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Exhibit 10.26
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made and entered into as of February 12,
1999, by and among Geoworks Corporation, a Delaware corporation (the "Company")
and Xxxxxx.xxx, Inc., a Delaware corporation (the "Purchaser").
The Parties agree as follows:
ARTICLE I - PURCHASE OF ASSETS, ASSIGNMENT AND
ASSUMPTION OF LEASES, EMPLOYEE ARRANGEMENTS
AND STOCK PURCHASE
1.1 PURCHASE OF TANGIBLE ASSETS AND ASSIGNMENT AND ASSUMPTION OF LEASES AT
CLOSING
(a) Subject to the terms and conditions of this Agreement, at the
Closing (as defined below), the Company hereby agrees to sell, assign, transfer,
convey and deliver to the Purchaser, and the Purchaser hereby agrees to
purchase, acquire and accept from the Company, all of the Company's right, title
and interest in and to all of the tangible assets of every type and description
of the Company located at the Company's office at 0000 X.X. 00xx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxxxx (the "Seattle Office"), whether real, personal or
mixed, and whether or not reflected on the books and records of the Company, at
a purchase price of $250,000 (the "Tangible Asset Purchase Price"). Such assets
shall be free and clear of all liens, mortgages, pledges, deeds of trust,
security interests, charges, encumbrances, and other adverse claims or interests
of any kind ("Encumbrances"). The assets being purchased by Purchaser pursuant
to this Agreement are collectively referred to herein as the "Acquired Tangible
Assets." The Acquired Tangible Assets include, without limitation, all of the
Company's right, title and interest in, to and under all equipment, machinery,
goods, computer hardware, office furniture, fixtures, office materials and
supplies, tooling, spare parts, leasehold improvements and other tangible
personal property, including, without limitation, the equipment described in
Exhibit A, and all rights to the warranties received from the manufacturers and
distributors of all such equipment and personal property and any related claims,
credits, rights of recovery and setoffs with respect to such equipment and
personal property.
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(b) The Company will not transfer to the Purchaser and the Purchaser
will not acquire the assets identified on Exhibit B attached hereto (the
"Excluded Assets"), which are specifically excluded from the Acquired Tangible
Assets and which will remain the Company's property.
(c) Subject to the terms and conditions hereof, at the Closing (as
defined below), the Purchaser agrees to assume and accept from the Company all
of the Company's right, title and interest in and to the leases of the Company
listed on Exhibit C attached hereto (the "Leases") and the Company agrees to
sell, assign, transfer, convey and deliver to Purchaser the Leases. The
Purchaser will assume from the Company the liabilities and obligations of the
Company under the Leases attributable to the period after the Closing.
(d) The Purchaser will not assume from the Company any liabilities
other than the liabilities of the Company under the Leases attributable to the
period after the Closing. All other liabilities shall remain obligations and
liabilities of the Company.
(e) The Tangible Asset Purchase Price shall be allocated among the
Acquired Tangible Assets according to a purchase price allocation statement (the
"Allocation") to be agreed upon by the parties within 15 business days after the
Closing Date (as defined below), attached as Exhibit D. The Allocation will be
binding on the Purchaser and the Company for all federal, state and local tax
purposes. The parties agree to report the Allocation consistently therewith on
Internal Revenue Service Form 8594 and to attach Form 8594 to their respective
federal income tax forms for the 1999 tax year. The failure to comply with the
reporting obligations set forth in this Section 1.1(e) will constitute a
material breach of this Agreement.
(f) All title, recording and transfer fees payable or assessable in
connection with the sale and transfers contemplated by this Agreement, together
with any and all sales taxes payable or assessable in connection with the sale
and transfers contemplated by this Agreement, if any, will be borne by the
Company. All compliance with bulk sale laws of the state of Washington arising
in connection with sales and transfers contemplated by this Agreement, if any,
shall be borne by the Purchaser.
(g) Notwithstanding anything in this Agreement to the contrary, this
Agreement will not constitute an agreement to assign any Lease or any claim,
right or benefit arising thereunder or resulting therefrom if the agreement to
assign or attempt to assign, without the consent of a third party, would
constitute a breach thereof or in any way adversely affect the rights of the
Company or the Purchaser thereunder. Until such consent is obtained, or if an
attempted assignment thereof would be
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ineffective or would adversely affect the rights of the Company or the Purchaser
thereunder so that the Purchaser would not in fact receive all such rights, the
Purchaser and the Company will cooperate with each other in any arrangement
designed to provide for the Purchaser the benefits of any such claim, contract,
license or other agreement. Any transfer or assignment to the Purchaser by the
Company of any contract or agreement that requires the consent or approval of
any third party will, without reducing or adversely affecting the obligations of
the Company to transfer or assign such Lease set forth in this Article I or the
representations of the Company set forth in Article III, be made subject to such
consent or approval being obtained.
