ASSET PURCHASE AGREEMENT
EXHIBIT
2.1
This
ASSET PURCHASE AGREEMENT (the “Agreement”) dated as of August
15, 2007, is entered into by and among NEONODE, INC., a
Delaware corporation (“Seller”) and RISING TIDE SOFTWARE, LLC,
a California limited liability company, (“Buyer”) (Seller and Buyer shall
sometimes be individually referred to as a “Party” and collectively as the
“Parties”), agree as follows:
RECITALS
A. Seller
owns the assets which comprise and operates the business formerly known as
Pyx Technologies, Inc., which business is engaged in the
development and sale of iSCSI products for the enterprise storage market
(collectively, “Seller’s Business”). Seller’s Business is located at 0000
Xxxxxxxxx Xxxxxxx, Xxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, (“Seller’s Business
Premises”).
B. Seller
is
a publicly traded company trading on the NASDAQ stock exchange.
C. Buyer’s
sole member was a founder and prior owner of PyX Technologies,
Inc. and is currently involved in developing iSCSI based products
(“Buyer’s Business”). Buyer’s Business is located at 0000 Xxxx Xxx., Xxx. X000,
Xxxxxx Xxxxx, Xxxxxxxxxx 00000 (“Buyer’s Business Premises”).
D. Seller
and Buyer mutually desire that Seller sell, convey, transfer, assign and
deliver
to Buyer the “Assets” (as defined), and, that Buyer purchase, accept and acquire
the Assets from Seller, free and clear of all Liens (as defined) other than
the
Assumed Liabilities (as defined) on and subject to the terms and conditions
as
are set forth.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants, agreements,
representations, and warranties contained in this Agreement, and for such
other
good and valuable consideration, the adequacy and sufficiency of which is
acknowledged, the Parties agree as follows:
ARTICLE
I
PURCHASE
AND SALE OF ASSETS
I.1 Sale
and Transfer of Assets. On and subject to the terms and conditions set
forth in this Agreement, and except as otherwise excluded as provided in
Section 1.2, Seller agrees to sell, convey, transfer, assign,
and deliver to Buyer and Buyer agrees to purchase, accept and acquire from
Seller, good and marketable title, free and clear of all liens other than
the
Assumed Liabilities, in and to the assets which comprise Seller’s Business,
other than the Retained Assets as provided in Section 1.2, used
in connection with and/or produced by Seller’s Business, and described as
follows (collectively referred to as the “Assets”):
(a) Equipment
and Other Personal Property. All of Seller’s equipment, tools, computer
equipment and software used in Seller’s Business (collectively, the
“Equipment”). A Schedule of the Equipment is identified and described on
Exhibit A, (the “Equipment Schedule”);
(b) Intangible
Property. All of Seller’s intangible property, without limitation,
(i) Seller’s corporate name “PYX TECHNOLOGIES,
INC.” (as soon as reasonably practical following the Closing, Seller
shall cause its corporate name to be changed by filing Amended Articles of
Incorporation with the California Secretary of State), and the telephone
number(s) and the goodwill of Seller’s Business symbolized thereby;
(ii) all other trademarks, trade names, service marks and
service names and all registrations with respect thereto, copyrights and
all
registrations with respect thereto, patents and all registrations with respect
thereto, processes, formulas, scientific and/or technical information, trade
secrets, licenses, franchises, distribution agreements, dealer agreements,
vendor lists, plans, reports, samples, prototypes, know-how, all items in
application, development or other pending status and all similar items which
are
used in connection with Seller’s Business and Seller’s Business operations
conducted in conjunction therewith; (iii) all websites and
e-mail addresses utilized in connection with Seller’s Business (items (i), (ii)
and (iii) are collectively referred to as the “Intellectual Property”). A
Schedule of the Intellectual Property is identified and described on
Exhibit B, (the “Intellectual Property Schedule”)
(iv) the goodwill and conduct of Seller’s Business as a going
concern; and (v) all rights pertaining to customer sales and
service orders, and customer and distributor/dealer lists of Seller’s Business
and the goodwill associated therewith (items (iv) and
(v) are collectively referred to as the
“Goodwill”);
(c) Contracts/Agreements.
