EXHIBIT 99.1
ASSET PURCHASE AGREEMENT
BETWEEN
ACCELR8 TECHNOLOGY CORPORATION
AND
DDX, INC.
JANUARY 10, 2001
TABLE OF CONTENTS
1. Definitions
2. Basic Transaction
(a) Purchase and Sale of Assets
(b) Assumption of Liabilities
(c) Purchase Price
(d) The Closing
(e) Deliveries at the Closing
3. Representations and Warranties of the Seller
(a) Organization of the Seller
(b) Authorization of Transaction
(c) Noncontravention
(d) Brokers' Fees
(e) Title to Assets
(f) Financial Statements
(g) Events Subsequent to Most Recent Fiscal Year End
(h) Undisclosed Liabilities
(i) Legal Compliance
(j) Real Property
(k) Intellectual Property
(l) Tangible Assets
(m) Inventory
(n) Notes and Accounts Receivable
(o) Powers of Attorney
(p) Insurance
(q) Litigation
(r) Product Warranty
(s) Product Liability
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(t) Employees
(u) Guaranties
(v) Environment, Health, and Safety
(w) Certain Business Relationships with OpTest
(x) Disclosure
4. Representations and Warranties of the Buyer
(a) Organization of the Buyer
(b) Authorization of Transaction
(c) Noncontravention
(d) Brokers' Fees
5. Pre-Closing Covenants
(a) General
(b) Notices and Consents
(c) Operation of Business
(d) Preservation of Business
(e) Full Access
(f) Notice of Developments
(g) Exclusivity
6. Post-Closing Covenants
(a) General
(b) Transition
(c) Confidentiality
(d) Covenant Not to Compete
7. Conditions to Obligation to Close
(a) Conditions to Obligation of Buyer
(b) Conditions to Obligation of the Seller
8. Remedies for Breaches of This Agreement
(a) Survival of Representations and Warranties
(b) Indemnification Provisions for Benefit of the Buyer
(c) Indemnification Provisions for Benefit of the Seller
(d) Matters Involving Third Parties
(e) Determination of Adverse Consequences
(f) Other Indemnification Provisions
9. Termination
(a) Termination of Agreement
(b) Effect of Termination
10. Miscellaneous
(a) Press Releases and Public Announcements
(b) No Third Party Beneficiaries
(c) Entire Agreement
(d) Succession and Assignment
(e) Counterparts
(f) Headings
(g) Notices
(h) Governing Law
(i) Amendments and Waivers
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(j) Severability
(k) Expenses
(l) Construction
(m) Incorporation of Exhibits
(n) Specific Performance
(o) Submission to Jurisdiction
(p) Tax Matters
(q) Bulk Transfer Laws
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ASSET PURCHASE AGREEMENT
Agreement entered into on January 10, 2001, by and between Accelr8
Technology Corporation, a Colorado corporation (the "Buyer"), and DDx, Inc., a
Colorado corporation (the "Seller"). The Buyer and the Seller are referred to
collectively herein as the "Parties".
This Agreement contemplates a transaction in which the Buyer will purchase
all of the assets (and assume certain of the Liabilities) relating to the
Seller's OpTest(TM) technology from the Seller in return for cash and the
issuance of restricted shares of Buyer's common stock.
Now, therefore, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
1. Definitions.
"Accredited Investor" has the meaning set forth in Regulation D promulgated
under the Securities Act.
"Acquired Assets" means all right, title, and interest in and to the
following assets related to OpTest: (a) the partial leasehold set forth and
described on Schedule 1.1(a), (b) the tangible personal property (such as
machinery, equipment, inventories of raw materials and supplies, manufactured
and purchased parts, goods in process and finished goods, and furniture) set
forth on Schedule 1.1(b), (c) the Intellectual Property set forth on Schedule
1.1(c), together with all goodwill associated therewith, licenses and
sublicenses granted and obtained with respect thereto, and rights thereunder,
remedies against infringements thereof, and rights to protection of interests
therein under the laws of all jurisdictions, (d) the agreements, contracts,
indentures, mortgages, instruments, Security Interests, guaranties, and other
similar arrangements, and all rights thereunder, set forth on Schedule 1.1(d),
(e) franchises, approvals, permits, licenses, orders, registrations,
certificates, variances, and similar rights obtained from governments and
governmental agencies set forth on Schedule 1.1(e), (f) books, records, ledgers,
files, documents, correspondence, lists, drawings, and specifications, creative
materials, advertising and promotional materials, studies, reports, and other
printed or written materials set forth on Schedule 1.1(f), and (g) any other
assets listed on Schedule 1.1(g), provided, however, that the Acquired Assets
shall not include (i) the corporate charter, qualifications to conduct business
as a foreign corporation, arrangements with registered agents relating to
foreign qualifications, taxpayer and other identification numbers, seals, minute
books, stock transfer books, blank stock certificates, and other documents
relating to the organization, maintenance, and existence of the Seller as a
corporation or (ii) any of the rights of the Seller under this Agreement (or
under any side agreement between the Seller on the one hand and the Buyer on the
other hand entered into on or after the date of this Agreement).
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, Liabilities, obligations, Taxes, liens, losses, expenses, and
fees, including court costs and attorneys' fees and expenses.
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"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
"Affiliated Group" means any affiliated group within the meaning of Code
ss.1504(a) or any similar group defined under a similar provision of state,
local, or foreign law.
"Applicable Rate" means the prime rate of interest as published from time
to time in the Wall Street Journal.
"Assumed Liabilities" means only those Liabilities relating to OpTest set
forth on the Schedule of Assumed Liabilities", including, without limitation,
the liability for Rent Payments pursuant to 6(j) below, provided, however, that
the Assumed Liabilities shall not include any other Liabilities.
"Basis" means any past or present fact, situation, circumstance, status,
condition, activity, practice, plan, occurrence, event, incident, action,
failure to act, or transaction that forms or could form the basis for any
specified consequence.
"Buyer" has the meaning set forth in the preface above.
"Buyer SEC Document" has the meaning set forth in ss.4(f) below.
"Buyer Stock" means any share of common stock, no par value per share, of
the Buyer.
"Buyer Underwriter" has the meaning set forth in ss.6(h) below.
"Cash" means cash and cash equivalents (including marketable securities and
short term investments) calculated in accordance with GAAP applied on a basis
consistent with the preparation of the Financial Statements.
"Closing" has the meaning set forth in ss.2(d) below.
"Closing Date" has the meaning set forth in ss.2(d) below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the United States Securities and Exchange Commission.
"Confidential Information" means any information concerning the businesses
and affairs of Seller or OpTest that is not already generally available to the
public. Confidential Information shall not include any information which:
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(a) is already known to the Buyer at the time of disclosure as evidenced
by written documents to which such party is lawfully entitled; or
(b) is generally available to the public or becomes publicly known through
no wrongful act of the Buyer; or
(c) is lawfully received by the Buyer from a third-party without a duty of
confidentiality to Seller and who had a legal right to provide it; or
(d) is developed independently of knowledge of Confidential Information
received by the Buyer from Seller; or
(e) is disclosed by Buyer with Seller's prior written approval.
"Consulting Agreement" has the meaning set forth in ss.6(g) below.
"Conversion Price" means the quotient of (x) the amount of Buyer's Cash as
of the Closing Date, divided by (y) the number of shares of Buyer Stock issued
and outstanding as of the Closing Date; provided, however, that if the
Conversion Price is less than $1.30 it shall be deemed to be $1.30 and if the
Conversion Price is greater than $1.40 it shall be deemed to be $1.40.
"Disclosure Schedule" means the document delivered by the Parties on the
date hereof that sets forth certain exceptions to the representations and
warranties contained in this Agreement under captions referencing each and every
Section to which such exceptions apply.
"Environmental, Health, and Safety Laws" means the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Resource
Conservation and Recovery Act of 1976, and the Occupational Safety and Health
Act of 1970, each as amended, together with all other laws (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder) of federal, state, local, and foreign governments (and all
agencies thereof) concerning pollution or protection of the environment, public
health and safety, or employee health and safety, including laws relating to
emissions, discharges, releases, or threatened releases of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes
into ambient air, surface water, ground water, or lands or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or wastes.
"Escrow Agent" has the meaning set forth in ss.2(c) below.
"Escrow Agreement" has the meaning set forth in ss.2(c) below.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Extremely Hazardous Substance" has the meaning set forth in ss.302 of the
Emergency Planning and Community Right-to-Know Act of 1986, as amended.
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"Financial Statement" has the meaning set forth in ss.3(g) and ss.4(e)
below.
