ASSET ACQUISITION AGREEMENT
by and among
TENERA, INC.,
a Delaware corporation,
TENERA TECHNOLOGIES, LLC
a Delaware limited liability company,
and
SPEAR TECHNOLOGIES, INC.,
a California corporation
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THIS ASSET ACQUISITION AGREEMENT (the "Agreement") is made this 14th
day of November, 1997, by and among TENERA, INC. ("TENERA"), a Delaware
corporation, and TENERA TECHNOLOGIES, LLC (the "LLC"), a Delaware limited
liability company (sometimes collectively referred to herein as "Seller"), on
the one hand, and SPEAR TECHNOLOGIES, INC., a California corporation
("Buyer"), on the other hand. Capitalized terms not otherwise defined herein
are defined in Article I.
RECITALS
A. The LLC is a wholly owned subsidiary of TENERA, through which
TENERA conducts its transportation technology business (the "Business").
B. Buyer is a corporation newly formed by members of management of
TENERA for the purpose of acquiring all of the assets and liabilities of the
Business.
C. Buyer desires to purchase and assume from the Seller, on the
following terms and conditions, the Assets and the Assumed Liabilities.
D. Seller desires to sell and assign to Buyer, on the following
terms and conditions, the Assets and the Assumed Liabilities.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants, representations, warranties, conditions, and agreements
hereinafter expressed, the Parties agree as follows:
ARTICLE I.
DEFINITIONS
"Assets" means all contracts, leases and distribution licenses
(collectively, "Contracts"), proprietary software, tangible personal property
and other assets owned or used by or in connection with the Business set forth
on Schedule A, all right, title and interest in assets used by or in
connection with the Business that TENERA possesses and has the right to
transfer, and all right, title and interest that the LLC possesses and has the
right to transfer in and to its other assets and property, real, personal, and
mixed, tangible and intangible, of whatever kind, and all goodwill of the
Business and value thereof as a going concern, except the Retained Assets.
Without limiting the generality of the foregoing, the Assets include the
following items:
(a) all accounts and notes receivable and deposits (excluding
cash and cash equivalents)of the LLC;
(b) all Intellectual Property of the LLC, or used by or in
connection with Business, and documentation thereof and the right and power to
assert, defend and recover title thereto in the same manner and to the same
extent as Seller could or could cause to be done if the transactions
contemplated hereby did not occur, and the right to recover for past damages
on account of the infringement, misuse, or theft thereof;
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(c) all records, including business, engineering, and other
records, and all associated documents, discs, tapes, and other storage or
recordkeeping media of the LLC and the Business, including but not limited to
all sales data, customer lists, accounts, bids, contracts, supplier records,
and other data and information relating to the Business, but excluding
original copies of the corporate minute books of the LLC, which books Seller
will retain and permit Buyer access to or, in the event Seller desires to
dispose of such books, will turn over to Buyer;
(d) all claims and rights under the Licenses and Contracts;
and
(e) all other claims against others, rights and choses in
action arising from the Business, including those arising under insurance
policies, liquidated or unliquidated.
"Assumed Liabilities" means all liabilities and obligations of the
LLC, or relating to or arising out of the Assets or the Business (whether
known or unknown, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or unliquidated,
and whether due or to become due) other than the Retained Liabilities,
including without limitation:
(a) all liabilities and obligations of the LLC and the
Business set forth on Schedule B;
(b) all liabilities of the LLC for unpaid taxes with respect
to periods prior to the Closing;
(c) all liabilities of the LLC for transfer, sales, use, and
other taxes (excluding income taxes) arising in connection with the
consummation of the transactions contemplated hereby;
(d) all liabilities and obligations for severance or any other
claim asserted by any employee of the LLC, all of which are set forth on
Schedule C (the "Transferred Employees"), or under any employee benefit plan
in which any Transferred Employee was a participant;
(e) all liabilities and obligations of or relating to the LLC
with respect to environmental matters; and
(f) all obligations of the LLC to indemnify any person
(including any LLC manager or member) with respect to any matter arising prior
to the Effective Time, by reason of the fact that such person was a member,
manager, officer, employee or agent of the LLC or was serving at the request
of the LLC as a partner, trustee, director, officer, employee or agent of
another entity (whether such indemnification is for judgments, damages,
penalties, fines, costs, amounts paid in settlement, losses, expenses, or
otherwise and whether such indemnification is pursuant to any law, charter
document, operating agreement, agreement, or otherwise); provided, however,
that the Assumed Liabilities shall not include any liability or obligation of
TENERA or the LLC under or arising out of this Agreement or the consummation
of the transactions contemplated hereby.
