ASSET PURCHASE AGREEMENT
This
Asset Purchase Agreement (this “Agreement”)
is
made and entered into as of the 19th day of January, 2007 (the “Effective
Date”),
by
and between Index Visual & Games Ltd., a corporation organized under the
laws of Japan (“Seller”),
and
New Motion, Inc., a Delaware corporation (“Buyer”).
R
E C I T A L S
A. Seller
and Mobliss, Inc., a Washington corporation (“Mobliss”)
have
entered into that certain Asset Purchase Agreement dated as of November 17,
2006
(the “Mobliss
Agreement”),
pursuant to which Mobliss has agreed to sell to Seller all right, title and
interest in certain assets, including without limitation, all assets included
in
the Mobliss billing system and the carrier contracts listed on Exhibit
A
hereto
(the “Carrier
Contracts”);
and
B. Seller
desires to sell to Buyer, and Buyer desires to purchase from Seller, the
Purchased Assets (as defined below), upon the terms and subject to the
conditions set forth in this Agreement.
NOW,
THEREFORE, in consideration of the mutual premises set forth below and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
A
G R E E M E N T
1. Purchase
and Sale of Assets.
(a) Purchased
Assets.
On the
terms and subject to the conditions set forth in this Agreement, Seller agrees
to sell and deliver to Buyer, and Buyer agrees to purchase and acquire from
Seller, free and clear of any and all liens, claims and encumbrances of any
kind, the assets set forth on Exhibits A, B, C, D and E hereto (collectively
the
“Purchased
Assets”).
(b) Consents
to Assignment.
This
Agreement shall not constitute an agreement to assign any interest in any
instrument, contract, lease, permit or other agreement or arrangement or any
claim, right or benefit arising thereunder or resulting therefrom, if an
attempted assignment thereof without the consent required or necessary of a
third party would constitute a breach or violation thereof or affect adversely
the rights of Buyer thereto. If such a consent of a third party which is
required to assign any such interest is not obtained prior to the Closing Date
(as hereafter defined), or if an attempted assignment would be ineffective
or
would adversely affect Seller’s ability to convey its interest to Buyer, Seller
and Buyer shall cooperate in any lawful arrangement to provide that Buyer shall
receive Seller’s entire interest in the benefits under any such instrument,
contract, lease, permit or other agreement or arrangement including, without
limitation, enforcement for the benefit of Buyer of any and all rights of Seller
against any other party thereto arising out of the breach or cancellation
thereof by such party or otherwise; provided, however, that nothing contained
in
this Section 1(b) shall affect the liability, if any, of Seller pursuant to
this
Agreement for failing to have disclosed the need for such consent or
approval.
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2. Purchase
Price.
The
Purchased Assets shall be purchased by Buyer from Seller for an aggregate
purchase price (the “Purchase
Price”)
of up
to Two Million Three Hundred Twenty Thousand U.S. Dollars (US$2,320,000) payable
as follows:
(i) Five
Hundred Thousand U.S. Dollars (US$500,000) shall be paid by Buyer to Seller
on
the Initial Closing Date by delivery of a convertible promissory note in the
form of Exhibit H hereto (the “Note”);
and
(ii) Upon
each
assignment of a Carrier Contract, either at the Initial Closing or a Subsequent
Closing, Buyer shall pay to Seller, by increasing the principal balance of
the
Note by an amount equal to that portion of the remaining Purchase Price, up
to
One Million Eight Hundred Twenty Thousand US Dollars (US$ 1,820,000), which
is
associated with the assigned Carrier Contract as set forth on Exhibit
A.
3. The
Closing.
(a) Initial
Closing.
The
initial closing (the “Initial
Closing”)
of the
purchase and sale of the Purchased Assets shall take place on that
date
which is five business days following the date on which all conditions to the
Initial Closing
have
been satisfied or waived,
at the
offices of Buyer’s counsel, which offices are located at Xxxxxx, Xxxxxxxx &
Markiles LLP, 00000 Xxxxxxx Xxxx., 00xx
Xxxxx,
Xxxxxxx Xxxx, XX 00000, or
such
other date as agreed between the parties.
On or
before the Initial Closing, Seller
shall deliver or assign to Buyer the Purchased Assets (other than the Carrier
Contracts) and the Carrier Contracts with Cingular. The
date
of the Initial Closing shall be referred to herein as the “Initial
Closing Date.”
(b) Subsequent
Closings.
The
parties shall use all commercially reasonable efforts to obtain the consents
and
any other actions required to assign all of the Carrier Contracts to Buyer.
Any
Carrier Contracts that are not assigned to Buyer on or before the Initial
Closing, shall be assigned, along with any software related to such Carrier
Contract, to Buyer promptly following receipt of all required consents, and
Buyer shall pay to Seller, by increasing the principal balance of the Note:
(i)
on January 26, 2007, the portion of the Purchase Price associated with all
such
Carrier Contracts assigned to Buyer following the Initial Closing and prior
to
January 26, 2007; and (ii) on March 7, 2007, the portion of the Purchase Price
associated with all such Carrier Contracts assigned to Buyer from January 26,
2007 and by February 28, 2007. Unless such assignment is requested by Buyer
pursuant to Section 3(d) below, Buyer shall have no obligation hereunder to
purchase any Carrier Contract that is not assigned to Buyer on or before
February 28, 2007. Each assignment of a Carrier Contract under this Section
3(b)
shall be referred to as a “Subsequent
Closing”
and
the
date thereof, a “Subsequent
Closing Date.”
The
Initial Closing and each Subsequent Closing shall be referred to herein as
a
“Closing”
and
the
Initial Closing Date and each Subsequent Closing Date shall be referred to
herein as a “Closing
Date.”
(c) Closing
Deliverables.
At each
Closing, Seller shall deliver to Buyer (or cause Mobliss to deliver to Buyer)
a
Xxxx of Sale and Assignment of Contract Rights, in a customary form reasonably
acceptable Buyer and Seller, and such other documents as Buyer may reasonably
request in order to vest
in
Buyer, good title in and to the Purchased Assets to be transferred to Buyer
on
such Closing Date, free and clear of any and all liens, claims, encumbrances
or
restrictions of any and every kind.
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(d) Unassigned
Carrier Contracts.
If any
Carrier Contract has not been assigned prior to February 28, 2007, and the
respective carrier has not affirmatively stated that it will not agree to such
assignment to Buyer, then Buyer may request that Seller and/or Mobliss use
commercially reasonable efforts to cause such carrier to consent to the
assignment, provided that Buyer shall pay all costs of Seller and/or Mobliss
to
maintain such Carrier Contract after February 28, 2007 until the earliest of
(i)
the date of the assignment of such Carrier Contract; (ii) the date the carrier
affirmative refuses to allow the assignment of such Carrier Contract; or (iii)
the date Buyer requests Seller and/or Mobliss to cease pursuing such assignment.
