ASSET PURCHASE AGREEMENT dated as of September 26th, 2016 among NXChain, Inc. and lxccoin ltd ASSET PURCHASE AGREEMENT
Exhibit 10.1
dated as of September 26th, 2016
among
NXChain, Inc.
and
lxccoin ltd
This ASSET PURCHASE AGREEMENT, dated as of September 15, 2016, is by and among LXCCOIN, LTD., a United Kingdom company (“Seller”), and NXCHAIN, INC., a United States, Delaware corporation (“Buyer”).
NOW, THEREFORE, in consideration of the mutual agreements contained herein, intending to be legally bound hereby, the parties hereto agree as follows:
I.
1.1 Defined Terms. The following terms shall have the following meanings in this Agreement:
“Asset Purchase Proposal” means any proposal for an acquisition of assets currently owned by Seller.
“Affiliate” means any specified Person or Entity which, directly or indirectly, owns or controls the Assets to be acquired by Buyer.
“Assets” means Seller’s interest in the Assets to be acquired that are owned, leased or licensed on the Closing Date by Seller, including, but not limited to, those items described in Section 2.1,
“Chose in Action” means a right to receive or recover property, debt or damages on a cause of action, whether pending or not and whether arising in contract, tort or otherwise. The term shall include, but not be limited to, rights to judgments, settlements and proceeds from judgments or settlements.
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“Closing” means the consummation of the transactions contemplated by this Agreement in accordance with the provisions of VIII hereof.
“Confidential Information” shall mean (a) all of Seller’s or Buyer’s technical, commercial, marketing, strategic, business or other information, data, plans and material of the kind either identified as confidential or proprietary or which a reasonable person would recognize to be confidential or proprietary, either from its nature or the manner of its disclosure, or which has not entered the public domain and (b) the terms and provisions of this Agreement and any other material information relating to this Agreement or the transactions contemplated hereunder.
“Consents” means the consents of any and all parties necessary to consummate the transactions contemplated hereby.
“Contracts” means all agreements, whether written or oral (including any amendments and other modifications thereto), to which Seller or any of its Subsidiaries is a party or is bound by, related to the Assets to be acquired by Buyer.
“Database” means any compilation of Proprietary Information or any other data or information that can be electronically searched, organized or otherwise manipulated using Software.
“Encumbrance” means any lien, mortgage, pledge, claim, security interest, imperfection in title or other third party right or interest of any kind whatsoever, including without limitation any liability for Taxes, or restrictive agreement, conditional sales agreement, option, encumbrance or charge of any kind whatsoever.
“Incidental Intellectual Property” means (i) Licensed Intellectual Property consisting of Non-Exclusively licensed software and computer code, (ii) Licensed Intellectual Property consisting of Exclusively licensed software and computer code, (iii) Owned Intellectual Property consisting of computer and software code and registered and unregistered copyrights, trademarks, service marks and source identifiers, and (iv) Websites or Proprietary Information describing or used in the development or maintenance of the software or computer code, trademarks and service marks and websites used with the Assets to be acquired.
“Intellectual Property” means all intellectual property which is recognized under the law of any jurisdiction anywhere in the world, whether under common law, by statute or otherwise, as well as any intellectual property included in or covered by an Intellectual Property Registration, including, but not limited to, intellectual property arising out of the following:
(a) United States Letters Patent and patents granted in any other jurisdiction anywhere in the world, reissues, divisions, continuations, continuations-in-part, reexaminations, renewals and substitutes thereof, foreign counterparts of the foregoing, term restorations or other extensions of the term of any issued or granted patents anywhere in the world and extensions of the monopoly right covering a product or service previously covered by any issued or granted patent anywhere in the world for the limited purpose of extending the holder’s exclusive right to make, use or sell a particular product or service covered by such patent (such as supplemental protection certificates or the like);
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(b) trade names, trademarks, service names, service marks, product names, brands, logos and other distinctive identifications that can be used in commerce, whether in connection with products or services, and the goodwill associated with any of the foregoing;
(c) original works of authorship, derivative works and other copyrightable works of any nature, and fixations of any of the foregoing;
(d) Software, Databases and fixations thereof;
(e) uniform resource locators, website addresses, domain names, website content and all fixations thereof;
(f) trade secret rights in all Proprietary Information; and
(g) any other intangible property similar to any of the above associated with the Assets to be acquired by Buyer from Seller.
