ASSET PURCHASE AGREEMENT
------------------------
THIS PURCHASE AND SALE AGREEMENT is entered into as of December 31, 1997
(the "Effective Date") among The Chip Merchant, Inc., a California corporation
("Buyer"), Software Technologies, Inc., a Nevada corporation dba Helix
Technologies (the "Seller"), Albara. Corporation, a Colorado corporation
("Shareholder"), and R xx Xxxxxxxxxx, an individual ("Xxxxxxxxxx"), with
reference to the following facts:
A. Seller is engaged in the business of software development,
marketing, sales and support services (the "Business").
B. Seller owns all right, title, and interest in and to
relational database, development environment software known as Helix Express
that allows users to develop information management systems, along with related
software programs, updates and patches, including but not limited to, Helix
Express Runtime Engine, and Helix PowerMover, which software is more
particularly described on Exhibit A attached hereto ("Software").
C. Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, all of Sellers right, title and interest in and to the Software and
related intellectual property rights, and other information owned by Seller
relating to the Software.
NOW, THERFFORE, in consideration of the foregoing facts and the mutual
promises set forth below, the parties agree as follows:
1. Sale and Purchase of Assets. Subject to the terms and conditions
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set forth in this agreement, Seller hereby agrees to sell to Buyer, and Buyer
hereby agrees to purchase from Seller, all right, title and interest in and to:
(i) the Software, including without limitation in written and electronic form
all source code, object code, file formats, object libraries, algorithms,
macros, and technical and user documentation, the design and the "look and feel"
of the screen displays and the user interface; all work in process; all patent,
copyright, trademark, trade secret right and other intellectual property rights
in and to the Software, any and all versions, modifications, corrections,
adaptions. translations enhancements, improvements or derivative works thereof,
and the program that creates the enabling keys; (ii) any rights to the
"HelixTech" domain names; (iii) copies of all customer information, sales
history, registration, mailing lists, and developer information related to the
Software ("Customer Information"), (iv) a copy of Seller's customer list
(Customer List"), and (v) copies of all financial, research and development,
employee., subcontractor and vendor records related to the Software ("Other
Records") (collectively, the "Assets").
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2. No Assumption of Ljability. Buyer shall not assume or be
------------------------------
obligated to perform any liability or obligation of Seller, whether or not such
liability arises out of or in connection with the sale of the Assets hereunder.
3. Purchase Price. The purchase price (the "Purchase Price") for
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the Assets shall be One Hundred and Twenty Thousand Dollars ($120,000. 00),
payable in cash on the Effective Date. The Purchase Price shall be allocated to
the Assets as set forth on Exhibit A. Each of the parties shall report this
transaction for tax purposes in accordance with such allocation.
4. Closing. The closing shall take place at the offices of
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Sheppard, Mullin, Xxxxxxx & Xxxxxxx LLP, 000 Xxxx Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxxx, Xxxxxxxxxx 00000-0000 on the Effective Date, at 10:00 A.M., California
time, or such other date, place or time as may be agreed upon between the
parties, such date being reffered to herein as the "Closing Date" or "Closing";
provided, however, that the Closing shall not occur until after each of the
conditions set forth in Section 5 and 6 hereto have been satisfied.
4.1 Transfer of Possession. On the Effective Date, Seller will
-------------------------
put Buyer into full possession of the Software and Customer List, including
delivery of the Software configured in source code, together with all technical
and user documentation and the compiler for the package. Buyer shall have access
to the Customer Information and the Other Records in accordance with Section 9.1
below. Seller shall execute and provide slich assignments, assumptions and other
instruments of transfer, in form and substance reasonably satisfactory to Buyer,
with such other appropriate instruments of title and consents of third parties
as Buyer shall reasonably request in order to effectively transfer the Assets
and the Contracts.
4-2 Further Assistance. Seller at any time after the
--------------------
Effective Date shall execute, acknowledge and deliver any other assignments,
conveyances and other assurances, documents and insruments of transfer or
assumption, reasonably requested by Buyer and will take any other action
consistent with the terms of this agreement that may reasonably be requested by
Buyer for the purpose of better transferring to Buyer or reducing to possession
the Assets or the assumption of the Assumed Liabilities by Buyer.
4.3 License Agreement. As of the Effective Date, Buyer
-------------------
shall, as licensor, grant to Seller, as licensee, an exclusive, worldwide,
nontransferable license to reproduce the Software for resale to end users,
distributors, and dealers which are sublicensees, in accordance with the terms
and conditions off the License Agreement attached as Exhibit B hereto ("License
Agreement"). The term of the License Agreement shall commence upon the Effective
Date and shall expire on July 1, 1998, or upon an earlier termination date
mutually agreed to by Seller and Buyer ("License Termination Date"). If the
License Termination Date occurs prior to June 1, 1998, Buyer shall deliver a
payment in the amount of Five Thousand Dollars ($5,000) to Seller. The License
2
Agreement shall provide that Seller shall, provided Seller is not in breach of
any of the terms and conditions of this agreement or the License Agreement, be
exclusively entitled to all revenues from sales of the Software and/or
derivative works for the time period through the License Termination Date.
5. Conditions Precedent to the Closing by Buyer. The obligation of Buyer to
---------------------------------------------
consummate this agreement is subject to the fulfillment at or prior to the
Closing Date of the conditions set forth below.
5.1 Representations and Warranties. The representations and
--------------------------------
warranties of Seller shall be true and correct in all material respects as of
the Closing Date as though made on and as of the Closing Date and Seller shall
have performed or compiled with all of its covenants, terms and conditions to be
performed prior to Closing.
5.2 No Action. No action or proceeding shall have been
-----------
instituted prior to or at the Closing before any court or other governmental
body, or instituted or threatened by any public authority, or any individual or
entity with whom Seller has a contractual relationship pertaining to the
acquisition by Buyer of the Assets, the results of which could prevent,
materially delay or make illegal the consummation of such purchase.
5.3 Material Damage. Prior to the Closing, no material
-----------------
damage, destruction, casualty or loss (whether or not covered by insurance) and
no other event or condition materially and adversely affecting the Assets, shall
have, occurred.
5.4 Authorization by the Seller. The execution and delivery
-----------------------------
of this agreement by the Seller and the performance of the transactions
contemplated herein shall have been duly authorized by the Seller's board of
directors and shareholders and Buyer shall have received copies of all
resolutions of the board of directors and shareholders pertaining to such
authorization, certified by the Seller's secretary.
5.5 Ownership of Software and Assets. Buyer shall have
---------------------------------
received from Seller evidence satisfactory to Buyer in its sole and absolute
discretion that Seller owns all rights, title and interest in and to the
Software and Assets, and if applicable, that Seller has acquired all rights,
including all copyrights, to the Software from the original developer of the
program, and demonstrate to Buyer that the Software does not contain any
copyright notices or other legends or claims of ownership other than the
copyright notice of Seller that will be deleted after the sale.
5.6 Other Assignments. Seller shall have executed and
------------------
delivered to Buyer a Xxxx of Sale for the Assets in the form of Exhibit C and an
Assignment of Trademarks and Service Marks and an Assignment of Copyrights in
the form of Exhibit D, each duly executed by Seller.
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6. Conditions Precedent to the Closing by Seller. The
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obligation of Seller to consummate this agreement and to sell the Assets as
provided herein is subject to fulfillment at or prior to the Closing Date of the
conditions set conditions set forth below.