"GAAP" means United States generally accepted accounting principles as in
effect from time to time.
"Indemnified Party" has the meaning set forth in ss.8(d) below.
"Indemnifying Party" has the meaning set forth in ss.8(d) below.
"Intellectual Property" means (a) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, divisions, extensions,
reexaminations and any foreign counterpart or derivative's thereof, (b) all
trademarks, service marks, trade dress, logos, and trade names, together with
all translations, adaptations, derivations, and combinations thereof, and
including all goodwill associated therewith, and all applications,
registrations, and renewals in connection therewith, (c) all copyrightable
works, all copyrights, and all applications, registrations, and renewals in
connection therewith, (d) all mask works and all applications, registrations,
and renewals in connection therewith, (e) all trade secrets and confidential
information (including ideas, research and development information, know-how,
formulas, compositions, manufacturing and production processes and techniques,
technical data, designs, drawings, specifications, customer and supplier lists,
pricing and cost information, and business and marketing plans and proposals),
(f) all computer software (including data and related documentation), (g) all
other proprietary rights, and (h) all copies and tangible embodiments thereof
(in whatever form or medium), in each case relating to Seller's OpTest
technology set forth in schedule 1.1(c).
"Knowledge" means actual knowledge after reasonable investigation.
"Liability" means any liability (whether known or unknown, whether asserted
or unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due), including
any liability for Taxes.
"Most Recent Balance Sheet" means the balance sheet contained within the
Most Recent Financial Statements.
"Most Recent Financial Statements" has the meaning set forth in ss.4(e)
below.
"Most Recent Fiscal Quarter End" has the meaning set forth in ss.4(e)
below.
"Most Recent Fiscal Year End" means the fiscal year ended July 31, 2000 for
the Buyer and the fiscal year ended December 31, 1999 for the Seller.
"OpTest" means the business and assets of Seller relating to the OpTest
technology, including all associated assets, and those related liabilities
specifically identified in the Schedule of Assumed Liabilities.
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"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Other Shareholder" has the meaning set forth in ss.6(h) below.
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an association,
a joint stock company, a trust, a joint venture, an unincorporated organization,
or a governmental entity (or any department, agency, or political subdivision
thereof).
"Purchase Price" has the meaning set forth in ss.2(c) below.
"Rent Payments" has the meaning set forth in ss.6(j) below.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance, charge,
or other security interest, other than (a) mechanic's, materialmen's, and
similar liens, (b) liens for Taxes not yet due and payable or for Taxes that the
taxpayer is contesting in good faith through appropriate proceedings, (c)
purchase money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of Business and
not incurred in connection with the borrowing of money.
"Seller" has the meaning set forth in the preface above.
"Tax" means any federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental (including taxes under Code ss.59A), customs
duties, capital stock, franchise, profits, withholding, social security (or
similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"Technology Transfer" has the meaning set forth in ss.2(c) hereof.
"Third Party Claim" has the meaning set forth in ss.8(d) below.
"Transition Expenditures" has the meaning set forth in ss.5(g) below.
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2. Basic Transaction.
(a) Purchase and Sale of Assets. On and subject to the terms and conditions
of this Agreement, the Buyer agrees to purchase from the Seller, and the Seller
agrees to sell, transfer, convey, and deliver to the Buyer, all of the Acquired
Assets at the Closing for the consideration specified below in this ss.2.
(b) Assumption of Liabilities. On and subject to the terms and conditions
of this Agreement, the Buyer agrees to assume and become responsible for all of
the Assumed Liabilities at the Closing. The Buyer will not assume or have any
responsibility, however, with respect to any other obligation or Liability of
the Seller not included within the definition of Assumed Liabilities.
(c) Purchase Price. The Buyer agrees to pay to the Seller at the Closing
$500,000 payable by certified check or wire transfer, and shares of Buyer Stock
having a value of $2,500,000 (the "Purchase Price") as calculated below. The
cash portion of the Purchase Price shall be reduced for any Transition
Expenditures paid by Buyer for or on behalf of Seller, and increased by any
Transition Expenditures paid by the Seller, in either case as set forth on
Schedule 5(g) hereto. The number of shares of Buyer Stock to be issued to the
Seller shall be equal to the product of a fraction wherein the numerator is
$2,500,000 and the denominator is the Conversion Price. In lieu of issuing any
fractional shares, the Buyer will round any fraction up to the next whole share
of Buyer Stock. The Buyer's financial information and the number of shares of
Buyer Stock outstanding to be used to determine the Conversion Price shall be
made a part of this Agreement at the time of Closing by the Buyer's
certification of its Most Recent Balance Sheet and number of shares of Buyer
Stock issued and outstanding on that date. The Buyer Stock issued at the Closing
shall be placed in an escrow account, established by the Buyer at Buyer's
expense with Computershare Investor Services (the "Escrow Agent"), pursuant to
an escrow agreement to be agreed to by the parties and attached hereto as
Exhibit 2(c) (the "Escrow Agreement"). The Buyer Stock shall be released from
the escrow by the Escrow Agent to Seller as follows: (A) 50% upon the
consummation of one OpTest Technology Transfer event to a third party (the
"First Event"), and (B) 50% upon the consummation of a second OpTest Technology
Transfer event to a third party (the "Second Event"); without limitation as to
the dollar value of either the First Event or the Second Event. It is the intent
of the parties hereto that technology licenses, research and development
agreements, government grants or contracts, mergers, acquisitions, joint
ventures, strategic alliances, materials transfer agreements and all such
similar arrangements shall be considered to qualify as technology transfer
events under this Agreement (any such event, a "Technology Transfer"). If no
such Technology Transfer events are consummated within the twelve months
following the Closing of this Agreement, then the Buyer Stock shall be released
from the escrow by the Escrow Agent to Buyer.
(d) Contingent Issuance of Shares. In the event that the litigation
referred to in the Disclosure Schedule as "Buyer Litigation" results in any
monetary settlement, or any non-appealable assessment or assessments against the
Buyer of any penalties, fines, damages, or judgments (the "Amount Paid for Buyer
Litigation"), which aggregate in excess of $500,000, then Buyer shall issue
additional shares of Buyer Stock to Seller as follows: (i) if the Amount Paid
for Buyer Litigation is greater than $500,000 and less than $1,000,000, then
Buyer shall issue Seller an additional 150,000 shares of Buyer Stock, and (ii)
if the Amount Paid for Buyer Litigation is greater than $1,000,000 then Buyer
shall issue Seller an additional 150,000 shares of Buyer Stock. For example, if
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the Amount Paid for Buyer Litigation were equal to $1,000,001 then Buyer would
issue 300,000 additional shares of Buyer Stock, and if the Amount Paid for Buyer
Litigation were $1,000,000, then Buyer would issue 150,000 additional shares of
Buyer Stock.
(e) The Closing. The Closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxxxxxxx &
Associates, P.C. in Denver, Colorado, commencing at 9:00 a.m. local time on the
first business day following the satisfaction or waiver of all conditions to the
obligations of the Parties to consummate the transactions contemplated hereby
(other than conditions with respect to actions the respective Parties will take
at the Closing itself) or such other date as the Parties may mutually determine
(the "Closing Date"); provided, however, that the Closing Date shall be no later
than January 31, 2001.
(f) Deliveries at the Closing. At the Closing, (i) the Seller will deliver
to the Buyer the various certificates, instruments, and documents referred to in
ss.7(a) below; (ii) the Buyer will deliver to the Seller the various
certificates, instruments, and documents referred to in ss.7(b) below; (iii) the
Seller will execute, acknowledge (if appropriate), and deliver to the Buyer (A)
assignments (including the sublease attached as Exhibit 2(f) and Intellectual
Property transfer documents) and (B) such other instruments of sale, transfer,
conveyance, and assignment as the Buyer and its counsel may reasonably request;
(iv) the Buyer will execute, acknowledge (if appropriate), and deliver to the
Seller (A) an assumption agreement and (B) such other instruments of assumption
as the Seller and its counsel may reasonably request; (v) the Buyer will deliver
to the Seller and the Escrow Agent the Purchase Price as specified in ss.2(c)
above; (vi) the Seller, Buyer and Escrow Agent will deliver executed copies of
the Escrow Agreement; and (vii) the Buyer will deliver executed copies of the
Consulting Agreement.
3. Representations and Warranties of the Seller. The Seller represents and
warrants to the Buyer that the statements contained in this ss.3 are correct and
complete as of the date of this Agreement and will be correct and complete as of
the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this ss.3), except as set
forth in the Disclosure Schedule.
