EXHIBIT 10
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into this
___th day of April, 2003, by and between Dtomi, Inc., a Nevada corporation (the
"Purchaser") and Xxxx Xxxxxxx, an individual (the "Seller").
WHEREAS, the Seller is the owner of the air spring powered lowerable
suspension assembly patent, Patent No. 6,530,580 (the "Asset"); and
WHEREAS, the Purchaser desires to purchase, and the Seller desires to
sell, the Asset, for use in the Purchaser's business; and
NOW, THEREFORE, for and in consideration of the premises, and the
mutual covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
1. ASSET PURCHASED. The Seller agrees to sell to the Purchaser and the
Purchaser agrees to purchase from the Seller, on the terms and conditions set
forth in this Agreement, the Asset. To effect the foregoing, Seller will sell,
assign, transfer and set over to Purchaser all of Seller's right, title and
interest in and to the Asset, including all common law rights, all goodwill and
all claims for damages by reason of any past infringement and any other right or
interest Seller may have in the Asset and all other patent applications,
improvements, reissues and inventions arising therefrom, for Purchaser's own use
and enjoyment and the use and enjoyment of Purchaser's successors, assigns and
other legal representatives.
2. LIABILITIES ASSUMED. The Purchaser agrees to assume and pay,
discharge or perform, as appropriate, Three Hundred Thousand Dollars ($300,000)
of liabilities of the Seller relating to and/or arising out of costs associated
with commercializing the technology underlying the Asset, which existed or arose
prior to the closing, including, but not limited to, costs associated with
certain obligations to, and/or claims by, third parties in Australia with an
alleged interest in the Asset (the "Liabilities"). Further, the Purchaser shall,
no later than ten (10) days after the Closing (defined in Section 5.1 below),
pay Seller Fifty Thousand Dollars ($50,000) towards satisfaction of the
Liabilities. The obligations of the Purchaser under this Section are subject to
whatever rights the Purchaser may have under this Agreement or otherwise for
breach by Seller of any representation, warranty, covenant or agreement
contained in this Agreement, including but not limited to any right of
indemnification provided by this Agreement.
3. PURCHASE PRICE. In consideration of the sale, transfer and
conveyance to the Purchaser of the Asset and the Assumed Liabilities, Purchaser
will issue Seller common stock equaling forty percent (40%) (approximately
711,992 shares) (the "Shares") of the
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issued and outstanding stock of Dtomi, post-split(1) (the "Purchase Price"). The
number of Shares to be transferred to Seller shall be appropriately adjusted to
reflect the effect of any stock split, reverse split, stock dividend,
reorganization, recapitalization or other like change with respect to Seller's
common stock occurring after the Closing Date, as defined in Section 5.1, and
prior to the Closing, so as to provide Seller the same economic effect as
contemplated by this Agreement prior to such stock split, reverse split, stock
dividend, reorganization, recapitalization, or like change.
4. PAYMENT OF PURCHASE PRICE. At the Closing, the Purchaser shall
issue, or direct its transfer agent to issue the Shares to the Seller, on
account of the Purchase Price.
5. CLOSING.
5.1 TIME AND PLACE. The closing of the sale and purchase of
the Asset (the "Closing") shall take place at The Xxxx Law Group, PLLC, at 5:00
p.m. on April __, 2003 ("Closing Date"), or at such other time as the parties
may agree in writing.
5.2 OBLIGATIONS OF SELLER AT THE CLOSING. At the Closing, the
Seller shall execute, or cause to be executed, and shall deliver to the
Purchaser the following:
5.2.1 that certain Assignment of Patent Rights, attached hereto
as EXHIBIT A;
5.2.2 a certificate of the Seller representing and warranting to
the Purchaser that each of the representations and
warranties of the Seller in this Agreement are accurate in
all respects as of the date of this Agreement and are
accurate in all respects as of the Closing Date as if made
on the Closing Date; and
5.2.3 such other documents as the Purchaser may reasonably request
for the purpose of (A) evidencing the accuracy of any of
Seller's representations and warranties, (B) evidencing the
performance by Seller of, or the compliance by Seller with,
any covenant or obligation required to be performed or
complied with by it, (C) evidencing the satisfaction of any
condition referred to in this Agreement, or (D) otherwise
facilitating the consummation or performance of any of the
transactions contemplated in this Agreement.
