Exhibit 10(j)(i)
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT ("AGREEMENT") is made as of the 22nd day
of January, 2007 by and between XXXXX RISK SERVICES, INC., a New Jersey
corporation having its principal place of business at 000 Xxxxxxx Xxxx., Xxxxx
000, Xxxxxxxxx, XX 00000 (the "SELLER"), and COVER-ALL TECHNOLOGIES INC., a
Delaware corporation having its principal place of business at 00 Xxxx Xxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000 (the "PURCHASER").
RECITALS:
WHEREAS, Seller is engaged in the business of insurance brokerage
services;
WHEREAS, in connection with its business, Seller has designed,
developed and implemented in its office certain software to address certain
front-office needs for brokers and agents in the insurance industry (the
"SOFTWARE");
WHEREAS, Seller desires to sell and Purchaser desires to purchase all
of Seller's right, title and interest in and to the Assets (as defined below),
including the Software, all under the terms and conditions as hereinafter set
forth, and Purchaser desires to develop further the Software and integrate the
Software into the base solution set of Purchaser's My Insurance Center (MIC)
software suite (the "BASE MIC SOFTWARE"); and
WHEREAS, in connection with the sale of the Assets by Seller to
Purchaser, the parties hereto are entering into (a) a License Agreement, dated
as of the date hereof, in substantially the form annexed hereto as EXHIBIT A
(the "LICENSE AGREEMENT"), pursuant to which, among other things, Purchaser
shall license to Seller, and Seller shall have the right to use, the Base MIC
Software, and (b) a Commission and Services Agreement, dated as of the date
hereof, in substantially the form annexed hereto as EXHIBIT B (the "COMMISSION
AGREEMENT"), pursuant to which, among other things, Seller shall be entitled to
receive certain payments in respect of the licensing of the Base MIC Software by
Purchaser to third parties,
NOW, THEREFORE, in consideration of the premises, the mutual promises,
covenants and representations of the parties and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto,
intending to be bound, hereby agree as follows:
1. SALE OF ASSETS. Seller hereby agrees to sell, transfer, assign,
convey and deliver to Purchaser, on the Closing Date (as defined in Section 8
below), for the consideration hereinafter provided, all of Seller's right, title
and interest in and to the assets specified on SCHEDULE 1 hereto (hereinafter,
the "ASSETS") free and clear from any and all liens, claims, charges or
encumbrances of any kind. If and to the extent Seller acquires, develops or
otherwise comes into possession of rules or metadata relating to or associated
with the Software after the Closing, Purchaser shall be entitled to purchase
such rules or metadata relating to or associated with the Software from
Purchaser for a price and upon such terms no less favorable than those which
would be provided to any other party by Seller. Seller shall notify Purchaser
promptly in the event Seller acquires, develops or otherwise comes into
possession of rules or metadata relating to or associated with the Software
after the Closing.
2. NON-ASSUMPTION OF LIABILITIES. Other than with respect to those
liabilities identified on SCHEDULE 2 which Purchaser agrees to assume (the
"ASSUMED LIABILITIES"), Seller shall be and remain solely liable and responsible
for all debts, obligations, duties, litigation, actions and liabilities of
Seller
arising from or related to the Assets, which were caused or arose prior to the
Closing, and Purchaser does not and shall not assume, agree to pay or pay any
debts, obligations, duties, litigation, actions or liabilities of any nature of
the Seller, regardless of whether any such debt, obligation, duty, litigation,
action or liability arises under any contract, agreement, practice, arrangement,
statute, law, ordinance, rule, regulation or otherwise, and nothing in this
Agreement is intended or shall be construed to the contrary.
3. PURCHASE PRICE. The total purchase price for the Assets and the
assumption of the Assumed Liabilities shall be one dollar ($1.00) (the "PURCHASE
PRICE").