If any such Carrier Contract is assigned to Buyer under this Section 3(d),
then
the portion of the Purchase Price associated with such Carrier Contracts shall
be paid to Seller immediately upon such assignment. Seller’s and Buyer’s (and
Mobliss’) obligations under this Section 3(d) shall expire on March 31, 2007.
4. Assumption
of Liabilities.
Except
with respect to the contractual obligations under agreements included among
the
Purchased Assets to be performed from and after the Closing Date (the
“Assumed
Liabilities”),
Buyer
shall not, and expressly does not, assume any liabilities, obligations or
commitments (including, but not limited to trade payables, bank or other debt,
accrued payroll, vacation and other liabilities, and capitalized leases) of
Seller, known or unknown, contingent or otherwise, of whatsoever kind or
nature.
5. Intentionally
Omitted.
6. Representations
and Warranties of Seller.
Seller
represents and warrants to Buyer, as of the Closing Date, as follows:
(a) Organization
and Standing.
Seller
is a corporation duly organized, validly existing and in good standing under
the
laws of Japan. Seller has all requisite power and authority and all requisite
licenses, permits and franchises necessary to own, lease and operate its
properties and assets and to carry on its business in the manner and in the
locations as presently conducted.
(c) Title.
Seller
will transfer, or cause Mobliss to transfer, to Buyer at each Closing, good
title to all of the Purchased Assets transferred at such Closing, which to
Seller’s actual knowledge shall be free and clear of all mortgages, pledges,
liens (including, without limitation, tax liens), charges, security interests,
claims of infringement, conditions, restrictions, encumbrances and obligations,
of any type, kind or nature whatsoever (except those expressly assumed by Buyer
as part of the Assumed Liabilities). The agreements or instruments under which
Seller and/or, to Seller’s actual knowledge, Mobliss holds, leases or is
otherwise entitled to the use of any Purchased Assets are in full force and
effect and all rentals, royalties or other payments due thereunder prior to
the
applicable Closing Date have been fully paid. All of the fixed assets and
equipment included in the Purchased Assets are purchased “as is” and “where
is”.
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(d) Trade
Rights.
Seller
has not granted to any person or entity any licenses and other rights to use
any
of copyrights or common law rights and licenses owned, possessed by Seller
or,
used or held by Seller which are part of the Purchased Assets (the “Trade
Rights”).
Seller owns, or will own on upon the Initial Closing, all right, title and
interest in and to each Trade Right, and is not obligated to pay any royalty,
fee or commission to any person for use of any Trade Right. Seller has not
agreed to indemnify or hold any person or entity harmless from or against any
losses or claims resulting from any infringement of any Trade
Right.
(e) Effect
of Agreement.
The
execution and delivery by Seller of this Agreement, the sale by Seller of the
Purchased Assets to Buyer at each respective Closing, the performance by Seller
of its obligations pursuant to the terms of this Agreement, and the consummation
of the transactions contemplated hereby, do not and will not, in any respect
material to Seller, with or without the giving of notice or lapse of time,
or
both:
(i) violate
any provision of law, statute, rule, regulation or executive order to which
Seller is subject;
(ii) violate
any judgment, order, writ or decree of any court or administrative body
applicable to Seller;
(iii) accelerate
or constitute an event entitling the holder of any indebtedness of Seller to
accelerate the maturity of any such indebtedness or increase the rate of
interest presently in effect with respect to such indebtedness; or
(iv) result
in
the breach of, constitute a default under, constitute an event which with notice
or lapse of time, or both, would become a default under, or result in the
creation of any mortgage, lien, security interest, charge or encumbrance upon
any other properties of Seller under, any contract, agreement, commitment
(written or oral) or other instrument to which Seller is a party, or by which
the other properties of Seller are bound or affected.
(f) Powers
of Attorney.
No
person has been granted and currently holds any power of attorney to act on
behalf of Seller in respect of any of the Purchased Assets.
(g) No
Finder’s Fee.
Seller
has not retained any finder, broker, agent or other party or incurred any
liability or is otherwise obligated for any brokerage fees, commissions,
finder’s fees or investment banking fees in connection with this Agreement or
the transactions contemplated hereby.
(h) Investor
Representations.
(i) Access
to Information.
Seller
has had an opportunity to receive and review all documents and information
that
Seller considers material to Seller’s acquisition of the Note and the shares of
common stock into which such Note is convertible (collectively, the
“Securities”)
and to
ask questions of and receive answers from Buyer, or a person or persons acting
on Buyer’s behalf, concerning Buyer and the terms and conditions of the
acquisition of the Securities, and all such questions have been answered to
the
full satisfaction of Seller.
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(ii) Knowledgeable
and Sophisticated Investor.
Seller
is a sophisticated investor with such knowledge and experience in financial
and
business matters and investments in restricted securities of early stage
companies that Seller is capable of evaluating the merits and risks of acquiring
the Securities.
(iii) Accredited
Investor.
Seller
is an
“accredited investor” as defined in Regulation D under the Securities Act of
1933, as amended (the “Securities
Act”).
(iv) Investment
Intent.
Seller
understands that the Securities have not been registered under the Securities
Act, or any other applicable state or federal securities statutes (together
with
the Securities Act, the “Acts”).
Seller is acquiring the Securities for investment, for Seller's own account,
and
not with a view to or for sale in connection with any distribution of the
Securities. Seller understands that the Securities are subject to restrictions
on transfer and that Seller may bear the economic risk of acquiring the
Securities for an indefinite period of time, unless they are registered with
the
Securities and Exchange Commission and qualified by state authorities, or an
exemption from such registration and qualification requirements is
available.
(v) No
General Solicitation.
Seller
acknowledges
that the
Securities were not offered to Seller by means of general solicitations,
publicly disseminated advertisements or sales literature.
(vi) Legend.
Seller
acknowledges that a legend substantially as follows will be placed on the
certificates representing the Securities:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER EITHER THE SECURITIES ACT OF 1933,
AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, OFFERED FOR
SALE, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS
OR
AN OPINION OF COUNSEL SATISFACTORY TO ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED.
(vii) No
Recommendation.
Seller
acknowledges that no federal or state agency has made any finding or
determination relating to the fairness for investment in the Securities and
no
federal or state agency has recommended or endorsed the Securities.
(viii) Reliance.
Seller
understands
that the Securities are being offered and sold to it in reliance on specific
provisions of federal and state securities laws and that Buyer is relying upon
the truth and accuracy of the representations, warranties, agreements,
acknowledgements and understandings of Seller
set
forth herein to determine the applicability of such provisions.
