Exhibit 99.1
ASSET PURCHASE AGREEMENT
THIS AGREEMENT, dated as of the 21st day of August, 2007, is between
SLM Holdings, Inc., a Corporation organized and existing under the laws of the
State of Delaware (the "Company" or the "Buyer"), and VerticalFalls Software,
Inc., a corporation organized and existing under the laws of the State of
Virginia (the "Seller" and together with the Buyer, the "Parties").
RECITALS:
WHEREAS, Seller owns the right to use the name "VerticalFalls Software,
Inc." and all copyrights, trademarks and trade names related thereto, as well as
all the assets, bank accounts, intellectual properties, receivables and current
and fixed assets enumerated and described in Exhibit A attached hereto (the
"ASSETS"); and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from the Seller, all of Sellers' right, title and interests in and to the
Assets.
NOW, THEREFORE, in consideration of the mutual covenants herein and
intending to be legally bound hereby, the Parties agree as follows:
SECTION 1. PURCHASE AND SALE
1.01 PURCHASE AND SALE OF ASSETS. At Closing, and subject to the terms
and conditions set forth herein, Seller shall sell, transfer, convey, assign,
grant, convey and deliver to Buyer, and Buyer shall purchase and acquire (i) the
name and the right to use the name "VerticalFalls Software, Inc." and all
copyrights, trademarks and trade names related thereto; and (ii) all the Assets
of the Seller enumerated in Exhibit A. Seller covenants that it will not use the
name "VerticalFalls Software, Inc." to market to or solicit potential or
existing customers or employees of the Seller or Buyer. The Assets to be
purchased and acquired shall be free and clear of all liens, mortgages, pledges,
security interests, charges, claims, restrictions, and encumbrances created by,
through or under Seller, except for those enumerated in Schedule 1.01. The
consideration to be paid herein shall be allocated among the Assets as indicated
in Exhibit C.
1.02 METHOD OF CONVEYANCE. The sale, transfer, conveyance assignment
and delivery by Seller of the Assets to the Buyer shall be effected by Seller's
execution and delivery of an Assignment of the Assets substantially in the form
of Exhibit B attached hereto (the "Assignment").
SECTION 2. CONSIDERATION; CLOSING
2.01 CONSIDERATION. The consideration (the "Consideration") (as
allocated in Exhibit C) for the Assets to be sold, transferred and conveyed by
Seller to Buyer pursuant to this Agreement shall be:
(i) The assumption by the Company of the Seller's trade debt of
$150,000 ("VF Trade Debt") as listed in Schedule 2.01;
(ii) The assumption by the Buyer of the Seller's credit line with
Mercantile Potomac Bank in the maximum amount of $300,000 (the "VF Credit
Line"), and payment of any interest accrued thereon after the Closing date,
which shall be paid monthly by the Buyer (the "VF Credit Line" and together with
the "VF Trade Debt," the "VF Debts"); provided that the assumption by
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the Buyer of the VF Credit Line will not require any of Buyer's executive
officers to personally guarantee the payment thereof.
(iii) The assumption by the Buyer of the Seller's obligation to National Capital
Companies, LLC ("NCC") entered into by the Seller with NCC herein on August 10,
2007, which all parties to this Agreement have agreed to be payable as follows:
a.) A note bearing 8% interest in the amount of $80,000
(the "Note"), payable in full on the earlier of (1) the
Buyer's receipt of aggregate net proceeds from a private or
public offering of its securities amounting to at least
$700,000; or (2) after 120 days upon the execution of this
Agreement.
In the event that gross proceeds are received from a
private offering of the Buyer's securities in excess of
$300,000, the Note shall be paid at a rate of $0.20 for every
dollar received above $300,000.
$25,000 of the Note is personally guaranteed, jointly
and severally, by Xxx Xxxxxxxxxxx and Xxxx Xxxxxxxxx.
b.) A right to receive $0.50 for every dollar collected
by the Buyer from all the royalties collected and received
from Sage, up to a maximum of $70,000.
c.) 500,000 shares of the Buyer's common stock on the
same terms and conditions as the Shares, as defined below.
