EXHIBIT 10.1
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
AMONG
SIVAULT SYSTEMS, INC.,
VIAQUO CORPORATION
AND
XXXX & XXXXXXX LLP
IN ITS CAPACITY AS ESCROW HOLDER
SOLELY WITH RESPECT TO SECTION 10 HEREOF
DATED AS OF NOVEMBER 30, 2004
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
THIS AGREEMENT FOR PURCHASE AND SALE OF ASSETS (this "Agreement"),
dated as of November 30, 2004 (the "Effective Date"), is entered into by and
among SiVault Systems, Inc. ("Buyer"), a Nevada corporation with offices at 0000
Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000, Viaquo Corporation, a
Delaware corporation with a principal place of business at 0000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000 ("Seller"), and, solely with
respect to Section 10 hereof, Xxxx & Xxxxxxx LLP, a limited liability
partnership with offices at 0000 Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 ("Escrow
Holder").
RECITALS
A. Seller is engaged in the business of developing and distributing
certain security software for the protection of information and data.
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 ViaSeal Access Control 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
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 tangible and intangible assets set forth on Schedule 1
attached hereto;
(b) All of the Intellectual Property Rights (as defined below) owned
and used by Seller in the ViaSeal Access Control Business as such
business was conducted by Seller prior to the Effective Date (the
"ViaSeal Intellectual Property Rights"); 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 November 30, 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), including rights to reproduce, and all registrations
and applications for registrations therefor.
1.6. "Encumbrance" means any mortgage, lien, pledge, encumbrance,
claim, condition or restriction, of any nature whatsoever, direct or
indirect, whether accrued, absolute, contingent or otherwise.
1.7. "Excluded Assets" means all the assets and properties of Seller
that are not included in the Assets (as defined above).
1.8. "Indemnified Person" means either a Buyer Indemnified Person (as
defined in Section 11 below) or a Seller Indemnified Person (as defined in
Section 11 below), as the case may be.
1.9. "Intellectual Property Rights" means all Copyrights, know-how,
Trade Secrets, Patent Rights, Trademarks and other intellectual property
rights, including without limitation, all inventions, enhancements,
processes, manufacturing or marketing procedures, formulae, software,
drawings, patterns, vendors lists, customer lists, customer files and
customer records.
1.10. "Legal Proceeding" means any claim, 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
1.11. "Material Adverse Effect" means any change, circumstance,
condition or event that has a material adverse effect on (i) the ViaSeal
Access Control Business or the Assets or (ii) Seller's ability to perform
its obligations under this Agreement and the other Seller Transaction
Documents; provided, however, that no such change, circumstance, condition
or event shall constitute a Material Adverse Effect if such change,
circumstance, condition or event (x) generally affects the security
software industry or the local or national economy, (y) is caused by
fluctuations in general market conditions, political environment or
economic outlooks or (z) is caused directly by Buyer.
1.12. "Patent Applications" means any patent application in the United
States or any other country described in Schedule 4 hereto and any
division, continuation, or continuation-in-part thereof.
1.13. "Patent Rights" means all worldwide issued or pending United
States and foreign patents, and all registrations, and applications
(including, without limitation, the Patent Applications, as defined above)
for registration thereof (including all reissues, Divisions,
continuations, continuations-in-part, renewals and extensions thereof).
1.14. "Person" means any individual, partnership, corporation, business
trust, limited liability company or partnership, joint stock company,
trust, unincorporated association, joint venture or entity, or
governmental body.
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1.15. "Seller Employees" means any individual employed by Seller or any
of its affiliates (if any) including the Seller Transferring Employees.
1.16. "Seller Transferring Employees" means any Seller Employees listed
on Schedule 3 attached hereto that may be transferring to Buyer pursuant
to the terms of this Agreement.
1.17. "Taxes" means any federal, state, local or foreign net income,
alternative or add-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, additional tax or additional amount imposed by
any governmental authority (domestic or foreign) responsible for the
imposition of any such tax.
1.18. "Trade Secrets" means all worldwide trade secrets and
confidential business information that has economic value as a result of
not being known to others.
1.19. "Trademarks" means all worldwide trademarks, common law
trademarks, trade names, service marks, logos, domain names or names,
common law service marks and service names, together with all
registrations and applications for registration therefor, including,
without limitation, the Trademarks listed on Schedule 1 attached hereto.
1.20. "ViaSeal Access Control Business" means that certain portion of
Seller's business relating to development, marketing, distribution and
sale of the ViaSeal Software.
1.21. "ViaSeal Software" means Versions 2.0 and 2.1 of Seller's
internet-based access permissioning software program for information
security control and management known as "ViaSeal."
2. Purchase of Assets; Consideration.
2.1. Sale and Purchase. Subject to the terms and conditions set forth
in this Agreement, on the Closing Date, Seller shall sell, convey, assign,
transfer and deliver to Buyer, free and clear of all Encumbrances, 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.
2.2. Consideration; Purchase Price Shares.
(a) Subject to the terms and conditions set forth in this Agreement,
in consideration of the Assets Buyer will issue to Seller a total of
three million fifty thousand (3,050,000) shares (the "Purchase Price
Shares") of Buyer's common stock, par value $.001 per share ("Common
Stock"). Seven hundred fifty thousand (750,000) of the Purchase Price
Shares will be issued and delivered to Seller on the Closing Date with
the remaining two million three hundred thousand (2,300,000) of the
Purchase Price Shares to be held in escrow pursuant to provisions of
Section 10 hereunder (such number of Purchase Price Shares held in
escrow shall be referred to hereinafter as the "Escrow Shares").
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(b) The Purchase Price Shares shall be subject to certain
registration rights as set forth in the Registration Rights Agreement
of even date herewith attached hereto as Exhibit C (the "Registration
Rights Agreement"). In the event that the Purchase Price Shares have
not been registered pursuant to a registration statement filed with and
declared effective by the Securities and Exchange Commission within the
6-month period following the Closing Date, Buyer shall issue Seller an
additional 40,000 shares of its Common Stock (collectively the
"Additional Shares") at the end of each month following such 6-month
period in which the Purchase Price Shares have failed to be so
registered.
(c) Any Additional Shares shall be considered as Purchase Price
Shares for all purposes of this Agreement.
2.3. Assumed and Excluded Liabilities.
(a) Subject to and in accordance with the provisions of Section 9.4,
Buyer shall assume, as of the Closing Date, the accrued vacation
obligations with respect to the Seller Transferring Employees, which
obligations are specifically identified on Schedule 2 attached hereto
(the "Assumed Liabilities").