5
(i)
Disclosure.
No
representation or warranty made by Seller in this Agreement or in any writing
furnished by Seller to Buyer pursuant to or in connection with this Agreement,
to Seller’s actual knowledge, contains any untrue statement of a material fact,
or omits to state any material fact required to make the statements herein
or
therein contained not misleading.
(j) Disclaimer
of Other Warranties. THE
ABOVE
REPRESENTATIONS AND WARRANTIES ARE THE ONLY REPRESENTATIONS AND WARRANTIES
MADE
BY SELLER TO BUYER WITH RESPECT TO THE PURCHASED ASSETS. SELLER SHALL NOT HAVE
ANY LIABILITY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT
OF
OR IN CONNECTION WITH THE SALE, USE OR PERFORMANCE OF THE PURCHASED PRODUCTS.
SELLER DISCLAIMS ALL OTHER WARRANTIES WITH REGARD TO THE PURCHASED ASSETS SOLD
PURSUANT TO THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR USE OR PURPOSE.
7. Representations
and Warranties of Buyer.
Buyer
represents and warrants to Seller, as of the Closing Date, as
follows:
(a) Organization
and Standing.
Buyer
is a corporation duly organized, validly existing and in good standing under
the
laws of the state of Delaware. Buyer shall deliver to Seller at the Initial
Closing a certificate of good standing from the appropriate government agency.
Buyer has all requisite power and authority and all requisite licenses, permits
and franchises necessary to own, lease and operate its properties and assets
and
to carry on its business in the manner and in the locations as presently
conducted.
(b) Authorization.
Buyer
has all requisite corporate power and authority to enter into and carry out
the
terms and conditions of this Agreement and all the transactions contemplated
hereunder. All proceedings have been taken and all authorizations have been
secured which are necessary to authorize the execution, delivery and performance
by Buyer of this Agreement. This Agreement has been duly and validly executed
and delivered by Buyer and constitutes the valid and binding obligations of
Buyer enforceable in accordance with its terms, except as enforceability may
be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting creditors’ rights generally from time to
time in effect.
(c) Effect
of Agreement.
The
execution and delivery by Buyer of this Agreement, the purchase by Buyer of
the
Purchased Assets at each Closing, the performance by Buyer of its obligations
pursuant to the terms of this Agreement, and the consummation of the
transactions contemplated hereby, do not and will not, with or without the
giving of notice or lapse of time, or both:
(i) violate
any provision of law, statute, rule, regulation or executive order to which
Buyer is subject or by which the Purchased Assets are bound or
affected;
(ii) violate
any judgment, order, writ or decree of any court or administrative body
applicable to Buyer or by which the Purchased Assets are bound or affected;
or
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(iii) result
in
the breach of, constitute a default under, constitute an event which with notice
or lapse of time, or both, would become a default under any material agreement,
commitment, contract (written or oral) or other instrument to which Buyer is
a
party.
(d) Access
to Information.
Buyer
acknowledges that Seller has not conducted any due diligence with respect to
the
Purchased Assets. Buyer has conducted a due diligence review of the Purchased
Assets.
(e) No
Violation.
Buyer
is not in violation of any order of any court, arbitrator or governmental,
body
material laws, ordinances or governmental rules or regulations (domestic or
foreign) to which it is subject, or with respect to any material loan agreement,
debt instrument or contract with a supplier or customer of Buyer or other
agreement to which it is a party and has not failed to obtain or apply for
any
licenses, permits, franchises or other governmental authorizations necessary
to
the ownership of its property or to the conduct of its business.
(f) No
Litigation.
There
are no suits or proceedings pending or, to the knowledge of Buyer, threatened
in
any court or before any regulatory commission, board or other governmental
administrative agency against or affecting Buyer which if determined adversely
to Buyer could reasonably be expected to materially adversely affect Buyer’s
business as presently conducted or its ability to perform its obligations
hereunder or under the Note.
(g) Capitalization
and Voting Rights.
(i) The
authorized and issued and outstanding capital of Buyer consists, and will
consist immediately prior to the Closing, solely of 10,000,000 shares of common
stock, par value $0.001 per share (“Common Stock”), of which 5,000,000 shares
are issued and outstanding. The outstanding shares of Common Stock are all
duly
and validly authorized and issued, fully paid and nonassessable, and were issued
in accordance with the registration or qualification provisions of the
Securities Act of 1933, as amended (the “Act”) and any relevant state securities
laws, or pursuant to valid exemptions therefrom. All of the shares of Common
Stock are held of record by the persons set forth on Schedule 7(g)(i) attached
hereto.
(ii) Except
for options to purchase 1,195,200 shares of Common Stock that have been granted
by the Buyer, there are not outstanding any options, warrants, preferred stock
or other securities convertible into or exercisable for capital stock or other
rights (including conversion or preemptive rights) or agreements for the
purchase or acquisition from Buyer of any shares of its capital stock. Buyer
is
not a party or subject to any agreement or understanding, and to Buyer’s
knowledge, there is no agreement or understanding between any persons and/or
entities that affects or relates to the voting or giving of written consents
with respect to any security by a director of Buyer.
(h) Indebtedness.
Attached as Schedule 7(h) is a Schedule of Indebtedness of Buyer and its
subsidiaries. “Indebtedness” means, without duplication all (a) indebtedness for
borrowed money, (b) notes payable, whether or not representing obligations
for
borrowed money, (c) obligations representing the deferred purchase price for
property or services, (d) obligations secured by any mortgage or lien on
property owned or acquired subject to such mortgage or lien, whether or not
the
liability secured thereby shall have been assumed, (e) all guaranties,
endorsements and other contingent obligations, in respect of Indebtedness of
others, whether or not the same are or should be so reflected in Buyer’s balance
sheet, except guaranties by endorsement of negotiable instruments for deposit
or
collection or similar transactions in the ordinary course of business and (f)
that portion of any lease payments due under leases required to be capitalized
in accordance with generally accepted accounting principles consistently
applied.
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(i) Disclosure.
A true
and correct copy of the Certificate of Incorporation of Buyer, as amended,
has
been delivered to Seller’s counsel. Buyer has made available to Seller all the
information reasonably available to Buyer that Seller has requested for deciding
whether to accept the Note and Conversion Shares (as defined in the Note),
including certain of Buyer’s projections and business plans (the “Business
Plan”). The Business Plan was prepared in good faith; however, Buyer does not
warrant that it will achieve any results projected in the Business Plan. No
representation or warranty of Buyer contained in this Agreement or the Note
or
any schedule, exhibit or other written statement furnished to Seller by or
on
behalf of Buyer in connection with this Agreement or the Note (including with
respect to any Conversion Shares as defined in the Note) contains or will
contain any untrue statement of a material fact or omits a material fact
necessary to make the statements contained therein not misleading.