4. RISK OF LOSS. Seller assumes all risk of destruction, loss,
impairment or damage to the Assets through the conclusion of Closing. In the
event of a material destruction, loss, impairment or damage to the Assets or any
part thereof, Purchaser shall have the right, at its election, to either (i)
complete the purchase, in which event Purchaser shall be entitled to all
proceeds collectible by reason of such loss or damage or a reduction in the
Purchase Price to reflect such impaired value, or (ii) terminate this Agreement,
which shall be in lieu of any other right or remedy whatsoever. In the latter
event, all parties shall be released from liability hereunder.
5. COVENANTS, REPRESENTATIONS AND WARRANTIES.
(a) BY SELLER. Seller hereby covenants, represents and warrants to
Purchaser the following as of the date of this Agreement and as of the Closing
Date, with the knowledge that Purchaser is purchasing the Assets in full
reliance thereon:
(i) ORGANIZATION AND AUTHORITY. That Seller is a duly
organized and validly existing corporation in good standing under the laws of
the State of New Jersey and in each other jurisdiction in which its business is
conducted, except in such other jurisdictions where the failure to so qualify
would not have a Material Adverse Effect, as hereinafter defined, and has the
full power and authority to carry on its business, to own, lease and operate its
properties and assets, to execute and deliver this Agreement and to consummate
the transactions contemplated by this Agreement. "MATERIAL ADVERSE EFFECT" is
defined as a material adverse effect on the business, assets or results of
operations of the Seller.
(ii) AUTHORIZATION. That this Agreement has been duly and
valid executed by Seller, the execution and delivery of this Agreement have been
duly authorized by the Seller, and no further action of any nature is required
pursuant to Seller's certificate of incorporation and bylaws or other governing
documents in order to consummate the transactions contemplated by this
Agreement;
(iii) BINDING OBLIGATION. That this Agreement constitutes the
legal, valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms, except as may be limited by bankruptcy or general
equitable principles;
(iv) TITLE. That Seller is the owner of, and has good and
marketable title to, the Assets, free and clear of and from any liens, security
interests, mortgages, charges and encumbrances of every kind, nature and
description; and, upon consummation of the transaction that is the subject of
this Agreement in accordance with the terms hereof, Purchaser will be vested
with good and marketable title to all of the Assets free and clear of any liens,
security interests, mortgages, charges or encumbrances of any kind, nature or
description;
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(v) NO PENDING ACTIONS. That there is no action pending,
contemplated or threatened which could result in an avoidance of any term or
condition hereunder or create any liability on the part of Purchaser for actions
or operations of Seller or impair the Assets in any way, and there is no action
pending or contemplated against third parties alleging any infringement of
Seller's intellectual property or proprietary rights in the Assets;
(vi) NO CONFLICTS. That neither the execution and delivery of
this Agreement nor its performance will conflict with or result in a breach of
any of the terms, conditions or provisions of the certificate of incorporation
or bylaws or other governing documents of Seller, or any contract, agreement,
mortgage, trust, deed, note, bond, indenture or other instrument or obligation
of any nature to which Seller is a party or by which Seller or any of the Assets
is bound, or result in the creation or imposition of any lien, mortgage, charge
or encumbrance, or give to others any interest or right in any of the Assets in
each case, that would cause a Material Adverse Effect. The execution, delivery
and performance of this Agreement by Seller does not require the consent,
approval or waiver of rights by, or the authorization, order of or filing with,
any person, entity or governmental authority;
(vii) TAXES PAID. That Seller has paid all relevant income,
social security, withholding, sales, unemployment insurance and other taxes and
fees relating to its business and the Assets through the date hereof; and that
Seller has properly filed all required tax returns as provided by law;
(viii) OWNERSHIP. Without limiting the generality of the
foregoing Section 5(a)(iv), that Seller has the right to use, without payment or
other obligation to any third party, all of the Assets; that none of the Assets
infringes on or misappropriates any of the intellectual property or proprietary
rights of any third party; that Seller is not a party to any suit, action or
proceeding that involves a claim of infringement or misappropriation of any of
the intellectual property or proprietary rights of any third party; and that, to
Seller's knowledge, Seller has not received any notice or threat alleging any
such claim of infringement or misappropriation;
(ix) NO OTHER AGREEMENTS. That there are no written or oral
contracts, commitments, agreements or other contractual obligations (including
employment contracts or pension or profit sharing plans) to which Seller is a
party and which could become the obligation of Purchaser upon Closing;
(x) NO LIABILITIES. That Seller has no liabilities of any
kind with respect to the Assets, and, to Seller's knowledge, there is no basis
for the assertion of any claim or liability of any nature against Seller with
respect to the Assets; and
(xii) COMPLIANCE. That the Software shall be in compliance with
all applicable laws, rules and regulations as of the date of the delivery
thereof.