“Intellectual Property Registration” means an application (including provisional applications), certificate, filing, registration or other document seeking or confirming rights in Intellectual Property issued by, filed with or recorded by any governmental or regulatory authority in any jurisdiction anywhere in the world (including, in the case of patent applications, international or multi-national applications filed in accordance with Chapter I of the Patent Cooperation Treaty or any other multi-lateral agreement), including any and all amendments to any of the foregoing, together with all rights of whatever nature associated with the foregoing.
“Intellectual Property Rights” means the following: (a) all patents, patent applications, patent disclosures, and patentable inventions, (b) all proprietary rights in know-how and technology and applications therefore, (c) all copyrights and applications therefore, (d) all trade names, logos, common-law trademarks and service marks, trademark and service xxxx registrations and applications therefore, (e) all rights in databases and data collections throughout the world, and (f) all domain names. Without limiting the generality of the foregoing and for the purpose of clarity, “Intellectual Property” includes intellectual property identified in clauses (a) through (f) of the preceding sentence, which may be embodied in: computer software (including source code, object code, data, databases and related documentation); systems, processes, methods, devices, machines, designs or articles of manufacture (whether patentable or unpatentable, and whether or not reduced to practice); improvements thereto; technology; proprietary information; specifications; flowcharts; blueprints; schematics; protocols; programmer notes; customer and supplier lists; pricing and cost information; business and marketing plans; and proposals as related to Assets being acquired by Buyer.
“Knowledge” means the knowledge, after reasonable due inquiry, of Assets to be acquired by Buyer from Seller.
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“Law” means any law, rule or regulation of any federal, state or local governmental authority.
“Licensed Intellectual Property” means Intellectual Property in respect of the Assets being acquired by Buyer which the Seller has the right to use by agreement (such as a Third-Party License) with a Person or Entity (or another Person acting as an authorized representative of such Person) claiming to own (or control the Seller’s use of) such Intellectual Property, including, without limitation, “open source,” “freeware” or “public source” Software.
“Licenses” means all of the licenses, permits and other authorizations issued by any federal, state or local governmental authorities to Seller or any of its Subsidiaries used in the operation of the Assets being acquired.
“Material Adverse Effect” means a material adverse effect on the Assets because of actions of the Seller.
“Object Code” means the sequence of instructions in binary form that is generated from Source Code and that is intended to be executable by a computer after suitable processing and linking, but without further intervening steps of compilation or assembly.
“Owned Intellectual Property” means Intellectual Property in respect of the Assets being acquired (i) created or developed by or on behalf of the Seller or (ii) to which the Seller has acquired, by purchase, assignment or other transfer, the unconditional, unrestricted, exclusive right to control or prevent any and all use of such Intellectual Property by others without the consent or approval of or payment to, any other Person or Entity.
“Operating Agreement” means any Operating Agreement with Buyer in effect on the date hereof or supplemented from time to time in the future required for the Assets to be acquired to be operated or developed further for operation.
“Person or Entity” means an individual, partnership, corporation, limited liability company, association, joint stock company, trust, joint venture, unincorporated organization or governmental entity or any department, agency or political subdivision thereof.
“Products” mean any products marketed, sold or offered by the Seller in the operation of its Business.
“Programs” means the Software and all Databases which are, or are proposed to be, either (a) purchased, (b) licensed or otherwise made available to, or used to provide Services to, customers by the Seller as part of the Buyer’s contemplated Business or (c) used in the operation of the Assets to be acquired, in each case together with all Software Documentation with respect to such Programs.
“Proprietary Information” means technical, commercial, marketing and other information, data and material of the kind which is or can be used in the operation of the Assets to be purchased and which is normally considered to be confidential or proprietary in nature including, but not limited to, any algorithm; procedure; idea; concept; strategic, business and other plan; research; invention or invention disclosure (whether patentable or unpatentable); test, engineering and technical data and materials, know-how, show-how or methodology; information provided by or otherwise relating to Seller’s Assets being acquired by Buyer, including identifiable information relating to; trade secret, process, design, formula, or other information or data which has not entered the public domain, and all records or fixations of any thereof, including, but not limited to, laboratory notes, Source Code and Software Documentation.
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“Purchase Price” means the consideration payable to Seller for the Assets as provided in Section 2.33.
“Registered Intellectual Property” means all United States, international and foreign: (a) patents and patent applications (including provisional applications), (b) registered trademarks, applications to register trademarks, intent-to-use applications, or other registrations or applications related to trademarks, and any domain name registrations, (c) registered copyrights and applications for copyright registration, (d) any mask work registrations and applications to register mask works, and (e) any other Intellectual Property Rights that are the subject of an application, certificate, filing, registration or other document issued by, filed with, or recorded by, any state, government or other public legal authority.
