ASSET PURCHASE AND SALE AGREEMENT
ASSET
PURCHASE AND SALE AGREEMENT
This
Asset Purchase and Sale Agreement (the “Agreement”) is made and executed as of
the 17th day of July, 2009, by and between NeoMedia Technologies, Inc., a
company organized under the laws of the State of Delaware, United
States of America, with its principal offices located at Xxx Xxxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxx, XX 00000, XXX (the “Seller”) and Silver Bay Software LLC, a
Limited Liability Company organized under the laws of the State of Delaware,
with its principal place of business located at 000 Xxxxx Xxxxxx, Xxxxxxxxx, XX,
00000, XXX (the “Purchaser”) (collectively referred to herein as “Parties” or
individually as “Party”). This Agreement shall be effective July 17, 2009 (the
“Effective Date”).
1.1 “Confidential
Information” shall mean all information disclosed to a Party (“Receiving Party”)
by the other Party (“Disclosing Party”) in connection with this Agreement that
is conveyed (a) in written, graphic, or other tangible form and conspicuously
marked “confidential”, “proprietary” or in some other manner to indicate its
confidential or proprietary nature; or (b) orally, provided that such
information is designated in writing as confidential or proprietary within
thirty (30) days of such oral disclosure. Additionally, subject to Article VI
below, the following information shall be deemed Confidential Information even
if not conspicuously marked “confidential” or “proprietary”: all know-how in
whatever form, documentation, formulations, algorithms, compilations, manuals,
manufacturing processes, business methods, computer programs, symbols, or other
know-how and supporting material related to the research, development,
manufacture, marketing, sale, copyrights, trademarks, patents, technology, trade
secrets and internal management systems relating to the Assets, whether conveyed
verbally, in writing, on diskette, on tape or other media.
1.2 “Product”
or “Products” shall mean, individually and collectively, those software products
listed in Schedule 1.
1.3 “Documentation”
shall mean all elements of Know-how, software, customer agreements, service
history and other Licensed Technology that are in writing or other tangible
form.
1.4 “Know-how”
shall mean all trade secrets and Confidential Information, including process or
production information, formulas, information on compositions of matter,
techniques or methods related to the manufacture, package, assembly, marketing,
sale or distribution of the Licensed Products, Know-how or Licensed
Technology.
1.5 “Transferred
Technology” shall mean, individually and collectively, the Know-how, and
Confidential Information which are sold pursuant to the terms of this Agreement,
and are necessary for the marketing, sale or distribution of the Services and
licensing of the Products, and which are being sold by the Seller to the
Purchaser pursuant to this Agreement.
1.6 “Covered
Products” shall mean the Products themselves, as well as any product that is
manufactured, used, marketed, distributed or sold by Purchaser or any of its
Subsidiaries or affiliates using any of the Transferred Technology or
Know-how.
1.7 “Licensed
Copyrights” shall mean the Seller copyrighted material associated with any and
all Products.
1.8 “Subsidiaries”
shall mean those corporate entities in which a Party directly or indirectly owns
50% or more of the voting securities of such corporate entities, or is otherwise
related to a Party through 50% or more of common ownership of the stock by the
same parent.
1.9 “Customers”
shall mean the listed persons and business and governmental entities set forth
in Schedule 3 attached hereto as well as any successors, assigns or transferees
of such persons and entities. “Customer” shall mean an individual person,
business or governmental entity, and its successors, assigns or transferees,
listed on Schedule 3.
1.10 “Services”
shall include sales consultation, licensing, delivery, billing, installation
support, technical support and any and other services required by customers to
use the Products in the manner in which they are intended.
1.11 “Revenue”
shall mean payments from Customers received by either Party on or after the
Effective Date that result from the sale, lease, licensing, or maintenance of
the Covered Products. Explicitly excluded from the definition of
Revenue shall be payments received by Purchaser related to products other than
the Covered Products, or payments received for Covered Products from persons or
entities who are not one of the Customers listed in Schedule 3, including their
successors, assigns or transferees.
