ASSET
PURCHASE AGREEMENT
THIS
ASSET PURCHASE AGREEMENT (“Agreement”), dated as of April 16, 2018 (the “Effective Date”), is entered
into by and between ACOLOGY, INC., a Florida corporation (“Company”), and XXXX XXXXXXXX (“Seller”)(collectively,
the “Parties” and each a “Party”). Capitalized terms used in this Agreement but not otherwise defined,
shall have the meanings set forth in Exhibit A to this Agreement.
RECITALS
WHEREAS,
Polymation manufactures certain products under the trademark “MedTainer®” (the “Products”)
and sells them to D&C pursuant to a Distributorship Agreement, dated as of August 13, 2013, by and between Polymation and
D&C (the “2013 Distributorship Agreement”); and
WHEREAS,
Polymation manufactures the Products using injection molding and for that purpose, uses proprietary molds that have been developed
by and are owned by Seller (the “Molds”); and
WHEREAS,
Seller owns certain patents and patent pending applications relating to the manufacture of the Products, which patents and
patent applications are described in Exhibit B (respectively, the “Patents” and the “Patent Pending Applications”);
and
WHEREAS,
Polymation owns a registered trademark relating to the name “MedTainer” (the “Trademark”), which trademark
is described in Exhibit B; and
WHEREAS,
PMP is the registrant of the domain name “Xxxxxxxxx.xxx” (the “Domain Name”); and
WHEREAS,
Company desires that Seller, Polymation and PMP, sell, assign and transfer the Patents, the Patent Pending Applications, the
Molds, and the Domain Name (collectively the “Assets”), on the terms and subject to the conditions set forth in this
Agreement and Exhibits, and Seller is willing so to do; and
WHEREAS,
the Seller desires that if the shares of Common Stock to be delivered to him pursuant to this Agreement cannot not be publicly
sold by him in the amounts permitted by Section 5.6 of this Agreement pursuant to the exemption from registration afforded by
Rule 144, promulgated under the Securities Act or pursuant to another exemption from such registration upon the expiration of
six (6) months from the date of the closing under this Agreement certain of the transactions contemplated by this Agreement
be undone, and, if said shares cannot be so sold, Company is willing to undo them; and
WHEREAS,
the Parties have agreed to enter into an Escrow Agreement among themselves and an escrow holder (the “Escrow Holder”) in
the form annexed hereto as Exhibit C (the “Escrow Agreement”), which sets forth the exclusive provisions for such
undoing; and
WHEREAS,
the Parties desire that the 2013 Distributorship Agreement be terminated and that Polymation and Company enter into a new
production agreement by and between Company and Polymation (the “2018 Production Contract”); and
WHEREAS,
the Parties desire to set forth their agreement as to certain other matters,
NOW
THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained herein,
and intending to be legally bound hereby, the Parties agree as follows:
SECTION
1 – TERMS AND CONDITIONS; CLOSING
| 1.1 | Closing.
The closing of the transactions contemplated by this Agreement (“Closing”)
shall take place at the offices of Xxxxx, XxXxxxxxxx & Xxxxxxx, LLP, 0000 Xxx Xxxxxx
Xxxx, Xxxxxxxx Xxxx, XX 00000, within ten (10) Business Days after the execution and
delivery of this Agreement, or on a date as soon thereafter as reasonably practicable
and mutually agreed to in writing, but in no event later than sixty (60) days after
the Effective Date. The date on which the closing occurs is referred to as the “Closing
Date”. |
| 1.2 | Terms
and Conditions. At the Closing, (i) Seller shall sell, assign and transfer
or cause Polymation and PMP to sell, assign and transfer the Assets to Company, (ii) in
consideration thereof, Company shall issue 263,125,164 shares of Common Stock to Seller
and shall deliver instructions to its transfer agent to issue certificates representing
said shares, as provided below, (ii) Seller shall cause Polymation, and the Company
shall, enter into the 2018 Production Contract and (iii) the Parties and the Escrow
Holder shall enter into the Escrow Agreement. |
| 1.3 | Closing
Deliveries to be Disposed of Pursuant to the Escrow Agreement. On the Closing
Date, the Parties shall make the following deliveries: |
| (i) | Seller
shall deliver to Company: |
| (A) | An
assignment, signed by Seller and dated the Closing Date, in the form attached to this
Agreement as Exhibit D whereby Seller shall sell, assign and transfer all of his right,
title and interest in and to the Patents and Pending Patents to Company, (said assignment
being referred to as the “Patent Assignment”). |
| (B) | An
assignment, signed by Polymation and dated the Closing Date, in the form attached to
this Agreement as Exhibit E whereby Polymation shall sell, assign and transfer all of
its right, title and interest in and to the Trademark to Company, (said assignment being
referred to as the “Trademark Assignment”). |
| (C) | An
assignment, signed by PMP and dated the Closing Date, in the form attached to this Agreement
as Exhibit F, whereby PMP shall sell, assign and transfer all of its right, title and
interest in and to the Domain Name to Company and an instrument setting forth all information,
including IDs, usernames and passwords, necessary to accomplish the transfer and use
the Domain Name (the “Domain Assignment” and collectively with the Patent
Assignment and the Trademark Assignment, the “Assignments”). |
| (D) | A
xxxx of sale, signed by Seller and dated the Closing Date, in the form attached to this
Agreement as Exhibit G, whereby Seller shall sell, assign and transfer all of his right,
title and interest in and to the Molds to Company, subject to his right to retain exclusive
possession and use of them, as more fully set forth in said xxxx of sale. |
| (ii) | Seller
shall deliver to the Escrow Holder assignment to Company of the 60MM Certificate and
the 203MM Certificate, as those terms are defined in Section 1.3(b)(i)(A), each of which
shall be undated, signed by Seller and bear a signature guarantee obtained from an Eligible
Guarantor Institution, as that term is defined in Rule 17Ad-15 promulgated under the
Exchange Act, acceptable to Company, or a signature guarantee obtained from a participant
in the Securities Transfer Agents Medallion Program, the Stock Exchanges Medallion Program
the New York Stock Exchange Medallion Signature Program (said assignments, bearing said
signature guarantee, being the “Share Assignments,” a signature guarantee
in any of the specified forms being a “Signature Guarantee”). |
| (i) | Seller
shall deliver to Company |
| (A) | A
copy of resolutions certified by the secretary of Company as being in effect as of the
Closing Date, authorizing the issuance to Seller of 263,125,164 shares of Common Stock,
to be represented by certificate representing 60,000,000 shares of Common Stock (the
“60MM Certificate”) and a certificate representing 203,125,164 shares
of Common Stock (the “203MM Certificate”). |
| (B) | Irrevocable
instructions, signed by Company and dated the Closing Date, to Company’s transfer
agent to issue the 60MM Certificate and the 203MM Certificate in the name of Seller,
bearing the legends prescribed in Section 5.6, and deliver them to the Escrow Holder. |
| (ii) | Seller
shall deliver to the Escrow Holder |
| (A) | An
undated assignment, signed by Company, in the form attached to this Agreement as Exhibit
H, whereby Company shall sell, assign and transfer all of its right, title and interest
in and to the Patents and Pending Patents to Seller (said assignment being referred to
as the “Patent Reassignment”). |
| (B) | An
undated assignment, signed by Company, in the form attached to this Agreement as Exhibit
I, whereby Company shall sell, assign and transfer all of its right, title and interest
in and to the Trademark to Polymation (said assignment being referred to as the “Trademark
Reassignment”). |
| (C) | An
undated assignment, signed by Company, in the form attached to this Agreement as Exhibit
J, whereby Company shall sell, assign and transfer all of its right, title and interest
in and to the Domain Name to PMP, which assignment shall contain a covenant to deliver
to Seller all information, including IDs, usernames and passwords, necessary to accomplish
the transfer and use the Domain Name (the “Domain Reassignment,” and collectively
with the Patent Reassignment and the Trademark Reassignment the “Reassignments” |
| (D) | An
undated xxxx of sale, signed by Company, in the form attached to this Agreement as Exhibit
K, whereby Company shall sell, assign and transfer all of its his right, title and interest
in and to the Molds to Seller (the “Mold Reassignment”). |
The
instruments delivered to the Escrow Holder pursuant to this Section 1.3 shall be disposed of as provided in the Escrow Agreement.
