ASSET ACQUISITION AGREEMENT
This Agreement is entered into effective as of July 15, 1997 (the
"Effective Date") by and between Puma Technology, Inc., a Delaware corporation
("Purchaser"), Real World Solutions, Inc., a California corporation (the
"Company") and Xxxx Xxxxxxx ("Founder").
RECITAL
The Company desires to sell to Purchaser and Purchaser desires to
purchase various tangible and intangible assets of the Company, and Purchaser
agrees to assume certain of the liabilities and obligations of the Company,
subject to the terms of this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and conditions
herein contained, it is agreed as follows:
ARTICLE I
PURCHASE OF ASSETS
1.1 PURCHASE AND SALE. Subject to and upon the terms and conditions
of this Agreement, the Company shall sell to Purchaser and Purchaser shall
purchase from the Company, free and clear of all liens, claims and encumbrances,
all of Company's right, title and interest in and to various of the assets of
the Company listed on SCHEDULE 1.1 (the "Assets"), tangible and intangible,
wherever located and whether or not reflected on the books and records of the
Company, including without limitation the contracts and contract rights listed
on SCHEDULE 1.1 (the "Assigned Contracts").
1.2 FURTHER ASSURANCES; INSTRUMENTS OF TRANSFER. The Company shall
execute and deliver such bills of sale and other recordable instruments of
assignment, transfer and conveyance as Purchaser shall reasonably request to
document the sale, assignment, transfer, conveyance and delivery of the Assets,
including without limitation execution as of the Effective Date of the Xxxx of
Sale and Trademark Assignment attached hereto as EXHIBIT 1.2A and EXHIBIT 1.2B,
respectively. Any and all assets transferred pursuant to this Agreement are
transferred "as is," without any implied or express warranty as to quality,
performance, merchantability or fitness for a particular purpose.
1.3 PRICE. As full consideration for the purchase by Purchaser of the
Assets, Purchaser shall (i) assume certain of the liabilities of the Company
subject further to the limitations described in Section 1.4 and 6.1 below
(ii) pay $205,000, of which $125,000 will be paid at the Closing and $80,000
shall be held in escrow pursuant to an Escrow Agreement in the form attached
hereto as EXHIBIT 1.3.
1.4 ASSUMPTION OF LIABILITIES.
(a) Subject to the limitations set forth in Section 6.1 below,
effective upon the Effective Date, Purchaser hereby assumes and agrees to
perform, pay and discharge the liabilities of the Company set forth on
SCHEDULE 1.4 (collectively, the "Listed Liabilities").
1
Purchaser neither assumes nor agrees to perform, pay or discharge any
liabilities not set forth on SCHEDULE 1.4, known or unknown, contingent or
fixed or otherwise, including without limitation all liabilities related to the
employment and/or termination of personnel, all taxes due and all income,
sales, use, withholding and payroll taxes accrued through the Closing. In
addition, following the Closing, the Company shall remain responsible for
preparing and filing any state and federal income tax forms related to its
business and making any related income tax payments.
(b) Nothing herein shall be deemed to deprive Purchaser of any
defenses, set-offs or counterclaims which the Company may have had or which
Purchaser shall have with respect to any of the obligations, liabilities and
commitments reflected in the Assumed Liabilities (the "Defenses and Claims").
Effective at the Effective Date, the Company hereby transfers, conveys and
assigns to Purchaser all Defenses and Claims and agrees to cooperate with
Purchaser to maintain, secure, perfect and enforce such Defenses and Claims,
including the signing of any documents, the giving of any testimony or the
taking of any such other action as is reasonably requested by Purchaser in
connection with such Defenses and Claims.
(c) Purchaser shall pay all sales, use and transfer taxes, if
any, due upon the sale or transfer of the Assets (the "Transfer Taxes"). The
Company and Purchaser shall cooperate with each other to the extent reasonably
requested and legally permitted to minimize the Transfer Taxes.
1.5 PURCHASE PRICE ALLOCATION. The Purchase Price shall be allocated
to the Assets as set forth on SCHEDULE 1.1. The Company and Purchaser each
agree to use such allocation in filing Internal Revenue Code Form 8594.
