EXECUTION VERSION
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
Between
SIVAULT ANALYTICS, INC.
and
@XXX.XXX, INC.
Date of Agreement: March 2, 2004
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EXECUTION VERSION
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
THIS AGREEMENT FOR PURCHASE AND SALE OF ASSETS (this "Agreement"),
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dated as of March 2, 2004 (the "Effective Date"),is entered into by and among
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SiVault Analytics, Inc. ("Buyer"), a Delaware corporation with a principal place
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of business at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000 and
@XXX.xxx, Inc., ("@POS") a Delaware corporation, with a principal place of
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business at 0000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx ("Seller").
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RECITALS
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A. Seller is engaged in the business of providing secure mobile information
systems that integrate application-specific hand-held computers with wireless
networks for data, voice and bar code data capture;
B. Seller desires to sell, and Buyer desires to purchase, substantially all of
the assets of Seller related to that division of Seller's business known as the
Crossvue Business (as defined below), for the consideration and on the terms set
forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained
in this Agreement, the parties agree as follows:
AGREEMENT
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1. Definitions. For purposes of this Agreement, the following terms have the
meanings set forth in this Section 1.
1.1. "Assets" means:
(a) The specific tangible and intangible assets set forth on schedule 1
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(b) All miscellaneous hardware and tangible items (manuals) that are used
exclusively with the tangible assets set forth on $jj Or used exclusively in the
Crossvue Business, (These items are not separatel.y listed for the sake of
brevity); and
(c) All goodwill associated with the foregoing assets.
1.2. 'Books and Records" means all files, documents, instruments, papers, books
and records.
1.3. 'Closing" means the closing of the sale and transfer of the Assets from
seller to Buyer.
1.4. 'Closing Date" means March 17, 2004, or such other date as Buyer and Seller
may agree in writing.
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1.5. "Copyrights" means all worldwide copyright rights (including common law
rights) owned or controlled by one of the parties, as appropriate, including
rights to reproduce and all registrations and applications for registrations
therefore.
1.6. "Crossvue Business" means that certain portion of Seller's business
conducted through its wholly owned subsidiary Crossvue, Inc. ("Crossvue"),
related to capturing sales receipt transaction data for the purpose of providing
access to such sales receipt transaction data as an application service
provider, except as otherwise set forth in this Agreement and the Schedules
hereto.
1.7. "Seller Employees" means any individual employed by Seller or any of its
affiliates.
1.8. "Encumbrance" means any mortgage, lien, pledge, encumbrance, claim,
condition or restriction, of' any nature whatsoever, dirzct or indirect, whether
accrued, absolute, contingent or otherwise.
19. "Excluded Assets" means all the assets and properties of Seller that are not
included in the Assets (as defined above).
1.10. "Intellectual Property Rights" means all Copyrights, know-how, Trade
Secrets Trademarks, marketing procedures, software, vendors lists, customer
lists, customer files and customer records owned or controlled by one of the
parties, as appropriate.
1.11. "Legal Proceeding" means any action, suit, litigation, arbitration
proceeding (including any civil, criminal, administrative, investigative or
appellate proceeding), hearing, inquiry, audit, examination or investigation
commenced, brought, conducted or heard by or before, or otherwise involving any
court or other governmental body or any third party arbitrator or arbitration
panel.
1.12. "Net Receipts" means gross revenues accrued by Buyer from all sales,
licenses or other transactions or other commercial exploitation pursuant to
which customers are permitted use of the "Hosted Services" (as defined in
Schedllel hereto) included in the Assets set fbrth in Schedule I, minus any
deductions or offsets generally used by Buyer to calculate its reported net
revenues in accordance with generally accepted aocountng principles. For
purposes of determining Net Receipts, the following rules shall apply:
(a) If the Hosted Services are sold or licensed with other products or works
(including any enhancements to the Hosted Services owned by Buyer) in a package
for a single price, the Net Receipts attributable to the Hosted Services will be
determined by prorating the receipts from the sale or license of the package
according to the values established by Buyer for the separate works contained in
the package whether or not such works are sold or licensed separately, provided
that such values are reasonably related to the values, marketing potentials or
cost of the separate products and are consistent with prices customarily charged
in the industry.
(b) Net Receipts will not include any receipts from copies of any software
combining the Hosted Services which are distributed by Buyer to existing
customers as back-up or replacement copies, nor will Net Receipts include any
receipts from copies of the Hosted Services, supplied for promotional purposes
to the press, trade, sales representatives or potential customers for the Hosted
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Services. Net Receipts shall not include the following items (to the extent to
which they are included in the gross revenue underlying such Net Receipts): (1)
trade and bona tide quantity discounts (but not cash discounts, advertising
allowances, or commissions paid to any salesman, sales agent or manufacturers
representative); (2) sales, use, and other similar taxes; and (3) import, export
and excise taxes, custom duties, and consular fees.
1.13. "Person" means any individual, partnership, corporation, business trust,
limited liability company or partnership, joint stock company, trust,
unincorporated assoc1ation, joint venture or entity, or governmental body.
1.14. "Taxes" means any federal, state, local or foreign net income, alternative
or ad-on minimum, gross income, gross receipts, sales, use, value-added, ad
valorem, franchise, capital stock, license, withholding, payroll, employment,
excise, severance, stamp, property, environmental or windfall property tax,
customs duty or other tax, governmental fee or other like assessment or charge
of any kind whatsoever, together with any interest or any penalty, addition to
tax or additional amount impose by any governmental authority (domestic or
foreign) responsible for the imposition of any such tax
1.15, "Third Party Contracts" means the contracts, commitments and agreements
listed on Schedule 1, and includes without limitation the Third Party Licenses.
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1.16. "Third Party Licenses" means the licenses with third parties listed on
Schedule 1.
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1.17. "Trade Secrets" means all worldwide trade secrets and confidential
business information owned or controlled by one of the parties, as appropriate,
that has economic value as a result of not being known to others.
1.18. "Trademarks" means all worldwide trademarks, common law trademarks, trade
names, service marks, common law service marks and service names, together with
all registrations and applications for registration therefor.
2. Purchase of Assets; Consideration.
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2.1. Sale and Purchase. Subject to the terms and conditions set forth in this
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Agreement, on the closing Date, Seller shall sell, convey, assign, transfer and
deliver to Buyer, and buyer shall purchase and obligate to pay for, all of
Seller's right, title and interest in and to and under all the Assets, but not
any Excluded Assets. The parties acknowledge that this sale and purchase does
nor convey any license r interest, including, without limitation, any interest
arising through estoppel or implied license, in any patents or patent
applications, and that all licenses under such patents and patent applications
are granted only by the license provided in section 8,5(b).