(b) Except for the Assumed Liabilities, Buyer will not assume or
perform any liabilities or obligations of Seller. Except for the
Assumed Liabilities, Seller will absolutely and irrevocably retain and
be solely responsible for any and all liabilities and obligations of
any kind or nature, whether foreseen or unforeseen, known or unknown,
existing or which may arise in the future, fixed or contingent, matured
or unmatured of Seller arising out of the Seller's ownership, use or
possession of the Assets or Seller's conduct of the ViaSeal Access
Control Business, including, without limitation, the following (with
all of the items in this Section 2.3(b) to be collectively the
"Excluded Liabilities"):
(i) all of Seller 's accounts payable attributed to the period
prior to the Closing Date;
(ii) except for the Assumed Liabilities, any liability to any
Seller Employee including, without limitation, any liabilities or
obligations under employee benefits or compensation arrangements
arising from the employment of the Seller Transferring Employees as
of and prior to their terminations of employment with Seller;
(iii) any workers' compensation claims which relate to events
before the Closing Date;
(iv) any liability for Taxes (including Taxes that arise as a
result of the purchase and sale of the Assets) of Seller for periods
ending before the Closing Date; and
(v) any liability for inter-company obligations among the ViaSeal
Access Control Business and Seller or any other affiliate of the
Seller.
2.4. Sales and Other Taxes. Seller agrees to pay and discharge when
due, any sales, 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.
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2.5. Purchase Price Allocation. Seller and Buyer agree that the
gross purchase price shall be allocated among the Assets in a
reasonable manner consistent with Section 1060 of the Internal Revenue
Code of 1986, as amended, and the Treasury regulations thereunder (and
any similar provision of state, local or foreign law, as appropriate),
and Exhibit D (the "Allocation"), which Allocation shall include an
allocation of $5,000 to the reasonable value of tangible property used
to transfer intangible property from Seller to Buyer in accordance with
California Revenue and Taxation Code Section 6012(c)(10). Seller and
Buyer agree to file all Tax returns in a manner consistent with this
Section 2.5 and the Allocation and will not, in connection with the
filing of such Tax returns, make any allocation that is contrary to the
Allocation unless required to do so by applicable law and after prior
written notice thereof to the other party. Seller and Buyer agree to
consult with each other with respect to all issues related to the
Allocation in connection with any Tax audits, controversies, or
litigation.
3. Representations and Warranties of Seller. Except as disclosed in
Seller's Disclosure Schedule attached hereto as Exhibit A ("Seller's
Disclosure Schedule") (which shall be arranged in 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), Seller hereby represents and warrants to Buyer that as of the
Effective Date:
3.1. Organization and Good Standing. Seller is a corporation duly
organized, 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. 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.
3.2. Authority; Consents and Approvals. Seller 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 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 delivered by Seller and constitute the legal, valid and binding
obligations 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 for any filings which may be
required under applicable state or federal securities laws, no 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. The execution, delivery and 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; (ii) the creation of any material mortgage, pledge, lien,
encumbrance or charge upon any of the Assets; and (iii) 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 be expected to have a Material Adverse Effect.
3.4. Title to Assets. Seller has good valid title to (or in the case
of leased Assets, valid and enforceable leasehold interests in) all of
the Assets, free and clear of Encumbrances. Seller has full 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. Original Work. The Copyrights included in the Assets are
original works of authorship created solely by Seller and its employees
or were created by third parties who assigned ownership of their rights
to Seller pursuant to valid and enforceable agreements. To Seller's
knowledge, any and all ViaSeal Intellectual Property Rights do not
infringe any Intellectual Property Rights of any third party. To
Seller's knowledge, Seller Employees did not create all or any part of
the ViaSeal Intellectual Property Rights that constitute Assets during
the course of any employment relationship with any Person or entity
other than Seller.
3.6. Confidentiality. Seller has taken reasonable steps to maintain
in confidence the Trade Secrets included in the Assets. Except as
provided in Seller's Disclosure Schedule, Seller has granted no
licenses to source code that constitutes Assets.
3.7. Intellectual Property Rights.
(a) Description. Schedule 1 lists all Intellectual Property
Rights owned by Seller (both domestic and foreign) and used by
Seller in the ViaSeal Access Control Business, and all licenses,
sublicenses or other agreements pertaining to any Intellectual
Property Rights to which Seller is a party and used in or by the
ViaSeal Access Control Business within the past 3 years. Each of the
Patent Applications has been filed with the U.S. Patent and
Trademark Office or other appropriate office in the applicable
jurisdiction and is a current active application pending review by
such office.
(b) Title. Seller collectively owns all right, title and interest
in and to, or is licensed or otherwise possesses a valid and
enforceable right to use, all the ViaSeal Intellectual Property
Rights that constitute Assets, except to the extent that failure to
have such rights would not reasonably be expected to have a Material
Adverse Effect. Seller has full right and power to sell, convey,
assign, transfer and deliver to Buyer all of Seller's title, rights
and interest in and to such Assets free and clear of Encumbrances,
except to the extent that failure to have such right and power would
not reasonably be expected to have a Material Adverse Effect.
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(c) No Third Party Claims. Except as set forth on Seller's
Disclosure Schedule, no claims have been asserted against Seller or any
licensee of Seller, and no claims are pending against Seller or any
licensee of Seller, by any Person (i) regarding Seller's or such
licensee's use of any of the ViaSeal Intellectual Property Rights that
constitute Assets; or (ii) regarding infringement of such Person's
rights (including, without limitation, Intellectual Property Rights)
resulting from the operation of the business of the ViaSeal Access
Control Business as such business was conducted by Seller prior to the
Effective Date. There is no reasonable basis for any such asserted or
pending claims of the type specified in the immediately preceding
sentence which would have a Material Adverse Effect.
(d) Third Party Rights. Other than agreements entered into in the
ordinary course of business and which are listed on Seller's Disclosure
Schedule, Seller is not a party to any agreement pursuant to which any
third party has any right to manufacture, reproduce, distribute, market
or exploit any of the ViaSeal Intellectual Property Rights or any
adaptations, translations, or derivative works based on the ViaSeal
Intellectual Property Rights or any portion thereof.
(e) Employees. No Seller Employee is in violation of any material
term of any employment contract, patent disclosure agreement,
confidentiality, noncompetition and/or non-solicitation agreement or
any other contract or agreement with Seller or any affiliate of Seller
or, to Seller's knowledge, any former employer of such employee with
respect to the ViaSeal Intellectual Property Rights.
3.8. Errors; Product Liability. Seller has delivered, or will prior to
the 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 ViaSeal
Access Control Business have been communicated to or, to Seller's
knowledge, threatened against Seller or its licensees, nor is there any
specific situation, set of facts or occurrences that provides a reasonable
basis for such claim that has been so communicated.
3.9. Sufficiency of Assets. The Assets include all of the assets (other
than the Excluded Assets) used by Seller to operate the ViaSeal Access
Control Business as presently conducted by Seller. Except for the Excluded
Assets, the Assets to be purchased and sold hereunder constitute all of
the material tangible and intangible property used in the conduct of the
ViaSeal Access Control Business as of the date of this Agreement.
3.10. Litigation. There is no Legal Proceeding 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 would reasonably be expected to have a Material Adverse Effect.