1.6 BULK SALES LAW. The Company and Purchaser hereby waive
compliance, with the provisions of Article 6 of the Uniform Commercial Code as
it is in effect in the State of California. Notwithstanding the foregoing,
nothing herein shall stop or prevent either the Company or Purchaser from
asserting, as a bar or defense to any action or proceeding brought under the
Uniform Commercial Code of California that such code or law is not applicable to
the transactions contemplated by this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND THE FOUNDER
Except as otherwise set forth in the "Company and Founder Disclosure
Schedule" provided to Purchaser on or before July 15, 1997 and attached as
EXHIBIT 2 hereto, the Company and the Founder represent and warrant to
Purchaser as set forth below. No fact or circumstance disclosed to Purchaser
shall constitute an exception to these representations and warranties unless
such fact or circumstance is set forth in the Company and Founder Disclosure
Schedule or such supplements thereto as may mutually be agreed upon in
writing by the Company and Purchaser. The representations and warranties
made by Founder in Sections 2.7, 2.10 and 2.11 hereof are made to the best
knowledge of Founder. Whenever the term "enforceable in accordance with its
terms" or like expression is used, it is understood that excepted therefrom
are any limitations on enforceability under applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting the
2
enforcement of creditor's rights. The Founder's representations and warranties
contained in this Article II shall survive until 90 days after the Effective
Date.
2.1 ORGANIZATION. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of California,
and has all requisite corporate power and authority to own or lease and operate
its properties and to carry on its business as related to the Assets as now
conducted.
2.2 POWER, AUTHORITY AND VALIDITY. The Company has the corporate
power to enter into this Agreement and to carry out its obligations hereunder
and under (i) this Agreement and (ii) all of the documents and the agreements
referenced herein as Exhibits or documents to be signed at or prior to the
Closing that are to be executed and delivered by the Company (collectively, the
"Company Ancillary Documents"). The execution and delivery of this Agreement
and the Company Ancillary Documents and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by the Board of
Directors and the shareholders of the Company and no other corporate proceedings
on the part of the Company are necessary to authorize this Agreement and the
transactions contemplated herein and therein. The Company is not subject to or
obligated under any charter, bylaw or contract provision or any license,
franchise or permit, or subject to any order or decree, which would be breached
or violated by or in conflict with its executing and carrying out this
Agreement. No consent of any person who is a party to a contract which is
material to the Company's business, nor consent of any governmental authority,
is required to be obtained on the part of the Company to permit the transactions
contemplated herein and continue the business activities of the Company as
previously conducted by the Company without material adverse change. This
Agreement and the Company Ancillary Documents are the valid and binding
obligation of the Company enforceable in accordance with their respective terms.
2.3 NO CONFLICTS; CONSENTS. The execution and the delivery of this
Agreement and the Company Ancillary Documents by the Company do not, and the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not conflict with, result in a breach of, constitute a
default (with or without notice or lapse of time, or both) under or violation
of, or result in the creation of any lien, charge or encumbrance pursuant to any
provision of the Articles of Incorporation or Bylaws of the Company, any order,
rule, law or regulation of any court or governmental authority, foreign or
domestic, or any provision of any material agreement, instrument, understanding,
order, judgment or decree to which the Company is a party or by which the
Company or any of its properties or assets is bound or affected, nor will such
actions give to any other person or entity any interests or rights of any kind,
including rights of termination, acceleration or cancellation, in or with
respect to any of the Assets. No consent of any third party or any governmental
authority is required to be obtained on the part of the Company to permit the
consummation of the transactions contemplated by this Agreement or the Company
Ancillary Documents.
2.4 TITLE TO ASSETS. A true, correct and complete list of all claims,
liabilities, liens, pledges, mortgages, restrictions and encumbrances of any
kind ("Encumbrances") affecting the Assets are set forth in SCHEDULE 2.4.
Except as set forth in SCHEDULE 2.4, the Company has good, valid and marketable
title to all of the Assets free and clear of any Encumbrances. Except as set
forth in SCHEDULE 2.4, at the Effective Date, the Company will sell, convey,
assign, transfer and deliver to Purchaser good, valid and marketable title and
all of the Company's right and interest in and to all of the Assets, free and
clear of any Encumbrances,
3
direct or indirect, whether accrued, absolute, contingent or otherwise, except
as indicated on SCHEDULE 2.4. The Assets used in the operation of its business
are in good operating condition and repair. To the Company's and Founder's
knowledge, all real or personal property leases that relate to any Assets are
valid, binding, enforceable obligations of the Company effective in accordance
with their respective terms. There is not under any of such leases any
existing material default or event of default or event which, with notice or
lapse of time or both, would constitute a material default.
