ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this “Agreement” ) is entered into by and between Opsolution NanoPhotonics GmbH, a German entity (“ONG” ), Opsolution GmbH (“ Opsolution”),
and Opsolution Spectroscopic Systems GmbH (“ OSS”), each a German company (each, a “ Seller” and collectively, the “ Sellers”) and the individual or entity owners and sharehol ders of each Seller
(and their individual shareholders), as set forth on Schedule A hereto (each, a “ Seller Shareholder”) and Biozoom Technologies, Inc., a Delaware corpo ration (“Purchaser” ). Sellers,
Seller Shareholders and Purchaser may each be referred to as a “Party” and collectively as the“Parties.”
WHEREAS, each Seller has developed, acquired, or otherwise owns or has rights to, and is the rightful owner in whole or in part of certain licenses, patents, ideas, trademarks, domain
names, technology and other intellectual property and other rights, as more fully defined below and on Exhibit A-1 through Exhibit A-3 hereto, the “Intellectual Property” , as well as certain
other equipment, hardware, receivables, and physical assets as enumerated on Exhibit B-1 through Exhibit B-3 hereto, as more fully defined below (the “ Tangible Property” and, together with the
Intellectual Property and all other assets of the Sellers, the “ Assets”); and
WHEREAS, Purchaser is a wholly owned subsidiary of Entertainment Art, Inc., a Nevada corporation (“ EERT”) which has also made efforts to raise capital thr ough one or more equity, debt
or convertible debt or preferred stock financings, and, EERT has deemed it in its best interest to complete the acquisition of the Intellectual Property hereby; and
WHEREAS, Purchaser is acquiring the assets from Sellers simultaneously hereby; and
WHEREAS, Purchaser desires to purchase, and Seller and Seller Shareholders each desires
to sell, the Intellectual Property.
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
Section 1.
Assets Purchsaed. Each Seller agrees to sell to Purchaser and Purchaser agrees to purchase from each Seller, on the terms and conditions set forth in this Agreement, all of the Assets
of the Sellers, in whatever form and wherever they may be throughout the world, and all rights thereto. The Assets shall include all assets of the Sellers, including, and without limitation:
1.1
Intellectual Property Purchased. All Intellectual Property of the Sellers which shall include all (a) patents, patent applications, provisional patents or applications,
trademarks, tradenames, license or sub license rights, developments, ideas, drawings, concepts, copyrights, technologies, formulas, developments, trade secrets, ideas, or, partial or whole interests
(whether direct or indirect, contractual, by court order, by operation of law or otherwise) in any of the foregoing, any amendments or supplements or renewals of the foregoing, and in each case
whether developed on its own, owned outright, acquired, or acquired through a joint venture interest or otherwise, or whether registered or otherwise; (b) all rights under the Liquidation Agreement
between certain of the Sellers and Vodafone Ventures Limited and certain other entities, dated as of November 8, 2006 (the “ Liquidation Agreement”) or under any other agreement or contract; and
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PAGE 1 – ASSET PURCHASE AGREEMENT
(c) all contract or common law rights or rights that inure as a result of operation of law (but, in each case, excluding obligations), causes of action, rights of indemnity, judgment rights, royalty rights,
license fees or rights, easements, credits, or otherwise, and all rights to any intellectual property development agreement, work for hire arrangement, employment agreement or similar arrangement;
(d) all patent rights as set forth on Exhibit A-1 through Exhibit A-3 attached hereto of each of the Sellers wherever the same may be and in whatever form; and (e) any and all other intellectual or
intangible property rights of any of the Sellers throughout the world whether known or unknown, in development currently or hereafter, existing heretofore or hereafter that may be discovered that
relate to the foregoing.
1.2
Tangible Property. All tangible property of the Sellers, which shall include: any and all physical assets, computers, hardware, drawings, disks, content, software,
shareware, hardware, receivables, in each case, including, without limitation, those items set forth on Exhibit B-1 through Exhibit B-3.. The Purchase Price for the Tangible Property shall
be $50,000 cash, in total, allocated equally among each of the three Sellers and paid at or as soon after closing as practicable.
1.3
All other Assets.
All other assets of the Sellers (but not liabilities) wherever they may lie, including future rights to any of the above.
The Parties agree that any and all current or future rights to any Intellectual Property or any other Assets, shall be thereby transferred to Purchaser. Purchaser does not, and shall not acquire
liabilities, or assume any leases or other obligations of any kind.
Section 2.
Purchase Price. The purchase price for the Assets shall be an aggregate of (i) 39,000,000 shares of common stock of EERT, said shares to be issuable directly to Seller
Shareholders in such proportions and denominations as set forth on Schedule A (the “EERT Shares” ) and (ii) the amount of US$50,000 allocable among the three Sellers equally and payable
in accordance with written instructions to be provided at Closing and paid within 10 days thereafter.
Section 3.