3.11. Compliance with Laws. Seller is not in violation of any U.S.
federal, state or local statute, law, rule or regulations with respect to
the conduct of the business of the ViaSeal Access Control Business, except
for such violations that would not reasonably be expected to have a
Material Adverse Effect. 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 ViaSeal Access Control 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
Effect.
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3.12. Complete Copies of Materials. Seller has delivered to or made
available for inspection by Buyer true and complete copies (or summaries)
of each contract, agreement, license, lease and similar document included
in the Assets.
3.13. Environmental Matters. To Seller's knowledge, Seller has
conducted and is conducting its business of the ViaSeal Access Control
Business in compliance with all applicable substantive environmental laws.
3.14. Employee Matters. Each Seller Transferring Employee is employed
at will. The consummation of the purchase and sale transaction
contemplated by this Agreement will not result in an obligation on Seller
to pay severance, bonus compensation or other material benefit to any
Seller Transferring Employee and will not result in the acceleration of
the time of payment or vesting of any equity for Seller Transferring
Employees.
3.15. Taxes. With respect to any tax that is not an Excluded Liability
(if any) 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 any 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.
3.16. No Brokers. Seller is not obligated for the payment of fees or
expenses of 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.
3.17. Customers and Suppliers. Seller has not received notice from, and
to its knowledge is not otherwise aware that, (a) any customer (or, to
Seller's knowledge, group of customers under common ownership or control)
that accounted for at least 10% of the aggregate products of the ViaSeal
Access Control Business purchased during the past 18 months has stopped or
intends to stop purchasing the products or services of the ViaSeal Access
Control Business, or (b) any supplier (or, to Seller's knowledge, group of
suppliers under common ownership or control) that accounted for 10% of the
aggregate cost of materials purchased by the ViaSeal Access Control
Business during the past 18 months, has stopped or intends to stop
supplying products or services to the ViaSeal Access Control Business.
3.18. Investment-Related Representations and Warranties.
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(a) Seller is acquiring the Purchase Price Shares for investment for
Seller's own account and not with the view to, or for resale in
connection with, any distribution thereof. Seller is able to fend for
itself in transactions such as the one contemplated by this Agreement,
has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of its
prospective investment in the Purchase Price Shares, and has the
ability to bear the economic risks of such investment. Seller further
represents that by reason of its business or financial experience or
the business or financial experience of its professional advisors who
are unaffiliated with Buyer and who are not compensated by Buyer, it
has the capacity to protect its own interests in connection with the
purchase of the Purchase Price Shares. Seller understands that the
Purchase Price Shares have not been registered under the Securities Act
of 1933, as amended (the "Securities Act"), by reason of a specific
exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the
investment intent as expressed herein. Seller does not have any
contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participation to any third person with respect
to any of the Purchase Price Shares. Seller understands and
acknowledges that the offering of the Purchase Price Shares pursuant to
this Agreement will not be registered under the Securities Act on the
ground that the sale provided for in this Agreement and the issuance of
securities hereunder is exempt from the registration requirements of
the Securities Act.
(b) Seller acknowledges that the Purchase Price Shares must be held
indefinitely unless subsequently registered under the Securities Act or
an exemption from such registration is available. Seller is aware of
the provisions of Rule 144 promulgated pursuant to the Securities Act
which permit limited resale of shares purchased in a private placement
subject to the satisfaction of certain conditions. Seller covenants
that, in the absence of an effective registration statement covering
the Purchase Price Shares, Seller will sell, transfer, or otherwise
dispose of the Purchase Price Shares only in a manner consistent with
Seller's representations and covenants set forth in this Section 3.18.
In connection therewith, Seller acknowledges that Buyer will make a
notation on its stock books regarding the restrictions on transfers set
forth in this Section 3.18 and will transfer securities on the books of
Buyer only to the extent not inconsistent therewith.
(c) Seller received and reviewed such information about Buyer and
has had an opportunity to discuss Buyer's business, management and
financial affairs with its management and to review the Buyer's
facilities, and to conduct such investigation into the business and
prospects of Buyer as Seller deems relevant, including receipt of the
representations and warranties of Buyer under this Agreement. Seller
accepts the responsibility for conducting such an investigation. To the
extent Seller has not sought information regarding any particular
matter, Seller hereby represents that it had no interest in doing so
and that such matters are not material to it in connection with its
investment.
(d) Seller meets the suitability standards pursuant to Section
25102(f) of the California Corporations Code.
(e) Seller acknowledges that the transactions contemplated herein
may have significant federal, state or other tax consequences upon
Seller, and that no advice as to what such tax consequences may be has
been given by Buyer. Seller has been advised to consult with its own
tax advisors concerning its own particular tax consequences of the
transactions contemplated herein.
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3.19. Full Disclosure. Seller has not withheld from Buyer any material
facts or information relating to the Assets and/or the Assumed Liabilities
that has been requested by Buyer. To the Seller's knowledge and belief,
there are no facts which (individually or in the aggregate) materially
adversely affect the Assets and/or the Assumed Liabilities that have not
been set forth in the Agreement, the Exhibits and Schedules hereto or in
other documents expressly delivered to Buyer or their attorneys or agents
in connection herewith. None of the representations, warranties or
statements made by Seller in 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 this Agreement
contains or will contain any untrue statement of a material fact or omits
or will omit any material fact necessary in order to make the statements
contained therein not misleading in light of the circumstances under which
they were made.
4. Representations and Warranties of Buyer. Except as disclosed in Buyer's
Disclosure Schedule attached hereto as Exhibit B ("Buyer's Disclosure
Schedule") (which shall be arranged in 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), 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, validly existing and in good standing under the laws of Nevada
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 the other Buyer Transaction Documents
and to consummate the transactions contemplated hereby and thereby, and
such 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 delivered by Buyer and constitute the legal,
valid and binding obligations of Buyer enforceable against Buyer 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. 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. No vote of the holders of Common Stock is required to authorize
the issuance of any Purchase Price Shares.
4.3. No Breach or Violation. Buyer is not in violation of any term of
its 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 bound, 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.
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4.4. Litigation. There is no Legal Proceeding pending or, to Buyer's
knowledge, threatened (a) against or by Buyer, 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 Legal Proceeding which has had or would reasonably be
likely to have a material adverse effect on its ability to consummate the
transactions contemplated hereby or conduct its business as currently
conducted or proposed to be conducted.
4.5. No Brokers. Buyer is not obligated for the payment of fees or
expenses of 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.
4.6. Offering; Shares. Subject to the accuracy of Seller's
representations in Section 3.18 hereof, the offer, sale and issuance of
the Purchase Price Shares, constitute transactions exempt from the
registration requirements of Section 5 of the Securities Act.
4.7. Disclosure. Buyer has fully provided Seller with all the
information that Seller have requested for deciding whether to acquire the
Purchase Price Shares and all information that Buyer believes is
reasonably necessary to enable Seller to make such a decision. No
representation or warranty of Buyer contained in this Agreement and the
exhibits and schedules attached hereto, or any certificate furnished or to
be furnished to Seller at the Closing, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material
fact necessary in order to make the statements contained herein or therein
not misleading in light of the circumstances under which they were made.