2.1 As
of the Effective Date, Purchaser shall purchase and accept, and Seller shall
sell, assign, transfer, convey and deliver to Purchaser, all of Seller’s rights,
titles and interests in and to the Assets. As of the Effective Date of this
Agreement, except as may otherwise be set forth herein, Purchaser shall have all
rights to, responsibilities for, obligations of , and liabilities related to the
Assets and Seller shall be relieved of all such rights, responsibilities,
obligations, and liabilities.
2.2 Seller
shall assist Purchaser in transitioning Customer relationships from Seller to
Purchaser. The Parties shall jointly draft and send to each Customer a letter
advising the Customer of the fact that Purchaser will now be responsible for all
future relations with Customers related to the services provided by means of the
Assets (the “Services”) and how to contact Purchaser. In the event that, after
the Effective Date, a Customer or other person or entity contacts Seller about
any issue related to the Products, Services, or to the Assets themselves or the
sale thereof to Purchaser, Seller shall refer such Customer to Purchaser. In the
event any person or entity makes an inquiry of Seller about purchasing the
Services or purchasing or licensing the Products, Seller shall refer such person
or entity to Purchaser.
2.3 Upon
the Effective Date, Purchaser shall be responsible for billing of, and have the
rights to all Revenue from, all Customers and any and all other persons or
entities who purchase Services or purchase or license Products after the
Effective Date. To assist Purchaser in such billing, Seller shall make available
to Purchaser, upon Purchaser’s request, copies of its billing record for the
Customers. In the event Seller receives, on or after the Effective Date, a
payment related to the Services or Products, Seller shall, within thirty (30)
days, forward such payment in full to Purchaser, and such payment shall be
considered Revenue as defined above. Seller shall have the sole right to any
payments received by Seller prior to the Effective Date and shall have no
obligation to forward such payments to Purchaser.
2.4 As
of the Effective Date, Purchaser shall be responsible for providing the Services
to the Customers, including but not limited to responding to and rectifying any
Customer service claims or complaints, whether the matter that gave rise to such
claim or complaint occurred prior to or after the Effective Date.
2.5 Purchaser
shall not represent to any entity or person, in any manner, that it represents,
acts on behalf of, is an agent for, or is otherwise authorized to bind or act on
behalf of Seller.
2.6 As
of the Effective Date, Purchaser shall have the exclusive right to prosecute,
maintain, defend and enforce the Assets referred to in this Agreement, entirely
at its own cost and discretion and Seller shall have no right or obligation to
take any action for the prosecution, maintenance, defense or enforcement of the
Assets in any way.
2.7 Except
for the Assets sold under this Agreement, Purchaser is not granted any license
or other rights relating to the products or patents or other intellectual
property rights of the Seller whether by implication or otherwise.
3.1 Purchaser
shall be entitled to all Revenues received on or after the Effective Date. In
consideration for its acquisition of the Assets, Purchaser shall pay to Seller a
royalty of twenty percent (20%) of the Revenues received during the three (3)
year period commencing on the Effective Date (the “Royalty”), subject to the
Credit defined below.
3.2 The
Parties acknowledge and agree that certain changes and upgrades may have to be
made to the Assets in order for the Services to continue to perform in a
satisfactory manner. Purchaser shall be solely responsible, at its sole expense,
for making any such changes and upgrades that the Purchaser, in its sole
discretion, deems necessary and Purchaser shall make such changes in a manner
and in a time frame that does not adversely affect the Customers. However,
Purchaser assumes all liabilities to make such changes consistent with its
assumption of all liabilities and obligations to the Customers under the license
agreements assumed by Purchaser in this Agreement and in the license agreements
with the Customers. In consideration for making such changes and
upgrades, Purchaser shall receive a credit against the Royalty of no more than
Fifty Thousand Dollars ($50,000) (the “Credit”). This Credit shall be applied
against the Royalty as a credit to the amount Purchaser otherwise owes Seller as
a Royalty for that quarter until the accumulated credits against the royalty
shall equal but not exceed $50,000. Thereafter the Royalty shall be paid to the
Purchaser in full.
