EXHIBIT 10.17
EXECUTION COPY
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
CATCHER, INC.
AND
LCM TECHNOLOGIES, INC.
AS OF APRIL 21, 2005
TABLE OF CONTENTS
PAGE
ARTICLE I CONSTRUCTION; DEFINITIONS............................................1
Section 1.1 Construction.............................................1
Section 1.2 Definitions..............................................2
Section 1.3 Other Definitions........................................5
ARTICLE II PURCHASE AND SALE...................................................5
Section 2.1 Agreement to Purchase and Sell...........................5
Section 2.2 Excluded Assets..........................................6
Section 2.3 Assumption of Assumed Liabilities........................6
Section 2.4 Excluded Liabilities.....................................7
ARTICLE III CONSIDERATION......................................................8
Section 3.1 Purchase Price...........................................8
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF COMPANY...........................8
Section 4.1 Organization.............................................8
Section 4.2 Authorization............................................8
Section 4.3 Absence of Restrictions and Conflicts....................8
Section 4.4 Title to Assets; Related Matters.........................9
Section 4.5 Legal Proceedings........................................9
Section 4.6 Compliance with Law......................................9
Section 4.7 Assumed Contracts........................................9
Section 4.9 Brokers, Finders and Investment Bankers.................10
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PURCHASER.........................10
Section 5.1 Organization............................................10
Section 5.2 Authorization...........................................10
Section 5.3 Absence of Restrictions and Conflicts...................10
ARTICLE VI CERTAIN COVENANTS AND AGREEMENTS...................................11
Section 6.1 Conduct of Business by the Company......................11
Section 6.2 Notices of Certain Events...............................11
Section 6.3 Reasonable Efforts; Further Assurances; Cooperation.....11
Section 6.5 Taxes; Expenses.........................................12
ARTICLE VII CONDITIONS TO CLOSING.............................................12
Section 7.1 Conditions to Each Party's Obligations..................12
Section 7.2 Conditions to Obligations of the Purchaser..............12
Section 7.3 Conditions to Obligations of the Company................13
ARTICLE VIII CLOSING .........................................................14
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ARTICLE IX TERMINATION........................................................14
Section 9.1 Termination.............................................14
Section 9.2 Effect of Termination...................................15
ARTICLE X MISCELLANEOUS PROVISIONS............................................16
Section 10.1 Notices.................................................16
Section 10.2 Schedules and Exhibits..................................16
Section 10.3 Assignment; Successors in Interest......................16
Section 10.4 Captions................................................16
Section 10.5 Controlling Law; Amendment..............................16
Section 10.6 Consent to Jurisdiction, Etc............................17
Section 10.7 Severability............................................17
Section 10.8 Counterparts............................................17
Section 10.9 Enforcement of Certain Rights...........................17
Section 10.10 Waiver..................................................17
Section 10.11 Transaction Costs.......................................17
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LIST OF EXHIBITS
Exhibit 7.2(e)(i) Form of Xxxx of Sale
Exhibit 7.2(e)(ii) Form of Assignment & Assumption Agreement
LIST OF SCHEDULES
Schedule 2.4(a)(ii) Assumed Liabilities
Schedule 4.1 Qualifications to Do Business
Schedule 4.4 Title Exceptions
Schedule 4.5 Legal Proceedings
Schedule 4.8 Intellectual Property Exceptions
Schedule 4.11 Exceptions to Compliance with Law
Schedule 4.12 Assumed Contracts
Schedule 4.14 Officers and Employees
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "AGREEMENT"), dated as of April 21,
2005, is made and entered into by and among Catcher, Inc., a Delaware
corporation (the "PURCHASER"), and LCM Technologies, Inc., a Delaware
corporation ("LCM"). The Purchaser and LCM are sometimes individually referred
to herein as a "PARTY" and collectively as the "PARTIES".
W I T N E S S E T H:
WHEREAS, LCM is engaged in the business of provide turnkey secure, end
to end video/data/voice solutions in area of security and defense industry (the
"BUSINESS"); and
WHEREAS, the Parties desire to enter into this Agreement pursuant to
which LCM proposes to sell to the Purchaser, and the Purchaser proposes to
purchase from LCM (the "ACQUISITION"), certain of the assets used or held for
use by LCM in the conduct of its business as a going concern, and the Purchaser
proposes to assume certain of the liabilities and obligations of LCM; and
WHEREAS, the Parties desire to make certain representations,
warranties, and agreements in connection with the Acquisition.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements, and conditions hereinafter
set forth, and intending to be legally bound hereby, each Party hereby agrees as
follows:
ARTICLE I
CONSTRUCTION; DEFINITIONS
Section 1.1 CONSTRUCTION. Unless the context of this Agreement
otherwise clearly requires, (a) references to the plural include the
singular, and references to the singular include the plural, (b) references
to any gender include the other genders, (c) the words "include,"
"includes" and "including" do not limit the preceding terms or words and
shall be deemed to be followed by the words "without limitation", (d) the
term "or" has the inclusive meaning represented by the phrase "and/or", (e)
the terms "hereof", "herein", "hereunder", "hereto" and similar terms in
this Agreement refer to this Agreement as a whole and not to any particular
provision of this Agreement, (f) the terms "day" and "days" mean and refer
to calendar day(s) and (g) the terms "year" and "years" mean and refer to
calendar year(s). Unless otherwise set forth herein, references in this
Agreement to (i) any document, instrument or agreement (including this
Agreement) (A) includes and incorporates all exhibits, schedules and other
attachments thereto, (B) includes all documents, instruments or agreements
issued or executed in replacement thereof and (C) means such document,
instrument or agreement, or replacement or predecessor thereto, as amended,
modified or supplemented from time to time in accordance with its terms and
in effect at any given time,
and (ii) a particular Law (as hereinafter defined) means such Law as
amended, modified, supplemented or succeeded, from time to time and in
effect at any given time. All Article, Section, Exhibit and Schedule
references herein are to Articles, Sections, Exhibits and Schedules of this
Agreement, unless otherwise specified. This Agreement shall not be
construed as if prepared by one of the Parties, but rather according to its
fair meaning as a whole, as if all Parties had prepared it.
Section 1.2 DEFINITIONS. The following terms, as used herein, have the
following meanings:
"AFFILIATE" of any specified Person means any other Person directly or
indirectly Controlling or Controlled by or under direct or indirect common
Control with such specified Person.
