ASYRMATOS, INC. CONTRIBUTION AGREEMENT
Exhibit
10.34
ASYRMATOS,
INC.
This
Contribution Agreement (the “Agreement”) is effective as of February 20, 2008
(the “Effective Date”), by and among Asyrmatos, Inc., a Delaware corporation
(the “Company”) and Lumera Corporation, a Delaware corporation (the
“Founder”).
Recitals
WHEREAS,
Founder desires to transfer the business and the assets used in the development
of high data-rate wireless transceiver systems, known as the millimeter wave
communication system of the Founder (the “Business”) as set forth herein, in
exchange for Class L Preferred Stock of the Company, par value $0.01 per share
(the “Preferred Stock”), and the Company desires to sell such shares to Founder;
and
WHEREAS,
the Founder and the Company shall enter into the Ancillary Agreements and the
Company shall amend its Certificate of Incorporation, in order to effectuate
the
Contemplated Transactions.
NOW
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, the benefits to accrue to the parties hereto and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties agree
as
follows:
1. Issuance
of Shares.
The
Company hereby agrees to issue and sell to the Founder, and the Founder agrees
to acquire 1,000 shares (the “Shares”) of the Preferred Stock in exchange for
the consideration described in the recitals above.
2. Transfer
of Assets.
The
Founder hereby assigns, transfers, conveys and delivers to the Company all
of
its right, title and interest in and to all of the following and only the
following assets (the “Transferred Assets”):
(a) the
Subject Intellectual Property listed on Schedule
I,
goodwill associated therewith and licenses and sublicenses granted in respect
thereto and rights thereunder; and
(b) all
computer applications, programs and other software, whether in source or object
code and including all related data and documentation, including, without
limitation, operating software, network software, firmware, middleware, design
software, design tools, systems documentation and instructions listed on
Schedule
I.
3. Nontransferability
of Shares.
The
Shares acquired by the Founder pursuant to this Agreement shall not be sold,
transferred, pledged, assigned or otherwise encumbered or disposed of except
as
provided below or in the Ancillary Agreements. Any purported transfer in
contravention of any of the provisions of this Agreement or the Ancillary
Agreements shall be null and void.
4. Representations;
Restrictive Legend.
a. The
Founder represents, warrants and covenants that: (i) the Shares are being
acquired for the Founder’s account for investment only, and not with a view to,
or for sale in connection with, any distribution of the Shares in violation
of
the federal Securities Act of 1933, as amended (the “1933 Act”), or any rule or
regulation under the 1933 Act, (ii) the Founder has had such opportunity as
the
Founder has deemed adequate to obtain from representatives of the Company such
information as is necessary to permit the Founder to evaluate the merits and
risks of the Founder’s investment in the Company, (iii) the Founder is able to
bear the economic risk of holding the Shares for an indefinite period, and
(iv)
the Founder understands that (A) the Shares will not be registered under the
1933 Act; (B) the Shares cannot be sold, transferred or otherwise disposed
of
unless it is subsequently registered under the 1933 Act or an exemption from
registration is then available; and (C) there is now no registration statement
on file with the SEC with respect to any securities of the Company and the
Company has no obligation or firm current plan to register the Shares under
the
0000 Xxx.
b. The
Founder represents and warrants that it is entitled to retain the Shares for
its
own account and that the Founder is not obligated (by contract, applicable
law
or otherwise) to (i) sell, transfer, pledge, assign, encumber or otherwise
dispose of any Shares to, or (ii) share voting or dispositive power over any
Shares with, any third party.
c. Any
certificates representing the Shares shall have affixed thereto a legend
substantially in the following form, in addition to any other legends required
by applicable state law or by the by-laws of the Company, as in effect from
time
to time:
“The
shares of stock represented by this certificate have not been registered under
the Securities Act of 1933, as amended, and may not be transferred, sold, or
otherwise disposed of in the absence of an effective registration statement
with
respect to the shares evidenced by this certificate, filed and made effective
under the Securities Act of 1933, or an opinion of counsel satisfactory to
the
Company to the effect that registration under such Act is not
required.”
5. Representations
and Warranties of the Founder.
The
Founder makes the
following representations and warranties
to the Company:
a. Due
Organization.
The
Founder is a Delaware corporation, and is validly existing and in good standing
under the laws of the jurisdiction of its organization.
b. Authorization. The
execution, delivery and performance by the Founder of this Agreement and each
Ancillary Agreement to which it is (or will be) a party and the consummation
of
the Contemplated Transactions are within the power and authority of the Founder
and have been duly authorized by all necessary action on the part of the
Founder. This Agreement and each Ancillary Agreement to which it is (or will
be)
a party (i) has been (or in the case of Ancillary Agreements to be entered
into after the Effective Date, will be) duly executed and delivered by the
Founder and (ii) is (or in the case of Ancillary Agreements to be entered
into after the Closing, will be) a legal, valid and binding obligation of the
Founder, enforceable against the Founder in accordance with its terms except
as
the enforceability thereof may be limited by bankruptcy, insolvency, moratorium
or other laws affecting the enforcement of creditors’ rights or the availability
of equitable remedies.