6.1 Representations and Warranties. The representations and
-------------------------------
warranties of Buyer shall be true and correct in all material respects as of the
CLosing Date as though made on and as of the Closing Date, and Buyer shall have
performed or complied with all of its covenants, terms and conditinos to be
performed by Buyer prior to Closing.
6.2 No Action. No action or proceeding shall have been
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instituted prior to or at the Closing Date before any court or other
governmental body, or instituted or threatened by any public authority
pertaining to the acquisition by Buyer of the Assets hereunder, the results of
which could prevent or make illegal the consummation of such purchase.
6.3 Other Agreements. Buyer shall have executed and delivered
----------------
to Seller an Assignment and Assumption Agreement in the form of Exhibit E duly
executed by Buyer.
7. Seller's Representations and Warranties. Seller represents and
------------------------------------------
warrants to Buyer, jointly and severally, the accuracy and copleteness of the
matters set forth in this Section 7 as of the Effective Date, except as
disclosed on Schedule 7 hereto.
7.1 Organization and Standing. Seller is a corporation duly
----------------------------
organized, validly existing and in good standing under the laws of the State of
Nevada, and has all requisite corporate power and authority to carry on its
business, to own its properties, to enter into this agreement and to carry out
the provisions hereof.
7.2 Obligations. Seller has no commitments, arrangements, or
------------
agreements with any other party, which by their terms or effect would interfere
with or preclude the carrying out of its obligations under this agreement.
7.3 No Infringement. No patents, copyrights, trade secrets or
-----------------
other rights of others are or may be infringed by the Software. Seller further
represents and warrants that it has not and will not use any rights of any third
pary in the development of the Software, including any work-in-progress and any
future work done for Buyer, without a license acceptable to Buyer and shall
obtain an appropriate assignment of each such license so that Buyer has the
right to maintain and modify any third party software included in the source
code. Seller and Shareholder, jointly and severally, shall indemnify, defend
and hold Buyer, its directors, officers, shareholders, employees, agents and
4
representatives and affiliates harmless from and against any and all liability,
loss, damage, cost or expense, including attorneys' fees and disbursements,
resulting from any misappropriation or alleged misappropriation of any rights
incorporated in the Software; provided that the right of indemnification shall
not apply with respect to any modifications to the Software made by Buyer.
7.4 No Self-Help or Unauthorized Code. No portion of the
--------------------------------------
source code for the Software contains or will contain any back door, time bomb,
drop dead device or other software routine designed to disable a computer
program automatically with the passage of time or under the positive control of
a person other than Buyer (collectively, "Self-Help Code"). No portion of the
source code for the Software contains or will contain any virus, Trojan horse
worm or other software routines designed to permit unauthorized access to
disable, erase or otherwise harm software, hardware or data or to perform any
other such actions (collectively, "Unauthorized Code").
7.5 Ownership of Seller. The sole shareholder of Seller is
----------------------
Shareholder.
7.6 No Breach. The execution, delivery, performance and
-----------
compliance by Seller with this agreement will not (with or without the giving of
notice or passage of time) result in any material breach of, constitute a
default under, or result in the imposition of any lien or encumbrance upon any
asset or property of Seller pursuant to any material agreement or other
instrument to which Seller is a party or by which Seller or any of its
properties, assets or rights is bound or affected.
7.7 Authorization and Binding Effect. The execution, delivery
----------------------------------
and performance of this agreement by the Seller and the consummation of the
transactions contemplated by this agreement have been all duly authorized by the
board of directors of the Seller and all the corporate acts, proceedings and
approvals required of the Seller, its officers, directors and shareholders for
all of the foregoing have been duly taken and remain in effect. This agreement
constitutes the legal, valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms.
7.8 Compliance with Laws and Other Instruments. Seller has, to
-------------------------------------------
its knowledge, complied in all material respects with all laws, regulations and
ordes applicable to the Assets and has all material permits and licenses
required thereby. There is no term or provision of any mortgage, indenture,
contract, agreement or instrument to which Seller is a party or by which it is
bound, or to its knowledge, of any provision of any state or federal judgement,
decree, order, statue, rule or regulation applicable to or binding upon Seller,
the Assets, which materially adversely affect or, so far as Seller may now
foresee, in the future is reasonably likely to materially adverely affect, the
Assets.
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7.9 Litigation. There is no pending or, to the best of
-----------
Seller's knowledge, threatened, suit, action , arbitration or legal or other
proceeding, or governmental investigation, against or affecting the Business or
the Asset.
7.10 Title to and Condition of Assets. Seller will have on the
---------------------------------
Closing Date good and marketable title to all of the Assets, subject to no liens
or encumbrances, whether by mortgage, security interest, pledge, lien, condition
sale agreement, encumbrance, charge or otherwise, and at the Closing will
deliver to Buyer full legal title thereto free and clear of all liens and
encumbrances. All intellectual property rights in connection to the Software
are listed on Exhibit A.
7.11 Tax Returns. All payroll tax and sales tax returns have
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been accurately prepared and duly and timely filed and all other required
federal, state and local tax returns of Seller with respect to Business and the
Assets have been accurately prepared and duly filed (with the exception of the
state and federal income tax returns for 1996) and all taxes required to be
paid with respect to the Business and the Assets for the periods covered for
which returns are required to have been filed on or before the date of this
agreement have been paid.
7.12 Brokers or Finders. Seller has retained no broker or
---------------------
finder in connection with the transactions contemplated by this agreement.
7.13 Material Misstatements or Omissions. None of the
---------------------------------------
representations or warranties made by Seller (or the employees, agents or
representatives of Seller) in this agreement nor any document, statement,
certificate or schedule furnished or to be furnished by Seller (or the
employees, agents or representatives of Seller) to Buyer pursuant hereto, or in
connection with the transactions contemplated hereby, contains or will contain
any untrue statement of material fact, or omits or will omit to state a material
fact necessary to make the statements of fact contained herein or therein not
misleading.
8. Buyer's Representations and Warranties. Buyer represents and
------------------------------------------
warrants to Seller the accuracy and completeness of the matters set forth in
this Section 8 as of the Effective Date.
8.1 Authorization and Binding Effect. The execution, delivery
----------------------------------
and performance of this agreement by Buyer and the consummation of the
transactions contemplated by this agreement have been duly authorized by the
board of directors of Buyer, and the corporate acts, proceedings and approvals
required of the Buyer, its officers, diectors and shareholders for all of the
foregoing have been duly taken and remain in effect. This agreement constitutes
the legal, valid and binding obligation of Buyer, enforceable against Buyer in
accordance with its terms.
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8.2 Organization. Buyer is a corporation duly organized,
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validly existing and in good standing under the laws of the State of California.
8.3 Execution and Performance of Agreement. The execution and
----------------------------------------
performace by Buyer of this agreement and the transactions contemplated hereby
will not violate any provision of, or result in the berach of, any contract,
agreement or instrument by which Buyer is or will as of the Closing Date be
bound.
8.4 No Broker. Buyer has not incurred any obligations to any
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broker or agent in connection with this transaction.
9, Covenants of Seller. Seller covenants to Buyer as set forth
----------------------
below.
9.1 Access to Information. Seller shall provide Buyer and
------------------------
Buyer's representatives reasonable access to the Business Records and Seller's
directors, officers, employees, agents and representatives prior to the Closing.