2.5 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not a party to,
or bound by, any written or oral contract, agreement, license, indenture,
mortgage, debenture, note or other instrument under the terms of which
performance by the Company according to the terms of this Agreement and the
Company Ancillary Documents will be a default or an event of acceleration, or
whereby timely performance by the Company according to the terms of this
Agreement and the Company Ancillary Documents may be prohibited, prevented or
delayed, or whereby the continued operation of the Company's business by
Purchaser will be materially adversely impaired.
2.6 LITIGATION. There are no suits, actions or proceedings pending
or, to the Company's and Founder's knowledge, threatened against or affecting
the Company or which questions or challenges the validity of this Agreement.
There is no judgment, decree, injunction, rule or order of any court,
governmental department, commission, agency, instrumentality or arbitrator
outstanding against the Company.
2.7 COMPLIANCE WITH LAW. The Company is in compliance with all
applicable laws and regulations except where such failure would not have a
material adverse effect on its business. Neither the Company nor, to the
Company's and Founder's knowledge, any of the Company's employees has directly
or indirectly paid or delivered any fee, commission or other sum of money or
item of property, however characterized, to any finder, agent, government
official or other party in the United States or any other country, that was or
is in violation of any federal, state, or local statute or law or of any statute
or law of any other country having jurisdiction. The Company has not
participated directly or indirectly in any boycotts or other similar practices
affecting any of its customers. The Company has complied at all times with any
and all applicable federal, state and foreign laws, rules, regulations,
proclamations and orders relating to the importation or exportation of any
products of the Company ("Company Products").
2.8 GOVERNMENTAL AUTHORIZATIONS AND REGULATIONS. All licenses,
franchises, permits and other governmental authorizations held by the Company
and material to its business are valid and sufficient for the business presently
carried on by the Company. The business of the Company is not being conducted
in violation of any law, ordinance or regulation of any governmental entity,
except for violations which either singly or in the aggregate do not and will
not have a material adverse effect on the operations, assets or financial
condition of the Company.
2.9 TAXES. The Company has timely filed within the time period for
filing or any extension granted with respect thereto all federal, state, local
and other returns and reports relating to any and all taxes or any other
governmental charges, obligations or fees for taxes and any related interest or
penalties ("Tax" or "Taxes") required to be filed by it with respect to its
business and the Assets and such returns and reports are true and correct. The
Company has paid all Taxes, if any, shown to be due and payable on said returns
and
4
reports and has withheld with respect to employees all federal and state income
Taxes, FICA, FUTA and other Taxes required to be withheld and has timely paid
all sales, use and similar Taxes. No income, sales, use or similar Tax return
or report of the Company has been examined or audited by the Internal Revenue
Service or any state taxing authority. There are no pending or, to the
Company's and Founder's knowledge, threatened audits, examinations,
assessments, asserted deficiencies or claims for additional Taxes. To the
Company's and Founder's knowledge, there are no liens or similar encumbrances
relating to or attributable to Taxes on the Assets.
2.10 COMPLIANCE WITH ENVIRONMENTAL REQUIREMENTS. With respect to the
Assets and the Assigned Contracts, the Company has obtained all material
permits, licenses and other authorizations which are required under federal,
state and local laws relating to pollution or protection of the environment,
including laws or provisions relating to emissions, discharges, releases or
threatened releases of pollutants, contaminants, or hazardous or toxic
materials, substances, or wastes into air, surface water, groundwater, or land,
or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of pollutants,
contaminants or hazardous or toxic materials, substances, or wastes. Except as
set forth in the Company and Founder Disclosure Schedule, the Company is in
material compliance with all terms and conditions of the required permits,
licenses and authorizations. Except as set forth in the Company and Founder
Disclosure Schedule, neither the Founder of the Company is aware of, nor has
the Founder of Company received notice of, any conditions, circumstances,
activities, practices, incidents, or actions which may form the basis of any
claim, action, suit, proceeding, hearing, or investigation of, by, against or
relating to the Company or relating to the Assets or the Assigned Contracts,
based on or related to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling, or the emission,
discharge, release or threatened release into the environment, of any
pollutant, contaminant, or hazardous or toxic substance, material or waste.