2.2. Consideration. Subject to the terms and conditions set forth in this
Agreement, Buyer will pay Seller for the Assets the following (collectively, the
"Purchase Price"):
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(a) During the remainder of Buyer's current fiscal year (i.e. the year
commencing on January 1, 2004 and ending on December 31, 2004), Buyer shall pay
no consideration to Seller;
(b) During Buyer's second fiscal year following the Effective Date. (i.e. the
year commencing on January 1, 2005 and ending on December 31,2005), Buyer shall
pay Seller 10% of any Net Receipts accrued by Buyer during such fiscal year;
(c) During Buyer's third fiscal year following the Effective Date (i.e the year
commencing on January 1, 2006 and ending on December 31, 2006), Buyer shall pay
Seller 8% of any Net Receipts accrued by Buyer during such fiscal year;
(d) During Buyer's fourth fiscal year following the Effective Date (i.e. the
year commencing on January 1, 2007 and ending on December 31, 2007) and any
subsequent fiscal years (or any portion thereof) included in the period
commencing on January 1, 2008, Buyer shall pay Seller 6% of any Net Receipts
accrued by Buyer during each such fiscal yean This amount shall be reduced to 5%
of any Net Receipts accrued by Buyer at such time as all patents licensed by
Seller in section 8,5(b) have expired or been declared invalid or unenforceable
by a court of competent jurisdiction.
(e) All amounts payable under this Section 2.2 shall be due and payable
quarterly. Buyer shall pay Seller, within thirty (30) days after the last day of
each applicable calendar quarter, the total amount owed to Seller under this
Section 2.2 on account of Net Receipts accrued by Buyer during the immediately
preceding calendar quarter if Buyer agrees to keep accurate records in
sufficient detail to properly determine the amount payable to Seller under this
Agreement. Buyer will keep such records for at least three (3) years following
the end of the calendar quarter to which they pertain, and Buyer agrees to make
available such records for inspection during such period by a certified public
accountant retained by Seller for such purpose solely for the purpose of
verifying proper payment by Buyer.
(g) Such inspections may be made during normal working hours and no more than
once in every six (6) months at reasonable times mutually agreed upon by the
parties after fifteen (15) days notice to Buyer. The certified public accountant
will execute a reasonable confidentiality agreement prior to commencing any such
inspection. Such certified public accountant shall be permitted to report to
Seller only the information reasonably necessary to determine the appropriate
payments due under this Agreement, If such accounting firm determines that any
additional amounts are due Seller, Buyer will promptly make payment of such
amounts to Seller. Seller shall pay the expenses of the accounting firm, unless
such additional amounts determined by the accounting firm are in excess often
percent (10%) of the amount actually paid to Seller over the period covered by
the inspection, in which case Buyer shall promptly pay Seller such additional
amounts and the accounting firm's reasonable fees for such audit.
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2.3. Assumed and Excluded Liabilities.
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Buyer shall assume, as of the Closing Date, the obligations and liabilities of
Seller relating to the Crossvue Business and set forth on attached hereto, but
only to the extent that such obligations and liabilities arise after the Closing
Date and relate to benefits to be received by Buyer after the Closing Date (the
"Assumed Liabilities") (the "Assumed Liabilities"). Except for the Assumed
Liabilities, Buyer will not assume, perform or be liable for any liabilities or
obligations of Seller.
2.4. Sales and other. Seller agrees to pay and discharge when due, any sales,
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use, transfer, excise and other like taxes imposed or levied by any government
or governmental agency in the United States by reason of the sale and transfer
of the Assets under this Agreement (collectively, the "Transfer Taxes"), The
parties shall cooperate with each other to the extent reasonably requested and
legally permitted to minimize the Transfer Taxes.
3. Seller. Except as disclosed it Seller's Disclosure Schedule attached hereto
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as Exhibit A ("Seller's Disclosure Schedule") (which shall be arranged in
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sections and subsections corresponding to the numbered sections of this
Agreement and apply to the representations and warranties of the corresponding
section of this Agreement), each Seller hereby jointly and severally represents
and warrants to Buyer that as of the Effective Date:
3.1. Organization and Good Standing. Seller is a corporation duly organized,
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validly existing arid iii good standing under the laws of Delaware, and has the
requisite corporate power to own and operate its properties and assets, and to
carry on its business as presently conducted. Seller is qualified to do business
in every jurisdiction for which qualification is required unless the absence
of qualification would not have a material adverse effect on Seller's business
as it relates to the Assets.
3.2. Authority; Consents and Approvals. Seller has all necessary corporate power
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and authority to execute, deliver and perform its obligations under this
'Agreement and to consummate the transactions contemplated hereby, and such
actions have been duly authorized by all necessary corporate actions. This
Agreement, and the agreements, certificates, instruments and other documents to
be delivered by the Seller in connection with this Agreement (collectively with
this Agreement, the "Seller Transaction Documents"), have been duly executed and
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delivered by Seller and constitute the legal, valid and binding obligation of
Seller enforceable against Seller in accordance with their terms (i) subject to
laws of general application relating to bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws of general application
affecting enforcement of creditors' rights generally, and (ii) except that the
availability of the remedy of specific performance or injunctive or other forms
of equitable relief may be subject to equitable defenses and would be subject to
the discretion of the court before which any proceeding thereof may be brought.
Except as set forth on Section 6.1(g) of Seller's Disclosure Schedule, no
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consent, approval or authorization of or designation, declaration or filing with
any governmental authority on the part of Seller is required in connection with
the valid execution, delivery and performance by Seller of the Seller
Transaction Documents, and the consummation by Seller of the transactions
contemplated thereby.
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3.3. No Breach or Violation. Assuming receipt of the consents set forth on
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Section 6.1(g) of Seller's Disclosure Schedule, the execution, delivery and
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performance of the Seller Transaction Documents by Seller, and the consummation
by Seller of the transactions contemplated thereby, will not result in or
constitute any of the following: (i) a material default, breach or violation or
an event that, with notice or lapse of time or both, would be a material
default, breach or violation of the charter documents of Seller or any of the
Third Party Contracts; (ii) the creation of any material mortgage, pledge, lien;
encumbrance or charge upon any of the Assets; (iii) the acceleration of Seller's
performance pursuant to any Third Party Contract; and (iv) the material
violation of any applicable law, ordinance, rule, regulation, judgment, permit,
order or decree of any court or other governmental body, department,
instrumentality, agency or subdivision having, asserting or claiming
jurisdiction over any of the Assets, except where such default, breach,
violation, lien, encumbrance or acceleration would not reasonably he expected
to have a material adverse affect on the Crossvue Business.
3.4 Title to Assets. Seller collectively has good valid title to (or in the case
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of leased Assets, valid and enforceable leasehold interests in) all of the
Assets, free and clear of Encumbrances. Seller has the right and power to sell,
convey, assign, transfer and deliver to Buyer all of Seller's title, rights and
interest in and to the Assets free and clear of Encumbrances.