The assumption by the Buyer of the obligation to NCC in accordance with
the terms of this Agreement supersedes any previous agreement between NCC and
Seller.
(iv) The Buyer shall also issue and deliver to the Seller's Chief
Executive Officer, Xxx Xxxxxxxxxxx, 2,612,500 shares of the Buyer's common stock
and to the Seller's President, Xxxx Xxxxxxxxx, 2,137,500 shares of the Buyer's
common stock (the shares of the Buyer's common stock to be transferred to each
of Xx. Xxxxxxxxxxx and Xx. Xxxxxxxxx shall hereinafter be referred to as the
"Shares").
It is the intent and agreement of the parties herein that the Shares
delivered as part of the consideration herein shall at all points in time have
the same rights, privileges, and preferences as the shares that may be held from
time to time by Xxxxx Xxxxxxx. To the extent any change occurs in the rights,
privileges, and preferences of the common stock currently held by Xxxxx Xxxxxxx,
the same changes will be reflected in the interests granted to the Seller
pursuant to this agreement.
2.02 PAYMENT OF CONSIDERATION. On the Closing Date (as defined below),
Buyer shall pay the Consideration through the issuance and delivery of
certificates representing the Shares, as well as by delivering to NCC the Note
and shares of common stock required under Section 2.01 (iii) above.
2.04 THE CLOSING. The closing (the "Closing") of the transactions
defined by this Agreement will take place on or before August 21, 2007 (the
"Closing Date"), at the offices of Xxxxxxx Savage LLP at 000 Xxxxxxxxx Xxx., 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or on such other date or at such other time and
place as the Parties may hereafter agree in writing. The parties may also elect
to effect the Closing by transmittal of documents by courier, email and/or
facsimile and the agreed execution of said documents. Time is of the essence in
Closing.
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2.05 ACTS SUBSEQUENT TO CLOSING. On the Closing Date, the Buyer shall
enter into a three year employment agreement with Xxx Xxxxxxxxxxx
("Xxxxxxxxxxx") under which Xxxxxxxxxxx shall commit to serve as an Executive
Officer of the Buyer, as well as to serve as a member of the Board of Directors
thereof. The terms of Xxxxxxxxxxx'x employment by the Buyer will be governed by
the employment agreement to be entered into by and between the Buyer and
Xxxxxxxxxxx of even date herewith.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller hereby represents and warrants to the Buyer, as of the date
hereof and as of the Closing Date, in addition to all the other representations
and warranties of Seller contained herein, that:
3.01 OWNERSHIP OF ASSETS. Seller represents that it is the sole owner
of the Assets, free and clear of any liens, mortgages, pledges, security
interests, charges, claims, restrictions and encumbrances, except as set forth
in Schedule 1.01 hereof, as well as of the name VerticalFalls Software, Inc. and
all copyrights, trademarks and trade names related thereto.
3.02 OWNERSHIP OF TRADE NAME. To the best of Seller's knowledge and
belief, tHE Seller has obtained all rights to use, and is the sole legal owner
of the trade name "VerticalFalls Software, Inc." and all trademarks related
thereto.
3.03 PAYMENT OF ROYALTIES. Seller represents that all royalty payments
owed and payable to the Seller under any agreements to which it is a party or
third party beneficiary are current and have been paid on a timely basis without
need of demand for payment made by the Seller.
3.04 NUMBER OF USERS. Regarding FAct licenses and active customers
utilizing its software and products (per Exhibit A Customer/Prospect Lists), the
Seller represents to the Buyer the following:
Based on VF records, information provided to Seller by Sage Software and
information provided to Seller by its customers, there are currently 8207 active
Fact users; and an additional 4595 copies of Fact software that have been
delivered to clients.
3.05 CORPORATE ORGANIZATION, ETC. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Virginia having all requisite power and authority to carry on its business and
to own, lease and operate its properties and assets including the Assets.
