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EXHIBIT 10.35
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "AGREEMENT") is entered into as of
this 29th day of June, 1999, by and among: SVEN TECHNOLOGIES, INC., a California
corporation ("SELLER"), and SPATIAL TECHNOLOGY, INC., a Delaware corporation
("PURCHASER"). Certain capitalized terms used in this Agreement are defined on
Exhibit A.
SECTION 1. SALE OF ASSETS; RELATED TRANSACTIONS
1.1 SALE OF ASSETS. Contemporaneously with the execution and delivery
of this Agreement, Seller shall cause to be sold, assigned, transferred,
conveyed and delivered to Purchaser, and Seller hereby sells, assigns,
transfers, conveys and delivers to Purchaser, good, valid and marketable title
to the Purchased Assets (as defined below), free and clear of all Encumbrances,
on the terms set forth in this Agreement. As used in this Agreement, "PURCHASED
ASSETS" shall mean: (a) the equipment and furniture set forth on Exhibit B
hereto; (b) Seller's rights under all supply agreements, customer agreements,
leases and other contracts to which it is a party; and (c) all trademarks, trade
names, software, know-how, intellectual property rights and proprietary assets
owned by Seller.
1.2 PURCHASE PRICE. As consideration for the Purchased Assets,
Purchaser will pay to Seller, in cash, the sum of $500,000 (the "CASH
CONSIDERATION"), payable in two equal installments of $250,000 on or before each
of July 31, 1999 and October 31, 1999. As additional consideration, the Seller
shall issue to Purchaser at Closing (as hereinafter defined) 96,931 shares of
restricted Common Stock of Purchaser (the "INITIAL SHARES").
1.3 EARN-OUT. The Purchaser shall place into escrow with the Secretary
of Purchaser (the "ESCROW AGENT"), 96,930 additional shares of restricted Common
Stock of Purchaser (the "EARN-OUT SHARES") and a warrant to purchase 250,000
shares of restricted Common Stock of Purchaser, in the form attached as Exhibit
C (the "SPATIAL WARRANT"). Such Earn-out Shares and Spatial Warrant shall be
released as follows:
(a) The Escrow Agent shall release 48,465 of the Earn-out Shares
if, and only if, Purchaser is permitted under GAAP to recognize revenue of
$125,000 from sales of licenses of the Sven Game Developer Toolkit to game
developers or middleware suppliers during the period from the Closing Date to
December 31, 1999; the established list prices for such products shall be
mutually agreed upon by the Founders (as defined below) and the Purchaser;
(b) The Escrow Agent shall release 48,465 of the Earn-out Shares
if, and only if, Purchaser is permitted under GAAP to recognize revenue of
$250,000 from sales of licenses of the Sven MRG/CSR technology embodied in an
ACIS component library during the period from the Closing Date to December 31,
1999 ((a) and (b) are referred to as the "MILESTONES"); the established list
prices for such products shall be mutually agreed upon by the Founders and the
Purchaser; and
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(c) The Escrow Agent shall release the Spatial Warrant if, and only
if, the Milestones set forth in Sections 1.4(a) and 1.4(b) above are fully
satisfied.
Notwithstanding the foregoing, in the event that the employment of
either Xx. Xxxx Xxxx or Xx. Xxxxx Xxxx (collectively, the "FOUNDERS") is
terminated by Purchaser without Cause, or if either of the Founders terminates
his employment with Purchaser for Good Reason, prior to December 31, 1999, the
Earn-out Shares and Spatial Warrant will immediately be released to Seller.
After December 31, 1999, any Earn-out Shares and Spatial Warrant that the Seller
has not earned shall be cancelled and Seller shall not thereafter be entitled to
receive any further consideration in connection with the Transactions.
Any disputes regarding the interpretation and operation of the terms of
this Section will be negotiated in good faith by the Purchaser and the Founders.
1.4 CLOSING. The closing of the Transactions (the "CLOSING") shall take
place at the offices of Xxxxxx Godward llp, 0000 Xxxxxx Xxxxxxxxx., Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000 on June 29, 1999, or at such other place or time as the
parties may agree. The date on which the Closing takes place shall be referred
to as the "CLOSING DATE."
1.5 INSTRUMENTS OF ASSIGNMENT. The sale, assignment, conveyance and
transfer of the Purchased Assets to Purchaser shall be effected by Seller's
execution and delivery of all such bills of sale, deeds, endorsements,
assignments and other good and sufficient instruments of transfer and conveyance
as shall be necessary to vest in Purchaser all right, title and interest of
Seller in and to the Purchased Assets, free and clear of all Encumbrances.
1.6 ASSUMPTION OF LIABILITIES. The parties agree that Purchaser shall
be obligated to assume and to pay, perform and otherwise discharge only the
assumed liabilities set forth on Exhibit D (the "ASSUMED LIABILITIES") and that
no other liabilities of Seller, including those that may arise in the future
(including those related to employee matters), are assumed by Purchaser
hereunder. Purchaser is not assuming and shall not take any Purchased Assets
subject to, and Seller shall retain and be solely responsible and liable for,
any and all Encumbrances, claims, damages, demands, obligations, debts and
liabilities of Seller or any other person of any nature whatsoever, whenever
arising, whether absolute, accrued or contingent, and whether known or unknown,
except that Purchaser shall assume and agree to perform and discharge only those
liabilities and obligations of Seller set forth on Exhibit D.
1.7 EXECUTORY CONTRACTS. Seller shall assign the Seller Contracts
identified on Exhibit E to Purchaser. Purchaser shall assume no liability under
any Seller Contract not identified on Exhibit E. Seller shall deliver all
necessary consents to permit the assumption and assignment by Seller to
Purchaser of each Seller Contract identified on Exhibit E.
1.8 SALES TAXES. Seller shall bear and pay all sales taxes, use taxes,
transfer taxes, documentary charges, recording fees or similar taxes, charges,
fees or expenses that may become payable to the State of California in
connection with the purchase of the Purchased Assets from Seller or in
connection with any of the Transactions. Purchaser shall bear and pay all
Colorado sales taxes, use taxes, transfer taxes, documentary charges, recording
fees or similar taxes,
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charges, fees or expenses that may become payable to the State of Colorado in
connection with the purchase of the Purchased Assets from Seller or in
connection with any of the Transactions.