All of Seller’s contracts, distribution agreements, or other agreements or
arrangements with distributors and such other contracts or other agreements
or
arrangements to provide products, goods or services (collectively, the
“Contracts and Agreements”) a schedule of which is attached as Exhibit
C (the “Schedule of Contracts and Agreements”);
(d) Causes
of Action. All causes of action, claims and rights of recovery with
respect to any of the foregoing (“Causes of Action”); and
(e) Seller’s
Other Assets. All assets other than the Retained Assets (as defined) of
any kind or nature whatsoever not specifically addressed above that are related
to or used in connection with Seller’s Business and the Goodwill (“Seller’s
Other Assets”).
The
Assets will be sold and conveyed by Seller to Buyer at the Closing, free
and
clear of all Liens other than the Assumed Liabilities.
I.2 Retained
Assets.
(a) Retained
Assets. Notwithstanding anything contained in this Agreement or in any
Exhibit or Schedule to the contrary, and
except with respect to the Assumed Liabilities, the Assets to be sold, conveyed,
transferred, assigned and delivered by Seller to Buyer pursuant to this
Agreement, shall not include any assets not otherwise listed on an Exhibit
or
Schedule attached to this Agreement (collectively, the “Retained
Assets”).
I.3 Assumed
Liabilities. In conjunction with and as part of Buyer’s purchase and
acquisition of the Assets, Buyer will not assume any liabilities.
(a) Retained
Liabilities. Notwithstanding anything contained in this Agreement or in
any Exhibit or Schedule to the contrary,
Seller shall be responsible for all debts, liabilities and other Liens accruing
and arising with respect to Seller’s Business (collectively, the “Retained
Liabilities”).
I.4 Purchase
Price Consideration.
(a) Purchase
Price Consideration. As full consideration for the purchase of the
Assets, Buyer shall pay to Seller Ninety Thousand Dollars ($90,000), (the
“Purchase Price Consideration”) will be delivered by Buyer to Seller by
certified or bank cashier’s check or wire transfer on or before the Closing
Date.
I.5 Bulk
Sale.
(a) Bulk
Sale Transfer. The parties agree to waive compliance with the Bulk
Sales Law as contained in Division 6 of the California Commercial
Code.
I.6 Risk
of Loss. All risk of loss, damage or destruction of any of the Assets
shall be borne by Seller until the Closing and delivery of possession of
the
Assets to Buyer. In the event of any loss prior to the Closing that
substantially impairs the value of the Assets, and which loss is incurred
due to
no fault of Buyer, Buyer shall have the right, at its sole discretion, to
terminate this Agreement without any further liability for either Party.
In the
event, however, that any such loss shall occur and Buyer elects to proceed
ahead
and close and consummate this Agreement, Buyer shall be entitled to all casualty
or property insurance proceeds collectable by reason of any such
loss.
I.7 Allocation
of Purchase Price. Buyer and Seller agree that the Purchase Price shall
be allocated as set forth on Exhibit F, (“Allocation
Schedule”). The Parties agree to abide by the allocation of the Purchase Price
specified in this Agreement, and agree to report the transaction as so allocated
for federal, state and local income tax purposes as required by Section 1060
of
the Internal Revenue Code of 1986, as amended, and such other applicable
laws,
rules, statutes and regulations.
I.8 Sales
and Use Taxes. Buyer will be responsible to pay all sales and use taxes
arising out of the sale and transfer of the Assets at Closing. Buyer shall
not,
however, be responsible for any income, business, occupation, withholding,
or
similar tax, or any taxes of any kind or nature whatsoever related to Seller’s
Business or the Assets arising for any period before the Closing Date, Seller
being fully responsible therefor.