For a period of two (2) years following the Closing, Seller shall permit Buyer
and Buyer's representatives, including its accountants, to have reasonable
access at Buyer's expense to Seller's books, records and data relating to the
Business and the Assets (collectively, "Business Records") for the period prior
to the Effective Date of which Buyer has no copy in connection with the
preparation of Buyer's or any affiliate of Buyer's financial reports, tax
returns, tax audits, the defense or prosecution of litigation (including
arbitration) or any other reasonable need of Buyer to consult such records and
data.
9.2 Covenant Not to Compete. Except pursuant to the License
---------------------------
Agreement, for a period of 3 years after the Effective Date, Seller, jointly and
severally, shall not, at any time, directly or indirectly, within the countries
listed on Exhibit E hereto, every other State of the United States and every
other nation throughout the world, (i) own, manage, operate, control or be
connected in any manner with the ownership, management, operation or control of
any persno or entity that engages in the business of developing software
competitive with the Software, (ii) engage in any activity which is in
competition with the Busines as conducted on the Effective Date, and (iii)
interfere with, disrupt or attempt to disrupt the relationship, contractual or
otherwise, between the BUyer and any customer or prospective customer, supplier,
lessee or employee of the Buyer, all so long as the BUyer continues to engage in
the substantially the same business anywhere in the above-named geographical
locations; provided, however that nothing contained in this Section 9.2 shall
prohibit Licensee from the sale and distribution (but not the development) of
---
competing software after the License Termination Date to customers other than
those listed on the Customer List.
9.3 Name. After the Effective Date, Seller shall not use or
-----
adopt the name "Helix" or "Helix Technology" or any variant thereof except as
permitted by the License Agreement. Seller shall take all reasonable actions
required by Buyer in order to assist Buyer in the adoption, use and protection
of such name or variant thereof.
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9.4 Compliance. Seller will use its reasonable business
-----------
efforts to cause each of the conditions in Sections 5 and 6 to be timely
satisfied.
10. Survival of Representations. The representations and
------------------------------
warranties made by Seller herein, except as they may be fully performed prior to
or contemporaneously with the Effective Date or License Termimation Date, shall
survive until the first anniversary date of the Effective Date. The
repesentations and warranties made by Buyer herein, except as they may be fully
performed prior to or contemporaneously with the Effective Date or License
Termination Date, shall survive until the first anniversary date of the
Effective Date. The representations and warranties made by the Shareholder
herein, except as may be fully performed prior to or contemporaneously with the
Effective Date or License Termination Date, shall survive until the License
Termination Date.
11. Indemnification
---------------
11.1 Seller. Seller and Shareholder, jointly and severally,
-------
shall defend, indemnify and hold harmless Buyer (and its directors, officers,
employees, affiliates and assignments) from and against any and all claims,
liabilities, judgements, penalties, losses, costs, damages, demands and
expenses, including attorneys' fees (collectively, "Losses") arrising by reason
of, or in connection with, (i) any act or omission of Seller which constitutes a
breach of Seller's representations and warranties contained in this agreement,
(ii) any liability of Seller not assumed by Buyer herein, (iii) any liability
with respect to the Assets or the Business, (iv) any liability in connection
with the employment of employees of the Business, (v) any liability for
warranties and guaranties related to the Assets; provided, however, that
Seller's and Shareholder's aggregate liability hereunder shall not exceed the
Purchase Price and shall only arise to the extent aggergate Losses exceed
Twenty-Five Thousand Dollars ($25,000).
11.2 Procedure. In the event that Buyer may be entitled to
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indemnification hereunder with respect to any asserted claim of, or obligation
or liability to, any third party, Buyer shall notify Seller and/or Shareholder
thereof, describing the matters involved in reasonable detail. Seller and
Shareholder, jointly and severally, shall be entitled to assume the defense
thereof upon written notice to Buyer, provided, however, that once the defense
thereof is assumed by Seller and Shareholder, Seller and Shareholder shall keep
Buyer advised of all developments in the defense thereof and in any related
litigation, and Buyer shall be entitled at all times to participate in the
defense thereof at its own expense.
11.3 Xxxxxxxxxx'x Indemnification Obligation. Xxxxxxxxxx shall
----------------------------------------
defend, indemnify and hold harmless Buyer (and its directors, officers,
employees, affiliates and assigns) from and against any and all claims,
liabilities, judgements, penalties, losses, costs, damages, demands and
expenses, including attorney's fees (collectively, "Losses") arising by reason
8
of, or in connection with, any breach or alleged breach of Shareholder's or
Seller's representations, warranties and covenants contained in Section 7.11.
Xxxxxxxxxx expressly agrees that the validity of this indemnification obligation
and the obligations of Xxxxxxxxxx hereunder shall in no way be terminated,
affected or impaired by reason of assertion by Buyer against Seller of any of
the rights or remedies reserved to Buyer pursuant to the agreement. Buyer may
not modify the agreement with Seller without the written consent of Xxxxxxxxxx.
The liability of Xxxxxxxxxx hereunder is primary and may be enforced by Buyer
before or after proceeding against Seller and shall not be subject to deduction
for any claim of offset, counterclaim or defense which Seller may have against
Buyer. For purposes of Xxxxxxxxxx'x indemnification obligation under this
Section 11.3, the representations and warranties contained in Section 7.11 shall
be deemed to survive indefinitely and the limitations on liability set forth in
Section 11.1 shall not apply.
12. Sales Taxes. Seller shall pay all taxes arising out of the
-------------
transfer of the Assets to Buyer pursuant to this agreement; except that Buyer
shall pay any California sales or use taxes arising out of such transfer. Buyer
shall not be responsible for any sales, use, business, occupation, withholding
or similar tax or any taxes of any kind related to the Assets or the Business
for any period prior to the Effective Date.
13. General Provisions.
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13.1 Arbitration.
------------
(1) Any controversy or claim arising out of this agreement,
or any breach of this agreement, including any controversy or claim as to
arbitrability or recission, shall be settled by arbitration in accordance with
the commercial arbitration rules of the American Arbitration Association.
(2) Such arbitration in connection with any controversy or
claim brought by Seller shall be conducted in San Diego, California. Such
arbitration in connection with any controversy or cliam brought by Buyer shall
be conducted in Houston, Texas.
(3) Any judgement upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof. The arbitrators shall
not, under any circumstance, have any authority to award punitive, exeplary or
similar damages.
(4) Either party may pursue the remedy of specific
performance of this agreement, or seek a preliminary or permanant injunction
against the breach of this agreement or in aid of thie exercise of any power
granted hereunder, or any combination thereof, in any court having jurisdiction
thereof without resort to arbitration.
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(5) In connection with any controversy or claim brought by
Buyer, the parties hereby consent to the jurisdiction of the United States
District Court in Houston, Texas.
13.2 Notices. All notices, requests, consents, and other
--------
communications required or permitted hereunder shall be in writing and shall be
personally delivered or mailed by using first-class, registered, or certified
mail, postage prepaid, to the following addresses or to such other address as
the parties hereto may designate in writing:
To BUYER: The Chip Merchant, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Mr. Xxxxx Xxxxxx
with a copy to: Sheppard, Mullin, Xxxxxxx & Hamptn LLP
000 Xxxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxx X. Trenckino, Esquire
To SHAREHOLDER: Albara Corporation
000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Phone No.: (000) 000-0000
Facsmilile No.: (000) 000-0000
Attention: Mr. Real Xxxxxxxxxx
To SELLER: Software Technologies, Inc.