1.2 OFFERS OF EMPLOYMENT
Subject to the terms and conditions hereof, prior to the Closing, the
Purchaser will offer to each employee of the Company listed on Exhibit E
attached hereto (collectively, the "Seattle Office Employees") a position with
the Purchaser that includes compensation and benefit arrangements which, when
taken together, are at or above such Seattle Office Employee's employment
arrangement with the Company.
1.3 AUTHORIZATION AND SALE OF THE SHARES
Subject to the terms and conditions hereof, at the Closing, the Company
will issue and sell to the Purchaser, and the Purchaser will purchase from the
Company, 1,219,512 shares (the "Shares") of the Company's common stock, par
value $.001 per share (the "Common Stock") at a purchase price of $4.10 per
share for a total purchase price of $5,000,000 (the "Share Purchase Price").
ARTICLE II - THE CLOSING
2.1 CLOSING DATE
The consummation of the purchase and sale of the Shares hereunder (the
"Closing") shall be held at the offices of Xxxxxxx Coie LLP, 0000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000 at 10:00 a.m., on February 12, 1999 or at such other
time and place as the Company and the Purchaser mutually agree upon in writing
(the "Closing Date").
2.2 DELIVERY
At the Closing, the Purchaser shall deliver payment of the Share
Purchase Price for the Shares and the Tangible Asset Purchase Price for the
Acquired Tangible Assets by wire transfer. Within three business days of the
Closing Date, the Company shall cause to be delivered to the Purchaser
certificate(s) representing the Shares.
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2.3 DOCUMENTS TO BE DELIVERED BY THE COMPANY
The Company shall deliver to the Purchaser at the Closing:
(a) a certificate executed by the President of the Company certifying
that the representations and warranties made by the Company in Article III
hereof are true and correct as of the Closing and that the Company has performed
all obligations and conditions herein required to be performed or observed by it
on or prior to the Closing;
(b) an opinion of counsel substantially in the form attached as
Exhibit F hereto; and
(c) any consent to assignment by third parties to any Lease, if
required by the terms of such Lease, except for such consents to be obtained
after the Closing as set forth on Exhibit C.
2.4 DOCUMENTS TO BE DELIVERED BY THE COMPANY AND THE PURCHASER
The Company and the Purchaser shall each execute and deliver to each
other:
(a) the Xxxx of Sale substantially in the form attached as Exhibit G
hereto;
(b) the Assignment and Assumption Agreement substantially in the form
attached as Exhibit H hereto; and
(c) the Cross-Receipt substantially in the form attached as Exhibit I
hereto.
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF
THE COMPANY
The Company hereby represents and warrants to the Purchaser as of the
date of this Agreement as follows:
3.1 ORGANIZATION
The Company is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware. The Company has all
requisite corporate power and authority to own, operate and lease its property
and to carry on its business as now being conducted. The Company is duly
qualified as a foreign corporation to do business and is in good standing in
each jurisdiction in which the character of properties occupied, owned or held
under lease by the Company, or the nature of the business conducted by the
Company, makes such qualification
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necessary, except where the failure to be so qualified would not have a material
adverse effect on the business, operations, assets, liabilities or condition
(financial or otherwise) of the Company (a "Material Adverse Effect").
3.2 VALID ISSUANCE OF COMMON STOCK
The Shares, when issued and paid for in accordance with this Agreement,
will be duly authorized, validly issued, fully paid, non-assessable, free of
pre-emptive rights and issued in compliance with all applicable federal or state
securities laws.
3.3 AUTHORITY; NO CONFLICT; REQUIRED FILINGS AND CONSENTS
(a) The Company has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated by
this Agreement. The execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement have been duly
authorized by all necessary corporate action on the part of the Company. This
Agreement has been duly executed and delivered by the Company, and constitutes
the valid and binding obligation of the Company, enforceable in accordance with
its terms, except to the extent that enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
(b) The execution and delivery by the Company of this Agreement does
not, and consummation of the transactions contemplated by this Agreement will
not, (i) conflict with, or result in any violation or breach of any provision
of, the Certificate of Incorporation or Bylaws of the Company, (ii) result in
any violation or breach of, or constitute (with or without notice or lapse of
time, or both) a default (or give rise to a right of termination, cancellation
or acceleration of any obligation or loss of any material benefit) under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, contract or other agreement, instrument or obligation to which the
Company is a party or by which any of its properties or assets may be bound, or
(iii) to the Company's knowledge, conflict or violate any permit, concession,
franchise, license, judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to the Company or any of its properties or assets, except
in the case of (ii) for any such conflicts, violations, defaults, terminations,
cancellations or accelerations which would not have a Material Adverse Effect on
the Company and its subsidiaries, taken as a whole.