The above descriptions of said instruments shall not be used in construing them.
Instruments
to be delivered to the Escrow Holder shall be delivered by representatives of the Parties to a courier service, in an envelope
addressed to the Escrow Holder at its address for notice in the Escrow Agreement and shall be deemed delivered, for purposes of
Section 1.5, upon acceptance by said courier service.
| 1.4 | Other
Closing Deliveries. On the Closing Date, the Parties shall make the following
further deliveries: |
| (i) | Seller
shall cause Polymation and to execute and deliver to Company and Company shall execute
and deliver to Polymation the Production Agreement in the form annexed to this Agreement
as Exhibit L (the “2018 Production Contract. |
| (ii) | Seller
and Company shall execute the Escrow Agreement and deliver it to one another and to the
Escrow Holder. |
| 1.5 | Completion
of Closing. The Closing shall be complete when all of the instruments described
in Sections 1.3 and 1.4 shall have been delivered to the Parties and to the Escrow Holder
as described therein and the Escrow Holder shall have executed counterparts of the Escrow
Agreement and delivered one counterpart to each of the Parties. Until such time, none
of said instruments shall be deemed to have been delivered and none of them shall be
binding on any party thereto. If the Closing fails to be completed, all instruments delivered
by a Party shall be returned to that Party. |
| 1.6 | Delivery
of Molds. Upon termination of the 2018 Production Contract at the expiration
of the Term, as defined therein, or upon the exercise of the Termination Option, as defined
therein, Seller shall deliver the Molds to the Company. |
SECTION
2 – REPRESENTATIONS OF SELLER
Seller
hereby represents and warrants to Company as follows:
| 2.1 | No
Adverse Effect by Seller. Seller hereby, upon the execution of this Agreement,
represents to Company as follows: The execution, delivery and performance by Seller of
this Agreement and the consummation of the Transactions, do not and will not: (i) conflict
with or violate any Applicable Law; (ii) result in any breach of, constitute a default
of any agreement or contract with any third parties; (iii) require any consent of
or notice to any Person, other than the Parties hereto; (iv) result in the creation
of an Encumbrance on any of the Assets , except as provided for in this Agreement, and;
(v) will not adversely affect the Assets. |
| 2.2 | No
Actions. Neither Seller nor Polymation has received any written notice of, and
there is not pending and is not threatened, any Action against Seller or Polymation relating
to any of the Assets, and there is no reasonable basis for any such Action. No Action,
whether settled or unsettled, has occurred, is pending or threatened, seeking to prevent,
hinder, modify, delay or challenge the Transactions. |
| 2.3 | Patents.
Exhibit A sets forth, for each Patent, (1) the name of the applicant/registrant
and current owner, (2) each jurisdiction where the application/registration is located,
(3) the application or registration number, and (4) the filing date and issuance/registration/grant
date. Seller is listed in the records of the appropriate Governmental Entity as the sole
owner of each Patent. Seller has not filed, nor does he or any of his Affiliates contemplate
filing, any application for a patent on any improvement to the Patents, and Seller has
no knowledge that a third party has made or contemplates making any such filing. |
| 2.4 | Trademark.
Seller is the registrant and current owner of the Trademark and is listed in
the records of the appropriate Governmental Entity as the sole owner thereof. Exhibit
A sets forth (1) each jurisdiction where the registration is located, (2) the
registration number, and (3) the filing date and issuance/registration/grant date.
Seller is listed in the records of the appropriate Governmental Entity as the sole owner
of each Trademark. |
| 2.5 | Domain
Name. PMP is the registrant and current owner of the Domain Name and is registered
as such in the records of the agency or authority responsible for maintaining a register
of domain names. |
| 2.6 | Title.
(i) Seller is the sole legal, equitable and beneficial owner of all right,
title and interest in the Patents and Related Rights, to the extent such Related Rights
are in existence or capable of being perfected through further action, (ii) Seller
is the sole legal, equitable and beneficial owner of all right, title and interest in
the Patents, (iii) Polymation is the sole legal, equitable and beneficial owner
of all right, title and interest in the Trademark and (iv) PMP is the sole legal,
equitable and beneficial owner of all right, title and interest in the Domain Name. Seller
has received no written notice and has no knowledge of any claim (i) challenging
the ownership of any of the property described in the previous sentence or (ii) claiming
legal, equitable or beneficial ownership with respect thereto. Seller has the sole, unrestricted
right to xxx for past, present and future infringement of the Patents and Related Rights
and recover damages, costs and other remedies with respect thereto, and Polymation and
PMP each has a like right with respect to the Trademark and the Domain Name, respectively.