4.8. Capitalization. The authorized capital stock of Buyer and the
number of issued and outstanding shares of Buyer are as set forth in the
Buyer's Disclosure Schedule. The Purchase Price Shares have been duly
authorized and reserved for issuance and, upon issuance thereof in
accordance with this Agreement, will be validly issued, fully paid and
nonassessable. Except as set forth in the Buyer's Disclosure Schedule,
Buyer has no existing options, warrants, calls, preemptive rights,
subscriptions or other rights, convertible securities, agreements or
commitments of any character obligating Buyer to issue, transfer or sell
any shares of capital stock or other equity interest in Buyer or
securities convertible into or exchangeable for such shares or equity
interests. The Buyer's Disclosure Schedule lists all registration rights
granted by Buyer with respect to shares of its capital stock.
4.9. SEC Compliance; Financial Statements.
(a) Except as set forth on Schedule 4.9(b), since January 1, 2004,
all statements, reports, schedules, forms and other documents required
to have been filed by Buyer (collectively, the "SEC Documents") with
the Securities and Exchange Commission ("SEC") have been so filed on a
timely basis (within applicable extension periods). As of the time it
was filed with the SEC (or, if amended or superseded by a filing prior
to the date of this Agreement, then on the date of such filing): (i)
each of the SEC Documents complied in all material respects with the
applicable requirements of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), (as applicable),
including the provision of all statements and certifications required
by the Xxxxxxxx-Xxxxx Act of 2002 (the "Xxxxxxxx-Xxxxx Act"), and (ii)
none of the SEC Documents, at the time they were filed with the SEC,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
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(b) As of their respective dates, the financial statements
(including any related notes) contained in the SEC Documents: (i)
complied as to form in all material respects with the published rules
and regulations of the SEC applicable thereto, including the
Xxxxxxxx-Xxxxx Act; (ii) were prepared in accordance with U.S.
generally accepted accounting principles applied on a consistent basis
during the periods covered (except as may be otherwise indicated in
such financial statements or in the notes to such financial statements
or, in the case of unaudited interim statements, as permitted by Form
10-Q of the SEC, and except that the unaudited financial statements may
not contain footnotes and are subject to normal and recurring year-end
adjustments that will not, individually or in the aggregate, be
material in amount); (iii) fairly present in all material respects the
consolidated financial position of Buyer and its consolidated
subsidiaries as of the respective dates thereof and the consolidated
results of operations and cash flows of Buyer and its consolidated
subsidiaries for the periods covered thereby; and (iv) were accompanied
by true, correct and complete certifications required to be filed or
submitted by the Company's chief executive officer and chief financial
officer pursuant to and in compliance with the Xxxxxxxx-Xxxxx Act.
(c) To Buyer's knowledge, the Buyer has been and continues to be in
compliance with all applicable provisions of the Xxxxxxxx-Xxxxx Act.
Buyer has not received any notice from the SEC regarding, and is not
aware of, any investigation by the SEC with respect to Buyer or any of
its SEC Documents.
4.10. Condition of Tangible Assets. Buyer acknowledges and agrees that
(i) all tangible personal property, including machinery and equipment,
included in the Assets is delivered on an "as is, where is" basis, (ii)
Seller has made no representation or warranty as to the condition of any
such Asset, and (iii) Buyer purchases and accepts such Assets on that
basis.
5. Legend; Market Stand-Off.
5.1. Seller hereby acknowledges and agrees that, until the registration
statement contemplated by Section 2.2(b) is declared effective by the SEC,
each certificate representing the Purchase Price Shares may be endorsed
with the following legends:
(a) THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES
LAWS. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY
AND RESALE AND MAY NOT BE TRANSFERRED, SOLD, OFFERED FOR SALE, PLEDGED
OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THESE SECURITIES UNDER THE ACT OR APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS.
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(b) any legend required by the laws of the State of California,
including any legend required by the California Department of
Corporations or any other state securities laws.
(c) Seller further acknowledges and agrees that, except as provided
in the Registration Rights Agreement, Buyer need not register a
transfer of legended Purchase Price Shares and may also instruct its
transfer agent not to register the transfer of the Purchase Price
Shares unless the conditions specified in each of the foregoing legends
are satisfied. Any legend endorsed on a certificate as described herein
and the stop transfer instructions with respect to such legended
Purchase Price Shares shall be removed, and Buyer shall issue a
certificate without such legend to the holder of such Purchase Price
Shares if such Purchase Price Shares are registered under the
Securities Act and a prospectus meeting the requirements of Section 10
of the Securities Act is available or if such holder satisfies the
requirements of Rule 144 promulgated thereunder.
5.2. Seller agrees that in connection with any registration of the
Purchase Price Shares Seller will not sell, make any short sale of, loan,
pledge (or otherwise encumber or hypothecate), grant any option for the
purchase of, or otherwise directly or indirectly dispose of any Purchase
Price Shares without the prior written consent of Buyer until the
expiration of the 6-month period following the Closing Date.
6. Pre-Closing Covenants. Buyer and Seller each agree (except as expressly
contemplated by this Agreement or to the extent that both parties shall
otherwise consent in writing) that, unless specifically stated otherwise in
this Section 6, until the Closing or the termination of this Agreement,
whichever shall first occur:
6.1. Access and Investigation by Buyer. Upon reasonable advance notice
received from Buyer, Seller shall (a) afford Buyer and its representatives
reasonable access, during regular business hours, to the employees and the
Books and Records of the ViaSeal Access Control Business, subject to
confidentiality obligations and provided that such access does not
unreasonably interfere with the operations of Seller, and (b) furnish
Buyer and its representatives with copies of all such Books and Records,
and other existing data relating primarily to the ViaSeal Access Control
Business as Buyer may reasonably request, subject to confidentiality
obligations.
6.2. Access and Investigation by Seller. Upon reasonable advance notice
received from Seller, Buyer shall afford Seller and its representatives
reasonable access, during regular business hours, to the Books and Records
of Buyer, subject to confidentiality obligations and provided that such
access does not unreasonably interfere with the operations of Buyer.
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6.3. Ordinary Course. Subject to the limitations set forth in Sections
6.5 through 6.7 below, Seller shall use commercially reasonable efforts to
conduct the business of the ViaSeal Access Control Business in the
ordinary course consistent with past practices. Seller (i) will not sell,
encumber, pledge, license or otherwise transfer or assign any of the
Assets, including the ViaSeal Intellectual Property Rights 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, will use commercially reasonable efforts
to: preserve intact its business organization; preserve its relationships
with its suppliers, customers and others with whom it deals in the ViaSeal
Access Control Business; continue to develop the ViaSeal Access Control
Business in the ordinary course; and keep available its present employees
and consultants engaged in connection with the ViaSeal Access Control
Business.
