Exhibit 10.3
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of March 23, 2005,
among PURISYS, INC., a New Jersey corporation (the "Seller"), XXXXXX X. XXXXXXX
(the "Principal") and XXXXXXX.XXX, INC., a Utah corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, Principal is the inventor of the Battery Brain product and the
sole shareholder of the Seller; and
WHEREAS, the Seller is engaged in designing, developing, manufacturing
and marketing the Battery Brain Product; and
WHEREAS, the Purchaser desires to acquire from the Seller, and the Seller
desires to sell to the Purchaser, all of the Seller's assets constituting the
Battery Brain product, (the "Battery Brain Product"), upon the terms and subject
to the conditions set forth in this Agreement; and
WHEREAS, the Board of Directors of the Purchaser has determined that it is
in the best interests of the Purchaser and its stockholders, and the Board of
Directors and the stockholder of the Seller have determined that it is in the
best interests of the Seller and its stockholder, for the Purchaser to purchase
the assets of the Seller constituting the Battery Brain Product (the "Asset
Purchase") upon the terms and conditions set forth herein; and
WHEREAS, for Federal income tax purposes, it is intended that the Asset
Purchase shall qualify as a tax-free reorganization under the provisions of
Section 368(a)(1)(C) of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements hereinafter set forth, the
parties do hereby agree as follows:
1. CERTAIN DEFINITIONS.
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the meanings specified or referred to below:
"Affiliate" of any Person shall mean any Person which, directly or
indirectly, controls or is controlled by that Person, or is under common control
with that Person. For the purposes of this definition, "control" (including,
with correlative meaning, the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities
or by contract or otherwise.
"Agreement" shall have the meaning set forth in the recitals.
"Asset Purchase" shall have the meaning set forth in the recitals.
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"Assets" shall have the meaning set forth in Section 2.1.
"Assigned Contracts" shall mean all contracts, agreements,
guaranties, plans, policies and arrangements, whether written or oral, relating
to the business of the Seller to which the Seller or the Principal is a party or
to which the business of the Seller is subject, including, without limitation,
all customer orders and purchase orders for services to be rendered that are yet
to be performed, fulfilled or completed and, in each case, any claim or right or
any benefit thereunder or resulting therefrom including, without limitation, any
right to indemnification.
"Assumed Liabilities" shall mean the obligations and liabilities of
the Seller as set forth on Schedule 2.2, including, without limitation, all
contracts, agreements, guaranties, warranties, policies and arrangements,
whether written or oral, relating to the Battery Brain Product such as all
customer orders and purchase orders for services to be rendered that are yet to
be performed, fulfilled or completed and, in each case, any claim or right or
any benefit thereunder or resulting therefrom including, without limitation, any
right to indemnification.
"Battery Brain Product" shall have the meaning set forth in the
recitals.
"Business Day" shall mean any day that is not a Saturday or a Sunday
or a day on which banks located in New York City are authorized or required to
be closed.
"Cash Consideration" shall have the meaning ascribed to it in
Section 2.4(a) below.
"Closing" shall have the meaning set forth in Section 3.1.
"Closing Date" shall have the meaning set forth in Section 3.1.
"Code" shall mean the Internal Revenue Code of 1986, as amended. All
citations to the Code or to the regulations promulgated thereunder shall include
any amendments or any substitute or successor provisions thereto.
"Confidential Information" shall have the meaning set forth in
Section 4.13(i).
"Consultants" shall have the meaning set forth in Section 4.13(h).
"Contemplated Transactions" shall mean the Asset Purchase and the
execution, delivery and performance of and compliance with this Agreement and
all other agreements to be executed and delivered pursuant to this Agreement.
"Contract" shall mean all contracts, agreements, commitments, notes,
bonds, deeds of trust, indentures, leases, mortgages, arrangements, instruments,
documents of any nature or description that a Person is party to or obligated
by.
"Damages" shall have the meaning set forth in Section 7.1.
"Dollars" or "$" shall mean United States dollars.
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"Encumbrance" shall mean any security interest, pledge, mortgage,
lien, charge, encumbrance, license, easement, right-of-way, cloud on title,
adverse claim, preferential arrangement or restriction of any kind, including,
but not limited to, any restriction on the use, voting, transfer, receipt of
income, claims, charges, actions, suits, proceedings, hypothecation, preemptive
rights, right of first refusal or other rights or restrictions or encumbrances
of any kind. or other exercise of any attributes of ownership.