1.9 ALLOCATION. The consideration referred to in Sections 1.2 and 1.3
is to be allocated among the Purchased Assets in the manner to be described by
Seller within 45 days of closing. The allocation as described shall be
conclusive and binding upon Seller for all purposes, and none of such parties
shall file any Tax Return or other document with, or make any statement or
declaration to, any Governmental Body that is inconsistent with such allocation.
1.10 OTHER AGREEMENT AND TRANSACTION. Contemporaneously with the
execution and delivery of this Agreement, each of the Founders shall enter into
an employment agreement, of even date herewith, substantially in the form
attached as Exhibit F (the "EMPLOYMENT AGREEMENTS").
1.11 HOLDBACK. Ten percent (10%) of all consideration payable pursuant
to Section 1.2 (the "ESCROW FUND") shall be held back for a period of one (1)
year following the Closing Date to satisfy any of Seller's indemnification
obligations hereunder.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants, to and for the benefit of, the
Indemnitees, as follows:
2.1 DUE ORGANIZATION. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of California. Seller
is not required to be qualified, authorized, registered or licensed to do
business as a foreign corporation in any jurisdiction.
2.2 CAPITALIZATION. The authorized capital stock of Seller consists of
(a) ten million (10,000,000) shares of Common Stock, of which two million two
hundred twenty two thousand two hundred twenty two (2,222,222) shares have been
issued and are outstanding, and (b) five million (5,000,000) shares of Preferred
Stock, of which one hundred sixty six thousand eight hundred ninety (166,890)
shares have been designated Series A Preferred Stock, all of which are issued
and outstanding, and of which six hundred thousand (600,000) shares have been
designated Series B Preferred Stock, three hundred thirty four thousand two
hundred eleven (334,211) shares of which are issued and outstanding. All of the
issued and outstanding shares of Common Stock and Preferred Stock (a) have been
duly authorized and validly issued, are fully paid and nonassessable and have
been issued in full compliance with all applicable securities laws and other
applicable Legal Requirements. Other than as set forth above, there are no: (a)
outstanding options, warrants or other rights to acquire any shares of the
capital stock or other securities of Seller; (b) outstanding securities,
instruments or obligations that are or may become convertible into or
exchangeable for any shares of the capital stock or other securities of Seller;
or (c) Contracts under which Seller is or may become obligated to sell or
otherwise issue any shares of its capital stock or any other securities.
2.3 FINANCIAL STATEMENTS. Seller has delivered to Purchaser the
following financial statements and notes (collectively, the "FINANCIAL
STATEMENTS"): (a) the unaudited balance sheet of Seller as of December 31, 1998
and the related unaudited statements of income and statement
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of stockholders' equity and cash flows for the year then ended, together with
the notes thereto, and (b) the unaudited balance sheet of Seller as of May 31,
1999 (the "STATEMENT DATE") and the related unaudited statement of income and
statement of stockholders' equity and cash flows for the five (5) months then
ended. The Financial Statements are accurate and complete in all material
respects and present fairly the financial position of Seller as of the dates
thereof and the results of operations and cash flows of Seller for the periods
covered thereby.
2.4 ABSENCE OF CHANGES. Except as set forth in Part 2.4 of the
Disclosure Schedule, since the Statement Date: (a) there has not been any
material adverse change in, and no event has occurred that might have a material
adverse effect on, the business, condition, assets, liabilities, operations,
financial performance, net income or prospects of Seller; (b) there has not been
any loss, damage or destruction to, or any interruption in the use of, any of
the assets of Seller; (c) Seller has not made any capital expenditure, purchased
or otherwise acquired, sold or otherwise transferred, or leased or licensed, any
asset to any other Person; (d) Seller has not entered into any transaction or
taken any other action outside the Ordinary Course of Business; and (e) Seller
has not agreed, committed or offered (in writing or otherwise) to take any of
the actions referred to in clauses "(c)" and "(d)" above.
2.5 TITLE TO ASSETS. Seller owns, and has good, valid and marketable
title to, all of the Purchased Assets. Except as set forth in Part 2.5 of the
Disclosure Schedule, all of said assets are owned by Seller free and clear of
any Encumbrances. The Purchased Assets collectively constitute all of the
properties, rights, interests and other tangible and intangible assets necessary
to enable Seller to conduct its business in the manner in which such business is
currently being conducted.
2.6 PROPRIETARY ASSETS. Except as set forth in Part 2.6 of the
Disclosure Schedule, there is no Proprietary Asset that is owned by or licensed
to Seller. The Proprietary Assets identified in Part 2.6 of the Disclosure
Schedule constitute all of the Proprietary Assets necessary to enable Seller to
conduct its business in the manner in which such business is currently being
conducted and in the manner in which such business is proposed to be conducted.
To Seller's knowledge, Seller is not infringing or making any unlawful use of,
and Seller has not at any time infringed or made any unlawful use of, any
actual, alleged, possible or potential infringement or unlawful use of, any
Proprietary Asset owned or used by any other Person. Seller has not received any
notice or other communication (in writing or otherwise) of any actual, alleged,
possible or potential infringement or unlawful use of, any Proprietary Asset
owned or used by any other Person.
2.7 CONTRACTS. Part 2.7 of the Disclosure Schedule identifies each
Seller Contract, each of which is valid and in full force and effect. To
Seller's knowledge, no Person has violated or Breached, or declared or committed
any default under, any Seller Contract, and Seller has not received any notice
or other communication regarding any actual, alleged, possible or potential
violation or Breach of, default under, or proposed termination of, any Seller
Contract. The Contracts identified in Part 2.7 of the Disclosure Schedule
collectively constitute all of the Contracts necessary to enable Seller to
conduct its business in the manner in which such business is currently being
conducted and in the manner in which such business is proposed to be conducted.
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2.8 LIABILITIES. Seller has no Liabilities except those specified in
Part 2.8 of the Disclosure Schedule and obligations under the Seller Contracts
listed in Part 2.7 of the Disclosure Schedule.
2.9 COMPLIANCE WITH LEGAL REQUIREMENTS. Seller is, and has at all
times been, in full compliance with each Legal Requirement that is applicable to
it or to the conduct of its business or the ownership or use of any of its
assets. No event has occurred, and no condition or circumstance exists, that
might (with or without notice or lapse of time) constitute or result directly or
indirectly in a violation by Seller of, or a failure on the part of Seller to
comply with, any Legal Requirement, and Seller has not received, at any time,
any notice or other communication (in writing or otherwise) from any
Governmental Body or any other Person regarding any actual, alleged, possible or
potential violation of, or failure to comply with, any Legal Requirement.