(a) Organization of the Seller. The Seller is a corporation duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation.
(b) Authorization of Transaction. The Seller has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. Without limiting the
generality of the foregoing, the board of directors of the Seller has duly
authorized the execution, delivery, and performance of this Agreement by the
Seller. This Agreement constitutes the valid and legally binding obligation of
the Seller, enforceable in accordance with its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby
(including the assignments and assumptions referred to in ss.2 above), will (i)
violate any constitution, statute, regulation, rule, injunction, judgment,
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order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Seller is subject or any provision of
the charter or bylaws of the Seller or (ii) conflict with, result in a breach
of, constitute a default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument, or other
arrangement to which the Seller is a party or by which it is bound or to which
any of its assets is subject (or result in the imposition of any Security
Interest upon any of its assets). The Seller does not need to give any notice
to, make any filing with, or obtain any authorization, consent, or approval of
any government or governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement (including the assignments and
assumptions referred to in ss.2 above).
(d) Brokers' Fees. The Seller has no Liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Buyer could become
liable or obligated.
(e) Title to Assets. The Seller has good and marketable title to, or a
valid leasehold interest in, the Acquired Assets, free and clear of all Security
Interests or restrictions on transfer.
(f) Not Used in this Agreement
(g) Undisclosed Liabilities. The Seller has no Knowledge of any Liability
(or any Basis for any present or future action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand giving rise to any Liability)
that could affect the Acquired Assets, except for the Assumed Liabilities.
(h) Legal Compliance. The Seller has complied with all applicable laws
(including rules, regulations, codes, plans, injunctions, judgments, orders,
decrees, rulings, and charges thereunder) of federal, state, local, and foreign
governments (and all agencies thereof) except where the failure so to comply
would not have a material Adverse Effect on OpTest, and to the Seller's
Knowledge no action, suit, proceeding, hearing, investigation, charge,
complaint, claim, demand, or notice has been filed or commenced against any of
them alleging such failure so to comply.
(i) Real Property.
No real property is owned by the Seller. With respect to the partial
leasehold described in Schedule 1.1(a):
(A) the lease is legal, valid, binding, enforceable, and in full force and
effect;
(B) the lease will continue to be legal, valid, binding, enforceable, and
in full force and effect on identical terms following the consummation of the
transactions contemplated hereby (including the assignments and assumptions
referred to in ss.2 above);
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(C) no party to the lease is in breach or default, and no event has
occurred which, with notice or lapse of time, would constitute a breach or
default or permit termination, modification, or acceleration thereunder;
(D) no party to the lease has repudiated any provision thereof;
(E) there are no disputes, oral agreements, or forbearance programs in
effect as to the lease;
(F) the Seller has not assigned, transferred, conveyed, mortgaged, deeded
in trust, or encumbered any interest in the leasehold; and
(G) the leasehold is supplied with utilities and other services necessary
for the operation of said facilities.
(j) Intellectual Property.
(i) Seller owns and possesses all right, title and interest in (free and
clear of any Security Interest, license, or other restriction), or has the right
to use pursuant to license, sublicense, agreement, or permission, all
Intellectual Property necessary for the operation of the OpTest business as
presently conducted. Each item of Intellectual Property owned or used by the
Seller in the OpTest business immediately prior to the Closing hereunder will be
owned or available for use by the Buyer on substantially identical terms and
conditions immediately subsequent to the Closing hereunder. The Seller has taken
all action reasonably required to maintain and protect each item of Intellectual
Property related to the Acquired Assets. No claim by any third party contesting
the validity, enforceability, use or ownership of any of the Intellectual
Property has been made against Seller or, to the Knowledge of Seller, is
threatened.
(ii) To the Knowledge of Seller, Seller has not interfered with, infringed
upon, misappropriated, or otherwise come into conflict with any intellectual
property rights of third parties and, to the Knowledge of Seller, no
infringement or misappropriation or conflict will occur as a result of the
continued operation of the OpTest business as currently conducted. The Seller
has not received any charge, complaint, claim, demand, or notice alleging any
such interference, infringement, misappropriation, or violation (including any
claim that the Seller must license or refrain from using any intellectual
property rights of any third party relating to OpTest). To the Knowledge of the
Seller, no third party has interfered with, infringed upon, misappropriated, or
otherwise come into conflict with any Intellectual Property rights.
(iii) With respect to each item of Intellectual Property:
(A) each item is free from any outstanding injunction, judgment,
order, decree, ruling, or charge;
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(B) no action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand is pending or, to the Knowledge of the Seller
is threatened which challenges the legality, validity, enforceability, use,
or ownership of the item; and
(C) the Seller has never agreed to indemnify any Person for or against
any interference, infringement, misappropriation, or other conflict with
respect to the item.
The transactions contemplated by this Agreement shall have no material
adverse effect on any of the Intellectual Property. The Seller has no
actual knowledge of any new products, inventions, procedures, or methods of
manufacturing or processing that any competitors or other third parties
have developed which reasonably could be expected to supersede or make
obsolete the OpTest technology. Seller has taken all necessary and
desirable action to protect the Intellectual Property so as not to
adversely effect the validity or enforcement of such Intellectual Property.
(k) Tangible Assets. The Seller owns or leases all buildings, machinery,
equipment, and other tangible assets used in the conduct of the OpTest business.
Each such tangible asset is free from material defects (patent and latent), has
been maintained in accordance with normal industry practice, is in good
operating condition and repair (subject to normal wear and tear), and is
suitable for the purposes for which it presently is used.
(l) Inventory. The inventory of the Seller consists of raw materials and
supplies, manufactured and purchased parts, goods in process, and finished
goods, all of which are fit for the purpose for which they were procured or
manufactured, and none of which is obsolete, damaged, or defective in any
material way.
(m) Powers of Attorney. There are no outstanding powers of attorney
executed on behalf of Seller that directly relate to OpTest.
(n) Insurance. With respect to each insurance policy covering the Acquired
Assets: (A) the policy is legal, valid, binding, enforceable, and in full force
and effect; (B) the policy will continue to be legal, valid, binding,
enforceable, and in full force and effect on identical terms following the
consummation of the transactions contemplated hereby (including the assignments
and assumptions referred to in ss.2 above); (C) the Seller is not in breach or
default and has no Knowledge that any other party to the policy is in breach or
default (including with respect to the payment of premiums or the giving of
notices), and no event has occurred which, with notice or the lapse of time,
would constitute such a breach or default, or permit termination, modification,
or acceleration, under the policy; and (D) no party to the policy has repudiated
any provision thereof. The Acquired Assets have been covered during the past 10
years by insurance in scope and amount customary and reasonable for such assets
during the aforementioned period.
(o) Litigation. With respect to OpTest the Seller (i) is not subject to any
outstanding injunction, judgment, order, decree, ruling, or charge nor (ii) is
not a party nor is threatened to be made a party to any action, suit,
proceeding, hearing, or investigation of, in, or before any court or
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quasi-judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator. None of the directors and officers (and
employees with responsibility for litigation matters) of the Seller has
Knowledge of any Basis for any such action, suit, proceeding, hearing, or
investigation against the Seller with respect to OpTest.
(p) Product Warranty. Each product manufactured, sold, leased, or delivered
by the Seller related to OpTest has been in conformity with all applicable
contractual commitments and all express and implied warranties (as applicable),
and to the Seller's Knowledge the Seller has no Liability (and there is no Basis
for any present or future action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand against any of them giving rise to any
Liability) for replacement or repair thereof or other damages in connection
therewith.
(q) Product Liability. The Seller has no Liability (and to the Seller's
Knowledge there is no Basis for any present or future action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand against any of them
giving rise to any Liability) arising out of any injury to individuals or
property as a result of the ownership, possession, or use of any product
manufactured, sold, leased, or delivered by the Seller relating to OpTest.
(r) Employees. Seller has no employees who are primarily involved with
OpTest other than Xxxxxxx X. XxXxxxx.
(s) Environment, Health, and Safety.
(i) The Seller, and its predecessors and Affiliates, in developing,
deploying, and transferring OpTest, have complied with all Environmental,
Health, and Safety Laws, and no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand, or notice has been filed
or commenced against any of them alleging any failure so to comply. Without
limiting the generality of the preceding sentence, the Seller, and its
predecessors and Affiliates has obtained and been in compliance with all of
the terms and conditions of all permits, licenses, and other authorizations
which are required under, and has complied with all other limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables which are contained in, all
Environmental, Health, and Safety Laws, in connection with the Seller's use
of the Acquired Assets.