"Equity Consideration" shall have the meaning ascribed to it in
Section 2.4(b) below.
"Governmental Body" shall mean any United States federal, state or
local or any foreign government, governmental, regulatory or administrative
authority, agency or commission or any court, tribunal or judicial or arbitral
body or any quasi-governmental or private body exercising any regulatory or
taxing authority thereunder.
"Intellectual Property" shall mean any and all: (a) invention
registrations, (b) patents (including but not limited to design patents), patent
registrations, patent disclosures patent applications and inventions (including
all reissues, divisions, continuations, continuations-in-part, extensions and
reexaminations) and all improvements to the inventions disclosed in each such
registration, patent or application, (c) trademarks, trademark rights, business
identifiers, service marks, trade dress, logos, trade names, brand names and
corporate names (and any derivations thereof), whether or not registered,
including but not limited to all common law rights, and registrations and
applications for registration thereof, including, but not limited to, all marks
registered in any trademark offices throughout the world, (d) registered and
unregistered copyrights in both published works and unpublished works (including
but not limited to copyrights on designs) and registrations and applications for
registration thereof, (e) computer software, including, without limitation,
source code, operating systems and specifications, data, data bases, files,
documentation and other materials related thereto, data and documentation, (f)
all know-how, ideas, formulae, compositions, manufacturing and production
processes and techniques, development information, discoveries, improvements,
trade secrets, employee covenants and agreements respecting intellectual
property and non-competitions, and confidential or proprietary, technical and
business information (including but not limited to ideas, pricing information,
client lists and other data, formulas, compositions, inventions, and conceptions
of inventions whether patentable or unpatentable and whether or not reduced to
practice), (g) whether or not confidential, technology (including know-how and
show-how), production processes and techniques, research and development
information, drawings, specifications, designs, plans, proposals, technical
data, copyrightable works, financial, marketing and business data, pricing and
cost information, business and marketing plans and customer and supplier lists
and information, (h) mask works and rights therein; (i) all documentation
relating to design and development, block diagrams, hardware design diagrams and
files, software source codes and development tools, manufacturing files,
integration and test procedures, brochures, product specifications, marketing
and customer care related information, and database of customer relations; (j)
all contracts or agreements granting any right, title, license or privilege
under the intellectual property rights of any third party; and (k) all
registrations of any of the foregoing, all applications thereof, all goodwill
associated therewith accruing from the dates of first use thereof, and all
rights associated with the foregoing.
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"IRS" shall mean the Internal Revenue Service.
"Laws" shall mean all federal, state, local, regional, municipal or
foreign laws, statutes, rules, regulations, ordinances, codes, decrees,
judgments, orders or other legal requirements.
"Letter of Intent" shall mean the letter agreement dated December
15, 2004 regarding a transaction among the Parties, as amended on February 28,
2005.
"Party" shall mean any of the Purchaser, the Seller or the
Principal.
"Person" shall mean any individual, corporation, limited liability
company, partnership, joint venture, trust, association, unincorporated
organization, other entity or Governmental Body.
"Purchase Price" shall have the meaning set forth in Section 2.4.
"Records" shall have the meaning set forth in Section 2.1(iii).
"Securities Act" shall have the meaning set forth in Section
4.20(a).
"Seller Approvals" shall have the meaning set forth in Section 4.5.
"Shares" shall have the meaning set forth in Section 2.4(b).
"Signing Date" shall mean the signing date of this Agreement by the
Parties. For purposes of clarification, the Signing Date and the Closing Date
shall be identical (i.e., the same date)
"Tax", "Taxes" or "Taxable" shall mean all taxes, charges, fees,
imposts, levies or other assessments, including, without limitation, all net
income, gross receipts, capital, sales, use, ad valorem, value added, transfer,
franchise, profits, inventory, capital stock, license, withholding, payroll,
employment, social security, unemployment, excise, severance, stamp, occupation,
property and estimated taxes, customs duties, fees, assessments and charges of
any kind whatsoever, together with any interest and any penalties, fines,
additions to tax or additional amounts imposed by any Governmental Body and
shall include any transferee liability in respect of Taxes.
"Tax Returns" shall mean any federal, state, local or foreign
return, report, information return or other document (including any related or
supporting information) filed or required to be filed with any Governmental Body
in connection with the determination, assessment or collection of any Taxes or
the administration of any laws, regulations or administrative requirements
relating to any Taxes.
"Third Party Intellectual Property Rights" shall have the meaning
ascribed to it in Section 4.13(c) below.