"ASSUMED CONTRACTS" means those contracts, letters of intent, memoranda
of understanding, and so called teaming agreements that are listed on SCHEDULE
4.12.
"BUSINESS DAY" means any day except Saturday, Sunday or any day on
which banks are generally not open for business in the City of New York or San
Diego.
"CLOSING" means the consummation of the transactions contemplated by
Article II.
"CLOSING DATE" means the date on which the Closing occurs.
"CODE" means the United States Internal Revenue Code of 1986.
"CONFIDENTIAL INFORMATION" means any data or information of LCM
(including trade secrets) that is valuable to the operation of the Business and
not generally known to the public or competitors.
"CONTROL" means, when used with respect to any specified Person, the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise.
"GOVERNMENTAL ENTITY" means any federal, state, or local or foreign
government, any political subdivision thereof or any court, administrative or
regulatory agency, department, instrumentality, body, or commission or other
governmental authority or agency, domestic, or foreign.
"INTELLECTUAL PROPERTY" means any or all of the following and all
rights, arising out of or associated therewith: (i) all United States,
international and foreign patents and applications therefor and all reissues,
divisions, renewals, extensions, provisionals, continuations and
continuations-in-part thereof; (ii) all inventions (whether patentable or not),
invention disclosures, improvements, trade secrets, proprietary information,
know-how, technology, technical data and customer lists, and all documentation
relating to any of the foregoing throughout the world; (iii) all copyrights,
copyright registrations and applications therefor, and
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all other rights corresponding thereto throughout the world; (iv) all industrial
designs and any registrations and applications therefor throughout the world;
(v) all internet uniform resource locators, domain names, trade names, logos,
slogans, designs, common law trademarks and service marks, trademark and service
xxxx registrations and applications therefor throughout the world; (vi) all
databases and data collections and all rights therein throughout the world;
(vii) all moral and economic rights of authors and inventors, however
denominated, throughout the world; and (viii) any similar or equivalent rights
to any of the foregoing anywhere in the world.
"KNOWLEDGE" with respect to LCM means all facts actually known by any
officer or director of LCM on the date hereof.
"LAWS" means all statutes, rules, codes, regulations, restrictions,
ordinances, orders, decrees, approvals, directives, judgments, injunctions,
writs, awards and decrees of, or issued by, any Governmental Entities.
"LCM ANCILLARY DOCUMENTS" means any certificate, agreement, document,
or other instrument, other than this Agreement, to be executed and delivered by
LCM in connection with the transactions contemplated hereby.
"LCM INTELLECTUAL PROPERTY" means any Intellectual Property that is
owned by LCM and used in connection with the Business, including LCM Software.
"LCM SOFTWARE" means all software owned by LCM.
"LEGAL DISPUTE" means any action, suit or proceeding between or among
the Parties and their respective Affiliates arising in connection with any
disagreement, dispute, controversy or claim arising out of or relating to this
Agreement or any related document.
"LIABILITIES" means any and all debts, liabilities, and obligations of
any kind, nature, or type, whether accrued or fixed, absolute, contingent, or
unliquidated, matured or unmatured, determined or determinable, known or
unknown, or otherwise, including those arising under any applicable Law, any
Proceeding, and any order, writ, judgment, injunction, decree, stipulation,
determination, or award entered or issued by or with any Governmental Authority
and those arising under any contract.
"LICENSES" means all notifications, licenses, permits (including
environmental, construction and operation permits), franchises, certificates,
approvals, exemptions, classifications, registrations, and other similar
documents and authorizations issued by any Governmental Entity, and applications
therefor.
"LIENS" mean all mortgages, liens, pledges, security interests,
charges, claims, restrictions, and encumbrances of any nature whatsoever.
"MATERIAL ADVERSE EFFECT" means any state of facts, change, event,
effect, or occurrence (when taken together with all other states of fact,
changes, events, effects or occurrences) that is or may be reasonably likely to
be materially adverse to the financial condition, results of
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operations, properties, assets, or liabilities (including contingent
liabilities) of LCM, the Business or the Assets taken as a whole. A Material
Adverse Effect shall also include any state of facts, change, event, or
occurrence that shall have occurred or been threatened that (when taken together
with all other states of facts, changes, events, effects, or occurrences that
have occurred or been threatened) is or may be reasonably likely to prevent or
materially delay the performance by LCM of any of its obligations hereunder or
the consummation of the transactions contemplated hereby.
"NON-ASSIGNABLE CONTRACTS" means Assumed Contracts that require
third-party consents for assignment that have not been obtained by LCM as of the
Closing.
"PATENT APPLICATION" means the U.S. patent application no. 10/888,515
(Portable Handheld Security Device).
"PERMITTED LIENS" means (i) Liens for taxes not yet due and payable,
(ii) statutory Liens of landlords, (iii) Liens of carriers, warehousemen,
mechanics, material men, and repairmen incurred in the ordinary course of
business consistent with past practice and not yet delinquent, and (iv) with
respect to the Patent Application, any Lien that may exist pending satisfaction
of LCM's obligations under the terms of that certain agreement between LCM and
CFT/Xxxxx which obligations shall be assumed by Purchaser under Section
2.3(b)(i).
"PERSON" means any individual, corporation, partnership, joint venture,
limited liability company, trust, unincorporated organization, or Governmental
Entity.
"PROCEEDING" means any claim, action, litigation, suit, proceeding, or
formal investigation, inquiry, audit or review of any nature, civil, criminal,
regulatory, or otherwise, before any Governmental Authority.
"PURCHASER ANCILLARY DOCUMENTS" means any certificate, agreement,
document or other instrument, other than this Agreement, to be executed and
delivered by the Purchaser in connection with the transactions contemplated
hereby.
"TAXES" means all taxes, assessments, charges, duties, fees, levies,
and other governmental charges, including income, franchise, capital stock, real
property, personal property, tangible, intangible, withholding, employment,
payroll, social security, social contribution, unemployment compensation,
disability, transfer, sales, use, excise, license, occupation, registration,
stamp, premium, environmental, customs duties, alternative or add-on minimum,
estimated, gross receipts, value-added, and all other taxes of any kind for
which LCM may have any liability imposed by any Governmental Entity, whether
disputed or not, and any charges, interest, or penalties imposed by any
Governmental Entity.