Seller is the sole owner of the Molds. Except rights of Company set forth in this Agreement,
the property referred to in this Subsection 2.6 is free and clear of all Encumbrances
and no other Person has any claim with respect thereto. |
| 2.7 | Concerning
the Assets. None of the IP Assets has ever been found invalid, unenforceable
or misused for any reason in any administrative, arbitral, judicial or other proceeding
before a Governmental Entity. Seller has not received any written notice from any Person
claiming that any of the IP Assets may be invalid, unenforceable or misused or that a
claim to such effect may be brought by any Person. The issued patents included in the
Patents, and the Trademark, are valid and enforceable, and there are no facts or circumstances
that may cause any such patent or any patent that issues from any patent application
included in the Patents to be unenforceable or invalid. The Transaction Documents to
which Seller, Polymation or PMP is or, at the Closing, will become a party have been
or, at or after the Closing, will be, as the case may be, duly and validly executed and
delivered by Seller, Polymation and PMP Company and, assuming the due authorization,
execution and delivery hereof and thereof by Company, constitute or, with respect to
Transaction Documents to be executed at or after the Closing, will constitute valid,
legal and binding obligations of Seller, Polymation or PMP, as the case may be, enforceable
against each of them in accordance with their respective terms, subject to any applicable
bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in
effect relating to creditors’ rights generally or to general principles of equity. |
| 2.8 | No
Contracts. There are no Contracts with any person or entity to acquire any of
the Assets, other than this Agreement. |
| 2.9 | Restrictions
on Rights. Company will not become subject to any covenant not to xxx, release
or similar limitation on its enforcement of its rights in the Assets as a result of any
action taken or not taken by Seller or any prior owner thereof. |
| 2.10 | Conduct.
Seller and any prior owner of any of the IP Assets have not engaged in any conduct,
or omitted to perform any necessary act, the result of which would invalidate any of
them or hinder their enforcement, including failure to disclose material prior art in
connection with the prosecution of any IP Asset. |
| 2.11 | Certain
Proceedings. None of the IP Assets has been or is currently involved in any reexamination,
reissue, or interference proceeding, or any similar proceeding, and no such proceedings
are pending or threatened. |
| 2.12 | Fees.
All maintenance fees and annuities due or payable on the IP Assets have been
timely paid or will be timely paid through the Closing Date. |
| 2.13 | Consents.
No third party and government Consents, approvals or other authorizations are
required to assign the IP Assets and sell the Molds as set forth in this Agreement. |
| 2.14 | No
Orders. No asset to be sold pursuant to this Agreement is subject to any outstanding
Order restricting the use or other practice or exploitation thereof by any Person or
restricting the sale, transfer, assignment or licensing thereof by any Person. |
| 2.15 | No
Infringement by Third Parties. Neither Seller nor Polymation has instituted,
asserted or threatened any Action against any third party with respect to infringement,
misappropriation, dilution, use or disclosure without authorization, or other violation
of any IP Asset, and neither has issued any written communication inviting any third
party to take a license, authorization, covenant not to xxx or the like with respect
thereto. |
| 2.16 | Terminal
Disclaimer. No Patents are subject to a terminal disclaimer under 37 C.F.R. §
1.321. |
| 2.17 | No
Other Agreements. Except for this Agreement, none of Seller, Polymation, PMP
or any Representatives or Affiliates of Seller has entered into any other agreement or
arrangement with respect to the sale or other disposition of the Assets. |
| 2.18 | Ownership
of Polymation and PMP. Seller is the sole owner of the entire equity interest
in Polymation and PMP and controls all of the voting power with respect thereto. |
| 2.19 | Acquisition
of Stock. Seller is acquiring the Shares solely for his own account for the purpose
of investment and possible immediate sale. Seller is acquiring the Shares solely for
his own account for the purpose of investment and not with a view to or for sale in connection
with distribution. Seller does not have a present intention to sell the Shares, nor a
present arrangement (whether or not legally binding) or intention to effect any
distribution of the Shares to or through any person or entity; provided, however, Seller
does not agree to hold the Shares for any minimum or other specific term, otherwise than
to satisfy any condition for their disposition pursuant to an exemption from registration
under the Securities Act and reserves the right to dispose of the Shares at any time
in compliance with federal and state securities laws applicable to such disposition.
Seller acknowledges that he is able to bear the financial risks associated with an investment
in the Shares and has sufficient knowledge and experience in investing in companies similar
to Company so as to be able to evaluate the risks and merits of his investment in Company. |
| 2.20 | Accredited
Investor. Seller is an “accredited investor” as defined in Rule 501
promulgated under the Securities Act or has such knowledge and experience in financial
and business matters that he is capable of evaluating the merits and risks of its investment
in Company shares of stock. Seller is not required to be registered as a broker-dealer
under Section 15 of the Exchange Act and is not a broker-dealer or an Affiliate of a
broker-dealer. |
| 2.21 | Opportunity
for Additional Information. Seller has had access to the books and records of
Company and has had the opportunity to ask questions of and receive answers from, or
obtain additional information from, the executive officers of Company concerning the
business of Company and the financial, business and other affairs of Company. Seller
has read and understands the SEC Reports. |
| 2.22 | No
General Solicitation. Seller acknowledges that Company shares of stock were not
offered to him by means of any form of general or public solicitation or general advertising,
or publicly disseminated advertisements or sales literature, including (i) any advertisement,
article, notice or other communication published in any newspaper, magazine, or similar
media, or broadcast over television or radio, or (ii) any seminar or meeting to
which such he was invited by any of the foregoing means of communications. |
| 2.23 | Limitations
on Resale. Seller understands and acknowledges that the Shares must be held indefinitely
unless they are registered under the Securities Act or an exemption from such registration
is available. Seller is familiar with Rule 144 and he understands that Rule 144 permits
resales only under certain limited circumstances and understands and acknowledges that,
to the extent that Rule 144 is not available for resales of the Shares, Seller will be
unable to dispose of any of them without either registration under the Securities Act
or the availability of an exemption from such registration other than Rule 144. Seller
further understands that Rule 144 will not be available for resales of the Shares unless,
at the time of each such resale, Company has satisfied the conditions that (i) it
is not a Person that has (A) no or nominal operations and (B) either (1) no
or nominal assets, (2) assets consisting solely of cash and cash equivalents or
(3) assets consisting of any amount of cash and cash equivalents and nominal other
assets, (ii) it is subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act and (iii) it has filed all reports and other materials required
to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12 months
(or for such shorter period that it was required to file such reports and materials),
other than Current Reports on Form 8-K. |
| 2.24 | Exemption.