5.3 OBLIGATIONS OF PURCHASER AT THE CLOSING. At the Closing,
the Purchaser shall execute, or cause to be executed, and shall deliver to the
Seller the following:
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1 Purchaser shall effect a 1-for-20 reverse stock split of the Purchaser's
issued and outstanding common stock, options, warrants, and any other securities
convertible into or that may be exchanged for options, warrants or common or
preferred stock of the Purchaser, bringing the total issued and outstanding
stock of the Corporation to Nine Hundred Seventy Thousand Eight Hundred Ninety
Nine (970,899) shares from Nineteen Million Four Hundred Seventeen Thousand Nine
Hundred and Eighty One (19,417,981) shares.
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5.3.1 a certificate or certificates for the Shares to be
transferred to the Seller pursuant to this Agreement against
delivery of the Asset;
5.3.2 a certificate of the Purchaser to the effect that each of
the Purchaser's representations and warranties in this
Agreement was accurate in all respects as of the date of
this Agreement and is accurate in all respects as of the
Closing Date as if made on the Closing Date; and
5.3.3 such other documents as the Seller may reasonably request
for the purpose of (A) evidencing the accuracy of any
representation or warranty of the Purchaser, (B) evidencing
the performance by the Purchaser of, or the compliance by
the Purchaser with, any covenant or obligation required to
be performed or complied with by the Purchaser, (C)
evidencing the satisfaction of any condition referred to in
this Agreement, or (D) otherwise facilitating the
consummation or performance of any of the transactions
contemplated in this agreement.
5.4 POSSESSION. Simultaneously with such deliveries, Seller shall take
all action necessary or appropriate to put Purchaser in actual possession and
operating control of the Asset.
6. SELLER'S OBLIGATION PRIOR TO CLOSING.
6.1 SELLER'S USE OF ASSET PRIOR TO CLOSING. The Seller agrees that
between the date of this Agreement and the Closing Date, the Seller will:
6.1.1 Not assign, sell, lease or otherwise transfer or dispose of
the Asset.
7. CONDITIONS AND BEST EFFORTS. The Seller will use its best efforts to
effectuate the transactions contemplated by this Agreement and to fulfill all
the conditions of the obligations of the Seller under this Agreement, and will
do all acts and things as may be required to carry out their respective
obligations under this Agreement and to consummate and complete this Agreement.
8. COVENANTS OF PURCHASER PRIOR TO CLOSING.
8.1 CONDITIONS AND BEST EFFORTS. The Purchaser will use its
best efforts to effectuate the transactions contemplated by this Agreement and
to fulfill all the conditions of the Purchaser's obligations under this
Agreement, and shall do all acts and things as may be required to carry out the
Purchaser's obligations and to consummate this Agreement.
8.2 CONFIDENTIAL INFORMATION. If for any reason the sale of
the Asset is not closed, the Purchaser will not disclose to third parties any
confidential information received from the Seller in the course of
investigating, negotiating and performing the transactions contemplated by this
Agreement.
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8.3 REVERSE-SPLIT OF PURCHASER'S STOCK. The Purchaser shall
effect a 1-for-20 reverse stock split of the Purchaser's issued and outstanding
common stock, options, warrants, and any other securities convertible into or
that may be exchanged for options, warrants or common or preferred stock of the
Purchaser, bringing the total issued and outstanding stock of the Purchaser to
Nine Hundred Seventy Thousand Eight Hundred Ninety Nine (970,899) shares from
Nineteen Million Four Hundred Seventeen Thousand Nine Hundred and Eighty One
(19,417,981) shares.