2.10 TAX MATTERS. Each Tax required to have been paid, or claimed by
any Governmental Body to be payable, by Seller has been duly paid in full on a
timely basis. Any Tax required to have been withheld or collected by Seller has
been duly withheld and collected; and (to the extent required) each such Tax has
been paid to the appropriate Governmental Body. Except as set forth in Part 2.10
of the Disclosure Schedule, no claim or other Proceeding is pending or has been
threatened against or with respect to Seller in respect of any Tax.
2.11 EMPLOYEE MATTERS. Part 2.11 of the Disclosure Schedule lists the
name, title and annual compensation of each current employee of Seller
(including wages, salary, commissions, fringe benefits, bonuses and other
payments or benefits of any type).
2.12 RELATED PARTY TRANSACTIONS. Except as set forth in Part 2.12 of
the Disclosure Schedule: (a) no Related Party has any direct or indirect
interest of any nature in any of the assets of Seller or in any of the Purchased
Assets; and (b) no Related Party has entered into, or has had any financial
interest in, any of the Contracts being assigned hereunder.
2.13 PROCEEDINGS; ORDERS. There is no pending Proceeding and no Person
has threatened to commence any Proceeding that involves Seller or that otherwise
relates to or might affect the business of Seller or any of the Purchased Assets
(whether or not Seller is named as a party thereto) following the Closing, and
no event has occurred that could reasonably be expected to give rise to or serve
as a basis for the commencement of any such Proceeding. There is no order to
which Seller, or any of the assets owned or used by Seller, is subject; and no
Related Party is subject to any order that relates to Seller's business or to
any of the assets of Seller. There is no proposed order that, if issued or
otherwise put into effect, may have an adverse effect on the business,
condition, assets, liabilities, operations, financial performance, net income or
prospects of Seller or on the ability of Seller to effect the Transactions.
2.14 AUTHORITY; BINDING NATURE OF AGREEMENTS. Seller has the absolute
and unrestricted right, power and authority to enter into and to perform its
obligations under the Transactional Agreements; and the execution, delivery and
performance by Seller of the Transactional Agreements has been duly authorized
by all necessary action on the part of Seller and its stockholder, board of
directors and officers. The Transactional Agreements constitute the legal, valid
and binding obligations of Seller, enforceable against Seller in accordance with
their terms.
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2.15 NON-CONTRAVENTION; CONSENTS. Neither the execution and delivery of
any of the Transactional Agreements, nor the consummation or performance of any
of the Transactions, will directly or indirectly (with or without notice or
lapse of time): (a) give any Governmental Body the right to revoke, withdraw,
suspend, cancel, terminate or modify, any Governmental Authorization that is to
be included in the Purchased Assets; (b) give any Person the right to (i)
declare a default or exercise any remedy under any Contract being assigned
hereunder, (ii) accelerate the maturity or performance of any Contract being
assigned hereunder, or (iii) cancel, terminate or modify any Contract being
assigned hereunder; or (c) result in the imposition or creation of any
Encumbrance upon any of the Purchased Assets. Except as set forth in Part 2.15
of the Disclosure Schedule, Seller is not nor will it be required to make any
filing with or give any notice to, or to obtain any Consent from, any Person in
connection with the execution and delivery of any of the Transactional
Agreements or the consummation or performance of any of the Transactions.
2.16 BROKERS. Seller has not agreed or become obligated to pay, or has
taken any action that might result in any Person claiming to be entitled to
receive, any brokerage commission, finder's fee or similar commission or fee in
connection with any of the Transactions.
2.17 SELLER. Seller has never (i) made a general assignment for the
benefit of creditors, (ii) filed, or had filed against Seller, any bankruptcy
petition or similar filing, (iii) suffered the attachment or other judicial
seizure of Seller's assets, or (iv) taken or been the subject of any action that
may have an adverse effect on Seller's ability to comply with or perform any
obligations under any of the Transactional Agreements. Seller is not subject to
any order and is not bound by any Contract that may have an adverse effect on
Seller's ability to comply with any of the Transactional Agreements, and there
is no Proceeding pending, and no Person has threatened to commence any
Proceeding, that may have such effect. No event has occurred, and no claim,
dispute or other condition or circumstance exists, that might directly or
indirectly give rise to or serve as a basis for the commencement of any such
Proceeding.
2.18 NON-TRANSFERABILITY OF RIGHTS. Seller recognizes and understands
that, except for distributions to Seller's shareholders, the rights of Seller to
receive the payments contemplated by Section 1.3 may not be assigned or
otherwise transferred.
2.19 FULL DISCLOSURE. None of the Transactional Agreements contains or
will contain any untrue statement of fact; and none of the Transactional
Agreements omits to state any fact necessary to make any of the representations,
warranties or other statements or information contained therein not misleading.
There is no fact known by Seller (other than publicly known facts relating
exclusively to political or economic matters of general applicability) that may
have an adverse effect on Seller or may have the effect of interfering with any
of the Transactions. All of the information regarding Seller and its business,
condition, assets, liabilities, operations, financial performance, net income
and prospects that has been furnished to Purchaser by or on behalf of Seller,
when considered as a whole, is accurate and complete in all material respects.
2.20 SECURITIES LAWS MATTERS. Seller understands that neither the
Initial Shares nor the Earn-out Shares nor the Spatial Warrant, including the
Common Stock of Purchaser underlying such
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Spatial Warrant (collectively, the "Securities"), have been registered under the
Securities Act of 1933 (the "SECURITIES ACT") and that the Securities are being
offered and sold pursuant to an exemption from registration contained in the
Securities Act, based in part upon the Sellers representations contained in this
Agreement. Seller represents and warrants as follows:
(a) Requisite Power and Authority. Seller, acting upon advice of
its professional advisors, shareholders and board of directors, has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Purchaser so that it is capable of
evaluating the merits and risks of this investment in the Purchaser and has the
capacity to protect its, and its shareholders, interests in the Transactions.
Seller represents that by reason of its business or financial experience, it has
the capacity to protect its own interests in connection with the Transactions.