Closing. The closing (“Closing” ) of the sale and purchase of the Intellectual Property and other Assets shall take place at the offices of Purchaser on or before February 21, 2013
(the “Closing Date” ), or at such other time as the Parties may agree in writing. If Closing has not occurred on or before such date, then either Party may elect to terminate this Agreement without
penalty. If, however, the Closing has not occurred because of a breach of contract by one Party, the breaching Party shall remain liable for breach of contract.
Section 4. Obligations of Seller and Seller Shareholders at the Closing. At the Closing, each Seller and Seller Shareholders shall deliver to Purchaser the following:
4.1
One or more assignments from Sellers and Seller Shareholders irrevocably and unconditionally conveying all of the Assets to Purchaser, as well as all current, future rights thereto,
substantially in the form as set forth in Exhibit C attached hereto (each, an “ Assignment”);
4.2
A copy of the resolutions of Seller’s Board of Directors and Seller Shareholders authorizing the execution, delivery and performance of this Agreement, the Assignments, and any other
agreement or instrument to be entered into by Seller in connection herewith, and the transactions contemplated hereby;
PAGE 2 – ASSET PURCHASE AGREEMENT
4.3
All necessary consents of, or notices to, third parties, including without limitation, the effective release by any lender to Seller that has a lien or other security interest in the Intellectual
Property, any notices or instruments to any licensee, licensor, or agency necessary in order to effectuate the irrevocable transfer and assignment contemplated hereby; and
4.4
Such other assignments, bills of sale, instruments of conveyance, certificates of officers, notices, consents, authorizations and other documents as reasonably may be requested by
Purchaser before, at or after the Closing to consummate this Agreement and the transactions contemplated hereby.
4.5
Each of Hardy Xxxxxxxx, Xx. X. Xxxxxx shall be subject to at will employment contracts with Purchaser and/or EERT, or consulting agreements with salary caps of 60,000 Euro,
each with non-compete and confidentiality provisions, in such form and substance as satisfactory to Purchaser and EERT. All other executives of Sellers shall enter into employment agreements in
such form as agreed to by Purchaser, also with similar confidentiality and non-compete provisions.
Section 5.
Obligations of Purchaser at the Closing. At the Closing, Purchaser shall:
5.1
Execute and deliver this Agreement and the Assignments;
5.2
Deliver necessary resolutions of its Board of Directors and of EERT’s board of directors, authorizing this Agreement and the Assignments and the issuance of the EERT shares;
and
5.3
Deliver, or cause to be delivered to each Seller Shareholder, the EERT Shares in such amounts and denominations as provided to the Purchaser for such respective Seller
Shareholder, as set forth on Schedule A and deliver the cash portion of the Purchase Price of $50,000 in total in accordance with instructions provided by Sellers; and
5.4
Such certificates of officers and other documents as reasonably may be requested by Seller before the Closing to consummate this Agreement and the transactions contemplated hereby.
Section 6.
Joint Venture Agreement. Purchaser and Opsolution shall, at or before closing, enter into a joint venture agreement pursuant to which, in addition to all assignments provided
hereby, Opsolution irrevocably assigns any and all rights to technologies, research etc., to Purchaser, substantially in the form as annexed hereto as Exhibit D.
Section 7.
Seller’s and/or Seller Shareholders’ Obligations Before Closing.
7.1 Seller’s Operation of Business Before Closing. Seller agrees that between the date of this Agreement and the Closing Date, Seller will:
PAGE 3 – ASSET PURCHASE AGREEMENT
7.1.1 Continue to operate the business that has used the Intellectual Property and other Assets in the usual and ordinary course and in substantial conformity with all applicable laws,
ordinances, regulations, rules or orders, and will use its best efforts to pay all renewal fees, license fees, patent fees or patent continuation or renewal fees, or as otherwise necessary to preserve its
business organization and preserve the continued operation of its business with its customers, suppliers and others having business relations with Seller.
7.1.2 Not assign, sell, lease, encumber, allow to be terminated or lapse, or otherwise transfer or dispose of any of the Intellectual Property whatsoever.
7.1.3 Maintain confidential any trade secrets or other Intellectual Property held, developed or acquired before closing.
7.2 Access to Premises and Information. At all times before and after Closing, each Seller does, hereby provide Purchaser and its representatives with reasonable access during business
hours to the assets, titles, contracts and records of Seller and furnish such additional information concerning the Intellectual Property as Purchaser from time to time may reasonably request. Each
Seller hereby instructs its counsel and advisers, and shall directly request its counsel and advisors and assignors, from time to time, to cooperate fully with Purchaser to effectuate the transfer of all
Intellectual Property hereby to Purchaser.
7.3 Conditions and Best Efforts. Seller will use its best efforts to effectuate the transactions contemplated by this Agreement and to fulfill all the conditions of the obligations of
Seller under this Agreement, and will do all acts and things as may be required to carry out its obligations under this Agreement and to consummate and complete this Agreement.
Section 8.
Covenants of Purchaser Before Closing.