3.06 AUTHORIZATION, ETC. Seller has all requisite power and authority
to execute, deliver and perform its obligations under the Agreement. Seller has
taken all corporate action required by law or otherwise to be taken to authorize
Seller's execution and delivery of this Agreement and Seller's consummation of
the transactions contemplated hereby. This Agreement is valid and binding upon
Seller and is enforceable in accordance with its terms, except that such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to the enforcement of
creditors' rights.
3.07 NO VIOLATION. Neither the execution and delivery of this Agreement
by Seller nor the consummation of the transactions contemplated hereby by Seller
will violate any provisions of the Articles or Certificate of Incorporation or
By-Laws of the Seller, or with or without notice, lapse of time or both, would
constitute a default under, or result in the termination or invalidity
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of, or accelerate the performance required by, or cause the acceleration of the
maturity of any debt or obligation pursuant to, any agreement or commitment to
which Seller is a party or by which Seller is bound, or violate any statute or
law or any judgment, decree, order, regulation or rule of any court or
governmental authority.
3.08 INVESTMENT PURPOSE. The Seller's Chief Executive Officer and
President represents that it is acquiring the Shares solely for its own account,
for investment purposes, and not with a view to the distribution or resale of
such Interests.
3.09 The Seller also undertakes and warrants that it, for a period of 5
years, its principals, officers and directors will not solicit or pursue any
form of professional relationship with any and all of the Seller's former or
prospective customers or with any present or prospective customers of the
Company.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer hereby represents and warrants to the Seller, as of the date
hereof and as of the Closing Date, in addition to all the other representations
and warranties of Buyer contained herein, that:
4.01 CORPORATE ORGANIZATION, ETC. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware having all requisite power and authority to carry on its business and
to own, lease and operate its properties and assets including the Assets.
4.02 AUTHORIZATION, ETC. Buyer has all requisite power and authority to
execute, deliver and perform its obligations under the Agreement. Buyer has
taken all corporate action required by law or otherwise to be taken to authorize
Buyer's execution and delivery of this Agreement and Buyer's consummation of the
transactions contemplated hereby. This Agreement is valid and binding upon Buyer
and enforceable in accordance with its terms, except that such enforcement may
be subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to the enforcement of
creditors' rights.
4.03 NO VIOLATION. Neither the execution and delivery of this Agreement
by Buyer nor the consummation of the transactions contemplated hereby by Buyer
will violate any provisions of the Articles or Certificate of Incorporation or
By-Laws of the Buyer, or with or without notice, lapse of time or both, would
constitute a default under, or result in the termination or invalidity of, or
accelerate the performance required by, or cause the acceleration of the
maturity of any debt or obligation pursuant to, any agreement or commitment to
which Buyer is a party or by which Buyer is bound, or violate any statute or law
or any judgment, decree, order, regulation or rule of any court or governmental
authority.
4.04 VALIDITY OF SHARES. The Shares issued to the Seller as part of the
consideration for this Agreement shall be duly authorized, validly issued and
fully paid and non-assessable and shall, as of the Closing Date, represent
approximately 10.9% of the authorized and outstanding shares of the capital
stock of the Company.
SECTION 5. CERTAIN COVENANTS AND AGREEMNTS
5.01 CONSUMMATION OF TRANSACTIONS. Each of the Parties agrees to use
its best efforts to take or cause to be taken, all action, and to do, or cause
to be done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the
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transactions contemplated by this Agreement as expeditiously as practicable. In
case at any time after the date hereof any further action is necessary or
desirable to carry out the purposes of this Agreement, the appropriate party
will take all such necessary action, including without limitation, the execution
and delivery of such further instruments and documents as may be reasonably
requested by the other party or parties for such purposes or otherwise to
complete or perfect the transactions contemplated hereby.