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"Transaction Documents" shall mean, collectively, this Agreement and
any and all agreements, exhibits, schedules, certificates, instruments and other
documents contemplated hereby or executed and delivered in connection herewith.
"Unassumed Liabilities" shall mean, other than any Assumed
Liabilities, any and all liabilities, duties and obligations of, and claims
against or relating to, the Seller or the Principal or the ownership, possession
or use of any of the Assets prior to the Closing, whether accrued, unaccrued,
absolute, contingent, known or unknown, asserted or unasserted and whether now
existing or arising at any time prior to, at, or after the Closing (including,
without limitation, all liabilities of the Seller to its stockholder, or to any
employee, consultant, officer or director of the Seller, or to their respective
spouses and/or children and/or Affiliates, in any amount whatsoever, and all
liabilities of the Seller with respect to this Agreement or the Contemplated
Transactions, including, without limitation, legal and accounting fees) and any
Encumbrance upon any of the Assets.
1.2 Construction. As used in this Agreement, the masculine, feminine
or neuter gender and the singular or plural numbers shall each be deemed to
include the other whenever the context so requires. This Agreement shall be
construed as a whole and in accordance with its fair meaning and without regard
to any presumption or other rule requiring construction against the Party
causing this Agreement or any part hereof to be drafted. The language used in
this Agreement will be deemed to be the language chosen by the Parties to
express their mutual intent, and no rules of strict construction will be applied
against any Party. The Parties acknowledge that each Party has reviewed this
Agreement and has had the opportunity to have it reviewed by legal counsel of
its own choosing. All Parties have agreed that Xxxxx Xxxxx & Associates has
acted as counsel to all Parties hereto. If any words or phrases are stricken or
otherwise eliminated, whether or not other words or phrases have been added,
this Agreement shall be construed as if the words or phrases stricken or
otherwise eliminated were never included in this Agreement.
2. PURCHASE AND SALE OF ASSETS.
2.1 Purchase and Sale of Assets. Upon the terms and subject to the
conditions set forth herein, and on the basis of the representations and
warranties contained herein, at the Closing, the Seller shall sell, convey,
transfer, assign and deliver to the Purchaser, and the Purchaser shall purchase,
acquire and accept from the Seller, all of Seller's right, title and interest in
and to the assets of the Seller relating to the Battery Brain Product of every
kind, nature and description, personal, tangible and intangible, including
without limiting the generality of the foregoing:
(i) all of Seller's Intellectual Property relating to the Battery
Brain Product ("Seller's Intellectual Property"), including without
limitation United States Patent No. 6,424,511 B1 issued July 23, 2002;
(ii) all rights and incidents of interest in and to all licenses,
franchises, grants, easements, exceptions, certificates, consents,
permits, approvals, orders and other authorizations of any Governmental
Body relating to the Assets (the "Seller Licenses");
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(iii) all documents and records relating to the Assets (including
without limitation, all employment and personnel records, technical design
and know-how, sales data, customer lists, and all other information
relating to customers, representatives, distributors and suppliers and
other information including advertising materials) and copies of all
accounting books, records, ledgers and electronic data processing
materials (collectively, the "Records");
(iv) all claims of the Seller against third parties relating to the
Assets, whether xxxxxx or inchoate, known or unknown, contingent or
otherwise;
(v) all the Assigned Contracts (the "Assigned Contracts");
(vi) all transferable prepayments, contractual deposits and other
funds to be received for services to be performed after the Closing;
(vii) those physical assets critical to the operation of the
business as set forth on Schedule 2.1(vii);
(viii) the goodwill associated with or attributable to the Seller's
Intellectual Property;
(ix) the equipment that the Seller used or uses for the development,
production and testing of the Battery Brain Product, and which is owned by
or licensed to or registered in the name of Seller, including without
limitation the equipment that is listed in Schedule 2.1(vii); and
(x) all other properties and assets of every kind and, character or
description, tangible or intangible owned by the Seller or the Principal
and used or held for use in connection with the Battery Brain Product.
The assets, properties and rights to be conveyed, sold, transferred, assigned
and delivered to Purchaser pursuant to this Agreement are sometimes hereinafter
collectively referred to as the "Assets".
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2.2 No Liabilities Transferred.