(b) BY PURCHASER. Purchaser hereby covenants, represents and
warrants to Seller the following, with the knowledge that Seller is selling the
Assets in full reliance thereon:
(i) ORGANIZATION AND AUTHORITY. That Purchaser is a duly
organized and validly existing corporation in good standing under the laws of
Delaware, is authorized to do business in each other jurisdiction in which its
business is conducted, and has the full corporate power to carry on its
business, to own and operate its properties and assets, to enter into this
Agreement and to consummate the transactions contemplated by this Agreement;
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(ii) AUTHORIZATION. That the execution and delivery of this
Agreement have been duly authorized by the Purchaser, and no further corporate
action of any nature is required pursuant to Purchaser's organizational
documents in order to consummate the transactions contemplated by this
Agreement;
(iii) BINDING OBLIGATION. That this Agreement constitutes the
legal, valid and binding obligation of Purchaser, enforceable against Purchaser
in accordance with its terms, except as such enforceability may be limited by
applicable equitable or bankruptcy principles; and
(iv) NO PENDING ACTIONS. There is no action pending or
contemplated which could result in an avoidance of any term or condition
hereunder or create any liability on the part of Seller for actions or
operations of Purchaser occurring prior to the date hereof.
6. MIGRATION AND INTEGRATION OF THE SOFTWARE. (a) Following the
Closing, Purchaser shall migrate the Software to the version of Oracle and
Oracle Application Server currently in use by Purchaser and integrate the
Software into the base solution set, including security, of Purchaser's My
Insurance Center (MIC) software suite.
(b) Seller acknowledges and agrees that continued improvements in
and to and migration and integration of the Software is required and that from
time to time Purchaser will require technical input and expertise from Seller to
complete such efforts. Accordingly, upon Purchaser's reasonable request, Seller
shall provide such technical input and expertise to Purchaser related to the
Software.
(c) The parties hereby agree that all or any portion of the Base MIC
Software and design documents, flow charts and all other related development
documents used in connection with or as a result of the migration or integration
of the Software with and into the Base MIC Software, and all patents and
copyrights to each of the items therein, shall be the exclusive property of
Purchaser. Neither Seller nor any of its agents, subcontractors or consultants
shall have any ownership interest in the Base MIC Software or such documents. To
the extent there is any doubt as to the lawful ownership of the Base MIC
Software, or any part of it, the parties agree that the Base MIC Software, and
the related documents, shall be considered a "work for hire" for the benefit of
Purchaser and any of its assigns pursuant to this Agreement. Upon Purchaser's
reasonable request, Seller shall execute documents, including, but not limited
to, copyright assignment documents, and perform such acts as may be deemed
necessary or advisable to confirm in Purchaser all right, title and interest of
Seller in and to the Base MIC Software, and related documents, including all
patent applications, patents and copyrights thereon, and to enable and assist
Purchaser in procuring, maintaining, enforcing and defending patents, copyrights
and other applicable statutory protection on the Base MIC Software and related
documents. Seller shall enter into any and all necessary or desired agreements
with its employees, subcontractors and agents who perform services under this
Agreement or any other agreement contemplated hereby and to take any and all
other reasonable and necessary measures to effect such complete ownership of the
Base MIC Software in Purchaser. Seller irrevocably waives and relinquishes, for
itself and its employees and agents, any claims of Moral Rights (as such term is
defined in the Commission Agreement) with respect to any and all uses of the
Base MIC Software and related documents, and Seller will take all reasonable
actions, including taking legal action against such employees or agents, to
ensure that neither it nor its employees/agents shall assert any such claims
with respect to such Moral Rights.