Further, Seller is aware of no publication of any advertisement in connection
with the Transactions. Seller must bear the economic risk of this investment
until the Securities are registered pursuant to the Securities Act. Seller has
been advised or is aware of the provisions of Rule 144 promulgated under the
Securities Act, which permits limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions.
(b) Purchaser Information. Seller has received and read Purchaser's
Annual Report on Form 10-KSB for the year ended December 31, 1998 and has had an
opportunity to discuss Purchaser's business, management and financial affairs,
both as currently conducted and as proposed to be conducted following the
Transaction, with directors, officers and management of Purchaser and has had
the opportunity to review Purchaser's operations and facilities. Seller has also
had the opportunity to ask questions of, and receive answers from, Purchaser and
its management regarding the terms and conditions of this investment.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants, to and for the benefit of Seller, as
follows:
3.1 AUTHORITY; BINDING NATURE OF AGREEMENTS. Purchaser has the absolute
and unrestricted right, power and authority to enter into and perform its
obligations under the Transactional Agreements, and the execution and delivery
of the Transactional Agreements by Purchaser have been duly authorized by all
necessary action on the part of Purchaser and its board of directors. The
Transactional Agreements constitute the legal, valid and binding obligations of
Purchaser, enforceable against it in accordance with their terms.
3.2 BROKERS. Purchaser has not agreed or become obligated to pay, or
has taken any action that might result in any Person claiming to be entitled to
receive, any brokerage commission, finder's fee or similar commission or fee in
connection with any of the Transactions.
3.3 DUE ORGANIZATION. Purchaser is a corporation duly organized,
existing and in good standing under the laws of the State of Delaware and has
all necessary power and authority under applicable corporate law and its
organizational documents to own or lease its properties and to carry on its
business as presently conducted.
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3.4 SEC FILINGS; FINANCIAL STATEMENTS.
(a)As of the time it was filed with the Securities and Exchange
Commission (the "SEC") (or, if amended or superseded by a filing prior to the
date of this Agreement, then on the date of such filing): (i) each report,
registration statement (on a form other than Form S-8) and definitive proxy
statement filed by Purchaser with the SEC between October 17, 1996 and the date
of this Agreement (the "PURCHASER SEC DOCUMENTS") complied in all material
respects with the applicable requirements of the Securities Act or the
Securities Exchange Act of 1934 (as the case may be); and (ii) none of the
Purchaser SEC Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(b) The consolidated financial statements contained in the
Purchaser SEC Documents: (i) complied as to form in all material respects with
the published rules and regulations of the SEC applicable thereto; (ii) were
prepared in accordance with GAAP applied on a consistent basis throughout the
periods covered, except as may be indicated in the notes to such financial
statements and (in the case of unaudited statements) as permitted by Form 10-QSB
of the SEC, and except that unaudited financial statements may not contain
footnotes and are subject to normal and recurring year-end audit adjustments
(which will not, individually or in the aggregate, be material in magnitude);
and (iii) fairly present the consolidated financial position of Purchaser and
its subsidiaries as of the respective dates thereof and the consolidated results
of operations of Purchaser and its subsidiaries for the periods covered thereby.
(c) Since March 31, 1999, there has not been any change in the
assets, liabilities, financial condition or operations of the Purchaser which
has had or is expected to have a material adverse effect on such assets,
liabilities, financial condition, operations or prospects of the Purchaser such
that such change would be required to be stated in a Purchaser SEC Document, or
would be necessary in order to make the statements in a Purchaser SEC Document,
in light of the circumstances under which they were made, not misleading.
SECTION 4. COVENANTS
4.1 OPERATIONS FOLLOWING CLOSING. Seller agrees that, (a) Seller shall
not transact any business following the Closing Date except as necessary to wind
up its affairs and to be liquidated and dissolved, (b) Seller shall not issue
any securities on or after the Closing Date, and (c) Seller shall not transfer,
encumber or dispose of any stock or other securities of Seller at any time after
the Closing Date other than as expressly set forth herein. Prior to the
liquidation and dissolution of Seller, Seller shall pay and fully discharge all
of its Liabilities (other than the Assumed Liabilities), including (i) all
Liabilities to its current and former employees, (ii) all accounts payable and
all short-term and long-term indebtedness relating to its business and (iii) all
Taxes.
4.2 TAX RETURNS. At least ten (10) days prior to the filing with any
Governmental Body (by either Seller) of any Tax Return relating to or reflecting
any of the Transactions, Seller shall cause a copy of such Tax Return (in the
form proposed to be filed) to be delivered to Purchaser for its review. Seller
shall ensure that each such Tax Return is accurate and complete and is filed
on a timely basis with the appropriate Governmental Body.
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4.3 FURTHER ACTIONS. From and after the Closing Date, Seller shall
cooperate with Purchaser and Purchaser's affiliates and representatives, and
shall execute and deliver such documents and take such other actions as
Purchaser may reasonably request for the purpose of evidencing the Transactions
and putting Purchaser in possession and control of all of the Purchased Assets.
Without limiting the generality of the foregoing, from and after the Closing
Date, Seller shall promptly remit to Purchaser any funds that are received by
Seller under the Contracts being assigned hereunder. Seller hereby irrevocably
authorizes Purchaser to endorse in the name of Seller any check that is made
payable to Seller and that represents the payment of any amount due under any
such assigned Contract. Seller hereby irrevocably nominates, constitutes and
appoints Purchaser as the true and lawful attorney-in-fact of Seller (with full
power of substitution) and authorizes Purchaser, in the name of and on behalf of
Seller, to execute, deliver, acknowledge, certify, file and record any document,
to institute and prosecute any Proceeding and to take any other action that
Purchaser may deem appropriate for the purpose of (a) collecting, asserting,
enforcing or perfecting any claim, right or interest of any kind that is
included in or relates to any of the Purchased Assets, (b) defending or
compromising any claim or Proceeding relating to any of the Purchased Assets or
(c) otherwise carrying out or facilitating any of the Transactions. The power of
attorney referred to in the preceding sentence is coupled with an interest and
shall be irrevocable, and shall survive the liquidation and dissolution of
Seller.
4.4 PUBLICITY. Except for such disclosures as may be required to
Seller's employees and shareholders and their respective advisors, Seller shall
keep strictly confidential, and Seller shall not use or disclose to any other
Person, any non-public document or other information that relates directly or
indirectly to the business of Seller, Purchaser or any affiliate of Purchaser.