000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Mr. Real Xxxxxxxxxx
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with a copy to: Xxxxx Xxxxxx & Xxxxx, LLP
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
All such notices, requests, consents and other communications shall be deemed to
be properly given if delivered personally or, if sent by mail, three business
days after the same has been deposited in mail, addressed and postage prepaid as
set forth above.
13.3 Counterparts. This agreement may be executed in any
-------------
number of counterparts, each of which when executed by the parties hereto and
delivered shall be deemed to be an original, and all such counterparts taken
together shall be deemed to be but one and the same instrument.
13.4 Governing Law. This agreement shall be governed by, and
---------------
contrued and enforced in accordance with, the internal laws of the State of
California.
13.5 Integration and Construction. This agreement shall
-------------------------------
comprise the complete and integrated agreement of the parties hereto and shall
supersede all prior agreements, written or oral, on the subject matter hereof.
This agreement has been drafted with the joint participation of the parties
hereto and shall be contrued to be neither against nor in favor of Seller or
Buyer in accordance with the fair meaning thereof.
13.6 Waivers and Amendments. No amendment, modification,
-------------------------
supplement, termination or waiver of any provision of this agreement, and no
consent to any departure therefrom, may in any event be effective unless in
writing and signed by the party or parties affected thereby, and then only in
the specific instance and for the specific purpose given.
13.7 Attorneys' Fees.
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(1) Each party to this agreement shall bear its own legal
fees and any and all other expenses relating to the transactions contemplated in
this agreement.
(2) If any party institutes any arbitration, action or
proceeding to enforce this agreement this agreement or any provision hereof or
for damages by reason of any alleged breach of this agreement or of any
provision hereof or for a declaration of rights hereunder, then the prevailing
party in any such arbitration, action or proceeding shall be entitled to receive
from the other party all costs and expenses, including reasonable attorneys'
fees, incurred by the prevailing party in connection with such action or
proceeding.
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13.8 Headings. The headings of this agreement are for
---------
convenience of reference only and shall not affect the construction of any
provision of this agreement.
13.9 Exhibits and Schedules. Each Exhibit and Schedule
-------------------------
referred to herein and attached hereto is an integral part of this agreement and
is incorporated herein by this reference.
13.10 Successors and Assigns. This agreement and the
-------------------------
provisions hereof shall be binding upon and inure to the benefit of each of the
parties and their successors and assigns.
13.11 No Assignment. Seller agrees that it shall neither
---------------
assign nor transfer any of its rights, privileges or obligations hereunder nor
delegate its duties hereunder (including without limitation, by operation of
law, such as, for example, by sale of the business or assets, merger or
consolidation) without the prior written consent of Buyer which consent may not
be unreasonably withheld. Buyer may assign its rights and delegate its duties
under this agreement, without the consent of Seller. All representations,
warranties, covenants and agreements of the parties shall bind their respective
successors and assignees and shall inure to the benefit of their respective
successors and permitted assignees.
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13.12 Severability. The invalidity or unenforceability of any
-------------
provision of this agreement shall not affect the validity or enforceability of
any other provision.
IN WITNESS WHEREOF, the parties have executed this Asset Purchase
Agreement effective on the date first set forth above.
BUYER SELLER
The Chip Merchant, Inc Software Technologies, Inc.,.
a California corporation a Nevada corporation
/S/ Real Xxxxxxxxxx
By /S/ Xxxxx Xxxxxx By Real Xxxxxxxxxx
---------------------------- ---------------------------
Its Xxxxx Xxxxxx President Its President
------------------------- ---------------------------
[Print Name and Title] [Print Name and Title]
SHAREHOLDER
Albara Corporation
a Colorado corporation
/S/ Real Xxxxxxxxxx
By Real Xxxxxxxxxx
---------------------------
Its President
---------------------------
[Print Name and Title]
XXXXXXXXXX
/S/ Real Xxxxxxxxxx
---------------------------------
Real Xxxxxxxxxx, an Individual
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LIST OF EXHIBITS
Exhibits
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Exhibit A - The Assets
Exhibit B - License Agreement
Exhibit C - Xxxx of Sale
Exhibit D - Assignment of Copyrights; Assignment of Trademarks and Service Marks
Exhibit E - Countries
Schedules
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Schedule 7 - Disclosure Exceptions
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Exhibit A
THE ASSET
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Purchase Price
I. Software All versions of the related database $119,000
development environment. software known as
Helix Express that allows user to develop
information management systems, along will all
related software programs, updates and patches.
II. Intellectual Property: $ 100
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(a) Trademark
HELIX Trademark, Federal Registration No. 1,682,683
DOUBLE HELIX Trademark, Federal Registration No. 1,643,484
HELIX Illinois Registration No. 62,723
FIFLIX Trademark, Registration in Japan No. 3,123,936
TIMIX Trademark, Registration in France
Common law trademarks,: Helix Technologies, HelixTech, Multiuser
Helix, Network Helix, Helix Mauix, Multimedia Helix, Helix Express
French version, Helix Express Japanese version, Helix Tracker, Helix
Helper. Custom Helper, Helix Express, Helix Express Client, I Helix
Express Server, Runtime Helix, Helix Utility, Helix Update Collection,
Helix Converter, Helix Multicopy Appletalk, Helix PowerMover, Helix
Installer, Helix Translator, Helix TimeSavers.
(b) Copyrights:
-----------
Helix Express v.3.5 Copyright, federal registration 97,005,191
Helix: Expressv.4.0 Copyright, federal registration 97,005,192
Copyrights in software, documentation and marketing materials
III. Customer Information (defined in Section 1) $100
------------------------------------------------
A-1
IV. Other Records (defined in Section 1) $100
V. Convenant Not to Compete (included in Exhibit $700
For purchase price allocation
A-2
Exhibit B
LICENSE AGREEMENT
-----------------
B-1
LICENSE AGREEMENT
-----------------
This LICENSE AND SERVICE AGREEMENT ("Agreement") is entered into as of
December 31, 1997, by and between The Chip Merchant Inc., a California
Corporation and Software Technologies. Inc., a Nevada Corporation dba Helix
Technologies ("LICENSEE").
RECITALS
--------
A. LICENSEE is engaged in the business of software marketing,
sales and support services (the "Business").
B. In accordance with that certain Asset Purchase Agreement dated
as of December 31, 1997 ("Purchase Agreement") CHIP, as Buyer, purchased from
LICENSEE, as Seller, all right, title and interest in and to relational database
development environment software known as Helix Express (TM) that allows users
to develop information management systems, along with related software programs,
updates and patches, including but not limited to, Helix Express Runtime Engine,
and Helix PowerMover.
C. CHIP desires to grant to LICENSEE, and LICENSEE desires to
secure from CHIP, an exclusive nontransferable license to reproduce copies of
the Software (as hereinafter defined) for resale to end users, distributors, and
dealers which are sublicensees of the Software.
NOW THEREFORE, in consideration of the foregoing and the mutual promises and
conditions set forth here the parties agree as follows:
I General References.
1.1 Definitions.
------------
As used herein:
(a) "Affiliate" of CHIP or LICENSEE means (i) any entity or
other Person in which CHIP or LICENSEE, or, as applicable, CHIP's or LICENSEE's
franchisee, partner, joint venturers, principals, stockholders or directors has
a direct or indirect substantial ownership interest; (ii) any entity or other
Person that is directly or indirectly controlled by CHIP or LICENSEE; or
-1-
(iii) any subsidiary of such a Person under United States
generally accepted accounting principles consistently applied.