3.3 Payment
of Royalties shall be made on a quarterly basis. Each payment shall be made
within thirty (30) days after the end of each quarter and shall include a
summary statement of the Revenues, the Royalty calculation and the Credit
applied, if any. In the event of termination of this Agreement, a final Royalty
payment shall be made within thirty (30) days following such
termination.
3.3 All
payments owed to Seller pursuant to this Article III Revenues and Royalty shall
be made in U.S. Dollars in accordance with payment instructions given by
Seller.
No
warranties, express, implied or statutory are made with respect to the Assets or
any part thereof except as expressly set forth in this Section.
4.1. The
Seller represents and warrants that: (i) the Seller is duly authorized and has
the requisite power and authority to enter into this Agreement and to perform
Seller’s obligations hereunder; (ii) the Seller has full right and title to the
Assets without encumbrance or lien and the right to sell the Assets; (iii) the
execution, delivery and performance by the Seller of this Agreement will not
violate any provision of any applicable law or regulation presently in effect or
any provision of its constituent documents or result in a breach of any
agreement, obligation or restriction by which the Seller is bound; (iv) this
Agreement is a legal, valid and binding obligation of Seller, enforceable
against the Seller in accordance with the Agreement’s terms and conditions; (v)
the Seller is not under any obligation to any person, contractual or otherwise,
conflicting or inconsistent in any respect with the terms of this Agreement or
which would impede the diligent and complete fulfillment of the Seller’s
obligations hereunder; and (vi) the Assets sold by the Seller hereunder are
provided on an “AS IS” basis and subject to the further limitations set forth in
Section 4.3 below.
4.2 Purchaser
represents and warrants that: (i) Purchaser is authorized by its board of
directors or shareholders’ meeting to have the requisite power and authority to
enter into this Agreement and to perform Purchaser’s obligations hereunder; (ii)
Purchaser has conducted sufficient due diligence investigation with respect to
the Assets in all respects, including but not limited to, the technical
effectiveness thereof; (iii) the execution, delivery and performance by the
Purchaser of this Agreement will not violate any provision of any applicable law
or regulation presently in effect or any provision of the Purchaser’s
constituent documents or result in a breach of any agreement, obligation or
restriction by which the Purchaser is bound; (iv) this Agreement is a legal,
valid and binding obligation of Purchaser, enforceable against the Purchaser in
accordance with the Agreement’s terms and conditions; (v) the Purchaser is not
under any obligation to any person, contractual or otherwise, conflicting or
inconsistent in any respect with the terms of this Agreement or which would
impede the diligent and complete fulfillment of the Purchaser’s obligations
hereunder; and (vi) the Assets purchased by it hereunder are purchased on an “AS
IS” basis and subject to the further limitations set forth in Section 4.3
below.
4.3 The
provisions of Article IV allocate the risks under this Agreement between the
Seller and the Purchaser, and the respective benefits and obligations described
herein reflect such allocation of risk and the limitation of liability agreed to
under this Agreement. Nothing in this Article IV shall be construed as: (i) a
warranty or representation by Seller as to the validity or scope of any
component of the Assets; or (ii) a warranty or representation that anything
made, used, sold or otherwise disposed of under this Agreement does not or will
not infringe the intellectual property rights of third parties; or (iii) a
requirement that either Party shall file any patent application, secure any
patent or maintain any patent in force; or (iv) conferring a right to use in
advertising, publicity or otherwise any trademark or tradename of the other
Party; or (v) granting by implication, estoppel or otherwise any License or
rights under any patent, technology, trademark or copyright other than the
Assets, Know-how and Licensed Copyrights.