7. INDEMNIFICATION.
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(a) BY SELLER. Seller agrees to defend, indemnify and hold Purchaser
(as well as its officers, directors, shareholders, employees and agents)
harmless against and in respect of any and all actions, suits, proceedings,
demands, liabilities, judgments, costs and expenses (including, but not limited
to, reasonable attorneys' fees and court costs) (collectively, "LOSSES")
relating to: (a) all liabilities and obligations of, or claims against, Seller
that are not specifically assumed by Purchaser hereunder; (b) any and all
liabilities, obligations or claims arising out of or resulting from Seller's
operation of its business or the Assets prior to Closing as well as any
post-Closing claims related to the Assets' infringement or alleged infringement
of a third parties' intellectual property or proprietary rights prior to
Closing; (c) Seller's breach of any covenants, representations, warranties or
agreements set forth herein, or any misrepresentation in or omission from any
certificate or other instrument furnished or to be furnished to Purchaser
pursuant to this Agreement; and (d) any and all actions, suits, proceedings,
demands, assessments, judgments, costs and expenses (including, but not limited
to, court costs and reasonable attorneys' fees) incident to any of the
foregoing.
(b) BY PURCHASER. Purchaser agrees to defend, indemnify and hold
Seller (as well as its officers, directors, shareholders, employees and agents)
harmless against and in respect of any and all Losses relating to Purchaser's
breach of any covenants, representations, warranties or agreements set forth
herein (except with respect to those contained in Section 17 hereof), or any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished to Purchaser pursuant to this Agreement.
(c) LIMITATIONS. The Seller shall not be required to make any
indemnification payments pursuant to Section 7(a) until such time as the total
amount of all Losses exceeds $15,000 in the aggregate, in which case the
indemnitees shall be entitled to be indemnified against and compensated and
reimbursed for all Losses in excess of $15,000, PROVIDED, HOWEVER, that the
maximum amount of indemnification for Losses that the indemnitees may recover
shall not exceed $100,000; PROVIDED, FURTHER, HOWEVER, that the foregoing
monetary limitations shall not apply to claims in respect of breaches of
representations or warranties in Sections 5(a)(ii), (iv), (vii), (vii) and
(viii).
8. CLOSING.
(a) TIME AND PLACE. The closing of the transactions contemplated by
this Agreement ("CLOSING") shall take place at 10:00 a.m., New York time, on the
date hereof (the "CLOSING DATE"), at the offices of DLA Piper US LLP, 1251
Avenue of the Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other time and
place as the parties shall mutually agree.
(b) PURCHASER'S OBLIGATIONS. At Closing, Purchaser shall deliver the
following documents:
(i) an executed License Agreement; and
(ii) an executed Commission Agreement.
(c) SELLER'S OBLIGATIONS. At Closing, Seller shall deliver to
Purchaser the Assets, along with the following documents:
(i) a properly executed Xxxx of Sale Agreement (the "XXXX OF
SALE AGREEMENT") conveying to Purchaser valid title to the Assets, in the form
attached hereto as EXHIBIT C;
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(ii) an executed License Agreement;
(iii) an executed Commission Agreement;
(iv) all business records relating to the Assets; and
(v) such other documents and records confirming the approval
of the transaction and the transfer of title to the Assets as Purchaser may
reasonably request including, without limitation, board and requisite
stockholder consents and any and all consents necessary to convey the Assets to
Purchaser and any filings required to perfect and record Purchaser's ownership
of the Assets.