4.5 RESTRICTIONS ON TRANSFER. Seller agrees not to make any transfer or
disposition of all or any portion of the Securities unless and until: (a) there
is then in effect a registration statement under the Securities Act covering
such proposed disposition and such disposition is made in accordance with such
registration statement; or (b) (A) the transferee has provided a written
representation reasonably satisfactory to Seller that such transferee is an
accredited investor, as such term is defined in Rule 501 promulgated under the
Securities Act, and agrees to be bound by the terms of this Agreement, (B) the
Seller shall have notified Purchaser of the proposed disposition and shall have
furnished Purchaser with a reasonably detailed statement of the circumstances
surrounding the proposed disposition and (C) Seller shall have furnished
Purchaser with an opinion of counsel, reasonably satisfactory to Purchaser, that
such disposition will not require registration of such shares under the
Securities Act; provided, that, routine sales under Rule 144 promulgated under
the Securities Act shall not require the delivery of such an opinion by Seller;
Purchaser shall, as soon as reasonably practicable following receipt of notice
of such sale, instruct its transfer agent to effect such transactions. Each
certificate or warrant representing Securities shall (unless otherwise permitted
by the provisions of the Agreement) be stamped or otherwise imprinted with a
legend substantially similar to the following:
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"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER
SUCH ACT, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL OR
OTHER EVIDENCE SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED."
SECTION 5. INDEMNIFICATION, ETC.
5.1 SURVIVAL OF REPRESENTATIONS AND COVENANTS.
(a) The representations, warranties, covenants and obligations of
Seller shall survive: (i) the execution and delivery of this Agreement and the
sale of the Purchased Assets to Purchaser and (ii) any subsequent sale or other
disposition of any or all of the Purchased Assets by Purchaser. All of said
representations, warranties, covenants and obligations shall remain in full
force and effect and shall survive until June 29, 2000; provided, however, that
if a Claim Notice (as defined below) relating to any representation or warranty
is given to Seller on or prior to June 29, 2000, then, notwithstanding anything
to the contrary contained in this Section 5.1(a), such representation or
warranty shall not so expire, but rather shall remain in full force and effect
until such time as each and every claim (including any identification claim
asserted by any Indemnitee under Section 5.2) that is based directly or
indirectly upon, or that relates directly or indirectly to, the same general
facts and circumstances of such Breach or alleged Breach of such representation
or warranty has been fully and finally resolved, either by means of a written
settlement agreement executed on behalf of Seller and Purchaser or by means of a
final, non-appealable judgement issued by a court of competent jurisdiction.
(b) The representations, warranties, covenants and obligations of
Seller, and the rights and remedies that may be exercised by the Indemnitees,
shall not be limited or otherwise affected by or as a result of any information
furnished to, or any investigation made by or knowledge of, any of the
Indemnitees or any of their Representatives.
(c) For purposes of this Agreement, a "CLAIM NOTICE" relating to a
particular representation or warranty shall be deemed to have been given if any
Indemnitee, acting in good faith, delivers to Seller a written notice stating
that such Indemnitee believes that there is or has been a possible Breach of
such representation or warranty and containing (i) a brief description of the
circumstances supporting such Indemnitee's belief that there is or has been such
a possible Breach and (ii) a non-binding, preliminary estimate of the aggregate
dollar amount of the actual and potential Damages that have arisen and may arise
as a direct or indirect result of such possible Breach.
(d) For purposes of this Agreement, each statement or other item of
information set forth in the Disclosure Schedule shall be deemed to be a
representation and warranty made by Seller in this Agreement.
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5.2 INDEMNIFICATION BY SELLER.
(a) Seller shall hold harmless and indemnify each of the
Indemnitees from and against, and shall compensate and reimburse each of the
Indemnitees for, any Damages that are directly or indirectly suffered or
incurred by any of the Indemnitees or to which any of the Indemnitees may
otherwise become subject at any time (regardless of whether or not such Damages
relate to any third-party claim) and that arise directly or indirectly from or
as a direct or indirect result of, or are directly or indirectly connected with:
(i) any Breach of any of the representations or warranties made
by Seller in this Agreement or any of the other Transactional Agreements;
(ii) any Breach of any representation, warranty, statement,
information or provision contained in the Disclosure Schedule;
(iii) any Breach of any covenant or obligation of Seller
contained in any of the Transactional Agreements;
(iv) any Liability of Seller or of any Related Party, other than
the Assumed Liabilities;
(v) any Liability (other than the Assumed Liabilities or
relating to any action or inaction by Purchaser) to which Purchaser or any of
the other Indemnitees may become subject and that arises directly or indirectly
from or relates directly or indirectly to any services performed by or on behalf
of Seller, or the operation by Seller of its business; or
(vi) any Proceeding relating directly or indirectly to any
Breach, alleged Breach, Liability or matter of the type referred to in clause
"(i)," "(ii)," "(iii)," "(iv)" or "(v)" above (including any Proceeding
commenced by any Indemnitee for the purpose of enforcing any of its rights under
this Section 5).
(b) Purchaser shall deliver to Seller a Claim Notice concerning any
claim for indemnification to be asserted hereunder. Purchaser and Seller shall
negotiate in good faith for a period of 30 days concerning any claim brought
hereunder before taking any action to adjudicate any such claim.
(c) Purchaser shall have the ability to offset any Damages under
Section 5.2(a) above against the Earn-out Shares or Spatial Warrant that have
not been released as described in Section 1.3 and the Escrow Fund. Neither
Seller, nor any of its officers, directors, agents, shareholders or employees,
shall have any Liability hereunder except for claims against the Earn-out
Shares, Spatial Warrant or Escrow Fund. For purposes of satisfying the Damages
to which the Purchaser is entitled to indemnification, the Initial Shares and
Earn-out Shares shall be valued at $3.87 per share and the value of the Spatial
Warrant shall such as the Board of Directors of Purchaser determines in good
faith at the time such offset is made.