5.02 RELEASE OF PERSONAL GUARANTEE. Upon Buyer's receipt, at any time
after the execution of this Agreement, of aggregate net proceeds from private or
public offerings of its securities amounting to at least $5,000,000
cumulatively, the Buyer hereby agrees to obtain the release of the personal
guarantees given by Xxx Xxxxxxxxxxx and Xxxx Xxxxxxxxx in relation to the VF
Credit Line.
5.03 TRANSITION SUPPORT. The Seller's President, Xxxx Xxxxxxxxx,
undertakes to provide the Buyer, for the period specified, the requested
transition support by providing the services stipulated in Exhibit D hereof,
without additional compensation therefore other than as provided herein.
SECTION 6. DELIVERIES BY BUYER
6.01 OFFICERS' CERTIFICATES. At Closing, Buyer shall furnish the Seller
with certificates dated the Closing Date (i) confirming Buyer's performance of
and compliance with all agreements, obligations and conditions required by this
Agreement to be performed or complied with by it on or prior to the Closing
Date, (ii) confirming that the representations and warranties of Buyer contained
in this Agreement are true, complete and accurate in all respects, and (iii)
confirming the due execution of the employment agreement between Buyer and
Xxxxxxxxxxx.
6.02 ADDITIONAL DOCUMENTS. At Closing Buyer shall deliver to Seller the
Instruments of Conveyance and the Certificates representing the Shares for the
purpose of effecting the transactions provided for and contemplated by this
Agreement.
SECTION 7. DELIVERIES BY SELLER
7.01 OFFICERS' CERTIFICATES. At Closing, Seller shall furnish the Buyer
with certificates dated the Closing Date (i) confirming Seller's performance of
and compliance with all agreements, obligations and conditions required by this
Agreement to be performed or complied with by it on or prior to the Closing
Date, and (ii) confirming that the representations and warranties of the Seller
contained in this Agreement are true, complete and accurate in all respects.
7.02 ASSIGNMENT DOCUMENTS. At Closing, Seller shall deliver to Buyer
the Assignment for the Assets and all other transfer documents reasonably
requested by Buyer's counsel to effectuate the transaction.
SECTION 8. REGISTRATION RIGHTS
(a) Piggy-Back Rights.
(i) If at any time following an initial public
offering of the Company's securities the Company proposes to register its
securities under the Securities Act of 1933, as amended (the "Securities Act")
for sale to the public (including shelf registration on Form S-3), whether for
its own account or for the account of other security holders for sale to the
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public (except for registrations pursuant to registration statements on Form
X-0, X-0 or another form not available for registering the), the Company shall
give written notice to the Seller of such proposed registration at least twenty
(20) days prior to the filing of a registration statement. Upon the written
request of the Seller, given within ten (10) days after receipt of any such
notice, to register any of the Conversion Shares ("Eligible Securities"), the
Company will use reasonable efforts to cause the Eligible Securities as to which
registration shall have been so requested to be covered by the registration
statements proposed to be filed by the Company (the "Piggyback Registration")
and to cause such Piggyback Registration to become and remain effective for a
period of not less than 120 days thereafter (or until such time as all
securities sold thereunder shall have been sold).
(ii) If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriter thereof advises the Company in writing (with a copy to the Seller)
that in its opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering, the Company
will include in such registration: (A) first, the securities the Company
proposes to sell; and (B) second, the securities any other security holder of
the Company (including the Seller) proposes to sell in proportion to the number
of securities each proposes to sell.
(iii) If a Piggyback Registration is an
underwritten secondary registration on behalf of the Company's security holders,
and the managing underwriter thereof advises the Company in writing (with a copy
to the Seller) that in its opinion the number of securities requested to be
included in such registration exceeds the number which can be sold in such
offering, the Company will include in such registration: (A) first, the
securities the security holders of the Company which have exercised contractual
demand registration rights in connection with such registration propose to sell,
in proportion to the number of securities each proposes to sell; and (B) second,
the securities any other security holder of the Company (including the Seller)
proposes to sell in proportion to the number of securities each proposes to
sell.