(b) "Assets" means collectively, the Software, the Marks, all
customer, sales history, registration, mailing lists, and developer information
related to the Software.
(c) "Marks" includes the trademarks "Helix Express", "Helix
Express Runtime Engine", "Helix PowerMover", and other trademarks and service
marks related to the Software as more particularly described on Exhibit "A"
attached hereto.
(d) "Person" includes an individual, corporation,
partnership, trust, association or other entity or Organization.
(e) "Software" means collectively, Helix Express (TM), and
any derivative works created by CHIP (other than for internal use by CHIP) and
related software programs, including Helix Express Runtime Engine and Helix
PowerMover, configured in machine executable form and any and all prior
versions, corrections, modifications, improvements, patches, updates or
enhancements, and any related documentation, including without limitation,
technical or user documentation. Software does not include, and CHIP has no
obligation to provide to LICENSEE, the source code for any of the Software or
any explanatory documentation relating to the source code, including Dow charts,
logic diagrams, internal. specifications or source code commentary or notes.
1.2 Use of Defined Terms. Any defined terms used in the plural
---------------------
preceded by the definite article shall be taken to encompass all members of the
relevant class. Any defined terms used in the singular preceded by "any" shall
be taken to indicate any number of the members of the relevant class,
1.3 References. References herein to a Section shall refer,
-----------
unless the context otherwise requires, to a Section of this Agreement,
2. Term. The term of this Agreement shall commence upon the
-----
effective Date as such term is defined in the Purchase Agreement and shall
expire on July 1, 1998, or upon an earlier termination date mutually agreed to
by CHIP and LICENSEE, or upon termination pursuant to Section 10 of this
Agreement ("License Termination Date"), In accordance with Section 5.3 of the
Purchase Agreement, if the License Termination Date
-2-
occurs prior to June 1, 1999, CHIP shall deliver a payment in the amount of Five
Thousand Dollars ($5,000) to LICENSEE.
3. Grant.
------
3.1 Scope of the License. For the term of this Agreement and
-----------------------
subject to the other terms and conditions of this Agreement, CHIP hereby grants
to LICENSEE the exclusive, nontransferable, royalty-free right and license to
(i) reproduced copies of the Software for resale to end users, distributors, and
dealers which are sublicensees worldwide, and (ii) use the Marks in connection
with the activities set forth in (i).
3.2 Tradename and Marks. LICENSEE shall have the right to use
--------------------
the tradename "Helix Technologies" and the Marks in connection. with the license
of the Software granted hereunder. LICENSEE shall also have, the right to label
and package the Software, and to develop instructions, manuals, training,
advertising, sales and marketing literature, including but not limited to any
webpage and any other written Or electronic form of documentation for the
Software. CHIP shall be the owner and retain exclusive title to the tradename
"Helix Technologies" and the Marks.
3.3 Limitations on the Scope of the License. This Agreement
-------------------------------------------
confer upon LICENSEE the right to (1) modify, create derivatives of, customize
or translate any of die Software or Marks, or (2) use any Software for any
purpose other than as ex1ressly authorized in this Agreement.
3.4 No Sublicenses. Except for the limited exclusive right to
----------------
reproduce copies of the Software for resale to end users, distributors, and
dealers which are sublicenses, this Agreement does not confer upon the
LICENSEE the right or license to grant sublicenses to any Person with respect to
the Software., Xxxx-,, or Assets, without the prior written consent of CMP.
3.5 Title. Nothing contained in this Agreement shall be
------
construed was a direct or indirect assignment or grant to LICENSEE or any other
Person of any right, title or interest in anti to the Software, Marks, or Assets
or any copyright trade secret or other intellectual property nights in and to
the Software or any part thereof 6ther than the licenses expressly granted
tinder this Agreement and LICENSEE acknowledges that U11P owns the Software,
Marks, and Assets, including all copyright trade secret and other intellectual
property rights in such Software. LICENSEE hereby acknowledges that any rights
or interests that it acquires through the, use of the Software, Marks, and
Assets, including any use not authorized by this Agreement, shall inure to the
benefit of CHIP. UCENSEE shall not, directly or indirectly, take any action
challenging, questioning or
-3-
opposing the validity of any of the copyright, trade secret or other
intellectual property rights of CHIP in the Software. LICENSEE shall not seek or
obtain any registration of any patents or copyrights with respect to the
Software or any corrections, modifications, improvements, updates or
enhancements thereto or derivatives thereof,
3.6 Relationship of Parties. The relationship between CHIP and
------------------------
LICENSEE is that of licensor and licensee of rights to use certain software,
intellectual property and tangible personal property. In its capacity as
licensee, LICENSEE shall be acting only as an independent contractor.
Accordingly, LICENSEE shall have no authority, either express or implied, to
make any commitment or representation on behalf of CHIP or incur any debt or
obligation on behalf of CHIP. 'Me parties acknowledge that this Agreement does
not constitute a joint venture or franchise under United States federal or state
law, and does not create a fiduciary relationship between the parties.
4. Revenues from Software Sales. For the term of this Agreement,
--------------------------------
and provided LICENSEE is not in default of any of the terms and conditions of
the Purchase Agreement and this Agreement, LICENSEE shall continue to receive
all revenues generated from reproductions of the Software. LICENSEE shall be
responsible for collecting such revenues accrued prior to the License
Termination Date, and LICENSEE hereby agrees to promptly forward to CHIP any
such amounts received for sales of the Software that occur subsequent to the
License Termination Date. LICENSEE. shall not be entitled to revenues received
from the reproduction or sale of any Software or subsequent versions thereof
that occur after the License Termination Date. In the unanticipated event that
CHIP receives revenues from third parties generated from the sale, reproduction
or distribution of the Software prior to the License Termination Date, CHIP
shall remit the amount of such revenues to LICENSEE; provided, however, that
nothing herein shall prohibit LICENSEE from receiving revenues, from sales. of
the Software made by LICENSEE prior to the License Termination Date which may
not have been received by LICENSEE prior to the License Termination Date.
5. Confidential Information
-------------------------
5.1 Confidentiality CHIP and LICENSEE shall maintain in
---------------
confidence all proprietary information of the other party to this Agreement
disclosed to CT-TIP or LICENSEE under this Agreement. CHIP and LICENSEE shall
not disclose any proprietary information to any other Person or, use such
proprietary information for its own use or for any other Person's benefit other
than as permitted expressly by this Agreement without the prior written consent
of the owner of the proprietary information. CHM and LICENSEE shall abide by the
reasonable confidentiality restrictions imposed by the other party from time to
time for such proprietary information,
-4-
5.2 Precautions. LICENSEE shall take such precautions,
-----------
contractual or otherwise, as shall be reasonably calculated to keep strictly
secret and confidential any proprietary information related to the Software and
prevent unauthorized disclosure of such proprietary information by LICENSEE's
and its Affiliates' employees, consultants. independent contractors and other
agents or representatives. LICENSEE shall use, with regard to the Software, the
higher of the standard of care that LICENSEE uses to protect its own proprietary
information or the standard of care that a prudent business person would
exercise to protect valuable proprietary information. Disclosure to LICENSEE's
and its Affiliates' employees, consultants, independent contractors and other
agents or representatives shall be made only on a need to know basis in a manner
6onsistent with the standard of care set forth above and only to an individual
who has signed a confidentiality and nondisclosure agreement in such form as
required by d-UP and with CTITP having the night to enforce such agreement as
the third party beneficiary of such agreement. After termination of this
Agreement, LICENSEE, it-, Affiliates and their successors and assigns shall not
directly or indirectly use or divulge any proprietary information related to the
Software and any other proprietary information of CMP and, within ten (10) days
following request therefore, shall return to CHIP all copies (in whatever media
or means of storage, including electronic storage.) of the Software in its
possession or in the possession of its Affiliates or their successors or
~-;signs or any employees, consultants., independent contractor-, and other
agents and representatives of LICENSEE, its Affiliates or their successors or
assigns, and such delivery shall constitute a representation and warranty by
LICENSEE that it has returned all such copies.