“Services” means services offered or provided to third parties by the Seller in relation to the Assets to be acquired by Buyer, including, but not limited to, license of, access to and use of Assets to be acquired.
“Software” means computer code of any type (whether Source Code, Object Code or otherwise) in any programming or markup language, underlying any type of computer programming (whether application software, middleware, firm xxxx, system software or otherwise) in respect of the Assets to be acquired, including, but not limited to, applets, assemblers, coders, compilers, design tools, and user interfaces.
“Software Documentation” means all records, technical and descriptive materials, documentation and procedures (including computerized records, if any) existing and relating to the creation, acquisition, design, development, programming, enhancement, correction, update, modification, translation or other manipulation, operation, use or maintenance of any Software or Database, and all embodiments and descriptions of such Software or Database in any medium, including hardcopy versions and, if applicable, relevant Source Code files and including, but not limited to, all computer tapes, disks and CD-ROMs containing embodiments or descriptions of such Software or Database.
“Source Code” means the human readable programming statements for Software that are created by a programmer with a text editor or visual programming tool and that are used to generate Object Code. Source Code also includes Software Documentation (such as logic diagrams and flow charts, programmer comments and annotations, help text, data, data structures and instructions) where such Software Documentation is stored within or associated electronically with Source Code files.
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“Technology” means any reduction to practice, physical embodiment or actual operational and technological use or application of one or more items of Proprietary Information or other Intellectual Property, either alone or in combination with other assets, such as websites; programs; computer systems and networks; databases; and specialized business methods and procedures related to Assets being acquired.
“Third-Party License” means all licenses, agreements, obligations or other commitments under which a Person or Entity has granted the Seller a right to use any Licensed Intellectual Property in connection with the Assets being acquired, but retains one or more rights to use such Intellectual Property.
“Used in the Business” means primarily used in, or necessary for the operation of the Assets being acquired as currently designed or as currently proposed to be used.
II.
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III.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
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3.8 Intellectual Property and Technology.
(a) Schedule 1.0 sets forth a true, complete and correct list of each separately identifiable item of Intellectual Property, other than Incidental Intellectual Property, included in the Assets being acquired and correctly identifies whether a particular item of Intellectual Property is Owned Intellectual Property or Licensed Intellectual Property.
(b) No Person or Entity has retained or been granted any rights or licenses in the computer and software code, technology or such Intellectual Property included in the Assets being acquired and each such Person and Entity:
(i) either (y) is (or was at the time the IP Development Work was performed) a bona fide employee of the Seller or (z) has duly executed a “work-made-for-hire” agreement with the Seller covering such IP Development Work; and
(ii) if such IP Development Work generated Intellectual Property or Proprietary Information that may embody or be covered by Intellectual Property anywhere in the world, other than United States copyrights, has executed a valid written assignment of all rights of such Person in and to the results of such Person’s IP Development Work in favor of the Seller.
(d) There is neither (i) any interference, opposition, cancellation, reexamination or other contest, proceeding, action, suit, hearing, investigation, charge, complaint, demand, notice, claim, dispute against Seller alleging any violation of the Intellectual Property or other proprietary rights of any third party nor (ii) any claim of infringement, misappropriation or other violation by the Seller of any Intellectual Property or other proprietary rights of any other Person or Entity, in either case pending or, to Knowledge, threatened against the Seller. No governmental agency or authority has disputed the Seller’s right to obtain or continue registration of any Intellectual Property where the Seller has applied for such registration, except where such dispute has been resolved in favor of issuing or continuing such registration.
(e) No licenses or other rights have been granted to any Person or Entity by the Seller in regards to the Assets being acquired, and the Seller does not have any obligation to grant to any Person or Entity any licenses or other rights, with respect to the Assets being acquired or other Intellectual Property associated with the Assets being acquired. The Seller has no agreement to indemnify any individual or entity against any charge of infringement of any Assets being acquired or Intellectual Property. To the Knowledge of Seller, there has been no unauthorized use, disclosure, infringement or misappropriation by any third party, including any employee or former employee of the Seller, of any Assets being acquired or other Intellectual Property used or distributed in connection with the Assets being acquired. No claims have been made by the Seller for any violation, infringement or misappropriation by third parties of any rights with respect to any of the Assets being acquired.