3.5 Condition of Tangible Assets. All tangible personal property, including
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machinery and equipment, if any, included in the Assets is in good operating
condition and repair, ordinary wear and tear and routine maintenance excluded.
3.6 Intellectual Property Rights. Schedule 1 lists all software being
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transferred by Seller for use in operating the Crossvue Business.
3.7 Errors; Product Liability. Seller has delivered, or will prior to the
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Closing deliver, to Buyer a descriptive list of unresolved errors (including
without limitation "bugs") and unresolved non-conformities to specification in
the Assets that constitute source code of which Seller is aware. No product
liability claims related to the products of the Crossvue Business have been
communicated to or, to Seller's knowledge, threatened against Seller or its
licensees, nor is there, to Seller's knowledge, any specific situation, set of
facts or occurrences that provides a valid basis for such claim.
3.8 Litigation. Except as set forth in Section 3.8 of Seller's Disclosure
Schedule, there is no claim, action, proceeding or investigation pending or, to
Seller's knowledge, threatened (a) against or by Seller involving the Assets, or
(b) which questions or challenges the validity of this Agreement or any action
taken by Seller pursuant to this Agreement or in connection with the
transactions contemplated hereby. Seller is not subject to any judgment, order
or decree entered. in any lawsuit or proceeding which has had or may have a
material adverse effect on the Crossvue Business.
3.9 Sufficiency of Assets. The Assets and the licenses granted hereunder include
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all of the assets and licenses necessary to operate the Crossvue Business as
presently conducted by Seller.
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3.10 Compliance with Laws. Seller is not in violation of any US. federal, state
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or local statute, law, rule or regulations with respect to the conduct of the
business of the Crossvue Business, except for such violations that would not
reasonably be expected to have a, material adverse effect on the Crossvue
Business. Seller has not received any written notice from any Person regarding
any actual or alleged violation of, or failure to comply with, any legal
requirement in connection with the conduct of the business of the Crossvue
Business. Seller has obtained all governmental licenses, orders, approvals, and
authorizations required in connection with the conduct of its business as it
relates to the Assets, except where failure to obtain such licenses, orders,
approvals or authorizations would not reasonably be expected to have a material
adverse affect on the Crossvue Business.
3.11 Complete Copies of Materials. Seller has delivered to or made available for
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inspection by Buyer true and complete copies (or summaries) of each material
contract, agreement, license, lease and similar document included in the Assets.
3.12 Taxes. With respect to any tax that is not an Excluded Liability (if any)
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or that by operation of law could become a liability of Buyer as transferee or
successor to Seller, Seller has completed and timely filed all tax returns
required to be filed by it and has paid all taxes that relate to the Assets
that are due and payable. There is no claim pending for arty tax that is an
encumbrance or lien on the Assets and no audit of any tax return related to the
Assets is being conducted by a taxing authority.
3.12 No Brokers. Seller is not obligated for the payment of fees or expenses of
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any broker or finder in connection with the origin, negotiation or execution of
this Agreement or in connection with the transfer of the Assets to Buyer.
3.13 Full Disclosure. None of the representations, warranties or statements made
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by Seller in or in connection with any of the Seller Transaction Documents or
made in any document, certificate, memorandum or exhibit furnished or to be
furnished by Seller, or on its behalf, pursuant to or in connection with this
Agreement contains or will contain any untrue statement of a material fact or
omits or will omit any material fact the omission of which would be misleading;
provided, however, that with respect to any due diligence materials provided by
Seller to Buyer in connection with this Agreement, the foregoing representations
and warranties are made to the best of Seller's knowledge.
4. Representations and Warranties of Buyer. Except as disclosed in Buyer's
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Disclosure Schedule attached hereto as Exhibit B ("Buyer's Disclosure
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Schedule")(which shall be arranged in sections and subsections corresponding to
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the numbered sections of this Agreement and apply to the representations and
warranties of the corresponding section of this Agreement), Buyer hereby
represents and warrants to Seller that as of the Effective Date:
4.1. Organization and Good Standing. Buyer is a corporation duly organized,
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validly existing and in good standing under the laws of Delaware, and has the
requisite corporate power to own and operate its properties and assets, and to
carry on its business as presently conducted.
4.2. Authority; Consents and Approvals. Buyer has all necessary corporate power
and authority to execute deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby, and such
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action has been duly authorized by all necessary corporate action. This
Agreement, and the agreements, certificates, instruments and other documents to
be delivered by Buyer in connection with this Agreement (collectively with this
Agreement, the "Buyer Transaction Documents"), have been duly executed and
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delivered by Buyer and constitutes the legal, valid and binding obligation of
Buyer enforceable against Buyer in accordance with their terms (i) subject to
Jaws of general application relating to bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws of general application
affecting enforcement. of creditors' rights generally, and (ii) except that the
availability of the remedy of specific performance or injunctive or other forms
of equitable relief may be subject to equitable defenses and would be subject to
the discretion of the court before which any proceeding thereof may be brought,
No consent, approval or authorization of or designation, declaration or filing
with any third party or governmental authority on the part of Buyer is required
in connection with the valid execution, delivery and performance by Buyer of the
Buyer Transaction Documents and the consummation by Buyer of the transactions
contemplated thereby.
4.3. No Breach or Violation. Buyer is not in violation of any term of' its
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charter documents. The execution, delivery and performance of the Buyer
Transaction Documents by Buyer, and the consummation by Buyer of the
transactions contemplated thereby, will not result in or constitute any of the
following: (I) a material default, breach or violation or an event that, with
notice or lapse of time or both, would be a material default, breach or
violation of the charter documents of Buyer or any material agreement,
instrument or arrangement to which Buyer is a party or by which Buyer is hound,
or (ii) the material violation of any applicable law, ordinance, rule,
regulation, judgment, order or decree of any court or other governmental body,
department, instrumentality, agency or subdivision having, asserting or claiming
jurisdiction.
4.4. Litigation. To Buyer's knowledge, there is no claim, action, proceeding or
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investigation pending or, to Buyer's knowledge, threatened (a) against or by
Buyer involving the Assets, or (b) which questions or challenges the validity of
this Agreement or any action taken by Buyer pursuant to this Agreement or in
connection with the transactions contemplated hereby. Buyer is not subject to
any judgment, order or decree entered in any lawsuit or proceeding which has had
or may have a material adverse effect on its ability to consummate the
transactions contemplated hereby.