8. Pre
Closing Covenants.
(a) Investigations.
Between
the date of this Agreement and the final Closing Date, Mobliss shall and Seller
shall use commercially reasonable efforts to cause Mobliss to give Buyer and
its
respective representatives full access to all of Mobliss’ books, records,
employees, customers, suppliers and agents possessing any information relating
in any manner to the Purchased Assets, and Mobliss shall and Seller shall use
commercially reasonable efforts to cause Mobliss to furnish Buyer with such
financial and operating data and other information with respect to the Purchased
Assets as Buyer shall from time to time request; provided, however, that any
such investigation shall not affect any of the representations and warranties
hereunder or under the Mobliss Agreement; and provided, further, that any such
investigation shall be conducted in such manner as not to interfere unreasonably
with the operation of Seller’s or Mobliss’ business. In no event shall Buyer
have access to any books, records, employees, customers, suppliers and agents
unrelated to the Purchased Assets.
(b) Operation
of the Business Pending Closing.
Between
the date hereof and the Closing Date, unless Buyer consents in writing to the
contrary, Seller (with respect to the following clauses (i), (ii), (iii), (vi)
and (vii) only) and Mobliss shall, with respect to the Purchased Assets and
Assumed Liabilities only:
(i) conduct
its business in the ordinary course in accordance with prior
practice;
(ii) not
sell,
lease, dispose of, convey or transfer or agree to sell, lease, dispose of,
convey or transfer any Purchased Assets;
(iii) not
incur
any fixed or contingent obligation or enter into any agreement, commitment
or
other transaction or arrangement relating to the Purchased Assets which (x)
may
not be terminated by Seller on 30 days’ notice or less without cost or
liability, and (y) which is not in the ordinary course of Seller’s business, and
(z) which is not transferable or assignable to Buyer;
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(iv) use
its
commercially reasonable efforts to preserve the Carrier Contracts;
(v) bear
the
risk of loss or damage to the Purchased Assets prior to the Closing, and
maintain all Purchased Assets, whether owned or leased, in substantially the
same condition as they now are;
(vi) not
enter
into any transaction or perform any act which would make any of the
representations, warranties or agreements contained in this Agreement false
or
misleading in any material respect if made again immediately after such
transaction or act; and
(vii) not,
directly or indirectly, sell, transfer or otherwise dispose of, solicit any
offer for the purchase or acquisition of, or engage in any negotiations,
discussions or agreements with any Person other than Buyer, the purpose or
result of which would be the sale, transfer or disposition of any Purchased
Assets, excepting only sales from inventory in the ordinary course of
business.
(c) Advice
of Changes.
If
Seller becomes aware (without any duty of investigation or other inquiry) of
any
fact or facts which, if known at the date of this Agreement, would have been
required to be set forth or disclosed in or pursuant to this Agreement or which,
individually or in the aggregate, materially adversely affects the Purchased
Assets, Seller shall promptly advise Buyer in writing thereof.
(d) Carrier
Contracts.
Seller,
Buyer and Mobliss shall each use commercially reasonable efforts to cause the
assignment of each of the Carrier Contracts from Mobliss and/or Seller to Buyer
prior to February 28, 2007. In addition, following
the Initial Closing, Mobliss and Seller shall assist, in good faith and using
commercially reasonable efforts, Buyer in establishing business relationships
with Sprint and any other carriers reasonably requested by Buyer, including
facilitating introductions to the officers or other appropriate employees of
such carriers.
9. Conditions
to Obligations of Buyer.
Unless
waived, in whole or in part, in writing by Buyer, the obligations of Buyer
to
effect the transactions contemplated hereby shall be subject to the satisfaction
at or prior to each Closing Date of each of the following
conditions:
(a) Representations
and Warranties of Seller to be True.
The
representations and warranties of Seller contained in this Agreement shall
be
true and correct in all material respects on each Closing Date with the same
force and effect as though made on and as such Closing Date. Seller shall have
performed all obligations and complied with all covenants required by this
Agreement to be performed or complied with by Seller on or prior to such Closing
Date.
(b) No
Proceedings.
No
action, suit or proceeding before any court or any governmental body or
authority pertaining to the transactions contemplated by this Agreement shall
have been instituted or threatened on or prior to such Closing
Date.
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(c) No
Adverse Change.
Since
the date of this Agreement there shall not have been any material adverse change
in the Purchased Assets.
(d) Consents.
On or
prior to the Initial Closing, Seller shall have obtained and delivered to Buyer
all required consents required to transfer the Purchased Assets (excluding
the
Carrier Contracts) and the Carrier Contracts with Cingular. On or prior to
each
Subsequent Closing, Seller shall have obtained and delivered to Buyer all
consents required in order to transfer the Purchased Assets (and specifically
the Carrier Contracts) being transferred and assigned to Buyer at such Closing.
(e) Fully
Functioning System and Due Diligence.
On or
prior to the Initial Closing, Buyer shall be satisfied, in its sole discretion,
that the Purchased Assets delivered and assigned to Buyer at the Initial Closing
represent a fully functional message deliver and billing system with the
capability to support the Carrier Contracts and shall have completed and
approved to its sole satisfaction such other customary business and legal due
diligence with respect to the Purchased Assets as it deems
necessary.
(f) Mobliss
Agreement.
The
transactions contemplated by the Mobliss Agreement, including the acquisition
of
the Purchased Assets, shall have been consummated pursuant to the terms of
such
agreement, without waiver of any material condition thereto, and Buyer shall
be
a third party beneficiary of such agreement.
(g) Closing
Deliveries.
All
documents required to evidence the transfer of the Purchased Assets to Buyer
shall be reasonably satisfactory in form and substance to Buyer’s counsel and
Seller’s counsel, and such counsels shall have received all such counterpart
original and certified or other copies of such documents as such counsels
reasonably may request.
(h) Heads
of Agreement.
Buyer
and Seller shall have entered into such other definitive agreements as either
party deems reasonably necessary to implement all of the agreements and
transactions contemplated by the Heads of Agreement dated as of even date
herewith, by and between Buyer and Seller.
10. Conditions
to Obligations of Seller.
Unless
waived, in whole or in part, in writing by Seller, the obligations of Seller
to
effect the transactions contemplated hereby shall be subject to the satisfaction
at or prior to each Closing Date of each of the following
conditions:
(a) Representations
and Warranties of Buyer to be True.
The
representations and warranties of Buyer contained in this Agreement shall be
true and correct in all material respects on each Closing Date with the same
force and effect as though made on and as of such Closing Date. Buyer shall
have
performed all obligations and complied with all covenants required by this
Agreement to be performed or complied with by Buyer on or prior to such Closing
Date.
