(C) EXHIBITS
EXHIBIT 10.1
MERGER AGREEMENT
AND
PLAN OF REORGANIZATION
This MERGER AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") dated as
of September 27, 2001, is by and among Crossvue, Inc. ("Crossvue"), a Delaware
corporation, @xxx.xxx ("@pos"), a Delaware corporation and Crossvue Acquisition
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Corporation ("CAC"), a Delaware corporation and certain shareholders of Crossvue
set forth on the signature page hereto (collectively referred to as the
"Principal Shareholders").
RECITALS
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A. WHEREAS, @pos is in the business of providing merchants and
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consumers technologies that incorporate secure interactive transaction systems
for the point of sale environment.
B. WHEREAS, Crossvueis in the business of providing merchants and
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consumers with services for web enabled secure electronic receipt storage and
retrieval.
C. WHEREAS, CAC is a wholly owned subsidiary of @pos.
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D. WHEREAS, the Boards of Directors of each of the Crossvue, @pos
and CAC believe it is in the best interests of each company and their respective
stockholders that @pos acquire Crossvue through the statutory merger of CAC with
and into Crossvue (the "Merger") and, in furtherance thereof, have approved the
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Merger.
E. WHEREAS, on the Merger, among other things, (i) all of the issued
and outstanding shares of Preferred Stock of the Crossvue shall be converted
into shares of Common Stock of @pos as set forth herein, (ii) all outstanding
common stock, options (except for options to acquire shares of Common Stock
pursuant to Crossvue's 2000 Stock Option Plan), warrants or any other
convertible security to acquire shares of Common Stock, Preferred Stock or any
capital stock of Crossvue shall be cancelled and (iii) @pos shall assume the
options outstanding under Crossvue's 2000 Stock Option Plan as set forth in
Section 1.3(d) hereof.
F. WHEREAS, Crossvue, the Principal Shareholders, @pos and CAC desire
to make certain representations, warranties, covenants and other agreements in
connection with the Merger.
AGREEMENT
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NOW, THEREFORE, in consideration of the terms, conditions, agreements and
covenants contained herein, and in reliance upon the representations and
warranties contained in this Agreement, the parties hereto agree as follows:
MERGER OF CROSSVUE WITH CAC
Merger and Survival of Crossvue: In the manner and subject to the terms and
conditions set forth herein, CAC shall be merged with and into Crossvue in
accordance with the provisions of, and with the effect provided in the Delaware
General Corporation Law ("DGCL"). Crossvue shall be the surviving corporation
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after the Merger with CAC and shall after the close of the transactions set
forth herein, exist as a wholly owned subsidiary of @pos, created and governed
by the laws of the State of Delaware.
Effective Date: If all of the conditions precedent to the obligations of each
of the parties as hereinafter set forth shall have been satisfied or shall have
been waived, the Merger shall become effective on the date (the "Effective
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Date") the certificate of merger, in the form set forth as Exhibit A hereto, is
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presented for filing with the Secretary of State of Delaware (the "Merger
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Filing"). This shall take place on, or as soon as practical after, the Closing
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Date as defined herein.
Consideration for the Merger
Shares of the Constituent and Surviving Corporations: On the Effective Date,
each share of Crossvue Common Stock shall, by virtue of the Merger and without
any action on the part of the holder thereof, or any other action whatsoever, be
cancelled. Accordingly, the Common Stockholders of Crossvue shall receive no
shares of @pos Common Stock, Preferred Stock or any other security of @pos. In
exchange for the shares of Crossvue Series A and B Preferred Stock, @pos shall
issue Four Million One Hundred Fifty-Nine Thousand Nine Hundred Thirty-Seven
(4,159,937) shares (which includes the Escrow Shares described in Section 1.7
hereof) of its Common Stock respectively (the @pos Common Stock shall be
referred to as ("@pos Merger Stock"). For purposes of this Agreement, @pos
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shall be deemed to have a value of Fifteen Million Five Hundred Thousand Dollars
($15,500,000) and Crossvue shall be deemed to have a value of Six Million Three
Hundred Thirty-Six Thousand and Thirty-Two Dollars ($6,336,032). Consequently,
upon the Effective Date, the former holders of Crossvue's Series A and B
Preferred Stock shall own approximately twenty-nine percent (29%) of the
outstanding shares of Common Stock of @pos on a fully diluted basis. 14.3% of
the shares of @pos Merger Stock shall be issued to the holders of Series A
Preferred Stock of Crossvue and 85.7% of the shares of @pos Merger Stock shall
be issued to the holders of Series B Preferred Stock of Crossvue. Each share of
Series A Preferred Stock of Crossvue shall be converted into the right to
receive a fraction of a share of @pos Merger Stock, the numerator of which is
the number of shares of @pos Merger Stock to be issued to the holders of the
Series A Preferred Stock of Crossvue and the denominator of which is the number
of outstanding shares of Series A Preferred Stock of Crossvue. Each share of
Series B Preferred Stock of Crossvue shall be converted into the right to
receive a fraction of a share of @pos Merger Stock, the numerator of which is
the number of shares of @pos Merger Stock to be issued to the holders of the
Series B Preferred Stock of Crossvue and the denominator of which is the number
of outstanding shares of Series B Preferred Stock of Crossvue.
Adjustments: If, between the date of this Agreement and the Closing Date, the
outstanding shares of @pos Common Stock or Crossvue Preferred Stock are changed
into a different number or class of shares by reason of any stock split,
division or subdivision of shares, stock dividend, reverse stock split,
consolidation of shares, reclassification, recapitalization or other similar
transaction, then the consideration for the Merger shall be appropriately
adjusted. In the event that the capitalization of @pos immediately prior to the
Effective Time is different than the representation made by @pos in Section 5.3
of this Agreement, the number of shares of @pos Merger Stock to be issued on the
Merger shall be adjusted, if necessary, so that the number of shares of @pos
Merger Stock issued to persons who are shareholders of Crossvue immediately
prior to the Merger shall be that number of shares of Common Stock of @pos as
shall represent 29% of the number of shares of Common Stock of @pos outstanding
immediately following the Merger on a fully-diluted basis.
No Fractional Shares or Options: No fractional shares of @pos Common Stock
shall be issued in connection with the Merger, and no certificates or scrip for
any such fractional shares or options shall be issued.
Crossvue 2000 Stock Option Plan: On the Effective Date, @pos shall assume the
options outstanding under Crossvue's 2000 Stock Option Plan. If an option
holder exercises his/her option which is assumed by @pos, such option holder
shall receive no shares of @pos Common Stock, Preferred Stock or any other
security of @pos, Crossvue or any other entity.
Effect of Merger:
As of the Effective Date, all of the following shall occur:
The separate existence and corporate organization of CAC shall cease and
Crossvue as the corporation surviving the Merger with CAC, shall possess the
rights, privileges, powers and franchises, and be subject to all the
restrictions, disabilities and duties of, the constituent corporations in the
manner specified in the DGCL.
Except as otherwise agreed by the parties, the Certificates of Incorporation of
@pos and Crossvue, as in effect on the Effective Date, shall continue in effect
without change or amendment until the Closing Date.
The By-laws of @pos and Crossvue, as in effect on the Effective Date, shall
continue in effect without change or amendment.
The directors and officers of @pos, prior to the Closing Date, shall assume
corresponding positions as directors and officers of Crossvue immediately
following the Closing Date. The current officers and directors of Crossvue
shall execute a termination agreement with Crossvue, its assigns and successors
in a form acceptable to @pos; provided that such release shall not release the
surviving corporation from Crossvue's obligations to indemnify such officer or
director for actions taken in his capacity as shown. Immediately following the
Closing, Xxxxx Xxxxxx shall be appointed a director of @pos.
Dissenting Shares:
Notwithstanding anything to the contrary contained in this Agreement, no more
than five percent (5%) of the shares of Crossvue on an as-converted basis shall
be dissenting shares under applicable law.
Further Action: If, at any time after the Effective Time, any further action is
determined by @pos to be necessary or desirable to carry out the purposes of
this Agreement, the officers and directors of @pos shall be fully authorized (in
the name of Crossvue) to take such action.
Escrow: In order to satisfy Crossvue's indemnification obligations set forth in
Section 13, Nine Hundred Eighty Thousand Three Hundred Sixty Three (980,363)
shares of @pos Common Stock shall be placed in escrow, pursuant to an escrow
agreement attached hereto as Exhibit B (the "Escrow Agreement"). Each share of
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@pos Common Stock shall be valued at the price per share determined by dividing
Fifteen Million Five Hundred Thousand Dollars ($15,500,000) by the number of
shares of @pos Common Stock on a fully diluted basis immediately prior to the
Closing of the Merger. At the end of each of the twelve month, eighteen month
and twenty four month periods following the Closing Date, in accordance with the
Escrow Agreement, escrowed shares not subject to claims for indemnification,
shall be released from escrow as follows:
At the end of the twelve month period, Three Hundred Thousand (300,0000)
shares of Common Stock shall be released;
At the end of the eighteen month period, Three Hundred Thousand (300,000)
shares of Common Stock shall be released; and
At the end of the twenty four month period, the remaining Three Hundred
Eighty Thousand Three Hundred Sixty Three (380,363) shares of Common Stock
shall be released, if any of the Three Hundred Eighty Thousand Three
Hundred Sixty-Three (380,363) twenty four month escrowed shares of Common
Stock are not required to provide for claims for breaches of
representations, warranties, covenants, agreements or other indemnification
obligations.
A representative of the Crossvue shareholders shall be appointed to represent
such shareholders (the "Representative") with respect to any claims of breaches
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of representations, warranties, covenants, agreements or indemnification
obligations identified by @pos during the two-year period. Such claims shall be
dealt with by the parties to the Escrow Agreement upon the terms and subject to
the conditions set forth therein. The shares deposited in the Escrow Fund shall
be deposited ratably from the @pos Merger Stock to be issued to US Ventures,
Crosspoint 2000 Q, LLP, Crosspoint 2000, LLP and Imperial Venture Partners.