8.1 Conditions and Best Efforts. Purchaser will use its best efforts to effectuate the transactions contemplated by this Agreement and to fulfill all the conditions of Purchaser’s
obligations under this Agreement, and shall do all acts and things as may be required to carry out its obligations and to consummate this Agreement.
8.2 Confidential Information. Purchaser will not utilize, exploit, disclose to third parties any confidential information received from Seller in the course of investigating, negotiating and
performing the transactions contemplated by this Agreement.
Section 9.
Miscelaneous.
8.1
Restrictions On Resale. Seller and Seller Shareholders understand that the acquisition of EERT Shares by them is restricted under US law and, involves and entails a
substantial degree of risk and illiquidity. Such Seller Shareholder is not a US person and does not have a residency or place of business in the United States and is not a US Person as such
term is defined under Regulation S of the Securities Act of 1933, as amended (the “ Securities Act”). Seller Shareholder understands that it may not be able to monetize its EERT Shares and
that a market for the securities may not develop.
PAGE 4 – ASSET PURCHASE AGREEMENT
The EERT Shares will not be registeredunder the Securities Act, or the securities laws of any state, and cannot be transferred, hypothecated, sold or otherwise disposed of until: (i) a registration statement with respect to such
securities is declared effective under the Securities Act; or (ii) Seller, or Buyer, as the case may be, receives an opinion of counsel reasonably satisfactory to it, that an exemption from the
registration requirements of the Securities Act is available.
The certificate(s) representing the EERT Shares shall contain a legend substantially as follows:
“THE SECURITIES WHICH ARE REPRESENTED BY THIS CERTI FICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNTIL A
REGISTRATION STATEMENT WITH RESPECT THERETO IS DECLARED EFFECTIVE UNDER SUCH ACT, OR THE ISSUER RECEIVES AN
OPINION OF COUNSEL FOR THE HOLDER REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER THAT AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT IS AVAILABLE.”
Section 10.
Seller’s Representations and Warranties. Each Seller represents and warrants to Purchaser as follows:
10.1 Company Existence. Such Seller is now, and on the Closing Date will be, a company duly organized, validly existing and in good standing under the laws of the Germany, and
has all requisite power and authority to own its properties and assets and carry on its business and is good standing in each jurisdiction in which such qualification is required for this Agreement.
10.2 Company Power and Authorization. Such Seller has full corporate authority to execute and deliver this Agreement, the Assignment to which they are a party, and, with respect to
ONG, the Joint Venture Agreement, and any other agreement to be executed and delivered by such Seller in connection herewith, and to carry out the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary company action. No other proceedings by such
Seller (other than filings or third party creditor or member consents contemplated herein) will be necessary to authorize this Agreement or the carrying out of the transactions contemplated hereby.
This Agreement constitutes a valid and binding Agreement of Seller in accordance with its terms.
10.3 Conflict with Other Agreements, Consents and Approvals. With respect to (i) the Certificate of Incorporation, charter, by-laws or any shareholder or operating agreement of Seller as
amended and in effect, (ii) any applicable law, statute, rule or regulation, (iii) any contract to which Seller is a party or may be bound, or (iv) any judgment, order, injunction, decree or ruling of any
court or governmental authority to which Seller is a party or subject, the execution and delivery by each Seller of this Agreement and any other agreement to be executed and delivered by Seller in
connection herewith and the consummation of the transactions contemplated hereby will not (a) result in any violation, conflict or default, or give to others any interest or rights, including rights of
termination, cancellation or acceleration, (b) require any authorization, consent, approval, exemption or other action by any court or administrative or governmental body, any patent or
intellectual property agency or authority, or any taxing or currency authority, which has not been obtained, or any notice to or filing with any court or administrative or governmental body which has
not been given or done, or (c) require the consent of any third party.
10.4 Compliance with Law. Such Seller’s use and utilization of the Intellectual Property and all other Assetsas set forth in the jurisdiction on the respective Exhibit A and B wherever
located, is in compliance with all known federal, local or other governmental laws or ordinances, the non-compliance with which, or the violation of which, might have a material adverse affect on
the Intellectual Property and Seller has received no claim or notice of violation with respect thereto.
10.5 Title to Intellectual Property. Such Seller holds good and marketable title to the Intellectual Property, free and clear of restrictions on or conditions to transfer or assignment, and
free and clear of liens, pledges, charges or encumbrances.
10.6 Intellectual Property Rights. Each Seller and, Seller Shareholder and jointly represents and warrants that:
10.6.1 Each Seller owns, possesses or has the right to use all its respective Intellectual Property or other Asset rights as presently conducted, or otherwise used by Seller other
than as disclosed on the applicable Exhibit A and Exhibit B;
10.6.2 No royalties or other amounts are payable by such Seller to other persons by reason of the ownership or the use of the Intellectual Property or other Assets and, each Seller
and Seller Shareholder forever waives any rights in any of the foregoing;
10.6.3 (i) To the best knowledge of each Seller and each Seller Shareholder, no product or service related to Seller’s business and marketed and sold by a Seller which utilizes the
Intellectual Property violates any license or infringes upon any intellectual property rights of others, (ii) neither Seller nor such a Seller Shareholder has received any notice that any such product or
service conflicts with any intellectual property rights of others, and (iii) to the best knowledge of Seller and Seller Shareholder, there is no reasonable basis to believe that any such violation,
infringement or conflict may exist;
10.6.4 Neither Seller nor such Seller Shareholder is not a party to, or subject to, any contract which currently requires, or upon the passage of time or occurrence of an event or
contingency (whether of default or otherwise) will require, the conveyance of the Intellectual Property;
10.6.5 Seller has or at Closing will have, obtained and delivered to Purchaser all consents and approvals of third parties necessary to duly transfer to Purchaser all of Seller's rights,
title and interest in and to the Intellectual Property.