(ii) The Seller has no Liability for damage to any site, location, or
body of water (surface or subsurface), for any illness of or personal
injury to any employee or other individual, or for any reason under any
Environmental, Health, and Safety Law, related to the Acquired Assets.
(iii) All properties and equipment used in connection with the
Acquired Assets have been free of PCB's, methylene chloride,
trichloroethylene, 1, 2-trans-dichloroethylene, dioxins, dibenzofurans, and
Extremely Hazardous Substances.
(t) Restricted Securities. The Seller is purchasing the Buyer Stock for
investment and not with a view to any sale or distribution thereof within the
meaning of the Securities Act of 1933, as amended (the "Securities Act"). The
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Seller understands and agrees that the Buyer Stock issued at the Closing will be
"restricted securities" and, accordingly, that it must be held indefinitely
unless it is subsequently registered under applicable securities laws, or an
exemption from such registration requirements is available. The Seller
represents that it is aware of, and is able to bear the economic risk of, such
securities, and that the Seller's representatives have such knowledge and
experience in financial and business matters that they are capable of evaluating
the merits and risks of holding such securities.
(u) Certain Business Relationships. None of the Seller's shareholders or
their Affiliates owns any asset, tangible or intangible, related to the OpTest
business.
(v) Disclosure. The representations and warranties contained in this ss.3
do not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements and information
contained in this ss.3 not misleading.
4. Representations and Warranties of the Buyer. The Buyer represents and
warrants to the Seller that the statements contained in this ss.4 are correct
and complete as of the date of this Agreement and will be correct and complete
as of the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this ss.4), except as set
forth in the Disclosure Schedule.
(a) Organization of the Buyer. The Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation.
(b) Authorization of Transaction. The Buyer has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of the Buyer, enforceable in accordance
with its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby
(including the assignments and assumptions referred to in ss.2 above), will (i)
violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Buyer is subject or any provision of
its charter or bylaws or (ii) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
the Buyer is a party or by which it is bound or to which any of its assets is
subject. The Buyer does not need to give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or governmental
agency in order for the Parties to consummate the transactions contemplated by
this Agreement (including the assignments and assumptions referred to in ss.2
above).
(d) Brokers' Fees. The Buyer has no Liability or obligation to pay any fees
or commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Seller could become liable or
obligated.
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(e) Financial Statements. Attached hereto as Exhibit 4(e) are the following
financial statements (collectively the "Financial Statements"): (i) audited
consolidated and unaudited consolidating balance sheets and statements of
income, and changes in cash flow as of and for the Most Recent Fiscal Year End
for the Buyer; and (ii) unaudited consolidated and consolidating balance sheets
and statements of income, and changes in cash flow (the "Most Recent Financial
Statements") as of and for the 3 months ended October 31, 2000 (the "Most Recent
Fiscal Quarter End") for the Buyer. The Financial Statements (including the
notes thereto) have been prepared in accordance with GAAP applied on a
consistent basis throughout the periods covered thereby, present fairly the
financial condition of the Buyer as of such dates and the results of operations
of the Buyer for such periods, are correct and complete, and are consistent with
the books and records of the Buyer (which books and records are correct and
complete).
(f) Events Subsequent to Most Recent Fiscal Quarter End. Since the Most
Recent Fiscal Quarter End, there has not been any adverse change in the
business, financial condition, operations, results of operations, or future
prospects of the Buyer. Without limiting the generality of the foregoing, since
that date:
(i) the Buyer has not sold, leased, transferred, or assigned any of
its assets, tangible or intangible, other than for a fair consideration in
the Ordinary Course of Business;
(ii) the Buyer has not entered into any agreement, contract, lease, or
license (or series of related agreements, contracts, leases, and licenses)
either involving more than $50,000 or outside the Ordinary Course of
Business;
(iii) no party (including the Buyer) has accelerated, terminated,
modified, or cancelled any agreement, contract, lease, or license (or
series of related agreements, contracts, leases, and licenses) involving
more than $50,000 to which the Buyer is a party or by which any of them is
bound;
(iv) the Buyer has not imposed any Security Interest upon any of its
assets, tangible or intangible;
(v) the Buyer has not made any capital expenditure (or series of
related capital expenditures) either involving more than $50,000 or outside
the Ordinary Course of Business;
(vi) the Buyer has not made any capital investment in, any loan to, or
any acquisition of the securities or assets of, any other Person (or series
of related capital investments, loans, and acquisitions) either involving
more than $50,000 or outside the Ordinary Course of Business;
(vii) the Buyer has not issued any note, bond, or other debt security
or created, incurred, assumed, or guaranteed any indebtedness for borrowed
money or capitalized lease obligation either involving more than $50,000
singly or $100,000 in the aggregate, and has not engaged in any transaction
involving an issuance of securities under the Securities Act;
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(viii) the Buyer has not delayed or postponed the payment of accounts
payable and other Liabilities outside the Ordinary Course of Business;
(ix) the Buyer has not cancelled, compromised, waived, or released any
right or claim (or series of related rights and claims) either involving
more than $50,000 or outside the Ordinary Course of Business;
(x) the Buyer has not granted any license or sublicense of any rights
under or with respect to any Intellectual Property;
(xi) the Buyer has not experienced any damage, destruction, or loss
(whether or not covered by insurance) to its property;
(xii) the Buyer has not entered into any employment contract or
collective bargaining agreement, written or oral, or modified the terms of
any existing such contract or agreement;
(xiii) there has not been any other occurrence, event, incident,
action, failure to act, or transaction outside the Ordinary Course of
Business involving the Buyer; and
(xiv) the Buyer has not committed to any of the foregoing.
(g) Undisclosed Liabilities. The Buyer has no Liability (and the Buyer has
no Knowledge of any Basis for any present or future action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand against any of them
giving rise to any Liability) except for (i) Liabilities set forth on the face
of the Most Recent Balance Sheet (rather than in the notes thereto) and (ii)
Liabilities which have arisen after the Most Recent Fiscal Month End in the
Ordinary Course of Business.
(h) Legal Compliance. The Buyer has complied with all applicable laws
(including rules, regulations, codes, plans, injunctions, judgments, orders,
decrees, rulings, and charges thereunder) of federal, state, local, and foreign
governments (and all agencies thereof) except where the failure so to comply
would not have a material Adverse Effect on the Buyer, and to the Buyer's
Knowledge no action, suit, proceeding, hearing, investigation, charge,
complaint, claim, demand, or notice has been filed or commenced against any of
them alleging such failure so to comply.
(i) Commission Reports and Financial Statements. The Buyer has filed with
the Commission and has made available to the Seller true and complete copies of
all forms, reports, schedules, statements, and other documents filed by it since
December 15, 1995 under the Exchange Act or the Securities Act (each of such
forms, reports, schedules, statements, and other documents, to the extent filed
and publicly available before the date of this Agreement, other than preliminary
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filings, is referred to as a "Buyer SEC Document"). The Buyer's Form 10-KSB for
the fiscal year ended July 31, 2000, and Buyer's Form 10-QSB for the quarter
ended October 31, 2000, (a) did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances in which
they were made, not misleading, and (b) complied in all material respects with
the applicable requirements of the Exchange Act, and the applicable rules and
regulations of the Commission thereunder. The financial statements of the Buyer
and its subsidiaries included in Buyer's Form 10-KSB for the fiscal year ended
July 31, 2000, and in the Buyer's Form 10-QSB for the quarter ended October 31,
2000, comply as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the Commission with
respect thereto, have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods involved
(except as may be indicated in the notes thereto or, in the case of the
unaudited statements, as permitted by Form 10-QSB of the Commission) and fairly
present (subject, in the case of the unaudited statements, to normal, recurring
audit adjustments) the consolidated financial position of the Buyer as of and at
the dates thereof and the consolidated results of their operations and cash
flows for the periods then ended.
(j) Disclosure. The representations and warranties contained in this ss.4
do not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements and information
contained in this ss.4 not misleading.
5. Pre-Closing Covenants. The Parties agree as follows with respect to the
period between the execution of this Agreement and the Closing.
(a) General. Each of the Parties will use its reasonable best efforts to
take all action and to do all things necessary in order to consummate and make
effective the transactions contemplated by this Agreement (including
satisfaction, but not waiver, of the Closing conditions set forth in ss.7
below).
(b) Notices and Consents. The Seller will give any notices to third
parties, and the Seller will use its best efforts to obtain any third party
consents, that the Buyer may request in connection with the matters referred to
in ss.3(c) above. Each of the Parties will give any notices to, make any filings
with, and use its best efforts to obtain any authorizations, consents, and
approvals of governments and governmental agencies in connection with the
matters referred to in ss.3(c) and ss.4(c) above.