CONDUCT OF BUSINESS PENDING CLOSING; SHAREHOLDER APPROVAL
Crossvue, @pos and CAC covenant that between the date hereof and the Closing
Date (as defined below):
Access/Due Diligence: Each party shall afford the others and its respective
legal counsel, accountants and other representatives full access, during normal
business hours, throughout the period prior to the Closing Date, (i) to all of
the books, contracts and records of such party and shall furnish the other party
during such period with all information concerning such party that the other
party may reasonably request, and (ii) to its business premises and properties
in order to conduct inspections at the requesting party's expense.
Conduct of Business: During the period from the date hereof to the Closing
Date, the business of Crossvue shall be operated by Crossvue in the usual and
ordinary course of such business and in material compliance with the terms of
this Agreement. Without limiting the generality of the foregoing:
Crossvue shall use its reasonable efforts to (i) to minimize its expenses and
the use of its cash consistent with continuing to operate its business as such
business is currently being conducted; (ii) complete or maintain all existing
arrangements, including but not limited to filings, licensing, affiliate
arrangements, transferals, leases and other arrangements referred to in Section
3.6 in full force and effect in accordance with its existing terms; (iii)
maintain the integrity of all Crossvue Intellectual Property and confidential
information of Crossvue as represented as warranted herein; (iv) comply in all
material respects with all applicable laws; and (v) preserve the goodwill of,
and Crossvue's business and contractual relationship with, suppliers, customers
and others having business relations with Crossvue; and Crossvue shall not (i)
sell or transfer any of its assets or property other than in the usual and
ordinary course of its business; (ii) shall not make any distribution, whether
by dividend or otherwise, to any of its shareholders or employees except for
compensation to employees and payments to associated companies for goods and
services, in the usual and ordinary course of business; (iii) not declare any
dividend or other distribution; (iv) redeem or otherwise acquire any shares of
its capital stock or other securities; (v) issue or grant rights to acquire
shares of its capital stock or other securities; (vi) hire or terminate any
employees other than in the usual and ordinary course of business; (vii) enter
into any material contracts; (viii) incur any material debt or other obligation;
or (ix) agree to do any of the foregoing without the prior written consent of
@pos.
Exclusivity: For a period of forty-five (45) days from the date hereof, the
parties' agree that without the others' prior written consent @pos, Crossvue
shall not (nor will it permit any of its officers, directors, members,
shareholders, agents, representatives or affiliates (collectively "Agents"), to
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directly or indirectly, take any of the following actions with any party other
than @pos and its designees: (i) solicit, encourage, initiate or participate in
any negotiations or discussions with respect to, any offer or proposal to
acquire all or substantially all of Crossvue's business and properties or a
majority of Crossvue's capital stock whether by merger, purchase of assets,
tender offer or otherwise, or effect any such transaction, (ii) disclose any
information not customarily disclosed to any person concerning Crossvue's
business and properties or afford to any person or entity access to its
properties, books or records, (iii) assist or cooperate with any person to make
any proposal to purchase all or any part of Crossvue's capital stock or assets,
other than inventory in the ordinary course of business, or (iv) enter into any
agreement with any person providing for the acquisition of Crossvue (whether by
way of merger, purchase of Crossvue capital stock, purchase of assets, or
otherwise) Crossvue. In the event Crossvue shall receive any offer or proposal,
directly or indirectly, of the type referred to in clause (i) or (iii) above, or
any request for disclosure or access pursuant to clause (ii) above, it shall
immediately inform @pos of and provide to @pos any such offer or proposal and
will cooperate with @pos by furnishing any information it may reasonably
request. If an offer is received by @pos, consistent with the fiduciary
obligation that @pos may then owe to its stockholders, but only to the extent
required by applicable law, such offer may be communicated to the Board of
Directors of @pos and approved by the Board consistent with their fiduciary
duty, provided that @pos will not, except as required by applicable law,
provide information to such offeror. @pos will promptly advise Crossvue of the
identity of such offeror and communicate to Crossvue the terms of any proposal
which it may receive and deliver to Crossvue a copy of any such offer in
writing.
Shareholder Approval: As soon as practical after the execution of this
Agreement, Crossvue shall seek the approval of its shareholders for this
Agreement and the transaction contemplated herein.
REPRESENTATIONS AND WARRANTIES OF CROSSVUE
Except as set forth in the Crossvue Disclosure Schedule, Crossvue represents and
warrants, as of the date hereof and as of the Closing, to @pos as follows, with
the knowledge and understanding that @pos is relying materially upon such
representations and warranties (the term "Knowledge" as used in this Agreement
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with respect to a party's awareness of the presence or absence of a fact, event
or condition shall mean (a) actual knowledge or, (b) the knowledge that would be
obtained if such party conducted itself faithfully and exercised prudence in the
management of his/her/its own affairs):
ORGANIZATION AND STANDING: Crossvue is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. Crossvue
has all requisite corporate power to carry on its business as it is now being
conducted and is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction where such qualification is necessary
under applicable law except where the failure to qualify will not have any
material adverse effect on the business or prospects of Crossvue. The copies of
the Certificate of Incorporation, By-laws and minute books of Crossvue, as
amended to date and attached to Section 3.1 of the Crossvue Disclosure Schedule,
are true and complete copies of these documents as now in effect. The minute
books of Crossvue are accurate in all material respects. The operations now
being conducted by Crossvue have not been conducted under any other name.
CAPITALIZATION; AGREEMENTS:
Crossvue is authorized to issue Thirty Million (30,000,000) shares of Common
Stock, with .001 par value, of which Eight Million Four Hundred Fifty-Three
Thousand Eight Hundred Ninety-Four (8,453,894) are issued and outstanding, and
Nine Hundred Thirty-Eight Thousand Nine Hundred Eighty-Three (938,983) shares of
Series A Preferred Stock, all of which are issued and outstanding, and Ten
Million (10,000,000) shares of Series B Preferred Stock, of which Eight Million
Three Hundred Seventy-Five Thousand Six Hundred Thirty-Four (8,375,634) are
issued and outstanding. The record and beneficial holders of all Crossvue's
securities thereof are as set forth in Section 3.2 of the Crossvue Disclosure
Schedule. All such shares of capital stock that are issued and outstanding are
duly authorized, validly issued and outstanding, fully paid and nonassessable,
and were not issued in violation of the preemptive rights of any person. As of
the Closing there shall be no outstanding Crossvue Options (except for options
to acquire shares of Common Stock pursuant to Crossvue's 2000 Stock Option Plan)
or Warrants. There are no declared or accrued unpaid dividends with respect to
any shares of the Crossvue' capital stock. Except for Crossvue's Common Stock,
Series A and B Preferred Stock, the Warrants which shall be cancelled by
Crossvue, and the options to acquire shares of Common Stock pursuant to
Crossvue's 2000 Stock Option Plan which @pos shall assume as described in
Section 1.3(d) hereof, Crossvue has no other capital stock or securities
authorized, issued or outstanding.
All outstanding shares of Crossvue Common Stock and Preferred Stock, all
outstanding Crossvue Options, and all outstanding Crossvue Warrants have been
issued and granted in compliance with (i) all applicable securities laws and
other applicable legal requirements, and (ii) all material requirements set
forth in the applicable Contracts.
Except for options to acquire shares of Common Stock pursuant to Crossvue's 2000
Stock Option Plan, as a result of the Merger, @pos will be the record and sole
beneficial owner of all outstanding Crossvue capital stock and all rights to
acquire or receive any Crossvue capital stock, whether or not such Crossvue
capital stock is outstanding. There are no voting trusts, proxies, or other
agreements or understandings with respect to the capital stock of the Crossvue.
Subsidiaries: Crossvue owns no subsidiaries nor does it own or have an interest
in any other corporation, partnership, joint venture or other entity.
Authority: Crossvue's Board of Directors has determined that the Merger is fair
to and in the best interests of Crossvue shareholders and has approved and
adopted this Agreement and the Merger and has adopted a resolution recommending
approval and adoption of this Agreement and the Merger by Crossvue shareholders.
This Agreement constitutes, and all other agreements contemplated hereby will
constitute, when executed and delivered by Crossvue in accordance herewith, the
valid and binding obligations of Crossvue, enforceable in accordance with its
respective terms.
Assets: Crossvue has good and marketable title to or licenses to all of the
assets and properties, which it purports to hold as reflected on the most recent
balance sheet comprising a portion of the Crossvue Financial Statements (as
defined below). A full and complete listing of the material assets of Crossvue
is set forth on Section 3.5 of the Crossvue Disclosure Schedule. No material
portion of the assets of Crossvue is subject to any governmental decree or order
to be sold or is being condemned, expropriated or otherwise taken by any public
authority with or without payment of compensation therefore, nor, to Crossvue's
Knowledge, has any such condemnation, expropriation or taking been proposed.
None of the material assets of Crossvue is subject to any restriction that would
prevent continuation of the use currently made thereof or materially adversely
affect the value thereof.
Contracts and Other Commitments:
Section 3.6 of the Crossvue Disclosure Schedule consists of a true and complete
list of all contracts, agreements, commitments and other instruments (whether
oral or written) to which Crossvue is a party that (i) involve a receipt or an
expenditure by Crossvue or require the performance of services or delivery of
goods to, by, through, on behalf of or for the benefit of Crossvue, which in
each case, relates to a contract, agreement, commitment or instrument that
either (A) requires payments, receipts or represents any liability or ongoing
obligation in excess of fifteen thousand dollars ($15,000) per year, or (B) is
not terminable by Crossvue on notice of thirty (30) days or less without penalty
or Crossvue being liable for damages, services, warranties or ongoing
maintenance, or (ii) involves an obligation for the performance of services or
delivery of goods by Crossvue that cannot and in reasonable probability will
not, be completely performed within thirty (30) days from the dates as of which
these representations are made and with there being no continuing liability,
warranty or other obligation to Crossvue, @pos or CAC.
All of the contracts, agreements, commitments and other instruments described in
Section 3.6 of the Crossvue Disclosure Schedule (individually a "Contract and
collectively, the "Contracts") are valid and binding upon Crossvue and, to
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Crossvue's Knowledge, the other parties thereto and are in full force and
effect and enforceable, in accordance with their respective terms, and Crossvue,
nor, to Crossvue's Knowledge, has any other party to any Contract has breached
any provision of, and no event has occurred which, with the lapse of time or
action by a third party, could result in a material default under, the terms
thereof. To the Knowledge of Crossvue, no shareholder of Crossvue has received
any payment from any contracting party in connection with or as an inducement
for causing Crossvue to enter into any Contract.