10.7 Litigation. Neither Seller nor any Seller Shareholder has any knowledge of any claim, litigation, proceeding or investigation pending or threatened against Seller that might result in
any material adverse change in the ownership, use or exploitation of the Intellectual Property (other than existing Warranty Liabilities or future Warranty Liabilities that may arise from time to time).
PAGE 6 – ASSET PURCHASE AGREEMENT
10.8 Brokerage. Neither Seller nor such Seller Shareholder has employed any broker, finder or similar agent in connection with the transactions contemplated by this Agreement, or taken
action that would give rise to a valid claim against any Party for a brokerage commission, finder’s fee or similar compensation.
10.9 Accuracy of Representations and Warranties. None of the representations or warranties of Seller herein contain any untrue statement of a material fact or omit or misstate a
material fact necessary in order to make statements in this Agreement not misleading. Seller and Seller Shareholders know of no fact that has resulted, or that in the reasonable judgment of Seller
will result in a material change in the business, operations or assets related to the Intellectual Property that has not been set forth in this Agreement or otherwise disclosed to Purchaser.
Notwithstanding the foregoing, any representation of Seller Shareholder is made with with respect to itself and the Seller in which it / he is a shareholder and, any representation or warranty of a
Seller Shareholder herein that is made with respect to another Seller Shareholder is made based on such Seller Shareholder’s good faith knowledge.
Section 11.
Representations of Purchaser. Purchaser represents and warrants as follows:
11.1 Corporate Existence. Purchaser is now, and on the Closing Date will be, a corporation duly organized, validly existing and in good standing under the laws of the State of
Delaware, has all requisite corporate power and authority to enter into this Agreement and perform its obligations hereunder. EERT is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada.
11.2 Authorization. Purchaser has full corporate authority to execute and deliver this Agreement and any other agreement to be executed and delivered by Purchaser in connection
herewith, and to carry out the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate and shareholder action. No other corporate proceedings by Purchaser will be necessary to authorize this Agreement or the carrying out of the transactions
contemplated hereby. This Agreement constitutes a valid and binding Agreement of Seller in accordance with its terms.
11.3 Conflict with Other Agreements, Consents and Approvals. With respect to (i) the certificate of incorporation or bylaws of Purchaser, (ii) any applicable law, statute, rule or
regulation, (iii) any contract to which Purchaser is a party or may be bound, or (iv) any judgment, order, injunction, decree or ruling of any court or governmental authority to which Purchaser is a
party or subject, the execution and delivery by Purchaser of this Agreement and any other agreement to be executed and delivered by Purchaser in connection herewith and the consummation
of the transactions contemplated hereby will not (a) result in any violation, conflict or default, or give to others any interest or rights, including rights of termination, cancellation or acceleration, or
(b) require any authorization, consent, approval, exemption or other action by any court or administrative or governmental body which has not been obtained, or any notice to or filing with
any court or administrative or governmental body which has not been given or done, or (c) require the consent of any third party
PAGE 7 – ASSET PURCHASE AGREEMENT
11.4 Brokerage. Purchaser has not employed any broker, finder or similar agent in connection with the transactions contemplated by this Agreement, or taken action that would give
rise to a valid claim against any party for a brokerage commission, finder's fee or similar compensation.
11.5 Accuracy of Representations and Warranties. None of the representations or warranties of Purchaser contain or will contain any untrue statement of a material fact or omit or
will omit or misstate a material fact necessary in order to make the statements contained herein not misleading.
Section 12.
Conditions Precedent to Purchaser’s Obligations. The obligation of Purchaser to purchase the Intellectual Property is subject to the fulfillment, before or at the Closing Date, of
each of the following conditions, any one or portion of which may be waived in writing by Purchaser:
12.1 Representations, Warranties and Covenants of Seller. The representations and warranties of each Seller and Seller Shareholders contained herein and the information contained in
any other documents delivered by Seller in connection with this Agreement shall be true and correct in all material respects at the Closing; and Seller shall have performed all obligations and complied
with all agreements, undertakings, covenants and conditions required by this Agreement to be performed or complied with by it or before the Closing.
12.2 No Suits or Actions. At the Closing Date no suit, action or other proceeding shall have been threatened or instituted to restrain, enjoin or otherwise prevent the consummation of this
Agreement, the contemplated transactions or the ownership or validity of the Intellectual Property.