(c) No consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other
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governmental authority or instrumentality ("Governmental Entity") is required by
or with respect to the Company in connection with the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby,
except for such consents, approvals, orders, authorizations, registrations,
declarations and filings as may be required under applicable federal and state
securities laws.
3.4 COMMISSION FILINGS; NASDAQ LISTING
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") all forms, reports and documents required to be filed with
the Commission by the Company pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), since June 22, 1994 (collectively, the "Company
Commission Reports"). The Company Commission Reports (i) comply in all material
respects with the applicable requirements of the Exchange Act, and (ii) do 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 the light of the circumstances under which they were made, not
misleading.
(b) The Common Stock is listed on the Nasdaq National Market.
3.5 CORPORATE CHARTER
The Company previously has furnished to the Purchaser true and complete
copies of the Company's Delaware Certificate of Incorporation and Bylaws as
currently in effect, including all amendments thereto.
3.6 STOCKHOLDERS CONSENT
No consent or approval of the stockholders of the Company is required or
necessary for the Company to enter into this Agreement or to consummate the
transactions contemplated hereby and thereby.
3.7 SEATTLE OFFICE CONTRACTS
(a) Exhibit C contains a true and complete list of all contracts,
agreements, arrangements and understandings, oral or written, to which the
Company is a party or by which the Company is bound, that relate to or involve
the Seattle Office.
(b) The Leases are valid, binding and enforceable in accordance with
their terms against each party thereto and are in full force and effect; the
Company has performed all obligations imposed on it thereunder and neither the
Company nor, to the knowledge of the Company, any other party thereto is in
default thereunder, nor is
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there any event that with notice or lapse of time, or both, would constitute a
default thereunder. True and complete copies of each Lease have been delivered
to the Purchaser. The Company has not received notice, nor is the Company
otherwise aware, that any party to any such Lease intends to cancel, terminate
or refuse to renew such Lease or to exercise or decline to exercise any option
or right thereunder.
3.8 NO IMPEDIMENTS TO HIRING SEATTLE OFFICE EMPLOYEES
The Company has not made statements or counter proposals to any Seattle
Office Employee designed to impede the Purchaser's hiring of such employee. The
Company has:
(a) encouraged each Seattle Office Employee to give full and
appropriate consideration to the Purchaser's offer of employment;
(b) recommended to each Seattle Office Employee that he or she accept
the Purchaser's offer of employment; and
(c) advised each Seattle Office Employee of their greater long-term
employment prospects in the Seattle job market by accepting the Purchaser's
offer of employment.
3.9 NO ENCUMBRANCES
The Company has taken all actions with respect to the transactions
contemplated by this Agreement that are necessary or required to transfer the
Acquired Tangible Assets and the Leases to the Purchaser free and clear of all
Encumbrances. The Company owns all right, title and interest in and to the
Acquired Tangible Assets, free and clear of all Encumbrances of any other person
or entity. The execution and delivery of this Agreement will convey, transfer
and assign to the Purchaser good and marketable title to the Acquired Tangible
Assets and associated proprietary rights free and clear of all Encumbrances of
any person or entity.
3.10 IRREVOCABLE INSTRUCTIONS TO ISSUE CERTIFICATES
The Company has delivered to its transfer agent irrevocable instructions
to issue certificates representing the Shares to the Purchaser within three
business days of the Closing Date.
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ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF
THE PURCHASER
The Purchaser hereby represents and warrants to the Company as of the
date of this Agreement as follows:
4.1 AUTHORITY
The Purchaser has all requisite legal and corporate power to enter into
this Agreement, to purchase the Shares hereunder, and to perform its obligations
under the terms of this Agreement.
4.2 AUTHORIZATION
All corporate action on the part of the Purchaser necessary for the
purchase of the Shares and the performance of the Purchaser's obligations
hereunder has been taken. This Agreement when executed and delivered by the
Purchaser will constitute a valid and legally binding obligation of the
Purchaser, enforceable in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting the enforcement of creditors'
rights generally and by general principles of equity.