Crossvue has delivered or made available to @pos and to Silicon Valley Law Group
an accurate and complete copy of each of Crossvue's written contracts listed in
Section 3.6 of the Crossvue Disclosure Schedule.
Litigation: To the Knowledge of Crossvue, there is no claim, action,
proceeding, or investigation pending or threatened against or affecting Crossvue
before or by any court, arbitrator or governmental agency or authority. There
is no strike or unresolved labor dispute relating to Crossvue's employees.
There are no decrees, injunctions or orders of any court, governmental
department, agency or arbitration outstanding against Crossvue or asserted
against Crossvue that have not been paid. There are no Tax (as defined below)
liens upon the assets of Crossvue. There is no valid basis for any assessment,
deficiency, notice, 30-day letter or similar intention to assess any Tax to be
issued to Crossvue by any governmental authority.
Taxes: For purposes of this Agreement, (i) "Tax" (and, with correlative
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meaning, Taxes) shall mean any federal, state, local or foreign income,
alternative or add on minimum, business, employment, franchise, occupancy,
payroll, property, sales, transfer, use, value added, withholding or other tax,
levy, impost, fee, imposition, assessment or similar charge together with any
related addition to tax, interest, penalty or fine thereon; and (ii) "Returns"
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shall mean all returns (including, without limitation, information returns and
other material information), reports and forms relating to Taxes.
Crossvue has duly filed all Returns required to be filed by it. To the
Knowledge of Crossvue, all such Returns were, when filed and are accurate and
complete in all material respects and were prepared in conformity with
applicable laws and regulations. Crossvue has paid or will pay in full or has
adequately reserved against all Taxes otherwise assessed against it through the
Closing Date.
Crossvue is not a party to any pending action or proceeding by any governmental
authority for the assessment of any Tax, and, to the Knowledge of Crossvue, no
claim for assessment or collection of any Tax related to Crossvue has been
asserted against Crossvue that has not been paid. There are no Tax liens upon
the assets of Crossvue. There is no valid basis, to the Knowledge of Crossvue,
for any assessment, deficiency, notice, 30-day letter or similar intention to
assess any Tax to be issued to Crossvue by any governmental authority.
Compliance with Laws and Regulations: Crossvue has complied and is currently
materially complying with all laws, rules, regulations, orders and requirements
(federal, state, local and foreign) applicable to it in all jurisdictions where
the business of Crossvue is conducted or to which Crossvue is subject,
including, without limitation, all applicable federal and state securities laws,
civil rights and equal opportunity employment laws and regulations, and all
federal, antitrust, antimonopoly and fair trade practice laws. There has been
no assertion by any party that Crossvue is in violation in any material respect
of any such laws, rules, regulations, orders, restrictions or requirements with
respect to its operations and no notice in that regard has been received by
Crossvue.
Hazardous Materials: Crossvue has not violated, or received any written notice
from any governmental authority with respect to the violation of any law, rule,
regulation or ordinance pertaining to the use, maintenance, storage,
transportation or disposal of Hazardous Materials. As used herein, the term
"Hazardous Materials" means any substance now or hereafter designated pursuant
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to Section 307(a) and 311 (b)(2)(A) of the Federal Clean Water Act, 33 USC
Sec.Sec. 1317(a), 1321(b)(2)(A), Section 112 of the Federal Clean Air Act, 42
USC Sec. 3412, Section 3001 of the Federal Resource Conservation and Recovery
Act, 42 USC Sec. 6921, Section 7 of the Federal Toxic Substances Control Act, 15
USC Sec. 2606, or Section 101(14) and Section 102 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 USC Sec.Sec.
9601(14), 9602.
No Conflict: The making and performance of this Agreement will not (i) conflict
with or violate the Certificate of Incorporation or the By-laws of Crossvue,
(ii) violate any material laws, ordinances, rules, or regulations, or any order,
writ, injunction or decree to which Crossvue is a party or by which Crossvue or
any of its businesses, or operations may be bound or affected, or (iii) result
in any breach or termination of, or constitute a default under, or constitute an
event which, with notice or lapse of time, or both, would become a default
under, or result in the creation of any encumbrance upon any material asset of
Crossvue under, or create any rights of termination, cancellation or
acceleration in any person under, any Contract.
Employees: Crossvue has no employees that are represented by any labor union or
collective bargaining unit. Section 3.12 of the Crossvue Disclosure Schedule,
lists the directors and officers of the Company.
Financial Statements: The Crossvue Disclosure Schedule contains audited balance
sheets of Crossvue as of December 31, 2000 and related audited statements of
operations, cash flows and shareholders' equity of Crossvue for the periods
ended at such date and unaudited balance sheet dated as of August 31, 2001 and
related unaudited statements of operations, cash flows and shareholders' equity
of Crossvue for the periods ended at such date, (collectively the "Financial
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Statements"). The Financial Statements present fairly, in all material
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respects, the financial position on the dates thereof and results of operations
of Crossvue for the periods indicated, prepared in accordance with generally
accepted accounting principles ("GAAP") consistently applied. There are no
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assets of Crossvue, the value of which is materially overstated in said balance
sheets. There are no liabilities of Crossvue, the value of which is materially
understated or undisclosed in said balance sheets.
Absence of Certain Changes or Events: Except as set forth in the Crossvue
Disclosure Schedule, since August 31, 2001 (the "Balance Sheet Date"), there has
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not been any:
Amendments or changes to the Certificate of Incorporation or Bylaws of
Crossvue, or any capital expenditure or commitment by Crossvue, exceeding
$5,000 individually or $10,000 in the aggregate;
Destruction of, damage to or loss of any asset with a value of $10,000 or
greater, or of any business or customer of Crossvue (whether or not covered
by insurance);
Labor trouble or claim of wrongful discharge or other unlawful employment
practice or action with respect to Crossvue;
Change in accounting methods or practices (including any change in
depreciation or amortization policies or rates) by Crossvue;
Revaluation by Crossvue of any of its assets;
Declaration, setting aside or payment of a dividend or other distribution with
respect to the capital stock of Crossvue or any direct or indirect redemption,
purchase or other acquisition by Crossvue of its capital stock;
Increase in the salary or other compensation payable, or to become payable, by
Crossvue to any of its officers, directors, employees or advisors, or the
declaration, payment or commitment or obligation of any kind for the payment, by
Crossvue of a bonus or other additional salary or compensation to any such
person;
Agreement, contract, covenant, instrument, lease, license or commitment to which
Crossvue is a party or by which it or any of its assets (including intangible
assets) are bound or any termination, extension, amendment or modification the
terms of any agreement, contract, covenant, instrument, lease, license or
commitment to which Crossvue is a party or by which it or any of its assets are
bound other than those entered into in the ordinary course of business
consistent with past practice that do not relate to Crossvue's Intellectual
Property, equipment leases, real estate leases, or customer contracts;
Sale, lease, license or other disposition of any of the assets or properties of
Crossvue or any creation of any security interest in such assets or properties
other than those entered into in the ordinary course of business consistent with
past practices that do not relate to Crossvue's Intellectual Property or
customer contracts;
loan by Crossvue to any person or entity, incurring by Crossvue of any
indebtedness, guaranteeing by Crossvue of any indebtedness, issuance or sale of
any debt securities of Crossvue or guaranteeing of any debt securities of
others, except for advances to employees for travel and business expenses in the
ordinary course of business, consistent with past practice;
Waiver or release of any right or claim of Crossvue including any write-off or
other compromise of any account receivable of Crossvue;
the commencement or notice of any lawsuit, proceeding or investigation by or, to
Crossvue's Knowledge, threat of any lawsuit, proceeding or investigation against
Crossvue or its affairs; any claim or notice of any potential claim of (i)
ownership by any person other than Crossvue with respect to Crossvue's
Intellectual Property or (ii) infringement by Crossvue of any other person's
Intellectual Property;
Issuance or sale, or contract to issue or sell, by Crossvue of any shares of its
capital stock or securities exchangeable, convertible or exercisable therefor,
or any securities, warrants, options or rights to purchase any of the foregoing,
except for options to purchase common stock of Crossvue granted to employees,
consultants or directors of Crossvue in the ordinary course of business
consistent with past practices;
Sale or license of any Crossvue Intellectual Property or entering into of any
agreement with respect to Crossvue Intellectual Property with any person or
entity or with respect to the Intellectual Property of any person or entity, or
(ii) purchase or license of any Intellectual Property or entering into of any
agreement with respect to the Intellectual Property of any person or entity, or
(iii) change in pricing or royalties set or charged by Crossvue to its customers
or licensees or in pricing or royalties set or charged by persons who have
licensed Intellectual Property to Crossvue;
Event or condition of any character that has had a Crossvue material adverse
effect;
Material transaction by Crossvue except in the ordinary course of business as
conducted on that date and consistent with past practices;
Negotiation or agreement by Crossvue or any director, officer or employee
thereof to do any of the things described in the preceding clauses (a) through
(q); or
Occurrence not included in paragraphs (a) through (r) of this Section 3.14 that
has resulted, or which Crossvue has reason to believe, may reasonably be
expected to result in a material adverse change in the business or prospects of
Crossvue.
Government Licenses, Permits, Authorizations: Crossvue has all material
governmental licenses, permits, authorizations and approvals necessary for the
conduct of its business as currently conducted. All such licenses, permits,
authorizations and approvals are in full force and effect, and no proceedings
for the suspension or cancellation of any thereof is pending or threatened.
Employee Benefit Plans:
Section 3.16 of the Crossvue Disclosure Schedule identifies each salary, bonus,
material deferred compensation, material incentive compensation, stock purchase,
phantom stock, profit participation, stock option, severance pay, termination
pay, hospitalization, medical, insurance, supplemental unemployment benefits,
profit-sharing, pension or retirement plan, program or material agreement.
Crossvue has not maintained, sponsored or contributed to, any employee pension
benefit plan (as defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or any similar pension benefit plan
-----
under the laws of any foreign jurisdiction.