(b) Indemnity. The Company will indemnify and hold
harmless the Seller, the officers, directors, partners and employees of the
Seller and each underwriter of securities sold by the Seller pursuant to Section
8(a)(i) (and any Person who controls the Seller or underwriter within the
meaning of Section 15 of the Securities Act) against all claims, losses,
damages, liabilities, actions and expenses resulting from any untrue statement
or alleged untrue statement of a material fact contained in a prospectus or in
any related registration statement, notification or the like or from any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as the same may have been based on information furnished in
writing to the Company by the Seller or such underwriter expressly for use
therein and used in accordance with such writing. The Company agrees to
reimburse each indemnified Person for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such loss, claim,
damage, liability, action or expense. Such indemnity shall remain in full force
and effect irrespective of any investigation by any Person indemnified above.
(c) Expenses. The Company shall pay all expenses incurred
by complying with Section 8(a)(i), including without limitation all registration
and filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees and expenses (including
counsel fees) incurred in connection with complying with state securities or
"Blue Sky" laws (other than those which by law must be paid by the selling
security holders), fees of the National Association of Securities Dealers, Inc.,
transfer taxes, fees
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or transfer agents and registrars and stock exchange listing fees, but excluding
all underwriting discounts and selling commissions applicable to the sale of
Eligible Securities. All expenses of participating sellers other than those
assumed by the Company in the Note attached hereto shall be borne by such
sellers in proportion to the number of shares sold by each seller or as they may
otherwise agree.
(d) Registration Covenants of the Company. In the event
that any securities of the Company are to be registered pursuant to this Section
8, the Company covenants and agrees that the Company will use its best efforts
to effect the registration and cooperate in the sale of the Eligible Securities
to be registered and will take such other actions as shall be reasonably
requested by the Seller in connection with the Piggyback Registration.
SECTION 9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
9.01 SURVIVAL OF REPRESENTATIONS. Notwithstanding any investigation at
any time made by or on behalf of any party hereto, all representations and
warranties contained in this Agreement shall survive from and after the date
hereof until one year after the date of this Agreement (the "Survival Date").
9.02 INDEMNITY BY PARTIES. Each of the Buyer and the Seller agree to
defend, indemnify and hold harmless the other party against any and all demands,
claims, actions or causes of action, losses, liabilities, damages, assessments,
deficiencies, taxes, costs and expenses, including without limitation, interest,
penalties and reasonable attorneys' fees and expenses asserted against, imposed
upon or paid, incurred or suffered by the other as a result of, arising from or
in connection with (i) any breach or inaccuracy of any representation or
warranty of such party in this Agreement or (ii) any breach of any of its
covenant or agreement contained in this Agreement.
9.03 SUCCESSORS. Notwithstanding anything to the contrary contained
herein, the merger, consolidation, liquidation, dissolution or winding up of, or
any similar transaction with respect to either party shall not affect in any
manner the obligations of such party pursuant to this paragraph or any other
term or provision of this Agreement, and each party covenants and agrees to make
the adequate provision for its liabilities and obligations hereunder in the
event of any such transaction.
SECTION 10. MISCELLANEOUS PROVISIONS
10.01 AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified and supplemented by the Parties only by written instrument signed by or
on behalf of the party to be charged thereunder.
10.02 WAIVER OF COMPLIANCE. Any failure of either of the Parties to
comply with any obligation, covenant, agreement or condition herein may be
expressly waived in writing by an authorized officer of the other party, but
such waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel,
with respect to any subsequent or other failure.
10.03 EXPENSES. Each party shall be responsible for the payment of all
of the expenses incurred by it in connection with the negotiation, preparation,
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby, including, but not limited to, any sales,
use, income and transfer taxes incurred by such party in this transaction.
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10.04 NOTICES. All notices, requests, demands, and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand or mailed, certified or registered mail,
with postage prepaid as follows:
If to Buyer: SLM Holding, Inc.