12.3 Release of Liens and Perfection of Title; Costs. All liens against the Intellectual Property shall have been released at or before Closing and Seller shall have perfected title to the
Intellectual Property to the satisfaction of Purchaser in Germany and\or such other foreign jurisdictions as specified by Purchaser. All costs associated with the effective transfer of the
Intellectual Property shall have been paid by Seller at or before Closing.
Section 13.
Conditions Precedent to Obligations of Seller. The obligations of Seller to consummate the transactions contemplated by this Agreement are subject to the fulfillment, before
or at the Closing Date, of the following condition which may be waived in writing by Seller:
13.1 Representations, Warranties and Covenants of Purchaser. All representations and warranties made in this Agreement by Purchaser shall be true as of the Closing Date as fully as
though such representations and warranties had been made on and as of the Closing Date, and Purchaser shall not have violated or shall not have failed to perform in accordance with any
covenant contained in this Agreement.
PAGE 8 – ASSET PURCHASE AGREEMENT
Section 14.
Indemnification and Survival.
14.1 Survival of Representations and Warranties. All representations and warranties made in this Agreement shall survive the Closing of this Agreement, except that any Party to whom
a representation or warranty has been made in this Agreement shall be deemed to have waived any misrepresentation or breach of representation or warranty of which such Party had knowledge
before Closing. Any Party learning of a misrepresentation or breach of representation or warranty under this Agreement shall immediately give written notice thereof to the other Party to this
Agreement. The representations and warranties in this Agreement shall terminate five (5) years from the Closing Date, and such representations or warranties shall thereafter be without force or
effect, except any claim with respect to which notice has been given to the Party to be charged before such expiration date.
14.2 Seller’s Indemnification. Seller and Seller Shareholders each hereby agrees to indemnify and hold Purchaser, its successors and assigns harmless from and against (i) any and all
actual damages, losses, claims, liabilities and obligations relating to the Intellectual Property, contingent or otherwise, arising out of or related to such Seller’s or such Seller Shareholder’s
utilization of the Intellectual Property at all times through the close of business on the day before the Closing Date, (ii) any liability or obligation of such Seller or Seller Shareholder which attaches to
the Intellectual Property from facts arising before the Closing Date, (iii) any and all actual damage or deficiency resulting from any material misrepresentation, breach of warranty or covenant, or
nonfulfillment of any agreement on the part of such Seller or such Seller Shareholder made in this Agreement, and (iv) any and all actions, suits, claims, proceedings, demands, assessments, fines,
judgments, costs and other expenses (including, without limitation, reasonable audit and attorneys fees) incident to any of the foregoing.
14.3 Purchaser’s Indemnification. Purchaser agrees to defend, indemnify, and hold harmless Seller from and against (i) any and all claims, liabilities and obligations of every kind and
description arising out of or related to the use and utilization of the Intellectual Property after the Closing Date; (ii) any and all damage or deficiency resulting from any material misrepresentation,
breach of warranty or covenant, or nonfulfillment of any agreement on the part of Purchaser under this Agreement, and (iii) any and all actions, suits, claims, proceedings, investigation, audits,
demands, assessments, fines, judgments, costs and other expenses (including, without limitation, reasonable audit and attorneys fees) incident to any of the foregoing.
Section 15.
Miscellaneous Provisions.
15.1 Notices. Any notice under this Agreement shall be in writing and shall be effective when actually delivered in person or three (3) days after being deposited in the United States mail,
registered or certified, postage prepaid, and by email, and addressed to the Party at the address stated in this Agreement or such other address as either Party may designate by written notice to the
other.
15.2 Assignment. Neither Party may transfer or assign this Agreement without the prior written consent of the other Party.
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15.3 Law Governing. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its rules relating to conflicts of laws.
15.4 Venue. The Parties agree that any action on this Agreement shall be brought in a court of competent jurisdiction located in county of New York, in the State of New York.
15.5 Attorney Fees. In the event an arbitration, suit or action is brought by any Party under this Agreement to enforce any of its terms, or in any appeal therefrom, it is agreed that the
prevailing Party shall be entitled to reasonable attorneys’ fees to be fixed by the arbitrator, trial court and/or appellate court.
15.6 Presumption. This Agreement or any section thereof shall not be construed against any Party due to the fact that said Agreement or any section thereof was drafted by said Party.
15.7 Titles and Captions. All article, section and paragraph titles or captions contained in this Agreement are for convenience only and shall not be deemed part of the context nor affect the
interpretation of this Agreement.
15.8 Entire Agreement. This Agreement contains the entire understanding between the Parties and supersedes any prior understandings and agreements between them respecting the
subject matter of this Agreement.
15.9 Modifications Must Be in Writing. This Agreement may not be changed orally. All modifications of this Agreement must be in writing and must be signed by each Party.