4.3 PURCHASE ENTIRELY FOR OWN ACCOUNT
This Agreement is made with the Purchaser in reliance upon the
Purchaser's representation to the Company, which by the Purchaser's execution of
this Agreement the Purchaser hereby confirms, that the Shares to be acquired by
the Purchaser will be acquired for investment for the Purchaser's own account,
not as a nominee or agent, and not with a view to the resale or distribution of
any part thereof, and that the Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the same. By executing
this Agreement, the Purchaser further represents that the Purchaser does not
presently have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participation to such person or to any third
person, with respect to any of the Shares. The Purchaser has not been formed for
the specific purpose of acquiring the Shares.
4.4 INVESTMENT EXPERIENCE
The Purchaser is an "accredited investor" as defined in Rule 501(a)
under the Securities Act of 1933, as amended (the "Securities Act"). Purchaser
is aware of the Company's business affairs and financial condition and has had
access to and has acquired sufficient information about the Company to reach an
informed and
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knowledgeable decision to acquire the Shares. The Purchaser has such business
and financial experience as is required to give it the capacity to protect its
own interests in connection with the purchase of the Shares. The Purchaser is
not a "broker" or a "dealer" as defined in the Exchange Act.
4.5 RESTRICTED SECURITIES
The Purchaser understands that the Shares are characterized as
"restricted securities" under applicable U.S. federal and state securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that, pursuant to these laws and applicable
regulations, the Purchaser must hold the Shares indefinitely unless they are
registered with the Commission and qualified by state authorities, or an
exemption from such registration and qualification requirements is available.
4.6 LEGENDS
The Purchaser understands that the Shares, and any securities issued in
respect thereof or exchanged therefor, will bear a legend substantially similar
to the following:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE LAW, AND NO
INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR
OTHERWISE TRANSFERRED UNLESS (a) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT COVERING ANY SUCH TRANSACTION INVOLVING THESE
SECURITIES OR (b) THE COMPANY RECEIVES AN OPINION OF LEGAL COUNSEL,
ACCEPTABLE TO THE COMPANY, FOR THE HOLDER OF THESE SECURITIES STATING
THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION, OR THE COMPANY
OTHERWISE SATISFIES ITSELF THAT SUCH TRANSACTION IS EXEMPT FROM
REGISTRATION.
ARTICLE V - COVENANTS
5.1 SHARES LISTED ON THE NASDAQ NATIONAL MARKET
By or before the time the Shares shall become publicly tradeable
pursuant to the applicable U.S. securities laws, the Company shall take all
reasonable actions to
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list the Shares on the Nasdaq National Market, provided that the Company shall
not be obligated to register the Shares under the Securities Act.
5.2 NO IMPEDIMENTS TO HIRING SEATTLE OFFICE EMPLOYEES
After the Closing, the Company shall not to make statements or counter
proposals to any Seattle Office Employee designed to impede the Purchaser's
hiring or retention of such employee.
ARTICLE VI - INDEMNIFICATION
6.1 INDEMNIFICATION BY THE COMPANY
The Company will defend, indemnify and hold harmless the Purchaser and
its officers, directors and stockholders from and against any claims, losses,
liabilities, actions, damages, costs and expenses (including reasonable
attorney's fees) incurred by the Purchaser or its officers, directors or
stockholders arising out of or in connection with:
(a) any breach of the representations or warranties made by the
Company under this Agreement or in any certificate, agreement or other
instrument delivered by the Company pursuant to this Agreement;
(b) any failure by the Company to perform any of its covenants or
agreements contained in this Agreement or in any certificate, agreement or other
instrument delivered by the Company pursuant to this Agreement; or
(c) any Seattle Office Employee who does not accept the Purchaser's
offer of employment.
The maximum aggregate liability for indemnification under this Section 6.1 shall
be limited to $5,250,000.
6.2 INDEMNIFICATION BY THE PURCHASER
The Purchaser will defend, indemnify and hold harmless the Company and
its officers, directors and stockholders from and against any claims, losses,
liabilities, actions, damages, costs and expenses (including reasonable
attorney's fees) incurred by the Company or its officers, directors or
stockholders arising out of or in connection with:
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(a) any breach of the representations or warranties made by the
Purchaser under this Agreement or in any agreement or other instrument delivered
by the Purchaser pursuant to this Agreement; or
(b) any failure by the Purchaser to perform any of its covenants or
agreements contained in this Agreement or in any agreement or other instrument
delivered by the Purchaser pursuant to this Agreement.
The maximum aggregate liability for indemnification under this Section 6.2 shall
be limited to $5,250,000.
ARTICLE VII - MISCELLANEOUS
7.1 GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Washington applicable to contracts executed in and to
be performed in that state.
7.2 SURVIVAL
The representations, warranties, covenants and agreements made herein
shall survive the closing of the transactions contemplated hereby.