THE
WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION ABOVE ARE EXCLUSIVE AND IN LIEU
OF ALL OTHER WARRANTIES, AND THERE ARE NO OTHER REPRESENTATIONS OR WARRANTIES OF
ANY KIND, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT
NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. SELLER SHALL NOT HAVE ANY LIABILITY OF ANY NATURE WITH
REGARD TO THE VALUE, ADEQUACY, FREEDOM FROM FAULT OR INFRINGEMENT, QUALITY,
EFFICIENCY, SUITABILITY, EFFECTIVENESS, ACCURACY, CHARACTERISTICS, VALIDITY,
SCOPE OR USEFULNESS OF THE ASSETS, INCLUDING BUT NOT LIMITED TO ANY LICENSED
TECHNOLOGY, KNOW-HOW, OR LICENSED TRADEMARK & COPYRIGHT. IN NO EVENT WILL
THE SELLER OR ANY OF ITS SUPPLIERS, SUBSIDIARIES, EMPLOYEES, OFFICERS, DIRECTORS
OR AGENTS BE LIABLE FOR: (1) LOST PROFITS, LOST DATA OR LOST USE, OR ANY OTHER
INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY INDIRECT, SPECIAL OR PUNITIVE
DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF SELLER OR ANY OF ITS
SUPPLIERS, SUBSIDIARIES, EMPLOYEES, OFFICERS, DIRECTORS OR AGENTS HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (2) DAMAGES CAUSED BY THE
PURCHASER’S FAILURE TO PERFORM ITS RESPONSIBILITIES UNDER THIS AGREEMENT; (3)
REPAIRS OR ALTERATIONS TO THE LICENSED TECHNOLOGY OR LICENSED PRODUCTS DONE
WITHOUT THE PRIOR WRITTEN APPROVAL OF THE SELLER; (4) USE OF THE ASSETS IN A
MANNER THAT IS NOT AUTHORIZED BY THIS AGREEMENT; OR (5) THE MANUFACTURE, USE,
MARKETING, DISTRIBUTION, SALE, OR OTHER DISPOSITION BY PURCHASER, ITS AFFILIATES
OR SUBSIDIARIES OR THEIR VENDEES OR OTHER TRANSFEREES OF LICENSED PRODUCTS
INCORPORATING OR SOLD IN CONNECTION WITH THE , KNOW-HOW, LICENSED TECHNOLOGY OR
LICENSED TRADEMARKS & COPYRIGHTS. NOTHING CONTAINED IN THIS AGREEMENT SHALL
BE CONSTRUED AS A WARRANTY OR REPRESENTATION THAT THE POSSESSION OR USE OF THE
ASSETS WILL PRODUCE PRODUCTS FREE FROM DEFECTS OR INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS OF THIRD PARTIES. NO DEMAND, CLAIM, SETTLEMENT, AWARD OR
JUDGMENT BY OR TO ANY THIRD PARTY CONCERNING ANY OF THE FOREGOING ENTITLE
PURCHASER TO REIMBURSEMENT OF ANY COMPENSATION OR ROYALTY PAID PURSUANT TO THIS
AGREEMENT OR TO ANY OTHER RELIEF.
5.1 Purchaser
shall defend, indemnify and hold harmless Seller and its Subsidiaries,
directors, officers, employees, agents, representatives and consultants thereof
(“Indemnified Persons”) from and against any and all claims, actions, damages,
losses, expenses, costs (including without limitation reasonable attorneys’ fees
and litigation or arbitration costs) or other liability incurred by the Seller
and Indemnified Persons, arising out of or relating to any allegation of or
actual breach of any: (1) term or condition of this Agreement by Purchaser or
its subsidiaries, affiliates, officers, directors, employees, agents,
representatives, or consultants (“the Indemnifying Parties”); (2)
representation, warranty or covenant of Purchaser or the Indemnifying Parties
under this Agreement; (3) negligence or willful misconduct by Purchaser or the
Indemnifying Parties and (4) alleged infringement or violation by Purchaser or
the Indemnifying Parties of any third person’s intellectual
property rights arising as a result of Purchaser’s or the Indemnifying
Party’s use, sale, import, export, marketing, distribution or manufacture of the
Assets outside the scope of the sale under this
Agreement;
provided, that Seller shall provide to Purchaser prompt written notice of any
such claim for which indemnification is sought and shall further provide
reasonable cooperation in the defense and all related settlement negotiations
thereof. Purchaser shall have the sole right to control the defense of a claim
for which indemnification is sought hereunder. Notwithstanding any of the
foregoing, the Seller and the Indemnified Persons shall have the right, in its
absolute discretion and at its sole cost, to employ attorneys of its own choice
in the defense of such claim.