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(f) Neither the manufacture, use, offer for sale, sale, licensing, distribution, copying or other reproduction, transfer or disposal of any Assets being acquired by the Seller (i) infringes or misappropriates the Intellectual Property of any other Person or Entity, (ii) violates the privacy rights of any Person or Entity, or (iii) constitutes unfair competition or trade practices under the laws of any jurisdiction. The Seller has not received a notice from any Person or Entity that such Seller’s manufacture, use, offer for sale, sale, licensing, distribution, copying or other reproduction, transfer or disposal of the Assets being acquired, infringes or misappropriates any Intellectual Property, violates the privacy rights of any Person or Entity, or constitutes unfair competition or unfair trade practices.
(g) With respect to the computer and software code being acquired:
(i) the Seller has delivered or made available to the Buyer true and complete copies of all code being acquired;
(ii) such code Documentation represents all documentation necessary to enforce the Seller’s proprietary rights in such code;
(iii) the computer and software code Documentation (including the Source Code, system documentation, statements of principles of operation, and schematics as well as any pertinent commentary or explanation for all code) includes all information that may be necessary to render the code understandable and usable by a trained computer programmer and to support all current and prior releases of the code;
(iv) the code Documentation include all compilers, “workbenches,” tools, and higher level or “proprietary” languages used for the development, maintenance, and implementation of the code;
(v) the code conforms in all material respects to the functional requirements, design specifications, documentation and other specifications referred to in the code Documentation, and will perform substantially in accordance with the foregoing with respect to the most recent release for each such code; and
(vi) except for code and software programs Documentation relating to Licensed Intellectual Property which has not been modified by the Seller since the Seller acquired or commenced use thereof, the code and software programs Documentation for the Assets being acquired has been faithfully and accurately compiled in accordance with standards generally practiced by companies whose principal business is providing such code and software programs.
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(h) Seller has no Intellectual Property Registrations related to the computer and software code;
(i) There are no Contracts with respect to the marketing, distribution, licensing, or promotion of any computer and software code being acquired or any other Intellectual Property of the Seller by any independent salesperson, distributor, sublicensor, or other remarketer or sales organization.
(j) The Seller is in possession and control of all copies of the Source Code and Documentation for the Assets being acquired, and the Source Code and Documentation for the code has never been publicly disclosed or otherwise been the subject of an unauthorized disclosure.
(k) The Seller has taken all actions which a reasonably prudent person in the Industry would take to protect against the existence of (i) any protective, encryption, security or lock-out devices which might in any way interrupt, discontinue or otherwise adversely affect the Assets being acquired or the Buyer’s use thereof; and (ii) any so-called computer viruses, worms, trap or back doors, trojan horses or other instructions, codes, programs, data or materials which could improperly, wrongfully and/or without the authorization of the Buyer, interfere with the operation or use of the Assets being acquired.
(l) From the date on which the Seller commenced development or acquired each item of Technology or Proprietary Information through the date hereof, the Seller has taken all actions which a reasonably prudent person would take to maintain such Technology and Proprietary Information (including, but not limited to, its Source Code) as confidential and proprietary, to protect against the loss, theft or unauthorized use of such Technology or Proprietary Information, and to protect and preserve the confidentiality of all such Technology and Proprietary Information used in the Assets being acquired. To the Knowledge of Seller, all use, disclosure or appropriation of such Technology or Proprietary Information used in the Assets being acquired by or to a third party has been pursuant to the terms of a written agreement between the Seller and such third party requiring, among other things, that all Proprietary Information used in the Assets being acquired and disclosed to such third party be held in confidence. All use, disclosure or appropriation of Technology or Proprietary Information used in the Assets being acquired not owned by the Seller has been pursuant to the terms of an agreement between the Seller and the owner of such Technology or Proprietary Information, or is otherwise lawful.
(m) No government funding, facilities of a government agency or research or educational institution or funding from third parties was used in the conception, reduction to practice, authoring or other creation or development of the Owned Intellectual Property or Technology of the Seller used in the Assets being acquired. No person was, at the time such person or entity contributed to or participated in any manner in the conception, reduction to practice, authoring or other creation or development of such Intellectual Property or Technology, also employed by or otherwise performing services of the same or similar nature for a government agency, research or educational institution or other third party.
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(o) All information known to the Seller and relating to any problem or issue that does or may reasonably be expected to adversely affect the utility, operability, functionality or fitness for the intended purpose of any Asset being acquired has been disclosed to the Buyer.