6.4. Maintenance and Insurance. Seller will continue to carry its
existing insurance (to the extent it relates to the ViaSeal Access Control
Business and/or any of the Assets), subject to variations in amounts
required by the ordinary operations of its business.
6.5. Payment of Liabilities and Waiver of Claims. To the extent any of
Seller's current liabilities, material rights, material claims, notes,
loans and/or any other material obligations owed to Seller are materially
related to the Assets and/or the ViaSeal Access Control Business, Seller
shall not do, or agree to do, any of the following acts: (i) waive or
compromise any material right or material claim; or (ii) cancel without
full payment, any note, loan or other material obligation owing to Seller.
6.6. Employees and Compensation. Seller shall not do, or agree to do,
any of the following acts without Buyer's written consent: (i) grant any
increase in salaries payable or to become payable to any Seller
Transferring Employee, (ii) increase benefits payable to any Seller
Transferring Employee under any bonus or pension plan or other contract or
commitment, or (iii) modify any collective bargaining agreement to which
Seller is a party or by which Seller may be bound.
6.7. New Transactions. Seller shall not, without Buyer's written
consent, do or agree to do any of the following acts, in each case, as
such act relates to the ViaSeal Access Control Business:
(a) Enter into any contract, commitment or transaction not in the
usual and ordinary course of its business;
(b) Enter into any contract, commitment or transaction in the usual
and ordinary course of business involving an amount exceeding $10,000,
individually, or $25,000 in the aggregate;
(c) Make any capital expenditures in excess of $5,000 for any single
item or $10,000 in the aggregate, or enter into any leases of capital
equipment or property under which the annual lease charge is in excess
of $5,000; or
(d) Sell or dispose of any capital assets with a net book value in
excess of $5,000, individually, or $10,000 in the aggregate.
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6.8. Confidentiality. Buyer and Seller shall maintain in confidence,
and shall 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, including without limitation all other
non-public information related to the Assets obtained in connection with
the transactions contemplated hereby (the "Confidential Information"),
unless such party can document (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, or (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.
6.9. Employment.
(a) Resignations. Except as noted in Schedule 3, Seller and each of
the Seller Transferring Employees will execute and deliver the
Resignation Agreement in substantially the form attached hereto as
Exhibit E (the "Resignation Agreement").
(b) Benefits. Seller will take commercially reasonable steps to
ensure that each Seller Transferring Employee who has executed the
Resignation Agreement will receive, prior to or upon the Closing, all
payments due at the Closing Date or due and payable with respect to any
period ending at or prior to the Closing Date, including all bonuses,
if any, but excluding accrued vacation pay comprising the Assumed
Liabilities.
6.10. Assignment of Patent Applications.
(a) On the Closing Date, Seller shall assign to Buyer all of
Seller's right, title and interest in and to all of the Patent
Applications and will execute any and all assignments and all other
instruments which Buyer shall deem necessary in order to assign and
convey to Buyer the sole and exclusive rights, title and interest in
and to all of the Patent Applications. Seller hereby waives and
irrevocably quitclaims to Buyer any and all claims, of any nature
whatsoever, which Seller now or hereafter has for infringement of any
and all proprietary rights assigned to Buyer herein.
6.11. Further Action; Filing. Each party shall use commercially reasonable
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 7 within such party's control and effect the
closing as set forth in Section 8. 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 in
connection with any such requirements. Each party will use commercially
reasonable efforts to obtain (and will cooperate with each other in
obtaining) any consent, approval, order or authorization from, and will use
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.
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7. Conditions Precedent to Closing.
7.1. 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 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 s hall 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.
(b) Performance of Obligations. Seller will have performed,
satisfied and complied with 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, 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 certificates, instruments, schedules and other documents required
to be delivered to Buyer at Closing under Sections 8.2 (b) through (k)
of this Agreement.
(e) Compliance Certificate. Seller shall have delivered to Buyer a
certificate, dated the Closing Date, signed by an authorized officer of
Seller, certifying to the fulfillment of the conditions specified in
Sections 7.1(a) - (d) and (f) - (m).
(f) No Injunctions. No court of competent jurisdiction shall have
issued or 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) Registration Rights Agreement. Seller shall execute a
counterpart signature page to the Registration Rights Agreement.
(h) Consents and Releases. All consents, approvals, waivers and
releases from all governmental authorities and other persons, if any,
shall have been obtained and shall be reasonably satisfactory in form
and substance to Buyer and its counsel.
(i) Resignation Agreement. Except as noted in Schedule 3, Seller and
each of the Seller Transferring Employees shall have executed and
delivered the Resignation Agreement.
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(j) Employment Agreements. Except as noted in Schedule 3, Each
Seller Transferring Employee shall have executed and delivered to Buyer
an Employment, Confidential Information, Invention Assignment, and
Arbitration Agreement in such form as requested by the Buyer (the
"Employment Agreement").
(k) Opinion of Seller's Counsel. Buyer shall have received from
Xxxxxxx XxXxxxxxx LLP, counsel for Seller, an opinion dated the Closing
Date, substantially in the form attached hereto as Exhibit F.
(l) License Agreement. Seller shall have executed and delivered to
Buyer a Source Code License Agreement in the form attached hereto as
Exhibit I (the "License Agreement").
(m) License Termination Agreement. Seller shall have executed and
delivered to Buyer a License Termination Agreement and Release in the
form attached hereto as Exhibit J (the "License Termination Agreement")
for the termination of that certain Viaquo-SiVault Strategic Partnering
and ASP License Agreement dated May 13, 2004 between the parties.
7.2. Conditions to Obligations of Seller. The obligations of Seller
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 Seller, 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 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.
(b) Performance of Obligations. Buyer will have performed, satisfied
and 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 certificates, instruments, schedules and other documents required
to be delivered to Seller at Closing under Sections 8.3(a) through (h)
of this Agreement.
(e) Compliance Certificate. Buyer shall have delivered to Seller a
certificate, dated the Closing Date, signed by an authorized officer of
Buyer, certifying to the fulfillment of the conditions specified in
this Section 7.2(a) - (d) and (f) - (k).
(f) No Injunctions. No court of competent jurisdiction shall have
issued or 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.
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(g) Registration Rights Agreement. Buyer shall have executed and
delivered to Seller the Registration Rights Agreement.
(h) License Agreement. Buyer shall have executed and delivered to
Seller the License Agreement.
(i) Opinion of Buyer's Counsel. Seller shall have received from each
of the Law Offices of Xxxxxx X. Xxxx and Xxxx & Xxxxxxx LLP, counsels
for Buyer, an opinion dated the Closing Date, substantially in the form
attached hereto as Exhibit G.
(j) License Termination Agreement. Buyer shall have executed and
delivered to Seller the License Termination Agreement.
8. The Closing.
8.1. Time and Place. Unless this Agreement shall have been terminated
in accordance with Section 12 hereof, the Closing shall take place at the
offices of Xxxx & Xxxxxxx LLP, 0000 Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx
00000, at 10:00 a.m., Pacific Standard Time, on the Closing Date, or at
such other place or time as Buyer and Seller may agree.