9. SELLER'S REPRESENTATIONS AND WARRANTIES. The Seller represents and
warrants to the Purchaser as follows:
9.1 SELLER'S AUTHORITY. Potential claims by certain third
parties residing in Australia exist relative to whether the Seller holds good
and marketable title to the Asset, whether the Asset is free and clear of
restrictions on or conditions to transfer or assignment of the Asset, and
whether the Asset is free and clear of liens, pledges, charges or encumbrances.
With the exception of the foregoing, the Seller now has, and on the Closing Date
will have, all requisite power and authority to sell and assign the Asset.
9.2 SELLER'S POWER AND AUTHORIZATION. The Seller has full
authority to execute and deliver this Agreement and any other agreement to be
executed and delivered by the Seller in connection herewith, and to carry out
the transactions contemplated hereby. No other proceedings by the Seller will be
necessary to authorize this Agreement or the carrying out of the transactions
contemplated hereby. The Seller has consulted its own financial advisor, tax
advisor and accountant, as necessary or desirable, as to matters concerning this
Agreement. This Agreement constitutes a valid and binding Agreement of the
Seller in accordance with its terms.
9.3 CONFLICT WITH OTHER AGREEMENTS, CONSENTS AND APPROVALS.
With respect to (i) any applicable law, statute, rule or regulation, (ii) any
contract to which the Seller is a party or may be bound, or (iii) any judgment,
order, injunction, decree or ruling of any court or governmental authority to
which the Seller is a party or subject, the execution and delivery by the Seller
of this Agreement and any other agreement to be executed and delivered by the
Seller in connection herewith and the consummation of the transactions
contemplated hereby will not (a) result in any violation, conflict or default,
or give to others any interest or rights, including rights of termination,
cancellation or acceleration, or (b) require any authorization, consent,
approval, exemption or other action by any court or administrative or
governmental body which has not been obtained, or any notice to or filing with
any court or administrative or governmental body which has not been given or
done.
9.4 COMPLIANCE WITH LAW. Except as otherwise provided in
Section 9.1 of this Agreement, the Seller's use of the Asset has been in
compliance with all applicable federal, state, local or other governmental laws
or ordinances, the non-compliance with which, or the violation of which, might
have a material adverse affect on the Asset, the Assumed Liabilities or the
financial condition, results of operations or anticipated business prospects of
the Purchaser, and the Seller has received no claim or notice of violation with
respect thereto. The Seller has obtained all material permits, licenses,
franchises and other authorizations necessary for the use of the Asset.
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9.5 TAX AND OTHER RETURNS AND REPORTS. (i) All federal, state,
local and foreign tax returns and reports (including without limitation all
income tax, social security, payroll, unemployment compensation, sales and use,
excise, privilege, property, ad valorem, franchise, license and school) required
to be filed by the Seller by the Closing ("Tax Returns") have been filed with
the appropriate governmental agencies in all jurisdictions in which such returns
and reports are required to be filed, and all such returns and reports properly
reflect the taxes of the Seller for the periods covered thereby; and (ii) all
federal, state and local taxes, assessments, interest, penalties, deficiencies,
fees and other governmental charges or impositions, including those enumerated
above with respect to the Tax Returns, which are called for by the Tax Returns,
or which are claimed to be due from the Seller by notice from any taxing
authority, or upon or measured by its properties, assets or income, have been
properly accrued or paid by or at the Closing if then due and payable.
9.6 TITLE TO ASSET. Except as otherwise provided in Section
9.1, the Seller holds good and marketable title to the Asset, free and clear of
restrictions on or conditions to transfer or assignment, and free and clear of
liens, pledges, charges or encumbrances.
9.7 ASSET RIGHTS.
9.7.1 Except as otherwise provided in Section 9.1, no
royalties or other amounts are payable by the Seller
to other persons by reason of the Seller's ownership
of the Asset.
9.7.2 Except as otherwise provided in Section 9.1, the
Seller has obtained and delivered to the Purchaser
all consents and approvals of third parties necessary
to duly transfer to the Purchaser all of the Seller's
rights, title and interest in and to the Asset.