15.10 Agreement Binding. This Agreement shall be binding upon the successors and assigns of the Parties.
15.11 Further Action. The Parties shall execute and deliver all documents, instruments and assignment, waivers, provide all information and take or forbear from all such action as may be
necessary or appropriate to achieve the purposes of this Agreement.
15.13 Good Faith, Cooperation and Due Diligence. The Parties covenant, warrant and represent to each other good faith, complete cooperation, due diligence and honesty in fact in the
performance of all obligations of the Parties pursuant to this Agreement. All promises and covenants are mutual and dependent.
15.14 Counterparts. This Agreement may be executed in several counterparts and all so executed shall constitute one Agreement, binding on both Parties even though both Parties are not
signatories to the original or the same counterpart.
15.15 Parties in Interest. Nothing herein shall be construed to be to the benefit of any third party, nor is it intended that any provision shall be for the benefit of any third party.
15.16 Savings Clause. If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or
the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.
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15.17 Separate Counsel. The Parties acknowledge that each has been represented in this transaction by separate legal counsel and representation in this matter.
[Signature Page Follows]
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PAGE 13 – ASSET PURCHASE AGREEMENT
Schedule A - Schedule of Seller Shareholders and Share Denominations
Exhibit A—
Exhibit A-1 List of Intellectual Property and Jurisdictions of Opsolution NanoPhotonics
GmbH.
Exhibit A-2 List of Intellectual Property and Jurisdictions of Opsolution GmbH.
Exhibit A-3 List of Intellectual Property and Jurisdictions of Opsolution Spectroscopic
Solutions GmbH.
Exhibit A—
Exhibit B-1 List of Tangible Property and Jurisdictions of Opsolution NanoPhotonics GmbH.
Exhibit B-2 List of Tangible Property and Jurisdictions of Opsolution GmbH.
Exhibit B-3 List of Tangible Property and Jurisdictions of Opsolution Spectroscopic Solutions
GmbH.
Exhibit C—Forms of Assignment of Intellectual Property
Exhibit D - Form of Joint Venture Agreement
SCHEDULES AND EXHIBITS TO – BIOZOOM ASSET PURCHASE AGREEMENT
SCHEDULE A
List of Seller Shareholders and Issuance of 39,000,000 Share Breakdown
Seller:
Opsoultion NanoPhotonics GmbH
Name of Shareholder
No. of Shares
Opsolution GmbH
1
Xxxxxxx Vermögensverwaltungs GmbH
0
Seller:
Opsoultion GmbH
Name of Shareholder
No. of Shares
HHBV GmbH (Hardy Xxxxxxxx)
10 Share Certificates a
881.790
K-investment GmbH (Xx. Xxxxxx)
10 Share Certificates a
881.790
QG Capital
4 Share Certificates a
444.600
Seller:
Opsoultion Spectroscopic Systems GmbH
Name of Shareholder
No. of Shares
HHBV GmbH (Hardy Xxxxxxxx)
10 Share Certificates a
881.790
K-investment GmbH (Xx. Xxxxxx)
10 Share Certificates a
881.790
Prof. Xx. Xxxxxxxx
4 Share Certificates a´
487.500
Total Shares:
39,000,000
SCHEDULES AND EXHIBITS TO – BIOZOOM ASSET PURCHASE AGREEMENT
Exhibit A1 through A-3 (Intellectual Property Assets)
List of Intellectual Property and Jurisdictions of Opsolution NanoPhotonics GmbH
OPN
Percentage
of Assignee
Patent Number
Date of filing
Assignee
Status
Right
WO 2008/017490
filed 2007-08-09 Opsolution NanoPhotonics GmbH
expired
100
priority 2006-08-09
automatically
31 month
after priority
date
EP 2057446
filed 2009-05-13 Opsolution NanoPhotonics GmbH
pending
50
priority 2007-08-09
Opsolution GmbH
09.08.2006
US 2011/0043823
filed 2009-05-13 Opsolution NanoPhotonics GmbH
pending
100
priority 2007-08-09
09.08.2006
CN 101627289
filed 2010-01-13 Opsolution NanoPhotonics GmbH
pending
100
priority 2007-08-09
09.08.2006
DE 10 2009 037 706
17.08.2009 Opsolution NanoPhotonics GmbH
pending
100
SCHEDULES AND EXHIBITS TO – BIOZOOM ASSET PURCHASE AGREEMENT
Exhibit A2 through A-3 (Intellectual Property Assets)
List of Intellectual Property and Jurisdictions of Opsolution GmbH
OP
Percentage
of Assignee
Patent Number
Date of filing
Assignee
Status
Right
DE 10 2006 062 826
19.04.2006
Opsolution GmbH
pending
100
DE 10 2012 005 583.8
filed 2012-03-20
Opsolution GmbH
pending
100
priority 2011-08-12
PCT/DE2012/000772
filed 2012-07-31
Opsolution GmbH
expired
100
priority 2012-03-20
automatically
12.08.2011
31 month
after priority