5.3 Continuation. To the extent the Software is not disclosed
------------
pursuant to the provisions. of Section 5.4 hereof, the obligations under this
Section shall remain in effect after termination of this Agreement even though
any or all of the other pro-visions of this Agreement may be terminated.
5.4 Exceptions. Notwithstanding the confidentiality provisions
----------
in Sections 5.1, 5.2 and 5.3 above, a party may disclose proprietary information
of the other party with the prior written consent of such other party or (i)
pursuant to art older of a court or other governmental authority or in
accordance with applicable securities laws requiring disclosures providing that
the disclosing party first notifies the other party of the order or disclosure
obligation and assists the other party in taking reasonable steps to seek a
protective order or other appropriate relief, (ii) after the proprietary
information on becomes available in die public domain other than by Xxxxx of
breach of this Section 5; (iii) after the disclosing party has obtained the
proprietary information lawfully from an independent source and the disclosing
party is able to document the independent source; and (iv) the party intending
to disclose has a good faith belief that it is required by law to disclose such
-5-
information provided that such party first notifies the other party of such good
faith belief and provided that such party shall not so disclose if the other
party provides the party intending to make the disclosure with an opinion of
independent counsel to the other party that disclosure is not required by law.
5.5 Equitable Remedy LICENSEE understands and agrees
-----------------
that, due to the unique nature of the Software, CHIP will suffer irreparable
harm if LICENSEE, its, Affiliates, or any of the directors, officers,
shareholders, consultants,~ independent contractors, employees, agents or other
representatives of LICENSEE fail to comply with any of LICENSEES obligations
under this Section 5 and that monetary damages would be inadequate to
compensate. fully CHIP for any such breach. Accordingly, LICENSEE agrees that in
the event of breach or threatened breach of LICENSEE'S obligations under this
Section 5, CIEP shall. be entitled to injunctive relief to enforce the terms of
this Section, without the proof of actual damages or the posting of any bond, in
addition to any other remedies available at law or in equity.
6. Covenants of LICENSEE As a condition of the rights and license
-----------------------
granted herein and as a condition to the continuing exercise of such rights and
licenses, LICENSEE covenants to each of the following:
6.1 Books and Records. LICENSEE shall keep accurate books and
--------------------
records regarding LICENSEE's use of the Software, Marks and Assets in sufficient
detail to enable CHIP to determine whether LICENSEE has complied with this
Agreement, CHIP or its agents or representatives shall have the right, during
regular business hours and upon reasonable request, to inspect and copy at
CHIP's own expense, such books and records.
6.2 Customer Information. LICENSEE shall maintain all
----------------------
customer, sales, registration, mailing lists, and developer information
("Customer Information") and, within ten (10) days following request therefore,
LICENSEE shall provide CHIP copies as requested by CHIP, of the Customer
Information (in whatever media or means of storage).
6.3 For the term of this Agreement LICENSEE shall conduct the
business in the ordinary and usual course and consistent with past practices of
the Business.
7. Warranties.
-----------
7.1 No Warranties/Disclaimer of Implied Warranties. LICENSEE
-------------------------------------------------
acknowledges that LICENSEE is familiar with the Software having owned rights, to
the
-6-
Software prior to the Closing Date as defined in the Purchase Agreement and that
CHIP MAKES NO REPRESENTATIONS OR WARRAN'HFS WITH RESPECT TO THE SOFTWARE, AND
THE SOFTWARE LICENSED UNDER THIS AGREEMENT IS PROVIDED "AS IS" WITIOUT WARRANTY
OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND
WARRANTIES AGAINST INTERFERENCE AND AGAINST INFRINGEMENT
7.2 Limitation on Remedies. In no event will CHIP be liable to
----------------------
LICENSEE for any damages, including any lost profits, lost savings or other
incidental or consequential damages, arising out of the use or inability to use
the Software, including the loss of any data or the cost of restoring or
reconstructing any data, even if CHIP has been advised of the possibility of
such damages or of my claim of any other Person.
8. Enforcement of Intellectual Property Rights.
------------------------------------------------
8.1 Notice of Infringement. LICENSEE shall inform CHIP of
-------------------------
known or suspected third party activities, that infringe or may infringe the
copyright, trade secret, trademark or other intellectual property right in the
Software, Marks, or Assets.
8.2 CHIP Right to Prosecute. CHIP shall have the, exclusive right,
------------------------
but not the obligation, to commence and prosecute litigation or other
proceedings to enforce its rights in the Software, Marks, and Assets. All
expenses of such litigation or other proceedings shall be borne by CHIP except
that CHIP shall be entitled to recover from LICENSEE any expenses it incurs in
enforcing its rights against LICENSEE. All recoveries resulting from the
litigation or other proceedings shall be for the benefit of CHIP. LICENSEE shall
make itself and its employees and other personnel under its or its Affiliate's
control available to testify in any litigation or other proceedings, execute and
verify such lawful papers and make such lawful oath and otherwise cooperate to
the extent reasonably required by CHIP to obtain and enforce proper protection
for the Software, Marks, and Assets.
9. Indemnification.
----------------
9.1 LICEN5EE. LICENSEE shall defend, indemnify, and hold
---------
harmless CHIP (and its directors, officers, employees, Affiliates and assigns)
from and against any and all claims, liabilities, judgments, penalties, losses,
costs, damages, demands. and expenses, including attorneys' fees (collectively,
"Losses") arising by reason of, or in connection with, (i) any use of the
Software, Marks or Assets that is not in accordance with this Agreement that.
violates the rights, of any third party, (ii) any claims or demands
-7-
of third parties, including customers of LICENSEE, arising in connection with
any activities of LICENSEE or its employees, agents, representatives or
Affiliates, or in connection with the operation of the Business or sales of the
Software (including any warranty claims), and (iii) claims or demands for injury
to property or persons made by any person in connection with the operation of
the Business.
9.2. Procedure. In the event that CHIP may be entitled to
----------
indemnification hereunder with respect to any asserted claim of, or obligation
or liability to, any third party, CHIP shall notify LICENSEE thereof, describing
the matters involved in reasonable detail. LICENSEE shall be entitled to assume
the defense thereof upon written notice to CHIP, provided, however, that once
the defense thereof is assumed by LICENSEE, LICENSEE shall keep CHIP advised of
all developments in the defense thereof and in any related litigation, and CHIP
shall be entitled at all times to participate in the defense thereof at its own
expense.
10. Termination.
------------
10.1 Failure to Perform Obligations. If either party fails to
--------------------------------
perform any of its obligations under this Agreement including in the case of
LICENSEE any payment obligation or covenant default the other party may, in
addition to any other remedy it may have, terminate this Agreement by giving
thirty (30) days written notice to the defaulting party of its intention to do
so, specifying the default and intended effective date of the termination
notice. Such termination notice shall be effective to terminate this Agreement
on the stated date unless the defaulting party has cured the alleged default(s)
within the thirty (30) day cure period.