4.5. No Brokers. Buyer is not obligated for the payment of fees or expenses of
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any broker or finder in connection with the origin, negotiation or execution of
this Agreement or in connection with the transfer of the Assets to Buyer,
5. Pre-Closing Covenants. Buyer and Seller each agree (except as expressly
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contemplated by this Agreement or to the extent that both parties shall
otherwise consent in writing) that until the Closing or the termination of this
Agreement, whichever shall first occur:
5.1. Access and Investigation. Upon reasonable advance notice received from
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Buyer, Seller shall (a) afford Buyer and its representatives hill and free
access, during regular business hours, to the employees and the Books and
Records of the Crossvue Business, subject to confidentiality obligations and
provided that such access does not unreasonably interfere with the operations of
Seller, and (I,) furnish Buyer and its representatives with copies of all such
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Books and Records, and other existing data relating to the Crossvue Business as
Buyer may reasonably request, subject to confidentiality obligations.
5.2. Ordinary Course. Seller shall use commercially reasonable efforts to
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conduct the business of the Crossvue Business in the ordinary course consistent
with past practice. Seller U) will not sell, encumber, pledge, license or
otherwise transfer or assign any 0f the Assets, including the Crossvue
Intellectual Property Rights, the Excluded Patents or other related intangible
assets, or enter into any agreements with respect to such a transaction, except
in the ordinary course of business, and (ii) to the extent related to the
Assets, Seller will use commercially reasonable efforts to, in the ordinary
course of business, preserve its relationships with its suppliers, customers and
others with whom it deals in the Crossvue Business.
5.3. Further Action; Filing. Each party shall use commercially reasonable
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efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable to consummate and make effective
the transactions contemplated by this Agreement, and to satisfy all conditions
set forth in Section 6 within such party's control and effect the closing as set
forth in Section 7. Each party will take commercially reasonable actions
necessary to comply promptly with all applicable legal requirements which may be
imposed on such party with respect to the consummation of the transactions
contemplated by this Agreement and will promptly cooperate with and furnish
information to the other party iii connection with any such requirements. Each
party will use all commercially reasonable efforts to obtain (and will cooperate
with each other in obtaining) any consent, approval, order or authorization
from, and will use all commercially reasonable efforts to make any registration,
declaration or other filing with, any governmental entity, domestic or foreign,
required to be obtained or made by either Buyer or Seller in connection with the
consummation of the transactions contemplated by this Agreement.
5.4. Confidentiality. Buyer and Seller shall maintain in confidence, and shall
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cause their respective directors, officers, employees, agents, and advisors to
maintain in confidence, and not use to the detriment of the other party, any
written, oral, or other information obtained in confidence from another party in
connection with this Agreement or the transactions contemplated hereby, and all
other non-public information related to the Assets obtained in connection with
the transactions contemplated hereby (the "Confidential Information"),unless (i)
such information is already known to such party or to others not bound by a duty
of confidentiality or such information becomes publicly available through no
fault of such party, (ii) the use of such information is necessary or
appropriate in making any filing or obtaining any consent required for the
consummation of the transactions contemplated by this Agreement, or otherwise
permitted under this Agreement, (iii) the furnishing or use of such information
is required by or necessary in connection with any Legal Proceeding or any tax
report or return or tax structure.
6. Conditions Precedent to Closing.
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6.1. Conditions to Obligations of Buyer. The obligations of Buyer under this
Agreement are subject to the satisfaction, on or prior to the Closing Date, of
each of the following conditions, any one or more of which may be waived by
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Buyer, in whole or in part without prior notice but such waiver to be effective
only if made in writing and signed by a duly authorized representative of Buyer;
(a) Representations and Warranties. The representations and warranties of Seller
in Section 3 shall be true and correct when made and shall be true and correct
in all material respects on the Closing Date with the same forte and effect as
if they had been made on and as of the Closing Date, except to the extent that
any failure to be so true and correct has not had Or would tot have,
individually or in the aggregate, a material adverse effect on the Crossvue
Business.
(b) Performance of Obligations. Seller will have performed, satisfied and
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complied with in all material respects all covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by Seller
on or before the Closing Date.
(c) Corporate Approval. The execution and delivery of this Agreement by Seller,
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and the performance of Seller's covenants and obligations under this Agreement,
shall have been duly authorized by all necessary and required corporate
action.
(d) Approval of Documentation. Seller shall have delivered to Buyer the
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certificates, instruments, schedules and other documents required to be
delivered to Buyer at Closing under of this Agreement.
(e) Compliance Certificate. Seller shall have delivered to Buyer a certificate,
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dated the Closing Date, signed by an authorized officer of Seller, certifying to
the fulfillment of the conditions specified in Sections 6.1(a), (b), (c), (d),
(f) and (g).
(f) No Injunctions. No court of competent jurisdiction shall have issued or
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entered any order, writ, injunction or decree, and no other governmental entity
shall have issued any order, which is then in effect and has the effect of
making the transaction contemplated hereby illegal or otherwise prohibiting the
consummation of the purchase and sale of the Assets at the Closing
(g) Consents and Releases. All consents. approvals, waivers and releases from
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all governmental authorities and other persons set forth on Section 6.1(g) of
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the Seller's Disclosure Schedule to this Agreement shall have been obtained and
shall be reasonably satisfactory in form and substance t Buyer and its counsel.
6.2. Conditions to Obligations of Seller. The obligations of Seller under this
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Agreement are subject to the satisfaction, on or prior to the Closing Date, of
each of the following conditions, any one or more of which may be waived by
Seller, in whole or in pan without prior notice but such waiver to be effective
only if made in writing and signed by a duly authorized representative of
Seller:
(a) Representations and Warranties. The representations and warranties of Buyer
in Section 4 shall be true and correct when made and shall be true and correct
in all material respects on the Closing Date with the same force and effect as
if they had been made on and as of the Closing Date, except to the extent that
any failure to be so true and correct has not had or would not have,
individually or in the aggregate, a material adverse effect on the Buyer.
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(b) Performance of Obligations. Buyer will have performed, satisfied and
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complied with all covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by Buyer on or before the
Closing Date.
(c) Corporate Approval. The execution and delivery of this Agreement by
Buyer, and the performance of Buyer's covenants and obligations under this
Agreement, shall have been duly authorized by all necessary and required
corporate action.
(d) Approval of Documentation. Buyer shall have delivered to Seller the
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certificates, instalments, schedules and other documents required to be
delivered to Seller at Closing under Sections 7.3(a) and (b) of this Agreement.
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(e) Compliance Certificate. Buyer shall have delivered to Seller a certificate,
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dated the Closing Date, signed by an authorized officer of Buyer, certifying to
the fulfillment of the conditions specified in this Section 6.2(a), (b), (c),
(d) and (f)
(f) No Injunctions. No court of competent jurisdiction shall have issued or
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entered any order, writ, injunction or decree, and no other governmental entity
shall have issued any order, which is then in effect and has the effect of
making the transaction contemplated hereby illegal or otherwise prohibiting the
consummation of the purchase and sale of the Assets at the Closing.
(g) Return of Excluded Assets. Buyer shall have delivered to Seller any
Excluded Assets in its possession, including without limitation, the assets set
forth on Schedule 2 hereto.