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ARTICLE
II
THE
CLOSING
II.1 Seller’s
Obligations Before Closing. Seller covenants and agrees that from the
date of this Agreement until the Closing:
(a) Buyer’s
and Buyer’s Representatives’ Access to Business Premises and Information For
Buyer. For the period following the execution of this Agreement by
Buyer and Seller until three business days prior to the Close, Buyer and
Buyer’s
counsel, (collectively, “Buyer’s Representatives”), will be given access during
such times as mutually agreed upon between Buyer and Seller to all properties,
books, accounts, records, contracts, and documents of, or relating to Seller’s
Business, to enable Buyer and Buyer’s Representatives to conduct a full due
diligence inspection of the Assets, the Assumed Liabilities, the Material
Contracts, and Seller’s Business (collectively, “Buyer’s Due Diligence
Inspection”).
(b) Business
to Be Conducted as Usual. Seller will carry on its business and
activities diligently and in substantially the same manner as it previously
has
been carried out, consistent with past practice and Seller’s ordinary course of
business, and shall not make or institute any unusual or novel methods of
manufacture, purchase, sale, service, lease, management, accounting, or
operation that will vary materially from those methods used by Seller as
of the
date of this Agreement.
(c) Preservation
of Business and Relationships. Seller will use its commercially
reasonable best efforts (without making any commitments on behalf of Buyer),
to
preserve Seller’s present relationships with Seller’s distributors, customers,
and all others having business relationships with Seller and Seller’s
Business.
(d) Consents
and Approvals. Seller will use its commercially reasonable best efforts
to obtain all necessary consents, waivers, authorizations and approvals of
all
governmental and regulatory authorities, and of all other persons, firms
or
corporations, partnerships, limited liability companies or other entities
required in connection with the execution, delivery and performance by Seller
of
this Agreement.
II.2 Buyer’s
Obligations Before Closing.
(a) Approval
of Seller’s Assets/Business Premises/Financial Condition/ Material Contracts/“AS
IS” Sale. In conjunction with Section 2.1(a), and
unless such period of time is extended in writing by mutual agreement of
Buyer
and Seller, Buyer will have until three business days prior to the Close
to
complete Buyer’s Due Diligence Inspection and approve the Assets, the Material
Contracts and Seller’s Business which approval will be in Buyer’s sole and
absolute discretion. Unless Buyer expressly disapproves in writing the Assets,
Seller’s Financial Statements, the Material Contracts, and Seller’s Business
within the prescribed period, Buyer shall be deemed to have approved same.
Once
Buyer has approved or has been deemed to approve the Assets, the Material
Contracts, and Seller’s Business as provided in this Section
2.2(a), Buyer acknowledges and agrees that subject to any
representations, warranties, covenants and agreements of Seller, all of which
shall survive the Closing, the Assets shall be sold, transferred, assigned,
conveyed and delivered by Seller to Buyer and purchased and acquired by Buyer
in
their “AS IS, WHERE IS CONDITION, WITH ALL
FAULTS.”
II.3 Conditions
Precedent to Buyer’s Performance. The obligations of Buyer to purchase,
accept and acquire the Assets under this Agreement subject only to the Assumed
Liabilities are subject to the satisfaction, on or before the applicable
date
set forth below, of all the following conditions precedent (each a “Condition
Precedent” and collectively, the “Conditions Precedent”). Buyer may waive any or
all of these Conditions Precedent in whole or in part by written notice to
Seller; however, that no such waiver of a Condition Precedent shall constitute
a
waiver by Buyer of any of Buyer’s other rights or remedies, at law or in equity,
if Seller shall be in default of any of Seller’s representations, warranties,
covenants, obligations or agreements under this Agreement. In the event all
of
the following Conditions Precedent are not satisfied or waived on or before
the
applicable date required to be satisfied or waived, the purchase and transaction
contemplated by this Agreement shall be terminated.
(a) Accuracy
of Seller’s Representations and Warranties. Except as otherwise
permitted by this Agreement, all representations and warranties by Seller
in
this Agreement or in any written statement that shall be delivered by Seller
to
Buyer under this Agreement shall be true and correct on and as of the Closing
Date as though made at that time.
(b) Seller’s
Performance. Seller shall have performed, satisfied, and complied with
all covenants, agreements, obligations and conditions required by this Agreement
to be performed or complied with by Seller on or before the Closing
Date.