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SECTION 6. REGISTRATION RIGHTS
6.1 REGISTRATION STATEMENT.
(a) Within thirty (30) days following the date on which the closing
price on the American Stock Exchange of the Company's Common Stock has been
equal to or in excess of $12.50 for fifteen (15) consecutive days, the Purchaser
may file with the SEC a registration statement on Form S-3 (or equivalent form)
(the "REGISTRATION STATEMENT") with respect to the shares of Common Stock (the
"WARRANT SHARES") issuable upon the exercise of the Spatial Warrant. If the
Purchaser chooses to file the Registration Statement, Purchaser shall use
reasonable commercial efforts to have the Registration Statement declared
effective as promptly as possible and shall maintain the Registration Statement
in effect until the termination of the Spatial Warrant or the resale of all of
the underlying shares. The Purchaser shall keep the Participating Holders
reasonably informed regarding such filing and confirm when such filing is
effective and otherwise cooperate with the Participating Holders in customary
ways so as to allow such Participating Holders to sell the Warrant Shares
pursuant to the Registration Statement.
(b) Notwithstanding anything to the contrary contained herein, no
Person to whom rights under the Warrant may be assigned, or who receives Warrant
Shares, shall have any rights under this Section 6 unless such Person executes a
written agreement reasonably satisfactory in form and content to the Purchaser
confirming that such Person wishes to be allowed to sell Warrant Shares pursuant
to the Registration Statement and agrees to be bound by the provisions of this
Section 6. (A Person (which shall include Seller) who receives rights under the
Warrant or Warrant Shares and who executes and delivers such an agreement is
referred to in this Section 6 as a "PARTICIPATING HOLDER.")
6.2 EXPENSES. The Purchaser shall bear all fees and expenses incurred
in connection with any registration under this Section 6, including without
limitation all registration, qualification, filing, printers' and accounting
fees, except that each Participating Holder shall bear its proportionate share
of all amounts payable to underwriters for discounts and commissions.
6.3 INDEMNIFICATION.
(a) The Purchaser agrees to indemnify, to the extent permitted by
law, each Participating Holder, its respective directors and officers and each
Person who controls such Participating Holder (within the meaning of the
Securities Act) against all Damages suffered by such Person as a result of any
untrue or alleged untrue statement of material fact contained in the
Registration Statement or in the related prospectus or preliminary prospectus
(or in any amendment thereof or supplement thereto) or as a result of any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
untrue statement or omission or alleged untrue statement or omission results
from or is contained in any information furnished in writing to the Purchaser by
such Participating Holder for use therein or results from such Participating
Holder's failure to deliver a copy of a Registration Statement or related
prospectus (or any amendment thereof or supplement thereto) after the Purchaser
has furnished such Participating Holder with a sufficient number of copies
thereof.
(b) In connection with each Registration Statement, each
Participating Holder (i) shall
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furnish to the Purchaser in writing such information and affidavits as the
Purchaser reasonably requests for use in connection with such Registration
Statement or the related prospectus and (ii) to the extent permitted by law,
will indemnify the Purchaser, its directors and officers and each Person who
controls the Purchaser (within the meaning of the Securities Act) against all
Damages resulting from any untrue or alleged untrue statement of material fact
contained in such Registration Statement or in the related prospectus or
preliminary prospectus (or in any amendment thereof or supplement thereto) or
from any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, but only to
the extent that such untrue statement or omission or alleged untrue statement or
omission results from or is contained in any information or affidavit furnished
in writing by such Participating Holder.
(c) Any Person entitled to indemnification under this Section 6
will (i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) unless in the indemnified
party's reasonable judgment a conflict of interest exists between the
indemnified party and the indemnifying party with respect to such claim, permit
the indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party will not be subject to any liability for any consent to
the entry of any judgment or any settlement made by the indemnified party
without the indemnifying party's consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will pay the fees and expenses of only one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest exists between such indemnified party and any other
indemnified party with respect to such claim (in which case the indemnifying
party will pay the fees and expenses of additional counsel).
6.4 TRANSFERABILITY OF REGISTRATION RIGHTS. The rights of Participating
Holders under this Section 6 shall be transferable in connection with: (a) the
distribution of the assets of Seller to its shareholders, (b) a transfer by will
or intestacy; and (c) estate planning transfers consisting of gifts to the
spouse or issue of the transferor or to a charity qualified under Section
501(c)(3) of the Code.
SECTION 7. MISCELLANEOUS PROVISIONS
7.1 FEES AND EXPENSES. Each party shall bear and pay all fees, costs
and expenses that have been incurred or that are in the future incurred by, on
behalf of, such party in connection with the negotiation, preparation and review
of this Agreement (including the Disclosure Schedule), the other Transactional
Agreements and all bills of sale, assignments, certificates, opinions and other
instruments and documents delivered or to be delivered in connection with the
Transactions, and the consummation and performance of the Transactions (the
"TRANSACTION FEES"); provided, that, (i) Purchaser shall reimburse the
reasonable fees and costs incurred by Seller in obtaining audited Financial
Statements and (ii) in the event that the Milestones are obtained by Seller,
Purchaser shall reimburse the reasonable Transaction Fees (including legal fees)
incurred by Seller in an amount not to exceed $25,000.
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7.2 ATTORNEYS' FEES. If any legal action or other legal Proceeding
relating to any of the Transactional Agreements or the enforcement of any
provision of any of the Transactional Agreements is brought against any party to
this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements (in addition to any other relief to
which the prevailing party may be entitled).
7.3 NOTICES. Any notice or other communication required or permitted to
be delivered to any party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the
address or facsimile telephone number set forth beneath the name of such party
on the signature page (or to such other address or facsimile telephone number as
such party shall have specified in a written notice given to the other parties
hereto).
7.4 HEADINGS. The underlined headings contained in this Agreement are
for convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
7.5 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
7.6 GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed in all respects by, the internal laws of the State of
Colorado (without giving effect to principles of conflicts of laws).
7.7 SUCCESSORS AND ASSIGNS; PARTIES IN INTEREST. This Agreement shall
be binding upon Seller and its successors and assigns, executors,
administrators, estate, heirs, successors and assigns, and Purchaser and its
successors and assigns. Seller shall not be permitted to assign any rights or
delegate any obligations under this Agreement without Purchaser's prior written
consent, which will not be unreasonably withheld. Purchaser may freely assign
its indemnification rights under Section 5. Except for the provisions of Section
5, none of the provisions of this Agreement is intended to provide any rights or
remedies to any Person other than the parties to this Agreement and their
respective successors and assigns.