Neither Party shall have any liability for claims arising out of the
other Party’s use of the Assets, including but not limited to the Licensed
Technology, Know-how, Licensed Patents, Licensed Trademarks & Copyrights or
the Licensed Products whether authorized by this Agreement or
otherwise.
5.2 Seller
shall defend, indemnify and hold harmless Purchaser and its Subsidiaries,
directors, officers, employees, agents, representatives and consultants thereof
(“Indemnified Persons”) from and against any and all claims, actions, damages,
losses, expenses, costs (including without limitation reasonable attorneys’ fees
and litigation or arbitration costs) or other liability incurred by the
Purchaser and Indemnified Persons, arising out of or relating to any allegation
of or actual breach of any: (1) term or condition of this Agreement by Seller or
its subsidiaries, affiliates, officers, directors, employees, agents,
representatives, or consultants (“the Indemnifying Parties”); (2)
representation, warranty or covenant of Seller or the Indemnifying Parties under
this Agreement; (3) negligence or willful misconduct by Seller or the
Indemnifying Parties and (4) alleged infringement or violation by Seller or the
Indemnifying Parties of any third person’s intellectual
property rights arising as a result of Seller’s or the Indemnifying
Party’s use, sale, import, export, marketing, distribution or manufacture of the
Assets outside the scope of the sale under this
Agreement;
provided, that Purchaser shall provide to Seller prompt written notice of any
such claim for which indemnification is sought and shall further provide
reasonable cooperation in the defense and all related settlement negotiations
thereof. Seller shall have the sole right to control the defense of a claim for
which indemnification is sought hereunder. Notwithstanding any of the foregoing,
the Purchaser and the Indemnified Persons shall have the right, in its absolute
discretion and at its sole cost, to employ attorneys of its own choice in the
defense of such claim.
Neither Party shall have any liability for claims arising out of the
other Party’s use of the Assets, including but not limited to the Licensed
Technology, Know-how, Licensed Patents, Licensed Trademarks & Copyrights or
the Licensed Products whether authorized by this Agreement or
otherwise.
5.3 The
Indemnifying Persons in Section 5.1, shall further indemnify and hold harmless
the Indemnified Persons in Section 5.1 for any claim by any person, whether or
not a Customer, arising out of the sale or use of the Services, whether such
claim arose prior to or after the Effective Date and whether or not such claim
relates to an alleged failure of the Services to operate properly or in a manner
consistent with any contractual obligation that Seller or Purchaser may have
with the person. Not by way of limitation, but by way of example, this indemnity
shall extend to claims made under tort or contract, or both, and claims for
legal or equitable, or both, relief. This indemnity shall apply to any such
claims whether or not either Party knew or should have known of such claim or
potential claim.
6.1 Neither
Party shall originate or otherwise publish any news release, or other public
announcement, written or oral, regarding this Agreement or the existence of an
arrangement between the Parties without the prior written approval of the other
Party. If either of the Parties learn Confidential Information of the other
Party, such Party shall keep confidential the Confidential Information and shall
not use or disclose, either directly or indirectly, to any person or entity the
Confidential Information of the other Party for any purpose other than as
provided for in this Agreement without the express, written permission of the
other Party, except that each Party may: (i) use the Confidential Information of
the other Party to carry out the activities expressly permitted hereunder; (ii)
disclose the Confidential Information of the other Party to those persons who
have a need to know such Confidential Information in order to carry out the
activities expressly permitted hereunder on behalf of the Receiving Party and
who are bound by confidentiality obligations no less stringent than those
contained herein; and (iii) disclose the Confidential Information as required by
law or orders from any government departments, legislative bodies or governing
courts, provided that, in such event, the Receiving Party subject to such
obligation shall promptly notify the Disclosing Party to allow intervention to
contest or minimize the scope of the disclosure or apply for a protective order.