"TERMINATION DATE" means the date prior to the Closing when this
Agreement is terminated in accordance with Article IX.
"TRADEMARK APPLICATIONS" means the U.S. trademark applications (1)
CATCHER, Ser.
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No. 78/433,770 and (2) SECURE CARGO VISION, Ser. No. 78/433,768.
Section 1.3 OTHER DEFINITIONS. Each of the following terms is defined
in the Section set forth opposite such term:
TERM SECTION
---- -------
Acquisition........................................................ Recitals
Agreement.......................................................... Preamble
Assets............................................................. 2.1
Assumed Liabilities................................................ 2.4(b)
Business........................................................... Recitals
Deposits........................................................... 2.2(b)
Excluded Assets.................................................... 2.3
Excluded Liabilities............................................... 2.5
Expiration Date.................................................... 9.1(e)
LCM................................................................ Preamble
Parties........................................................... Preamble
Party.............................................................. Preamble
Purchaser.......................................................... Preamble
ARTICLE II
PURCHASE AND SALE
Section 2.1 AGREEMENT TO PURCHASE AND SELL. Subject to the terms and
conditions hereof, at the Closing and except as otherwise specifically
provided in this Article II, LCM, in consideration for the payment of the
Purchase Price in accordance with Section 3.1, shall grant, sell, assign,
transfer, convey, and deliver to the Purchaser, and the Purchaser shall
purchase and acquire from LCM, all right, title, and interest of LCM in and
to:
(a) all Assumed Contracts and all rights of LCM under the Assumed
Contracts;
(b) all patents, patent applications (including the Patent
Application), copyrights, copyright applications, methods, know-how,
software, technical documentation, processes, procedures, inventions,
trade secrets, trademarks, trade names, service marks, service names,
registered user names, technology, research records, data, designs,
plans, drawings, manufacturing know-how and formulas, whether
patentable or unpatentable, and other intellectual or proprietary
rights or property of LCM (and all rights thereto, goodwill therein,
and applications therefore except for the Trademark Applications),
including all LCM Intellectual Property;
(c) all rights in and under all express or implied guarantees,
warranties, representations, covenants, indemnities, and similar
rights in favor of LCM;
(d) all information, files, correspondence, records, data, plans,
reports, contracts
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and recorded knowledge, including customer, supplier, price and
mailing lists, and all accounting or other books and records of LCM in
whatever media retained or stored, including computer programs and
disks pertaining to the Assumed Contracts, Patent Application,
Trademark Application, and LCM Intellectual Property;
(collectively, the "ASSETS") free and clear of all Liens, other than the
Permitted Liens and the Purchaser shall assume the Assumed Liabilities.
Section 2.2 EXCLUDED ASSETS. Notwithstanding anything to the contrary
set forth herein, the Assets shall not include any assets of LCM that are
not Assets including the following assets, properties, and rights of LCM
(collectively, the "EXCLUDED ASSETS"):
(a) any permit, approval, license, qualification, registration,
certification, authorization, or similar right that by its terms is
not transferable to the Purchaser;
(b) any accounts receivable;
(c) the charter documents of LCM, minute books, stock ledgers,
tax identification numbers, books of account, and other constituent
records relating to the corporate organization of LCM;
(d) the rights that accrue to LCM hereunder; and
(e) any cash, cash equivalents, or marketable securities and all
rights to any bank accounts of LCM.
Section 2.3 ASSUMPTION OF ASSUMED LIABILITIES.
(a) Except as provided in Section 2.3(b), the Purchaser shall not
assume, in connection with the transactions contemplated hereby, any
Liability of LCM whatsoever, and LCM shall retain responsibility for
all Liabilities accrued as of or on the Closing Date and all
Liabilities arising from LCM's operations prior to or on the Closing
Date, whether or not accrued and whether or not disclosed.
(b) As the sole exception to the provisions in Section 2.3(a),
effective as of the close of business on the Closing Date, the
Purchaser shall assume the following liabilities and obligations of
LCM existing as of such time and arising out of the conduct of the
Business prior to or on the Closing Date (collectively, the "ASSUMED
LIABILITIES"):
(i) the obligations of LCM under each Assumed Contract to
the extent such obligations are not required to be performed on
or prior to the Closing Date, are disclosed on the face of such
Assumed Contract and accrue and relate to the operations of the
Business subsequent to the Closing Date; and
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(ii) those current liabilities of LCM of the types listed on
SCHEDULE 2.3(a)(II).
Section 2.4 EXCLUDED LIABILITIES. Specifically, and without in any way
limiting the generality of Section 2.3(a), the Assumed Liabilities shall
not include, and in no event shall the Purchaser assume, agree to pay,
discharge, or satisfy any Liability hereunder or otherwise have any
responsibility for any Liability (together with all other Liabilities that
are not Assumed Liabilities, the "EXCLUDED LIABILITIES"):
(a) relating to any Liability (including accounts payable) owed
to the shareholders of LCM or any Affiliate of LCM;
(b) for (i) Taxes with respect to any period or (ii) any
liability of LCM for unpaid Taxes of any Person (other than LCM) under
Treasury Regulations Section 1.1502-6 (or any similar provisions of
state, local, or foreign law), as a transferee or successor, by
contract or otherwise;
(c) for any indebtedness with respect to borrowed money,
including any interest or penalties accrued thereon;
(d) relating to, resulting from, or arising out of, (i) claims
made in pending or future suits, actions, investigations, or other
legal, governmental, or administrative proceedings or (ii) claims
based on violations of law, breach of contract, employment practices,
or environmental, health, and safety matters or any other actual or
alleged failure of LCM to perform any obligation, in each case arising
out of, or relating to, (x) events that shall have occurred, (y)
services performed, or (z) the operation of the Business, prior to the
Closing;
(e) pertaining to any Excluded Asset;
(f) relating to, resulting from, or arising out of, any
non-Business operation of LCM any former operation of LCM that has
been discontinued or disposed of prior to the Closing; or
(g) under or relating to any LCM benefit plan, whether or not
such liability or obligation arises prior to, on or following the
Closing Date.
Such Excluded Liabilities shall include all claims, actions, litigation, and
proceedings relating to any or all of the foregoing and all costs and expenses
in connection therewith.