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"Business" shall have the meaning set forth in Recital A
herein.
"Closing" means the consummation of the transactions
contemplated by this Agreement.
"Closing Date" means November 14, 1997 or, if the conditions to
Closing are not by then satisfied, on such Closing Date and upon satisfaction
of such conditions as the Parties shall mutually agree.
"Effective Time" shall mean the effective time of the Closing,
which shall be as of the close of business on the Closing Date.
"Intellectual Property" means any copyrighted work and
registrations thereof and applications therefor, trade secret, software
program, invention, process, and item of proprietary know-how and other
intellectual property, and all licenses, sublicenses, and agreements in
respect thereof, in each case used or licensed by or to Seller, except those
included in the Retained Assets.
"License" means each license, permit, approval, registration or
certificate required for the conduct of Business.
"Party" means either Buyer or Seller, and "Parties" means all
of them.
"Retained Assets" means (i) all cash and cash equivalents of
the LLC, (ii) all rights in and to any and all of the TENERA trade name and
trademarks set forth on Schedule D.
"Retained Liabilities" means any and all (i) liabilities
accrued prior to the Effective Time for salary owed to any Transferred
Employee, and (ii) intercompany liabilities of the LLC to TENERA set forth on
Schedule E.
ARTICLE II.
PURCHASE AND SALE OF ASSETS
2.1 Assets to be Purchased. Subject to the terms and
conditions hereof, on the Closing Date and as of the Effective Time, Seller
hereby agrees to sell to Buyer all right, title and interest of Seller in and
to all of the Assets.
2.2 Assumed Liabilities. Subject to the terms and conditions
hereof, on the Closing Date and as of the Effective Time, Seller hereby agrees
to assign and transfer to Buyer and Buyer hereby agrees to assume the Assumed
Liabilities.
2.3 Consideration. The consideration for the Assets shall be
the aggregate of (i) One Million Three Hundred Thousand Dollars ($1,300,000),
plus an amount equal to all cash payments made in connection with the Business
after October 31, 1997 until the Effective Time (excluding salaries of the
Transferred Employees accrued prior to November 1, 1997) as set forth on
Schedule F (the "Cash Consideration"), payable all in cash by wire transfer of
immediately
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available funds, (ii) Three Hundred Thousand Dollars ($300,000)represented by
a promissory note in the form attached hereto as Exhibit A (the "Note"), (iii)
a warrant to purchase shares of the common stock of Buyer in the form attached
hereto as Exhibit B (the "Warrant"), plus (iv) the amount of the Assumed
Liabilities (collectively, the "Purchase Price").
2.4 Closing. The Closing shall take place on the Closing Date
at the offices of TENERA, Inc., Xxx Xxxxxx, Xxxxx Xxxxx, Xxxxx 0000, Xxx
Xxxxxxxxx, XX 00000, or if the conditions to Closing are not by then
satisfied, on such Closing Date, and upon satisfaction of such conditions as
the Parties shall mutually agree and designate.
2.5 Deliveries of Seller at Closing. At Closing, subject to
the conditions to the Seller's obligations in Article VI, Seller shall execute
and deliver to Buyer the documents identified in Section 5.7.
2.6 Deliveries of Buyer at Closing. At Closing, subject to
the conditions to the Buyer's obligations in Article V, Buyer shall execute
and deliver to Seller the items and documents identified in Sections 6.4 and
6.5.
2.7 Allocation. The Parties agree to allocate the Purchase
Price among the Assets for all purposes in accordance with Schedule G.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF SELLER
TENERA and the LLC, jointly and severally, hereby make the
following representations and warranties, each of which is true and correct on
the date hereof and shall be true and correct on the Closing Date, and each of
which shall survive the Closing Date and the consummation of the transactions
contemplated hereby.
3.1 Corporate and LLC Existence. TENERA is a corporation, and
the LLC is a limited liability company, each of which is duly organized,
validly existing and in good standing under the laws of Delaware.
3.2 Approval; Binding Agreement. The execution and delivery
of this Agreement has been duly authorized and approved by all necessary
corporate or limited liability company action, as applicable, of each of
TENERA and the LLC, and such authorization and approval has not been revoked.