(c) Purchaser’s
Financing. Buyer shall, on or before the date which is three business
days prior to Close, have obtained financing from Buyer’s bank, savings and loan
or other institutional lender (“Purchaser’s Lender”) necessary to finance that
portion of the Purchase Price Consideration which is the Cash Portion of
the
Purchase Price Consideration.
(d) Consent
of Other Contracts and Agreements. Parties to any of the Contracts and
Agreements to be assigned and transferred by Seller to Buyer shall, on or
before
Close, have consented in writing to the assignment and transfer of the
applicable Contract and Agreement.
(e) Discharge
of Liens. All liens encumbering the Assets, including, without
limitation, the Excluded Liabilities, shall have been discharged, removed
and/or
terminated by Seller on or before the Closing Date.
(f) Seller’s
Deliveries. shall have made or caused to be made all of the required
deliveries described in Section 2.5(b).
II.4 Conditions
Precedent to Seller’s Performance. The obligations of Seller to sell,
convey, transfer, assign and deliver to Buyer the Assets under this Agreement
are subject to the satisfaction, on or before the applicable date set forth
below, all the following Conditions Precedent. Seller may together waive
any or
all of these Conditions Precedent in whole or in part by prior written notice
to
Buyer, provided that no such waiver of a Condition Precedent shall constitute
a
waiver by Seller of Seller’s other rights or remedies, at law or in equity, if
Buyer shall be in default of its representations, warranties, or covenants
under
this Agreement.
(a) Buyer’s
Performance. Buyer shall have performed and complied with all
covenants, agreements and obligations, and satisfied all conditions that
it is
required by this Agreement to perform, comply with, or satisfy, before or
at the
Closing.
(b) Buyer’s
Deliveries. Buyer shall have made all of the required deliveries
described in Section 2.5(c) on or before the Closing Date.
II.5 The
Closing.
(a) Time
and Place of Closing. The consummation of the purchase and sale of the
Assets, contemplated by this Agreement, and the payment of the Purchase Price
Consideration (the “Closing”), shall take place at the Neonode offices in San
Ramon, California, on or about August 15, 2007 or at such other time and
place
as Buyer and Seller may agree to in writing (the “Closing Date”).
(b) Seller’s
Obligations at Closing. At the Closing, Seller shall deliver to Buyer
the following:
(i) Possession
of the Assets and all keys or other items used in connection with the operation
of the Assets;
(ii) A
Xxxx of
Sale executed by Seller conveying to Buyer, free and clear of all Liens other
than the Assumed Liabilities, title to the Assets; and an assignment of any
contracts, warranties, or rights relating to the Assets in the form attached
as
Exhibit D (“Xxxx of Sale”); and
(iii) Such
other documents and instruments as deemed reasonably necessary by Buyer to
effect the sale, transfer, assignment, conveyance and delivery of the Assets
to
Buyer.
(c) Buyer’s
Obligations at Closing. At the Closing Date, Buyer shall deliver to
Seller the following:
(i) The
balance of the Cash Portion of the Purchase Price Consideration as provided
in
Section 1.4;
(ii) The
Xxxx
of Sale executed by Buyer; and
(iii) Such
other documents and instruments as deemed reasonably necessary by Seller
to
effect the purchase, acceptance and acquisition of the Assets by
Buyer.
(d) Mutual
Documents from Parties. The Parties shall further execute, acknowledge
and deliver any further deeds, assignments, conveyances and other assurances,
documents and instruments of transfer, reasonably requested by the other,
and
will take any other action consistent with the terms of this Agreement that
may
reasonably be requested by the other Party for the purpose of implementing
the
transactions which are the subject of this Agreement.
(e) Payment
of Taxes. In conjunction with the provisions of Section 1.10, all
applicable sales and use taxes shall be the responsibility of and paid by
Buyer
on or before the Closing.
3
II.6 Seller’s
Obligations After Closing.