10.2 Effect of Termination. The parties expressly agree and
------------------------
understand that termination of this Agreement shall in no way relieve any party
from obligations incurred prior to the date of termination. LICENSEE further
agrees that upon termination, neither LICENSEE nor any Affiliate of LICENSEE
shall use the Software, Marks, or Assets.
11. Taxes. LICENSEE shall be responsible for collection,
------
remittance and payment of any and all applicable taxes, withholding obligations,
charges, excises, imposts, levies, assessments or fees (excluding any income
taxes payable by CHIP) due in connection with the rights and licenses granted
in this Agreement. LICENSEE shall provide certified proof of payment to CHIP
within ten days of payment thereof.
12. Miscellaneous.
--------------
-8-
12.1 Arbitration.
------------
(1) Any controversy or claim arising out of this agreement,
or any breach of this agreement, including any controversy or claim as to
arbitrability or rescission, shall be settled by arbitration in accordance with
the commercial arbitration rules of the American Arbitration Association,
(2) Such arbitration in connection with any controversy or
claim brought by LICENSEE shall be conducted in San Diego, California. Such
arbitration in connection with any controversy or claim brought by CHIP shall be
conducted in Houston, Texas.
(3) Any judgment upon the award rendered by the arbitrators
maybe entered in any court having jurisdiction thereof. The arbitrators shall
not, under any circumstance, have any authority to award punitive, exemplary or
similar damages.
(4) Either party may pursue the remedy of specific
performance of this agreement or seek a preliminary or permanent injunction
against the breach of this agreement or in aid of the exercise of any power
granted hereunder, or any combination thereof, in any court having jurisdiction
thereof without resort to arbitration.
(5) In connection with any controversy or claim brought under
this section by LICENSEE, the parties hereby consent to the jurisdiction of the
United States District Court, Southern District of California, in San Diego,
California, for all purposes.
In connection with any controversy or claim brought by CHIP,
the parties hereby consent to the jurisdiction of the United States District
Court in Houston, Texas.
12.2 Notices. Any notice, request, demand, or other
--------
communication required or permitted under this Agreement shall be deemed to be
properly given by the sender and received by the addressee (i) if personally
delivered; (ii) three (3) business days after deposit in the mails if mailed by
certified or registered air mail, postage prepaid; or (iii) twenty-four hours
after being sent by facsimile with confirmation sent as provided in (ii) above,
addressed as follows, and in the case of facsimile transmission, to the
appropriate facsimile number shown below:
-9-
To CHIP: The Chip Merchant, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Mr. Xxxxx Xxxxxx
with a copy to: Sheppard, Mullin, Xxxxxxx & Hampton LLP
000 Xxxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxx X. Xxxxxxxxx, Esquire
To LICENSEE: Software Technologies, Inc.
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Mr. Real Xxxxxxxxxx
with a copy to: Xxxxx. Xxxxxx & Xxxxx, LLP
0000 Xxxxx, Xxxxx -0000
Xxxxxxx, Xxxxx 00000
Phone No.: (713) 000-0 000
Facsimile No.- (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esquire
or to such other address or facsimile number as from time to time may be given
in the manner permitted above.
12.3 Captions. The captions in this Agreement are for
---------
convenience and reference only and the words contained therein shall in no way
be hold to explain, modify, amplify or aid in the interpretation, construction
or meaning of the provisions of this Agreement.
12.4 Counterparts. This Agreement may be executed in any
-------------
number of counterparts, each of which when executed by the parties hereto and
delivered shall be deemed to he an original and all such counterparts taken
together shall be deemed to be but one and the same instrument.
-10-
12.5 Governing. This Agreement shall be governed by, and
---------
construed and enforced in accordance with, the internal laws of the State of
California.
12.6 Attorney's Fees.
-----------------
(1) Each party to this agreement shall bear its own legal
fees and any and all other expenses relating to the transactions. contemplated
in this agreement.
(2) If any party institutes any arbitration, action or
proceeding to enforce this agreement or any provision hereof or for damages by
reason of any alleged breach of this agreement or of any provision hereof or for
a declaration of rights hereunder, then the prevailing party in any such
arbitration, action or proceeding shall be entitled to receive from the other
party all costs and expenses, including reasonable attorneys' fees, incurred by
the prevailing party in connection with such action or proceeding.
12.7 No Material Representations. LICENSEE acknowledges that
------------------------------
CHIP has not made any material representations other than as specifically
recited herein that have induced LICENSEE to enter into this Agreement, and
LICENSEE has not relied upon any written materials or documentation provided to
LICENSEE by CHIP or by any employee, consultant, independent contractor or other
agent of CHIP.
12.8 Authority. Each individual executing this Agreement on
----------
behalf of CHIP and LICENSEE represents and warrants that he or she is duty
authorized to execute and deliver this Agreement on behalf of said party and
that this Agreement is binding upon said party in accordance with its terms.
12.9 Waiver. The waiver by either of the parties, express or
-------
implied, of any right under this Agreement or any failure to perform under this
Agreement by the other party, shall not constitute or be deemed a waiver of any
other right under this Agreement or of any other failure to perform. under this
Agreement by the other party, whether of a similar or dissimilar nature.
12.10 Severability. Should any part or provision of this
-------------
Agreement be held unenforceable or in conflict with the law of any jurisdiction,
the validity of the remaining parts or provisions shall not be affected by such
holding.
-11-
12.11 Entire Agreement. The Purchase Agreement and this
------------------
Agreement set forth the entire agreement and understanding of the parties
relating to the subject matter contained herein and therein and merge all prior
and contemporaneous discussions and agreements between the parties. No claim or
oral agreement in respect hereto and thereto shall be considered as any part
hereof or thereof. No modification of any of the provisions hereof or thereof
shall be valid unless in writing and signed by authorized representatives of the
party against whom such modification is sought to be enforced.
12.12 No Assignment. LICENSEE agrees that the licenses granted
--------------
herein shall inure to the sole benefit of the parties hereto, as expressly
authorized herein. The LICENSEE agrees that it shall neither assign nor
transfer any of its rights, privi1eges or obligations hereunder nor delegate its
duties hereunder to a third party which is not an affiliate of LICENSEE without
the prior written consent of CHIP. LICENSEE further agrees that no assignment or
transfer shall be effected by operation of law, such as, for example, by merger,
consolidation, sale of the business or assets, or by acquisition of a majority
of the voting stock of LICENSEE by a third party, without the prior written
consent of CHIP. CHIP may assign its rights and delegate its duties under this
Agreement, without the consent of LICENSEE. All representations, warranties,
covenants and agreements of the parties shall bind their respective successors
and assignees and shall inure to the benefit of their respective successors and
permitted assignees.
-12-
12.13 Further Assurances. The parties agree to execute,
--------------------
acknowledge and deliver all such further instruments as may he necessary or
appropriate from time to time in order to carry out the intent and purpose of
this Agreement.
IN WITNESS WHEREOF, the parties executed this Agreement as of the date
first above written.