(c) Full Access to Buyer. The Seller will permit representatives of the
Buyer to have full access at all reasonable times, and in a manner so as not to
interfere with the normal business operations of Seller, to all premises,
properties, personnel, books, records (including Tax records), contracts, and
documents of or pertaining to OpTest.
(d) Full Access to Seller. The Buyer will permit representatives of the
Seller to have full access at all reasonable times, and in a manner so as not to
interfere with the normal business operations of the Buyer, to all premises,
books, records (including Tax records), contracts, and documents of the Buyer.
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(e) Notice of Developments. Each Party will give prompt written notice to
the other Party of any material adverse development causing a breach of any of
its own representations and warranties in ss.3 and ss.4 above. No disclosure by
any Party pursuant to this ss.5(e), however, shall be deemed to prevent or cure
any misrepresentation, breach of warranty, or breach of covenant.
(f) Exclusivity. The Seller will not (i) solicit, initiate, or encourage
the submission of any proposal or offer from any Person relating to the
acquisition of OpTest or the Acquired Assets from Seller (including any
acquisition structured as a merger, consolidation, or share exchange) or (ii)
participate in any discussions or negotiations regarding, furnish any
information with respect to, assist or participate in, or facilitate in any
other manner any effort or attempt by any Person to do or seek any of the
foregoing. The Seller will notify the Buyer immediately if any Person makes any
proposal, offer, inquiry, or contact with respect to any of the foregoing.
(g) Transition Expenditures. The Buyer agrees that certain expenditures
made or to be made by the Seller relating to OpTest relate in whole or in part
to the future benefit, protection and maintenance of the Acquired Assets. Such
expenditures, set forth by type and not by amount on Schedule 5(g) hereto (the
"Transition Expenditures"), will be paid by the Buyer to the Seller at the
Closing, or upon the termination of this Agreement by either party pursuant to
ss.9 below. If Buyer pays any such Transition Expenditures for or on behalf of
Seller then such expenses shall be deducted from the Purchase Price at Closing
as described in ss.2(c).
(h) Operation of Business. The Buyer will not engage in any practice, take
any action, or enter into any transaction outside the Ordinary Course of
Business. Without limiting the generality of the foregoing, the Buyer will not
declare, set aside, or pay any dividend or make any distribution with respect to
its capital stock or redeem, purchase, or otherwise acquire any of its capital
stock (other than in connection with the Buyer's ongoing repurchase program).
The Buyer will keep its business and properties substantially intact, including
its present operations, physical facilities, working conditions, and
relationships with lessors, licensors, suppliers, customers, and employees.
6. Post-Closing Covenants. The Parties agree as follows with respect to the
period following the Closing.
(a) General. In case at any time after the Closing any further action is
necessary or desirable to carry out the purposes of this Agreement, each of the
Parties will take such further action (including the execution and delivery of
such further instruments and documents) as the other Party reasonably may
request, all at the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefor under ss.8 below). The
Seller acknowledges and agrees that from and after the Closing the Buyer will be
entitled to possession of all documents, books, records (including Tax records),
agreements, and financial data of any sort relating to OpTest.
(b) Litigation Support. In the event and for so long as any Party actively
is contesting or defending against any action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand in connection with (i) any
transaction contemplated under this Agreement or (ii) any fact, situation,
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circumstance, status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction on or prior to the Closing Date
involving OpTest, the other Party will cooperate with the contesting or
defending Party and its counsel in the contest or defense, make available its
personnel, and provide such testimony and access to its books and records as
shall be necessary in connection with the contest or defense, all at the sole
cost and expense of the contesting or defending Party (unless the contesting or
defending Party is entitled to indemnification therefor under ss.8 below).
(c) Transition. The Seller will not take any action that is designed or
intended to have the effect of discouraging any lessor, licensor, customer,
supplier, or other business associate from maintaining the same business
relationships with the Buyer and OpTest after the Closing as it maintained with
the Seller prior to the Closing. The Seller will refer all customer inquiries
relating to OpTest to the Buyer from and after the Closing.
(d) Confidentiality. The Seller will treat and hold as such all of the
Confidential Information, refrain from using any of the Confidential Information
except in connection with this Agreement, and deliver promptly to the Buyer or
destroy, at the request and option of the Buyer, all tangible embodiments (and
all copies) of the Confidential Information which are in its possession. In the
event that the Seller is requested or required (by oral question or request for
information or documents in any legal proceeding, interrogatory, subpoena, civil
investigative demand, or similar process) to disclose any Confidential
Information, the Seller will notify the Buyer promptly of the request or
requirement so that the Buyer may seek an appropriate protective order or waive
compliance with the provisions of this ss.6(d). If, in the absence of a
protective order or the receipt of a waiver hereunder, the Seller is, on the
advice of counsel, compelled to disclose any Confidential Information to any
tribunal or else stand liable for contempt, the Seller may disclose the
Confidential Information to the tribunal; provided, however, that the Seller
shall use its best efforts to obtain, at the request of the Buyer, an order or
other assurance that confidential treatment will be accorded to such portion of
the Confidential Information required to be disclosed as the Buyer shall
designate.
(e) Covenant Not to Compete. For a period of five years from and after the
Closing Date, the Seller will not engage directly or indirectly in any business
that is competitive with OpTest; provided, however, that no owner of less than
5% of the outstanding stock of any publicly traded corporation shall be deemed
to engage in any business that is competitive with OpTest solely by reason
thereof. If the final judgment of a court of competent jurisdiction declares
that any term or provision of this ss.6(e) is invalid or unenforceable, the
Parties agree that the court making the determination of invalidity or
unenforceability shall have the power to reduce the scope, duration, or area of
the term or provision, to delete specific words or phrases, or to replace any
invalid or unenforceable term or provision with a term or provision that is
valid and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified after the expiration of the time within which the
judgment may be appealed.
(f) Development Commitment. Buyer will invest a minimum of $1,000,000
during the twelve months following the Closing in the further development of the
OpTest technology being transferred under this Agreement. Any expenditures or
commitments for expenditures made by any third party under the First and Second
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Events shall be credited against Buyer's $1,000,000 development commitment
pursuant to this ss.6(f). If there are any funds left in the development
commitment budget after the First and Second Events, Buyer at its option may
either apply the excess to a third technology transfer event or retain the
balance.
(g) Technology Transfers; Retention of Consultant. The Buyer will use its
best efforts to effect the Technology Transfers, and will not unreasonably
refuse any offer, from any party, to enter a transaction that would constitute a
Technology Transfer. The Buyer hereby agrees to engage the services of Xxxxxxx
X. XxXxxxx as a consultant to assist the Buyer in the identification and
negotiation of potential parties to participate in Technology Transfers. The
terms and conditions of Xx. XxXxxxx'x retention shall be set forth in an
agreement substantially in the form of Exhibit 6(g) hereto (the "Consulting
Agreement"), and shall include compensation for Xx. XxXxxxx'x services at a
mutually agreeable consulting rate and out-of-pocket expense reimbursement.
(h) Piggyback Registration.
(i) If the Buyer proposes to file, at any time on or after the Closing
Date, any registration statement under the Securities Act with respect to
an offering by Buyer for its own account, or an offering for the account of
any shareholder of the Buyer or any group of such shareholders (each, an
"Other Shareholder") (other than a registration statement on Form S-4 or
S-8 or any successor forms or any other forms not available for registering
capital stock for sale to the public), the Buyer shall give written notice
of such proposed filing to the Seller at least 30 days before the
anticipated filing date, and such notice shall describe in detail the
proposed registration and distribution (including whether the offering will
be underwritten and those jurisdictions where registration under the
securities or blue sky laws is intended) and offer the Seller the
opportunity to register the number of shares of Buyer Stock as it may
request. The Buyer shall use its best efforts, within 10 days of the notice
provided for in the preceding sentence, to cause the managing underwriter
or underwriters of a proposed underwritten offering (the "Buyer
Underwriter") to permit the Seller to include such Buyer Stock in such
offering on the same terms and conditions as the securities of the Buyer or
the Other Shareholders included therein, including execution of an
underwriting agreement in customary form.