Pursuant to such authorization and approval, each of TENERA and the LLC has
full power and authority to enter into this Agreement and to perform its
obligations hereunder. This Agreement is the legal, valid and binding
obligation of each of TENERA and the LLC, enforceable against each of them
according to its terms.
3.3 No Breach of Charter Documents or Agreements. The
execution of this Agreement and the consummation of the transactions
contemplated hereby has not and will not constitute or result in the breach of
any of the provisions of, or constitute a default under, the articles of
incorporation or by-laws of TENERA, the articles of organization or the
operating agreement of the LLC, or any material agreement or commitment to
which either is a party or by
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which either is bound.
3.4 Broker's Fees. Seller has not retained any broker, finder or
agent or agreed to pay any brokerage fees, finder's fees or commissions with
respect to the transactions contemplated by this Agreement.
3.5 Disclaimer of Representations and Warranties. Seller makes no
other representation or warranty, express or implied, at law or in equity, in
respect of any of the Assets, Assumed Liabilities or operations of the
Business, including, without limitation, with respect to title,
merchantability or fitness for any particular purpose, and any such other
representations or warranties are hereby expressly disclaimed. Buyer hereby
acknowledges and agrees that the Buyer is purchasing the Assets on an "as-is,
where-is" basis.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties,
each of which is true and correct on the date hereof and will be true and
correct on the Closing Date, and each of which shall survive the Closing Date
and the consummation of the transactions contemplated hereby.
4.1 Corporate Existence. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
California.
4.2 Approval; Binding Agreement. The execution and delivery of
this Agreement has been duly authorized and approved by all necessary
corporate action of Buyer, and such authorization and approval has not been
revoked. Pursuant to such authorization and approval, Buyer has full power
and authority to enter into this Agreement and to perform its obligations
hereunder. This Agreement is the legal, valid and binding obligation of
Buyer, enforceable against Buyer according to its terms.
4.3 No Breach of Articles or Agreements. The execution of this
Agreement and the consummation of the transactions contemplated hereby has not
and will not constitute or result in the breach of any of the provisions of,
or constitute a default under, the articles of incorporation or by-laws of
Buyer, or any material agreement or commitment to which Buyer is a party or by
which it is bound.
4.4 Broker's Fees. Buyer has not retained any broker, finder or
agent or agreed to pay any brokerage fees, finder's fees or commissions with
respect to the transactions contemplated by this Agreement.
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ARTICLE V.
CONDITIONS TO BUYER'S OBLIGATIONS
The obligations of Buyer to consummate the transactions provided for
in this Agreement shall be subject to the satisfaction of each of the
following conditions on or before the Closing Date, subject to the right of
Buyer to waive any one or more of such conditions:
5.1 Representations and Warranties of Seller. The representations
and warranties of Seller contained in this Agreement and in the documents to
be delivered to Buyer pursuant hereto and in connection herewith shall be true
and correct in all respects on the date hereof and on the Closing Date as
though such representations and warranties were made on the Closing Date.
5.2 Approval by TENERA. The Board of Directors of TENERA shall
have approved the execution and delivery of this Agreement by TENERA and the
LLC and the transactions contemplated hereby in accordance with all applicable
requirements of law and the charter documents of TENERA and the LLC.
5.3 Performance of this Agreement. Seller shall have duly
performed or complied with all of the obligations to be performed or complied
with by it under the terms of this Agreement on or prior to the Closing Date.
5.4 No Material Adverse Change. There shall have been no material
adverse change, actual or threatened, in the Business (including the Assets
and Assumed Liabilities), whether or not covered by insurance, as a result of
any cause whatsoever.
5.5 No Lawsuits. No suit, action or other proceeding or
investigation shall be threatened or pending before or by any court or
governmental agency concerning this Agreement or the consummation of the
transactions contemplated hereby. No governmental agency shall have
threatened or directed any request for information concerning this Agreement,
the transactions contemplated hereby or the consequences or implications of
such transactions to Buyer or Seller, or any officer, director, employee or
agent of either of them.
5.6 No Restrictions. There shall exist no conditions, restrictions
or reservations affecting the title to or utility of the Assets which would
prevent Buyer from occupying and utilizing the Assets, or any part thereof, to
the same extent that Seller might continue to do so if the sale and transfer
contemplated hereby did not take place, except for the failure to obtain any
third party consent which may be required in connection with the transfer of
any of the Assets.