Seller understands and acknowledges that the Shares are being offered and will
be sold in reliance upon a transactional exemption from the registration requirements
of federal and state securities laws and that Company is relying upon the truth and accuracy
of the representations, warranties, agreements, acknowledgments and understandings of
Seller set forth herein in order to determine the applicability of such exemptions and
the suitability of Seller to acquire the Shares. |
| 2.25 | Independent
Investment. Seller is acting independently with respect to his investment in
the Shares. |
| 2.26 | Power
and Authorization. Polymation and PMP (i) each has power to assign the Asset
that it is required to assign to the Company pursuant to this Agreement and Polymation
has power to execute, deliver and perform the 2018 Production Contract and (ii) each
has been duly authorized to execute and deliver the Transaction Documents to be executed
and delivered by it. |
| 2.27 | Representations
Complete. None of the representations or warranties of Seller in this Agreement
contains any untrue statement of a material fact, or omits to state any material fact
necessary in order to make the statements contained herein or therein, in the light of
the circumstances under which made, not misleading. |
| 2.28 | No
Other Representations or Warranties. Except for the representations and warranties
contained in this Agreement, Seller makes no representations or warranties, and Seller
hereby disclaims any other representations and warranties with respect to the execution
and delivery of this Agreement and the Transactions. |
SECTION
3 – REPRESENTATIONS OF COMPANY
Company
hereby represents and warrants to Seller as follows:
| 3.1 | Organization
and Qualification. Company is a corporation validly existing and in good standing
under the laws of the State of Florida. |
| 3.2 | Corporate
Power, Etc. Company has all necessary corporate power and authority to execute
and deliver this Agreement and each other instrument to which it is or, at the Closing,
will become a party, to perform its obligations under this Agreement and each such other
instrument and to consummate the Transactions. The execution and delivery of this Agreement
and each such instrument to which Company is or, at the Closing, will become a party
and the consummation of the Transactions have been duly and validly authorized by all
requisite action on the part of Company, and no other corporate proceedings on the part
of Company are necessary to authorize this Agreement and each other instrument to which
Company is or, at the Closing, will become a party or to consummate the Transactions.
The Transaction Documents to which Company is or, at the Closing, will become a party
have been or, at or after the Closing, will be, as the case may be, duly and validly
executed and delivered by Company and, assuming the due authorization, execution and
delivery hereof and thereof by Seller, Polymation or PMP, constitute or, with respect
to any instrument to be executed at or after the Closing, will constitute valid, legal
and binding obligations of Company, enforceable against Company in accordance with their
respective terms, subject to any applicable bankruptcy, insolvency, reorganization, moratorium
or similar Laws now or hereafter in effect relating to creditors’ rights generally
or to general principles of equity. |
| 3.3 | No
Conflict; Required Consents and Approvals. The execution, delivery and performance
by Company of this Agreement to which it is or will be a party, and the consummation
of the Transactions, do not and will not: (i) conflict with or violate the articles
of incorporation or bylaws of Company; (ii) conflict with or violate any Applicable
Law; or (iii) result in any breach of, constitute a default (or an event that, with
notice or lapse of time or both, would become a default or breach) under or require
any consent of any Person pursuant to, any Contract or permit of Company, except, in
the case of the foregoing clauses (i), (ii) and (iii), for any such conflicts, violations,
breaches, defaults or other occurrences that would not, individually or in the aggregate,
have a Material Adverse Effect on Company’s ability to consummate the Transactions. |
| 3.4 | Government
Consent. The execution, delivery and performance by Company of this Agreement
and the consummation of the Transactions by Company do not, and the performance of this
Agreement by Company will not, require any consent, approval, authorization or permit
of, or filing with or notification to, any Governmental Entity for such performance. |
| 3.5 | No
Adverse Effect by Company. Company hereby, upon the execution of this Agreement,
represents to Seller as follows: The execution, delivery and performance by Company of
this Agreement and the consummation of the Transactions, do not and will not: (i) conflict
with or violate any Applicable Law; (ii) result in any breach of, constitute a default
of any agreement or Contract with any third parties; (iii) require any consent of
or notice to any Person, other than the Parties hereto; (iv) result in the creation
of an Encumbrance on any of the Assets, except as provided for in this Agreement; (v) will
not adversely affect any of the Assets. |
| 3.6 | Authorized
Stock. Company further represents to Seller that Company is authorized by its
Articles of Incorporation, in effect as of January 1, 2018, to issue 6,000,000,000 shares
of common stock, and 5,000,000 shares of preferred stock, par value $0.000001 per share,
issuable in series, none of which has been designated. As of the Effective Date, there
are issued and outstanding (i) 5,262,511,270 shares of Common Stock, and (ii) no
shares of such preferred stock. No securities of Company are entitled to preemptive or
similar rights, and no entity or person has any right of first refusal, preemptive right,
right of participation, or any similar right. Except as disclosed in the SEC Reports,
there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments
of any character whatsoever relating to, or securities, rights or obligations convertible
into or exchangeable for, or giving any entity or person any right to subscribe for or
acquire, any shares of Company’s capital stock, or contracts, commitments, understandings
or arrangements by which Company is or may become bound to issue additional shares of
its capital stock or securities or rights convertible or exchangeable into shares of
its capital stock. |
| 3.7 | Common
Stock Issuable at Closings. The shares of Common Stock issuable at the Closing
have been duly authorized and, when issued and delivered at the Closing, will be validly
issued, fully paid and nonassessable, and will be issued free and clear of all Encumbrances,
other than restrictions on transfer and limitations on resale under applicable securities
laws and this Agreement. |
| 3.8 | SEC
Reports. Company has filed all reports, schedules, forms, statements and other
documents with the SEC (collectively, and in each case, including all exhibits and schedules
thereto and documents incorporated by reference therein, the “SEC Reports”) required
to be filed by Company under the Securities Act and the Exchange Act, including reports,
schedules, forms, statements and other documents required to be filed pursuant to Section
13(a) or 15(d) of the Exchange Act, on a timely basis or has timely filed a
request for extension of such time of filing with respect to an SEC Report and has filed
it prior to the expiration of any such extension. As of their respective dates, the SEC
Reports complied in all respects with the requirements of the Securities Act and the
Exchange Act and the rules and regulations of the SEC promulgated thereunder, and none
of the SEC Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of Company included in the SEC Reports complied
in all respects with applicable accounting requirements and the rules and regulations
of the SEC with respect thereto as in effect at the time of filing. Such financial statements
were prepared in accordance with generally accepted accounting principles in the United
States of America applied on a consistent basis during the periods involved, except as
may be otherwise specified in such financial statements or the notes thereto, and fairly
present in all material respects the financial position of Company as of and for the
dates thereof and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. |
| 3.9 | Litigation.