----------
7. The Closing.
------------
7.1. Time and Place. Unless this Agreement shall have been terminated in
-----------------
accordance with Section 10 hereof, the Closing shall take place at the offices
of Xxxx & Xxxxxxx LLP, 0000 Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, at 10:00
am., Pacific Standard Time, on the Closing Date, or at such other place or time
as Buyer and Seller may agree.
7.2. Seller's Actions at the Closing. At the Closing, Seller will deliver or
-----------------------------------
cause to be delivered to Buyer the fol1owing:
(a) Possession of the Assets; and
(b) An original Assignment and Assumption Agreement and Xxxx of' Sale in
substantially the form of Exhibit C ("Assignment Agreement")executed by an
---------- --------------------
authorized officer of Seller.
7.3. Buyer's Actions at the Closing. At the Closing, Buyer will deliver or cause
-------------------------------
to be delivered to Seller an original Assignment and Assumption Agreement and
Xxxx of Sale in substantially the form of Exhibit C executed by an authorized
---------
officer of Buyer.
E-79
7.4. Passage of Title. Legal and equitable title and risk of loss with respect
------------------
to all of the Assets shalt pass to Buyer at the Closing.
8. Post-Closing Covenants. Conditioned upon the Closing, and beginning with the
----------------------
day following the Closing Date, Buyer and Seller agree that:
8.1. Further Assurances. From time to time after the Closing Date, at Buyer's
--------------------
request and without further consideration, Seller will execute and deliver such
further instruments of conveyance and transfer and will take such other action
as Buyer may reasonably require in order more effectively to vest in Buyer and
to put Buyer in possession and control of the Assets and its respective rights
in the Assets. From time to time after the Closing Date, at Seller's request but
without further consideration, Buyer will execute and deliver such further
instruments of conveyance and transfer and will take such other action as Seller
may reasonably require in order to more completely effect the assumption of the
Assumed Liabilities by Buyer.
8.2. Continuation of Certain Covenants. All Pre-Closing Covenants will terminate
----------------------------------
upon Closing, provided, however, that the following Pre-Closing Coventants will
continue in hill force and effect for the time periods indicated therein or. if
no time period is indicated, for the period set forth in this Section 8.2:
Section 2.2 and Section 5.4 ("Confidentiality") until the information otherwise
ceases to be confidential.
8.3. Grant of Licenes.
-----------------
(a) By Buyer. Subject to and effective upon the Closing. Buyer hereby grants
----------
Seller a non-exclusive worldwide, perpetual, and fully sub-licensable license
under the full scope of the copyright in all software listed in Schedule 1,
developed by or on behalf of Seller and being transferred to Buyer under this
Agreement, including, without limitation, rights to use, publicly display,
distribute and reproduce any such software programs (and their associated
documentation) and to create derivative works based on such software programs
(and their associated documentations); Seller may not sublicense the software
programs as a substantially complete system for providing as an application
service provider functionality substantially identical to the Hosted Services.
It is hereby further agreed that the foregoing license shall only apply to the
foregoing software programs (and their associated documentation) in their
condition as of the Closing and that such license shall not include any
post-Closing derivative works, improvements, enhancements or modifications to
such software programs and/or to their associated documentation created by
Buyer.
(b) By Seller. Subject to and effective upon the Closing, Seller hereby grants
-----------
Buyer a personal, non-exclusive worldwide, non-transferable, non-sublicensable
license under only those claims of Seller's patents that are necessary for Buyer
to operate the software listed in Schedule 1, developed by or on behalf of
Seller and being transferred to Buyer under this Agreement, as such software
exists upon Closing, to make, to use, to sell and have sold, and to offer to
sell the Hosted Services. This license shall terminate immediately upon
termination of this agreement for any reason. All rights in any patents and
patent applications not explicitly granted in this section are reserved by
Seller. This license shall terminate immediately upon the assertion of any claim
of patent infringement by Buyer against Seller, or any of Seller's
E-80
customers or distributors with respect to the Crossview Business. Any license
granted herein is subject to the approval of the holder of any lien in any such
patent or patent application.
8.4. Unassignable Assets. To the extent that any Asset, including without
---------------------
limitation the Third Party Contracts, is not assignable or otherwise
transferable without the consent of another party, or if assignment or attempted
assignment would constitute a breach thereof or a breach of an agreement
concerning the Asset, this Agreement shall not constitute an assignment or an
attempted assignment thereof unless proper consent to assign by such third party
was obtained and in force prior to Closing. Seller shall use its commercially
reasonable efforts to obtain the consent or waiver of such other party for the
assignment of any such Asset to Buyer in all cases in which such consent or
waiver is or may be required. If such consent or waiver cannot be obtained,
Seller shall cooperate with Buyer in any commercially reasonable arrangement
agreed by the parties that is designed to provide Buyer the benefits intended to
be assigned to Buyer under the affected Asset.
9. Limitation of Liability; Indemnification
-------------------------------------------
9.1. Survival of Representations and Warranties. The representations and
----------------------------------------------
warranties of Seller and Buyer shall survive for three (3) years following the
Closing. All post-Closing covenants and agreements (other than representations
and warranties) shall survive the Closing in accordance with their respective
terms. The rights of indemnification in this Section 9 shall survive the Closing
indefinitely; provided that a party shall not be entitled to indemnification for
a breach of the representations or warranties of the other party in this
Agreement unless the Indemnified Party (as defined below) provides the
Indemnifying Party (as defined below) with written notice of such breach in
accordance with Section 9,4 on or before the three (3) year anniversary of the
Closing.
9.2. Indemnification by Seler From and after the Closing. Seller shall
indemnify, defend and hold harmless Buyer and its officers, directors, advisors,
Affiliates, agents and employees (hereinafter referred to individually as a
"Buyer Indemnified Person" and collectively as "Buyer Indemnified Persons") from
------------------------ -------------------------
and against, any and all losses, damages, fees, taxes, penalties, interest,
claims, demands, causes of action, liabilities and expenses (including
reasonable attorneys' fees) (collectively, "Damages") arising out of or
resulting from (i) any misrepresentation or inaccuracy in or breach of any of
the representations or warranties given or made by Seller in this Agreement;
(ii) any breach of any covenant or obligation of Seller in this Agreement; (iii)
any claim based on the infringement by the Assets of a current third party
patent or other third party intellectual property rights; or (iv) any Excluded
Liabilities Notwithstanding the foregoing, Buyer will not be entitled to
indemnity from Seller for the first $50,000 of Damages incurred or suffered by
Buyer of a type otherwise indemnifiable by Seller pursuant to clauses (i)
through (iii) of the prior sentence and will not be entitled to indemnity
from Seller for any Damages incurred or suffered by Buyer of a type otherwise
indemnifiable by Seller pursuant to clauses (i) through (iii) of the prior
sentence in excess of the aggregate amount received by Seller from Buyer
pursuant to this Agreement.