8.2. Seller's Actions at the Closing. At the Closing, Seller will
deliver or cause to be delivered to Buyer the following:
(a) Possession of the Assets;
(b) An original Registration Rights Agreement in substantially the
form of Exhibit C, executed by an authorized officer of Seller.
(c) An original Xxxx of Sale in substantially the form of Exhibit H
("Xxxx of Sale") executed by an authorized officer of Seller;
(d) An original assignment of the U.S. Patent Application to Buyer
executed by an authorized officer of Seller;
(e) Resignation Agreement executed by Seller and the Seller
Transferring Employees as required pursuant to Section 6.9(a), except
as noted in Schedule 3;
(f) Employment Agreements executed by the Seller Transferring
Employees as required pursuant to Section 7.1(j) , except as noted in
Schedule 3;
(g) The opinion of Seller's counsel, dated as of the Closing Date as
provided for in Section 7.1(k);
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(h) An original License Agreement executed by an authorized officer
of Seller;
(i) An original License Termination Agreement executed by an
authorized officer of Seller; and
(j) Such additional duly executed instruments of conveyance,
assignment or transfer of title requested by Buyer as may be necessary
to transfer and assign to Buyer all of Seller's right, title and
interest in the Assets, including assignments of specific ViaSeal
Intellectual Property Rights, to Buyer, in forms reasonably acceptable
to Buyer, including a Trademark Assignment.
8.3. Buyer's Actions at the Closing. At the Closing, Buyer will deliver
or cause to be delivered to Seller the following:
(a) A stock certificate representing 750,000 shares of the Purchase
Price Shares;
(b) Two stock certificate representing the 2,050,000 shares of the
U.S. Patent Escrow Shares and the 250,000 shares of the EU Patent
Escrow Shares being delivered to the escrow contemplated by Section 10
below;
(c) An original License Agreement executed by an authorized officer
of Buyer;
(d) An original Xxxx of Sale (Exhibit H) executed by an authorized
officer of Buyer;
(e) An original Registration Rights Agreement in substantially the
form of Exhibit C, executed by an authorized officer of Buyer;
(f) The opinion of Buyer's counsel, dated as of the Closing Date as
provided for in Section 7.2(i); and
(g) An original License Termination Agreement executed by an
authorized officer of Buyer.
8.4. Passage of Title. Legal and equitable title and risk of loss with
respect to all of the Assets shall pass to Buyer at the Closing.
9. Post-Closing Covenants. Conditioned upon the Closing, and beginning
with the day following the Closing Date, Buyer and Seller agree that:
9.1. 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 and 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 more completely effect the assumption by Buyer
of the Assumed Liabilities. In each case, the requesting party shall pay
or reimburse the other party for all reasonable expenses incurred by such
other party in connection herewith.
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9.2. Non-Competition.
(a) For the period beginning on the Closing Date and ending five (5)
years thereafter, without Buyer's prior written consent, Seller shall
refrain from, alone or in conjunction with any other Person, directly
or indirectly engaging in (other than through the ownership of two
percent (2%) or less of any class of securities registered under the
Exchange Act, other than Buyer), or otherwise knowingly assisting any
Person in engaging throughout the entire United States as well as
anywhere in the world outside the United States where the Buyer or any
subsidiary of the Buyer conducts business (collectively, the
"Territory"), in the design, testing, marketing, sale or licensing of
any product or service competing with the ViaSeal Access Control
Business as conducted by Seller as of prior to the Closing Date and/or
as shall be conducted, or intended to be conducted, by Buyer after the
Closing Date; provided, however, that this Section 9.2 shall not apply
to Seller's continuing operations in the Secured Content Business from
and after the Closing Date or Seller's activities involving the ViaSeal
Software (and its associated documentation) permitted under and in
accordance with the License Agreement, neither of which activities
shall constitute a breach of this Section 9.2. For purposes hereof, the
"Secured Content Business" means the business relating to the secured
electronic distribution of entertainment-directed audio, video,
photographic and gaming digital content conveyed via cable, over the
air, satellite, Internet, cellular or other transmission media.
(b) The covenants contained in the preceding paragraphs shall be
construed as a series of separate covenants, one for each county, city,
state, or any similar subdivision in the Territory. Except for
geographic coverage, each such separate covenant shall be deemed
identical in terms to the covenant contained in the preceding
paragraphs. If, in any judicial proceeding, a court refuses to enforce
any of such separate covenants (or any part thereof), then such
unenforceable covenant (or such part) shall be eliminated from this
Section 9.2 to the extent necessary to permit the remaining separate
covenants (or portions thereof) to be enforced. In the event that the
provisions of this Section 9.2 are deemed to exceed the time,
geographic or scope limitations permitted by applicable law, then such
provisions shall be reformed to the maximum time, geographic or scope
limitations, as the case may be, permitted by applicable laws.
(c) Seller acknowledges that the limitations of time, geography, and
scope of activity agreed to in this Section 9.2 are reasonable because,
among other things, (i) Buyer is engaged in a highly competitive
industry, (ii) Seller has had unique access to the trade secrets and
know-how included in the Assets, including without limitation the plans
and strategy (and in particular the competitive strategy) of the
ViaSeal Access Control Business, and (iii) Seller is receiving
significant compensation in connection with the transfer of the Asset.
20
(d) Seller agrees that it would be impossible or inadequate to
measure and calculate the Buyer's damages from any breach of the
covenants set forth in this Section 9.2, and that the Buyer would be
irreparably harmed by any such breach. Accordingly, Seller agrees that
if it breaches any provision of this Section 9.2, Buyer will have
available, in addition to any other right or remedy otherwise
available, the right to obtain an injunction from a court of competent
jurisdiction restraining such breach or threatened breach and to
specific performance of any such provision of this Section 9.2. Seller
further agrees that no bond or other security shall be required in
obtaining such equitable relief, nor will proof of actual damages be
required for such equitable relief. Seller hereby expressly consents to
the issuance of such injunction and to the ordering of such specific
performance.
9.3. Unassignable Assets. To the extent that any Asset 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, and shall be solely responsible for the payment of any consent
fee or fees associated with the assignment or waiver. 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.
9.4. Seller Transferring Employees. On the Closing Buyer shall offer
employment to each of the Seller Transferring Employees (except as
otherwise noted in Schedule 3), provided each such employment shall be on
an at-will basis subject to performance review within 30 to 60 days of
employment commencement date, and conditioned upon the respective Seller
Transferring Employee executing the Resignation Agreement and an
Employment Agreement as provided in Sections 6.9(a), 7.1(i) and 7.1(j)
above. Buyer agrees and confirms that, if any Seller Transferring Employee
is not hired by Buyer on or after the Closing Date, then in connection
with the termination of such Seller Transferring Employee's employment
with Seller after the Closing Date and in accordance with Section 2.3(a),
Buyer will either (a) assume the accrued vacation obligation with respect
to such Seller Transferring Employee as and to the extent set forth on
Schedule 2, provided that, at such time, Buyer hires such Seller
Transferring Employee as an employee of Buyer, or (b) for and on behalf of
Seller, pay to such Seller Transferring Employee the amount of the accrued
vacation obligation with respect to such Seller Transferring Employee set
forth on Schedule 2.