Neither the execution, delivery or performance of this Agreement, nor the
consummation of the Merger or any of the other transactions contemplated by this
Agreement, will result in any bonus, golden parachute, severance or other
payment or obligation to any current or former employee or director of any of
Crossvue, or result in any acceleration of the time of payment, provision or
vesting of any such benefits.
Business Locations: Other than as set forth in Section 3.l7 of the Crossvue
Disclosure Schedule, Crossvue does not own or lease any real or personal
property in any state or country.
Intellectual Property:
For the purposes of this Agreement, the following terms have the following
definitions:
"Intellectual Property" shall mean any or all of the following
-----------------------
(i) works of authorship including, without limitation, computer programs, source
code and executable code, whether embodied in software, firmware or otherwise,
documentation, designs, files, records, data and mask works, (ii) inventions
(whether or not patentable), improvements, and technology, (iii) proprietary and
confidential information, trade secrets and know how, (iv) databases, data
compilations and collections and technical data, (v) logos, trade names, trade
dress, trademarks and service marks, (vi) domain names, web addresses and sites,
(vii) tools, methods and processes, and (viii) all instantiations of the
foregoing in any form and embodied in any media.
"Inttellectual Property Rights" shall mean any or all of the
--------------------------------
following and all rights in, arising out of, or associated therewith: (i) all
United States and foreign patents and utility models and applications therefor
and all reissues, divisions, re-examinations, renewals, extensions,
provisionals, continuations and continuations-in-part thereof, and equivalent or
similar rights anywhere in the world in inventions and discoveries including
without limitation invention disclosures ("Patents"); (ii) all trade secrets and
-------
other rights in know how and confidential or proprietary information; (iii) all
copyrights, copyrights registrations and applications therefor, and mask works
and mask work registrations and applications therefor, and all other rights
corresponding thereto throughout the world ("Copyrights"); (iv) all rights in
----------
World Wide Web addresses and domain names and applications and registrations
therefor, all trade names, logos, common law trademarks and service marks,
trademark and service xxxx registrations and applications therefor and all
goodwill associated therewith throughout the world ("Trademarks"); and (v) any
----------
similar, corresponding or equivalent rights to any of the foregoing anywhere in
the world.
"Crossvue Intellectual Property" shall mean any Intellectual
---------------------------------
Property and Intellectual Property Rights, including Registered Intellectual
Property Rights that are owned by Crossvue.
"Registered Intellectual Property Rights" shall mean all United
-----------------------------------------
States, international and foreign: (i) issued Patents; (ii) Trademarks
registered at the U.S. Patent and Trademark Office; (iii) Copyright
registrations; and (iv) any other Intellectual Property Right that is the
subject of a certificate, filing, registration or other document issued by,
filed with, or recorded by, any state, government or other public legal
authority at any time.
Section 3.18 of the Crossvue Disclosure Schedule lists all Registered
Intellectual Property Rights owned or exclusively licensed by, or registered in
the name of, or applied for by the Crossvue (the "Crossvue Registered
--------------------
Intellectual Property Rights") and lists any proceedings or actions before any
------------------------------
court, tribunal (including the United States Patent and Trademark Office (the
"PTO") or equivalent authority anywhere in the world) related to any of the
---
Crossvue Registered Intellectual Property Rights or Crossvue Intellectual
Property.
Crossvue has no Knowledge of any facts or circumstances that would render any
Crossvue Intellectual Property invalid or unenforceable. Without limiting the
foregoing, Crossvue has no Knowledge of any information, materials, facts, or
circumstances, including any information or fact that would constitute prior
art, that would render any of Crossvue's Registered Intellectual Property Rights
invalid or unenforceable, or would adversely affect any pending application for
any Crossvue Registered Intellectual Property Right, and Crossvue has not
misrepresented, or failed to disclose, any facts or circumstances in any
application for any Crossvue Registered Intellectual Property Right that would
constitute fraud or a misrepresentation with respect to such application or that
would otherwise adversely affect the validity or enforceability of any Crossvue
Registered Intellectual Property Right.
Each item of Crossvue Intellectual Property, including all Crossvue Registered
Intellectual Property Rights listed in Section 3.18 of the Crossvue Disclosure
Schedule and to Crossvue's Knowledge, all Intellectual Property licensed to
Crossvue, is free and clear of any liens or other encumbrances. Crossvue is the
exclusive owner of all Crossvue Intellectual Property.
To the extent that any Intellectual Property has been developed or created
independently or jointly by any person other than Crossvue for which Crossvue
has paid, Crossvue has a written agreement with such person with respect
thereto, and Crossvue thereby has obtained ownership of, and is the exclusive
owner of all such Intellectual Property and associated Intellectual Property
Rights by operation of law or by valid assignment.
To the extent that any Intellectual Property has been developed or created at
any time during which Crossvue was or would be deemed a "co-employer" pursuant
to any agreement, contract or similar arrangement, Crossvue (i) has obtained
ownership of, and is the exclusive owner of, or (ii) has obtained a license
(sufficient for the conduct of its business as it is currently conducted or as
reasonably contemplated to be conducted), to all such Intellectual Property and
associated Intellectual Property Rights by operation of law or by valid
assignment.
Crossvue has not transferred ownership of or granted any license of or right to
use or authorized the retention of any rights to use or joint ownership of any
Intellectual Property or Intellectual Property Rights that is or was Crossvue
Intellectual Property, to any other person.
Crossvue's Intellectual Property constitutes all the Intellectual Property and
Intellectual Property Rights used in and/or necessary to the conduct of the
business of Crossvue as it currently is conducted, or is reasonably contemplated
to be conducted, including, without limitation, the design, development,
manufacture, use, import and sale of products, technology and services
(including products, technology or services currently under development).
Following the Closing Date, @pos will be permitted to exercise all of Crossvue's
rights under such contracts, licenses and agreements to the same extent Crossvue
would have been able to had the Merger not occurred and without the payment of
any additional amounts or consideration other than ongoing fees, royalties or
payments which Crossvue would otherwise be required to pay. No person who has
licensed Intellectual Property or Intellectual Property Rights to Crossvue has
ownership rights or license rights to improvements made by Crossvue in such
Intellectual Property which has been licensed to Crossvue.
Except for inbound "shrink-wrap" and generally available commercial binary code
end-user or enterprise licenses and except for technology in the public domain,
all Intellectual Property used in or necessary to the conduct of Crossvue's
business as currently conducted or as reasonably contemplated to be conducted
was written and created solely by either (i) employees of Crossvue acting within
the scope of their employment, or (ii) by third parties who have validly and
irrevocably assigned all of their rights, including Intellectual Property Rights
therein, to Crossvue, or (iii) by third parties who have granted to Crossvue a
license (sufficient for the conduct of Crossvue's business as currently
conducted or as reasonably contemplated to be conducted) to all such third
party's Intellectual Property Rights in such Intellectual Property, and no third
party owns or has any rights to any of the Crossvue Intellectual Property owned
by Crossvue.
The operation of the business of Crossvue as currently conducted or as
reasonably contemplated to be conducted, including but not limited to the
design, development, use, import, manufacture and sale of the products,
technology or services (including products, technology or services currently
under development) of Crossvue did not at any time when conducted by Crossvue,
does not, and to the Knowledge of Crossvue, will not when conducted by @pos in
substantially the same manner following the Closing, infringe or misappropriate
any Intellectual Property Right of any person, violate any right of any person
(including any right to privacy or publicity) or constitute unfair competition
or trade practices under the laws of any jurisdiction, and Crossvue has not
received notice from any person claiming that such operation or any act,
product, technology or service (including products, technology or services
currently under development) of Crossvue infringes or misappropriates any
Intellectual Property Right of any person or constitutes unfair competition or
trade practices under the laws of any jurisdiction (nor does Crossvue have
Knowledge of any basis therefor).
Each item of Crossvue Registered Intellectual Property Rights is valid and
subsisting, and all necessary registration, maintenance and renewal fees in
connection with such Crossvue Registered Intellectual Property Rights have been
paid and all necessary documents and certificates in connection with such
Crossvue Registered Intellectual Property Rights have been filed with the
relevant patent, copyright, trademark or other authorities in the United States
or foreign jurisdictions, as the case may be, for the purposes of maintaining
such Crossvue Registered Intellectual Property Rights. Except as set forth in
Section 3.18 of the Crossvue Disclosure Schedule, there are no actions that must
be taken by Crossvue within sixty (60) days of the Closing Date, including the
payment of any registration, maintenance or renewal fees or the filing of any
responses to the PTO office actions, documents, applications or certificates for
the purposes of maintaining, perfecting or preserving or renewing any Crossvue
Registered Intellectual Property Rights. In each case in which Crossvue has
acquired ownership of any Intellectual Property from any person, Crossvue has
obtained a valid and enforceable assignment sufficient to irrevocably transfer
all rights in such Intellectual Property and the associated Intellectual
Property Rights (including the right to seek past and future damages with
respect thereto) to Crossvue and, to the maximum extent provided for by, and in
accordance with, applicable laws and regulations, Crossvue has recorded each
such assignment with the relevant governmental authorities, including the PTO,
the U.S. Copyright Office, or their respective equivalents in any relevant
foreign jurisdiction, as the case may be. Except as set forth in Section 3.18
of the Crossvue Disclosure Schedule, Crossvue has not claimed a particular
status, including "Small Business Status," in the application for any
Intellectual Property Rights, which claim of status was at the time made
inaccurate or false.
There are no contracts, licenses or agreements between Crossvue and any other
person with respect to Crossvue Intellectual Property under which there is, to
the Knowledge of Crossvue, any dispute regarding the rights and obligations
specified in such agreement, or performance under such agreement including with
respect to any payments to be made or received by Crossvue thereunder. In
addition, to the Knowledge of Crossvue, no person is infringing or
misappropriating any Crossvue Intellectual Property.