9. CONDITIONS TO PURCHASER'S OBLIGATIONS. Purchaser's obligation to
consummate the transactions contemplated by this Agreement shall be conditioned
on:
(i) the continued accuracy of all of the representations and
warranties contained in Section 5(a) in all material respects;
(ii) no action, suit or proceeding shall have been instituted or
threatened or claim or demand made against Seller or Purchaser seeking to
restrain or prohibit or to obtain damages with respect to the consummation of
the transactions contemplated by this Agreement, or which might, in the
reasonable opinion of Purchaser, have a material adverse effect on the Assets or
Software of Seller and there shall not be in effect any order of a governmental
body of competent jurisdiction restraining, enjoining or otherwise prohibiting
the consummation of the transactions contemplated by this Agreement; and
(iii) prior to Closing, no event or circumstance shall have occurred
that has had, or is reasonably likely to have, a material adverse effect on the
Assets or Software of Seller.
10. NON-COMPETITION.
(a) Beginning on the Closing Date and ending on the second
anniversary of the Closing Date (the "NON-COMPETITION PERIOD"), neither Seller
nor Xxxxx shall directly or indirectly (other than on behalf of Purchaser),
without the prior written consent of Purchaser, engage in a Competitive Business
Activity (as defined below) anywhere in the Restricted Territory (as defined
below). The term "COMPETITIVE BUSINESS ACTIVITY" shall mean: (i) engaging in,
managing or directing persons engaged in any business in competition with
Purchaser's business; (ii) acquiring or having an ownership interest in any
entity which derives revenues from any business in competition with Purchaser
(except for ownership of three percent (3%) or less of the issued and
outstanding stock of a publicly-held company); or (iii) participating in the
operation, management or control of any firm, partnership, corporation or
business described in clause (ii) of this sentence. The term "RESTRICTED
TERRITORY" shall mean each and every country, state, city or other political
subdivision of the world in which Purchaser is currently engaged in business or
otherwise distributes, licenses or sells products.
(b) The covenants contained in Section 10(a) shall be construed as a
series of separate covenants, one for each country, state, city or other
political subdivision of the Restricted Territory. Except for geographic
coverage, each such separate covenant shall be deemed identical in terms to the
covenant contained in Section 10(a). If, in any judicial proceeding, a court
refuses to enforce any of such separate covenants (or any part thereof), then
such unenforceable covenant (or such part) shall be eliminated from this
Agreement to the extent necessary to permit the remaining separate covenants (or
portions thereof) to be enforced. In the event that the provisions of this
Section 10 are
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deemed to exceed the time, geographic or scope limitations permitted by
applicable law, then such provisions shall be reformed to the maximum time,
geographic or scope limitations, as the case may be, permitted by applicable
law. Seller acknowledges that the limitations of time, geography and scope of
activity agreed to in Section 10(a) are reasonable.
(c) The parties agree that in the event of a breach or threatened
breach by Seller of any of the covenants set forth in Section 10(a), monetary
damages alone would be inadequate to fully protect Purchaser from, and
compensate Purchaser for, the harm caused by such breach or threatened breach.
Accordingly, Seller agrees that if it breaches or threatens breach of any
provision of Section 10(a), Purchaser shall be entitled to, in addition to any
other right or remedy otherwise available, the right to seek injunctive relief
restraining such breach or threatened breach and to specific performance of any
such provision of Section 10(a), and Purchaser shall not be required to post a
bond in connection with, or as a condition to, obtaining such relief before a
court of competent jurisdiction.
11. FURTHER ASSURANCES. The parties shall execute such further documents
and instruments and shall perform such other acts as may be reasonably requested
to transfer and convey the Assets as contemplated hereby and to otherwise
consummate the transactions contemplated hereby.
12. TAXES. Any sales, purchase or use tax which may be payable by reason
of the sale of all or any portion of the property under this Agreement shall be
borne by Seller.