If the Buyer Underwriter advises the Buyer in writing that in its opinion
the total number or dollar amount of Buyer Stock requested to be included
in such registration exceeds the number or dollar amount of shares of the
Buyer Stock that can be sold in such offering, the Buyer will include in
such offering: (1) first, all shares of Buyer Stock the Buyer proposes to
sell; (2) second, up to the full number or dollar amount of shares of Buyer
Stock requested by the Seller and any Other Shareholders having a
"piggy-back" registration right, to be included to the extent that, in the
opinion of the Buyer Underwriter, such additional shares of Buyer Stock in
excess of the number or total dollar amount of shares of Buyer Stock the
Buyer proposes to sell, can be sold, allocated to the Seller and the Other
Shareholders of the Buyer Stock on a pro-rata basis. For this purpose, the
pro-rata share of the Seller and each Other Shareholder shall be the
percentage determined by dividing the number of shares of Buyer Stock
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requested to be included in such registration by each such holder divided
by the total number of shares of Buyer Stock to be included in such
registration in excess of the shares included by the Buyer.
(ii) Whenever registration of Buyer Stock has been requested by Seller
pursuant to this ss.6(h) and the Buyer Stock is being registered, the Buyer
shall use its best efforts to effect the registration and sale of such
Buyer Stock in accordance with the intended method of distribution thereof
as quickly as practicable, and in connection with any such request, the
Buyer shall, as expeditiously as possible:
(A) prepare and file with the Commission (as promptly as
practicable, but in any event not later than 120 days after receipt of
a request to file a registration statement with respect to Buyer
Stock) a registration statement on any form for which the Buyer then
qualifies or which counsel for the Buyer shall deem appropriate and
which form shall be available for the sale of such Buyer Stock in
accordance with the intended method of distribution thereof, and use
its best efforts to cause such registration statement to become
effective; provided, however, that before filing a registration
statement or prospectus or any amendments or supplements thereto, the
Buyer shall (A) provide Seller with an adequate and appropriate
opportunity to comment upon the disclosure in the registration
statement relating to Seller and each prospectus included therein (and
each amendment or supplement thereto) to be filed with the Commission,
and (B) notify Seller of any stop order issued or threatened by the
Commission and take reasonable action to prevent the entry of such
stop order or to remove it if entered;
(B) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period of not less than 24 months or such
shorter period which will terminate when a sufficient number of shares
of Buyer Stock covered by such registration statement have been sold
so that the remaining shares of Buyer Stock may be sold at one time
pursuant to Rule 144 (but not before the expiration of the 90-day
period referred to in Section 4(3) of the Securities Act and Rule 174
thereunder, if applicable;
(C) as soon as reasonably possible, furnish to each seller of
Buyer Stock, prior to filing a registration statement, copies of such
registration statement as it is proposed to be filed, and thereafter
such number of copies of such registration statement, each amendment
and supplement thereto (in each case including all exhibits thereto),
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as each such seller
may reasonably request in order to facilitate the disposition of the
Buyer Stock owned by such seller;
(D) use reasonable efforts to register or qualify such Buyer
Stock under such other securities or blue sky laws of such
jurisdictions as any seller of Buyer Stock reasonably requests, and to
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continue such qualification in effect in such jurisdictions until the
earlier of (i) 24 months from the date of initial effectiveness of the
registration statement, or (ii) the date that any shares remaining
unsold may be sold pursuant to Rule 144, or (iii)the date that all of
such Buyer Stock is sold. The Buyer shall not be obligated to effect,
or take any action to effect, any such registration or qualification
in any particular jurisdiction in which the Buyer would be required to
execute a general consent to service of process in effecting such
registration or qualification unless the Buyer is already subject to
service in such jurisdiction and except as may be required by the
Securities Act or applicable rules or regulations thereunder; and
(E) notify each seller of Buyer Stock at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any
event as a result of which, the prospectus included in such
registration statement contains an untrue statement of a material fact
or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances under which they were made, and the Buyer shall
promptly prepare a supplement or amendment to such prospectus and
furnish to each seller a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that,
after delivery to the purchasers of such Buyer Stock, such prospectus
shall not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances under which they were made.
(F) use reasonable efforts to take all other steps necessary to
effect the registration of the Buyer Stock contemplated hereby and
provide reasonable cooperation with each seller of Buyer Stock to
facilitate the disposition of Buyer Stock pursuant thereto.
(iii) Buyer will pay all costs and expenses incident to the
performance of its obligation under this ss.6(h), including the fees and
expenses of its counsel, the fees and expenses of its accountants, all
other costs and expenses incident to the preparation, printing and filing
under the Securities Act of any such registration statement, each
prospectus and all amendments and supplement thereto, the costs incurred in
connection with the qualification of the Buyer Stock under the laws of
various jurisdictions (including fees and disbursements of its counsel),
and the cost of furnishing to the sellers under the registration statement
of each preliminary prospectus, the final prospectus and each amendment and
supplement thereto, all expenses incident to the delivery of the Buyer
Stock to any underwriter or underwriters, but not any underwriting
commission charged to Seller.
(i) Preservation of Exemptions. Notwithstanding the availability of the
piggyback registration rights set forth in ss.6(h), Buyer acknowledges that in
the event the registration statement referred to therein does not become
effective, or in the event there shall be a default in the undertaking by the
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Buyer of its obligations pursuant to ss.6(h), the Seller may be required to rely
upon an exemption under the Securities Act for the purpose of disposing of the
Buyer Stock received pursuant to this Agreement. Accordingly, with a view to
making available to the Seller the benefits of Rule 144 promulgated under the
Securities Act, and any other rule or regulation of the Commission that may at
any time permit the Seller to sell such Buyer Stock to the public without
registration, the Buyer shall (a) make and keep "public information" available,
as such terms are contemplated and defined in Rule 144, (b) file with the
Commission in a timely manner all reports and other documents required of the
Buyer under the Securities Act (if any) and the Exchange Act, and (c) furnish to
the Seller, so long as the Seller owns any of the Buyer Stock contemplated
hereby, forthwith upon request (I) a written statement by the Buyer that it has
complied with the reporting requirements necessary to enable the Seller to sell
such Buyer Stock pursuant to Rule 144, (ii) a copy of the most recent annual or
quarterly report of the Buyer, and (iii) such other reports and documents so
filed by the Buyer as may be reasonably requested in availing the Seller of any
rule or regulation of the Commission permitting the selling of securities
without registration.
(j) Covenant to Sublease. The Buyer and the Seller will execute a sublease
in substantially the form set forth in Exhibit 2(f), and the Seller will use its
best efforts to secure the landlord approval required by such sublease. The
Buyer will not take possession of the partial leasehold transferred hereby, or
assert any right to do so, unless and until such sublease has been executed by
the Buyer, the Seller and the landlord pursuant to the terms thereof.
(k) Covenant to Protect Intellectual Property. For a period equal to the
shorter of one year from the Closing Date or that date that all of the shares
held in escrow pursuant to ss.2(c) are released from the escrow, the Buyer will
take any action reasonably required or advisable to secure, maintain, protect
and defend the Intellectual Property relating to or included in the Acquired
Assets. At any time subsequent to the Closing Date, Buyer shall pursue legal
action against third party infringers of the Intellectual Property, provided
that at any time subsequent to the release of the shares held in escrow pursuant
to ss.2(c), Buyer shall be excused from taking such action if in the reasonable
judgement of Buyer's Board of Directors the costs associated with such action
exceed the benefits associated. If Buyer fails to take such actions, in addition
to Seller's other remedies, Seller may secure, maintain, protect and defend such
Intellectual Property at Seller's own expense. In addition, if Buyer fails to,
or determines that it will not, secure, maintain, protect or defend any
Intellectual Property, Buyer shall give Seller prior written notice of such fact
in a manner such that Seller will have adequate time to secure, maintain,
protect or defend such Intellectual Property.
7. Conditions to Obligation to Close.
----------------------------------
(a) Conditions to Obligation of the Buyer. The obligation of the Buyer to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth inss.3 above shall be
true and correct in all material respects at and as of the Closing Date;
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(ii) the Seller shall have performed and complied with all of its
covenants hereunder in all material respects
through the Closing;
(iii) the Seller shall have procured all of the third party consents
specified inss.5(b) above;
(iv) no action, suit, or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling, or charge would
(A) prevent consummation of any of the transactions contemplated by this
Agreement, (B) cause any of the transactions contemplated by this Agreement
to be rescinded following consummation, and (C) affect adversely the right
of the Buyer to own the Acquired Assets and to operate the OpTest
businesses of the Seller (and no such injunction, judgment, order, decree,
ruling, or charge shall be in effect);
(v) the Seller shall have delivered to Buyer all items required to be
delivered under ss.2(e) above, and all actions to be taken by the Seller in
connection with consummation of the transactions contemplated hereby and
all certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably satisfactory
in form and substance to the Buyer; and
(vi) the Seller shall have delivered to the Buyer a certificate to the
effect that each of the conditions specified above in ss.7(a)(i)-(v) is
satisfied in all respects.