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ARTICLE III
CONSIDERATION
Section 3.1 CONSIDERATION. As consideration for the grant, sale,
assignment, transfer, and delivery of the Assets, the Purchaser shall assume and
discharge the Assumed Liabilities.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF COMPANY
LCM hereby represents and warrants to the Purchaser as follows as of
the date hereof and the Closing Date:
Section 4.1 ORGANIZATION. LCM is a corporation duly formed and validly
existing under the Laws of Delaware and has all requisite power and
authority to own, lease, and operate its properties and to carry on its
business as now being conducted. LCM is duly qualified or registered as a
foreign corporation to transact business under the Laws of each
jurisdiction where the character of its activities or the location of the
properties owned or leased by it requires such qualification or
registration. LCM has heretofore made available to the Purchaser true,
correct, and complete copies of its charter documents as currently in
effect and its corporate record books with respect to actions taken by its
shareholders and board of directors. SCHEDULE 4.1 contains a true and
correct list of the jurisdictions in which LCM is qualified or registered
to do business as a foreign corporation.
Section 4.2 AUTHORIZATION. LCM has full power and authority to execute
and deliver this Agreement and LCM Ancillary Documents and to perform its
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this
Agreement and LCM Ancillary Documents by LCM and the performance by LCM of
its obligations hereunder and thereunder and the consummation of the
transactions provided for herein and therein have been duly and validly
authorized by all necessary board and shareholder action on the part of
LCM. The shareholders of the company and the board of directors of LCM have
approved the execution, delivery, and performance of this Agreement and LCM
Ancillary Documents and the consummation of the transactions contemplated
hereby and thereby. This Agreement has been, and LCM Ancillary Documents
shall be as of the Closing Date, duly executed and delivered by LCM and do
or shall, as the case may be, constitute the valid and binding agreements
of LCM, enforceable against LCM in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, and other similar Laws
affecting the enforceability of creditors' rights generally, general
equitable principles, and the discretion of courts in granting equitable
remedies.
Section 4.3 ABSENCE OF RESTRICTIONS AND CONFLICTS. The execution,
delivery, and performance of this Agreement, and LCM Ancillary Documents,
the consummation of the transactions contemplated hereby and thereby and
the fulfillment of and compliance with the terms and conditions hereof and
thereof do not or shall not (as the case may be), with the
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passing of time or the giving of notice or both, violate or conflict with,
constitute a breach of or default under, result in the loss of any benefit
under, permit the acceleration of any obligation under or create in any
party the right to terminate, modify, or cancel, (a) any term or provision
of the charter documents of LCM, (b) except as indicated on SCHEDULE 4.7,
any Assumed Contract, (c) any judgment, decree, or order of any
Governmental Entity to which LCM is a party or by which LCM or any of its
respective properties is bound, or (d) any Law or arbitration award
applicable to LCM, or the Business. No consent, approval, order or
authorization of, or registration, declaration, or filing with, any
Governmental Entity is required with respect to LCM in connection with the
execution, delivery, or performance of this Agreement or LCM Ancillary
Documents or the consummation of the transactions contemplated hereby or
thereby.
Section 4.4 TITLE TO ASSETS; RELATED MATTERS. . Except as set forth on
SCHEDULE 4.4, LCM has (and shall convey to the Purchaser at the Closing)
good and marketable title to the Assets, free and clear of all Liens except
for Permitted Liens.
Section 4.5 LEGAL PROCEEDINGS. Except as set forth on SCHEDULE 4.5,
there is no suit, action, claim, arbitration, proceeding or investigation
pending or, to the Knowledge of LCM, threatened against, relating to or
involving LCM, the Business, or the Assets before any Governmental Entity.
LCM is not subject to any judgment, decree, injunction, rule, or order of
any court or arbitration panel.
Section 4.6 COMPLIANCE WITH LAW. LCM is (and has been at all times
since its incorporation) in compliance with all applicable Laws. Except as
set forth on SCHEDULE 4.6, (i) LCM has not been charged with, and has
received no written notice that it is under investigation with respect to,
and, to the Knowledge of LCM, is not otherwise now under investigation with
respect to, a violation of any applicable Law and (ii) LCM is not a party
to, or bound by, any order, judgment, decree, injunction, rule or award of
any Governmental Entity.
Section 4.7 ASSUMED CONTRACTS. True, correct, and complete copies of
all Assumed Contracts have been made available to the Purchaser. The
Assumed Contracts are legal, valid, binding, and enforceable in accordance
with their respective terms with respect to LCM and, to the Knowledge of
LCM, each other party to such Assumed Contracts except that letters of
intent, memoranda of understanding, and so called teaming agreements may be
non-binding in accordance with their terms. Schedule 4.7 identifies with an
asterisk each Assumed Contract set forth therein that requires the consent
of or notice to the other party thereto to avoid any breach, default, or
violation of such contract, agreement, or other instrument in connection
with the transactions contemplated hereby, including the assignment of such
Assumed Contract to the Purchaser.
Section 4.8 INTELLECTUAL PROPERTY. Except as set forth on SCHEDULE 4.8
(a) No LCM Intellectual Property or product or service of the
Business related to LCM Intellectual Property is subject to any
proceeding or outstanding decree, order,
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judgment, agreement, or stipulation (i) restricting in any manner the
use, transfer or licensing thereof by LCM, or (ii) that may affect the
validity, use, or enforceability of LCM Intellectual Property or any
such product or service.
(b) LCM owns and has good and exclusive title to, each item of
LCM Intellectual Property, free and clear of any Lien (excluding
licenses and related restrictions) except for Permitted Liens.
(c) To the Knowledge of LCM, no Person has or is infringing or
misappropriating any LCM Intellectual Property.
Section 4.9 BROKERS, FINDERS AND INVESTMENT BANKERS. Neither LCM, nor
any officer, member, director or employee of LCM nor any Affiliate of LCM,
has employed any broker, finder, or investment banker or incurred any
liability for any investment banking fees, financial advisory fees,
brokerage fees, or finders' fees in connection with the transactions
contemplated hereby.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents and warrants to LCM and the Shareholder
as follows:
Section 5.1 ORGANIZATION. The Purchaser is a corporation duly
organized, validly existing, and in good standing under the Laws of the
Delaware as its jurisdiction of incorporation and has all requisite
corporate power and authority to own, lease and operate its properties and
to carry on its business as now being conducted.