9.8 LITIGATION. Except as otherwise provided in Section 9.1,
the Seller has no knowledge of any claim, litigation, proceeding or
investigation pending or threatened against the Seller that might result in any
material adverse change in the condition of the Asset being conveyed under this
Agreement.
9.9 ACCURACY OF REPRESENTATIONS AND WARRANTIES. None of the
representations or warranties of the Seller contain or will contain any untrue
statement of a material fact or will omit or misstate a material fact necessary
in order to make statements in this Agreement not misleading. The Seller knows
of no fact that has resulted in a material change in the Asset that has not been
set forth in this Agreement or otherwise disclosed to the Purchaser.
10. REPRESENTATIONS AND WARRANTIES OF PURCHASER. The Purchaser
represents and warrants as follows:
10.1 CORPORATE EXISTENCE. The Purchaser is now, and on the
Closing Date will be, a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada, has all requisite corporate
power and authority to enter into this Agreement and perform its obligations
hereunder.
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10.2 AUTHORIZATION. The Purchaser has full corporate authority
to execute and deliver this Agreement and any other agreement to be executed and
delivered by the Purchaser in connection herewith, and to carry out the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate and shareholder action. No other corporate
proceedings by the Purchaser will be necessary to authorize this Agreement or
the carrying out of the transactions contemplated hereby. This Agreement
constitutes a valid and binding Agreement of the Purchaser, in accordance with
its terms. The Purchaser has consulted its own financial advisor, tax advisor
and accountant, as necessary or desirable, as to matters concerning this
Agreement.
10.3 CONFLICT WITH OTHER AGREEMENTS, CONSENTS AND APPROVALS.
With respect to (i) the articles of incorporation or bylaws of the Purchaser,
(ii) any applicable law, statute, rule or regulation, (iii) any contract to
which the Purchaser is a party or may be bound, or (iv) any judgment, order,
injunction, decree or ruling of any court or governmental authority to which the
Purchaser is a party or subject, the execution and delivery by the Purchaser of
this Agreement and any other agreement to be executed and delivered by the
Purchaser in connection herewith and the consummation of the transactions
contemplated hereby will not (a) result in any violation, conflict or default,
or give to others any interest or rights, including rights of termination,
cancellation or acceleration, or (b) require any authorization, consent,
approval, exemption or other action by any court or administrative or
governmental body which has not been obtained, or any notice to or filing with
any court or administrative or governmental body which has not been given or
done.
10.4 ACCURACY OF REPRESENTATIONS AND WARRANTIES. None of the
representations or warranties of the Purchaser contain or will contain any
untrue statement of a material fact or will omit or misstate a material fact
necessary in order to make the statements contained herein not misleading.
10.5 POST-CLOSING MATTERS. Immediately after the closing, the
Purchaser shall:
(a) enter into an employment agreement with Seller, the terms of
which will be mutually agreed upon at that time. In connection
with Seller's employment agreement, the Purchaser shall: 1)
employ Seller as the President of the Purchaser; and 2) agree
to pay Seller a mutually agreed upon salary;
(b) appoint Seller to the Board of Directors of the Purchaser; and
(c) commit on a "best efforts" basis, to raise capital in the
amount of One Million Dollars ($1,000,000) for the future
operations of the Purchaser's MPD. PROVIDED, HOWEVER, that if
the Purchaser fails to raise capital in the amount of One
Million Dollars ($1,000,000) for the future operations of the
Purchaser's MPD on or by July 1, 2003, Seller may re-acquire
the Asset from the Purchaser on terms and conditions to be
mutually agreed upon(2) by the Purchaser and Seller.
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2 In the event that the Purchaser fails to raise capital in the amount of One
Million Dollars ($1,000,000) for the future operations of the Purchaser's MPD on
or by July 1, 2003, and the Purchaser and Seller are unable to reach an
agreement for the terms upon which the Asset may be re-acquired by Seller, the
parties agree to submit the matter to arbitration in accordance with Section
15.8 of this Agreement.