13. WAIVER. Failure of the parties to insist upon the strict performance
of any covenant, term, condition, warranty, guarantee or indemnification of this
Agreement or to exercise any right or remedy accruing therefrom, shall not
constitute a waiver of any unremedied breach or the performance of any such
covenant, term, condition, warranty, guarantee or indemnification. A waiver
shall be effective only upon a written instrument executed by the parties. Any
waiver of any breach shall not effect or alter this Agreement, but rather each
and every covenant, term, condition, warranty, guarantee and indemnification
shall continue in full force and effect with respect to any other then existing
or subsequent breach thereof.
14. SURVIVAL OF REPRESENTATIONS, ETC. All covenants, representations,
warranties, agreements and indemnifications made by the parties in this
Agreement, or pursuant hereto, shall survive the consummation of the
transactions contemplated by this Agreement.
15. TERMINATION. This Agreement and the transactions contemplated hereby
may be terminated at any time on or before the Closing Date:
(i) by mutual consent of Seller and Purchaser;
(ii) by Purchaser if there has been a material misrepresentation or
breach of warranty in the representations and warranties of Seller set forth
herein or if there has been any material failure on the part of Seller to comply
with its obligations hereunder;
(iii) by Seller if there has been a material misrepresentation or
breach of warranty in the representations and warranties of Purchaser set forth
herein or if there has been any material failure on the part of Purchaser to
comply with its obligations hereunder;
(iv) by either Purchaser or Seller if the transactions contemplated
by this Agreement have not been consummated by December 15, 2006, unless the
parties otherwise agree or unless such failure
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of consummation is due to the failure of the terminating party to perform or
observe the covenants and agreements hereof to be performed or observed by it at
or before the Closing Date; and
(v) by either Purchaser or Seller if the transactions contemplated
hereby violate any order, decree or judgment of any court or governmental body
or agency having competent jurisdiction.
In the event of the termination of this Agreement pursuant to this
Section 15, this Agreement shall forthwith become null and void and of no
further force or effect; provided, however, that the parties hereto shall remain
liable for any breach of this Agreement prior to its termination.
16. EXPENSES. Purchaser and Seller each agree to bear their own legal,
accounting and other expenses in connection with the preparation and
consummation of this Agreement.
17. LICENSE TO USE.
(a) Purchaser hereby grants to Seller, commencing upon the Closing
Date, a non-exclusive, perpetual (subject to Seller's compliance with the terms
of this Agreement), non-transferable, royalty-free, limited license for Seller's
employees to use the Software solely at Seller's business locations for Seller's
own internal business purposes. Seller may make a reasonable number of copies of
the Software solely for its own internal back-up and archival purposes. Seller
shall not sell, rent, lease, loan, sublicense, disseminate, assign, transfer or
otherwise provide the Software to any third party, make the Software available
for use by any third party or use the Software for the benefit of any third
party including, without limitation, through any outsourcing, timesharing or
service bureau arrangement.
(b) Notwithstanding Sections 10 and 17(a), if, prior to the two (2)
year anniversary of the date of this Agreement, Purchaser shall not have
consummated any license sales which would have entitled Seller to have earned
any payments pursuant to Section 3 of the Commission Agreement, then, commencing
upon such two (2)-year anniversary, Purchaser shall have a non-exclusive,
perpetual (subject to Seller's compliance with the terms of this Agreement),
non-transferable, royalty-free, limited license to reproduce, market, distribute
and sublicense the Software to third parties; PROVIDED, HOWEVER, that the
foregoing shall in no way impair Purchaser's ownership rights in and to the
Software or otherwise restrict Purchaser's rights in and to the Software.