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IV.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
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V.
5.1 Agreement Not to Compete or Solicit, and to Maintain Confidentiality.
(a) For good and valuable consideration and in furtherance of the sale of the Assets to Buyer hereunder, in order to induce Buyer to enter into and perform this Agreement, to ensure that Buyer obtains the benefits it reasonable expects to obtain hereunder and to more effectively protect the value of the Assets, the Seller and their Affiliates (each a “Restricted Party” and collectively, the “Restricted Parties”) covenants and agrees that for a period commencing on the Closing Date and ending on the fifth (5th) anniversary of the Closing Date, it shall not, directly or indirectly, either for its benefit or for the benefit of any of its Affiliates:
(i) whether as principal, agent, independent contractor, partner or otherwise or by any other means, own, manage, operate, control, participate in, perform services for, invest in, or otherwise establish or carry on any business or division or line of any business which engages in a business substantially similar to or competitive with the business of the Buyer; provided, however, that it will not be deemed a breach of this clause (i) if, subject to compliance with the provisions of Section 5.1(b) below, a Restricted Party and its Affiliates collectively own beneficially or of record in the aggregate less than five percent (5%) of any class of security which is publicly traded on a national securities exchange or actively traded in a recognized over-the-counter market;
(b) Each Restricted Party hereby expressly represents and warrants that it has or may have knowledge of certain Confidential Information. The Restricted Parties acknowledge and agree that all such Confidential Information is confidential and proprietary and that a substantial portion of the Purchase Price is being paid for such Confidential Information and that it represents a substantial investment having great economic value to Buyer, and constitutes a substantial part of the value to Buyer of the Assets. Each Restricted Party acknowledges and agrees that Buyer would be irreparably damaged if any of the Confidential Information was disclosed to, or used or exploited on behalf of, any Person or Entity other than Buyer or any of its Affiliates. Accordingly, each Restricted Party covenants and agrees that it shall not, and it shall use its best efforts to ensure that any other Person or Entity acting on its behalf does not, without the prior written consent of Buyer, disclose, use or exploit any such Confidential Information, for the benefit of such Restricted Party or of any third-party, except that such Restricted Party may disclose, use or exploit a particular item of Confidential Information if and to the extent (but only if and to the extent) that such item:
(i) is or becomes publicly known or generally known in the industry of the Business through no act of such Restricted Party in violation of this Agreement;
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(ii) is required to be disclosed to or by order of a governmental agency or a court of law or otherwise as required by law; provided that prior to any such disclosure notice of such requirement of disclosure is provided to Buyer and Buyer is afforded the reasonable opportunity to object to such disclosure;
(iii) is disclosed to such Restricted Party’s representatives working on the transactions contemplated by this Agreement and in such event, only to the extent necessary to evaluate or effect such transactions; or
(iv) has been publicly disclosed by Buyer after the Closing.
(c) Each Restricted Party expressly acknowledges that the covenants contained in Section 5.1(a) and Section 5.1(b) are integral to the sale to Buyer of the Assets and that without the protection of such covenants, Buyer would not have entered into this Agreement, that the consideration paid by Buyer bears no relationship to the damages Buyer may suffer in the event of any breach of any of the covenants of Section 5.1(a) or Section 5.1(b), and that such covenants contain limitations as to time and/or scope of activity to be restrained which are reasonable and necessary to protect Buyer’s interests. If this Section 5.1 shall nevertheless for any reason be held to be excessively broad as to time, duration, scope, activity or subject, it shall be enforceable to the extent compatible with applicable laws that shall then apply. Each Restricted Party hereby further acknowledges that money damages will be impossible to calculate and may not adequately compensate Buyer in connection with an actual or threatened breach by it of the provisions of this Section 5.1. Accordingly, each Restricted Party hereby expressly waives all rights to raise the adequacy of Buyer’s remedies at law as a defense if Buyer seeks to enforce by injunction or other equitable relief the due and proper performance and observance of the provisions of this Section 5.1. In addition, Buyer shall be entitled to pursue any other available remedies at law or equity, including the recovery of money damages, in respect of the actual or threatened breach of the provisions of this Section 5.1.
(d) Each Restricted Party hereby expressly waives any right to assert inadequacy of consideration as a defense to enforcement of the non-competition and confidentiality covenants in this Section 5.1 should such enforcement ever become necessary.
VI.