2.11 PROPRIETARY RIGHTS.
(a) The Company owns all right, title and interest in and to,
or valid licenses for use of, all patents, copyrights, technology, software,
software tools, know-how, processes, trade secrets, trademarks, service marks,
trade names and other proprietary rights used in or necessary for the conduct
of the Company's business as conducted to the date hereof or contemplated or
the use and ownership of the Assets, free and clear of all liens, claims and
encumbrances (including, without limitation, distribution rights and the
Company has the right to transfer all such rights to Purchaser. The foregoing
representation as it relates to third party technology licensed by the Company
is limited to the Company's interest pursuant to the third party licenses
entered into by the Company, all of which are valid and enforceable and in full
force and effect and which grant the Company such rights to such third party
technology as are employed in or necessary to the business of the Company as
conducted or as previously proposed to be conducted. All of the Company's
trademark or trade name registrations are valid and in full force and effect;
and consummation of the transactions contemplated hereby will not alter or
impair any such rights. No claims have been asserted against the Company (and
the Company is not aware of any claims which are likely to be asserted against
the Company or which have been asserted against others) by any person
challenging the Company's use, possession, manufacture, sale or distribution of
Company Products under any patents, trademarks, trade names, copyrights, trade
secrets, software, technology, know-how or processes utilized by the
5
Company or challenging or questioning the validity or effectiveness of any
license or agreement relating thereto. To the Company's and Founder's
knowledge, the use or exploitation of any patents, trademarks, trade names,
copyrights, software, technology, know-how or processes by the Company in its
current business does not infringe on the rights of, constitute
misappropriation of, or in any way involve unfair competition with respect to,
any proprietary information or intangible property right of any third person or
entity, including without limitation any patent, trade secret, copyright,
trademark or trade name.
(b) To the Company's and Founder's knowledge, no employee of
the Company is in violation of any term of any employment contract, patent
disclosure agreement or any other contract or agreement relating to the
relationship of any such employee with the Company or, to the Company's and
Founder's knowledge, any other party because of the nature of the business
conducted by the Company or proposed to be conducted by the Company.
(c) Each person presently or previously employed by the Company
(including independent contractors, if any) with access to confidential
information has executed a confidentiality and non-disclosure agreement pursuant
to the form of agreement previously provided to Purchaser or its
representatives. Such confidentiality and non-disclosure agreements constitute
valid and binding obligations of the Company and such person, enforceable in
accordance with their respective terms. To the Company's knowledge, neither the
execution or delivery of such agreements, nor the carrying on of the Company's
business as employees by such persons, nor the conduct of the Company's business
as currently anticipated, will conflict with or result in a breach of the terms,
conditions or provisions of or constitute a default under any contract, covenant
or instrument under which any of such persons is obligated.
(d) The Company has not granted any third party any right to
manufacture, reproduce, distribute, market or exploit any Company Products or
any adaptations, translations, or derivative works based on the Company Products
or any portion thereof, including, without limitation, as a value added
reseller. No third party has any right to manufacture, reproduce, distribute,
market or exploit any works or materials of which any of the Company Products
are a "derivative work" as that term is defined in the United States Copyright
Act, Title 17, U.S.C. Section 101.
2.12 FINANCIAL STATEMENTS. The financial statements provided to
Purchaser are complete and in accordance with the books and records of the
Company, present fairly the financial position of the Company as of their dates
and have been prepared in conformance with GAAP applied on a consistent basis by
the Company with prior periods.
2.13 CONTRACTS.
(a) Except as set forth in the Company and Founder Disclosure
Schedule, the Company has (i) no agreements, contracts or commitments that
provide for the sale, licensing or distribution of the Company Products,
inventions, technology, know-how, trademarks or trade names except in the
ordinary course of its business, (ii) no agreements, contracts or commitments
that call for fixed and/or contingent payments or expenditures by or to the
Company and (iii) no agreements that grant to any third party (including,
without limitation, OEMs and site license customers) any rights to reproduce or
manufacture any
6
Company Products, or any exclusive rights of any kind with respect to any
Company Products or any right to market any Company Products under any "private
label" or "OEM" arrangements pursuant to which the Company is not identified as
the source of such goods. True and correct copies of each document or
instrument described in the Company and Founder Disclosure Schedule pursuant to
this Section 2.13 have been made available to Purchaser or its representatives.
(b) All Assigned Contracts are valid, binding, in full force
and effect, and enforceable by the Company in accordance with their respective
terms. The Company has not received any notice from any party to any such
Assigned Contract that such party intends to cancel, withdraw, modify or amend
such Assigned Contract.
(c) The Company is not in default under or in breach or
violation of, nor, to the Company's and Founder's knowledge, is there any valid
basis for any claim of default by the Company under, or breach or violation by
the Company of, any Assigned Contract, or other agreement or arrangement,
commitment or restriction to which the Company is a party or to which it or any
of the Assets are bound, where such defaults, breaches, or violations would, in
the aggregate, have a material adverse effect on the operations, assets,
financial condition or prospects of the Company. To the Company's and Founder's
knowledge, no other party is in default under or in breach or violation of, any
Assigned Contract or other material contract, commitment, or restriction to
which the Company is bound or by which any of its properties is bound, where
such defaults, breaches, or violations would, in the aggregate, have a material
adverse effect on the operations, assets, financial condition or prospects of
the Company.