5.7 Delivery of Closing Documents. Buyer shall receive from Seller
on the Closing Date:
(a) A Xxxx of Sale in the form attached hereto as Exhibit C
conveying to Buyer all of Seller's right, title and interest in and to the
Assets, duly executed by Seller.
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(b) An Assignment in the form attached hereto as Exhibit D
assigning to Buyer all of Seller's interest in and to the Contracts,
Intellectual Property and Licenses, duly executed by Seller.
(c) A Certificate of TENERA to the effect that each of the
conditions specified in Section 5.1 - 5.6 is satisfied.
5.8 License Agreement. On or before the Closing Date, Buyer and
TENERA shall have entered into a license agreement in the form attached as
Exhibit E pursuant to which TENERA shall grant Buyer a fully paid, exclusive
license and right to use the TENERA trade name and trademarks as currently
used in connection with the Business as it is currently conducted for a period
of one (1) year from the Effective Date.
5.9 Further Assurances. Buyer shall have received such further
instruments and documents as may reasonably be required to carry out the
transactions contemplated hereby and to evidence the fulfillment of the
agreements herein contained and the performance of all conditions to the
consummation of such transactions.
ARTICLE VI.
CONDITIONS TO SELLER'S OBLIGATIONS
The obligations of Seller to consummate the transactions provided
for in this Agreement shall be subject to the satisfaction of each of the
following conditions on or before the Closing Date, subject to the right of
Seller to waive any one or more of such conditions:
6.1 Representations and Warranties of Buyer. The representations
and warranties of Buyer contained in this Agreement, and in documents to be
delivered to Seller pursuant hereto and in connection herewith shall be true
and correct in all respects on the date hereof and on the Closing as though
such representations and warranties were made on the Closing Date.
6.2 Performance of this Agreement. Buyer shall have duly performed
or complied with all of the obligations to be performed or complied with by it
under the terms of this Agreement on or prior to the Closing Date.
6.3 No Lawsuits. No suit, action or other proceeding or
investigation shall be threatened or pending before or by any court or
governmental agency concerning this Agreement or the consummation of the
transactions contemplated hereby. No governmental agency shall have
threatened or directed any request for information concerning this Agreement,
the transactions contemplated hereby or the consequences or implications of
such transactions to Buyer or Seller, or any officer, director, employee or
agent of either of them
6.4 Delivery of the Purchase Price . Seller shall receive from
Buyer on the Closing Date the Cash Consideration, and the Note and Warrant
duly executed by Buyer.
6.5 Delivery of Closing Documents. Seller shall receive from Buyer
on the
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Closing Date:
(a) An Assumption of the Assumed Liabilities in the form
attached hereto as Exhibit F duly executed by Buyer.
(b) A Certificate of Buyer to the effect that each of the
conditions specified in Section 6.1 - 6.3 above is satisfied.
6.6 Further Assurances. Seller shall have received such further
instruments and documents as may reasonably be required to carry out the
transactions contemplated hereby and to evidence the fulfillment of the
agreements herein contained and the performance of all conditions to the
consummation of such transactions.
ARTICLE VII.
INDEMNIFICATION
7.1 Indemnification by Buyer. Buyer shall indemnify, defend and
hold harmless each of TENERA and the LLC, any corporation or other entity
affiliated with TENERA and the LLC, and any member, manager, director,
officer, employee, shareholder or agent of any of them (an "Indemnified
Party") from and against all obligations, debts, claims, liabilities, losses,
costs, deficiencies and expenses, including without limitation reasonable
attorneys' fees, costs of litigation and investigation, interest and penalties
in connection therewith ("Losses") which may be sustained by any Indemnified
Party and arise from (i) the breach of any agreement, covenant,
representation, warranty, or other obligation of Buyer made or incurred under
or pursuant to this Agreement or any document delivered pursuant hereto; or
(ii) the operation of the Business by Buyer after the Effective Time.
7.2 Indemnification by Seller. Seller shall indemnify, defend and
hold harmless each of Buyer, any corporation or other entity affiliated
therewith, and any member, manager, director, officer, employee, shareholder
or agent of any of them (an "Indemnified Party") from and against all
obligations, debts, claims, liabilities, losses, costs, deficiencies and
expenses, including without limitation reasonable attorneys' fees, costs of
litigation and investigation, interest and penalties in connection therewith
("Losses") which may be sustained by any Indemnified Party and arise from the
breach of any agreement, covenant, representation, warranty, or other
obligation of Seller made or incurred under or pursuant to this Agreement or
any document delivered pursuant hereto.