000 Xxxx Xxxxxx Xxxx., Xxxxx X,
Xxxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxx
With a Copy to: Xxxxxxx Xxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
or to such person or address as Buyer shall furnish to Seller in writing.
If to Seller: VerticalFalls Software, Inc.
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxxxxxx, Xxxx Xxxxxxxxx
With a copy to: 00000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
or to such other person or address as Seller shall furnish to Buyer in writing.
10.05 BINDING EFFECT; ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the Parties
and their respective heirs, administrators, executors, legal representatives,
successors and assigns; but, neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other party.
10.06 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to its
principals of conflicts of law.
10.07 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute the same instrument.
10.08 HEADINGS. The headings of the sections and articles of this
Agreement are inserted for convenience only and shall not constitute a part
hereof or affect in any way the meaning or interpretation of this Agreement.
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10.09 ENTIRE AGREEMENT, This Agreement sets forth the entire agreement
and understanding of the Parties in respect of the subject matter contained
herein, and supersedes all prior agreements, promises, letters of intent,
covenants, arrangements, communications, representation or warranties, whether
oral or written, by and party hereto or by any Related Person or by any Related
Person of any party hereto. All Exhibits attached hereto and all documents and
other instruments delivered or to be delivered pursuant to the terms hereof are
hereby expressly made a part of this Agreement as fully as though set forth
herein, and all references herein to the terms "this Agreement," "hereunder",
"herein", "hereby" or "hereto" shall be deemed to refer to this Agreement and to
all such writings.
10.10. THIRD PARTIES. Except as specifically set forth or referred to
herein, nothing in this Agreement, expressed or implied, is intended or shall be
construed to confer upon or give to any person, firm, partnership, corporation
or other entity other than the Parties and their successors or permitted
assigns, any rights or remedies under or by reason of this Agreement.
10.11. SEVERABILITY. The invalidity of anyone or more of the phrases,
sentences, clauses, paragraphs or subparagraphs contained in this Agreement
shall not affect the enforceability of the remaining portions of this Agreement
or any part hereof, all of which are inserted conditionally on their being valid
in law, and, in the event that any one or more of the words, phrases, sentences,
clauses, paragraphs or subparagraphs contained in this Agreement shall be
construed as if such invalid phrase or phrases, sentence or sentences, clause or
clauses, section or sections, paragraph or paragraphs, or subparagraph or
subparagraphs had not been inserted.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed as of the date first written.
SELLER:
VERTICALFALLS SOFTWARE, INC.
By:
---------------------------------
Xxx Xxxxxxxxxxx, Chief Executive Officer
By:
---------------------------------
Xxxx Xxxxxxxxx, President
BUYER:
SLM HOLDINGS, INC
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Xxxxx Xxxxxxx, Executive Chairman
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NATIONAL CAPITAL COMPANIES, LLC
By:
---------------------------------
Xxxxxx Xxxxx, President (in relation to
section 2.01 (iii))
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EXHIBIT A
ASSETS OF VERTICALFALLS SOFTWARE, INC.
TO BE SOLD PURSUANT TO ASSET PURCHASE AGREEMENT
Software:
o All VerticalFalls-owned FAct and ACT!-related tools, utilities, and
customizations
o VerticalFalls website and all related materials
o VerticalFalls portal and all related materials
o VerticalFalls marketing and sales tracking system
o The rights to use all FAct-related software owned by Sage as defined in the
Sage FAct Asset Purchase Agreement
Copyrights and Trademarks:
All copyrights and trademarks relating to VerticalFalls Software, Inc.