(d) Except as set forth in the Company and Founder Disclosure
Schedule, all Assigned Contracts will be the property of Purchaser upon the
closing of the transactions contemplated by this Agreement, without further
action by Purchaser. If any of the Material Contracts will not be the property
of Purchaser upon the closing of the transactions contemplated by this
Agreement, then the Company has described in the Company and Founder Disclosure
Schedule such action as is necessary for assumption of the Assigned Contract by
Purchaser.
2.14 OPERATION PRIOR TO CLOSING. Prior to Closing, the Company has
used its best efforts to preserve for its business its relationships with
employees, suppliers, distributors, customers, consultants, independent
contractors, licensors, and others having business relations with it, shall
conduct its business only in the usual and ordinary course, and shall maintain
and operate all tangible Assets in good condition and repair and in accordance
with all applicable laws, rules, and regulations, as is reasonable in the
ordinary course of business.
2.15 NO BROKERS. Neither the Company nor, to the Company's and
Founder's knowledge, any of the Company's shareholders are obligated for the
payment of fees or expenses of any broker or finder in connection with the
origin, negotiation or execution of this Agreement or in connection with any
transactions contemplated hereby.
2.16 DISCLOSURE. No statements by the Company contained in this
Agreement or any Company Ancillary Document (when read together) contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein or therein not misleading in
light of the circumstances under which they were made.
7
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to the Company as set forth below.
Whenever the term "enforceable in accordance with its terms" or like expression
is used, it is understood that excepted therefrom are any limitations on
enforceability under applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting the enforcement of
creditor's rights.
3.1 ORGANIZATION. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
3.2 AUTHORIZATION. This Agreement and the documents and the
agreements referenced herein as Exhibits or documents to be signed at or prior
to the Closing that are to be executed and delivered by the Purchaser (the
"Purchaser Ancillary Documents") have been duly and validly executed and
delivered by Purchaser and constitute valid and binding agreements of Purchaser,
enforceable against Purchaser in accordance with their terms. Purchaser has all
requisite power and authority to execute and deliver this Agreement and the
Purchaser Ancillary Documents and to enable it to carry out the transactions
contemplated by this Agreement and the Purchaser Ancillary Documents.
3.3 EFFECT OF AGREEMENT; CONSENTS. The execution and delivery of this
Agreement and the Purchaser Ancillary Documents by Purchaser do not, and the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, conflict with, result in a breach of, constitute a
default (with or without notice or lapse of time, or both) under or violation
of, or result in the creation of any lien, charge or encumbrance pursuant to any
provision of the limited partnership agreement of Purchaser, any order, rule,
law or regulation of any court or governmental authority, foreign or domestic,
or any provision of any material agreement, instrument, understanding, order,
judgment or decree to which Purchaser is a party or by which Purchaser is bound.
No consent of any third party or any governmental authority is required to be
obtained on the part of Purchaser to permit the consummation of the transactions
contemplated by this Agreement or the Purchaser Ancillary Documents.
3.4 COMPLIANCE WITH OTHER INSTRUMENTS. Purchaser is not a party to,
or bound by, any written or oral contract, agreement, license, indenture,
mortgage, debenture, note or other instrument under the terms of which
performance by Purchaser according to the terms of this Agreement and the
Purchaser Ancillary Documents will be a default or an event of acceleration, or
whereby timely performance by Purchaser according to the terms of this Agreement
and the Purchaser Ancillary Documents may be prohibited, prevented or delayed.
3.5 DISCLOSURE. No representation, warranty or covenant of the
Purchaser contained in this Agreement or any Purchaser Ancillary Document (when
read together) contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained herein
or therein not misleading in light of the circumstances under which they were
made.
8
ARTICLE IV
COVENANTS
4.1 COOPERATION. The Company will take all reasonable actions
necessary to comply promptly with all legal requirements which may be imposed
with respect to the consummation of the transactions contemplated by this
Agreement and will promptly cooperate with and furnish information to Purchaser
in connection with any such requirements imposed upon Purchaser in connection
with the consummation of the transactions contemplated by this Agreement. The
Company will take all reasonable actions necessary to obtain (and will cooperate
with Purchaser in obtaining) any consent, approval, order or authorization of,
or any registration, declaration or filing with, any governmental entity,
domestic or foreign, or other person, required to be obtained or made by the
Company (or by Purchaser) in connection with the taking of any action
contemplated by this Agreement.