SPECIAL COVENANTS AND AGREEMENTS
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(a) Except as necessary for the consummation of the transactions contemplated hereby, each party hereto shall keep confidential any information which is obtained from the other party in connection with the transactions contemplated hereby; and except to the extent that such materials or information are or become readily available to the industry, have been obtained from independent sources, were known to Buyer or Seller (as the case may be) on a non-confidential basis prior to disclosure or are required to be disclosed in public filings or by law. In the event this Agreement is terminated and the purchase and sale contemplated hereby abandoned, each party will return to the other party all documents, work papers and other written material obtained by it in connection with the transaction contemplated hereby. This Section 6.7 shall survive the termination or cancellation of this Agreement for a period of two (2) years from the date of termination or cancellation.
(b) Notwithstanding Section 6.7(a), prior to the Closing, Buyer may disclose confidential information obtained from Seller in connection with the transactions contemplated hereby to (i) maintain vendor relationships, (ii) allow Buyer to conduct its due diligence review of the Assets to be acquired, (iii) facilitate the transition and use of the Assets to be acquired from and after the Closing and (iv) for such other purposes as Buyer sees fit in its sole and absolute discretion.
VII.
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VIII.
CLOSING AND CLOSING DELIVERIES
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IX.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION
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X.
If to Seller:
LXCCoin, LTD
0 Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxxxx, Xxxxxxx, XX00 0XX, Xxxxx
Attn: Xxxxxx Xxxxxxxx
Telephone: +45/00-000-000
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If to Buyer:
NXChain, INC.
00000 Xxxxxxx Xxx.
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Telephone: x0 (000) 000-0000
With a copy to:
Xxxxx Xxxxxxx LLP
0 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
or to any such other or additional persons and addresses as the parties may from time to time designate in a writing delivered in accordance with this Section 10.1.
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10.9 Governing Law; Consent to Jurisdiction.
(a) The parties acknowledge and agree that this Agreement constitutes a contract pertaining to a transaction covering in the aggregate not less than $1,000,000 and that their choice of law and choice of jurisdiction specified below have been made pursuant to and in accordance with Sections 5-1401 and 5-1402, respectively, of the New York General Obligations Law. Accordingly, the parties acknowledge and agree that this Agreement shall be governed by the laws of the State of New York, as to all matters including matters of validity, construction, effect, performance and liability, without consideration of conflicts of laws provisions contained therein, and the courts of the State of New York have exclusive jurisdiction of all disputes with respect to an alleged breach of any representation, warranty, agreement or covenant of this Agreement, including, but not limited to, any dispute relating to the construction or interpretation of the rights and obligations of any party, which is not resolved through discussion between the parties.
(b) The parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of any New York State or Federal court sitting in New York County in any action or proceeding commenced by the other party or to which such party is a party arising out of or relating to this Agreement or any Related Document or any transaction contemplated hereby or thereby. The parties hereby irrevocably waive, to the fullest extent they may effectively do so under applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding. The parties also irrevocably and unconditionally consent to the service of any and all process in any such action or proceeding by the mailing of copies of such process by overnight courier to such party and its counsel at their respective addresses specified in Section 10.1. The parties further irrevocably and unconditionally agree that a final judgment in any such action or proceeding (after exhaustion of all appeals or expiration of the time for appeal) shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
[remainder of page left intentionally bank; signature page follows]
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This Asset Purchase Agreement has been executed by Seller and Buyer as of the date first above written.
| BUYER: | |||
| NXCHAIN INC | |||
| By: | /s/ Xxxxxxx Xxxxxxxx | ||
| Name: | Xxxxxxx Xxxxxxxx | ||
| Title: | Chief Executive Officer | ||
| Seller: | |||
| LXCCOIN LTD | |||
| By: | /s/ Xxxxxx Xxxxxxxx | ||
| Name: | Xxxxxx Xxxxxxxx | ||
| Title: | Chief Executive Officer | ||
[Signature Page to Asset Purchase Agreement]
Schedule 1.0
| 1.0 | Schedule of Assets Being Acquired |
| 1.1 | The Digital-Currency Source Code: |
| A. | The LXCCoin (Digital-Currency Coin) code. |
The LXCCoin code being acquired is based on a bitcoin blockchain Open Source code in combination with Blackcoin Proof of Stake code, with an overbuild of proprietary operating code developed by LXCCoin. The bitcoin code is defined as “Open Source”, available on GitHub (Xxxxxx.xxx/xxxxxxx/). The “Proof of Stake” code from BlackCoin is defined as “Open Source” and available on Github (Xxxxxx.xxx/Xxxxxxxxx). The bitcoin and BlackCoin code has been modified by LXCCoin under the Open Source Licenses and developed to create the transaction protocols for the way LXCCoin handles payment transactions and how its keeps and maintains it ledger.