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11. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. The obligation of
the Purchaser to purchase the Asset is subject to the fulfillment, prior to or
at the Closing Date, of each of the following conditions, any one or portion of
which may be waived in writing by the Purchaser:
11.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER. The
representations and warranties of the Seller contained herein and any other
documents delivered by the Seller in connection with this Agreement shall be
true and correct in all material respects at the Closing; and the Seller shall
have performed all obligations and complied with all agreements, undertakings,
covenants and conditions required by this Agreement to be performed or complied
with by it or prior to the Closing.
11.2 CONDITIONS OF THE BUSINESS. There shall have been no
material adverse change in the Asset prior to the Closing Date.
11.3 NO SUITS OR ACTIONS. Except as otherwise provided in
Section 9.1, at the Closing Date no suit, action or other proceeding shall have
been threatened or instituted to restrain, enjoin or otherwise prevent the
consummation of this Agreement or the contemplated transactions.
12. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER. The obligations
of the Seller to consummate the transactions contemplated by this Agreement are
subject to the fulfillment, prior to or at the Closing Date, of each of the
following conditions, any one or a portion of which may be waived in writing by
the Seller;
12.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER.
All representations and warranties made in this Agreement by the Purchaser shall
be true as of the Closing Date as fully as though such representations and
warranties had been made on and as of the Closing Date, and the Purchaser shall
not have violated or shall not have failed to perform in accordance with any
covenant contained in this Agreement.
12.1.1 KNOWLEDGE OF THIRD PARTY CLAIMS. Purchaser acknowledges
and understands that potential claims by third parties residing in Australia
exist relative to whether the Seller holds good and marketable title to the
Asset, whether the Asset is free and clear of restrictions on or conditions to
transfer or assignment of the Asset, and whether the Asset is free and clear of
liens, pledges, charges or encumbrances.
13. PURCHASER'S ACCEPTANCE. The Purchaser represents and acknowledges
that it has entered into this Agreement on the basis of its own examination,
personal knowledge and opinion of the value of the Asset. The Purchaser has not
relied on any representations made by the Seller other than those specified in
this Agreement. The Purchaser further acknowledges that the Purchaser takes the
Asset in the condition existing on the date of this Agreement, except as
otherwise provided in this Agreement.
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14. INDEMNIFICATION AND SURVIVAL.
14.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in this Agreement shall survive the Closing
of this Agreement, except that any party to whom a representation or warranty
has been made in this Agreement shall be deemed to have waived any
misrepresentation or breach of representation or warranty of which such party
had knowledge prior to Closing. Any party learning of a misrepresentation or
breach of representation or warranty under this Agreement shall immediately give
written notice thereof to all other parties to this Agreement. The
representations and warranties in this Agreement shall terminate two (2) years
from the Closing Date, and such representations or warranties shall thereafter
be without force or effect, except any claim with respect to which notice has
been given to the party to be charged prior to such expiration date.
14.2 SELLER'S INDEMNIFICATION. The Seller hereby agrees to
indemnify and hold the Purchaser, its successors and assigns harmless from and
against: (i) Any and all damages, losses, claims, liabilities, deficiencies and
obligations of every kind and description, contingent or otherwise, arising out
of or related to the operation of the Asset prior to the close of business on
the day before the Closing Date, except for damages, losses, claims,
liabilities, deficiencies and obligations of the Seller expressly assumed by the
Purchaser under this Agreement or paid by insurance maintained by the Seller or
the Purchaser, (ii) any and all damage or deficiency resulting from any material
misrepresentation, breach of warranty or covenant, or nonfulfillment of any
agreement on the part of the Seller under this Agreement, and (iv) any and all
actions, suits, claims, proceedings, investigation, audits, demands,
assessments, fines, judgments, costs and other expenses (including, without
limitation, reasonable audit and attorneys fees) incident to any of the
foregoing. If any claim is asserted against the Purchaser that would give rise
to a claim by the Purchaser against the Seller for indemnification under the
provisions of this Section, then the Purchaser shall promptly give written
notice to the Seller concerning such claim and the Seller shall, at no expense
to the Purchaser, defend the claim. PROVIDED, HOWEVER, that the Seller shall not
be obligated to indemnify and hold the Purchaser, its successors and assigns
harmless from and against damages, losses, claims, liabilities, deficiencies and
obligations of any kind or description, contingent or otherwise, arising out of
or related to claims against the Purchaser or the Asset as described in Section
9.1.