4.2 ACCESS TO INFORMATION. The Company shall make available to
Purchaser and Purchaser's agents and representatives all information concerning
the operation, business and prospects of the Company and related entities as may
be reasonably requested by Purchaser, including, without limitation, the
accounting and tax working papers of the Company's independent advisors.
ARTICLE V
CLOSING CONDITIONS
5.1 CONDITIONS TO THE COMPANY'S OBLIGATIONS. The Company's
obligations to close the transactions contemplated under this Agreement are
subject to the fulfillment or satisfaction on and as of the Closing, of each of
the following conditions (any one or more of which may be waived by the Company,
but only in a writing signed by the Company):
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Purchaser set forth in Article III shall be
true on and as of the Closing with the same force and effect as if they had been
made at the Closing, and the Company shall receive a certificate to such effect
from an officer of Purchaser.
(b) AUTHORIZATIONS. The Company shall have received from
Purchaser a certificate signed by an officer of Purchaser certifying that the
execution, delivery and performance of this Agreement has been duly and validly
approved and authorized by its Board of Directors.
(c) GOVERNMENT CONSENTS. There shall have been obtained at or
prior to the date of Closing such permits or authorizations, and there shall
have been taken such other action, as may be required by any regulatory
authority having jurisdiction over the parties and the subject matter and the
actions herein proposed to be taken.
(d) DATE OF CLOSING. The Closing shall occur on or before June
25, 1997 or such later date as the parties may mutually agree.
9
5.2 CONDITIONS TO PURCHASER'S OBLIGATIONS. The obligations of
Purchaser are subject to the fulfillment or satisfaction on, and as of the
Closing, of each of the following conditions (any one or more of which may be
waived by Purchaser, but only in a writing signed by Purchaser):
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Company and the Founder contained in
Article II shall be true on and as of the Closing with the same force and effect
as if they had been made at the Closing, and Purchaser shall receive a
certificate from the Company to such effect with respect to the representations
and warranties of the Company executed by Founder in his individual capacity and
as an officer of the Company.
(b) AUTHORIZATIONS. Purchaser shall have received from the
Company a certificate signed by the President and Chief Financial Officer
certifying that the execution, delivery and performance of this Agreement has
been duly and validly approved and authorized by its Board of Directors and by
its shareholders.
(c) GOVERNMENT CONSENTS. There shall have been obtained at or
prior to the date of Closing such permits or authorizations, and there shall
have been taken such other action, as may be required by any regulatory
authority having jurisdiction over the parties and the subject matter and the
actions herein proposed to be taken.
(d) REQUIRED THIRD PARTY CONSENTS. Purchaser shall have
received all written consents, assignments, waivers, authorizations or other
certificates reasonably deemed necessary by Purchaser's legal counsel to provide
for the continuation in full force and effect or assignment or termination of
the Assets or any and all contracts and leases of the Company.
(e) EMPLOYMENT, CONSULTING AND NON-COMPETITION AGREEMENTS.
Founder and Messrs. Xxxxx, Xxx and Xxx shall have executed and delivered
Employment and Non-Competition Agreements in the forms attached hereto as
EXHIBIT 5.2(e)(1), EXHIBIT 5.2(e)(2), EXHIBIT 5.2(e)(3) and EXHIBIT 5.2(e)(4),
respectively. Founder and Xx. Xxxxx shall have executed and delivered the
Promissory Notes in the form attached hereto as EXHIBIT 5.2(e)(5) and
EXHIBIT 5.2(e)(6), respectively.
(f) ESCROW AGREEMENT. The Company and the Escrow Agent shall
have signed the Escrow Agreement in the form attached hereto as EXHIBIT 1.4.
(g) AETHER LICENSE AGREEMENT. The Company and Aeros, LLC shall
have signed the Aether License Agreement in the form attached hereto as
EXHIBIT 5.2(g).
(h) BRIDGE REPURCHASE AGREEMENT. The Company and certain of
the Company's investors shall have signed the Bridge Repurchase Agreement in the
form attached hereto as EXHIBIT 5.2(h).
/s/ MBN /s/ JWS
10
(j) OPINION OF COUNSEL. Purchaser shall have received an
opinion, addressed to it and dated the Closing Date, of Jackson, Tufts, Xxxx &
Black, the Company's legal counsel in the form attached hereto as
EXHIBIT 5.2(j).