9.3. Indemnification by Buyer. From and after the Closing, Buyer shall
indemnify, defend and hold harmless Seller and its officers, directors,
advisors, Affiliates, agents and employees (hereinafter referred to individually
as an "Seller Indemnified Person" and collectively as "Seller Indemnified
--------------------------- -----------------
E-81
Persons") from and against, any and all losses, damages, fees, taxes, penalties,
-------
interest, claims, demands, causes of action, liabilities and expenses (including
reasonable attorneys' fees) arising out of or resulting from (0 any
misrepresentation or inaccuracy in or breach of any of the representations or
warranties given or made by Buyer in this Agreement; (ii) any breach of any
covenant or obligation of Buyer in this Agreement; or (iii) any Assumed
Liabilities.
9.4. Third Party Claims.
---------------------
(a) In the event an Indemnified Person becomes aware of an action or proceeding
involving the assertion of a third party claim which such Indemnified Person
believes may result in a demand for indemnification hereunder (a "Third Party
-----------
Claim"),such Indemnified Person shall promptly give the indemnifying party
-----
notice of such Third Party Claim; provided, however, that the failure to provide
such notice shall not release the indemnifying party from any of its obligations
under this Section 9 except to the extent the indemnifying party is materially
prejudiced by such failure.
(b) If the indemnifying party notifies the Indemnified Person within ten (10)
days of delivery of a notice by such Indemnified Person -of a Third Pasty Claim
that the indemnifying party desires to defend the Indemnified Person with
respect to such Third Party Claim, then the indemnifying xxxxx shall have the
right to conduct and control, through outside legal counsel reasonably
acceptable to such Indemnified Person, the defense, compromise or settlement of
any such action or proceeding, and in any such case the Indemnified Person shall
cooperate in connection therewith and shall famish such records, information,
access to employees and testimony and shall attend such conferences, discovery
proceedings, hearings, trials and appeals as may be reasonably requested by
the indemnifying party in connection therewith; pro vided, that notwithstanding
the foregoing, the indemnifying party shall not have the right to conduct and
control the defense, compromise or settlement of any claims that the Indemnified
Party agrees are not subject to indemnification hereunder; and provided further
that the Indemnified Person may participate, through counsel chosen by it and at
its own expense, in the defense, compromise and settlement of any such
action or proceeding which the indemnifying party has so elected to conduct and
control.
(c) If the indemnifying party does not so notify the Indemnified Person of its
intent to conduct and control the defense of the action or proceeding involving
the assertion of a Third Party Claim, then the Indemnified Person shall have the
right to conduct and control, through counsel of its choosing, in such manner as
it may deem appropriate at the indemnifying party's cost and expense, and the
indemnifying party shall not have the right to conduct and control, the defense,
compromise or settlement of such action or proceeding, and the indemnifying
party shall promptly reimburse the Indemnified Person therefor in accordance
with the terms of this Agreement.
(d) The Indemnified Person shall not, without the consent of the indemnifying
party (which shall not he unreasonably withheld or delayed), pay, compromise or
settle any other action or proceeding involving a Third Party Claim, provided,
however, that no consent of the indemnifying party shall be required if the
Indemnified Person shall waive (by means of a written waiver signed by the
Indemnified Person) any right to indemnification therefor her under
E-82
and shall obtain a release of the indemnifying party from and against any
liability as a consequence of such action or proceeding.
9.5. Procedure for Indemnification - Other Claims. A claim for indemnification
----------------------------------------------
for any matter not involving a Third Party Claim shall be made by delivering
during the indemnification Period written notice of the claim (specifying the
details of the claim, relevant provisions of this Agreement and the amount of
the claim) to the party from whom indemnification is being sought.
10. Termination.
------------
10.1 Mutual Agreement. This Agreement may he terminated and abandoned at any
------------------
time prior to the Closing Date by either party in its respective absolute and
sole discretion, without further liability or obligation on the part of the
terminating party.
10.2 Termination by Buyer. This Agreement may be terminated by Buyer by written
---------------------
notice to Seller in the event that (I) any one or more of the conditions set
forth in Section 6.1 ("Conditions to Obligations of Buyer")are not satisfied on
----------------------------------
or before the Closing Date, unless Buyer waives any such condition upon such
terms, if any, that buyer deems appropriate, or (ii) if the Closing shall not
have been consummated on or before February 29, 2004.
10.3. Termination by Seller. This Agreement may be terminated by Seller by
------------------------
written notice to Buyer in the event that (i) any one or more of the conditions
set forth in Section 6.2 ("Conditions to Obligations of Seller") are not
--------------------------------------
satisfied on or before the Closing Date, unless Seller waives any such condition
upon such terms, if any, that Seller deems appropriate, or (ii) f the Closing
shall not have occurred on or before February 294 2004.
10.4 Effect of Termination; Return of Proprietary Information. Upon any
---------------------------------------------------------------
termination, neither party shall have any obligation whatsoever, other than
under Sections 5.4 ("Confidentiality"), 11.8 ("Venue for Dispute Resolution"),
11.9 ("Governing Law") and 11.10 ("Attorney's Fees and Costs"), to the other
with respect to this Agreement, the transactions provided for in this Agreement,
or expenses incurred in connection with or in contemplation of such
transactions. In the event that this Agreement is terminated for any reason,
each of the parties agrees to return any and all copies of written materials and
any Confidential Information received, and all copies made thereof, in
connection with this Agreement or in contemplation of the transactions
contemplated by this Agreement, and shall neither use nor disclose any such
information, except as permitted by Section 5.7 ("Confidentiality").
10.5. Survival. Termination of this Agreement shall not relieve either party
---------
from any liability incurred for any willful or intentional breach of this
Agreement prior to such termination.
11. General Provisions.
--------------------
11.1. Assignment. Neither party shall directly or indirectly sell, assign,
-----------
subcontract or otherwise transfer this Agreement or any of its rights or
obligations under this Agreement, without the prior written consent of the other
party, except as permitted in this Section 11.1. Notwithstanding the foregoing
sentence, no such written consent shall be required in the event of
E-83
the merger of a party with another entity, the sale of all or substantially all
of the stock or assets of a party to another person or entity, or the transfer
of this Agreement to a subsidiary of either party, or an affiliate of a party
which is under the common control of a parent entity. Buyer may assign this
Agreement (other than the obligation of Buyer to pay the Purchase Price) to any
of its wholly-owned subsidiaries or other affiliated entities, provided that
Buyer remains jointly and severally responsible for and guarantees the full
performance of this Agreement after such assignment This Agreement shall be
binding upon and inure to the benefit of the permitted successors and assigns of
the parties.