9.5. Foreign Qualification. As soon as practicable after the Closing,
Buyer shall execute and file the necessary documents and instruments with
the California Secretary of State and take such other actions (including
the payment of applicable fees) as may be necessary or advisable in order
to qualify Buyer to do business in California.
9.6. Prosecution of the Patent Applications. At its expense and for no
further consideration, Buyer will diligently take any and all actions
which may be required in order to complete the prosecution process of the
U.S. Patent Application (as defined in Schedule 4 hereunder) and the EU
Patent Application (as defined in Schedule 4 hereunder) and the issuance
of patents thereunder.
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9.7. Assignment of Foreign Patent Applications. During the two-week
period following the Closing Date, Seller shall file with any applicable
foreign authorities any documentation required to initiate the assignment
from Seller to Buyer of any and all non-U.S. Patent Applications specified
on Schedule 4 and will deliver all such documentation to Buyer's counsel
at the law firm of Xxxx & Xxxxxxx LLP at the address set forth in Section
13.3 (Notice) hereunder. From time to time after the Closing Date, Seller
will, at its expense, execute and deliver such further instruments of
conveyance and transfer and will take all such other actions as may be
necessary in order to transfer and assign to Buyer all right, title and
interest in and to any non-U.S. Patent Application in a timely manner
after the Closing.
9.8. Dissenters' Rights. Following the Closing, Seller will mail in a
timely manner to the appropriate stockholders notice of the stockholder
approval of the sale of the Assets and such other information as provided
in Section 1300 et seq. of the California General Corporation Law
regarding dissenters' rights.
9.9. ViaSeal Support. From and after the Closing and at such times as
Seller may request, Buyer shall provide to Seller the ViaSeal Software and
licenses thereto as Seller may require in order to perform any of its
obligations under any of the agreements identified in Section 3.7(d) of
the Seller's Disclosure Schedule on the terms and conditions set forth in
any such agreement and only to the extent any such agreement has not
expired or been terminated or superceded. In connection therewith, Buyer
shall take such other actions as Seller shall reasonably request to assist
or permit Seller to perform its obligations under such agreements. As soon
as practicable following the Closing, Buyer will negotiate in good faith
with B2B Solutions Limited ("B2B") and will use commercially reasonable
efforts to enter into a license agreement for ViaSeal Software with B2B
containing terms to Buyer's reasonable satisfaction. As a condition to
entering into each such license agreement, Buyer shall require that B2B
terminate any and all agreements it may have with Seller so that neither
party thereto shall have any further rights or obligations thereunder.
10. Escrow.
At Closing, Buyer will deliver the Escrow Shares into escrow with the
Escrow Holder.
10.1. Two Million Fifty Thousand (2,050,000) shares of the Escrow
Shares (the "U.S. Patent Escrow Shares") will be held in escrow by the
Escrow Holder until the earlier to occur of: (i) the issuance of a patent
(the "U.S. Patent") from the U.S. Patent Application (as defined in
Schedule 4 attached hereto), or (ii) the abandonment by Buyer of the U.S.
Patent Application following final rejection thereof by the U.S. Patent
and Trademark Office (the "U.S. Patent Escrow Period"); provided, however,
that in the event of issuance of the U.S. Patent prior to the 12-month
anniversary of the Closing Date, the U.S. Patent Escrow Period will
automatically be extended until such 12-month anniversary of the Closing
Date and the U.S. Patent Escrow Shares will remain in escrow until such
time to cover any indemnification obligations of Seller pursuant to
Section 11 below. Subject to the limitation in the immediately preceding
sentence on the release of the U.S. Patent Escrow Shares, if, and only if,
the U.S. Patent issues from the U.S. Patent Application, the U.S. Patent
Escrow Shares less the amount of any Escrow Shares then held back to cover
any Unresolved Claims (as defined in and pursuant to Section 11 below),
and constituting, for the purposes of this Agreement, a reduction in the
Purchase Price Shares, will immediately get released by the Escrow Holder
and transferred to the Seller at the end of the U.S. Patent Escrow Period.
If Buyer abandons the U.S. Patent Application following final rejection
thereof, ownership in the U.S. Patent Escrow Shares will automatically and
immediately revert back to Buyer and the U.S. Patent Escrow Shares will be
immediately released by the Escrow Holder to Buyer's possession. Seller
hereby acknowledges and agrees that, other than Buyer's obligations under
Section 9.6 above, the issuance of the U.S. Patent is beyond Buyer's
control and that, therefore, the foregoing U.S. Patent Escrow Shares may
be held in escrow for an extensive period of time.
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10.2. The remaining Two Hundred Fifty Thousand (250,000) shares of the
Escrow Shares (the "EU Patent Escrow Shares") will be held in escrow by
the Escrow Holder until the earlier to occur of: (i) the issuance by the
European Patent Office of a Decision to Grant a European Patent pursuant
to Article 97(2)EPC with respect to the EU Patent Application (as defined
in Schedule 4 attached hereto), or (ii) the abandonment by Buyer of the EU
Patent Application following a final refusal by the European Patent Office
to grant the EU Patent (the "EU Patent Escrow Period"). Except as provided
below, if, and only if, the European Patent Office issues a Decision to
Grant a European Patent, the EU Patent Escrow Shares less the amount of
any Escrow Shares then held back to cover any Unresolved Claims (pursuant
to Section 11 below), and constituting, for the purposes of this
Agreement, a reduction in the Purchase Price Shares, will immediately get
released by the Escrow Holder and transferred to the Seller at the end of
the EU Patent Escrow Period. If Buyer abandons the EU Patent Application
following final refusal thereof, ownership in the EU Patent Escrow Shares
will automatically and immediately revert back to Buyer and the EU Patent
Escrow Shares will be immediately released by the Escrow Holder to Buyer's
possession. Notwithstanding the foregoing, in the event that no
determination is reached by the European Patent Office with respect to the
EU Patent Application within the 12-month period following the date of
issuance of the U.S. Patent or the date of final rejection of the U.S.
Patent Application, then the EU Patent Escrow Shares (subject to any
amount of Escrow Shares then held back for Unresolved Claims pursuant to
Section 11 below) will immediately get released by the Escrow Holder and
transferred to the Seller at the end of such 12-month period, regardless
of the status of the EU Patent Application.
11. Limitation of Liability; Indemnification.
11.1. Survival of Representations and Warranties. Except for any claims
based upon, arising out of or in connection with any fraud or any willful
misrepresentation relating to any of the representations, warranties,
agreements or covenants made by Seller in this Agreement (which claims
shall survive indefinitely), the representations and warranties of Seller
and Buyer set forth in Sections 3 and 4 (respectively) shall survive the
Closing for a period of 12 months. All post-Closing covenants and
agreements (other than representations and warranties) shall survive the
Closing in accordance with their respective terms.