7.3 SUCCESSORS AND ASSIGNS
Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon, the successors, assigns,
heirs, executors and administrators of the parties hereto.
7.4 ENTIRE AGREEMENT; AMENDMENT
This Agreement and the other documents delivered pursuant hereto
constitute the full and entire understanding and agreement among the parties
with regard to the subjects hereof and thereof. Any term of this Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Purchaser.
7.5 NOTICES AND OTHER COMMUNICATIONS
Every notice or other communication required or contemplated by this
Agreement by either party shall be delivered either by (i) personal delivery,
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(ii) postage prepaid return receipt requested registered or certified mail or
the equivalent of registered or certified mail under the laws of the country
where mailed, (iii) nationally recognized overnight courier, such as Federal
Express or UPS, or (iv) facsimile with a confirmation copy sent simultaneously
by postage prepaid, return receipt requested, registered or certified mail, in
each case addressed to the Company or the Purchaser as the case may be at the
following address:
To the Purchaser: Xxxxxx.xxx, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxx
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxxx Xxxx
Facsimile: (000) 000-0000
To the Company: Geoworks Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxx
Xxxxx & Xxxxxx
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
or at such other address as the intended recipient previously shall have
designated by written notice to the other party (with copies to counsel as may
be indicated above). Notice by registered or certified mail shall be effective
on the date it is officially recorded as delivered to the intended recipient by
return receipt or equivalent, and in the absence of such record of delivery, the
effective date shall be presumed to have been the fifth (5th) business day after
it was deposited in the mail. All notices delivered in person or sent by courier
shall be deemed to have been delivered to and received by the addressee and
shall be effective on the date of personal delivery; notices delivered by
facsimile with simultaneous confirmation copy by registered or
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certified mail shall be deemed delivered to and received by the addressee and
effective on the date sent. Notice not given in writing shall be effective only
if acknowledged in writing by a duly authorized representative of the party to
whom it was given.
7.6 DELAYS OR OMISSIONS
No delay or omission to exercise any right, power or remedy accruing to
either party hereto, upon any breach or default of the other party under this
Agreement, shall impair any such right, power or remedy nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any holder of any
breach or default under this Agreement, or any waiver on the part of any holder
of any provisions or conditions of this Agreement, must be in writing and shall
be effective only to the extent specifically set forth in such writing. All
remedies either under this Agreement, or by law or otherwise afforded to any
holder, shall be cumulative and not alternative.
7.7 SPECIFIC PERFORMANCE
Each of the parties hereto acknowledges and agrees that the other party
hereto 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 hereto agrees the other party
hereto will be entitled to an injunction to prevent breaches of the provisions
of this Agreement and to enforce specifically this Agreement and the terms and
provisions of this Agreement in any competent court having jurisdiction over the
parties, in addition to any other remedy to which they might be entitled at law
or in equity.
7.8 SEPARABILITY OF AGREEMENTS; SEVERABILITY OF THIS AGREEMENT
In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
7.9 PARTIES IN INTEREST
This Agreement shall be binding upon and inure solely to the benefit of
each party hereto, and nothing in this Agreement, express or implied, is
intended to or shall
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confer upon any other person or entity any right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
7.10 FINDER'S FEES
Each party hereto (i) represents and warrants that it has retained no
finder or broker in connection with the transactions contemplated by this
Agreement and (ii) hereby agrees to indemnify and to hold the other party
harmless of and from any liability for commission or compensation in the nature
of a finder's fee to any broker or other person or firm (and the costs and
expenses of defending against such liability or asserted liability) for which
the party in breach of this representation and warranty, or any of its employees
or representatives, is responsible.
7.11 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument. Execution and delivery of this Agreement by exchange of facsimile
copies bearing the facsimile signature of a party hereto shall constitute a
valid and binding execution and delivery of this Agreement by such party. Such
facsimile copies shall constitute enforceable original documents.
7.12 ATTORNEYS' FEES
If any action or proceeding shall be commenced to enforce this Agreement
or any right arising in connection with this Agreement, the prevailing party in
such action or proceeding shall be entitled to recover from the other party, the
reasonable attorneys' fees, costs and expenses incurred by such prevailing party
in connection with such action or proceeding or negotiation to avoid such action
or proceeding.
7.13 EXPENSES
Each party shall bear its own expenses incident to negotiations,
preparation, authorization and consummation of this Agreement and the
transactions contemplated hereby, including, without limitation, all fees and
expenses of its counsel, whether or not such transaction is consummated.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxxxx
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Its: Treasurer
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GEOWORKS CORPORATION
By: /s/ Xxxx Xxxxxxxxx
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Its: Vice President, Sales
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and Business Development
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