Crossvue has taken all commercially reasonable steps to protect Crossvue's
rights in confidential information and trade secrets of Crossvue or as required
by any other person who has provided its confidential information or trade
secrets to Crossvue. Without limiting the foregoing, Crossvue has, and
enforces, a policy requiring each employee, consultant and contractor to execute
proprietary information, confidentiality and assignment agreements substantially
in the form attached hereto to Section 3.18 of the Crossvue Disclosure Schedule,
and all such current and former employees, consultants and contractors of
Crossvue have executed such an agreement. All employees of Crossvue have
entered into a valid and binding written agreement with Crossvue sufficient to
vest title in Crossvue of all Intellectual Property, including all accompanying
Intellectual Property Rights, created by such employee in the scope of his or
her employment with Crossvue.
No Crossvue Intellectual Property or service of Crossvue are currently subject
to any proceeding or outstanding decree, order, judgment, agreement or
stipulation that restricts in any manner the use, transfer or licensing thereof
by Crossvue or may affect the validity, use or enforceability of such Crossvue
Intellectual Property.
All Intellectual Property that is licensed by Crossvue will be fully (subject
only to non-exclusive licenses granted by Crossvue with respect thereto)
transferable, alienable or licensable by @pos without restriction and without
payment of any kind to any third party.
Neither this Agreement nor the transactions contemplated by this Agreement will
result in (i) @pos' granting to any third party any right to or with respect to
any Intellectual Property or Intellectual Property Right owned by, or licensed
to, either of them, (ii) @pos being bound by, or subject to, any non-compete or
other restriction on the operation or scope of its businesses, or (iii) @pos
being contractually obligated to pay any royalties or other amounts to any third
party in excess of any royalties or other amounts that are payable by @pos prior
to the Closing Date.
Existing Arrangements: Crossvue has no Knowledge that, either as a result of
the actions contemplated hereby or for any other reason (exclusive of expiration
of a contract upon the passage of time), any entity having an arrangement with
Crossvue that is material to the business of Crossvue will not continue to
conduct business with @pos after the Closing Date in substantially the same
manner as it has conducted business with Crossvue in the past.
Governmental Approvals: Except as set forth in Section 1.2 as to the Merger
Filing, no authorization, license, permit, franchise, approval, order or consent
of, and no registration, declaration or filing by Crossvue with, any
governmental authority (whether domestic, foreign, federal, state or local) is
required in connection with Crossvue's execution, delivery and performance of
this Agreement.
Transactions with Affiliates: Crossvue is not indebted for money borrowed,
either directly or indirectly, from any of its officers, directors, employees or
any Affiliate (as defined below), in any amount whatsoever; nor are any of its
officers, directors, employees or Affiliates indebted for money borrowed from
Crossvue; nor are there any transactions of a continuing nature between Crossvue
and any of its officers, directors, employees or Affiliates not subject to
cancellation which will continue beyond the Effective Date, including, without
limitation, use of the assets of Crossvue for personal benefit with or without
adequate compensation. For purposes of this Agreement, the term "Affiliate"
---------
shall mean any person that, directly or indirectly, through one or more
intermediaries, controls or is controlled by, or is under common control with,
the person specified. As used in the foregoing definition, the term (i)
"control" shall mean the power through the ownership of voting securities,
contract or otherwise to direct the affairs of another person, and (ii) "person"
shall mean an individual, firm, trust, association, corporation, partnership,
government (whether federal, state, local or other political subdivision, or any
agency or bureau of any of them) or other entity.
No Distributions: Crossvue has not made nor has any intention of making any
distribution or payment to any shareholder with respect to the any Crossvue
security.
Liabilities: Crossvue has no material direct or indirect indebtedness,
liability, claim, loss, damage, deficiency, obligation or responsibility, fixed
or unfixed, xxxxxx or inchoate, liquidated or unliquidated, secured or
unsecured, accrued, absolute, contingent or otherwise ("Liabilities"), whether
-----------
or not of a kind required by generally accepted accounting principles, to be set
forth on a financial statement, other than (i) Liabilities fully and adequately
reflected or reserved against on the Crossvue Balance Sheet, (ii) Liabilities
incurred since the Balance Sheet Date in the ordinary course of the business of
Crossvue, or (iii) Liabilities otherwise disclosed in this Agreement, including
the exhibits and the Crossvue Disclosure Schedule.
Accounts Receivable: All accounts receivable of Crossvue reflected on the
Balance Sheet are valid receivables subject to no material setoffs or
counterclaims and are current and collectible (within 90 days after the date on
which it first became due and payable), net of the applicable reserve for bad
debts reflected in the financial statements provided to @pos or in the Crossvue
Disclosure Schedule. To Crossvue's Knowledge, all accounts receivable reflected
in the financial or accounting records of Crossvue are valid receivables subject
to no material setoffs or counterclaims and are collectible.
No Omissions or Untrue Statements: No representation or warranty made by
Crossvue to @pos or CAC in this Agreement (as modified by the Crossvue
Disclosure Schedule), nor any statement made in any schedule, certificate or
exhibit furnished by the Crossvue or furnished in documents mailed or delivered
to Crossvue's shareholders for use in soliciting their consent to this Agreement
and the Merger, contains or will contain at the Closing Date any untrue
statement of a material fact, or omits, or will omit at the Closing Date, to
state any material fact necessary in order to make the statements contained
herein or therein, in the light of the circumstances under which made, not
misleading.
Insurance: Section 3.26 of the Crossvue Disclosure Schedule sets forth
summaries of all insurance policies and all self insurance programs and
arrangements relating to the business, assets and operations of Crossvue. Each
of such insurance policies is in full force and effect.
Customer Information: Crossvue has sole and exclusive ownership, free and clear
of any liens, of all its customer files and other customer information relating
to its current and former customers (the "Customer Information"). No person or
--------------------
entity, other than Crossvue, possesses any claims or rights with respect to use
of the Customer Information.
REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL SHAREHOLDERS
Each Principal Shareholder, severally but not jointly, further represents
and warrants to @pos and CAC that on the date of this Agreement and as of the
Closing Date Time, as though made on the Closing Date, as follows:
Ownership of Crossvue Capital Stock: Such Principal Shareholder is the sole
record and beneficial owner of the Crossvue capital stock designated as being
owned by such Principal Shareholder opposite such Principal Shareholder's name
in Section 3.2 of the Crossvue Disclosure Schedule, and the shares of Preferred
Stock of Crossvue included in such Crossvue capital stock is to be exchanged
pursuant to this Agreement. Such Crossvue capital stock are not subject to any
liens or to any rights of first refusal of any kind, and such Principal
Shareholder has not granted any rights to purchase such Crossvue capital stock
to any other person or entity. Such Principal Shareholder has the sole right to
transfer such Crossvue capital stock. Such Crossvue capital stock constitutes
all of the Crossvue capital stock owned, beneficially or of record, by such
Principal Shareholder, and such Principal Shareholder shall has no options,
warrants or other rights to acquire Crossvue capital stock other than as set
forth in Section 3.2 of the Crossvue Disclosure Schedule. Upon the Closing,
@pos shall receive good title to such Crossvue capital stock, subject to no
liens retained, granted or permitted by such Principal Shareholder or Crossvue.
Such Principal Shareholder has not engaged in any sale or other transfer of any
Crossvue capital stock in contemplation of the Merger.
Authority: Such Principal Shareholder has all requisite power and authority to
enter into this Agreement and any related agreements to which it is a party and
to consummate the transactions contemplated hereby and thereby. This Agreement
and any related agreements to which such Principal Shareholder is a party have
been duly executed and delivered by such Principal Shareholder, and, assuming
the due authorization, execution and delivery by the other parties hereto and
thereto, constitute the valid and binding obligations of such Principal
Shareholder, enforceable in accordance with their respective terms, except as
such enforceability may be limited by principles of public policy and subject to
the laws of general application relating to bankruptcy, insolvency and the
relief of debtors and to rules of law governing specific performance, injunctive
relief or other equitable remedies.
No Conflict: The execution and delivery by such Principal Shareholder of this
Agreement and any related agreement to which he/she/it is a party does not, and,
the consummation of the transactions contemplated hereby and thereby will not,
conflict with (i) any mortgage, indenture, lease, contract or other agreement or
instrument, permit, concession, franchise or license to which such Principal
Shareholder or any of its properties or assets is subject, or (ii) any judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to such
Principal Shareholder or its properties or assets.
Consents: No consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any governmental entity or any third
party, including a party to any agreement with such Principal Shareholder (so as
not to trigger any conflict), is required by or with respect to the such
Principal Shareholder in connection with the execution and delivery of this
Agreement and any related agreements to which such Principal Shareholder is a
party or the consummation of the transactions contemplated hereby and thereby,
except for (i) such consents, waivers, approvals, orders, authorizations,
registrations, declarations and filings as may be required under applicable
securities laws thereby, and (ii) the filing of the Merger Certificate with the
Secretary of State of the State of Delaware.
REPRESENTATIONS AND WARRANTIES OF @POS AND CAC
@pos and CAC represent and warrant to Crossvue as follows, as of the date
hereof, and as of the Closing Date:
Organization and Standing of @pos: @pos is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and has the corporate power to carry on its business as now conducted and to own
its assets and is duly qualified to transact business as a foreign corporation
in each state where such qualification is necessary except where the failure to
qualify will not have a material adverse effect on the business or prospects of
@pos. The copies of the Articles of Incorporation and By-laws of @pos, as
amended to date, and delivered to Crossvue, are true and complete copies of
those documents as now in effect.
Organization and Standing of CAC: CAC is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
the corporate power to carry on its business as now conducted and to own its
assets and is duly qualified to transact business as a foreign corporation in
each state where such qualification is necessary except where the failure to
qualify will not have a material adverse effect on the business or prospects of
CAC. The copies of the Articles of Incorporation and By-laws of CAC, as amended
to date, and delivered to Crossvue, are true and complete copies of those
documents as now in effect.