Following contracts (4), subject to their terms:
o Sage FAct Asset Purchase Agreement
o Morgan Xxxxxxx IIG IT FAct Enterprise Task Order 2
o Morgan Xxxxxxx Charleston, West Virginia FAct Task Order Extension Lease
o Wachovia Securities Atlantic City, New Jersey Complex FAct Lease
Customer/Prospect Lists:
To be delivered upon execution of this agreement in a separate file
EXHIBIT B
FORM OF ASSIGNMENT OF ASSETS
This Assignment is effective as of August 15, 2007, by and between SLM
Holdings, Inc. ("Buyer") and VerticalFalls Software, Inc. ("Seller"), pursuant
to that certain Asset Purchase Agreement ("APA") dated as of the 15th day of
August, 2007.
WITNESSETH
WHEREAS, Buyer and Seller are parties to the APA, pursuant to which
Sellers shall sell and Buyers shall purchase the assets described in Exhibit A
to said APA attached hereto and incorporated herein.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which the parties
acknowledge, the Buyer and Seller, intending to be legally bound, hereby agree
as follows:
1. DEFINED TERMS. Except as otherwise set forth herein,
capitalized terms used herein shall have the meanings assigned
to them in the APA.
2. ASSIGNMENT. Pursuant to the terms and subject to the
conditions of the APA, Seller hereby conveys, assigns, and
transfers to Buyer, its successors and assigns, all of
Seller's right, title, and interest in and to the assets
described in Exhibit A ("Assets").
3. FURTHER ASSURANCES. Each party hereto agrees from time to
time, subsequent to the date hereto, to execute and deliver
such instruments or further assurances, as may be reasonably
necessary or desirable to give effect to the provisions of
this Assignment.
4. AMENDMENTS, WAIVERS, ETC. Neither this Assignment nor any term
hereof may be amended, waived, or terminated other than by an
instrument in writing, signed by each party hereto.
IN WITNESS WHEREOF, each of the parties has caused this Assignment to
be duly executed and delivered as of the date first above written.
SELLER:
VerticalFalls Software, Inc.
By: (Xxx Xxxxxxxxxxx, CEO)
By: (Xxxx Xxxxxxxxx, President)
BUYER:
SLM Holdings, Inc.
By: (Xxxxx Xxxxxxx, Executive Chairman)
EXHIBIT C
Allocation of Consideration
Contracts, Subject to Their Terms $50,000
Customer/Prospect Lists $50,000
Goodwill and Related Materials $400,000 (Balance of Consideration)
EXHIBIT D
TRANSITION SUPPORT AGREEMENT FOR XXXX XXXXXXXXX
This agreement serves to formalize transition support to be provided by Xxxx
Xxxxxxxxx after execution of the Asset Purchase Agreement dated: August 21,
2007.
Services to be provided by Xxxx include:
o Training of SLM staff as required for:
o all Xxxxxx Xxxxxxx related processes
o all Sage related processes
o general sales processing
o General knowledge transfer for:
o Intellectual property issues
o Sales
o Client list
o Handling Xxxxxx Xxxxxxx Help Desk and Sales interface related issues
as during the transition to SLM (approximately 90 days)
o Handling Sage sales processing issues as requested by SLM
(approximately 90 days)
SCHEDULE 1.01
ROYALTIES, OVERRIDES AND FEES
Until such time as: (a) Xxx Xxxxxxxxxxx'x name and Xxxx Xxxxxxxxx'x name are
both removed from the VF Credit Line; (b) all their individual guarantees of
such credit line are released; and (c) all VF Trade Debt has been satisfied in
full, Buyer shall apply any and all royalties/earn-out payments payable by Sage
under the Sage FAct Asset Purchase Agreement to the VF Credit Line first and the
VF Trade Debt second (excluding the amounts due to NCC under 2.01 (iii) of this
Agreement). Upon full satisfaction of the VF Trade Debt and the VF Credit Line,
additional proceeds received from the Sage FAct Asset Purchase Agreement up to
the amount of $100,000.00 shall be delivered and paid to the Seller by the
Buyer. Specifically, any proceeds received from the Sage Fact Asset Purchase
Agreement in excess of VF Trade Debt and the VF Credit Line amounts (as detailed
in section 2.01 above) and up to $550,000 will be paid to Seller upon receipt by
Buyer.