There is no pending or, to the knowledge of Company, threatened action, suit,
proceeding or investigation before any court, governmental agency or body, or arbitrator
having jurisdiction over Company or any of its Affiliates, which litigation, if adversely
determined, could have a Material Adverse Effect on Company. |
| 3.10 | No
Undisclosed Liabilities. Except as disclosed in the SEC Reports, Company has
no liabilities or obligations which are material, individually or in the aggregate, other
than those incurred in the ordinary course of Company’s business, of which, individually
or in the aggregate, would reasonably be expected to have a Material Adverse Effect on
Company. |
| 3.11 | No
Undisclosed Events or Circumstances. Except as disclosed in the SEC Reports,
since January 1, 2015, no material event or circumstance has occurred or exists with
respect to Company or its businesses, properties, operations or financial condition,
that, under applicable law, rule or regulation, requires public disclosure or announcement
prior to the date hereof by Company, but which has not been so publicly announced or
disclosed in the SEC Reports. |
| 3.12 | Representations
Complete. None of the representations or warranties of Company in this Agreement
contains, as of the Closing pursuant to this Agreement contain, any untrue statement
of a material fact, or omits to state any material fact necessary in order to make the
statements contained herein or therein, in the light of the circumstances under which
made, not misleading. |
| 3.13 | No
Other Representations or Warranties. Except for the representations and warranties
contained in this Agreement, Company makes no representations or warranties, and Seller
hereby disclaims any other representations and warranties with respect to the execution
and delivery of this Agreement and the Transactions. |
SECTION
4 – COVENANTS
| 4.1 | Covenants
Respecting IP Assets Pending Closing. During the period from the Effective Date
and continuing until the Closing, except as required or contemplated by this Agreement,
Seller shall maintain all registrations and applications to register the IP Assets, including
paying any related fees when due, if any, before the Closing. Company shall be responsible
for all costs pertaining to the IP Assets after the Closing. |
| 4.2 | Covenants
Pending Release of Molds. During the period from the Effective Date and continuing
until the release and turnover of the Molds to Company pursuant to Section 1.6, Seller
shall: (i) not, directly or indirectly, do, propose to any third party to do (other
than proposals to Company for the purpose of seeking consent), cause or, by its action
or inaction, transfer, lease, sell, pledge, dispose of the Molds or subject them to any
Encumbrance, other than as expressly provided in this Agreement; (ii) maintain the
Molds in good condition, replacing and repairing them as necessary (the term “Molds”
shall include the presently existing Molds, and as replaced or repaired, and the proceeds
of amounts paid or payable under policies of insurance for the Molds, if any); (iii) insure
the Molds at all times for an amount sufficient to replace or repair them in the event
of their loss, damage or destruction. |
| 4.3 | Reasonable
Efforts. Each of the Parties agrees his or its to use reasonable best efforts,
and to cooperate with the other party hereto, to take, or cause to be taken, all appropriate
action to do, or cause to be done, all things necessary, proper or advisable under Applicable
Law or otherwise to consummate and make effective the Transactions to be consummated
at the Closing as promptly as practicable, including, subject to any applicable limitations
set forth in this this Agreement, causing the satisfaction of the respective conditions
set forth herein in Section 4 and executing and delivering such other instruments and
doing and performing such other acts and things as may be necessary or reasonably desirable
for effecting the consummation of the Transactions. |
| 4.4 | Obligation
to Notify. In the event that a party shall fail to comply with or breach a covenant
to be complied with by it or it fails to satisfy a condition to be satisfied by it prior
to the Closing or the Mold turn over, such party shall give the other party notice thereof
upon the failing party’s discovery of such failure. |
| 4.5 | Public
Announcements. Seller shall not issue any press release or otherwise make any
public statements with respect to Transactions without the prior written consent of Company,
unless and only to the extent required or allowed by Applicable Law. |
| 4.6 | Further
Actions. At any time or from time to time at or after the Closing, in the case
of the IP Assets, and at or after the delivery of the Molds pursuant to Section 1.6,
in the case of the Molds, Seller shall, at Company’s request, at no cost to Company
and without further consideration, (i) execute and deliver to Company such other
instruments of sale, transfer, conveyance, assignment and confirmation as reasonably
necessary to carry out the Transactions, (ii) use his best efforts to provide such
materials and information and take such other actions as, in each case, Company may request
to the extent necessary or desirable in order to effectively transfer, convey and assign
to Company, and to confirm Company’s title to, all of the Assets, free and clear
of all Encumbrances existing prior to the Closing, in accordance with the terms of this
Agreement, and, to the full extent permitted by law or contract, to put Company in actual
possession and full control of the Assets according to the terms in this Agreement, to
assist Company in exercising all rights with respect to thereto and otherwise to cause
Seller to fulfill his obligations under this Agreement and (iii) assign cause his Affiliates
to assign all rights that he or any of them may at any time have in any improvement to
the Patents. From and after the Closing, Company shall have all right to control the
prosecution of all patent applications included in the Patents and all patent applications
filed on inventions and other subject matter included in the Related Rights. |
| 4.7 | Cooperation.
Seller shall reasonably cooperate with Company and its successors and assigns
in Company’s prosecution of such patent applications, including by promptly (i) disclosing
relevant facts and delivering instruments and other documents reasonably requested by
Company and (ii) providing technical consultations reasonably requested by Company.
All such assistance shall be provided by Seller without the payment of additional compensation. |
SECTION
5 – SELLER INTELLECTUAL PROPERTY
| 5.1 | License.