11.2. Expenses. Each of the parties shall pay its own costs and expenses,
---------
including legal and accounting fees, commissions and expenses, related to the
negotiation and execution of this Agreement and the consummation of the
transactions provided for in this Agreement irrespective of when incurred and
irrespective of whether the Closing occurs, Each party agrees to pay (and to
indemnify and to hold harmless the other party from) any liability for any
commission or compensation in the nature of an advisor's or finder's fee to any
Person or firm for which such party, or any of its employees or representatives,
is responsible.
11.3. Notices and Representatives. Any notice or reports required or permitted
-----------------------------
to be given under this Agreement shall be given in writing and shall be
delivered by personal delivery, telegram, facsimile transmission or by certified
or registered mail, postage prepaid, return receipt requested. Notice shall be
deemed given upon actual receipt. Any party and any representative designated
below may, by notice to the others, change its address for receiving such
notices:
To Seller at: Symbol Technologies, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 00-000-0000
E-84
with a copy to
(which shall not Xxxxxxx X. Xxxxxx, Esq.
constitute notice): Symbol Technologies, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
To Buyer at: SiVault Analytics, Inc.
0000 Xxxxxxx Xxxxx, Xxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxx
Facsimile: (707) 924 - 0147
with a copy to
(which shall not
constitute notice): Xxxxx X. Can-, Esq.
Cart & Xxxxxxx XX'
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
11.4. Entire Agreement and Modification. This Agreement (including its Exhibits
----------------------------------
and Schedules) constitute the entire agreement of Buyer and Seller relating to
the purchase and sale of the Assets and supersedes any and all prior and
contemporaneous negotiations correspondence, understandings, letters of intent
and agreements in principle between them, whether written or oral, relating to
that subject matter. This Agreement (including its Exhibits and Schcdules) may
only be amended by a written instrument signed by Buyer and Seller.
11.5. Construction of Agreement. This Agreement has been negotiated by the
--------------------------
respective parties and their attorneys, and its language shall not be construed
for or against any party. The titles and headings in this Agreement are for
reference purposes only and shall not in any manner limit the construction of
this Agreement which shall be considered as a whole.
11.6. Relationship of the Parties. Nothing contained in this Agreement shall be
-----------------------------
construed as creating any agency, partnership, or other form of joint enterprise
between the parties. The relationship between the parties shall at all times be
that of independent contractors. Neither party shall have authority to contract
for or hind the other in any manner whatsoever. This Agreement confers no rights
upon either party except those expressly granted herein
11.7. Waiver. Delay or failure to exercise any right or remedy under this
-------
Agreement shall not impair such right or remedy or be construed as a waiver
thereof or as acquiescence in a default Waiver of any breach or failure of any
term or condition of this Agreement shall not be construed as a waiver of any
subsequent breach or failure of the same term or condition or a waiver of any
other term or condition of this Agreement. All waivers must be in writing signed
by the party to be charged.
E-85
11.8. Venue for Dispute Resolution. Each party hereby irrevocably and
-------------------------------
unconditionally submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and enforcement of any
judgment in respect thereof, to the exclusive general and personal jurisdiction
and venue of the courts of the State of New York, in the County of Suffolk, New
York, and to the United States District Court for the Eastern District of New
York, and to the respective appellate courts thereof in connection with any
appeal therefrom. Buyer hereby irrevocably waives any right to move or transfer
venue, or to claim that any of the above forums are inconvenient.
11.9. Governing Law. This Agreement shall be governed by and construed in
--------------
accordance with the internal substantive laws of the State of New York, without
regard to its choice of law principles.
11.10 Attorneys' Fees and Costs. In the event of any dispute arising out of the
--------------------------
subject matter of this Agreement the prevailing party shall recover, in addition
to any other damages assessed, its reasonable attorney& fees and costs incurred
in litigating, arbitrating, or otherwise settling or resolving such dispute.
11.11 Severability. The provisions of this Agreement are severable, and if any
-------------
one Or more such provisions shall be determined to he invalid, illegal or
unenforceable, in whole or in part.' the validity, legality and enforceability
of any of the remaining provisions or portions thereof shall not in any way be
affected or impaired thereby and shall nevertheless be binding between the
parties. Any such invalid, illegal or unenforceable provision or portion thereof
shall be changed and interpreted so as to best accomplish the objectives of such
provision or portion thereof within the limits of applicable law.
11.12. Counterparts; Fax Signature. This Agreement may be executed by facsimile
----------------------------
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
E-86
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date first above written
SELLER: BUYER:
@XXX.XXX, INC. SIVAULT ANALYTICS, INC.
By: /s/ Xxxx Xxxxxxxxxx /s/ Xxxxxxx Xxxxxxxxxxx
---------------------- ----------------------------
Name: Xxxx Xxxxxxxxxx Name: Xxxxxxx Xxxxxxxxxxx
Title: Chief Executive Officer Title: Chief Executive Officer
E-87
Schedule I
Purchased Assets
-------------
1. eResolve
2. eReceipts
3. myRecipts
4. Bin Management
5. adServicing
6. any promotions, signature verification arid authentication services relating
to the foregoing serviceS.
The Hosted Services shall consist of the software programs listed in this
Schedule 1, supporting and implementing the Hosted Services developed by Seller
prior to the Closing Date, including, without limitation, all copyrights thereto
and all subroutines, modules and algorithms contained therein as well as all
present and predecessor versions or releases of such software programs and any
and all specifications and documents necessary for or related to the use and
maintenance of such sofiware programs, including but not limited to, all user
guides, installation guides, narrative descriptions, file layouts, logic flow
diagrams, source and load modules, output reports, test or other data, test
programs and other related or necessary information that is owned, used or held
by Seller in connection with such software programs.
Third Party Contracts
------------------------
Crossvue Service Agreement, dated as of December 17, 2003, by and between
Crossvue, Inc. and Sport Chalet. Inc.
XxxxxxxXxxx.xxx Service Agreement Amendment, dated as of June 23, 2003, by and
between Symbol Technologies, Inc. and Virgin Entertainment.
TradeMmarks
------------
CROSSVUE Classes 35, 39 U.S. Application No. 75/5 15063
MYRLCEIPTS Class 42 U.S. Application No. 76/119601
E-88
Hardware/Software
-----------------
Hardware Software Function
Clone PC (exmct4vr)
Clone PC (Irun)
Corripeg Prolint jrun2)
Sun Enterprise 220R (2 CPU)
(noummencer)
Sun Enterprise 220R (2 CPU)
(xxxxx)
Sun Storedge A100
VeriSign Secuity certificate
For xxxxxxxxxxx.xxx (expired
10/31/2002))
XxxxxxxXxxx.xxx software
developed by @POS/
ReceiptCity/Crossvue
Staging environment
Hardware Software Function
Sun Enterprise 220R
(hostname;case)
Sun Enterprise 220R (2 CPU)
(romulus)
Sun Storedge A100
Sun Enterprise 22OR (2 CPU)
(xxxxxxxxxx)
E-89
Schedule 2
The assets below are not part of the transaction, but are currently in Buyer's
possession and
shall be returned to Seller by the earlier of March 31, 2004 or the Closing of
this Agreement.
