation.
“Third-Party
Plug-Ins and Platforms”
means
the
following third-party applications used in connection with the Acquired
Software: 3CX Enterprise VOIP PBX, Version 5, ISL Light Remote Control Server,
Version 3, Aestiva HTML/OS, Version 4.
D-2