(b) No
Proceedings.
No
action, suit or proceeding before any court or any governmental body or
authority pertaining to the transactions contemplated by this Agreement shall
have been instituted or threatened on or prior to such Closing
Date.
10
(c) Mobliss
Agreement.
The transactions contemplated by the Mobliss Agreement, including the sale
of
the Purchased Assets, shall have been consummated pursuant to the terms of
such
agreement.
(d) Heads
of Agreement.
Buyer
and Seller shall have entered into such other definitive agreements as either
party deems reasonably necessary to implement all of the agreements and
transactions contemplated by the Heads of Agreement of even date herewith by
and
between Buyer and Seller.
(e) Registration
Rights.
If
prior to any Closing Date Buyer shall have granted registration rights to any
shareholder of the Company, then Buyer shall have granted to Seller registration
rights which are pari
passu
or
senior to the registration rights granted to such other shareholder in
accordance with Section 15 below.
11. Support
Services.
Mobliss
shall provide to Buyer the transfer and transitional support services set forth
on Exhibit G.
12. Confidentiality;
Publicity.
Each
party hereto (“Party”)
acknowledges and agrees that any information or data such Party has acquired
from or about any other Party, not otherwise properly in the public domain,
was
received in confidence (the “Confidential
Information”).
Any
distribution of the Confidential Information to any person, in whole or in
part,
or the reproduction of the Confidential Information, or the divulgence of any
of
its contents (other than to such Party’s tax and financial advisers, attorneys
and accountants, who will likewise be required to maintain the confidentiality
of the Confidential Information) is unauthorized, except that any Party (and
each employee, representative, or other agent of such Party) may disclose to
any
and all persons the tax treatment and tax structure of the transaction and
all
materials of any kind (including opinions or other tax analyses) that are
provided to such Party relating to such tax treatment and tax structure. Except
as provided above with respect to tax matters, each Party, agrees not to
divulge, communicate or disclose, except as may be required by law or for the
performance of this Agreement, or use to the detriment of any other Party or
for
the benefit of any other person or persons, or misuse in any way, any
Confidential Information of any other Party, including any scientific,
technical, trade or business secrets of any other Party and any scientific,
technical, trade or business materials that are treated by any other Party
as
confidential or proprietary, including, but not limited to, ideas, discoveries,
inventions, developments and improvements belonging to any other Party and
Confidential Information obtained by or given to any other Party about or
belonging to third parties. Notwithstanding anything else in this Agreement
or
otherwise to the contrary, no party will issue any press release or other public
announcement related to this Agreement or the transactions contemplated
hereunder without the other Parties’ prior written approval.
13. Nature
and Survival of Representations and Warranties, Indemnity.
(a) Nature
and Survival of Representations and Warranties.
All
representations and warranties of the parties shall survive the consummation
of
the transactions hereunder and any and all inspections, examinations or audits
on behalf of Buyer and Seller (as the case may be), and such representations
and
warranties shall be binding upon the parties to this Agreement, their successors
and assigns for a period of 24 months following the execution of this
Agreement.
11
(b) Indemnification
by Seller.
Seller
hereby covenants and agrees with Buyer that, regardless of any investigation
made at any time by or on behalf of Buyer or any information Buyer may have
and
regardless of any Closing of the purchase of the Purchased Assets hereunder,
Seller shall indemnify Buyer and its directors, officers, shareholders and
affiliates, and each of their successors and assigns (individually, a
“Buyer
Indemnified Party”),
and
hold them harmless from, against and in respect of any and all costs, losses,
claims, liabilities, fines and penalties (excluding
interest
which may be imposed in connection therewith and arbitration/court costs and
reasonable attorneys fees and disbursements of counsel) (collectively,
“Losses”)
incurred by any of them in connection with:
(i) any
breach of, with respect to or any inaccuracy in, any of the representations,
warranties, covenants or agreements made by Seller in this Agreement or any
exhibit or schedule to this Agreement or any certificate, instrument or writing
delivered in connection herewith;
(ii) any
attempt (whether or not successful) by any person to cause or require a Buyer
Indemnified Party to pay or discharge any debt, obligation, liability or
commitment of Seller or Mobilss under any Carrier Contract attributable to
any
state of facts existing or any event occurring after January 13, 2004 and at
or
prior to September 28, 2006; or
(iii) any
action, suit, proceeding, compromise, settlement, assessment or judgment arising
out of or incidental to any of the matters indemnified against in this Section
13(b); provided,
however,
that
Seller shall not be obligated to indemnify a Buyer Indemnified Party and hold
it
harmless under this Section 13(b) with respect to any settlement of a claim
to
which Seller has not consented, which consent shall not unreasonably be withheld
or delayed. If, by reason of the claim of any third person relating to any
of
the matters subject to indemnification under this Section 13(b), a lien,
attachment, garnishment or execution is placed upon any of the property or
assets of any Buyer Indemnified Party, Seller shall also, promptly upon demand,
furnish an indemnity bond sufficient to obtain the prompt release of such lien,
attachment, garnishment or execution.
(c) Right
to Defend, Etc.
If the
facts giving rise to any claim for indemnification hereunder shall involve
any
actual claim or demand by any third person against a Buyer Indemnified Party
(who are referred to hereinafter as an “Indemnified
Party”),
the
Indemnifying Party shall be entitled to notice of and entitled (without
prejudice to the right of any Indemnified Party to participate at its own
expense with counsel of its own choosing) to defend or prosecute such claim
at
its own expense and through counsel of its own choosing if it gives written
notice of its intention to do so no later than the time by which the interests
of the Indemnified Party would be materially prejudiced as a result of its
failure to have received such notice; provided, however, that if the defendants
in any action shall include both the indemnifying party and the Indemnified
Party and the Indemnified Party shall have reasonably concluded that counsel
selected by the indemnifying party has a conflict of interest because of the
availability of different or additional defenses to the Indemnified Party,
the
Indemnified Party shall have the right to select separate counsel to participate
in the defense of such action on its behalf, at the expense of the indemnifying
party. The Indemnified Party shall cooperate fully in the defense of such claim
and shall make available to the indemnifying party pertinent information under
its control relating thereto, but shall be entitled to be reimbursed, as
provided in this Section 13, for all costs and expenses incurred by it in
connection therewith.
12
(d) Limitation
on Indemnification.
Seller
hereby assigns all of its rights under Section 13 of the Mobliss Agreement
to
Buyer Indemnified Parties and agrees to use its commercially reasonable efforts
to cooperate with each Buyer Indemnified Party, at such Buyer Indemnified
Party’s expense, in enforcing any right or claim that a Buyer Indemnified Party
may have against Mobliss hereunder or under the Mobliss Agreement.