date
DE 10 2006 039 073
09.08.2006
Opsolution GmbH
pending
100
EP 2057446
filed 2009-05-13
Opsolution GmbH
pending
50
priority 2007-08-09 Opsolution NanoPhotonics GmbH
09.08.2006
DE 10 2006 039 071
09.08.2006
Universität Kassel
granted
100
Patent was sold to OP
19.04.2012
SCHEDULES AND EXHIBITS TO – BIOZOOM ASSET PURCHASE AGREEMENT
Exhibit A3 through A-3 (Intellectual Property Assets)
List of Intellectual Property and Jurisdictions of Opsolution Spectroscopic Systems
GmbH
OPS
Percentage
of assignee
Patent Number
Date of filing
Assignee
Status
right
DE 10 2006 003 499
24.01.2006
OPS
pending
45
Cocus Technology GmbH
MBR GmbH
DE 10 2005 063 263
30.12.2005
OPS
pending
67,5
Cocus Technology GmbH
(MBR GmbH has transferred their rights
to OPS see Document 2007-02-21)
DE 10 2007 011 413.5
filed 2007-03-08
OPS
pending
67,5
priority 2006-03-08
Cocus Technology GmbH
Based on
(MBR GmbH has transferred their rights
DE 10 2006 011 063.3
to OPS see Document 2007-02-21)
WO 2007/085435
filed 2007-01-24
OPS
expired
45
priority 2006-01-24
MBR GmbH
automatically
and 2006-03-08
Vodafone Ventures
31 month
(Vodafone Ventrues is legal successor
after priority
of Biozoom Service GmbH)
date
EP 1981398
filed 2007-01-24
OPS
pending
45
priority 2006-01-24
MBR GmbH
08.03.2006
Vodafone Ventures
(Vodafone Ventrues is legal successor
of Biozoom Service GmbH)
WO 2007/077208
filed 2007-01-02
OPS
expired
67,5
priority 2005-12-30
Vodafone Ventures
automatically
(Vodafone Ventrues is legal successor
31 month
of Biozoom Service GmbH)
after priority
date
EP 2010890
filed 2007-01-02
OPS
pending
67,5
priority 2005-12-30
Vodafone Ventures
(Vodafone Ventrues is legal successor
of Biozoom Service GmbH)
DE 11 2007 000 950
filed 2007-04-19
OPS
pending
100
priority 2006-04-19
DE 10 2005 024 271
27.05.2005
Xxxx Zeiss
pending
50
OPS
(To become assignee OPS has to pay
her part of the patent cost)
US 7.692.790 B2
filed 2006-05-10
Xxxx Zeiss
granted
50
priority 2005-05-27
OPS
2010--04-06
(To become assignee OPS has to pay
her part of the patent cost)
List of Tangible and Jurisdictions of Opsolution NanoPhotonics GmbH
B1.1 Plant & Equipments
Development of fixed assets 2012
Opsolution NanoPhotonics GmbH
Konto
Bezeichnung
AfA-Art
AHK
Buchwert
Abschreibung
Buchwert
Inventarbezeichnung
01.01.2011
31.12.2011
Euro
Euro
Euro
Euro
43 Selbst geschaffene
imm. VermG
linear
46.367,84
44.049,00
9.274,00
34.775,00
Summe Selbst geschafffene
46.367,84
44.049,00
9.274,00
34.775,00
Immaterielle VermG
400 Betriebsausstattung
Mikrobank
Linear
4.851,00
1.407,00
582,00
825,00
Grundk. Xxxxx
Xxxxx Betriebsausstattung
4.851,00
1.407,00
582,00
825,00
List of Tangible and Jurisdictions of Opsolution GmbH
B2.1 Plant & Equipments
Development of fixed assets 2012
Discription
Entwicklung
Stand zum
Zugang
Abschreibung
Stand zum
01.01.2011
Abgang
Zuschreibung
31.12.2011
Euro
Euro
Euro
Euro
Euro
EDV-Software
Ansch-/Xxxxx-K
3.149,57
3.149,57
Abschreibung
3.146,57
3.146,57
Buchwerte
3,00
3,00
Lizensen an geweb-
Ansch-/Xxxxx-K
22.952,00
900,00
23.852,00
lichen Schutzrechten
Abschreibung
22.833,00
22.947,00
Buchwerte
5,00
900,00
905,00
Betriebsausstattung
Ansch-/Xxxxx-K
4.163,50
4.163,50
Abschreibung
4.159,50
4.159,50
Buchwerte
4,00
4,00
Büroeinrichtung
Ansch-/Xxxxx-K
32.423,00
32.423,00
Abschreibung
21.306,00
2.443,00
23.749,00
Buchwerte
11.117,00
2.443,00
8.674,00
Bürotechnik
Ansch-/Xxxxx-K
7.272,40
7.272,40
Abschreibung
6.888,40
227,00
7.115,40
Buchwerte
384,00
227,00
157,00
Geringwertige Xxxx-
Ansch-/Xxxxx-K
502,40
1.012,90
1.515,30
schaftsgüter
Abschreibung
501,40
1.012,90
1.514,30
Buchwerte
1,00
1.012,90
1,00
Geringwertige WG
Ansch-/Xxxxx-K
155,90
155,90
Sammelposten
Abschreibung
98,70
32,90
131,60
Buchwerte
57,20
32,90
24,30
Anteile an ver-
Ansch-/Xxxxx-K
12.700,00
12.700,00
bundenen Unternehmen Abschreibung
0,00
0,00
Buchwerte
12.700,00
12.700,00
Ansch-/Hers-K
83.318,77
1.912,90
85.231,67
Abchreibung
58.933,57
3.715,80
62.763,37
Buchwerte
24.385,20
4.615,80
22.468,30
B3 List of Tangible and Jurisdictions of Opsolution Spectroscopic Systems GmbH
B3.1 List of development results
all the development results are listed and transferred via data CD:
B3.2 Other IP rights (former Schedule B)
1.Right to use the Basic Technology ("Basis-Technologie") as defined in the Development
and License contract between OpS and biozoom, subject to the usage rights limitations set
out in Articles 4 (2) (a) and (b).