7.8 SPECIFIC PERFORMANCE. Seller agrees that: (a) in the event of any
Breach or threatened Breach by Seller of any covenant, obligation or other
provision set forth in this Agreement, Purchaser shall be entitled (in addition
to any other remedy that may be available to it) to (i) a decree or order of
specific performance or mandamus to enforce the observance and performance of
such covenant, obligation or other provision and (ii) an injunction restraining
such Breach or threatened Breach; and (b) neither Purchaser nor any other
Indemnitee shall be required to provide any bond or other security in connection
with any such decree, order or injunction or in connection with any related
action or Proceeding.
7.9 WAIVER. No failure on the part of any Person to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of any
Person in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or
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remedy shall preclude any other or further exercise thereof or of any other
power, right, privilege or remedy.
7.10 AMENDMENTS. This Agreement may not be amended, modified, altered
or supplemented other than by means of a written instrument duly executed and
delivered on behalf of Purchaser and Seller.
7.11 SEVERABILITY. In the event that any provision of this Agreement,
or the application of any such provision to any Person or set of circumstances,
shall be determined to be invalid, unlawful, void or unenforceable to any
extent, the remainder of this Agreement, and the application of such provision
to Persons or circumstances other than those as to which it is determined to be
invalid, unlawful, void or unenforceable, shall not be impaired or otherwise
affected and shall continue to be valid and enforceable to the fullest extent
permitted by law.
7.12 ENTIRE AGREEMENT. The Transactional Agreements set forth the
entire understanding of the parties relating to the subject matter thereof and
supersede all prior agreements and understandings among or between any of the
parties relating to the subject matter thereof.
7.13 NO INTERPRETATION AGAINST DRAFTER. Because the parties hereto have
participated in drafting this Agreement, there shall be no presumption against
any party on the ground that such party was responsible for preparing this
Agreement or any part of it.
7.14 KNOWLEDGE. For purposes of this Agreement, Seller shall be deemed
to have "knowledge" of a particular fact or other matter if any Representative
of Seller has knowledge of such fact or other matter.
7.15 TRANSFER OF SOFTWARE. All software transferred pursuant to this
Agreement shall be transferred electronically.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
15.
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The parties hereto have caused this Agreement to be executed and
delivered as of the date set forth above.
SVEN TECHNOLOGIES, INC.
a California corporation
By: /s/ Xxxx Xxxx
-------------------------------
Xxxx Xxxx
President and Chief Executive
Officer
By: /s/ Xxxxx Xxxx
-------------------------------
Xxxxx Xxxx
Chief Operating Officer
0000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
SPATIAL TECHNOLOGY, INC.
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx,
Vice President, Administration
and Corporate Controller
0000-00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
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EXHIBIT A
CERTAIN DEFINITIONS
For purposes of the Agreement (including this Exhibit A):
BREACH. There shall be deemed to be a "Breach" of a representation,
warranty, covenant, obligation or other provision if there is or has been (a)
any inaccuracy in or breach (including any inadvertent or innocent breach) of,
or any failure (including any inadvertent failure) to comply with or perform,
such representation, warranty, covenant, obligation or other provision, or (b)
any claim (by any Person) or other circumstance that is inconsistent with such
representation, warranty, covenant, obligation or other provision; and the term
"Breach" shall be deemed to refer to any such inaccuracy, breach, failure, claim
or circumstance.
CAUSE. "Cause" shall mean (i) conviction of any felony or any crime
involving moral turpitude or dishonesty; (ii) participation in a fraud or act of
dishonesty against Purchaser; (iii) willful material breach of any policies of
Purchaser after notice and a reasonable opportunity to cure; or (iv) willful
misfeasance or nonfeasance of duty by a Founder that materially injures the
reputation, business or business relationships of Purchaser.
CONSENT. "Consent" shall mean any approval, consent, ratification,
permission, waiver or authorization (including any Governmental Authorization).
CONTRACT. "Contract" shall mean any written, oral, implied or other
agreement, contract, understanding, arrangement, instrument, note, guaranty,
indemnity, representation, warranty, deed, assignment, power of attorney,
certificate, purchase order, work order, insurance policy, benefit plan,
commitment, covenant, assurance or undertaking of any nature.
DAMAGES. "Damages" shall include any loss, damage, injury, decline in
value, lost opportunity, Liability, claim, demand, settlement, judgment, award,
fine, penalty, Tax, fee (including any legal fee, expert fee, accounting fee or
advisory fee), charge, cost (including any cost of investigation) or expense of
any nature, net of insurance recoveries and tax savings.
DISCLOSURE SCHEDULE. "Disclosure Schedule" shall mean the schedule
(dated as of the date of the Agreement) delivered to Purchaser on behalf of
Seller, a copy of which is attached to the Agreement and incorporated in the
Agreement by reference.
EMPLOYEE BENEFIT PLAN. "Employee Benefit Plan" shall have the meaning
specified in Section 3(3) of ERISA.
ENCUMBRANCE. "Encumbrance" shall mean any lien, pledge, hypothecation,
charge, mortgage, security interest, encumbrance, equity, trust, equitable
interest, claim, preference, right of possession, lease, tenancy, license,
encroachment, covenant, infringement, interference, Order, proxy, option, right
of first refusal, preemptive right, community property interest, legend,
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defect, impediment, exception, reservation, limitation, impairment, imperfection
of title, condition or restriction of any nature (including any restriction on
the transfer of any asset, any restriction on the receipt of any income derived
from any asset, any restriction on the use of any asset and any restriction on
the possession, exercise or transfer of any other attribute of ownership of any
asset).
ENTITY. "Entity" shall mean any corporation (including any non-profit
corporation), general partnership, limited partnership, limited liability
partnership, joint venture, estate, trust, cooperative, foundation, society,
political party, union, company (including any limited liability company or
joint stock company), firm or other enterprise, association, organization or
entity.
ERISA. "ERISA" shall mean the Employee Retirement Income Security Act
of 1974.
GAAP. "GAAP" shall mean generally accepted accounting principles,
applied on a basis consistent with the basis on which the Financial Statements
were prepared.
GOOD REASON. "Good Reason" shall mean, with respect to any Founder, (i)
any substantial or material reduction in the compensation package of the
Founder, taken as a whole, or (ii) the Purchaser requiring the Founder to
conduct his or her primary business activities in a new location which is
greater than fifty (50) miles from the current location.