7.3 Participation in Litigation. In the event any suit or other
proceeding is initiated against any Indemnified Party with respect to which
such Indemnified Party alleges the other party (the "Indemnifying Party") is
or may be obligated to indemnify an Indemnified Party hereunder, Indemnifying
Party shall be entitled to defend, on behalf of the Indemnified Party, such
suit or proceeding, at the expense of Indemnifying Party and by counsel of its
choosing, provided that (i) such counsel is reasonably satisfactory to the
Indemnified Party, and (ii) Indemnified Party shall be entitled to participate
in such suit or proceeding with counsel of its choosing at its own expense,
which counsel shall be afforded access to all information pertinent
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to such suit or proceeding. Indemnifying Party shall not settle or otherwise
compromise any such suit or proceeding without the prior consent of such
Indemnified Party if the effect of such settlement or compromise would be to
impose liability on any such Indemnified Party hereunder.
7.4 Claims Procedure. In the event from time to time any
Indemnified Party has or will suffer any Losses for which Indemnifying Party
is obligated to indemnify it hereunder, it shall promptly notify Indemnifying
Party in writing of the matter, specifying therein the reason why such
Indemnified Party believes that such Indemnifying Party is or will be
obligated to indemnify, the amount, if liquidated, to be indemnified, and the
basis on which such Indemnified Party has calculated such amount; if not yet
liquidated, the notice shall so state. Indemnifying Party shall (i) pay any
amount to be indemnified hereunder, or (ii) undertake and commence a defense
of the Indemnified Party regarding any such matter, within a reasonable period
of time but in any event not more than 30 days after receipt of notice from
the Indemnified Party. The failure or delay of any Indemnified Party to
provide notice hereunder shall not effect such party's right to
indemnification hereunder in the absence of actual prejudice to Indemnifying
Party resulting from such failure or delay.
ARTICLE VIII.
MISCELLANEOUS
8.1 Expense Sharing Arrangement. The parties hereby agree to use
reasonable good faith efforts to enter into an agreement relating to the
shared use and allocation of costs of the office space, equipment and general
and administrative personnel located at Xxx Xxxxxx, Xxxxx Xxxxx, Xxxxx 0000,
Xxx Xxxxxxxxx, XX 00000, pursuant to which Buyer will reimburse Seller for its
allocable portion of all direct costs incurred by Seller in connection with
such shared facilities.
8.2 Consents. In the event that the transfer or assignment of any
Contract or other Asset requires the consent of any third party, the parties
hereby agree to cooperate in good faith to obtain such consent and shall
execute and deliver all such further instruments and documents and take all
such other actions as may reasonably be required in connection therewith and
the consummation of the transactions contemplated hereby. Specifically, in
the event that any Contract is not assignable to Buyer, the parties shall
cooperate in good faith to structure an arrangement (such as a subcontract
between Seller and Buyer, as subcontractor) so that each party receives the
same economic benefit as if the Contract had actually been so assigned. Buyer
shall indemnify and hold harmless Seller and any Seller Indemnified Party in
the manner and to the extent set forth in Article VII against any Losses which
may be sustained by Seller in connection with any such arrangement or the
failure to obtain any such assignment.
8.3 Assignment; Binding Agreement.
(a) Neither this Agreement nor any of the rights or
obligations hereunder may be assigned without prior written consent of the
Parties.
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(b) This Agreement shall be binding upon and shall inure to
the benefit of the Parties and their respective successors and permitted
assigns.
8.4 Confidentiality; Publicity. Except (i) as required by law,
(ii) after such information has become generally available to the public other
than in violation of this Agreement, (iii) to any Party's attorneys or
accountants, (iv) to third parties to the minimum extent necessary in
connection with the preparation of income tax returns and financial statements
and in connection with lending transactions, or (v) by the Buyer in connection
with obtaining investments or financing for the consummation of the
transactions contemplated hereby, no Party hereto will disclose to any person
or entity the financial terms of this Agreement without the prior written
consent of the other Parties, which consent may be withheld by such Parties in
their sole discretion. On or promptly after the Closing, the Parties will
cooperate in good faith in preparing and issuing a public announcement
relating the Closing.