Except as set forth on Schedule 2.2 attached hereto (the "Assumed
Liabilities"), Purchaser shall not assume or otherwise be bound by or
responsible or liable for any Unassumed Liability or any other liability, duty
or obligation incurred by the Seller or the Principal or any liability, duty or
obligation arising out of a breach, violation or default by the Seller or the
Principal of or under any Law or Contract (including any event occurring or fact
or circumstance existing as of or prior to the Closing Date that, with the
passage of time or the giving of notice or both, may become such a breach,
violation or default).
Purchaser shall be responsible for settling the Xxxxxxxxx Claim (as
defined on Schedule 2.2 hereof) and any and all Damages in connection therewith.
2.3 Transfer of Assets. The transfer of the Assets as herein
contemplated shall be made by the Seller, free and clear of all Encumbrances of
any kind or nature and shall be effected by such bills of sale, endorsements,
assignments, drafts, checks, deeds and other instruments of transfer, conveyance
and assignment as shall be necessary or appropriate to transfer, convey and
assign the Assets to the Purchaser on the Closing Date as contemplated by this
Agreement and as shall be requested by the Purchaser. The Seller shall, at any
time and from time to time after the Closing Date, execute and deliver such
other instruments of transfer and conveyance and do all such further acts and
things as may be reasonably requested by the Purchaser to transfer, convey,
assign, and deliver to the Purchaser or to aid and assist the Purchaser in
collecting and reducing to possession any and all of the Assets, or to vest in
the Purchaser good, valid and legal and beneficial title to the Assets which had
been owned by the Seller prior to the Closing.
Notwithstanding the foregoing, the Assets shall not include the inventory
which exists as of the Signing Date and the molds for the Battery Brain which
are currently in Italy and China, which shall be purchased by Purchaser for
$66,487.
2.4 Purchase Price. The purchase price for the Assets (the "Purchase
Price") shall consist of the following:
(a) The cash payment by Purchaser to Seller of One Hundred Thousand
($100,000) Dollars (the "Cash Consideration"); provided, however, that the
Seller agrees and acknowledges that Purchaser has prior to the date hereof
advanced the Seller in excess of the amount of the Cash Consideration and
therefore no Cash Consideration is due to the Seller at Closing; and
(b) The issuance to the Principal by the Purchaser of the number of
shares (rounded to the nearest whole share) of Common Stock of the Purchaser
(the "Shares"), to be issued in accordance with the instructions of the Seller,
which will constitute, as of the Closing Date, twenty (20%) percent of the
issued and outstanding shares of Common Stock of the Purchaser on a fully
diluted basis as of the Closing Date (the "Equity Consideration"). The parties
hereby agree and acknowledge that as of the Closing Date the Purchaser does not
have the legal capability to issue said shares; however, the Equity
Consideration is to be issued as of the Closing Date.
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(c) The Purchaser agrees to issue to Principal or his designees an
additional twenty percent (20%) of the issued and outstanding shares of the
Purchaser if prior to the 90th day after the Closing Date $400,000 is not
invested in the Purchaser. Said 20% shall be computed on the 91st day after the
Closing Date. If less than $400,000 is invested, the amount of shares to be
issued to the Principal shall be pro rated based on the actual dollar amount
invested. For purposes of this Agreement, if these shares shall be due and
issuable to the Principal, said shares shall for all purposes of this Agreement
be included in the defined terms "Equity Consideration" and "Shares".
Transfer Taxes. All municipal, county, state and federal sales and
transfer Taxes incurred, if any, in connection with the transactions
contemplated by this Agreement shall be the responsibility of, and paid promptly
by, the Purchaser. Each Party, as appropriate, shall in a timely manner sign and
swear to any return, certificate, questionnaire or affidavit as to any matter
within its knowledge required in connection with the payment of any such Tax.
Furthermore, the Parties shall take all actions necessary after the
Closing to ensure that the Contemplated Transaction qualifies as a tax-free
reorganization under the provisions of Section 368(a)(1)(C) of the Internal
Revenue Code, including without limitation, the prompt dissolution of the
Seller.
3. THE CLOSING.
3.1 Closing Date. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of the Purchaser,
simultaneous with the execution and delivery of this Agreement (such date and
time of the Closing is referred to herein as the "Closing Date").
3.2 Deliveries by the Purchaser at the Closing. At the Closing, the
Purchaser shall deliver to the Seller the following:
(a) the Consulting Agreement, duly executed by the Purchaser;
(b) the good standing certificate described in Section 8.6; and
(c) such other instruments and certificates as may be reasonably
requested by the Seller.