(a) Seller’s
Indemnity. Seller agrees to protect and will, defend, indemnify and
hold harmless Buyer and Buyer’s members, agents, attorneys, contractors, agents,
successors, assigns and representatives (collectively, “Buyer’s Parties”)
against and in respect of any and all debts, liabilities, obligations, losses,
damages, deficiencies, costs, payments, penalties, fines, amounts paid in
settlement or other expenses (including, without limitation, interest which
may
be imposed therewith and the reasonable fees and expenses of investigation
and
legal counsel) (collectively referred to as “Losses”) resulting from:
(i) any misrepresentation or breach of any representation,
warranty, covenant, agreement or obligation by and of Seller made in this
Agreement (including, without limitation, all Exhibits and
Schedules to this Agreement and all other documents
delivered
by Seller under this Agreement) or as provided in this Agreement;
(ii) any claims, proceedings, actions or investigations made
or
brought by third parties based on or arising from acts, omissions or the
existence of facts relating to the Seller, the Assets sold and transferred
and
the Assumed Liabilities assumed or Seller’s conduct of Seller’s Business
occurring prior to the Closing; or (iii) the failure of Seller
to perform or discharge when due any of their obligations under this Agreement
including, without limitation, the removal, termination or discharge of all
Liens and the timely satisfaction of the Retained Liabilities. Provided however,
and notwithstanding anything contained in the foregoing to the contrary,
Seller
shall not be required to indemnify Buyer and Buyer’s Parties from or against any
Losses arising from Buyer’s or Buyer’s Parties’ negligent or willful acts or
omissions to act.
4
(b) Confidentiality.
Seller acknowledges that it has “Confidential Information” (as defined below)
concerning Seller’s Business and the Acquired Assets which are being purchased
and acquired by Buyer pursuant to this Agreement. Seller further acknowledges
and agree that this Confidential Information, which is not publicly known
and
which gives Seller’s Business a competitive advantage, if shared with third
parties, could be detrimental to Buyer and could place Buyer at a competitive
disadvantage. Therefore, Seller covenants and agrees that, except as otherwise
provided below, they will not at any time divulge, directly or indirectly
or use
to the business disadvantage of Buyer or its affiliates, the Confidential
Information. The term “Confidential Information” for purposes of this Agreement
shall mean any Confidential Information of any kind, nature or description
concerning any matters affecting or relating to Seller’s Business and the
Acquired Assets being purchased and acquired by Buyer pursuant to this
Agreement, including, without limitation, proprietary technology, operating
procedures, financial statements or other financial information, trade secrets,
know-how, market studies and forecasts, competitive analyses, pricing policies,
the substance of agreements with customers, distributors, and others, marketing
or similar arrangements, servicing and training programs and arrangements,
customer lists, distributor and dealer lists and any other documents embodying
such Confidential Information. Notwithstanding anything contained in the
foregoing, Confidential Information does not include information
(i) that as of the date hereof is or hereafter becomes part
of
the public domain through no fault of Seller; or (ii) Seller
received from a third party which Seller believes after reasonable inquiry
it/they are not prohibited from disclosing such information to a third party
by
legal, contractual or fiduciary obligation to a third party.
II.7 Buyer’s
Obligations After Closing.
(a) Buyer’s
Indemnity. Buyer agrees to protect, defend, indemnify and hold harmless
Seller, its shareholders, officers, directors and agents, attorneys,
accountants, employees, contractors, successors, heirs, assigns and
representatives (collectively, “Seller’s Parties”) against and in respect of any
and all Losses resulting from: (i) any misrepresentation or breach of any
representation, warranty, covenant, agreement or obligation by and of Buyer
made
in this Agreement (including, without limitation, all Exhibits and Schedules
to
this Agreement and all other documents delivered by Buyer under this Agreement)
or as provided in this Agreement; (ii) any claims, proceedings, actions or
investigations made or brought by third parties based on or arising from
acts or
omissions of the Buyer, Buyer’s conduct of business involving the Assets or
facts relating to the Assets occurring on or after the Closing; (iii) the
failure of the Buyer to perform or discharge when due any of Buyer’s obligations
under this Agreement; (iv) claims, proceedings, actions or investigations
made
or brought by third parties based on or arising from Buyer’s release into the
public domain any Intellectual Property assets acquired from Seller and/or
(v)
any other liabilities or obligations with respect to Buyer and/or Seller’s
Business accruing or arising after the Closing Date. Provided, however, and
notwithstanding anything contained in the foregoing to the contrary, Buyer
shall
not be required to indemnify Seller or Seller’s Parties from or against any
Losses arising from Seller’s or Seller’s Parties’ negligent or willful acts or
omissions to act.