Each Party agrees to take precautions to prevent unauthorized disclosure or use
of the Confidential Information, and such precautions shall be consistent with
the precautions used to protect the Receiving Party’s own confidential
information of like significance, but in no event less than the care exercised
by a reasonable business person in the protection of its valuable confidential
information. In the event that the Receiving Party learns or has reason to
believe that any person who has had access to the Confidential Information of
the Disclosing Party has violated or intends to violate the terms of this
Agreement, the Receiving Party shall immediately notify the Disclosing Party and
shall cooperate with the Disclosing Party in seeking any relief against any such
person or violation.
6.2 Notwithstanding
anything to the contrary set forth herein, Confidential Information shall not
include and the obligations of non-disclosure and confidentiality set forth in
this Section shall not extend to (i) any information lawfully in the Receiving
Party’s possession prior to the date of disclosure thereof by the Disclosing
Party which is not otherwise subject to a confidentiality agreement, (ii) any
information which is in the public domain or hereafter becomes a part thereof
through no fault of the Receiving Party, (iii) any information that becomes
available to the Receiving Party on a non-confidential and lawful basis from a
source other than the Disclosing Party and not otherwise through a breach of a
confidentiality and/or non-disclosure obligation by a third party, (iv) any
information independently developed by the Receiving Party and as to which the
Receiving Party can demonstrate by reasonable documentary proof is not based on
the Disclosing Party’s Confidential Information,
and is not otherwise subject to any protection by law, or (v) any
information disclosed by the Disclosing Party to the Receiving Party that is
expressed in writing by the Disclosing Party to be
non-confidential.
7.1 Purchaser
agrees to keep and maintain, in accordance with generally accepted accounting
principles and procedures, complete and accurate customary records and books of
account of all Revenues and of all sales, whether for cash or on credit, and all
sales transactions underlying the Revenues. Seller shall be entitled, upon
reasonable written notice, during business hours, through its duly authorized
agents, attorneys, or accountants, to audit any and all such information in
Purchaser’s records and books of account, bearing on Purchaser’s Revenues and
sales underlying the Revenues. Seller shall be limited to one audit per calendar
year unless Seller has reasonable reason to believe Purchaser is or has not
reported accurately its Revenues or underlying sales. In such event, Seller may
audit Purchaser’s records each quarter. If any such audit discloses that the
payable Royalties were understated in Purchaser’s reports to Seller by five
percent (5%) or more, Purchaser shall immediately pay to Seller one hundred and
five percent (105%) of the additional payments due. In addition, if the
understatement was more than five percent (5%) of the amount actually reported
by Purchaser to Seller, Purchaser shall pay to Seller on demand Seller’s
expenses incurred in such audit.
7.2 Notwithstanding
any other provision of this Agreement, or termination of this Agreement for any
reason, Purchaser shall maintain the records and reports referred to herein for
a period of five (5) years after such records and reports are generated, or for
any longer period as may be required under applicable law.
8.1 Each
Party shall be responsible to pay all applicable taxes, levies, duties in
connection with the Party’s respective benefits and obligations under this
Agreement.
9.1 This
Agreement shall remain in full force and effect for three (3) years after the
Effective Date, unless this Agreement is terminated earlier for any reason
provided for herein.
9.2. Either
Party may terminate this Agreement by giving not less than thirty (30) calendar
days’ written notice to the other Party of a material breach of any of the terms
or conditions of this Agreement by the other Party, if the other Party fails to
cure its breach within the thirty (30) calendar days’ notice
period.
9.3 The
Seller may terminate this Agreement upon written notice in the event of any of
the following occurrences: (i) that a petition for Purchaser’s bankruptcy has
been filed and is not discharged within thirty (30) days, whether voluntary or
involuntary; (ii) an assignment of Purchaser’s assets is made for the benefit of
creditors; (iii) the appointment of a trustee or receiver is made to take charge
of Purchaser’s business for any reason; or (iv) Purchaser becomes insolvent or
ceases to conduct business in the normal course.