3.3 Deliveries by the Seller at the Closing. At the Closing, the
Seller and the Principal shall deliver to the Purchaser the following:
(a) all tangible manifestations of Seller's Intellectual Property,
including, without limitations, technical documents (hardware and software
design documents and test results), modules, source code, marketing documents
(brochures, white papers and advertising) and manufacturing files;
(b) the Equipment;
(c) copies, certified by an authorized officer or director of
Seller, of minutes or resolutions of the board of directors and shareholders'
meeting of Seller, which shall not have been rescinded or modified,
unconditionally authorizing the execution of this Agreement and the performance
of the transactions contemplated hereby;
(d) documents reasonably satisfactory to Purchaser and its counsel
evidencing that any approvals and consents have been obtained and are in full
force and effect, including, without limitation, any consents required for the
assignment of the Assets to the Purchaser;
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(e) the good standing certificate described in Section 7.6;
(f) the Consulting Agreement, duly executed by the Principal;
(g) the Records; and
(h) such other instruments and certificates as may be requested by
the Purchaser.
3.4 Power of Attorney. Effective upon the Closing Date, the Seller
hereby irrevocably constitutes and appoints the Purchaser, its successors and
assigns, the true and lawful attorney of the Seller with full power of
substitution, in the name of the Purchaser, or the name of the Seller, on behalf
of and for the benefit of the Purchaser, to collect all items being transferred,
conveyed and assigned to the Purchaser as provided herein, to endorse, without
recourse, checks, notes and other instruments in the name of the Seller which
have been transferred to the Purchaser, to institute and prosecute, in the name
of the Seller or otherwise, all proceedings which the Purchaser may deem proper
in order to collect, assert or enforce any claim, right or title of any kind in
or to the Assets, to defend and compromise any and all actions, suits or
proceedings in respect of any of the Assets subject to the Seller's
indemnification obligations under this Agreement, and to do all such acts and
things in relation thereto as the Purchaser may deem reasonably advisable. The
Seller agrees that the foregoing powers are coupled with an interest and shall
be irrevocable by the Seller directly or indirectly by the dissolution of the
Seller or in any manner or for any reason. The Seller further agrees that the
Purchaser shall retain for its own account any amounts collected pursuant to the
foregoing powers, and the Seller shall promptly transfer and deliver to the
Purchaser any cash or other property received by the Seller after the Closing
Date relating to the Assets.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller and the Principal,
jointly and severally, hereby represent and warrant to the Purchaser as follows:
4.1 Organization and Good Standing. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New Jersey. The Seller has all requisite corporate or other power to own,
operate and lease the Assets and carry on its business as the same is now being
conducted. Complete and correct copies of the Certificate of Incorporation and
Bylaws of the Seller, as currently in effect, have been delivered to the
Purchaser.
4.2 Capitalization of the Seller. The authorized capital stock of the
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Seller consists of 1,000 shares of common stock, no par value. All of the
outstanding shares of the capital stock of the Seller are validly issued, fully
paid and non-assessable. The Principal is the only legal and beneficial owner of
the shares of the Seller. There are, and at the Closing there will be, no
outstanding subscriptions, options, rights, warrants, convertible securities,
preemptive rights or other agreements, or understandings with respect to the
voting, sale, transfer, rights of first refusal, rights of first offer, proxy or
registration or calls, demands or commitments of any kind relating to the
issuance, sale or transfer of any capital stock or other equity securities of
the Seller, whether directly or upon the exercise or conversion of other
securities. There are, and at the Closing there will be, no outstanding
contractual obligations of the Seller or the Principal to repurchase, redeem or
otherwise acquire any shares of their respective capital stock or to provide
funds to, or make any investment (in the form of a loan, capital contribution or
otherwise) in, any other Person. The Seller does not and has never maintained
any stock, partnership, joint venture or any other security or ownership
interest in any other Person.
4.3 Authority Relative to Agreement. The Seller has all requisite power
and authority, corporate or otherwise, to execute, deliver and perform its
obligations under this Agreement and has taken all action, corporate or
otherwise, necessary in order to execute and deliver this Agreement and all
other instruments or agreements to be executed in connection herewith and to
consummate the Contemplated Transactions. This Agreement has been duly executed
and delivered by the Seller and the Principal. This Agreement constitutes the
valid and binding obligation of the Seller and the Principal, enforceable
against each of them in accordance with its terms.