14.3 PURCHASER'S INDEMNIFICATION. The Purchaser agrees to
defend, indemnify, and hold harmless the Seller from and against (i) any and all
claims, liabilities and obligations of every kind and description arising out of
or related to the Asset following Closing or arising out of the Purchaser's
failure to perform obligations of the Seller assumed by the Purchaser pursuant
to this Agreement; (ii) any and all damage or deficiency resulting from any
material misrepresentation, breach of warranty or covenant, or nonfulfillment of
any agreement on the part of the Purchaser under this Agreement, and (iii) any
and all actions, suits, claims, proceedings, investigation, audits, demands,
assessments, fines, judgments, costs and other expenses (including, without
limitation, reasonable audit and attorneys fees) incident to any of the
foregoing.
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15. MISCELLANEOUS PROVISIONS.
15.1 NOTICES. All notices, requests, demands, claims, consents
and other communications required or permitted under this Agreement shall be in
writing. Any notice, request, demand, claim , communication or consent under
this Agreement shall be deemed duly given if (and shall be effective two
business days after) it is sent by certified mail, return receipt requested,
postage prepaid, and addressed to the intended recipient as set forth below:
If to Purchaser: Dtomi, Inc.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxxx, Xxxxxxx 00000
With a copy to: Xxxxx X. Xxxx
The Xxxx Law Group, PLLC
000 0xx Xxx., Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
If to Seller: Xx. Xxxx X. Xxxxxxx
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
or at any other address as any party may, from time to time, designate by notice
given in compliance with this section.
15.2 TIME. Time is of the essence of this Agreement.
15.3 SURVIVAL. Any of the terms and covenants contained in
this Agreement which require the performance of either party after the Closing
shall survive the Closing and delivery of the Asset and the Shares.
15.4 WAIVER. Failure of either party at any time to require
performance of any provision of this Agreement shall not limit the party's right
to enforce the provision, nor shall any waiver of any breach of any provision be
a waiver of any succeeding breach of any provision or a waiver of the provision
itself for any other provision.
15.5 ASSIGNMENT. Except as otherwise provided within this
Agreement, neither party hereto may transfer or assign this Agreement without
the prior written consent of the other party.
15.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington, without giving
effect to the conflicts of law principals thereof.
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15.7 VENUE. This parties to this Agreement agree that any
action on this Agreement shall be brought in a court of competent jurisdiction
located in King County, Washington.
15.8 ARBITRATION. If at any time during the term of this
Agreement any dispute, difference or disagreement shall arise upon or in respect
of the Agreement, and the meaning and construction hereof, every such dispute,
difference and disagreement shall be referred to a single arbiter agreed upon by
the parties, or if no single arbiter can be agreed upon, an arbiter or arbiters
shall be selected in accordance with the rules of the American Arbitration
Association and such dispute, difference or disagreement shall be settled by
arbitration in accordance with the then prevailing commercial rules of the
American Arbitration Association, and judgment upon the award rendered by the
arbiter may be entered in any court having jurisdiction thereof.
15.9 ATTORNEY FEES. In the event an arbitration, suit or
action is brought by any party under this Agreement to enforce any of its terms,
or in any appeal therefrom, it is agreed that the prevailing party shall be
entitled to reasonable attorneys' fees to be fixed by the arbitrator, trial
court and/or appellate court.
15.10 TITLES AND CAPTIONS. All article, section and paragraph
titles or captions contained in this Agreement are for convenience only and
shall not be deemed part of the context nor affect the interpretation of this
Agreement.