Without limitation of the provisions in the Agreement, if Seller or any assignee
or successor of Seller retains any right or interest in any of the IP Assets that cannot
be, or for any reason is not, assigned to Company at the Closing, Seller hereby grants,
on behalf of himself and his successors and assigns (and agrees to so grant or cause
to be so granted) to Company a perpetual, irrevocable, royalty free and fully paid-up,
transferable, sublicensable, exclusive, worldwide right and license to use, reproduce,
distribute, display and perform (whether publicly or otherwise), prepare derivative works
of and otherwise modify, make, sell, offer to sell, import and otherwise use and exploit,
and exercise and practice all rights under, all or any portion of such IP Assets. |
| 5.2 | Assignment
of Enforcement. If Company is unable to enforce its rights in the IP Assets against
a third party as a result of any Applicable Law that prohibits enforcement of such rights
by a transferee or licensee of such rights, Seller shall assign to Company such rights
as may be required by Company to enforce the IP Assets in its own name. Seller shall,
at Company’s reasonable request and solely at the expense of Company, pre-paid,
fully cooperate in any litigation or other proceeding (including interference and opposition
proceedings) relating to the IP Assets (including making witnesses available and
providing evidence of invention and other relevant dates and ownership). In any such
proceedings, Company shall prepay all of Seller’s related costs, expenses and attorney
fees, and shall defend, indemnify and hold Seller harmless from any damages, complaints,
actions and causes of actions relating to or arising from such assignment and enforcement. |
| 5.3 | Protected
Communications. From and after the Closing, Seller shall cooperate with Company
as described in this Subsection 5.3 regarding all attorney-client privileges, attorney
work product doctrine and any other professional privileges or rights held by Seller
and not transferred to Company that arose from the prosecution, defense or enforcement
of the IP Assets before the Closing Date (“Protected Communications”). Seller
shall not assert that the Protected Communications are not protected by the attorney-client
privilege, attorney work product doctrine or other professional privileges unless and
only to the extent that such privilege or immunity is withdrawn by Company or is determined
by a final judgment of a court of competent jurisdiction, unappealable or unappealed
within the time allowed for appeal, to be invalid. Seller shall cooperate with Company,
at Company’s expense, to preserve and protect all privileges and immunities with
respect to Protected Communications to the greatest extent avail- able under Applicable
Law. To the extent that Seller retains control of any privilege or immunity with respect
to communications or work product relating to the prosecution, defense or enforcement
of the IP Assets before the Closing Date, Seller shall not waive or withdraw such privilege
or immunity or knowingly engage in any act or omission that would reasonably result in
a waiver or withdrawal without the prior written consent of Company. Should any effort
be made by subpoena or otherwise to gain access to Protected Communications, whether
by judicial action or by other means, Seller shall promptly notify Company. |
| 5.4 | Disposition
of Polymation Interests. From the Effective Date until the Closing, Seller shall
not sell, assign, transfer or otherwise dispose of any of his interests in Polymation
or PMP. After the Closing, he shall not sell, assign, transfer or otherwise dispose of
any of his interests in Polymation to a Person who Seller knows will or intends to directly
or indirectly compete with Company. |
| 5.5 | Restricted
Securities. The Shares will, when issued, be “restricted securities,”
as that term is defined under Rule 144. Accordingly, certificates representing the Shares
shall be stamped or otherwise imprinted with a legend substantially in the following
form (in addition to any legend required by applicable state securities or “blue
sky” laws): |
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE (THE “SECURITIES”) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE “SECURITIES ACT”) OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES LAWS OR THE CORPORATION SHALL HAVE RECEIVED
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT
AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
Company
will reissue certificates representing the Shares without the legend set forth above, if at such time, prior to making any transfer
of any such shares, Seller shall give written notice to Company describing the manner and terms of such transfer in such detail
as the Corporation may reasonably request, but such proposed transfer and reissuance will not be effected until: (a)(i) Company
has received an opinion of counsel reasonably satisfactory to Company to the effect that the registration of said shares under
the Securities Act is not required in connection with such proposed transfer, (ii) a registration statement under the Securities
Act covering such proposed disposition has been filed by Company with the SEC under the Securities Act and has become effective
or (iii) Company has received an opinion of such counsel to the effect that said shares may be sold pursuant to the exemption
from registration under the Securities Act provided by Rule 144; and (b)(i) Company has received an opinion of such counsel
to the effect that registration or qualification under the securities or “blue sky” laws of any state is not required
in connection with such proposed disposition, or (ii) compliance with applicable state securities or “blue sky”
laws has been effected. In the case of any such proposed transfer, Company will use reasonable efforts to comply with any such
applicable state securities or “blue sky” laws, but shall in no event be required (i) to qualify to do business
in any state where it is not then qualified, (ii) to take any action that would subject it to taxation or to the general
service of process in any state where it is not then subject thereto, or (iii) to comply with state securities or “blue
sky” laws of any state for which registration by coordination is unavailable to Company. Beginning six (6) months after
the Closing Date, Seller may sell up to one-sixteenth (1/16) of the Shares in each calendar quarter, provided that, if
Seller does not sell all of the Shares that he is entitled to sell in a particular quarter, the number of Shares that he may sell
in any future quarter shall not be increased; and provided further that prior to the day after the first anniversary of
the date of the Escrow Agreement, Seller may not dispose of any of the shares represented by the 203MM Certificate, otherwise
than pursuant to the Repurchase Option. In pursuance of the foregoing, the certificate representing the 60MM Certificate Shares
and 203MM Certificate Shares and certificates representing portions of the such Shares that Seller is not then permitted to sell
shall be stamped or otherwise imprinted with a legend substantially in the following form:
THE
DISPOSITION OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO AN ASSET PURCHASE AGREEMENT, DATED AS OF APRIL 16, 2018,
BY AND BETWEEN THE ISSUER AND XXXX XXXXXXXX. AMONG OTHER THINGS, SAID AGREEMENT LIMITS THE TIMES AT WHICH AND THE AMOUNTS IN WHICH
SAID SHARES MAY BE SOLD. A COPY OF SAID AGREEMENT MAY BE EXAMINED BY ANY INTERESTED PERSON AT THE OFFICES OF THE ISSUER.
Seller
will dispose of the Shares only in “brokers’ transactions” within the meaning of section 4(4) of the Securities
Act.
Whenever
Seller requests that certificates representing Shares be issued to him free of such legend, he shall certify to Company that the
issuance of such certificates will not contravene the limitation set forth herein and be supported, if Company so requests, by
appropriate records.