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11.2. Indemnification by Seller. 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 claims of third
parties based on: (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) an infringement by the ViaSeal Intellectual Property
Rights of a third party's Patent Rights or other third party Intellectual
Property Rights; or (iv) any Excluded Liabilities (each an "Indemnifiable
Claim" and collectively "Indemnifiable Claims"). Any Damages resulting
from any Indemnifiable Claim for which Buyer is entitled to
indemnification pursuant to and in accordance with this Section 11 shall
be paid to Buyer solely out of any Escrow Shares held by Escrow Holder
pursuant to Section 10 above at the time of initiation of the Legal
Proceeding giving rise to the Indemnifiable Claim. If upon expiration of
the U.S Escrow Period and/or the EU Escrow Period any Indemnifiable Claims
are pending or unresolved at the time of such expiration (each, an
"Unresolved Claim"), Buyer shall be entitled to withhold from any Escrow
Shares otherwise due to Seller a portion of such Escrow Shares equal to
100% of each Unresolved Claim until such time as the amount due (if
anything) under such Unresolved Claim is finally resolved in accordance
with this Section 11. For the purposes of determining the number of shares
of Escrow Shares to be disbursed to Buyer out of the Escrow Shares, the
shares of Buyer's Common Stock shall be deemed to have a value of $3.00
per share. Accordingly, absent fraud or willful misrepresentation by
Seller, with respect to any Indemnifiable Claim, Seller shall not be
liable for any Damages in excess of an amount equal to the amount of
Escrow Shares held by Buyer at the time of initiation of the Legal
Proceeding giving rise to such Indemnifiable Claim multiplied by $3.00,
less any such shares that may be distributed to Buyer in satisfaction of
earlier Indemnifiable Claims.
11.3. 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 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 (i) any misrepresentation or inaccuracy in or breach of any
of the representations or warranties given or made by Buyer in this
Agreement; or (ii) any breach of any covenant or obligation of Buyer in
this Agreement.
11.4. Procedure for Indemnification-Third Party Claims.
(a) In the event an Indemnified Person becomes aware of an action or
proceeding (including without limitation, an Indemnifiable Claim)
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 11
except to the extent such failure adversely affects the indemnifying
party's ability to defend its interests in such Third Party Claim.
(b) If the indemnifying party notifies in writing the Indemnified
Person within ten (10) business days of receipt of a notice by such
Indemnified Person of an Third Party Claim that the indemnifying party
desires to defend the Indemnified Person with respect to such Third
Party Claim, then the indemnifying party 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
furnish 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; provided, 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 Person 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.
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(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 an 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 be unreasonably withheld or
delayed), pay, compromise or settle any other action or proceeding
involving an 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 hereunder and shall
obtain a release of the indemnifying party from and against any
liability as a consequence of such action or proceeding.
11.5. Procedure for Indemnification - Other Claims. A claim for
indemnification for any matter not involving an Third Party Claim shall be
made by delivering 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.
11.6. Remedies. Nothing in this Agreement shall be construed as
limiting in any way the remedies that may be available to either party in
the event of fraud or willful misrepresentation relating to any of the
representations, warranties, agreements or covenants made by the other
party in this Agreement. In addition, in no event will any party to this
Agreement be liable for special, consequential or indirect damages
relating to or arising out of this Agreement, except for such damages
arising out of actual fraud or willful misrepresentation.
12. Termination.
12.1. Mutual Agreement. This Agreement may be terminated and abandoned
(i) at any time prior to the Closing Date by the mutual written consent of
both Seller and Buyer or (ii) by either party if the Closing shall not
have been consummated on or before December 5, 2004.
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12.2. Termination by Buyer. This Agreement may be terminated by Buyer
by written notice to Seller in the event that any one or more of the
conditions set forth in Section 7.1 ("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.
12.3. Termination by Seller. This Agreement may be terminated by Seller
by written notice to Buyer in the event that any one or more of the
conditions set forth in Section 7.2 ("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.
12.4. Effect of Termination; Return of Proprietary Information. Upon
any termination, neither party shall have any obligation whatsoever, other
than under Sections 6.8 ("Confidentiality"), 13.8 ("Venue for Dispute
Resolution"), 13.9 ("Governing Law") and 13.10 ("Attorneys' 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 6.8 ("Confidentiality").
12.5. 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.
13. General Provisions.
13.1. 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 13.1.
Buyer may assign this Agreement (other than the obligation of Buyer to
issue and register the Purchase Price Shares) 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.
13.2. 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.
13.3. 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,
nationally recognized overnight courier or 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:
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To Seller at: Viaquo Corporation
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx,
Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: 000-000-0000
To Buyer at: SiVault Systems, Inc.
0000 Xxxxx Xxxxx Xxxxxx, Xxxxxx 000, Xxx Xxxx,
Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxx
Facsimile: 000-000-0000
with copy to: Xxxxx X. Xxxx, Esq.
Xxxx & Xxxxxxx LLP
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
13.4. Entire Agreement and Modification. This Agreement (including its
Exhibits and Schedules) constitutes 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 Schedules) may only be amended by a
written instrument signed by Buyer and Seller.
13.5. 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.
13.6. 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 bind the other in any manner whatsoever.
This Agreement confers no rights upon either party except those expressly
granted herein.
13.7. 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.
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13.8. 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 federal or state courts located in the
Northern District of California or Santa Xxxxx County, California,
respectively, and to the respective appellate courts thereof in connection
with any appeal therefrom.
13.9. Governing Law. This Agreement shall be governed by and construed
in accordance with the internal substantive laws of the State of
California, without regard to its choice of law principles.
13.10. 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
attorneys' fees and costs incurred in litigating, arbitrating, or
otherwise settling or resolving such dispute.
13.11. Severability. If any provision of this Agreement or the
application thereof, shall for any reason and to any extent be determined
by a court of competent jurisdiction to be invalid or unenforceable under
applicable law, the remaining provisions of this Agreement shall be
interpreted so as best to reasonably effect the intent of the parties
hereto. The parties further agree to replace any such invalid or
unenforceable provisions with valid and enforceable provisions designed to
achieve, to the extent possible, the business purposes and intent of such
invalid and unenforceable provisions.
13.12. Counterparts; Fax Signatures. 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.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
SELLER: BUYER:
VIAQUO CORPORATION SIVAULT SYSTEMS, INC.
By: __________________________ By: ___________________________
Name:__________________________ Name:___________________________
Title: ________________________ Title: _________________________
XXXX & XXXXXXX LLP (AS ESCROW
HOLDER AS TO SECTION 10 ONLY)
By: _________________________
Name: Xxxxx X. Xxxx
Title: Partner
[SIGNATURE PAGE TO SIVAULT - VIAQUO ASSET PURCHASE AGREEMENT
29