8.5 Bulk Sales. The parties hereby waive compliance with any
applicable law governing bulk sales. Buyer agrees to indemnify, defend and
hold harmless Seller from and against all loss, cost or expenses, resulting
from the assertion of claims made against the Assets sold hereunder or against
Seller by creditors under any bulk sales law with respect to liabilities and
obligations of Seller assumed by Buyer hereunder, such indemnity to be in
accordance with the provisions of Article VII hereof.
8.6 Remedies. Nothing contained herein is intended to or shall be
construed to limit the remedies which either party may have against the other
in the event of a breach of or default under this Agreement, it being intended
that any remedies shall be cumulative and not exclusive.
8.7 Entire Agreement and Modification. This Agreement, including
the Exhibits and Schedules attached hereto and the documents delivered
pursuant hereto, constitutes the entire agreement between the parties. No
changes of, modifications of, or additions to this Agreement shall be valid
unless the same shall be in writing and signed by all Parties.
8.8 Severability. If any provision of this Agreement shall be
determined to be contrary to law and unenforceable by any court of law, the
remaining provisions shall be severable and enforceable in accordance with
their terms.
8.9 Counterparts. This Agreement may be executed in one or more
identical counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument.
8.10 Headings; Interpretation. The Article and Section headings
contained in this Agreement are inserted for convenience only and shall not
affect in any way the meaning or interpretation of the Agreement. Both
parties have participated substantially in the negotiation and drafting of
this Agreement and each party hereby disclaims any defense or assertion in any
litigation or arbitration that any ambiguity herein should be construed
against the draftsman.
8.11 Governing Law. This Agreement shall be construed and
interpreted
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according to the laws of the State of California.
8.12 Payment of Fees and Expenses. Each Party shall pay all fees
and expenses of such Party's respective counsel, accountants and other experts
and all other expenses incurred by such Party incident to the negotiation,
preparation and execution of this Agreement and the consummation of the
transactions contemplated hereby.
8.13 Notices. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given if the same
shall be in writing and shall be delivered personally or sent by registered or
certified mail, postage prepaid or by reputable overnight courier (e.g.,
Federal Express) and addressed as set forth below:
If to Seller:
TENERA, INC.
Xxx Xxxxxx, Xxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
copy to:
Xxxxx Xxxx LLP
000 Xxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxx, Esq.
If to Buyer:
SPEAR TECHNOLOGIES, INC.
Xxx Xxxxxx, Xxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
copy to:
Xxxx Xxxx Xxxx & Xxxxxxxxxxx000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Any such notice personally served shall be deemed received upon
receipt. Any notice sent by mail, certified or registered, shall be deemed
received three (3) business days after deposit in the mail. Any notice sent by
reputable overnight courier shall be deemed received on
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the next business day following deposit with the courier. Any party may change
the address to which notices are to be addressed by giving the other parties
notice in the manner herein set forth.
8.14 Further Assurances. The Parties shall execute and deliver all
such further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and
to evidence the fulfillment of the agreements herein contained.
8.15 Arbitration. Any controversy or claim among the Parties
arising out of or relating to this Agreement, or the breach hereof, shall be
finally and conclusively settled and resolved by arbitration pursuant to the
commercial rules and under the auspices of the American Arbitration
Association ("AAA"). Venue for such arbitration shall be located at the
offices of the AAA located in San Francisco, California.
8.16 Attorneys' Fees and Costs. If any action is brought for
enforcement of this Agreement, the prevailing Party shall be entitled to
recover from the other party all attorneys' fees, expenses and costs, court
costs and costs of arbitration, litigation and investigation incurred by the
prevailing Party in protecting or enforcing its rights hereunder.
IN WITNESS WHEREOF, the Parties have executed this Agreement as
of the day and year first above written.
SELLER: TENERA, INC.
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------
Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
TENERA TECHNOLOGIES, LLC
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------
Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
BUYER: SPEAR TECHNOLOGIES, INC.
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
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TABLE OF SCHEDULES AND EXHIBITS
Schedules
A Assets
B Assumed Liabilities
C Transferred Employees
D Retained Assets
E Retained Liabilities
F Post 10/31/97 Payments
G Purchase Price Allocation
Exhibits
A Promissory Note
B Warrant
C Xxxx of Sale
D Assignment of Contracts, Intellectual Property and Licenses
E License Agreement
F Assumption of Liabilities
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