Section 5.2 AUTHORIZATION. The Purchaser has full corporate power and
authority to execute and deliver this Agreement and the Purchaser Ancillary
Documents, to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby. The execution
and delivery of this Agreement and the Purchaser Ancillary Documents by the
Purchaser, the performance by the Purchaser of its obligations hereunder
and thereunder, and the consummation of the transactions provided for
herein and therein have been duly and validly authorized by all necessary
corporate action on the part of the Purchaser. This Agreement has been and,
as of the Closing Date, the Purchaser Ancillary Documents shall be, duly
executed and delivered by the Purchaser and do or shall, as the case may
be, constitute the valid and binding agreements of the Purchaser,
enforceable against the Purchaser in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, and other similar laws
affecting the enforceability of creditors' rights generally, general
equitable principles, and the discretion of courts in granting equitable
remedies.
Section 5.3 ABSENCE OF RESTRICTIONS AND CONFLICTS. The execution,
delivery, and performance of this Agreement and the Purchaser Ancillary
Documents, the consummation of the transactions contemplated hereby and
thereby and the fulfillment of, and compliance with, the terms and
conditions hereof this Agreement and thereof do not or shall not (as the
case may be), with the passing of time or the giving of notice or both,
violate or conflict with,
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constitute a breach of or default under, result in the loss of any benefit
under, or permit the acceleration of any obligation under, (a) any term or
provision of the charter documents of the Purchaser, (b) any contract to
which the Purchaser is a party, (c) any judgment, decree, or order of any
Governmental Entity to which the Purchaser is a party or by which the
Purchaser or any of its properties is bound, or (d) any Laws applicable to
the Purchaser.
ARTICLE VI
CERTAIN COVENANTS AND AGREEMENTS
Section 6.1 CONDUCT OF BUSINESS BY LCM. For the period commencing on
the date hereof and ending on the Closing Date, LCM shall, except as
expressly required hereby and except as otherwise consented to in advance
in writing by the Purchaser. Perform in all material respects all of its
obligations under all, and not default or suffer to exist any event or
condition with notice or lapse of time or both could constitute or default
under any Assumed Contract (except those being contested in good faith) and
not enter into, assume, or amend any contract or commitment that is or
would be an Assumed Contract;
Section 6.2 NOTICES OF CERTAIN EVENTS. LCM shall promptly notify the
Purchaser of:
(a) any change or event that, individually or in the aggregate,
have had or could reasonably be expected to have a Material Adverse
Effect on the Assets or the Assumed Liabilities or otherwise result in
any representation or warranty of LCM hereunder being inaccurate in
any material respect;
(b) any notice or other communication from any Person alleging
that the consent of such Person is or may be required in connection
with the transactions contemplated hereby;
(c) any notice or other communication from any Governmental
Entity in connection with the transactions contemplated hereby;
(d) any action, suit, claim, investigation, or proceeding
commenced or, to its Knowledge, threatened against, relating to or
involving or otherwise affecting LCM or the Business that, if pending
on the date hereof, would have been required to have been disclosed
pursuant to Section 4.5 or that relate to the consummation of the
transactions contemplated hereby; and
(e) any Asset or part thereof becoming the subject of any
proceeding (or, to the Knowledge of LCM, threatened proceeding) for
the taking thereof or of any right relating thereto by condemnation,
eminent domain, or other similar governmental action.
LCM hereby acknowledges that the Purchaser does not and shall not waive
any right it may have hereunder as a result of such notifications.
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Section 6.3 REASONABLE EFFORTS; FURTHER ASSURANCES; COOPERATION.
Subject to the other provisions hereof, each Party shall each use its
reasonable, good faith efforts to perform its obligations hereunder and to
take, or cause to be taken, and do, or cause to be done, all things
necessary, proper or advisable under applicable Law to obtain all consents
required as described on SCHEDULE 4.7 and all regulatory approvals and to
satisfy all conditions to its obligations hereunder and to cause the
transactions contemplated herein to be effected as soon as practicable, but
in any event on or prior to the Expiration Date, in accordance with the
terms hereof and shall cooperate fully with each other Party and its
officers, directors, employees, agents, counsel, accountants and other
designees in connection with any step required to be taken as a part of its
obligations hereunder.
Section 6.4 TAXES; EXPENSES. . Any Taxes or recording fees payable as
a result of the Acquisition or any other action contemplated hereby shall
be paid by Purchaser. The Parties shall cooperate in the preparation,
execution, and filing of all returns, questionnaires, applications become
payable in connection with the transaction contemplated hereby that are
required or permitted to be filed at or prior to the Closing.
ARTICLE VII
CONDITIONS TO CLOSING
Section 7.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS. The respective
obligations of each Party to effect the transactions contemplated hereby
shall be subject to the closing of the acquisition of Purchaser by U.S.
Telesis Holdings, Inc. as provided in the Memorandum of Understanding dated
April 20, 2005.
Section 7.2 CONDITIONS TO OBLIGATIONS OF THE PURCHASER. The
obligations of the Purchaser to consummate the transactions contemplated
hereby shall be subject to the fulfillment at or prior to the Closing of
each of the following additional conditions:
(a) INJUNCTION. There shall be no effective injunction, writ, or
preliminary restraining order or any order of any nature issued by a
Governmental Entity of competent jurisdiction to the effect that the
Acquisition may not be consummated as provided herein, no proceeding
or lawsuit shall have been commenced by any Governmental Entity for
the purpose of obtaining any such injunction, writ, or preliminary
restraining order and no written notice shall have been received from
any Governmental Entity indicating an intent to restrain, prevent,
materially delay, or restructure the transactions contemplated hereby,
in each case where the Closing would (or would be reasonably likely
to) result in a material fine or penalty payable by the Purchaser or
any of its Affiliates or to impose any restraint or restriction on
Purchaser's operation of the Business following the Closing.
(b) GOVERNMENTAL CONSENTS. All consents, approvals, orders or
authorizations of, or registrations, declarations or filings with, all
Governmental Entities required in connection with the execution,
delivery, or performance hereof shall have been obtained or made,
except where the failure to have obtained or made any such consent,
approval,
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order, authorization, registration, declaration, or filing would not
result in a material fine or penalty payable by the Purchaser or any
of its Affiliates or any adverse effect on the assets, liabilities,
results of operations, business, or prospects of the Business
following the Closing.