Capitalization of @pos: The authorized capital of @pos consists of Twelve
Million (12,000,000) shares of Common Stock, with $0.001 par value, of which
Four Million Six Hundred Ninety Thousand Six Hundred Forty-Three (4,690,643)
shares are issued and outstanding (which represent 4,578,937 shares of @pos
Common Stock on a fully diluted basis), Seventy Thousand (70,000) shares of
Series A Preferred Stock, none of which are issued or outstanding, One Million
Seven Hundred Thousand (1,700,000) shares of Series B Preferred Stock, of which
Four Hundred Sixty Thousand Forty-Seven (460,047) are issued and outstanding
(which represent 933,270 shares of @pos Common Stock on a fully diluted basis),
Twenty-Eight Thousand One Hundred Twenty-Five (28,125) shares of Series C
Preferred Stock, none of which are issued or outstanding and One Million Two
Hundred Seventy-Three Thousand One Hundred Forty-Nine (1,273,149) shares of
Series D Preferred Stock, of which One Million Two Hundred Seventy-Three
Thousand One Hundred Forty-Nine (1,273,149) shares are issued and outstanding
(which represent 1,273,149 shares of @pos Common Stock on a fully diluted
basis). In addition, @pos currently has Two Million One Hundred Seventy-Six
Thousand Eight Hundred Thirty-Eight (2,176,838) options issued and outstanding,
Five Hundred Thousand (500,000) shares of @pos Common Stock reserved for
additional options and @pos currently has warrants to purchase Seven Hundred
Thousand Seven Hundred Twenty (700,720) shares of @pos Common Stock issued and
outstanding. As of the date hereof there are no other rights of conversion or
other rights, agreements, arrangements or commitments relating to the capital
stock of @pos or obliging @pos to issue or sell any shares of its capital stock.
Such outstanding shares of capital stock are duly authorized, validly issued,
fully paid, and non-assessable and were not issued in violation of the
preemptive rights of any person. The @pos Merger Stock to be issued pursuant to
this Agreement, when issued in accordance with the terms of this Agreement, will
be duly authorized, validly issued, fully paid and non-assessable and shall not
have been issued in violation of the preemptive rights of any person.
Capitalization CAC: The authorized capital stock of CAC consists of One Hundred
(100) shares of Common Stock, par value $.001. As of August 31, 2001 Fifty (50)
shares of Common Stock were issued and outstanding. Such outstanding shares of
Common Stock are duly authorized, validly issued, fully paid, and non-assessable
and were not issued in violation of the preemptive rights of any person. As of
the date hereof, there were no outstanding options, warrants or rights of
conversion or other rights, agreements, arrangements or commitments relating to
the capital stock of CAC or obligating CAC to issue or sell an aggregate number
of shares of Common Stock.
Authority: Each of @pos and CAC have all requisite corporate power and
authority to enter into this Agreement and any related agreements to which it is
a party and to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and any related agreements to which it
is a party and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by all necessary corporate action on the part
of @pos and CAC. This Agreement and any related agreements to which @pos and
CAC are parties have been duly executed and delivered by @pos and CAC and
constitute the valid and binding obligations of @pos and CAC, enforceable in
accordance with their terms, except as such enforceability may be limited by
principles of public policy and subject to the laws of general application
relating to bankruptcy, insolvency and the relief of debtors and rules of law
governing specific performance, injunctive relief or other equitable remedies.
No Conflict: The execution and delivery of this Agreement and any related
agreements to which the @pos and/or CAC is a party do not, and the consummation
of the transactions contemplated hereby and thereby will not, conflict with, or
result in any violation of, or default under (with or without notice or lapse of
time, or both), or give rise to a conflict under (i) any provision of the
Certificate of Incorporation, and Bylaws of @pos or the Certificate of
Incorporation and Bylaws of CAC, (ii) any mortgage, indenture, lease, contract
or other agreement or instrument, permit, concession, franchise or license to
which @pos or any of its respective properties or assets are subject and which
has been filed as an exhibit to @pos' filings under the Securities Act of 1933,
as amended (the "Securities Act") or the Securities and Exchange Act of 1934, as
--------------
amended (the "Exchange Act") or to which CAC or any of its properties or assets
------------
are subject or (iii) any judgment, order, decree, statute, law, ordinance, rule
or regulation applicable to @pos or CAC, except, only as to (ii) and (iii)
above, where such conflict would not have a @pos material adverse effect.
Consents: No consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any governmental entity, or any third
party is required by or with respect to @pos or CAC in connection with the
execution and delivery of this Agreement and any related agreements to which it
is a party or the consummation of the transactions contemplated hereby and
thereby, except for (i) such consents, waivers, approvals, orders,
authorizations, registrations, declarations and filings as may be required under
applicable securities laws, (ii) the filing of the Merger Certificate with the
Secretary of State of the State of Delaware, and (iii) such consents, waivers,
approvals, orders, authorizations, registrations, declarations and filings
which, if not obtained or made, would not have a @pos material adverse effect.
SEC Filings; Financial Statements: Except as set forth in the @pos SEC Reports
(as defined below):
@pos has filed all forms, reports and documents required to be filed by @pos
with the SEC (collectively, the "@pos SEC Reports"). The @pos SEC Reports (i)
----------------
at the time they were filed, complied as to form in all material respects with
the requirements of the Securities Act or the Exchange Act, as the case may be,
and (ii) did not at the time they were filed (or if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such filing)
contain any untrue statement of a material fact or omit to state a material fact
require to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. @pos and CAC make no representation or warranty whatsoever
concerning the @pos SEC Reports as of any time other than the time they were
filed.
Each of the consolidated financial statements (including, in each case, any
related notes thereto) (the "@pos Financial Statements") contained in the @pos
-------------------------
SEC Reports has been prepared in accordance with GAAP applied on a consistent
basis throughout the period involved (except as may be indicated in the notes
thereto) and each fairly presents in all material respects the consolidated
financial position of @pos at the respective date thereof and the consolidated
results of its operations and cash flows for the periods indicated, except that
the unaudited interim financial statements were or are subject to normal and
recurring year-end adjustments which were not and are not expected to be,
individually or in the aggregate, materially adverse to @pos.
Material Adverse Effect. Since June 30, 2001, there has not been an @pos
material adverse effect.
No Omissions or Untrue Statements: None of the representations or warranties
made by @pos or CAC in this Agreement, nor any statement made in any schedule or
certificate furnished by @pos pursuant to this Agreement or will contain at the
Closing Date, any untrue statement of a material fact, or omits or will omit at
the Closing Date to state any material fact necessary in order to make the
statements contained herein or therein, in the light of the circumstances under
which made, not misleading.
CLOSING
Date and Time: Subject to this Agreement and the Merger receiving the requisite
approvals of the shareholders of Crossvue and subject to the other provisions of
this Agreement, the parties shall hold a closing (the "Closing") on the next
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business day (or such later date as the parties may agree) following the later
of (a) the date of the meeting of shareholders of Crossvue to consider and vote
upon this Agreement and the Merger, or receipt by Crossvue of the requisite
consents approving the Merger, or (b) the business day on which the last of the
conditions set forth in Sections 7 and 8 hereof is fulfilled or waived, or (c)
September 25, 2001 (such later date, the Closing Date), at the offices of
Silicon Valley Law Group, 000 X. Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx
00000 or such other time and place as the parties may agree upon. In no event
will the Closing occur after October 15, 2001 without the mutual agreement of
the parties.
Crossvue's Closing Deliveries: At the Closing, in addition to documents
referred to elsewhere, Crossvue shall deliver, or cause to be delivered, to
@pos:
a certificate, dated as of the Closing Date, executed by the President or Chief
Executive Officer of Crossvue, to the effect that the representations and
warranties contained in this Agreement are true and correct at and as of the
Closing Date and that Crossvue has complied with or performed in all material
respects all terms, covenants and conditions to be complied with or performed by
Crossvue on or prior to the Closing Date;
certificates representing the outstanding shares of Crossvue Preferred Stock,
fully endorsed for transfer or cancellation excepting shares representing
dissenting shares permitted by this Agreement;
Certified Resolutions of the Board of Directors and a majority of the
shareholders of Crossvue approving the transactions set forth herein;
The Crossvue Disclosure Schedule attached hereto as Exhibit C;
----------
an opinion of Crossvue's counsel, dated as of the Closing Date, in form, scope
and substance reasonably satisfactory to @pos and its counsel;
a Certificate of Good Standing of Crossvue from the Secretary of State of the
Delaware dated within twenty days prior to the Closing;
termination agreements from each of the current officers and directors of by
which each of such officers and directors resign their position effective as of
the Closing (except as set forth in section 1.4(a));
a certified copy of Crossvue's Certificate of Incorporation from the Secretary
of State of the Delaware dated within twenty days prior to the Closing;
the Escrow Agreement attached hereto as Exhibit B;
----------
the Stockholder Representation Agreement;
the Merger Certificate attached hereto as Exhibit A; and
----------
such other documents as @pos or its counsel may reasonably require.
@pos Closing Deliveries: At the Closing, in addition to documents referred to
elsewhere, @pos shall deliver to Crossvue:
a certificate of @pos, dated as of the Closing Date, executed by the President
or Chief Executive Officer of @pos to the effect that the representations and
warranties of @pos contained in this Agreement are true and correct in all
material respects and that @pos has complied with or performed in all material
respects all terms, covenants, and conditions to be complied with or performed
by @pos or prior to the Closing Date;
certificates representing the @pos Merger Stock issuable upon consummation of
the Merger;
an opinion of @pos's counsel, dated as of the Closing Date, in form, scope and
substance reasonably satisfactory to Crossvue; and
a Certificate of Good Standing of @pos from the Secretary of State of the
Delaware dated within twenty days prior to the Closing;
such other documents as Crossvue or its counsel may reasonably require.
CONDITION PRECEDENT TO CROSSVUE'S OBLIGATIONS
The obligation of Crossvue to consummate the Closing is subject to the following
conditions, any of which may be waived by it in its sole discretion:
Compliance by @pos: @pos shall have performed and complied in all material
respects with all agreements and conditions required by this Agreement to be
performed or complied with by @pos prior to or on the Closing Date.Accuracy of
@pos's Representations: @pos's representations and warranties contained in this
Agreement or any schedule, certificate, or other instrument delivered pursuant
to the Agreement or in connection with the transactions contemplated hereby
shall be true and correct in all material respects at and as of the Closing Date
(except for such changes permitted by this Agreement).
Documents: All documents and instruments required hereunder to be delivered by
@pos to Crossvue at the Closing shall be delivered in form and substance
reasonably satisfactory to Crossvue and its counsel.