"CHIP":
THE CHIP MERCHANT, INC.,
a California corporation
By /s/ Xxxxx Xxxxxx
------------------
Xxxxx Xxxxxx President
---------------------------
[Printed Name and Title]
"LICENSEE":
SOFTWARE TECHNOLOGIES, INC.,
a Nevada corporation
By /s/ Real Xxxxxxxxxx
---------------------
Real Xxxxxxxxxx, President
-----------------------------
[Printed Name and Title]
-13-
EXHIBIT "A"
Marks
-----
Trademarks
----------
HELIX Trademark, Federal Registration No. 1,682,683
DOUBLE HELIX Trademark, Federal Registration No. 1,643,484
HELIX Illinois Trademark, Registration No. 62,723
HELIX Trademark, Registration in Japan No. 3,123,936
HELIX Trademark, Registration in France
Common law trademarks: Helix Technologies, HelixTech, Multiuser Helix, Network
Helix, Helix Matrix, Multimedia Helix, Helix Express French version, Helix
Express Japanese version, Helix Tracker, Helix Helper, Custom Helper, Helix
Express, Helix Express Client, Helix Express Server, Runtime Helix, Helix
Utility, Helix Update Collection, Helix Converter, Helix Multicopy Appletalk,
Helix PowerMover, Helix Installer, Helix Translator, Helix TimeSavers.
A-1
Exhibit C
XXXX OF SALE
------------
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which are
hereby acknowledged, and pursuant to that certain Asset Purchase Agreement dated
as of December 31, 1997 (the "Asset Purchase Agreement"), among The Chip
Merchant, Inc., a California corporation ("Buyer"), Software Technologies, Inc.,
a Nevada corporation dba Helix Technologies ("Seller"), Albara Corporation, and
Real Xxxxxxxxxx, Seller does hereby grant, bargain, transfer, sell, assign,
convey and deliver to Buyer all right, title and interest in and to the Assets,
as such terms are defined in the Asset Purchase Agreement.
Seller, for itself and its successors and assigns, hereby represents and
warrants that except as otherwise set forth in the Asset Purchase Agreement,
Seller is the owner absolutely of the Assets, that the Assets are free and clear
of and from all encumbrances, that it has good right to sell and assign the
Assets to Buyer as aforesaid, and will warrant and defend the same to Buyer
against the lawful claims and demands of all persons in accordance with and
subject to the limitations of the Asset Purchase Agreement,
Seller hereby covenants and agrees that at any time and from time to time
forthwith upon the written request of Buyer, Seller will do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged and
delivered, each and all of such further acts, deeds, assignments, transfers,
conveyances, powers of attorney and assurances as may reasonably be required by
Buyer in order to assign, transfer, set over, convey, assure and confirm unto
and vest in Buyer, its successors and assigns, title to the Assets sold,
conveyed, transferred and delivered by this Xxxx of Sale'
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale as of December
31, 1997.
Software Technologies, Inc.,
a Nevada Corporation
By /s/ Real Xxxxxxxxxx
-----------------------
Its President
-----------------------
[Print Name and Title]
C-1
State of Texas
--------
County of Xxxxxxxxxx
-------------
On 12-31-97 before me, Xxxxxxxx Xxxxxxx Notary Public, personally
------------- -----------------
appeared Real Xxxxxxxxxx
--------------------,
personally known to me or proved to me on the basis of satisfactory
---- ------
evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s)
no the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxxxx Xxxxxxx
--------------------------------------
Notary Public in and for said
County and State
C-2
Exhibit D
ASSIGNMENT OF COPYRIGHTS
------------------------
Software Tecbnologies, Inc., a Nevada corporation dba Helix Technologies
("Assignor") for valuable consideration, does hereby sell, transfer, assign and
convey to The Chip Merchant, Inc., a California corporation ("Assignee"), all of
Assignor's right, title and interest, in and to the works (including all
copyrights and applications for copyrights therein), set forth on Schedule 1
attached hereto and indorporated by reference herein, including any rights to
secure renewals and extensions thereof for the United States of America and all
countries of the world.
This Assignment of Copyrights (the "Assignment") is issued pursuant to the
terms of that certain Asset Purchase Agrement, dated the date hereof, by and
among Assignee, Assignor, Albara Corporation, and Real Xxxxxxxxxx (the
"Agreement"), and this Assignment shall not be construed to expand, defeat,
impair or limit the rights or remedies of the parties under the Agreement.
Software Technologies, Inc.,
a Nevada Corporation
By: /s/ Real Xxxxxxxxxx 12/31/97
------------------------------------
An Authorized Signatory Date
Sworn to before me this 31 day of
December, 1997
/s/ Xxxxxxxx Xxxxxxx
--------------------------------
Notary Public
D-1
Schedule 1
----------
Copyrights
----------
Helix Express v.3.5 Copyright, federal registration 97,005,191
Helix Express v.4.0 Copyright, federal registration 97,005,192
Copyrights in software, documentation and marketing materials
D-2
ASSIGNMENT OF TRADEMARKS AND SERVICE MARKS
------------------------------------------
Software Tecbnologies, Inc., a Nevada corporation dba Helix Technologies
("Assignor") for valuable consideration, does hereby sell, transfer, assign and
convey to The Chip Merchant, Inc., a California corporation ("Assignee"), all of
Assignor's right, title and interest, in and to the trademarks and service marks
set forth on Schedule 1 attached hereto and indorporated by reference herein,
and the registrations and applications thereof and therefor, together with the
goodwill of the business symbolized therby, for the United States of America and
all countries of the world.
This Assignment of Copyrights (the "Assignment") is issued pursuant to the
terms of that certain Asset Purchase Agrement, dated the date hereof, by and
among Assignee, Assignor, Albara Corporation, and Real Xxxxxxxxxx (the
"Agreement"), and this Assignment shall not be construed to expand, defeat,
impair or limit the rights or remedies of the parties under the Agreement.
Software Technologies, Inc.,
a Nevada Corporation
By: /s/ Real Xxxxxxxxxx 12/31/97
------------------------------------
An Authorized Signatory Date
Sworn to before me this 31 day of
December, 1997
/s/ Xxxxxxxx Xxxxxxx
--------------------------------
Notary Public
D-3
Schedule 1
----------
HELIX Trademark, Federal Registration No. 1,682,683
DOUBLE HELIX Trademark Federal Registration No. 1,613,484
HELIX Ilinois Trademark, Registration No. 62,723
HELIX Trademark, Registration in Japan No. 3,123,936
HELIX Trademark, Registration M' France
Common law trademarks: Helix Technologies, HelixTech, Multiuser Helix, Network
Helix, Helix Matrix, Multimedia Helix, Helix, Helix Express French
version,.Helix Express Japanese version, Helix Tracker, Helix Helper, Custom
Helper, Helix Express, Helix Express Clientm helix Express Server, Runtime
Helix, Helix Utility, Helix Update Collection, Helix Converter, Helix Multicopy
Appletalk, Helix PowerMover, Helix Installer, Helix Translator, Helix
TimeSavers.
D-4
Exhibit E
CALIFORNIA COUNTIES
--------------------
Alameda Orange
Alpine Placer
Xxxxxx Plumas
Butte Riverside
Calaveras Sacramento
Colusa San Xxxxxx
Contra Costa San Bernardino
Del. Norte San Diego
E I Dorado San Francisco
Fresno San Xxxxxxx
Xxxxx San Xxxx Obispo
Humboldt San Mateo
Imperial Santa Xxxxxxx
Inyo Santa Xxxxx
Xxxx Santa Xxxx
Kings Shasta
lake Sierra
Lassen Siskiyou
Los Angeles Xxxxxx
Xxxxxx Sonoma.
Marin Stanislaus
Mariposa Slitter
Mendocino Tehama
Merced Trinity
Modoc Tulare
Mono Tuolumne
Monterey Ventura
Napa Yolo
Nevada Yuba