(k) ASSIGNMENTS OF LICENSES AND CONTRACTS. Except as agreed to
by Purchaser in writing, the Company shall have applied for and obtained in a
form reasonably satisfactory to Purchaser legal, valid, and binding assignments
to Purchaser of the Assigned Contracts and all consents and waivers in
connection therewith that Purchaser may reasonably consider to be necessary or
advisable.
ARTICLE VI
INDEMNIFICATION BY THE COMPANY
6.1 INDEMNIFICATION. The Company shall indemnify and save harmless
Purchaser, its shareholders, employees and agents from and against any and all
Losses (as defined below). "Losses" shall mean all losses, liabilities,
expenses (including, without limitation, fees and disbursements of counsel and
expenses of investigation), claims, liens or other obligations whatsoever that
Purchaser or any indemnified party is required to pay or that Purchaser
reasonably anticipates it will be required to pay, other than the Listed
Liabilities, by virtue of or resulting from (i) the breach of any
representation, warranty or covenant made by the Company in this Agreement or
otherwise made in writing and delivered by the Company to Purchaser in
connection with the transactions contemplated hereby and (ii) any failure of the
Company to perform or comply with any of its covenants and agreements set forth
herein or in any other document executed in connection with the transactions
contemplated hereby or (iii) for events that occur more than 90 days after the
Effective Date.
6.2 CONDITIONS PRECEDENT. The following are conditions precedent to
any liability of the Company under paragraph 6.1:
(a) Purchaser shall give the Company written notice of any
event or assertion of which it has knowledge concerning any Losses and as to
which it may request indemnification.
(b) Purchaser shall cooperate with the Company in defending or
settling the Losses.
(c) Purchaser shall permit the Company to control the defense
or settlement of the Losses including selection of counsel to represent
Purchaser and the Company. Purchaser may also maintain separate counsel at its
own cost and expense in connection with any Loss.
(d) In no event shall Purchaser settle a Loss without the prior
written approval of the Company, which approval shall not be unreasonably
withheld.
6.3 The indemnification obligations of the Company under this Article
VI shall continue in full force and effect as to any Loss as to which notice has
been given pursuant to subsection 6.2(a) above until such Loss has been settled
either by mutual agreement of the parties concerned, by arbitration in
accordance with the provisions of this Agreement or, in the event of a Loss
resulting from legal action by a third party, by the final order, decree or
11
judgment of a court of competent jurisdiction in the United States of America
(the time for appeal having expired with no appeal having been taken). The
right of Purchaser to be indemnified under this Section 6 shall not limit,
reduce or otherwise affect any other rights and remedies it may have with
respect to the matters indemnified under this Agreement.
6.4 RESOLUTION OF DISPUTES. Purchaser and the Company agree that any
of the parties may elect to postpone the arbitration of all Contested Claims
until one year from the Effective Date in order to consolidate the arbitration
of all Contested Claims.
ARTICLE VII
GENERAL
7.1 EXPENSES. Except as described in SCHEDULE 1.4 hereto, the parties
will each pay their own legal, accounting and other professional expenses in
connection with the transactions contemplated hereby.
7.2 BROKERS. Each party represents and warrants to the other that no
person has acted as a broker, a finder or in any similar capacity in connection
with the transactions contemplated hereby. Each party shall indemnify the other
against, and agrees to hold the other harmless from, all liabilities and
expenses (including reasonable attorneys' fees and expenses) in connection with
any claim by anyone for compensation as a broker, a finder or in any similar
capacity following the Effective Date, by reason of services allegedly rendered
to the indemnifying party in connection with the transactions contemplated
hereby.
7.3 ENTIRE AGREEMENT. This document and the documents, exhibits and
schedules contemplated hereby contain the entire agreement among the parties
with respect to the matters contemplated hereby and all prior negotiations,
understandings and agreements among them.
7.4 INFORMATION. Any information disclosed by a party in this
Agreement (including Exhibits and Schedules thereto) will be treated as having
been disclosed in connection with each representation and warranty made by that
party in this Agreement.
7.5 ASSIGNMENT. Neither this Agreement nor any right of any party
under it may be assigned without the prior written consent of the other party,
which consent shall not be unreasonably withheld; provided, however, that
Purchaser may assign its rights under this Agreement following the Effective
Date to any party that acquires Purchaser through a merger or consolidation, or
a purchase of substantially all of Purchaser's assets.