The core LXCCoin code is a proprietary software composed of 407,424 lines of code. The blockchain formed by the code is tied to the LXCCoin Digital Currency units as listed in item 1.1.B below. Several elements of the code have been released on Github as open source, as it is constructed on open source platforms and the link to the node network and asset base listed in Schedule 1.1.B and 1.1.I below, all of which together gives LXCCoin its unique qualities. The code is developed and modified to suit all standard APIs, making the code versatile.
| B. | The LXCCoin node network. |
The LXCCoin runs on its own operational and fully tested transaction network which is a closed loop system handling a minimum of 51% of all LXCCoin transactions (the rest is done by outsiders participating in “staking” of the coin giving the coin its distribution of its blockchain and new blockchain entries). The node network is cloud-based and is set up to be online at all times around the globe, on separate servers and separate suppliers to ensure maximum uptime. In addition to ensuring quick transactions and a close-to-100% uptime, the network provides access for new users to quickly synchronize new wallets with the latest blocks, enabling rapid and correct updates. The system is fully scalable as needed.
This LXCCoin node network is a separate part of code. LXCCoin has developed and owns a proprietary node network with an exceptionally high degree of security, including hardcoded IP tunneling access that is regularly updated with hardened protective layers. In addition, the node network conducts testing and verification of the ledger and new block entries. The use of nodes increases the speed of transactions and increases the number of simultaneous transactions done on the LXCCoin blockchain, enabling speeds down to only 1.30 seconds for transactions too clear. The system is distributed on several cloud networks working both separately and in unison, spread across several parts of the world, using Amazon, DigitalOcean, RackSpace and GoDaddy servers and systems. The network will be gradually transported to NXCN once NXCN has established its own service agreements for these nodes to run on the service providers mentioned above, and once the NXCN nodes are tested and tuned, the LXC owned nodes will be retired.
The node network “nodes” each embed a core wallet code running on Linux based systems and also interface with the LXCCoin-developed QT-based Windows and Mac wallets.
| 1.2 | The Digital Currency Coin or “LXCCoins” |
There are 1,100,560,510 LXCCoins in issue on the date of signing of this contract, that are trackable LXCCoins issued on the LXCCoin blockchain, bearing the ticker XWBC (the LXC ticker is in use by two other digital coins, and the added X is used by currencies in general; XUSD, XEUR, etc). These are kept in wallets all owned by LXCCoin that will be transferred on or before closing with the Buyer. The LXCCoins are kept in three main locations; in transaction support wallets on the node network used for “staking”, on the LXCCoin owned “Xxxxxx.Xxxxxxxx for sales and liquidity purposes, and in offline vaults known as “Cold Storage”. Most are in offline vaults stored on USB discs, which will be transferred to the Buyer; the remaining are kept on the Xxxxxx.Xxxxxxxx hotswap wallets, which are transferred to Buyer through the change of ownership of these accounts. Any released coins are stored in “live” wallets set up for use by future support personnel working for Buyer or Third Parties employed by Buyer for Buyer’s account, or in the wallets of those who have purchased them. These are backed by, which will be transferred to Buyer as a part of the transfer of assets.
| 1.3 | The Assumed Contracts |
As a part of the purchase transaction, NXCN is assuming contractual rights and obligations from LXC. These are:
| A. | Xxxxxx.Xxxxxxxx Contract |
LXCCoin owns a digital currency exchange (xxx.xxxxxx.xxxxxxxx) which is sells and manages LXCCoins. The parties agree that the following contracts will be assumed or entered into on the date of closing:
| i. | The UK based digital currency exchange (xxx.xxxxxx.xxxxxxxx), will award a contract to list the LXCCoin currency as XWBC for a minimum of two (2) years free of charge |
| ii. | A new Contract to buy and sell LXCCoins online through the Xxxxxx.Xxxxxxxx as freshly minted coins, on behalf the Buyer. |
| 1.4 | The Brands, Trademarks and Copyrights |
All developed trademarks, brands and copyrights, including LXCCoin, the modified “L”/”£” symbol, the domain names and logos listed below, and all the additional graphics revolving around the LXCCoin and coin-based services to be transferred to the Buyer. This includes current websites, FAQs, T&C statements and any additional documentation regarding the Assets being acquired.