| 5.6 | Cooperation
After Mold Turnover. After the Mold Turnover is made, Seller shall and shall
cause Polymation to, cooperate with Company, and its agents, including providing advice,
technical information and knowhow, in order that Company, and its agents, will be able
to manufacture products using the Molds. Seller makes no representations or warranties
as to the satisfaction, use or suitability of the Molds after they are turned over to
Company. |
SECTION
6 – CONDITIONS TO CLOSING
6.1
Conditions to Obligations of Company. The obligations of Company to consummate
the Closing are subject to the satisfaction or waiver of each of the following conditions:
| (a) | Representations,
Warranties and Covenants of Company. Seller shall have performed and satisfied
in all material respects his covenants and obligations hereunder that are required to
be performed and satisfied by him on or prior to the Closing; (ii) each of his representations
and warranties set forth in this Agreement shall have been true and correct in all material
respects as of the Effective Date and as of the Closing with the same force and effect
as if made as of the Closing (except that representations and warranties, if any, that
are made as of a specified date shall be true and correct as of such specified date); |
| (b) | Seller
shall have delivered to Company and the Escrow Holder the documents and other items required
to be delivered by the terms if this Agreement; |
| (c) | none
of the IP Assets shall (A) have been deemed withdrawn or abandoned as of or prior
to the Closing or (B) have expired as of or prior to the Closing; |
| (d) | (A) no
Law promulgated by any Governmental Entity of competent jurisdiction, actually known
to Seller, shall have been enacted or shall exist that would prohibit the Transactions
contemplated herein; (B) no temporary restraining order, preliminary or permanent
injunction or other Order issued by any court of competent jurisdiction or other restraint
or prohibition of any Governmental Entity of competent jurisdiction, actually known to
Seller, (1) preventing the consummation of the Transactions or (2) limiting
or restricting Company’s ownership, distribution, use or development of the Assets
following the Closing shall be in effect; and (C) there shall be no Action pending,
nor shall there have been made any material and bona fide threat of any Action that could
reasonably result in any of the outcomes in the foregoing clauses (B)(1) and (2) of
this Subsection (d). |
6.2
Conditions to Obligations of Seller. The obligations of Seller to consummate
the Closing are subject to the satisfaction or waiver of each of the following conditions:
| (a) | Representations,
Warranties and Covenants of Company. (i) Company shall have performed and
satisfied in all material respects its covenants and obligations hereunder that are required
to be performed and satisfied by it on or prior to the Closing; (ii) each of the
representations and warranties of Company set forth in this Agreement shall have been
true and correct in all material respects as of the Effective Date and as of the Closing
with the same force and effect as if made as of the Closing (except that representations
and warranties, if any, that are made as of a specified date shall be true and correct
as of such specified date); |
| (b) | Closing
Deliveries. Company shall have delivered to Seller or the Escrow Holder the documents
and other items required to be delivered by it pursuant to this Agreement. |
| (c) | No
Violation. No Law promulgated by any Governmental Entity of competent jurisdiction
shall have been enacted or shall exist that would prohibit the Transactions or the consummation
of the Closing. No temporary restraining order, preliminary or permanent injunction or
other Order issued by any court of competent jurisdiction or other restraint or prohibition
of any Governmental Entity of competent jurisdiction preventing the consummation of the
Transactions shall be in effect. Nor shall there be pending or overtly threatened any
Action seeking any of the foregoing. |
SECTION
7 – EFFECT OF CLOSING
By consummating
the Closing, each party shall be deemed to have certified to the other, immediately prior thereto, that it has complied with all
of the covenants to be complied with by it prior thereto and to have satisfied all of the other party’s conditions thereto
in all respects, except to the extent that such compliance or satisfaction shall have been waived in writing prior thereto.
SECTION
8 –SURVIVAL AND INDEMNIFICATION
| (a) | Notwithstanding
any investigation by, or knowledge of, Company of the affairs of Seller, each party shall
have the right to rely fully upon the representations, warranties, covenants and agreements
of the other parties contained in this Agreement. |
| (b) | The
covenants and agreements of Seller and Company contained in this Agreement that by their
terms apply or are to be performed in whole or in part after the Closing Date shall survive
the Closing Date indefinitely, unless and to the extent that non-compliance with such
covenants or agreements is waived in writing by the party entitled to such performance. |
| (c) | The
representations and warranties of Seller and Company contained in this Agreement shall
survive the Closing. |
8.2
Indemnification.
| (a) | Indemnification
by Seller. From and after the Closing Date, Seller shall indemnify and hold harmless
Company and its officers, directors, shareholders, Affiliates and Representatives (collectively,
the “Company Indemnitees”), from and against and in respect of any and all
Losses resulting from, arising out of, relating to, or imposed upon or incurred by any
Company Indemnitee by reason of: |
| (i) | any
inaccuracy in, failure to be true of, or breach of, any representation or warranty of
Seller contained in this Agreement as of the Effective Date, as if made on and as of
the Closing Date; |
| (ii) | any
breach by Seller of any covenant or agreement contained in this Agreement; and |
| (iii) | any
noncompliance with fraudulent transfer Laws in connection with the Transactions. |
| (b) | Indemnification
by Company. From and after the Closing Date, Company shall indemnify and hold
harmless Seller and its managers, members, Affiliates and Representatives (collectively,
the “Seller Indemnitees”), from and against and in respect of any and all
Losses resulting from, arising out of, relating to, or imposed upon or incurred by any
Seller Indemnitee by reason of: |
| (i) | any
inaccuracy in, failure to be true of or breach of any representation or warranty of Company
contained in this Agreement as of the Effective Date, as if made on and as of the Closing
Date, as applicable and; |
| (ii) | any
breach by Company of any covenant or agreement contained in this Agreement. |
| (i) | Nothing
in this Agreement shall limit either party’s liability for fraud or intentional
misrepresentation committed by such party. |
| (ii) | Seller
and Company shall mitigate damages they may incur as a result of any breach by the other
party of any of the provisions of this Agreement consistent with and to the extent required
by Applicable Law. |
SECTION
9 – TERMINATION
| 9.1 | At
any time prior to the Closing, this Agreement may be terminated: |
| (a) | By
mutual written consent of Company and Seller; |
| (b) | by
either Company or Seller, if the Closing shall not have within sixty (60) days after
the Closing Date, or such later date that Company and Seller may agree upon in writing;
provided, however, that the right to terminate this Agreement under this Subsection
9.1(a) shall not be available to Seller if the failure of the Closing is the fault
of Seller and the right to terminate this Agreement under this Subsection 9.1(a) shall
not be available to Company if the failure of the Closing is the fault of Company; |
| (c) | by
either Seller or Company, in the event that any Law of any Governmental Entity of competent
jurisdiction that prohibits the consummation of the Transactions shall have become final
and nonappealable; |
| (d) | by
Company, if Seller shall have breached any representation, warranty, covenant or agreement
contained herein, before the Closing Date; |
| (e) | by
Seller, if Company shall have breached any representation, warranty, covenant or agreement
contained herein, before the Closing Date. |
The
party seeking to terminate this Agreement pursuant to this Section 9.1 shall give written notice of such termination to the other
party.
9.2
Effect of Termination. In the event of termination of this Agreement as
provided in Section 9.1, this Agreement shall forthwith become void and there shall be no Liability or obligation on the part
of Company, Seller or their respective officers, directors, stockholders, Affiliates or Representatives.