9.4 Upon
termination of this Agreement for any reason, other than its expiration at the
end of the three (3) year term following the Effective Date, all rights to the
Assets shall revert to Seller and Purchaser shall have no further right to the
Assets or the Revenues; rather, in such event, Seller shall be entitled to all
subsequent Revenues and shall assume all rights, duties, obligations and
liabilities pertaining to the Customers. Such termination shall not
relieve Purchaser of any financial liability or obligation which accrued prior
to such termination, nor shall it affect any provision which shall be effective
after such termination as stipulated or implied herein.
9.5 Upon
the termination of this Agreement at the expiration of the three (3) year term
following the Effective Date, Purchaser shall retain all rights, duties,
obligations and liabilities pertaining to the Assets, and shall have no further
liability or obligation to the Seller.
All
notices, demands, requests or other communications given to, made or required
hereunder shall be in writing and shall be deemed sufficiently given if sent by
an internationally-recognized courier service, such as DHL or Federal Express,
prepaid, for second business day delivery, properly addressed to the last-known
address of the Party to which it is sent, or sent by telefacsimile during
business hours in the recipient’s time zone to the last known telefax number of
the Party with a confirmation copy sent the same business day by international
courier as provided above. All notices, demands or requests so sent by
international courier shall be deemed received when delivery is confirmed by the
courier or receipt is refused, whichever is sooner. All notices so sent by
telefacsimile shall be deemed received on the date transmitted, provided a
confirmation report indicating successful transmission is retained by the Party
giving notice and a copy is sent by international courier the same business day
as provided above. Until a Party receives written notice in the manner herein
prescribed to the contrary from the other Party, notices shall be sent
to:
In case
of Seller:
NeoMedia
Technologies, Inc.
Attention
CEO or CFO
Xxx
Xxxxxxxxx Xxxxxxx
Xxxxx
000
Xxxxxxx,
XX 00000
In case
of PURCHASER:
Silver
Bay Software LLC
Attention
CEO
000 Xxxxx
Xxxxxx
Xxxxxxxxx,
XX 00000
Either
Party may change its address by giving written notice to the other Party in
accordance with this Article, in which case such new address may be relied upon
by the other Party as the last known address of such Party for purposes of this
Article.
11.1 This
agreement shall inure to the benefit of, and be binding upon, each Parties’
respective assigns and successors.
11.2 The
rights and obligations granted and imposed upon the Parties pursuant to this
Agreement shall not be assignable or otherwise capable of delegation,
transferable, or subject to encumbrance by act of either Party without the
express written consent of the other Party. Such consent shall not be
unreasonably withheld. For purposes of this paragraph, an “assignment” (and, as
appropriate, “assign”) shall include, but shall not be limited to, any “Change
in Control” which shall mean: (i) the acquisition, directly or indirectly, by
any person or entity within any twelve month period of securities at issue
(i.e., in the case of an assignment by the Purchaser, the Purchaser’s
outstanding stock; in the case of a purchase by the Purchaser, the company being
purchased) representing an aggregate of fifty percent (50%) or more of the
combined voting power of Purchaser’s then outstanding securities; (ii) the sale
or transfer of twenty percent (20%) or greater of either the assets or voting
securities of Purchaser; or (iii) the consummation of (A) a merger,
consolidation or other business combination of the Purchaser with any other
entity or affiliate thereof, or (B) a plan of complete liquidation of Purchaser
at issue or an agreement for the sale or disposition by Purchaser of all or
substantially all of its assets.
12.1 All
disputes arising in connection with this Agreement shall be finally settled in
Atlanta, Georgia, through arbitration in accordance with the rules and
procedures of the American Arbitration Association (the “Rules”).