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c. No
Conflicts; Approvals. No
action
by (including any authorization, consent or approval), or in respect of, or
filing with, any Governmental Authority is required for, or in connection with,
the valid and lawful (i) authorization, execution, delivery and performance
by
the Founder of this Agreement and each Ancillary Agreement to which it is (or
will be) a party or (ii) the consummation of the
Contemplated Transactions by the Founder. No
provision of any applicable Legal Requirement and no Government Order will
prohibit the consummation of the Contemplated Transactions.
d. Non-Contravention.
Neither
the execution, delivery or performance of this Agreement or any Ancillary
Agreement to which it is (or will be) a party, nor the consummation by the
Founder of the obligations contemplated hereby or thereby (i) will
violate
any Legal Requirement applicable to the Founder, (ii)
result
in the creation or imposition of an encumbrance upon, or the forfeiture of,
any
Transferred Asset, or (iii) result in a breach or violation of, or default
under, the Organizational Documents of the Founder.
6. Representations
and Warranties of the Company.
a. Due
Organization.
The
Company is a Delaware corporation, and is validly existing and in good standing
under the laws of the jurisdiction of its organization.
b. Authorization.
The
execution, delivery and performance by the Company of this Agreement and each
Ancillary Agreement to which it is (or will be) a party and the consummation
of
the Contemplated Transactions are within the power and authority of the Company
and have been duly authorized by all necessary action on the part of the
Company. This Agreement and each Ancillary Agreement to which it is (or will
be)
a party (i) has been (or in the case of Ancillary Agreements to be entered
into after the Effective Date, will be) duly executed and delivered by the
Company and (ii) is (or in the case of Ancillary Agreements to be entered
into after the Closing, will be) a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms except
as
the enforceability thereof may be limited by bankruptcy, insolvency, moratorium
or other laws affecting the enforcement of creditors’ rights or the availability
of equitable remedies.
c. No
Conflicts; Approvals.
No
action by (including any authorization, consent or approval), or in respect
of,
or filing with, any Governmental Authority is required for, or in connection
with, the valid and lawful (i) authorization, execution, delivery and
performance by the Company of this Agreement and each Ancillary Agreement to
which it is (or will be) a party or (ii) the consummation of the Contemplated
Transactions by the Company. No provision of any applicable Legal Requirement
and no Government Order will prohibit the consummation of the Contemplated
Transactions.
d. Non-Contravention.
Neither
the execution, delivery or performance of this Agreement or any Ancillary
Agreement to which it is (or will be) a party, nor the consummation by the
Company of the obligations contemplated hereby or thereby (i) will violate
any
Legal Requirement applicable to the Company, (ii) result in the creation or
imposition of an encumbrance upon, or the forfeiture of, any Transferred Asset,
or (iii) result in a breach or violation of, or default under, the
Organizational Documents of the Company.
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7. Definitions.
a. “Agreement”
has
the
meaning set forth in the introductory paragraph hereof.
b. “Ancillary
Agreements”
means
the Investors’ Rights Agreement, Right of First Refusal and Co-Sale Agreement
and Voting Agreement that the Founder and the Company are entering into in
connection with the Contemplated Transactions and the Xxxx of Sale, Patent
Assignment and Assignment and Assumption Agreement that are attached as exhibits
hereto.
c. “Applicable
Law”
means,
with respect to any party to this Agreement, all domestic or foreign federal,
state or local statute, law, ordinance, rule, administrative interpretation,
regulation, order, writ, injunction, directive, judgment, decree, policy,
guideline or other Legal Requirement (whether legislatively, judicially, or
administratively promulgated) applicable to such party or its Affiliates,
properties, assets, officers, directors, employees or agents.
d. “Business”
has
the
meaning set forth in the Recitals hereof.
e. “Business
Day” means
any
day that is not a Saturday, Sunday or other day on which banks are authorized
to
close in the State of Washington.
f. “Contemplated
Transactions” means,
collectively, the transactions contemplated by this Agreement, including (a)
the
sale and purchase of the Transferred Assets; (b) the sale and purchase of the
Shares, and (c) the execution, delivery and performance of the Ancillary
Agreements.
g. “Government
Order” means
any
order, writ, judgment, injunction, decree, stipulation, ruling, determination
or
award entered by or with any Governmental Authority.
h. “Governmental
Authority”
means
any United States federal, state or local or any foreign government, or
political subdivision thereof, or any multinational organization or authority
or
any authority, agency or commission entitled to exercise any administrative,
executive, judicial, legislative, police, regulatory or taxing authority or
power, any court or tribunal (or any department, bureau or division thereof),
or
any arbitrator or arbitral body.