15.11 ENTIRE AGREEMENT. This Agreement contains the entire
understanding between and among the parties and supersedes any prior
understandings and agreements among them respecting the subject matter of this
Agreement.
15.12 CONSTRUCTION. The parties have participated jointly in
the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
15.13 PRIOR AGREEMENTS. This document is the entire, final and
complete agreement of the parties pertaining to the to purchase of the Asset,
and supersedes and replaces all prior or existing written and oral agreements
between the parties or their representatives relating to the Asset.
15.14 MODIFICATIONS MUST BE IN WRITING. This Agreement may not
be changed orally. All modifications of this Agreement must be in writing and
must be signed by each party.
15.15 AGREEMENT BINDING. This Agreement shall be binding upon
the heirs, executors, administrators, successors and assigns of the parties
hereto.
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15.16 FURTHER ACTION. The parties hereto shall execute
and deliver all documents, provide all information and take or forbear from all
such action as may be necessary or appropriate to achieve the purposes of this
Agreement.
15.17 GOOD FAITH, COOPERATION AND DUE DILIGENCE. The parties
hereto covenant, warrant and represent to each other good faith, complete
cooperation, due diligence and honesty in fact in the performance of all
obligations of the parties pursuant to this Agreement. All promises and
covenants are mutual and dependent.
15.18 COUNTERPARTS. This Agreement may be executed by
facsimile and in several counterparts, and all so executed shall constitute one
Agreement, binding on all the parties hereto even though all the parties are not
signatories to the original or the same counterpart.
15.19 SAVINGS CLAUSE. If any provision of this Agreement, or
the application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
SELLER:
By: _/s/ XXXX SIMPSON_______________
Name: Xxxx Xxxxxxx
PURCHASER:
DTOMI, INC.
By: _/s/ Xxxxx X. Otto________________
Name: Xxxxx X. Xxxx
Title: Chairman of the Board of Directors
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EXHIBIT A
ASSIGNMENT OF PATENT RIGHTS
This Assignment of Patent Rights (the "Assignment") is made and effective as of
April ___, 2003 (the "Effective Date") by and between Xxxx Xxxxxxx, an
individual ("Assignor"), and Dtomi, Inc., a Nevada corporation ("Assignee").
RECITALS
WHEREAS, Assignor is the owner of that certain United States Patent attached
hereto as EXHIBIT A and incorporated herein by this reference (collectively, the
"Patent");
WHEREAS, Assignor and Assignee have entered into that certain Asset Purchase
Agreement, attached hereto as EXHIBIT B, dated April ___, 2003, (the "APA") by
which Assignor has agreed to sell, and Assignee has agreed to purchase, the
Patent, and assume certain liabilities of Assignor (the "Liabilities"); and
WHEREAS, pursuant to the APA, Assignor is obligated to transfer, and Assignee is
entitled to receive all of Assignor's right, title, and interest in and to the
Patent and all ownership interest in all patent rights associated with the
Patent.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and provisions
of this Assignment, and other good and valuable considerations as further set
forth in other agreements between the parties, the parties hereto agree as
follows:
1. ASSIGNMENT.
(a) As of the Effective Date, Assignor hereby sells, assigns, transfers
and sets over to Assignee all of Assignor' right, title and interest in and to
the Patent, including all common law rights, all goodwill and all claims for
damages by reason of any past infringement and any other right or interest he
may have in the Patent and all other patent applications, improvements, reissues
and inventions arising therefrom, for Assignee's own use and enjoyment and the
use and enjoyment of Assignee's successors, assigns and other legal
representatives, to the end of the term for which said Patent is granted or
reissued, as fully and entirely as the same would have been held and enjoyed by
Assignor if this Assignment had not been entered into. Assignee hereby accepts
the assignment of such rights, subject to the terms and conditions of this
Assignment.
(b) Upon Assignee's request, Assignor will, without charge to Assignee
and at Assignor's sole cost and expense, sign all papers, take all lawful oaths
and take all other actions necessary, desirable or reasonably appropriate to
record such assignments and to secure and maintain the Patent in any and all
countries and to vest free, clear and lien-free title in and to the Patent
solely in Assignee.