(c) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of LCM set forth in Article IV shall have been true and
correct in all material respects as of the date hereof and shall be
true and correct in all material respects as of the Closing Date as
though made on and as of the Closing Date, except that those
representations and warranties that by their terms are qualified by
materiality shall be true and correct in all respects.
(d) NO MATERIAL ADVERSE EFFECT. Between the date hereof and the
Closing Date, there shall not have occurred (nor shall the Purchaser
have become aware of) any Material Adverse Effect;
(e) ANCILLARY DOCUMENTS. LCM shall have delivered, or caused to
be delivered, to the Purchaser the following:
(i) executed deeds, bills of sale, instruments of
assignment, certificates of title, and other conveyance
documents, dated as of the Closing Date, transferring to the
Purchaser all of LCM's right, title and interest in and to the
Assets, together with possession of the Assets, including the
Xxxx of Sale (the "XXXX OF SALE") substantially in the form of
Exhibit 7.2(e)(i); and
(ii) documents evidencing the assignment of the Assumed
Contracts and the assignment of any assignable Licenses,
including the Assignment and Assumption Agreement (the
"ASSIGNMENT AND ASSUMPTION AGREEMENT") substantially in the form
of Exhibit 7.2(e)(ii).
Section 7.3 CONDITIONS TO OBLIGATIONS OF LCM. The obligations of LCM
and the Shareholder to consummate the transactions contemplated hereby
shall be subject to the fulfillment at or prior to the Closing of each of
the following additional conditions:
(a) INJUNCTION. There shall be no effective injunction, writ, or
preliminary restraining order or any order of any nature issued by a
Governmental Entity of competent jurisdiction to the effect that the
Acquisition may not be consummated as provided herein, no proceeding
or lawsuit shall have been commenced by any Governmental Entity for
the purpose of obtaining any such injunction, writ, or preliminary
restraining order and no written notice shall have been received from
any Governmental Entity indicating an intent to restrain, prevent,
materially delay or restructure the transactions contemplated hereby,
in each case where the Closing would (or would be reasonably likely
to) result in a material fine or penalty payable by LCM or a material
restriction on LCM's operations as a result of such matter.
(b) GOVERNMENTAL CONSENTS. All consents, approvals, orders or
authorizations of,
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or registrations, declarations or filings with, any Governmental
Entity required in connection with the execution, delivery or
performance hereof shall have been obtained or made, except where the
failure to have obtained or made any such consent, approval, order,
authorization, registration, declaration or filing would not result in
a material fine or penalty payable by LCM or a material restriction on
LCM's operations.
(c) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Purchaser set forth in Article V shall have been
true and correct in all material respects as of the date hereof and
shall be true and correct in all material respects as of the Closing
Date as though made on and as of the Closing Date, except that those
representations and warranties that by their terms are qualified by
materiality shall be true and correct in all respects.
(d) ANCILLARY DOCUMENTS. The Purchaser shall have delivered, or
caused to be delivered, to LCM and the Shareholder the following:
(i) documents evidencing the assumption of the Assumed
Contracts the acceptance of the Assignable Licenses and the
Assumed Liabilities, including the Assignment and Assumption
Agreement; and
(ii) all other documents required to be entered into or
delivered by the Purchaser at or prior to the Closing pursuant
hereto.
ARTICLE VIII
CLOSING
The Closing shall occur simultaneously with the satisfaction or waiver
of the conditions set forth in Article VII, or on such other date as the Parties
may agree. The Closing shall take place at the offices of Xxxxxxx Xxxxxxxxx
Xxxxx & Xxxxxx, LLP; 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, or at such other
place as the Parties may agree.
ARTICLE IX
TERMINATION
Section 9.1 TERMINATION. This Agreement may be terminated:
(a) in writing by mutual consent of the Parties;
(b) by written notice from LCM to the Purchaser, in the event the
Purchaser (i) fails to perform in any material respect any of its
agreements contained herein required to be performed by it at or prior
to the Closing or (ii) materially breaches any of its representations
and warranties contained herein, which failure or breach is not cured
within 10 days following LCM having notified the Purchaser of its
intent to terminate this Agreement pursuant to this Section 9.1(b);
(c) by written notice from the Purchaser to LCM, in the event
either LCM (i)
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fails to perform in any material respect any of its agreements
contained herein required to be performed by it at or prior to the
Closing or (ii) materially breaches any of its representations and
warranties contained herein, which failure or breach is not cured
within 10 days following the Purchaser having notified LCM of its
intent to terminate this Agreement pursuant to this Section 9.1(c);
(d) by written notice by LCM to the Purchaser or the Purchaser to
LCM, as the case may be, in the event the Closing has not occurred on
or prior to May 30, 2005 (the "EXPIRATION DATE") for any reason other
than delay or nonperformance of the Party seeking such termination.
Section 9.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement pursuant to this Article IX, this Agreement shall forthwith
become void and there shall be no liability on the part of any Party or its
partners, officers, directors or stockholders, except for obligations
Section 10.1 (Notices), Section 10.5 (Controlling Law; Amendment), Section
11.6 (Consent to Jurisdiction, Etc.) and Section 10.11 (Transaction Costs)
and this Section 9.2, all of which shall survive the Termination Date.
Notwithstanding the foregoing, nothing contained herein shall relieve any
Party from liability for any breach hereof.
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ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1 NOTICES. All notices, communications and deliveries
hereunder shall be made in writing signed by or on behalf of the Party
making the same, shall specify the Section pursuant to which it is given or
being made, and shall be delivered personally or by UPS Next Day Air or
other next day courier (with evidence of delivery and postage and other
fees prepaid) as follows:
To the Purchaser: CATCHER, INC.
X/X XXXX
00 XXXX 00XX XXXXXX
XXX XXXX, XX 00000
To LCM: LCM TECHNOLOGIES, INC.
0000 XXXX XXXX
XXX XXXXXX, XX 00000
Attn: XX. XXX XXXXXXXX
or to such other representative or at such other address of a party as such
party may furnish to the other parties in writing. Any such notice,
communication or delivery shall be deemed given or made (a) on the date of
delivery, if delivered in person, (b) on the first Business Day following
delivery to a overnight courier service or (c) on the fifth Business Day
following it being mailed by registered or certified mail.