(c) IN CONNECTION WITH ANY SUCH LICENSE GRANT BY PURCHASER PURSUANT
TO SECTION 17(a) OR (b) HEREOF: (i) PURCHASER MAKES NO WARRANTIES WHATSOEVER
WITH RESPECT TO THE SOFTWARE AND PROVIDES THE SOFTWARE ON AN "AS IS" AND "AS
AVAILABLE" BASIS; (ii) PURCHASER HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO
THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET
ENJOYMENT, QUALITY OF INFORMATION, DATA ACCURACY, SYSTEMS INTEGRATION OR
TITLE/NON-INFRINGEMENT; (iii) SELLER EXPRESSLY ACKNOWLEDGES AND AGREES THAT ITS
USE, MARKETING, DISTRIBUTION OR OTHER EXPLOITATION OF THE SOFTWARE IS AT
SELLER'S SOLE RISK, AND (iv) PURCHASER SHALL HAVE NO OBLIGATION TO PROVIDE ANY
SUPPORT FOR, AND HEREBY DISCLAIMS ANY AND ALL OTHER LIABILITY AND RESPONSIBILITY
WITH RESPECT TO, THE SOFTWARE.
18. NOTICES. All notices, requests and demands to or upon the parties to
this Agreement shall be in writing and shall be deemed to have been given or
made when delivered by hand, when delivered to
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a recognized overnight delivery service or when deposited in the mail, postage
prepaid by registered or certified mail, return receipt requested, or, in the
case of notice by facsimile transmission, when properly transmitted, addressed
as follows or to such other address as may be hereafter designated in writing by
one party to the other:
If to Purchaser: Cover-All Technologies Inc.
00 Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
If to Seller: Xxxxx Risk Services, Inc.
000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
19. ASSIGNABILITY AND BENEFIT. This Agreement and the benefits or
obligations hereof, may not be assigned in whole or in part, by either party
without the written consent of the other party, except that Purchaser shall have
the right to assign this Agreement to any entity controlled by, or controlling,
it. All of the terms of this Agreement shall be binding upon and inure to the
benefit of, and be enforceable by, the respective legal representatives, the
successors and permitted assigns of Seller and Purchaser.
20. CONSTRUCTION. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New Jersey, without regard
to principals of conflicts of laws. Any legal action that may be brought to
enforce the parties' rights under this Agreement will be brought in New Jersey.
21. ENTIRE AGREEMENT. This Agreement contains all of the agreements and
understandings between the parties hereto and supersedes all prior
correspondence and agreements among the parties hereto, and no oral agreements
or written correspondence shall be held to affect the provisions hereof. All
subsequent changes and modifications to be valid shall be by written instrument
executed by the parties to be bound.
22. SEVERABILITY. The unenforceability or invalidity of any provision of
this Agreement shall not affect the enforceability or validity of the remaining
portions of this Agreement.
23. HEADINGS. The Section headings of this Agreement are included for
purposes of convenience only and shall not affect the construction or
interpretation of any of its provisions.
24. COUNTERPARTS. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, each of which
when executed and delivered shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have caused this Asset Purchase
Agreement to be signed as of the date first above written.
SELLER:
XXXXX RISK SERVICES, INC.
By: /s/ Xxxxxxx Xxxxx
--------------------------
Name:
Title:
PURCHASER:
COVER-ALL TECHNOLOGIES INC.
By: /s/ Xxxx Xxxxxx
--------------------------
Name:
Title:
/s/ Xxxxxxx Xxxxx
---------------------------------
XXXXXXX X. XXXXX, XX.
(as to Section 10 herein)
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SCHEDULE 1 - ASSETS
-------------------
1. All program code (both source and object code) pertaining to or
making up the Software including, without limitation, all rules and metadata
related thereto or associated therewith, all documentation, design documents,
specifications, flowcharts, notes, outlines, know how and the like created in
connection therewith, and all prior, intermediate and partial versions thereof.
2. All patents, copyrights, trademarks, trade secrets and other
intellectual property and proprietary rights within or derived from the
Software, whether registered or unregistered, known or unknown, xxxxxx or
inchoate.
3. Any other rights and privileges Seller may have with respect to or
derived from the Software, including, without limitation, all rights arising out
of any past, present or future infringement or misappropriation of such Software
or rights related to or derived from such Software and the right to xxx and
recover the same in Seller's own name and to obtain equitable or injunctive
relief for the protection of the Software and rights related to or derived from
the Software.
SCHEDULE 2 - ASSUMED LIABILITIES
--------------------------------
NONE.