Litigation: No litigation seeking to enjoin the transactions contemplated by
this Agreement or to obtain damages on account hereof shall be pending or be
threatened.
Material Adverse Change: No material adverse change shall have occurred in the
financial position, results of operations, assets, liabilities, or prospects of
@pos, nor shall any event or circumstance have occurred which would result in a
material adverse change in the financial position, results of operations,
assets, liabilities, or prospects of @pos.
Approval of the Board of Directors and Shareholders: Crossvue shall have
received the approval of its Board of Directors and a majority of its
shareholders of this Agreement and the transactions contemplated.
CONDITION PRECEDENT TO @POS'S AND CAC'S OBLIGATIONS
@pos and CAC's obligation to consummate the Closing is subject to the following
conditions, any of which may be waived by either party in its sole discretion.
Compliance by Crossvue: Crossvue shall have performed and complied in all
material respects with all agreements and conditions required by this Agreement
to be performed or complied with by Crossvue prior to or on the Closing Date.
Accuracy of Crossvue Representations: The representations and warranties of
Crossvue contained in this Agreement (including the exhibits and the Disclosure
Schedule) or any schedule, certificate, or other instrument delivered pursuant
to the Agreement or in connection with the transactions contemplated hereby
shall be true and correct in all material respects at and as of the Closing Date
(except for changes permitted by this Agreement) and shall be deemed to be made
again as of the Closing Date.
Material Adverse Change: No material adverse change shall have occurred
subsequent to the signing of this Agreement in the financial position, results
of operations, assets, liabilities, or prospects of Crossvue, nor shall any
event or circumstance have occurred which would result in a material adverse
change in the financial position, results of operations, assets, liabilities, or
prospects of Crossvue.
Litigation: No litigation seeking to enjoin the transactions contemplated by
this Agreement or material litigation seeking damages on account hereof shall be
pending or to any party's Knowledge, be threatened.
Documents: All documents and instruments required hereunder to be delivered by
Crossvue to @pos at the Closing shall be delivered in form and substance
reasonably satisfactory to @pos and its counsel.
Crossvue Shareholder Approval: This Agreement shall have been duly adopted and
approved, and the Merger shall have been duly approved, by the shareholders of
Crossvue. The holders of not more than five percent (5%) of the outstanding
shares of Crossvue's Common Stock shall have exercised dissenters' rights
pursuant to DGCL.
Approval of the Board of Directors of @pos: @pos shall have received the
approval of its Board of Directors for entering into this Agreement and the
transactions xxxxxxxxxxxx.Xxxxxxxxx Statements: Crossvue shall have provided
@pos with Financial Statements and other information satisfactory in all
respects to allow @pos to comply with any and all applicable requirements under
the Securities Act of 1933 and the Securities Act of 1934.
Cash in Bank: Crossvue shall have at least Three Million Dollars ($3,000,000)
in cash, in its bank account.
Lock-Up Agreements: The Principal Shareholders receiving Merger Stock shall
enter into Lock-Up Agreements in form and substance satisfactory to @pos
prohibiting the sale or pledge of securities held by such persons on terms
mutually acceptable to the parties.
Resignation of Directors and Officers: All present directors and officers of
Crossvue shall tender their resignations effective upon Closing.
TERMINATION
Termination Prior to Closing:
If the Closing has not occurred by October 15, 2001 any party may terminate this
Agreement at any time thereafter by giving written notice of termination to the
other, provided, however, that no party may terminate this Agreement if such
party has willfully or materially breached any of the terms and conditions.
Notwithstanding the above, the parties may extend the deadline provided herein
by mutual written consent.
Prior to October 15, 2001, any party may terminate this Agreement following the
insolvency or bankruptcy of the other party, or if any one or more of the
conditions to Closing set forth in Section 7 or 8 shall become incapable of
fulfillment or there shall have occurred a material breach of this Agreement and
either such condition of breach shall not have been waived by the party for
whose benefit the condition was established, then either Crossvue (in the case
of a condition in Section 7) or @pos (in the case of a condition specified in
Section 8) may terminate this Agreement.
Consequences of Termination: Upon termination of this Agreement in accordance
with this Section 9 or any other express right of termination provided elsewhere
in this Agreement, the parties shall be relieved of any further obligation to
the others except as specified in Section 14.4; provided, however, that no
termination of this Agreement, in accordance with this Section 9 or under any
other express right of termination provided elsewhere in this Agreement shall
operate to release any party from any liability to any other party incurred
before the date of such termination or from any liability resulting from any
willful misrepresentation made in connection with this Agreement or willful
breach hereof.
ADDITIONAL COVENANTS
Mutual Cooperation: The parties hereto will cooperate with each other, and will
use all reasonable efforts to cause the fulfillment of the conditions to the
parties' obligations hereunder and to obtain as promptly as possible all
consents, authorizations, orders or approvals from each and every third party,
whether private or governmental, required in connection with the transactions
contemplated by this Agreement.
Changes in Representations and Warranties of a Party: A party shall promptly
give written notice to the other party upon becoming aware of (i) any fact
which, if known on the date hereof, would have been required to be set forth or
disclosed pursuant to this Agreement and (ii) any impending or threatened breach
in any material respect of any of the representations and warranties contained
in this Agreement and with respect to this Section 10.2(ii), the party shall use
all reasonable efforts to remedy same.
BROKERS
Brokers: @pos and CAC represent to Crossvue there is no investment banker,
broker, finder or other intermediary entitled to a fee or other compensation for
bringing the parties together to effect the Merger. Crossvue represents to @pos
and CAC, that Crossvue is not represented by an investment banker, broker,
finder or other intermediary who would be entitled to a fee or other
compensation for bringing the parties together to effect the Merger.
SECURITIES
Definitions: As used in this Section 12, the following terms shall have the
following respective meanings:
"Commission" and "SEC" shall mean the Securities and Exchange Commission or
other Federal agency at the time administering the Securities Act.
"Person" shall mean and include an individual corporation, a partnership, a
------
trust, an unincorporated organization and a government or any department, agency
or political subdivision thereof.
"Holder" shall mean a Crossvue Shareholder or the Crossvue Shareholder's
------
permitted successors or assigns (other than pursuant to a permitted public
sale).
"Transfer" shall include any disposition of any Restricted Securities or of any
--------
interest therein which would constitute a sale thereof within the meaning of the
Securities Act.Restriction on Transfer:
Crossvue acknowledges that the shares of @pos Common Stock are restricted
securities and may only be sold pursuant to an effective registration statement
under the Securities Act or an exemption therefrom. The Restricted Securities
and any shares of capital stock received in respect thereof, whether by reason
of a stock split, share reclassification or a stock dividend thereon or
otherwise, shall not be transferable except upon the conditions specified
herein.
Restrictive Legends: Each certificate for the @pos Common Stock issued in the
Merger and any shares of capital stock received in respect thereof, whether by
reason of a stock split or share reclassification thereof, a stock dividend
thereon or otherwise, and each certificate for any such securities issued to
subsequent transferees of any such certificate shall contain the following
legend:
"The Restricted Securities covered by this certificate have not been
registered under the Securities Act of 1933, as amended, and may not
be sold, offered for sale, assigned, transferred or otherwise disposed
of, unless registered pursuant to the provisions of that Act or an
opinion of counsel to @pos is obtained stating that such disposition
is in compliance with an available exemption from such registration.:
INDEMNIFICATION Crossvue's Indemnity and Hold Harmless Obligations:
Crossvue shall indemnify, defend and hold harmless CAC and @pos and their
respective directors, agents, attorneys and employees and each person who
controls or may control @pos or CAC or such @pos or CAC shareholder against and
in respect of any and all losses, costs, damages, charges, liabilities,
penalties, fines and expenses (including, without limitation, all reasonable
out-of-pocket expenses, investigation expenses, and fees and disbursements of
counsel and accountants), resulting from any (i) misrepresentation, breach of
any warranty, or nonfulfillment of any covenant or agreement on the part of
Crossvue contained in this Agreement, or (ii) as a result of any Crossvue
shareholders' exercising their dissenters rights under applicable law or (iii)
as a result of any Crossvue option holder (including option holders' under the
Crossvue 2000 Stock Option Plan to be assumed by @pos) claiming rights to @pos
securities or any other consideration pursuant to this Agreement, or (iv) any
Taxes, or (v) any claims for intellectual property infringement other than
intellectual property infringement relating to intellectual property developed
prior to January 2000, or (vi) any violation of ERISA, or (vii) with respect to
any claim, action or proceeding made by Xxxx Xxxxxxxx arising out of the
relationships, decisions or actions taken prior to the Closing. In the absence
of fraud, the sole recourse of @pos and CAC for Damages shall be against the
escrow fund and claims against the escrow fund shall be the sole and exclusive
remedy of @pos and CAC for any Damages hereunder.
@pos Indemnity and Hold Harmless Obligations: @pos shall indemnify, defend and
hold harmless Crossvue and the shareholders of Crossvue and their respective
directors, agents, attorneys and employees and each person who controls or may
control Crossvue or such Crossvue shareholder against and in respect of any and
all losses, costs, damages, charges, liabilities, penalties, fines and expenses
(including, without limitation, all reasonable out-of-pocket expenses,
investigation expenses, and fees and disbursements of counsel and accountants),
resulting from any misrepresentation, breach of any warranty, or nonfulfillment
of any covenant or agreement on the part of @pos or CAC contained in this
Agreement. The parties acknowledge that following the Closing former Crossvue
shareholders who hold @pos Merger Stock will have no different liability with
respect to the operations of Crossvue following the Merger than other
shareholders of @pos have in their capacity as such.