Cisco PIX firewall
Dell 2550 (prodomniback)
Storagetek L20
E-90
Schedule 3
Assumed Liabilities
-------------------
None.
E-91
Exhibit A
Seller's Disclosure Schedule
------------------------------
Section 3.8 Disclosure of Third Party Intellectual Property Assertions
--------------------------------------------------------------
Patent Assertions that may he Rclevant to the Crossvuc Business
1. Communication Intelligence Corporatien:
June 2002: CIC contacts Bloomingdales by letter stating that CIC owns U.S.
patents 5,544,255; 5,644,655; 5,647017; 381S,955; 6,064,731.; and 6,091,835,
which CIC believes relate to electronic signature technology. CIC states its
belief that Bloomingdales requires 9 license under CIC's patent portfolio.
June 2002: Federated Department Stores, mc, patent of Bloomingdales, contacts
@POS by letter, seeking defense and indemnification from POS for the claims
alleged by CIC in connection with Federated's purchase of @POS 3100 and PenWare
3100 electronic signature pads.
January 2004: Symbol enters into an OEM License and Strategic Marketing
Agreement under which Symbol can bundle CIC signature technology software with
Symbol products.
2. NCR:
July 2003: NCR provides notice by letter to Symbol that its U.S. Patent No
6j39,363 is relevant to at least Symbol's PenWare 1300, iPOS 3100, iPOS TX, and
iPOS TC terminals. NCR invites Symbol to explore 1icensng possibilities with
NCR.
January 2004: Symbol contacts NCR by letter informing NCR that Symbol has
reviewed the patent and has no interest in exploring licensing possibilities.
3. Verve, LLC
November 2003: Verve contacts Symbol by letter identifying U.S. Patents
4,562,340 and 4,678,895 as of potential interest to Symbol, and by subsequent
letter identifying @POS products IPOS TC, IPOS 3100, and IPOS TX
terminals/systems.
January 2004; Symbol contacts Verve by letter informing Verve that Symbol has
reviewed the '340 patent and has no interest in exploring licensing
possibilities, and that review of the '895 patent is ongoing due to a delay
because the Patent Office temporarily lost the '895 file history.
E-92
Section 6.1(g) Required Consents
----------------
None.
E-93
Exhibit B
Buyer's Disclosure Schedule
-----------------------------
None.
E-94
Exhibit C
Form of Assignment and Assumption Agreement and Xxxx of Sale
------------------------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ANd XXXX OF SALE (the "Agreement")
is made and entered into as of this 2nd day of March, 2004 by and among SiVault
Analytics, Inc., a Delaware corporation ("Buyer") and @XXX.XXX, Inc., a Delaware
Corporation ("Seller"). (Seller and Buyer are collectively referred to herein as
the "Parties"). All capitalized terms used in this Agreement shall have the
respective meanings ascribed to them in the Asset Purchase Agreement ( defined
below.
W I T N E S S E T H:
WHEREAS, the Parties have entered into an Agreement for Purchase and Sale
of Assets, dated as of March 2nd, 2004 (the "Asset Purchase Agreement"),
pursuant to which Buyer has agreed to purchase the Assets;
WHEREAS, in partial consideration therefor, the Asset Purchase Agreement
requires Buyer to assume the Assumed Liabilities; and
WHEREAS, it is the desire of Buyer and Seller that (a) the Assets be sold,
contributed, conveyed, transferred, assigned arid delivered to Buyer and (h)
Buyer assume the Assumed Liabilities.
NOW, THEREFORE, in and for consideration of the premises and the mutual
covenants contained herein, and all other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, subject to the
terms of the Asset Purchase Agreement, the parties do hereby agree as follows:
A. Assignment and Xxxx of Sale,
1. Seller hereby sells, transfers and assigns to Buyer, its successors and
assigns, to have and to hold forever, all of Seller's right, title and interest
in and to the Assets. The Assets do not include any of the Excluded Assets, as
deflncd in the Asset Purchase Agreement.
2 Seller hereby covenants and agrees that it will, at the request of Buyer
and without further consideration, execute and deliver or cause to he executed
and delivered, such other instruments of sale, transfer and assignment, and take
such other actions as may reasonably be necessary to sell, transfer, and assign.
to, and vest in, Buyer, its successors and assigns, right, title and interest in
and to the Assets.
3. The foregoing provisions relating to the sale, transfer and assignment
of the Assets have been made by the Seller in accordance with the Asset Purchase
Agreement and are expressly made subject to those liabilities, obligations and
oommitmcnts that Buyer has assumed and agreed to pay, perform and discharge
pursuant to the provisions relating to the assumption of the Assumed Liabilities
appearing hereafter.
E-95
B. Assumption Agreement.
1. Buyer hereby assumes and agrees to pay, perform, or otherwise discharge,
as and when the same shall become due arid payable, the Assumed Liabilities.
2. Notwithstanding the foregoing, Buyer does not hereby assume or agree to
pay, perform or otherwise discharge, and Seller shall remain liable for, from
and after the date hereof, all liabilities or obligations of Seller other than
the Assumed Liabilities.
3. Buyer hereby covenants and agrees that it will, at the request of Seller
and without further consideration, execute and deliver or cause to be executed
and delivered, all such other written instruments or agreements of assumption
and perfbrinance, and take such other action as may he reasonably necessary to
give effect to the assumption provided for in this agreement
C. Further Assurances. Seller shall from time to time, at the request of Buyer
and without further cost or expense to Buyer, execute and deliver, or cause to
be executed and delivered by its Affiliates, such other instruments of
assignment, conveyance and transfer and take such other actions as Buyer may
reasonably request in order to further effectuate the consummation of the
transactions contemplated hereby. Buyer shall from time to time, at the request
of Seller and without further cost or expense to Buyer, execute and deliver such
instruments and documents, and take such other actions as Seller may reasonably
request in order to farther effectuate the assumption of the Assumed Liabilities
arid the consummation of the other transactions contemplated hereby
D. Miscellaneous.
1 This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts executed and performed in
that state, without giving effect to conflicts-of-laws principles.
2. This Agreement is being delivered pursuant to, and is subject to all of
the terms and conditions of the Asset Purchase Agreement. This Agreement shall
not be deemed to amend any provision of the Asset Purchase Agreement and, in the
event of any inconsistency between the Asset Purchase Agreement and this
Agreement, the former shall prevail.
3. This Agreement may be executed by facsimile and in any number of
counterparts each of which shall be deemed an original but all of which together
shall constitute one and the same document.
[signatures on following page]
E-96
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first above written.
SIVAULT ANALYTICS, INC.
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
@XXX.XXX, INC.
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
E-97