The Buyer may waive any condition specified in this ss.7(a) if it executes a
writing so stating at or prior to the Closing.
(b) Conditions to Obligation of the Seller. The obligation of the Seller to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth inss.4 above shall be
true and correct in all material respects at and as of the Closing Date;
(ii) the Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing; (iii) the
Buyer shall have delivered to Seller and the Escrow Agent all items
required to be delivered under ss.2(e) above, and all actions to be taken
by the Buyer in connection with consummation of the transactions
contemplated hereby and all certificates, opinions, instruments, and other
documents required to effect the transactions contemplated hereby will be
satisfactory in form and substance to the Seller; and
(iii) the Buyer shall have delivered to the Seller a certificate to
the effect that each of the conditions specified above in ss.7(b)(i)-(iii)
is satisfied in all respects.
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(iv) the landlord shall have consented to the transfer of the partial
leasehold set forth in Schedule 1.1(a), in accordance with the terms of the
sublease attached as Exhibit 2(f).
The Seller may waive any condition specified in this ss.7(b) if it executes a
writing so stating at or prior to the Closing.
8. Remedies for Breaches of This Agreement.
(a) Survival of Representations and Warranties. All of the representations
and warranties of the Buyer and the Seller contained in this Agreement shall
survive the Closing (even if the damaged Party knew or had reason to know of any
misrepresentation or breach of warranty at the time of Closing) and continue in
full force and for a period of one year thereafter (subject to any applicable
statutes of limitations).
(b) Indemnification Provisions for Benefit of the Buyer. Seller shall
indemnify Buyer as set forth below, provided, however, that any indemnification
hereunder shall be satisfied first by the return to the Buyer by the Escrow
Agent of any Buyer Stock not released to the Seller under the terms of this
Agreement and the Escrow Agreement. Such Buyer Stock shall be valued at the
greater of (x) the average closing price quoted on the Nasdaq or other
applicable trading system for he fifteen trading days prior to the Buyer giving
notice of such indemnification claim to Seller pursuant to ss.10(g), and (y) the
Conversion Price; and the Seller shall make no payment for indemnification under
this ss.8(b) until after such release of Buyer Stock is effectuated and
accounted for.
(i) In the event the Seller breaches (or in the event any third party
alleges facts that, if true, would mean the Seller has breached) any of its
representations, warranties, and covenants contained in this Agreement,
and, if there is an applicable survival period pursuant to ss.8(a) above,
provided that the Buyer makes a written claim for indemnification against
the Seller pursuant to ss.10(g) below within such survival period, then the
Seller agrees to indemnify the Buyer from and against the entirety of any
Adverse Consequences the Buyer may suffer through and after the date of the
claim for indemnification (including any Adverse Consequences the Buyer may
suffer after the end of any applicable survival period) resulting from,
arising out of, relating to, in the nature of, or caused by the breach (or
the alleged breach); provided, however, that the Seller shall not have any
obligation to indemnify the Buyer from and against any Adverse Consequences
resulting from, arising out of, relating to, in the nature of, or caused by
the breach (or alleged breach) of any representation or warranty of the
Seller contained in ss.3(f)-(i) and ss.3(l)-(w) above until the Buyer has
suffered Adverse Consequences by reason of all such breaches (or alleged
breaches) in excess of a $25,000 aggregate threshold (at which point the
Seller will be obligated to indemnify the Buyer from and against all such
Adverse Consequences relating back to the first dollar).
(ii) The Seller agrees to indemnify the Buyer from and against the
entirety of any Adverse Consequences the Buyer may suffer resulting from,
arising out of, relating to, in the nature of, or caused by:
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(A) any Liability of the Seller which is not an Assumed Liability
(including any Liability of the Seller that becomes a Liability of the
Buyer under any bulk transfer law of any jurisdiction, under any
common law doctrine of de facto merger or successor liability, or
otherwise by operation of law);
(B) any Liability of the Seller for unpaid Taxes with respect to
any Tax year or portion thereof ending on or before the Closing Date
(or for any Tax year beginning before and ending after the Closing
Date to the extent allocable to the portion of such period beginning
before and ending on the Closing Date), or
(C) any Liability of the Seller for the unpaid Taxes of any
Person (including the Seller and its Subsidiaries) under Treas.
Reg.ss.1.1502-6 (or any similar provision of state, local, or foreign
law), as a transferee or successor, by contract, or otherwise.
(c) Indemnification Provisions for Benefit of the Seller.
(i) In the event the Buyer breaches (or in the event any third party
alleges facts that, if true, would mean the Buyer has breached) any of its
representations, warranties, and covenants contained in this Agreement,
and, if there is an applicable survival period pursuant to ss.8(a) above,
provided that the Seller makes a written claim for indemnification against
the Buyer pursuant to ss.10(g) below within such survival period, then the
Buyer agrees to indemnify the Seller from and against the entirety of any
Adverse Consequences the Seller may suffer through and after the date of
the claim for indemnification (including any Adverse Consequences the
Seller may suffer after the end of any applicable survival period)
resulting from, arising out of, relating to, in the nature of, or caused by
the breach (or the alleged breach); provided, however, that the Buyer shall
not have any obligation to indemnify the Seller from and against any
Adverse Consequences resulting from, arising out of, relating to, in the
nature of, or caused by the breach (or alleged breach) of any
representation or warranty of the Buyer until the Seller has suffered
Adverse Consequences by reason of all such breaches (or alleged breaches)
in excess of a $25,000 aggregate threshold (at which point the Buyer will
be obligated to indemnify the Seller from and against all such Adverse
Consequences relating back to the first dollar).
(ii) The Buyer agrees to indemnify the Seller from and against the
entirety of any Adverse Consequences the Seller may suffer resulting from,
arising out of, relating to, in the nature of, or caused by any Assumed
Liability.
(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the "Indemnified
Party") with respect to any matter (a "Third Party Claim") which may give
rise to a claim for indemnification against the other Party (the
"Indemnifying Party") under this ss.8, then the Indemnified Party shall
promptly notify the Indemnifying Party thereof in writing; provided,
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however, that no delay on the part of the Indemnified Party in notifying
the Indemnifying Party shall relieve the Indemnifying Party from any
obligation hereunder unless (and then solely to the extent) the
Indemnifying Party thereby is prejudiced.
(ii) The Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its choice
reasonably satisfactory to the Indemnified Party so long as (A) the
Indemnifying Party notifies the Indemnified Party in writing within 15 days
after the Indemnified Party has given notice of the Third Party Claim that
the Indemnifying Party will indemnify the Indemnified Party from and
against the entirety of any Adverse Consequences the Indemnified Party may
suffer resulting from, arising out of, relating to, in the nature of, or
caused by the Third Party Claim, (B) the Indemnifying Party provides the
Indemnified Party with evidence reasonably acceptable to the Indemnified
Party that the Indemnifying Party will have the financial resources to
defend against the Third Party Claim and fulfill its indemnification
obligations hereunder, (C) the Third Party Claim involves only money
damages and does not seek an injunction or other equitable relief, (D)
settlement of, or an adverse judgment with respect to, the Third Party
Claim is not, in the good faith judgment of the Indemnified Party, likely
to establish a precedential custom or practice materially adverse to the
continuing business interests of the Indemnified Party, and (E) the
Indemnifying Party conducts the defense of the Third Party Claim actively
and diligently.
(iii) So long as the Indemnifying Party is conducting the defense of
the Third Party Claim in accordance with ss.8(d)(ii) above, (A) the
Indemnified Party may retain separate co-counsel at its sole cost and
expense and participate in the defense of the Third Party Claim, (B) the
Indemnified Party will not consent to the entry of any judgment or enter
into any settlement with respect to the Third Party Claim without the prior
written consent of the Indemnifying Party (not to be withheld
unreasonably), and (C) the Indemnifying Party will not consent to the entry
of any judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of the Indemnified Party (not
to be withheld unreasonably).
(iv) In the event any of the conditions in ss.8(d)(ii) above is or
becomes unsatisfied, however, (A) the Indemnified Party may defend against,
and consent to the entry of any judgment or enter into any settlement with
respect to, the Third Party Claim in any manner it reasonably may deem
appropriate (and the Indemnified Party need not consult with, or obtain any
consent from, the Indemnifying Party in connection therewith), (B) the
Indemnifying Party will reimburse the Indemnified Party promptly and
periodically for the costs of defending against the Third Party Claim
(including reasonable attorneys' fees and expenses), and (C) the
Indemnifying Party will remain responsible for any Adverse Consequences the
Indemnified Party may suffer resulting from, arising out of, relating to,
in the nature of, or caused by the Third Party Claim to the fullest extent
provided in this ss.8.