12.2 Any
decision rendered by any arbitration tribunal pursuant to this Article shall be
final and binding on the Parties thereto, and judgment thereon may be entered by
any court of competent jurisdiction. The Parties specifically agree that any
arbitration tribunal shall be empowered to award and order equitable or
injunctive relief with respect to matters brought before it.
12.3 Notwithstanding
the terms of this Article or the provisions of the Rules, at any time before and
after a demand notice is presented, the Parties shall be free to apply to any
court of competent jurisdiction for interim or conservatory measures (including
temporary conservatory injunctions). The Parties acknowledge and agree that any
such action by a Party shall not be deemed to be a breach of such Party’s
obligation to arbitrate all disputes under this Article or infringe upon the
powers of any arbitral panel.
12.4 This
Agreement shall be construed and enforced in accordance with the laws of the
State of Georgia, United States of America without regard to its principles of
conflicts of law.
13.1 If
a court or arbitrative panel of competent jurisdiction finds any provision of
this Agreement to be invalid or unenforceable, the provisions of this Agreement
shall be separable and such invalid or unenforceable term(s) shall be
ineffective in the affected jurisdictions to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement. The remaining provisions of this Agreement and the invalidated
provisions in other non-affected jurisdictions shall remain in full force and
effect until the Agreement terminates or expires.
13.2 The
waiver by either Party of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach of that particular
provision or any other provision of the Agreement. Failure by any Party at any
time to enforce any of the provisions of this Agreement shall not affect or
impair such provisions in any way, or the right of any Party at any time to
avail itself of any remedies it may have for breach of such provisions pursuant
to this Agreement, either in equity or in law.
13.3 This
Agreement may be executed in multiple physical or facsimile counterparts, which
together shall form a single agreement as if both Parties had executed the same
document.
13.4 This
Agreement constitutes the entire understanding between the Parties, and
supersedes all previous undertakings, agreements, and understandings, whether
oral or written, between the Parties hereto. No modification, amendment or
alteration of this Agreement shall be effective unless agreed to in a writing
signed by both Parties.
13.5 Notwithstanding
any provisions herein, neither Party shall be held liable or responsible to the
other Party for failure or delay in fulfilling or performing any obligation
under this Agreement if such failure or delay is caused by actions, inactions or
events which are beyond the reasonable control of the affected Party, the effect
of which is to prevent or interfere with such Party’s performance hereunder,
including but not limited to any weather; natural disasters; government action
or inaction or other governmental laws, orders, restrictions, embargos or
blockades; war; national or regional emergency; city riot or other civil
disobedience; revolution or rebellion; strike or other work stoppage; fire;
explosion; flood; sabotage; pestilence; accident or breakdown of machinery,
unavailability of fuel, labor, containers or transportation facilities;
accidents of navigation or breakdown or damage of vessels, or other conveyances
for air, land or sea or other impediments or hindrances to transportation; or
any other circumstances of like or different character commonly referred to as
an act of God or force majeure. Each Party agrees to give the other Party prompt
written notice of the occurrence of any such condition and shall make all
reasonable efforts to perform despite such occurrence. In the event that such
condition continues for more than three (3) months, the Parties may consult with
each other to determine whether or not to terminate this Agreement.
13.6 The
relationship between Seller and Purchaser is that of independent contractors
with respect ot all matters related to this Agreement. Each Party agrees that it
shall have no authority, whether express or implied, to make contracts,
representations, warranties or any other obligations in the name of, or binding
upon, the other Party.
13.7 This
Agreement is made for the benefit of the Parties hereto and is not intended to
benefit any third parties and shall not be available for enforcement or benefit
of any third parties not a Party to this Agreement as evidenced by a duly
authorized signature hereto.
| NeoMedia Technologies, Inc. | Silver Bay Systems LLC | |||
| By: |
/s/
Xxxxxxx X. Xxxx
|
By: |
/s/
Xxxxx Xxxxxx
|
|
|
Xxxxxxx
X. Xxxx
|
Xxxxx
Xxxxxx
|
|||
|
Chief
Financial Officer
|
President
|
|||