i. “Intellectual
Property” means
all
embodiments of, and the entire right, title and interest in and to all
proprietary rights of every kind and nature in, including all rights and
interests pertaining to or deriving from, any of: (a) patents and patent
applications (whether foreign or domestic), inventions and innovations and
all
improvements thereto, patent disclosures, invention disclosures, copyrights,
copyrightable works of expression, derivative works thereof, mask work rights,
technology, know-how, processes, trade secrets, algorithms, inventions,
innovations, information (including ideas, research and development, know-how,
formulas, compositions, processes and techniques, data, designs, drawings,
specifications, customer lists, supplier lists, licensor lists, pricing and
cost
information, business and marketing plans and proposals, documentation and
manuals), works, proprietary data, databases, formulae and research and
development data; (b) distinctive identifiers, corporate names, trademarks,
trade names, service marks, service names, brands, trade dress and logos,
together with all translations, adaptations, derivations and combinations
thereof, and the goodwill and activities associated therewith and all
improvements thereto; (c) all computer software (whether in source or object
code and including all related data and documentation); (d) any and all
registrations, applications, recordings, licenses, common-law rights and
contracts relating to any of the foregoing; (e) all copies and tangible
embodiments thereof, in any and all forms and mediums now known or hereinafter
created; and (f) any and all legal actions and rights to xxx at law or in equity
for any past or future infringement or other impairment of any of the foregoing,
including the right to receive all proceeds and damages therefrom, and all
rights to obtain renewals, reissuances, revisions, reexaminations,
continuations, divisions or other extensions of legal protections pertaining
thereto, provided that the Intellectual Property shall not include assets
described in Section 3 of this Agreement.
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j. “Legal
Requirement” means
any
United States federal, state or local or foreign law, statute, standard,
ordinance, code, rule, regulation, resolution or promulgation, or any Government
Order, or any license, franchise, permit or similar right granted under any
of
the foregoing, or any similar provision having the force or effect of
law.
k. “Organizational
Documents”
means,
with respect to any Person (other than an individual), (a) the certificate
or articles of incorporation or organization and any joint venture, limited
liability company, operating or partnership agreement and other similar
documents adopted or filed in connection with the creation, formation or
organization of such Person and (b) all by-laws, limited liability company
agreements, voting agreements and similar documents, instruments or agreements
relating to the organization or governance of such Person, in each case, as
amended or supplemented.
l. “Person” means
any
individual or corporation, association, partnership, limited liability company,
joint venture, joint stock or other company, business trust, trust,
organization, Governmental Authority or other entity of any kind.
m. “Subject
Intellectual Property”
means
all Intellectual Property owned or licensed by the Founder that is related
to or
arose from the Business, provided that the Subject Intellectual Property shall
not include assets described in Section 3 of this Agreement.
8. Ancillary
Agreements.
Founder
shall execute and deliver to the Company a Xxxx of Sale in substantially the
form of Exhibit A (“Xxxx of Sale”), Patent Assignment in substantially the form
of Exhibit B (“Patent Assignment”) and Assignment and Assumption Agreement in
substantially the form of Exhibit C (“Assignment and Assumption Agreement”), and
such other instruments of conveyance and assignment as are reasonably requested
by the Company to vest in the Company title to the Transferred Assets.
Additionally, the Founder and the Company shall enter into an Investors’ Rights
Agreement, Right of First Refusal and Co-Sale Agreement and Voting Agreement
and
the Company shall cause its employees and shareholders, as requested by the
Founder, to be parties to such agreements.
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9. Further
Assurances.
Each
party hereto shall execute, deliver, file and record, or cause to be executed,
delivered, filed and recorded, such further agreements, instruments and other
documents, and take, or cause to be taken, such further actions, as the other
party hereto may reasonably request as being necessary or advisable to effect
or
evidence the transactions contemplated by this Agreement.
10. Succession
and Assignment.
Subject
to the immediately following sentence, this Agreement will be binding upon
and
inure to the benefit of the parties hereto and their respective successors
and
permitted assigns, each of which such successors and permitted assigns will
be
deemed to be a party hereto for all purposes hereof. No party may assign,
delegate or otherwise transfer either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written approval of the
other party.
11. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware (without giving any effect to conflicts of laws principles
thereof that would apply the laws of another jurisdiction).
12. Amendment.
No
change, modification or amendment of this Agreement shall be valid or binding
on
the parties unless such change or modification shall be in writing signed by
the
party or parties against whom the same is sought to be enforced.
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Exhibit
10.34
IN
WITNESS WHEREOF, the parties hereto have caused this Contribution Agreement
to
be duly executed as of the date first hereinabove written.
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The
Company:
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Asyrmatos, Inc. | ||
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By:
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/s/
Xxxxx Xxxxxx
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Name:
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Xxxxx
Xxxxxx
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Title:
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Chief
Executive Officer
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The
Founder:
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Lumera Corporation | ||
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By:
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/s/
Xxxxx X. Xxxxx
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Name:
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Xxxxx
X. Xxxxx
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Title:
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Chief
Financial Officer
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