| A. | Websites/Domain names are being transferred to Buyer: |
| i. | xxxx0.xxx | |
| ii. | xxxx0x.xxx | |
| iii. | xxxxxxx.xxx | |
| iv. | xxxxxx.xxx | |
| v. | xxxxxxx.xxx | |
| vi. | xxxxxxxxxx.xxx | |
| vii. | xxxxxx0xxxxx.xxx | |
| viii. | xxxxxxxxx.xxx | |
| ix. | xxxxxx.xxx | |
| x. | xxxxxxxxxxxxxx.xxx |
| B. | Logos: |
| i. | The LXCCoin “coin” image | |
| ii. | The SwyptoBank “dragon” image | |
| iii. | The Wyrify “optical W+Y” logo | |
| iv. | The LXCCoin "£" sign with the line drawn in two parts top+bottom of the “L” |
| C. | Graphics: |
| i. | All graphics used in presentations and on the websites | |
| ii. | All created graphics in 3D representing the coin | |
| iii. | A shared right to the use of the Swypto Dragon also used by the Seller’s proprietary exchange the “Xxxxxx.Xxxxxxxx”, transferred to either party should the other party decide not to use the dragon logo in the future. |
| 1.5 | The Intellectual Property and Goodwill |
The IPR as listed above (the different parts of code, the coins, the purchased software rights) is transferred to the Buyer without any goodwill.
| 1.6 | Link to Asset Base |
There is currently a minimal amount of LXCCoins in issue, which have 100% cash backing accounts. These accounts will be transferred to Buyer in a way that funds remain exactly the same in value for any LXCCoin owners at time of the transaction.
| 1.7 | Licenses |
| A. | Open Source license to the Bitcoin code (Freely available on Github) (only partially used code) | |
| B. | Open Source license to the Blackcoin code (Freely available on Github) (only partially used code) | |
| C. | Open Source license to the QT Wallet (Freely available on Github) | |
| D. | Open Source License to Ubuntu LTS server 14.04 xxxx://xxx.xxxxxx.xxx/xxxxx/xxxxx-xxxxxx/xxxxxxxxx) | |
| E. | Open source Qr code license part of wallet software (xxx.xxxxxx.xxx/xx/xxxxxx.xxxx) | |
| F. | Open Source QT software (Licensed under GNU) xxxx://xxx.xxx.xxx/xxxxxxxx/ | |
| G. | Node-JS server software xxxxx://xxxxxx.xxx/xxxxxx/xxxx/xxxx/xxxxxx/XXXXXXX | |
| H. | Putty SSH software xxxx://xxx.xxxxxx.xxxxxxxx.xxx.xx/xxxxxxxxx/xxxxx/xxxxxxx.xxxx | |
| I. | Open source Wordpress (webpages made in this) xxxxx://xxxxxxxxx.xxx/xxxxx/xxxxxxx/ | |
| J. | Burp proxy security software xxxxx://xxxxxxxxxxx.xxx/xxxx/xxxx-xxxx.xxxx | |
| K. | OpenVas Security software (Licensed under GNU) xxxx://xxx.xxx.xxx/xxxxxxxx/ |
| 1.9 | Mobile phone application developments |
| A. | SwyptoBank iOS App |
A software application for iPhone, developed by Luqon Solutions AB in Sweden for LXCCoin Ltd. The system is an App based solution whereby any user or business can sign up and manage his accounts and wallets of LXCCoins on his iPhone or iPad using the graphical interface. The App allows the user to purchase LXCCoins using credit cards as well as request and send LXCCoins from and to others. Included in the Application is full SDK with documentation, software (source code and object code), tools, libraries, APIs, data, files and design.
| B. | SwyptoBank Android App |
A software application for Android Smart Phones that will be available on Google Play that is being developed by Luqon Solutions AB in Sweden for LXCCoin Ltd. The system is an App based solution whereby any user or business can sign up and manage his accounts and wallets of LXCCoins on his Android Smartphone using the graphical interface. The App allows the user to purchase LXCCoins using credit cards as well as request and send LXCCoins from and to others. Included in the Application is full SDK with documentation, software (source code and object code), tools, libraries, APIs, data, files and design.
| C. | The above Apps have been contracted for development by LXCCoin and will be completed and paid by the Buyer when it puts the Apps into use on it planned micro-payment platform. |