13
(c) Assignor hereby agrees that a copy of this Assignment shall be
deemed a full legal and formal equivalent of any assignment, consent to file or
like document which may be required in any country for any purpose.
2. INDEMNITY.
(a) Except as otherwise provided in the APA, Assignor agrees to
indemnify and hold Assignee and his nominees, successors, assigns, affiliates,
agents and employees, harmless of and from any and all liabilities, claims,
causes of action, penalties, demands and expenses, of any kind or nature
whatsoever to the extent arising out of, resulting from, relating to or incident
to the Assignor's obligations or use of the Patent prior to and including the
Effective Date and the incorrectness of any representation or warranty of
Assignor contained in this Assignment, and all expenses related thereto,
including, without limitation, court costs and attorneys' fees.
(b) Assignee agrees to indemnify and hold Assignor and his nominees,
successors, assigns, affiliates, agents and employees, harmless of and from any
and all liabilities, claims, causes of action, penalties, demands and expenses,
of any kind or nature whatsoever to the extent arising out of, resulting from,
relating to or incident to Assignee's obligations or use of the Patent
subsequent to the Effective Date and all expenses related thereto, including,
without limitation, court costs and attorneys' fees.
3. REPRESENTATIONS AND WARRANTIES. Assignor represents and warrants to
Assignee as follows:
(a) Except as otherwise provided in the APA, the Patent is in full force and
effect and entitled to all privileges and protections accorded to the Patent
under applicable laws, Assignor is not in default under any terms of the Patent
and the Patent has not been assigned, terminated,modified or amended;
(b) Except as otherwise provided in the APA, Assignor holds free and clear title
to the Patent, free from any lien, claim or defect against such title, and has
the lawful right to convey all of his respective interests in the Patent to
Assignee; and
(c) Except as otherwise provided in the APA, Assignor's conveyance of his
interest in the Patent to Assignee, the execution and delivery of this
Assignment by Assignor, and the consummation of the transactions as contemplated
hereby, does not and will not violate or result in a material violation of any
provision of any existing law or regulation or any order, award or decree of any
court, arbitrator or governmental authority, by which Assignor or the Patent are
bound.
4. COUNTERPART AND FACSIMILE EXECUTION. This Assignment may be executed
in one or more counterparts, each of which shall be deemed an original and
together which shall constitute one and the same instrument. Executed copies of
this Assignment transmitted by telecopier shall be valid and binding.
15
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be executed and delivered as of the Effective Date.
ASSIGNOR:
--------------------------------------------
By: Xxxx Xxxxxxx
STATE OF WASHINGTON
ss
COUNTY OF
--------------------------
I certify that I know or have satisfactory evidence that XXXX XXXXXXX is the
person who appeared before me, and said person acknowledged that (he/she) signed
this instrument, on oath stated that (he/she) was authorized to execute the
instrument and acknowledged it to be the free and voluntary act of such party
for the uses and purposes mentioned in the instrument.
WITNESS my hand and official seal hereto affixed this _____ day of __
________, 2003.
------------------------------------
Notary Public in and for
the State of Washington,
residing at:
----------------------------------.
My commission expires_________.
16
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be executed and delivered as of the Effective Date.
ASSIGNEE:
DTOMI, INC.:
---------------------------------------------
By: Xxxxx X. Xxxx
Title: Chairman of the Board of Directors
STATE OF WASHINGTON
ss
COUNTY OF
--------------------------
I certify that I know or have satisfactory evidence that XXXXX X. XXXX is the
person who appeared before me, and said person acknowledged that (he/she) signed
this instrument, on oath stated that (he/she) was authorized to execute the
instrument and acknowledged it as the CHAIRMAN OF THE BOARD of DTOMI, INC. to be
the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
WITNESS my hand and official seal hereto affixed this _____ day of
_________, 2003.
-----------------------------------------
Notary Public in and for
the State of Washington,
residing at:
----------------------------------.
My commission expires_________.