2. Worldwide, unlimited in duration, non exclusive License to use Basis-Analysis-Software,
subject totheusage rights limitations setout in Articles 4 (2) (a) and (b).
B3.3 Development results (former Schedule C)
Based on various legal stipulations, biozoom has obtained property in the developments or-
dered (Application Software, Stick and related documentation). These development results
are in detail-listed as follows:
A
1. Milestone Development Results (table of contents)
-Milestone 1-Project Kick-off
-JointVenture Agreement
2. Milestone - Approval of Opto-Mechanics I Scanning System
-Tests results regarding the feasibility ofthe motor
-Energy consumption
-Specification of electronics
-Specification of mechanics
-Specification of spectroscopic software
-Specification of optical system
3. Milestone - Concept Approval
-Simulation of optical design
-Components of stick - requirements
-Demonstrator
4. M ilestone - Cost of Stick Approval
-Cost of stick
-Optical design
5. Milestone - Accuracy of Measured Parameters approved and 1st field test
completed
-Measuring accuracy ofthe parameters: Water, fat, oxygenation,
-density of capillartes
-Implementation of Stick software
-Software collecting spectroscopic data
-Software for checking plausibility of transferred data
-Implementation ofthe analysis software
-Production of 5 Sticks (FuMu)
SCHEDULES AND EXHIBITS TO – BIOZOOM ASSET PURCHASE AGREEMENT
-Field test with 20 users and measuring of defined body locations
-SW-development plan
-Cost of stick
B
1.SCANNING DEVICE Leistungsbeschreibung, Version 26 April2006 (table of contents)
-Overall device
-Housing
-Mainboard
-Firmware
-Spectrometer
-LED board
-Sensor board
-System stabilisation
-Test concept
-Study results
-Halle 1
-Halle 0,0
-Xxxxx 0
-Xxxxx0
-Xxxxx0
-Xxxxx0
-Xxxxx
-Druckvariation
-Xxxx erh o xx xxxx n g e n
-OPS inhouse Wassermessung
-MS 5.2. Abnahme
2.Further Development results
FMEA Documents (received after 8 November 2006 (start ofliquidation ofbiozoom))
All the Assets from Schedule B, C will be transfered via data CD.
B1 List of patent and patent application of Opsolution NanoPhotonics GmbH
SCHEDULES AND EXHIBITS TO – BIOZOOM ASSET PURCHASE AGREEMENT
B3.4 Plant & Equipments
Development of the Plant & Equipment 2012
Discription
Datum
Entw. Stand zum Zugang Abschreibung
Stand zum
Inventarbezeichnung AFA-Art
der
01.01.2011 Abgang Zuschreibung
31.12.2011
R-ND
R-%
Euro
Euro
Euro
Euro
Geringwertige
Wirtschaftsgüter
GWG 2004
03.11.2004
AHK
10.903,64
10.903,64
GWG/xxxx
Absch
10.902,64
10.902,64
1/00
100,00 BW
1,00
1,00
GWG
Ansch-/Hers-K
10.903,64
10.903,64
Abchreibung
10.902,64
10.902,64
Buchwerte
1,00
1,00
GWG
Sammelposten
Lenovo Notebook
30.09.2009
AHK
312,40
312,40
GWG-Pool
Absch
126,80
63,40
190,20
5/00
20,00 BW
185,60
63,40
122,20
GWG
Ansch-/Hers-K
312,40
312,40
Sammelposten
Abchreibung
126,80
190,20
Buchwerte
185,60
63,40
122,20
Ansch-/Hers-K
11.216,04
11.216,04
Abchreibung
1.029,44
11.092,84
Buchwerte
186,60
63,40
123,20
Form of Assignments
SCHEDULES AND EXHIBITS TO – BIOZOOM ASSET PURCHASE AGREEMENT
Exhibit D
Joint Venture Agreement
SCHEDULES AND EXHIBITS TO – BIOZOOM ASSET PURCHASE AGREEMENT