(e) Determination of Adverse Consequences. The Parties shall take into
account the time cost of money (using the Applicable Rate as the discount rate)
in determining Adverse Consequences for purposes of this ss.8. All
indemnification payments under this ss.8 shall be deemed adjustments to the
Purchase Price.
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(f) Limitation on Indemnification. Notwithstanding anything to the contrary
contained herein, in no case shall Seller's aggregate indemnification
obligations under this ss.8 exceed the Purchase Price.
(g) Other Indemnification Provisions. The foregoing indemnification
provisions are in addition to, and not in derogation of, any statutory,
equitable, or common law remedy any Party may have for breach of representation,
warranty, or covenant.
9. Termination.
(a) Termination of Agreement. Certain of the Parties may terminate this
Agreement as provided below:
(i) the Buyer and the Seller may terminate this Agreement by mutual
written consent at any time prior to the Closing;
(ii) the Buyer may terminate this Agreement by giving written notice
to the Seller at any time prior to the Closing (A) in the event the Seller
has breached any material representation, warranty, or covenant contained
in this Agreement in any material respect, the Buyer has notified the
Seller of the breach, and the breach has continued without cure for a
period of 20 days after the notice of breach or (B) if the Closing shall
not have occurred on or before January 31, 2001, by reason of the failure
of any condition precedent under ss.7(a) hereof (unless the failure results
primarily from the Buyer itself breaching any representation, warranty, or
covenant contained in this Agreement); and
(iii) the Seller may terminate this Agreement by giving written notice
to the Buyer at any time prior to the Closing (A) in the event the Buyer
has breached any material representation, warranty, or covenant contained
in this Agreement in any material respect, the Seller has notified the
Buyer of the breach, and the breach has continued without cure for a period
of 20 days after the notice of breach or (B) if the Closing shall not have
occurred on or before January 31, 2001, by reason of the failure of any
condition precedent under ss.7(b) hereof (unless the failure results
primarily from the Seller itself breaching any representation, warranty, or
covenant contained in this Agreement).
(b) Effect of Termination. . If any Party terminates this Agreement
pursuant to ss.9(a) above, all rights and obligations of the Parties hereunder
shall terminate without any Liability of any Party to the other Party, except
for any Liability of any Party then in breach, and except for any Liability owed
by the Buyer to the Seller for the Transition Expenditures as provided in
ss.5(g) above and Schedule 5(g) hereto.
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10. Miscellaneous.
--------------
(a) Press Releases and Public Announcements. No Party shall issue any press
release or make any public announcement relating to the subject matter of this
Agreement without the prior written approval of the other Party; provided,
however, that any Party may make any public disclosure it believes in good faith
is required by applicable law or any listing or trading agreement concerning its
publicly-traded securities (in which case the disclosing Party will use its best
efforts to advise the other Party prior to making the disclosure, and to ensure
the protection of all Confidential Information to the maximum extent allowed by
such requirements).
(b) No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(c) Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement between the Parties and supersedes any
prior understandings, agreements, or representations by or between the Parties,
written or oral, to the extent they have related in any way to the subject
matter hereof.
(d) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other Party; provided however, that the Buyer may (i) assign any or all
of its rights and interests hereunder to one or more of its Affiliates and (ii)
designate one or more of its Affiliates to perform its obligations hereunder (in
any or all of which cases the Buyer nonetheless shall remain responsible for the
performance of all of its obligations hereunder).
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(f) Headings. The section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
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If to the Seller:
DDx, Inc.
0000 Xxxxxxxx, Xxxxx 0-000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. XxXxxxx
Telephone: (000)000-0000
Facsimile: (000) 000-0000
Copy to:
Faegre & Xxxxxx, LLP
0000 Xxxxxxxx Xxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Buyer:
Accelr8 Technology Corporation
000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000)000-0000
Facsimile: (000) 000-0000
Copy to:
Xxxxx X. Xxxxxxxxx
Xxxxxxxxx & Associates, P.C.
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Party
notice in the manner herein set forth.
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(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Colorado without giving effect
to any choice or conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than the State of Colorado.
(i) Amendments and Waivers. No amendment of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by the Buyer and
the Seller. The Seller may consent to any such amendment at any time prior to
the Closing with the prior authorization of its board of directors; provided,
however, that any amendment effected after the board of directors has approved
this Agreement will be subject to the restrictions contained in the applicable
corporation statute. No waiver by any Party of any default, misrepresentation,
or breach of warranty or covenant hereunder, whether intentional or not, shall
be deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
(j) Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(k) Expenses. Each of the Buyer and the Seller will bear its own costs and
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby.
(l) Construction. The Parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation. The Parties intend
that each representation, warranty, and covenant contained herein shall have
independent significance. If any Party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the
Party has not breached shall not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty, or covenant.
(m) Incorporation of Schedules and Exhibits. The Schedules and Exhibits
identified in this Agreement are incorporated herein by reference and made a
part hereof.
(n) Specific Performance. Each of the Parties acknowledges and agrees that
the other Party would be damaged irreparably in the event any of the provisions
of this Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each of the Parties agrees that the other
Party shall be entitled to an injunction or injunctions to prevent breaches of
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the provisions of this Agreement and to enforce specifically this Agreement and
the terms and provisions hereof in any action instituted in any court of the
United States or any state thereof having jurisdiction over the Parties and the
matter, in addition to any other remedy to which it may be entitled, at law or
in equity.
(o) Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of any state or federal court sitting in Denver, Colorado, in any
action or proceeding arising out of or relating to this Agreement and agrees
that all claims in respect of the action or proceeding may be heard and
determined in any such court. Each Party also agrees not to bring any action or
proceeding arising out of or relating to this Agreement in any other court. Each
of the Parties waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety, or other
security that might be required of any other Party with respect thereto. Any
Party may make service on the other Party by sending or delivering a copy of the
process (i) to the Party to be served at the address and in the manner provided
for the giving of notices in ss.10(g) above. Nothing in this ss.10(o), however,
shall affect the right of any Party to serve legal process in any other manner
permitted by law or in equity. Each Party agrees that a final judgment in any
action or proceeding so brought shall be conclusive and may be enforced by suit
on the judgment or in any other manner provided by law or in equity.
(p) Tax Matters. Buyer and Seller shall, on or prior to the Closing Date,
jointly prepare and agree upon a schedule (the "Allocation Schedule") allocating
the Purchase Price and the Assumed Liabilities among the Acquired Assets in
accordance with Treas. Reg. 1.1060-1T (or any comparable provision of state or
local tax law) or any successor provision. Seller and Buyer each agree to report
and file all Tax returns (including amended Tax returns and claims for refund)
consistent with the Allocation Schedule, and shall take no position contrary
thereto or inconsistent therewith (including, without limitation, in any audits
or examinations by any taxing authority or any other proceedings). Seller and
Buyer shall cooperate in the filing of any forms (including Form 8594) with
respect to such allocation, including any amendments to such forms required with
respect to any adjustment to the Purchase Price, pursuant to this Agreement.
Notwithstanding any other provisions of this Agreement, the foregoing agreement
shall survive the Closing Date without limitation.
(q) Bulk Transfer Laws. The Buyer acknowledges that the Seller will not
comply with the provisions of any bulk transfer laws of any jurisdiction in
connection with the transactions contemplated by this Agreement.
(r) Confidentiality. Buyer shall keep confidential, using procedures no
less stringent than those used with respect to its own proprietary, confidential
and private information, all Confidential Information except to the extent that
disclosure of such information is required by law. Seller shall maintain as
confidential and shall not use or disclose (except as required by law or as
authorized in writing by Buyer or if the information becomes publicly known
other than through the actions or inactions of Seller) any Confidential
Information or materials directly related to the Acquired Assets. In the event
any party hereto is required by law to disclose any Confidential Information,
such party shall promptly notify each other party in writing, which notification
shall include the nature of the legal requirement and the extent of the required
disclosure, and shall cooperate with each other party to preserve the
confidentiality of such information consistent with applicable law.
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*****
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the
date first above written.
ACCELR8 TECHNOLOGY CORPORATION
By: /s/
------------------------------
Xxxxxx X. Xxxxxx, Chairman
DDx, INC.
By: /s/
------------------------------
Xxxxxxx X. XxXxxxx, President
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