GOVERNMENTAL AUTHORIZATION. "Governmental Authorization" shall mean any
permit, license, certificate, franchise, concession, approval, consent,
ratification, permission, clearance, confirmation, endorsement, waiver,
certification, designation, rating, registration, qualification or authorization
issued, granted, given or otherwise made available by or under the authority of
any Governmental Body or pursuant to any Legal Requirement, or right under any
Contract with any Governmental Body.
GOVERNMENTAL BODY. "Governmental Body" shall mean any: (a) nation,
state, commonwealth, province, territory, county, municipality, district or
other jurisdiction of any nature; (b) federal, state, local, municipal, foreign
or other government; or (c) governmental or quasi-governmental authority or any
nature (including any governmental division, department, agency, commission,
instrumentality, official, organization, unit, body or Entity and any court or
other tribunal).
INDEMNITEES. "Indemnitees" shall mean Purchaser, Purchaser's current
and future affiliates, the respective Representatives of Purchaser, and the
respective successors and assigns of any of the foregoing Persons.
LEGAL REQUIREMENT. "Legal Requirement" shall mean any federal, state,
local, municipal, foreign or other law, statute, legislation, constitution,
principle of common law, resolution, ordinance, code, edict, decree,
proclamation, treaty, convention, rule, regulation, ruling, directive,
pronouncement, requirement, specification, determination, decision, opinion or
interpretation issued, enacted, adopted, passed, approved, promulgated, made,
implemented or otherwise put into effect by or under the authority of any
Governmental Body.
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LIABILITY. "Liability" shall mean any debt, obligation, duty or
liability of any nature (including any unknown, undisclosed, unmatured,
unaccrued, unasserted, contingent, indirect, conditional, implied, vicarious,
derivative, joint, several or secondary liability), regardless of whether such
debt, obligation, duty or liability would be required to be disclosed on a
balance sheet prepared in accordance with generally accepted accounting
principles and regardless of whether such debt, obligation, duty or liability is
immediately due and payable.
ORDINARY COURSE OF BUSINESS. An action taken by or on behalf of an
Entity shall not be deemed to have been taken in the "Ordinary Course of
Business" unless:
(a) such action is consistent with an Entity's past practices and
is taken in the ordinary course of such Entity's day-to-day operations;
(b) such action is taken in accordance with reasonable business
practices; and
(c) such action is not required to be authorized by an Entity's
shareholders, board or directors or similar body, or a committee of such
Entity's board of directors or similar body and does not require any other
separate authorization of any nature.
PERSON. "Person" shall mean any individual, Entity or Governmental
Body.
PROCEEDING. "Proceeding" shall mean any action, suit, litigation,
arbitration, proceeding (including any civil, criminal, administrative,
investigative or appellate proceeding and any informal proceeding), prosecution,
contest, hearing, inquiry, inquest, audit, examination or investigation
commenced, brought, conducted or heard by or before, or otherwise involving, any
Governmental Body or any arbitrator or arbitration panel.
PROPRIETARY ASSET. "Proprietary Asset" shall mean any patent, patent
application, trademark (whether registered or unregistered and whether or not
relating to a published work), trademark application, trade name, fictitious
business name, service xxxx (whether registered or unregistered), service xxxx
application, copyright (whether registered or unregistered), copyright
application, maskwork, maskwork application, trade secret, know-how, customer
list, franchise, system, computer software, invention, design, blueprint,
engineering drawing, proprietary product, technology, proprietary right or other
intellectual property right or intangible asset.
RELATED PARTY. Each of the following shall be deemed to be a "Related
Party":
(a) each individual who is, or who has at any time been, an officer
of Seller;
(b) each member of the family of each of the individuals referred
to in clause "(a)" above; and
(c) any Entity (other than Seller) in which any one of the
individuals referred to in clauses "(a)" and "(b)" above holds or held (or in
which more than one of such individuals collectively hold or held), beneficially
or otherwise, a controlling interest or a material voting, proprietary or equity
interest.
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REPRESENTATIVES. "Representatives" shall mean officers and directors.
SELLER CONTRACT. "Seller Contract" shall mean any Contract: (a) to
which Seller is a party; (b) by which Seller or any of its assets is or may
become bound or under which Seller has, or may become subject to, any
obligation; or (c) under which Seller has or may acquire any right or interest.
TAX. "Tax" shall mean any tax (including any income tax, franchise tax,
capital gains tax, estimated tax, gross receipts tax, value-added tax, surtax,
excise tax, ad valorem tax, transfer tax, stamp tax, sales tax, use tax,
property tax, business tax, occupation tax, inventory tax, occupancy tax,
withholding tax or payroll tax), levy, assessment, tariff, impost, imposition,
toll, duty (including any customs duty), deficiency or fee, and any related
charge or amount (including any fine, penalty or interest), that is, has been or
may in the future be (a) imposed, assessed or collected by or under the
authority of any Governmental Body, or (b) payable pursuant to any tax-sharing
agreement or similar Contract.
TAX RETURN. "Tax Return" shall mean any return (including any
information return), report, statement, declaration, estimate, schedule, notice,
notification, form, election, certificate or other document or information that
is, has been or may in the future be filed with or submitted to, or required to
be filed with or submitted to, any Governmental Body in connection with the
determination, assessment, collection or payment of any Tax or in connection
with the administration, implementation or enforcement of or compliance with any
Legal Requirement relating to any Tax.
TRANSACTIONAL AGREEMENTS. "Transactional Agreements" shall mean:
(a) the Agreement;
(b) the Spatial Warrant; and
(c) the Employment Agreements.
TRANSACTIONS. "Transactions" shall mean (a) the execution and delivery
of the respective Transactional Agreements and (b) all of the transactions
contemplated by the respective Transactional Agreements, including:
(a) the sale of the Purchased Assets by Seller to Purchaser in
accordance with the Agreement;
(b) the assumption of the Assumed Liabilities by Purchaser; and
(c) the performance by Seller and Purchaser of their respective
obligations under the Transactional Agreements, and the exercise by Seller and
Purchaser of their respective rights under the Transactional Agreements.
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EXHIBIT B
EQUIPMENT AND FURNITURE
22
EXHIBIT C
SPATIAL WARRANT
23
EXHIBIT D
ASSUMED LIABILITIES
24
EXHIBIT E
ASSUMED SELLER CONTRACTS
25
EXHIBIT F
FORM OF EMPLOYMENT AGREEMENT