(b) Pelco
Servicing Agreement. Buyer agrees to invoice and collect the monthly
license fee revenue from Pelco under that certain ________________ dated
__________ and will pay over to Seller a seventy percent (70%) of the net
monthly revenue for a period of 12 months from the Close. These payments
will be
remitted to the Seller on a monthly basis within thirty (30) days of receipt
of
payment from Pelco. Revenue related to contracting service arrangements between
Buyer and Pelco after close of the acquisition are excluded from the fee
and
will be retained solely by Buyer.
II.8 Notice
of Indemnification. In conjunction with Seller’s and Buyer’s respective
indemnification obligations under this Agreement, if any claim is made, or
suit
is brought, against an indemnitee, the indemnitee, within such period of
time as
shall not prejudice the ability of the indemnitor to defend such claim or
suit
shall notify in writing the indemnitor of such claim or suit and the indemnitor
shall have the option to assume the defense of such suit or claim at its
sole
expense with counsel reasonably satisfactory to indemnitee (such defense
to be
conducted, if the indemnitee so elects, in association with such other counsel
as the indemnitee may select, the fees and expenses of such other counsel
to be
paid for by the indemnitee). The indemnitor shall have the obligation to
conduct
said defense diligently and shall provide the indemnitee with copies of all
documents, correspondence, opinions and pleadings relating thereto. The
indemnitee shall not make settlement or give any consent or waiver affecting
the
indemnitor without its prior written consent, unless the indemnitor theretofore
failed to accept such defense within ten (10) days after being so notified
of
such claim or suit or the indemnitor shall have theretofore failed to maintain
such defense after such acceptance, or unless the matter in question shall
have
theretofore been finally determined adversely to the indemnitor, as the case
may
be, by a court or governmental instrumentality having jurisdiction thereof,
Seller and Buyer will cooperate in a reasonable manner with the other Party
in
providing information and making records available that may be needed in
contesting any such claim.
II.9 Costs
of the Transaction.
(a) No
Finder’s or Broker’s Fees. Buyer and Seller each represent and warrant
that they have not engaged a broker or agent to provide broker/agent
representation to them in conjunction with the purchase and sale transaction
contemplated by this Agreement.
(b) Expenses
and Costs. Seller and Buyer shall each be responsible for all of their
respective costs and expenses incurred in connection with the transactions
contemplated by this Agreement, including, without limitation, the costs
for
legal, accounting and other professional services.
5
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
III.1 Seller’s
Representations and Warranties. Seller makes the following
representations and warranties to Buyer, which representations and warranties
are true and correct as of the date hereof and shall be true and correct
as of
the Closing:
(a) Corporation
Organization. Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with all of
the
requisite corporate power and authority to own, lease and operate its properties
and to carry on and conduct and operate its businesses, including, without
limitation, Seller’s Business, as now being conducted.
(b) Authority.
Seller has the full power and authority to sign and deliver and no further
action is required to authorize the signing and delivery of this Agreement
and
to consummate the contemplated transactions. This Agreement constitutes the
legally binding obligation of Seller in accordance with the terms hereof,
except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or
other
laws affecting creditor’s rights and by equitable principles of general
applicability.
(c) Statement
of Material Facts. No representations or warranties by Seller, nor any
document, exhibit, statement, certificate or schedule furnished to Buyer
in
connection with the contemplated transaction contains or will contain any
untrue
statement of a material fact, or omit to state any material fact necessary
to
make the statement of facts contained herein or therein not
misleading.