SECTION
10 – MISCELLANEOUS
| 10.1 | Entire
Agreement; Assignment; Successors. This Agreement (including the exhibits, which
are part of this Agreement) (a) constitutes and represents the entire agreement
between the parties with respect to the subject matter hereof and thereof and supersedes
all other prior agreements, representations and negotiations, both written and oral,
express or implied, between the parties with respect to the subject matter hereof and
thereof and (b) may not be assigned by operation of Law or otherwise. Upon any permitted
assignment, the references in this Agreement to Company or Seller shall also apply to
any such assignee unless the context otherwise requires. Any purported assignment of
this Agreement in contravention of this Section shall be null and void and of no force
or effect. Subject to the preceding sentences of this Section, this Agreement will be
binding upon, inure to the benefit of, and be enforceable by, the parties and their respective
successors and assigns. No representation, warranty, promise, inducement or statement
of intention has been made by either party that is not embodied in this Agreement, and
neither party shall be bound by, or be liable for, any alleged representation, warranty,
promise, inducement or statement of intention not embodied herein or therein. |
| 10.2 | Severability.
If any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any rule of law, or public policy, all other conditions and provisions
of this Agreement shall nevertheless remain in full force and effect, so long as the
economic or legal substance of the transaction contemplated by this Agreement is not
affected in any manner materially adverse to any party. Upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible, in a mutually acceptable manner, in order
that the Transactions shall be consummated as originally contemplated to the fullest
extent possible. |
| 10.3 | Notices.
All notices and other communications hereunder shall be in writing and shall
be delivered to the addresses set forth below: |
0000
Xxxxxxxx Xx.
Xxxxxx,
XX 00000
Attention:
Chief Executive Officer
0000
Xxx Xxxxxx Xxxx, #000-X
Xxxxxxx
Xxxx, XX 00000
or
to such other address as the Person to whom notice is given may have previously furnished to the other by notice.
Such
notice or other communication shall be delivered personally or by overnight courier and shall be deemed given on the first Business
Day after (i) it has been personally delivered or (ii) it has been delivered by said courier, as indicated its proof of delivery.
| 10.4 | Attorneys’
Fees. In the event an Action is brought to enforce or interpret any provision
of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’
fees and costs. |
| 10.5 | Governing
Law. This Agreement shall be deemed to be made under and in all respects shall
be interpreted, construed and governed by and in accordance with the Laws of the State
of California applicable to contracts made and performed in such State without giving
effect to the choice of laws principles of such State that would require or permit the
application of the laws of another jurisdiction. |
| 10.6 | Interpretation;
Article and Section References. The descriptive headings herein are inserted
for convenience of reference only and are not intended to be part of or to affect the
meaning or interpretation of this Agreement. All words used in this Agreement will be
construed to be of such gender or number as the circumstances require. The words “include”
or “including” mean “include, without limitation,” or “including,
without limitation,” as the case may be, and the language following “include”
or “including” shall not be deemed to set forth an exhaustive list. References
to days are to calendar days; provided that any action otherwise required to be
taken on a day that is not a Business Day shall instead be take on the next Business
Day. Unless otherwise specifically provided or the context otherwise requires, all references
in this Agreement to Seller mean and shall refer to Seller and each of his successors,
assigns and (where the context so requires) predecessors in interest. As used in
this Agreement, the singular or plural number shall be deemed to include the other whenever
the context so requires. Any capitalized terms used in any Annex or Exhibit, but not
otherwise defined therein shall have the meaning as defined in this Agreement. All Annexes
and Exhibits annexed or attached hereto or referred to herein are hereby incorporated
in and made a part of this Agreement as if set forth herein. |
| 10.7 | Third-Party
Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit
of each party hereto and its successors and permitted assigns and, except as expressly
provided in Section 8.2(a) as to Company Indemnitees and in Section 8.2(b) as
to Seller Indemnitees , nothing in this Agreement is intended to or shall confer upon
any other Person any legal or equitable rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement. |
| 10.8 | Counterparts;
Electronic Signature. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original but all of which shall constitute one
and the same agreement. This Agreement and all instruments to be executed and delivered
pursuant to it may be executed by facsimile or electronic (including PDF) signature
and a facsimile or electronic (including PDF) signature shall constitute an original
for all purposes; provided, however that only the originals of the 60MM Certificate,
the 203MM Certificate and the Share Assignments shall have any legal force or effect. |
| 10.9 | Amendment
and Modification. This Agreement may not be amended, modified or supplemented
in any manner, whether by course of conduct or otherwise, except by an instrument in
writing specifically designated as an amendment, modification or supplement hereto, signed
by each of the Parties. |
| 10.10 | Specific
Performance. The Parties hereby acknowledge and agree that it may cause irreparable
injury to the other party or parties if any of the provisions of this Agreement are not
performed in accordance with their specific terms or otherwise are breached, for which
damages, even if available, may not be an adequate remedy. Accordingly, each party agrees
that the other party shall have the right to seek injunctive relief by any court of competent
jurisdiction to prevent breaches of the provisions of this Agreement and to enforce specifically
this Agreement and the terms and provisions hereof in any action or proceeding, in addition
to any other remedy to which it may be entitled, at law or in equity. |
| 10.11 | Fees
and Expenses. Except as otherwise specifically provided herein, all fees and
expenses incurred in connection with or related to this Agreement and the Transactions,
including all fees and expenses for accountants, brokers, investment banks, financial
advisors, legal counsel or other advisors, agents or other outside representatives, shall
be paid by the party incurring such fees or expenses, whether or not such transactions
are consummated; provided that, in the event of termination of this Agreement,
the obligation of each party to pay its own expenses will be subject to any rights of
such party arising from a breach of this Agreement by any other party. |
| 10.12 | Waivers.
No failure or delay of a party in exercising any right or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to enforce such right or power,
or any course of conduct, preclude any other or further exercise thereof or the exercise
of any other right or power. The rights and remedies of the Parties hereunder are cumulative
and are not exclusive of any rights or remedies which they would otherwise have hereunder.
Any agreement on the part of any party to any such waiver shall be valid only if set
forth in a written instrument executed and delivered by such party. |
| 10.13 | No
Presumption Against Drafting Party. The Parties agree that they have been represented
by counsel during the negotiation and execution of this Agreement and, therefore, waive
the application of any Law or rule of construction providing that ambiguities in an agreement
or other document will be construed against the party drafting such agreement or document. |
IN
WITNESS WHEREOF, Seller has duly executed this Agreement, and Company has caused this Agreement to be duly executed on its
behalf, as of the day and year first above written.
COMPANY:
ACOLOGY,
INC.
By: /s/
Xxxxxx Xxxxxxxxxxx
Xxxxxx
Xxxxxxxxxxx
Chief
Executive Officer
By: Xxxxxxx
Xxxxxxxx
Xxxxxxx
Xxxxxxxx
Chief
Operating Officer
SELLER:
/s/ Xxxx
Xxxxxxxx
Xxxx Xxxxxxxx