Notice of Liability: In the event that a party hereto shall have any claim to
indemnity pursuant to Section 13.1 or 13.2 (the "Indemnified Party"), such party
shall, in a timely manner, provide the indemnifying party (the "Indemnifying
Party") with notice of the claim, and shall otherwise make available all
information relevant to the defense of such claim. The Indemnifying Parties
shall be entitled to control the contest and defense of such claim (and its
reasonable out-of-pocket expenses thereof shall constitute Damages for which the
Indemnifying Parties may be reimbursed out of the Escrow Fund); provided, that
the Indemnifying Parties (i) have a reasonable basis for concluding that such
defense may be successful and (ii) diligently contest and defend such claim. If
the Indemnifying Party elects to control the contest and defense, the
Indemnified Party will cooperate with the Indemnifying Party in the conduct of
such defense, including granting the Indemnifying Party and its representatives
reasonable access to relevant books and records. Notice of the intention to so
control the contest and defense shall by given by the Shareholder Representative
to the Indemnified Party within twenty (20) business days after the Indemnified
Party's notice of such claim. Such contest and defense shall be conducted by
reputable attorneys employed by the Indemnifying Parties. The Indemnified Party
shall have the right to elect to participate in the defense of any such claim at
its sole expense, and no claim shall be settled or compromised without the
consent of the Indemnified Party (which shall not be unreasonably withheld)
unless the Indemnified Party shall have failed, after the lapse of a reasonable
time, but in no event more than fifteen (15) days, after notice of a proposed
settlement, to express a written objection to the terms thereof. The
Indemnified Party may control the defense of such litigation, at its own
expense, insofar as such claim relates to its own liability, in which event the
Indemnifying Party shall not be liable to the Indemnified Party for any legal
expenses subsequently incurred by the Indemnified Party. If the Indemnified
Party elects to participate in such defense, the Indemnified Party will
cooperate with the Indemnifying Party in the conduct of such defense. The
failure to give timely notice or to provide copies of documents or to furnish
relevant data in connection with any such claim shall not constitute a defense
(in part or in whole) to any claim for indemnification, except and only to the
extent that such failure shall result in any prejudice to the Indemnifying
Party.
Limitation on Indemnification: No claim or claims may be made against an
Indemnifying Party for indemnification pursuant to Section 13.1 or Section 13.2,
unless the aggregate damages of the Indemnified Party with respect to such
sections shall have exceeded an aggregate amount equal to fifty thousand dollars
($50,000) in which case the Indemnifying Party shall be obligated to the
Indemnified Party for any and all amounts. In no event, other than fraud, shall
the Indemnifying Party be obligated to indemnify the Indemnified Party in an
aggregate amount which exceeds the value of the shares placed in the escrow
pursuant to Section 1.7.
MISCELLANEOUS
Expenses: The parties shall each pay their own expenses incident to the
negotiation, preparation, and carrying out of this Agreement, including legal,
accounting and audit fees.
Survival of Representations, Warranties and Covenants: All statements contained
in this Agreement or in any certificate delivered by or on behalf of Crossvue,
the Principal Shareholders, @pos or CAC, pursuant hereto, or in connection with
the actions contemplated hereby shall be deemed representations, warranties and
covenants by the parties, as the case may be, hereunder. All representations,
warranties, and covenants made by Crossvue, the Principal Shareholders, @pos or
CAC in this Agreement, or pursuant hereto, shall survive the Closing for two (2)
years.
Publicity: @pos and Crossvue shall not issue any press release or make any
other public statement, in each case, relating to, in connection with or arising
out of this Agreement or the transactions contemplated hereby, without obtaining
the prior approval of the other, which shall not be unreasonably withheld or
delayed, except that prior approval shall not be required if, in the reasonable
judgment of @pos, prior approval by Crossvue would prevent the timely
dissemination of such release or statement in violation of applicable Federal
securities laws, rules or regulations or policies of NASDAQ OTC Bulletin Board.
Non Disclosure: Crossvue will not at any time after the date of this Agreement,
without @pos's consent, except in the ordinary operation of its business,
divulge, furnish to or make accessible to anyone any knowledge or information
with respect to confidential or secret processes, inventions, discoveries,
improvements, formulae, plans, material, devices or ideas or know-how, whether
patentable or not, with respect to any confidential or secret aspects of @pos
(including, without limitation, customer lists, supplier lists and pricing
arrangements with customers or suppliers) ("Confidential Information"). @pos
------------------------
will not at any time after the date of this Agreement and prior to the Merger
use, divulge, furnish to or make accessible to anyone any Confidential
Information (other than to its representatives as part of its due diligence or
corporate investigation) of Crossvue. Any information, which (i) at or prior to
the time of disclosure by either Crossvue or @pos was generally available to the
public through no breach of this covenant, (ii) was available to the public on a
nonconfidential basis prior to its disclosure by either Crossvue or @pos or
(iii) was made available to the public from a third party provided that such
third party did not obtain or disseminate such information in breach of any
legal obligation of Crossvue or @pos, shall not be deemed Confidential
Information for purposes hereof, and the undertakings in this covenant with
respect to Confidential Information shall not apply thereto. The undertakings
of Crossvue and @pos set forth above in this Section 14.4 shall terminate upon
consummation of the Closing. If this Agreement is terminated pursuant to the
provisions set forth in this Agreement, each party shall return to the other all
copies of all Confidential Information previously furnished to it by the
disclosing party.
Succession and Assignments and Third Party Beneficiaries: This Agreement may
not be assigned (either voluntarily or involuntarily) by any party without the
express written consent of the other party. Any attempted assignment in
violation of this Section 14.5 shall be void and ineffective for all purposes.
In the event of an assignment permitted by this Section 14.5, this Agreement
shall be binding upon the heirs, successors and assigns of the parties. There
shall be no third party beneficiaries of this Agreement.
Notices: All notices, requests, demands, or other communications with respect
to this Agreement shall be in writing and shall be (i) sent by facsimile
transmission, with proper confirmation (ii) sent by the United States Postal
Service, registered or certified mail, return receipt requested, or (iii)
personally delivered by a nationally recognized express overnight courier
service, charges prepaid, to the following addresses (or such other addresses as
the parties may specify from time to time in accordance with this Section 14.6)
TO @POS/CAC: @xxx.xxx
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Phone No: (000) 000-0000
Fax No: (000) 000-0000
Principal Contact: Xxxxxx Xxxxxxxx, CEO
with copy to: Silicon Valley Law Group
000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx
Phone No: (000) 000-0000
Fax No: (000) 000-0000
Attn: Xxxxx Xxxxxxx
TO CROSSVUE: Crossvue, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Phone No: 408) 000-0000
Fax No: (000) 000-0000
Attn: Xxxxxx Xxxxxx, acting CEO and CTO
with copy to: Xxxx Xxxx Xxxx & Freidenrich, LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Phone No: (000) 000-0000
Fax No: (000) 000-0000
Attn: Xxxx X. Xxxxxxxxx
TO PRINCIPAL Crosspoint Venture Partners 2000, LLP and
SHAREHOLDERS: Crosspoint Venture Partners 2000 Q, LLP
Crosspoint Venture Partners
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Phone No: (000) 000-0000
Fax No: (000) 000-0000
Attn: Xxxxx Xxxxxxx
US Ventures LP
x/x Xxxxxxxxx Xxxxxxx Xxxxxxxx, Xxxxx 000
00 Xxxxxxxxx Xxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Phone No: (000) 000-0000
Fax No: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxxx
Imperial Ventures, Inc.
000 Xxxxx Xxx., Xxxxx 000
Xxx Xxxxx, XX 00000
Phone No: (000) 000-0000
Fax No: (000) 000-0000
Attn: Xxxxx Xxxxxx
(C) TO SHAREHOLDER REPRESENTATIVE:
Xxxxxxxxx Xxxxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Phone No. (000) 000-0000
Any such notice shall, when sent in accordance with the preceding sentence,
be deemed to have been given and received on the earliest of (i) the day
delivered to such address or sent by facsimile transmission, (ii) the fifth
(5th) business day following the date deposited with the United States Postal
Service, or (iii) 24 hours after shipment by a nationally recognized courier
service.
Construction: This Agreement shall be construed and enforced in accordance with
the laws of the State of California without giving effect to the principles of
conflicts of law thereof.
Counterparts: This Agreement may be executed in two (2) or more counterparts,
each of which shall be deemed an original, but all of which shall together
constitute one and the same Agreement.
No Implied Waiver; Remedies: No failure or delay on the part of the parties to
exercise any right, power, or privilege hereunder or under any instrument
executed pursuant hereto shall operate as a waiver nor shall any single or
partial exercise of any right, power, or privilege preclude any other or further
exercise thereof or the exercise of any other right, power, or privilege. All
rights, powers, and privileges granted herein shall be in addition to other
rights and remedies to which the parties may be entitled at law or in equity.
Entire Agreement: This Agreement, including the exhibits and Disclosure
Schedules attached hereto, sets forth the entire understandings of the parties
with respect to the subject matter, and it incorporates and merges any and all
previous communications, understandings, oral or written, as to the subject
matter, and cannot be amended or changed except in writing, signed by the
parties.
Headings: The headings of the Sections of this Agreement, where employed, are
for the convenience of reference only and do not form a part hereof and in no
way modify, interpret or construe the meanings of the parties.
Severability: To the extent that any provision of this Agreement shall be
invalid or unenforceable, it shall be considered deleted and the remainder of
such provision and of this Agreement shall be unaffected and shall continue in
full force and effect.
Attorneys Fees: In the event any legal action is brought to interpret or
enforce this Agreement, the party prevailing in such action shall be entitled to
recover its attorneys' fees and costs in addition to any other relief that it is
entitled.
Governing Law: This Agreement shall in all respects be construed in accordance
with and governed by the laws of the State of California, as applied to
contracts entered into and to be performed solely within California solely
between residents of California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
CAC: CROSSVUE ACQUISITION CORPORATION
By:_______________________________________
Llavanaya Xxxxxxxx, Chief Executive Officer
@POS: @XXX.XXX
By:_______________________________________
Llavanaya Xxxxxxxx, Chief Executive Officer
CROSSVUE: CROSSVUE, INC.
By:_______________________________________
Title:____________________________________
PRINCIPAL SHAREHOLDERS:
CROSSPOINT VENTURE PARTNERS 2000, LLP
By:_______________________________________
Title:____________________________________
CROSSPOINT VENTURE PARTNERS 2000 Q, LLP
By:_______________________________________
Title:____________________________________
US VENTURES LP
By:_______________________________________
Title:____________________________________
__________________________________________
Xxxx Xxxxxx
IMPERIAL VENTURES, INC.
By:_______________________________________
Title:___________________________________
[SIGNATURE PAGE TO MERGER AGREEMENT]