ARTICLE
IV
TERMINATION
IV.1 Right
of Termination. This Agreement may be terminated at anytime prior to
Closing: (a) by mutual written agreement of the Parties; (b) as otherwise
provided in this Agreement; or (c) by either Seller or Buyer after written
notice to the other Party of any one (1) or more material misrepresentations
and/or breaches of the representations, warranties, or covenants made by
the
other Party contained herein or the failure of the other Party to perform
or
satisfy any of such Party’s obligations under this Agreement and that if not
cured prior to the Closing Date could be reasonably expected to give such
Party
grounds not to close. A termination pursuant to this Section 4.1(c) shall
not
become effective upon such notice with respect to such a misrepresentation,
breach or failure to perform, if it is capable of being cured but is not
cured
on or prior to the Closing Date, in which event termination shall become
effective as of the date set forth in Section 2.5(a).
IV.2 Effect
of Termination. If this Agreement is terminated as provided in Section
4.1 and such termination is the result of a breach by a Party of its/their
representations, warranties, covenants, agreements or obligations contained
in
this Agreement, such Party shall be fully liable for any damages incurred
or
suffered by the other Party as a result of such failure or breach.
6
ARTICLE
V
MISCELLANEOUS
V.1 Prorations.
Buyer and Seller agree to the following prorations, which shall be prorated
between Buyer and Seller as of the Closing Date, on a thirty (30) day per
month
basis:
(a) All
personal property taxes assessed with respect to the Assets by the County
of
Contra Costa, California Tax Collector pursuant to the Tax Collector’s tax xxxx
conveying the period in question;
V.2 Nature
and Survival of Representations, Warranties and Covenants. All
representations, warranties, covenants and agreements of the parties contained
in this Agreement, or any document provided for in it, shall survive this
Agreement and the consummation of this purchase and sale
transaction.
V.3 Headings.
The subject headings of the sections and subsections of this Agreement are
included for purposes of convenience only, and shall not affect the construction
or interpretation of any of its provisions.
V.4 Integration;
Modification; Waiver. This Agreement, including all
Exhibits and Schedules (all of which are
incorporated into the Agreement), constitutes and contains the entire agreement
and understanding concerning the subject matter between Seller and Buyer, sets
forth all inducements made by a Party to the other Party with respect to
any of
the subject matter, and supersedes and replaces all prior and contemporaneous
negotiations, proposed agreements or agreements, whether written or oral.
Seller
and Buyer acknowledge to the other Party that no other Party nor any agent
or
attorney of any other Party has made any promise, representation or warranty
whatsoever, express or implied, written or oral, not contained herein concerning
the subject matter hereof to induce it to execute this Agreement, and Seller
and
Buyer acknowledge that such Party has not executed this Agreement in reliance
on
any promise, representation or warranty not contained herein. No supplement,
modification, or amendment of this Agreement shall be binding unless executed
in
writing by Seller and Buyer. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver.
No
waiver shall be binding unless executed in writing by the Party making the
waiver.
V.5 Counterparts/Facsimile
Signature. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. A signature of a person
on behalf of himself/herself or a party sent via facsimile shall be binding
on
such signing person and, if applicable, the party for whom such person is
signing.
V.6 Recovery
of Litigation Costs. In the event either Party commences any legal
action or other legal proceeding for the enforcement of this Agreement, or
because of an alleged dispute, breach, default, or misrepresentation in
connection with any of the provisions of this Agreement, the successful or
prevailing Party shall be entitled to recover from the other Party reasonable
attorneys’ and accountants’ fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be
entitled.
V.7 Notices.