Section 10.2 SCHEDULES AND EXHIBITS. The Schedules and Exhibits are
hereby incorporated into this Agreement and are hereby made a part hereof
as if set out in full herein.
Section 10.3 ASSIGNMENT; SUCCESSORS IN INTEREST. No assignment or
transfer by any Party of such Party's rights and obligations hereunder
shall be made except with the prior written consent of the other Parties;
provided that the Purchaser shall, without the obligation to obtain the
prior written consent of any other Party, be entitled to assign this
Agreement or all or any part of its rights or obligations hereunder to one
or more Affiliates of the Purchaser. This Agreement shall be binding upon
and shall inure to the benefit of the Parties and their respective
successors and permitted assigns, and any reference to a Party shall also
be a reference to the successors and permitted assigns thereof.
Section 10.4 CAPTIONS. The titles, captions and table of contents
contained herein are inserted herein only as a matter of convenience and
for reference and in no way define, limit, extend or describe the scope of
this Agreement or the intent of any provision hereof.
Section 10.5 CONTROLLING LAW; AMENDMENT. This Agreement shall be
governed by
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and construed and enforced in accordance with the internal Laws of the
State of NEW YORK without reference to its choice of law rules. This
Agreement may not be amended, modified, or supplemented except by written
agreement of the Parties.
Section 10.6 CONSENT TO JURISDICTION, ETC. Each Party hereby the
County of New York irrevocably agrees that any Legal Dispute shall be
brought only to the exclusive jurisdiction of the courts of the State of
New York, County of New York or the federal courts located in the State of
New York, County of New York, and each Party hereby consents to the
jurisdiction of such courts (and of the appropriate appellate courts
therefrom) in any such suit, action, or proceeding and irrevocable waives,
to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding in any such court or that they any such suit, action or
proceeding that is brought in any such court has been brought in an
inconvenient forum.
Section 10.7 SEVERABILITY. Any provision hereof that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by Law, each Party hereby waives any provision of law that
renders any such provision prohibited or unenforceable in any respect.
Section 10.8 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, and it shall
not be necessary in making proof of this Agreement or the terms hereof to
produce or account for more than one of such counterparts.
Section 10.9 ENFORCEMENT OF CERTAIN RIGHTS. Nothing expressed or
implied herein is intended, or shall be construed, to confer upon or give
any Person other than the Parties, and their successors or permitted
assigns, any right, remedy, obligation, or liability under or by reason of
this Agreement, or result in such Person being deemed a third-party
beneficiary hereof.
Section 10.10 WAIVER. Any agreement on the part of a Party to any
extension or waiver of any provision hereof shall be valid only if set
forth in an instrument in writing signed on behalf of such Party. A waiver
by a Party of the performance of any covenant, agreement, obligation,
condition, representation, or warranty shall not be construed as a waiver
of any other covenant, agreement, obligation, condition, representation, or
warranty. A waiver by any Party of the performance of any act shall not
constitute a waiver of the performance of any other act or an identical act
required to be performed at a later time.
Section 10.11 TRANSACTION COSTS. Except as provided above or as
otherwise expressly provided herein, (a) the Purchaser shall pay its own
fees, costs and expenses incurred in connection herewith and the
transactions contemplated hereby, including the fees, costs and expenses of
its financial advisors, accountants and counsel, and (b) LCM and the
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Shareholder shall pay the fees, costs and expenses of LCM and the
Shareholder incurred in connection herewith and the transactions
contemplated hereby, including the fees, costs, and expenses of their
financial advisors, accountants and counsel.
[Signature Page To Follow]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed, as of the date first above written.
CATCHER, INC.
By: /s/ Xxx Xxxxxxxx
-----------------------
Name: Xxx Xxxxxxxx
---------------------
Title: Chairman
--------------------
LCM Technologies, Inc.
By: /s/ Xxx Xxxxxxxx
-----------------------
Name: Xxx Xxxxxxxx
---------------------
Title: President
--------------------
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EXHIBIT 7(e)(i)
FORM OF XXXX OF SALE
(Capitalized terms used in this Xxxx of Sale that are not otherwise
defined herein have the respective meanings ascribed thereto in the Asset
Purchase Agreement, dated as of the __ day of April, 2005 (the "PURCHASE
AGREEMENT"), by and among Catcher, Inc., a Delaware corporation (the
"PURCHASER"), and LCM Technologies, Inc., a Delaware corporation (the "LCM").
LCM, in accordance with and subject to terms of the Purchase Agreement,
and for good and valuable consideration to it in hand paid, sufficiency and
receipt of which are hereby acknowledged, hereby sells, transfers, conveys,
assigns, and delivers to the Purchaser, and the successors and assigns of the
Purchaser, all its rights, title and interest in, to, and with respect to, the
following property (the "ASSETS"), free and clear of all Liens (except for the
Permitted Liens):
1. except to the extent relating to the Excluded Assets or
Excluded Liabilities, all information, files, correspondence, records,
data, plans, reports, contracts and recorded knowledge, including
customer, supplier, price and mailing lists, and all accounting or
other books and records of LCM in whatever media retained or stored,
including computer programs and disks pertaining to the Assumed
Contracts, Patent Application, Trademark Application, and LCM
Intellectual Property.
LCM hereby authorizes the Purchaser to take any appropriate action to
effectuate the transfer of the Assets to the Purchaser in accordance with the
terms of the Purchase Agreement in the name of LCM or in its own or any other
name.
TO HAVE AND TO HOLD the Assets, unto the Purchaser and its successors
and assigns, to and for its or their use forever.
And LCM does hereby warrant, covenant and agree for the benefit of the
Purchaser, and subject to the terms and conditions and limitations set forth in
the Purchase Agreement, that LCM:
1. shall warrant and defend the sale of the Assets to the
Purchaser against each and every Person whomsoever claiming or who may
claim against any or all of the Assets;
2. shall take all sets necessary to put the Purchaser or its
successors and assigns in actual possession and operating control of
the Assets; and
3. shall do, execute and deliver, or shall cause to be done,
executed
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and delivered, all such further acts and instruments that the Purchaser
may reasonably request in order to fully effectuate the sale, transfer,
conveyance, assignment, and delivery of the Assets in accordance with
the terms and conditions and subject to the limitations of the Purchase
Agreement.