7.6 NOTICES. Any notice or other communication required or permitted
to be given under this Agreement shall be in writing and will be deemed
effective when delivered in person, when sent by confirmed facsimile, if
promptly confirmed in writing, on the third day after the day on which mailed by
first class mail from within the United States of America, or the day following
delivery to a national overnight courier service to the following addresses or
to such other address as either party may specify in writing to the other party
in accordance with the provisions of this subsection 7.6:
12
If to Purchaser: Puma Technology, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn.: Chief Executive Officer
With a copy to: Xxxx Xxxx Xxxx & Freidenrich, A Professional
Corporation
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attn.: Xxxx X. Xxxx, Esq.
If to the Company: Real World Solutions, Inc.
000 Xxxx Xxxxx, #000
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
With a copy to: Jackson, Tufts, Xxxx & Black
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
7.7 GOVERNING LAW. This Agreement will be governed by, and construed
under, the laws of the State of California. The parties hereto agree to submit
to the personal, but not exclusive, jurisdiction of the state and federal courts
in California with respect to the enforcement or interpretation of this
Agreement or the parties' obligations hereunder.
7.8 AMENDMENT. This Agreement may be amended only by a document in
writing signed by Purchaser, the Company and the Founder.
7.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same agreement.
7.10 PUBLIC DISCLOSURE. No party shall disclose the terms of this
Agreement or any related or auxiliary agreement, document, exhibit or schedule
without the written consent of Purchaser and the Company, except (i) disclosure
to such party's shareholders (provided the Company uses its best efforts to
obtain the agreement of such shareholders to the provisions of this
Section 7.10), (ii) disclosure required by law, (iii) disclosure pursuant to the
disclosure obligations of Purchaser (or an affiliate of Purchaser) under the
rules and regulations of the Securities and Exchange Commission or
(iv) disclosure after obtaining the written consent of the Company and
Purchaser.
7.11 FURTHER ASSURANCES. Each party agrees to execute such further
instruments and documents and to do such further acts as may be reasonably
requested by any other party to carry out the transactions contemplated hereby.
13
7.12 NO RIGHTS CONFERRED UPON THIRD PARTIES. No provisions of this
Agreement are intended or shall be interpreted to provide or create any rights
of any kind in any third party unless specifically provided otherwise herein,
and, except as so provided, all provisions hereof shall be personal solely to
the parties to this Agreement.
7.13 ATTORNEYS' FEES. In any litigation relating to this Agreement,
including litigation with respect to any instrument, document or agreement made
under or in connection with this Agreement, the prevailing party shall be
entitled to recover its costs and reasonable attorneys' fees and expenses.
7.14 HEADINGS. Captions and headings used herein are for convenience
only and are not a part of this Agreement and shall not be used in construing
it.
[Remainder of page intentionally left blank]
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date shown on the first page.
PUMA TECHNOLOGY, INC.
By: /s/ M. Xxxxx Xxxxx
--------------------------------
Name: M. Xxxxx Xxxxx
-------------------------
Title: Chief Financial Officer
-------------------------
REAL WORLD SOLUTIONS, INC.
By: /s/ Xxxx Xxxxxxx
--------------------------------
Xxxx Xxxxxxx, President
/s/ Xxxx Xxxxxxx
--------------------------------
Xxxx Xxxxxxx
15
INDEX OF SCHEDULES AND EXHIBITS
Schedule/Exhibit Document
---------------- --------
Schedule 1.1 Assets
Exhibit 1.2A Xxxx of Sale
Exhibit 1.2B Trademark Assignment
Exhibit 1.3 Escrow Agreement
Schedule 1.4 Listed Liabilities
Exhibit 2 Company and Founder Disclosure
Schedule
Exhibit 3 Purchaser Disclosure Schedule
Schedule 2.4 Encumbrances
Exhibit 5.2(e)(1) Xxxxxxx Employment and Non-Competition
Agreement
Exhibit 5.2(e)(2) Halim Employment and Non-Competition
Agreement
Exhibit 5.2(e)(3) Xxx Employment and Non-Competition
Agreement
Exhibit 5.2(e)(4) Xxx Employment and Non-Competition
Agreement
Exhibit 5.2(e)(5) Xxxxxxx Promissory Note
Exhibit 5.2(e)(6) Halim Promissory Note
Exhibit 5.2(g) Aether License Agreement
Exhibit 5.2(h) Bridge Repurchase Agreement
Exhibit 5.2(i) Office Lease Termination Agreement
Exhibit 5.2(j) Opinion of Counsel