All notices, requests, demands, and other communications required or permitted
under this Agreement shall be in writing and shall be deemed to have been
duly
given (i) on the date of service, if served personally on the Party to whom
notice is to be given; (ii) on the fourth (4th) day after mailing, if mailed
to
the Party to whom notice is to be given, by first class mail, registered
or
certified, postage prepaid; or (iii) one (1) business day after (a) deposit
with
a nationally recognized overnight courier, or (b) transmission by telecopy
or
similar means, if a copy of the notice is also sent via first class mail,
registered or certified, postage prepaid or by overnight courier, provided
that
a transmission report is generated reflecting the accurate transmission of
the
notice. All notices, requests, demands, and other communications must be
addressed as follows:
| To Seller at: | Neonode,
Inc. 0000 Xxxxxxxxx Xxxxxxx, Xxx 000 Xxx Xxxxx, Xxxxxxxxxx 00000 Telephone: (925) Fax: (925) |
||
| To Buyer at: |
Rising
Tide Software, LLC
Attn:
Xxxxxxxx X. Xxxxxxxxx
0000
Xxxx Xxx., Xxx X000
Xxxxxx
Xxxxx, XX 00000-0000
Telephone:
(000) 000-0000
Fax:
|
||
| With a copy to (which copy shall not be considered notice): | Xxxxx X. Xxxxxxx, Esq.
00
Xxxxxxxx Xxxxx
Xxxxxx,
Xxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
|
Any
Party
may change its/his address for purposes of this Section 5.7 by
giving the other party written notice of the new address in the manner set
forth
above.
V.8 Governing
Law. This Agreement shall be construed, interpreted, and enforced in
accordance with, and governed by, the laws of the State of California, including
California’s statutes of limitations and without regard to California’s
conflicts of laws provisions.
V.9 Interpretation.
In the event of any ambiguity in the interpretation of this Agreement, the
interpretation of this Agreement shall not be resolved by any rule of
interpretation providing for interpretation against the party who causes
the
uncertainty to exist or against the draftsman.
V.10 Severability.
In the event that any provision of this Agreement is deemed invalid, illegal,
or
unenforceable, all other provisions of the Agreement which are not affected
by
such invalidity, illegality or unenforceability, shall remain in full force
and
effect. Further, the Parties hereby agree that if any such provision is deemed
invalid, illegal or unenforceable, that provision shall be limited or eliminated
in scope, power or effect to the minimum extent necessary so that this Agreement
shall otherwise remain in full force and effect and enforceable.
7
V.11 Cumulative
Rights and Remedies. The rights and remedies in this Agreement shall be
cumulative, and in addition to, any duties, obligations, rights and remedies
otherwise provided by law.
V.12 Authority.
The undersigned individuals execute this Agreement on behalf of the respective
Parties, and represent that they are authorized to enter into and execute
this
Agreement on behalf of such Parties.
V.13 Further
Assurances. The parties agree to execute all instruments and documents
of further assurance and will do any and all such acts as may be reasonably
required to carry out their obligations and to consummate the contemplated
transactions.
V.14 Time
of the Essence. All times stated in this Agreement are of the
essence.
V.15 Recitals.
The Recitals are incorporated and made a part of this Agreement.
V.16 Exhibits/Schedules.
All Exhibits/Schedules referred to are attached to this
Agreement and incorporated by this reference, and made a part
hereof.
V.17 Rules
of Interpretation. The terms “shall,” “will,” “must,” “agree” and
“covenants” are each mandatory. The term “may” is permissive. The term “or” is
not exclusive. The terms “includes” and “including” are not
exclusive.
Remainder
of page left intentionally blank
8
IN
WITNESS WHEREOF, the Parties have executed this Agreement on the day
and year last written below.
| SELLER: NEONODE, INC., a Delaware corporation |
||
| |
|
|
| Dated: August 20, 2007 | By: | /s/ Xxxxx X. Xxxxxxx |
|
CFO |
||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxx | |
|
Secretary |
||
| BUYER: RISING TIDE SOFTWARE, LLC., a California limited liability company |
||
| |
|
|
| Dated: August 17, 2007 | By: | /s/ Xxxxxxxx X. Xxxxxxxxx |
|
Xxxxxxxx X. Xxxxxxxxx, Member |
||
9
EXHIBIT
A
EQUIPMENT
SCHEDULE
10
EXHIBIT
B
INTELLECTUAL
PROPERTY SCHEDULE
11
EXHIBIT
C
SCHEDULE
OF CONTRACTS AND AGREEMENTS
12
EXHIBIT
D
XXXX
OF SALE
13
EXHIBIT
F
ALLOCATION
SCHEDULE
14