Notwithstanding anything to the contrary herein, Seller shall have no duty
to
defend or indemnify any Buyer Indemnified Party pursuant to this Section 13
unless such Buyer Indemnified Party shall first have exercised its rights with
respect thereto against Mobliss as a third party beneficiary under the Mobliss
Agreement and it shall have been judicially determined by a court of appropriate
jurisdiction that Buyer Indemnified Party’s rights as a third party beneficiary
of the Mobliss Agreement are valid, but unenforceable against Mobliss.
Additionally, Seller shall not be obligated to indemnify any Buyer Indemnified
Party with respect to any matter to the extent that such Buyer Indemnified
Party
shall have received any recovery with respect to such matter from Mobliss and
unless such Buyer Indemnified Party shall have first used its commercially
reasonable efforts to pursue and collect on any recovery available under any
insurance policies, if applicable. The amount of losses or other liability
incurred by a Buyer Indemnified Party shall be reduced (i) by any and all
amounts recovered by such Buyer Indemnified Party under applicable insurance
policies and (ii) to take account of any net tax benefit realized by Buyer
Indemnified Party arising from the incurrence or payment of any indemnified
amount. Seller shall not have any liability to any Buyer Indemnified Party
under
this Section 13 to the extent that the cumulative aggregate amount of Losses
incurred by the Buyer Indemnified Parties under this Section 13 exceeds the
aggregate amount of payments made by Seller to Mobliss under the Mobliss
Agreement. No claim for indemnification under this Section 13 may be brought
by
any Buyer Indemnified Party against Seller unless written notice of such claim
specifying in reasonable detail the nature of the claim and amount of Losses
attributable thereto is delivered by such Buyer Indemnified Party to Seller
within six (6) months after the final Closing Date. In no event shall any Buyer
Indemnified Party be entitled to indemnification under Section 13 for any claim
if any Buyer Indemnified Party had (as of the date of this Agreement) any actual
knowledge of the existence of the facts and circumstances giving rise to the
basis for such claim. The sole recourse and exclusive remedy of Buyer for
breaches or inaccuracies of representations and warranties contained in this
Agreement and other documents delivered pursuant hereto, or with respect to
the
Purchased Assets shall be indemnification under this Section 13 and Buyer may
not bring any other claim whatsoever in connection therewith.
(e) Further
Indemnification from Mobliss.
In
furtherance of the forgoing provisions of this Section 13 and of the
indemnification obligations of Mobliss set forth in the Mobliss Agreement and
as
a material inducement to Buyer to enter into this Agreement (which is a closing
condition under the Mobliss Agreement), Mobliss hereby covenants and agrees
with
Buyer that, regardless of any investigation made at any time by or on behalf
of
Buyer or any information Buyer may have and regardless of any Closing of the
purchase of the Purchased Assets hereunder, Mobliss shall indemnify each Buyer
Indemnified Party and hold them harmless from, against and in respect of any
and
all costs, losses, incidental and consequential damages, claims, liabilities,
fines and penalties (including interest which may be imposed in connection
therewith and court costs and reasonable attorneys fees and disbursements of
counsel) incurred by any of them in connection with:
13
(i) all
liabilities of or claims against Buyer Indemnified Parties of any nature,
whether accrued, absolute, contingent or otherwise, arising out of the Purchased
Assets or Mobliss’ business attributable to any state of facts existing or any
event occurring at or prior to any Closing (whether known or unknown to Mobliss
or Buyer) to the extent not included in the Assumed Liabilities assumed by
Buyer
at such Closing, except to the extent such claims are attributable solely to
a
breach of any of the representations or warranties made by Buyer in this
Agreement, any exhibit or schedule to this Agreement or any certificate,
instrument or writing delivered in connection therewith;
(ii) any
breach of, with respect to or any inaccuracy in, any of the representations,
warranties, covenants or agreements made by Mobliss in the Mobliss Agreement,
any exhibit or schedule to the Mobliss Agreement or any certificate, instrument
or writing delivered in connection therewith;
(iii) any
attempt (whether or not successful) by any person to cause or require a Buyer
Indemnified Party to pay or discharge any debt, obligation, liability or
commitment of Mobliss not specifically assumed by Buyer pursuant to this
Agreement, including any obligation under a Carrier Contract that was required
to be performed by Mobliss prior to the Closing Date; or
(iv) any
action, suit, proceeding, compromise, settlement, assessment or judgment arising
out of or incidental to any of the matters indemnified against in this Section
13(e); provided,
however,
that
Mobliss shall not be obligated to indemnify a Buyer Indemnified Party and hold
it harmless under this Section 13(e) with respect to any settlement of a claim
to which Mobliss has not consented, which consent shall not unreasonably be
withheld or delayed. If, by reason of the claim of any third person relating
to
any of the matters subject to indemnification under this Section 13(e), a lien,
attachment, garnishment or execution is placed upon any of the property or
assets of any Buyer Indemnified Party, Mobliss shall also, promptly upon demand,
furnish an indemnity bond sufficient to obtain the prompt release of such lien,
attachment, garnishment or execution.
14. Taxes.
Seller,
as between Buyer and Seller, shall remain liable for the filing of all tax
returns and reports and for the payment of all federal, state, local and foreign
taxes of Seller relating to the operation of Seller or use of the Purchased
Assets by Seller for any period ending on or prior to the Closing Date upon
which such Purchased Assets are transferred to Buyer and Seller shall remain
so
liable for the payment of all of the taxes attributable to or relating to the
consummation of the transactions contemplated herein, and shall indemnify and
hold Buyer harmless from and against all liability in connection
therewith.
15. Registration
Rights.
On and
after the date of this Agreement, in the event that Buyer grants any other
stockholders of Buyer registration rights (whether demand registration,
piggyback registration or registration on Form S-3), Buyer shall grant to Seller
registration rights on terms, conditions and restrictions no less favorable
than
those granted to such other stockholders of Buyer, and the Conversion Shares
(as
defined in the Note) shall constitute “Registrable Securities” (or similar term)
as defined and used in any such registration rights agreement (with the intent
that the Conversion Shares shall be aggregated with such other shares subject
to
registration and be entitled to participate pari
passu
in any
registration of shares of capital stock of Buyer); provided, however, that
that
Seller shall be bound by the terms, conditions and restrictions applicable
to
such registration rights and contained in any such registration rights
agreement.