In the event of a conflict between the terms and conditions of this
Xxxx of Sale and the Purchase Agreement, the terms, conditions and limitations
of the Purchase Agreement shall prevail.
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IN WITNESS WHEREOF, LCM has caused this Xxxx of Sale to be signed by
its authorized officer on this __ day of April, 2005.
CATCHER, INC.
___________________________________
By:
Name:
Title:
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EXHIBIT 7(e)(iii)
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated this __ day of April, 2005
(this "AGREEMENT") by and between LCM TECHNOLOGIES, INC., a Delaware corporation
("LCM"), and CATCHER, INC., a Delaware corporation (the "ASSIGNEE").
WHEREAS, the parties hereto have entered into an Asset Purchase
Agreement, dated as of April __, 2005 (the "PURCHASE AGREEMENT"; capitalized
terms not otherwise defined herein shall have the respective meanings ascribed
thereto in the Purchase Agreement), pursuant to which, among other things, LCM
has agreed to sell, and the Assignee has agreed to purchase, certain assets,
rights, and interest owned by LCM and certain assets, rights, and interests
otherwise utilized in the operation of, or otherwise in connection with, the
Business (as defined in the Purchase Agreement);
WHEREAS, LCM has entered into or executed various agreements,
instruments, and other documents in connection with the Business; and
WHEREAS, in accordance with the terms of the Purchase Agreement,
subject to the terms and conditions thereof and of this Agreement, LCM desires
to assign, and the Assignee desires to assume, certain of such agreements,
instruments, and other documents.
NOW, THEREFORE, in consideration of the premises hereof, the mutual
representations, warranties, covenants, and agreements set forth in this
Agreement and the Purchase Agreement and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, each party hereto
intending to be legally bound, does hereby agree as follows:
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ARTICLE I
ASSIGNMENT AND ASSUMPTION
SECTION 1.1. ASSIGNMENT.
In accordance with the terms and conditions of the Purchase Agreement,
LCM hereby assigns, transfers, conveys, and delivers to the Assignee all its
rights, title and interest in, under, and with respect to:
(a) the Assumed Contracts (including all monies remaining to
be paid to LCM thereunder);
(b) all patents, patent applications (including the Patent
Application), copyrights, copyright applications, methods, know-how,
software, technical documentation, processes, procedures, inventions,
trade secrets, trademarks, trade names, service marks, service names,
registered user names, technology, research records, data, designs,
plans, drawings, manufacturing know-how and formulas, whether
patentable or unpatentable, and other intellectual or proprietary
rights or property of LCM (and all rights thereto, goodwill therein,
and applications therefore including the Trademark Applications),
including all LCM Intellectual Property; and
(c) all rights in and under all express or implied guarantees,
warranties, representations, covenants, indemnities, and similar rights
in favor of LCM
free and clear of all Liens (except for the Permitted Liens and the Assumed
Liabilities) (such assignment, transfer, conveyance, and delivery, the
"ASSIGNMENT").
SECTION 1.2 ACCEPTANCE AND ASSUMPTION.
The Assignee hereby accepts the Assignment and takes and assumes the
unperformed or unfulfilled obligations and liabilities of LCM, effective as of
the date hereof with respect to the items listed in Section 1.1 (the
"ASSUMPTION"). [Without limiting the generality of the foregoing, the Assumption
shall not include any obligation or Liability with respect to any of the
Excluded Liabilities.]
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ARTICLE II
GENERAL PROVISIONS
SECTION 2.1 FURTHER ACTION
Each Party shall execute and deliver such documents and other papers
and take such further actions as may be reasonably required to carry out the
provisions hereof and give effect to the transactions contemplated hereby.
SECTION 2.2 HEADINGS.
The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
SECTION 2.3 SEVERABILITY.
If any term or other provision of this Agreement is invalid, illegal,
or incapable of being enforced by any rule of applicable Law or public policy,
all other conditions and provisions of this Agreement shall nevertheless remain
in full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party hereto. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties hereto as closely as possible in a mutually
acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the greatest extent possible.
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SECTION 2.4 ENTIRE AGREEMENT.
This Agreement, together the Purchase Agreement, constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, except
as otherwise expressly provided herein. In the event of a conflict between the
terms and conditions of this Agreement and the Purchase Agreement, the terms and
conditions of the Purchase Agreement shall prevail.
SECTION 2.5 ASSIGNMENT.
Neither party hereto may assign this Agreement or any rights hereunder,
or delegate any obligations hereunder, without the prior written consent of the
other party; PROVIDED, HOWEVER, the Assignee may assign this Agreement or any of
its rights hereunder, and the delegate any of its obligations hereunder, to any
of its Affiliates without the consent of LCM; provided such assignment shall not
relieve Assignee of its obligations hereunder or pursuant to the terms and
conditions of the Purchase Agreement.
SECTION 2.6 NO THIRD-PARTY BENEFICIARIES.
This Agreement is for the sole benefit of the parties hereto and their
permitted assigns and nothing herein, express or implied, is intended to or
shall confer upon any other Person any legal or equitable right, benefit, or
remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 2.7 AMENDMENT; WAIVER.
No amendment, modification, or termination of any provision of this
Agreement shall be effective unless the same shall be contained in a writing
signed by each party hereto. The failure of the applicable party hereto to
insist upon the strict performance of any term, condition, or other provision of
this Agreement or to exercise any right or remedy hereunder, shall not
constitute a waiver by such applicable party of any such term, condition, or
other provision or a waiver of any default or event of default in connection
therewith; and any waiver by an applicable party hereto of any such term,
condition, other provision, default or event of default shall not affect or
alter this Agreement, and each and every term, condition and other provision
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hereof shall, in such event, continue in full force and effect and shall be
operative with respect to any other then existing or subsequent default or event
of default.
SECTION 2.8 GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the internal Laws of the State of New York without reference to
its choice of law rules.
SECTION 2.9 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
executed as of the date first written above by its officer thereunto duly
authorized.
CATCHER, INC.
___________________________________
By:
Name:
Title:
LCM TECHNOLOGIES, INC.
___________________________________
By:
Name:
Title:
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