14
16. Arbitration.
The
United Nations Convention on Contracts for the International Sale of Goods
shall
not apply to this Agreement. Any controversy, claim or dispute arising out
of or
relating to this Agreement, or the breach, termination, enforcement,
interpretation or validity thereof, shall be resolved in the following
manner:
(a) The
Parties shall use all reasonable efforts to resolve the controversy, claim
or
dispute through direct discussions. The senior management of each Party commits
itself to respond promptly to any such controversy, claim or dispute. Within
30
days of written notice that there is such a controversy, claim or dispute,
the
Parties shall confer by telephone in an effort to reach an amicable
settlement.
(b) If
no
amicable settlement is reached as a result of the procedure in subsection 16(a)
above, the Parties shall seek to resolve the controversy, claim or dispute
by
submitting the controversy, claim or dispute to arbitration in (i) in Los
Angeles, California, in the case of a controversy, claim or dispute brought
by
Seller or (ii) in Tokyo, Japan, in the case of a controversy, claim or dispute
brought by Buyer. Any arbitration conducted in Tokyo, Japan pursuant to this
Agreement shall be administered by the Japan Commercial Arbitration Association
pursuant to its commercial arbitration rules then in effect. Any arbitration
conducted in Los Angeles, California pursuant to this Agreement shall be
administered by the American Arbitration Association pursuant to its commercial
arbitration rules then in effect. The determination of the arbitration shall
be
binding and final on the Parties and judgment on each Party may be entered
in
any federal or state court Los Angeles, California or Tokyo, Japan. Each Party
hereby waives any right to and the arbitrator shall not have the power to award
special, incidental, indirect, consequential, punitive, exemplary, double or
treble damages of any kind arising in connection with this
Agreement.
(c) Each
of
the Parties hereby consents to the jurisdiction of any federal or state court
located in Los Angeles, California, and Tokyo, Japan, and subject to the
arbitration provisions of this Section 16, irrevocably agrees that all
actions or proceedings relating to this Agreement shall be instituted and heard
by any court of such jurisdiction. Each Party hereby waives any objection that
it may have based on improper venue or forum
non conveniens
to the
conduct of any proceeding in any such court and personal service of any and
all
process upon it, and consents to any such service of process made in the manner
provided herein for the giving of notices under this Agreement. Each of the
Parties shall be responsible for and pay its own costs and expenses, including
attorneys’ fees, in connection with any such arbitration proceeding, provided
that each Party shall be responsible for and pay 50% of the fee charged by
the
arbitrators in connection with any such proceeding.
17. Termination.
This
Agreement may be terminated:
15
(i) by
mutual
written agreement of Buyer and Seller; or
(ii) by
Buyer
by written notice to Seller, if the Initial Closing has not occurred, through
no
fault of Buyer, on or before January 31, 2007; or
(iii) by
Seller
by written notice to Buyer, if the Initial Closing has not occurred, through
no
fault of Seller, on or before January 31, 2007.
18. Miscellaneous.
(a) Further
Assurances.
Each of
Seller and Buyer (and Mobliss) agrees to execute such further documents or
instruments and to take such other actions as are necessary to carry out the
transactions contemplated by this Agreement.
(b) Notices.
All
notices and demands under this Agreement will be in writing and will be
delivered by personal service, or recognized national overnight courier service.
A courtesy copy of such notice maybe delivered by fax or postal mail, but such
delivery shall not constitute notice hereunder. All notices shall be to the
address of the receiving party set forth below, or at such different address
as
may be designated by such party by written notice to the other party from time
to time. Notice will be effective on receipt.
If
to Seller:
Index
Visual & Games Ltd.
3F
Yokomizo Xxxx.
0-00-0,
Xxxxxxx, Xxxxxxxx-xx
Xxxxx
000-0000 Xxxxx
Attention:
Xxxxxxx Xxxxxxxx
Fax:
x00 00 0000 0000
|
If
to Buyer:
New
Motion, Inc.
00
Xxxxxxxxx Xxxx, Xxxxxx Xxxxx
Xxxxxx,
XX 00000
Attention:
Xxx Xxxxx
Fax:
000-000-0000
|
If
to Mobliss:
Mobliss,
Inc.
000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attention:
Xxx Xxxxxx
Fax:
000-000-0000
|
(c) Amendment;
Waiver.
This
Agreement shall be binding upon and inure to the benefit of the parties to
this
Agreement and their respective successors, assigns, heirs and personal
representatives. No provision of this Agreement may be waived unless in writing
signed by all of the parties to this Agreement, and waiver of any one provision
of this Agreement shall not be deemed to be a waiver of any other
provision.
(d) Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED BOTH AS TO VALIDITY AND PERFORMANCE
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT
GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF. EACH OF THE PARTIES
HERETO HEREBY WAIVES THEIR RIGHT TO A JURY TRIAL WITH RESPECT TO ANY SUCH LEGAL
ACTIONS.
16
(e)
Interpretation.
This
Agreement and all of the provisions hereof, shall be deemed drafted by all of
the parties hereto. This Agreement shall not be interpreted strictly for or
against any party, but solely in accordance with the fair meaning of the
provisions hereof to effectuate the purpose and intent of this
Agreement.
(f) Expenses.
Each of
the parties shall pay its own expenses incurred in connection with the
preparation of this Agreement and the consummation of the transactions
contemplated hereby.
(g) Severability.
Whenever possible, each provision of this Agreement shall be interpreted in
such
a manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be or become prohibited or invalid under applicable
law,
such provision shall be ineffective to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or the remaining
provisions of this Agreement.
(h) Headings.
The
section and subsection headings contained in this Agreement are included for
convenience only and form no part of the agreement between the
parties.
(i) Assignment.
Except
in connection with the transfer of the Purchased Assets to New Motion, the
rights and obligations under this Agreement are not assignable.
(j) Entire
Agreement.
This
Agreement and each of the attachments hereto, constitutes and embodies the
entire understanding and agreement of the parties hereto relating to the subject
matter hereof and there are no other agreements or understandings, written
or
oral, in effect between the parties relating to such subject matter except
as
expressly referred to herein.
[Signature
Page Follows]
17
IN
WITNESS WHEREOF, this Agreement has been executed as of the date first set
forth
above.
BUYER
New
Motion, Inc.
By:
________________________
Name:
Xxx
Xxxxx
Title:
President
|
SELLER
Index
Visual & Games Ltd.
By: _________________________
Name:
Xxxxxxx
Xxxxxxxx
Title:
President & CEO
|
With
respect to its obligations hereunder, including Sections 3(d), 8,
11 and
13(e) and the Exhibits attached hereto. Mobliss, Inc. further acknowledges
and agrees that New Motion, Inc. is an intended third party beneficiary
of
the Mobliss Agreement and may enforce the rights provided to it thereunder
as if it were a party thereto.
|
|
Mobliss,
Inc.
By:
_____________________
Name:
___________________
Title:
____________________
|
18
EXHIBIT
A
CARRIER
CONTRACTS
Carrier
|
Contract
|
Associated
Purchase Price
|
||
Cingular
Wireless LLC (f/k/a AT&T Wireless Services, Inc.) *
Cingular
Wireless LLC *
|
Messaging
Agreement dated November 17, 2003, as amended
SMS
Connectivity Agreement dated January 8, 2004
|
$580,000
|
||
ALLTEL
Communications, Inc.
|
Connectivity
License Agreement by and between ALLTEL and Mobliss
|
$280,000
|
||
Cincinnati
Xxxx Wireless Company
|
SMS
Service Agreement
|
$10,000
|
||
Cricket
|
$60,000
|
|||
My
Thumb Interactive
|
$210,000
|
|||
T-Mobile
USA, Inc. **
|
T-Mobile
Content Gateway Program Aggregator Agreement effective June 30,
2004
|
$150,000
|
||
Verizon
Wireless ***
|
Advanced
Messaging Agreement for Marketing Hubs dated October 16,
2003
|
$530,000
|
||
TOTAL
|
$1,820,000
|
* |
Included
in Purchased Assets to be delivered at Initial Closing, but associated
Purchase Price payable on January 15,
2007.
|
** | Upon assignment of the T-Mobile Content Gateway Program Aggregator Agreement (as set forth in Exhibit A), Mobliss will transfer to all software related with the COGA platform. |
*** | Upon assignment of the Advanced Messaging Agreement For Marketing Messaging Hubs, Mobliss will transfer all software related with the NDM platform. |
Exhibit
A-1
EXHIBIT
B
MOBLISS
SOFTWARE
A. Source
Code
Mobliss
will transfer the current copy of the source control containing all source
code
for all bind related systems to New Motion, provided that Mobliss shall retain
a
copy of such source code for its use. Each of New Motion and Mobliss grants
the
other party a fully paid, non-exclusive, perpetual, sub-licensable and
transferable license to use and modify such source code.
B. Development/Testing
Infrastructure
Mobliss
has a basic development environment that supports development and testing of
the
bind related systems. That environment along with the hardware will be
transferred as part of the Purchased Assets. Each of New Motion and Mobliss
grants the other party a fully paid, non-exclusive, perpetual, sub-licensable
and transferable license to use and modify such development and testing
environment.
Exhibit
B-1
EXHIBIT
C
HARDWARE
A. Networking
Item
No.
|
Description
|
Quantity
|
Serial
Numbers
|
1
|
Cisco
2691 Router
|
2
|
ONMBC00ARA
|
2
|
Netscreen
Firewalls
|
2
|
0029072002000305
0029122002000115
|
3
|
Foundry
FastIron Switches
|
4
|
2
Per Cabinet
|
B. Application
Servers
Item
No.
|
Description
|
Type
|
Quantity
|
Serial
Numbers
|
4
|
Billing
servers (Mercury, Venus)
|
HP
DL140
|
2
|
m02bmf621w
m03fm621w
|
5
|
AlertServer
servers (Earth, Mars)
|
HP
DL140
|
2
|
m02um6624
m024m6624
|
6
|
Web
Servers (xxxxx, xxxxx)
|
HP
DL140
|
2
|
m035mf6238
m03pmf6238
|
7
|
Coga
Server (Sedna)
|
HP
DL140
|
2
|
M00GMF662G
|
8
|
Utility
servers for dns, syslog, cron scripts (pan)
|
HP
DL140
|
1
|
M0FGMF623L
|
9
|
Aggregation
Proxy Server (Neptune)
|
HP
DL140
|
1
|
M00CMF6626
|
Exhibit
C-1
C. Database
System and Servers
Item
No.
|
Description
|
Type
|
Quantity
|
Serial
Numbers
|
10
|
PostgreSQL
and MySQL server (naga)
|
HP
DL380
|
1
|
D348LDNGH185
|
11
|
Oracle
Server (xxxx, xxxx)
|
HP
DL585
|
2
|
EN1HMLKB5H
EN1FMLKB5H
|
12
|
Storage
Array
|
NetApp
|
1
|
PMA441920033947
PMA441920100544
|
New
Motion shall support Mobliss’ services which are not acquired, but rely on the
above hardware, and shall provide Mobliss access to the transferred hardware,
pursuant to the Transition Support Agreement in the form attached
hereto.
Exhibit
C-2
EXHIBIT
D
OTHER
ASSETS
1. Co-location
Mobliss
will, subject to approval by Internap, sub-let to New Motion at no cost other
than Internap’s associated monthly service fee and related broadband costs, for
a period of up to twelve months, two of the five cabinets (with the IP blocks
00.000.000.00/00 and 00.000.000.000/00) at the Internap datacenter co-location
facility that Mobliss currently occupies; provided, that the sublease shall
terminate upon New Motion entering into a co-location agreement directly with
Internap.
2. Short
Codes
(i) Demo
Codes
Mobliss
will use commercially reasonable efforts to transfer 10830 and 10838 demo codes
to New Motion
(ii) Live
Short Codes
Mobliss
will transfer the following short codes to New Motion
TBD
Exhibit
D-1
EXHIBIT
E
OTHER
CONTRACTS
Vibes
Media, Data Services Agreement, dated January 13, 2003, as amended.
Exhibit
E-1
EXHIBIT
F
ADDITIONAL
BILLING SYSTEM ASSETS
None.
Exhibit
F-1
EXHIBIT
G
TRANSITION
SERVICES
1. Mobliss
Obligations - Mobliss will make employees available for de minimis telephone
and
information support and consultation during normal business hours for a period
of three (3) months following the Initial Closing. Such consultation will be
limited to telephone and informational support, which support shall not exceed
40 hours in the first month following the Initial Closing, 20 hours in the
2nd
month following the Initial Closing and 10 hours in the 3rd month following
the
Initial Closing.
2. Mobliss
Services - Following the Initial Closing, Mobliss
shall perform additional transition support services as reasonably requested
by
New Motion for a fee of $250 per hour for standard engineering services, and
$300 per hour for engineering services outside the ordinary scope of service
provided by Mobliss’ employees. Such fees shall be invoiced and paid monthly. In
addition, upon
presentation by Mobliss of an invoice accompanied by supporting documentation
reasonably satisfactory to New Motion, New Motion shall reimburse Mobliss
monthly for reasonable expenses, including (without limitation) travel expenses,
incurred directly on behalf of New Motion in connection with the performance
of
transitional support services requested and authorized by New Motion following
the Initial Closing.
Exhibit
G-1
EXHIBIT
H
CONVERTIBLE
PROMISSORY NOTE
Exhibit
H-1