4.4 Absence of Conflict. Neither the execution and delivery of the
Transaction Documents by the Seller or the Principal nor the consummation of the
Contemplated Transactions by the Seller or the Principal will (a) violate,
conflict with, result in a breach or termination of, constitute a default under
or give rise to a right to terminate, amend, cancel or accelerate (or an event
which, with notice or lapse of time or both, would constitute the same) (i) any
Contract to which the Seller or the Principal is a party or by which any of
their respective properties or assets is bound, (ii) the Certificate of
Incorporation or Bylaws of the Seller, or (iii) any Law, order of a Governmental
Body or any other restriction of any kind or character applicable to the Seller
or the Principal or any of their respective properties or assets, or (b) result
in the creation or imposition of any Encumbrance upon any Asset or any other
property or asset of the Seller or the Principal.
4.5 Consents and Approvals. No consent, waiver, registration,
certificate, approval, grant, franchise, concession, permit, license, exception
or authorization of, or declaration or filing with, or notice or report to, (a)
any Governmental Body or (b) any other Person (including, but not limited to,
any party to a Contract of the Seller (collectively, the "Seller Approvals"), is
required in connection with the execution, delivery and performance of the
Transaction Documents by the Seller or the Principal.
4.6 intentionally omitted
4.7 Litigation. There is no action, suit, hearing, inquiry, review,
proceeding or investigation by or before any court or Governmental Body pending,
or threatened against or involving the Seller or the Principal or with respect
to the activities of any employee or agent of the Seller. Neither the Seller nor
the Principal has received any notice of any event or occurrence which could
result in any such action, suit, hearing, inquiry, review, proceeding or
investigation.
4.8 Tax Matters.
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(a) The Seller and the Principal have filed or caused to be filed
on a timely basis all Tax Returns that are or were required to be filed by them,
pursuant to the Laws or administrative requirements of each Governmental Body
with taxing power over it or its assets. As of the time of filing, all such Tax
Returns correctly reflected the facts regarding the income, business, assets,
operations, activities, status, and other matters of the Seller and any other
information required to be shown thereon. An extension of time within which to
file any such Tax Return that has not been filed has not been requested or
granted. The Seller and the Principal have delivered to the Purchaser true,
complete and correct copies of all Tax Returns filed by them for the last six
years. There are no state, local and foreign jurisdictions in which the Seller
has previously filed or currently file Tax Returns, other than New Jersey, which
is the only state, local or foreign taxing jurisdictions in which the Seller has
been or are required to file Tax Returns. There is no audit, action, suit,
claim, proceeding or any investigation or inquiry, whether formal or informal,
public or private, now pending or threatened against or with respect to the
Seller or the Principal in respect of any Tax. There are no Encumbrances for
Taxes upon the Assets.
(b) With respect to all amounts in respect of Taxes imposed on the
Seller and the Principal or for which they are or could be reasonably liable,
whether to Governmental Bodies (as, for example, under Law) or to other Persons
(as, for example, under tax allocation agreements), with respect to all taxable
periods or portions of periods since their inception through the Closing, (i)
all applicable tax laws and agreements have been complied with in all material
respects, (ii) all such amounts required to be paid by the Seller or the
Principal to Governmental Bodies or others on or before the date hereof have
been paid, and (iii) reserves have been established for the payment of all Taxes
not yet due and payable, which reserves are reflected in the Seller Financial
Statements and are adequate and in accordance with the past custom and practice
of the Seller.
(c) As of the date hereof, neither the Seller nor the Principal has
requested, executed or filed with the IRS or any other Governmental Body any
agreement or other document extending or having the effect of extending the
period for assessment or collection of any Taxes for which the Seller or the
Principal could be liable and which still is in effect.
(d) There exists no tax assessment, proposed or otherwise, against
the Seller or the Principal nor any lien for Taxes against any assets or
property of the Seller or the Principal.
(e) All Taxes that the Seller or the Principal are or were required
by Law to withhold or collect have been duly withheld or collected and, to the
extent required, have been paid to the proper Governmental Body or other Person.
(f) Neither the Seller nor the Principal is a party to, bound by or
subject to any obligation under any tax sharing, tax indemnity, tax allocation
or similar agreement.
(g) There is no claim, audit, action, suit, proceeding, or
investigation with respect to Taxes due or claimed to be due from the Seller or
the Principal or of any Tax Return filed or required to be filed by the Seller
or the Principal pending or threatened against or with respect to the Seller or
the Principal.
(h) Neither the Seller nor the Principal has filed a consent
pursuant to Section 341(f) of the Code (or any corresponding provision of state,
local or foreign income tax law) or agreed to have Section 341(f)(2) of the Code
(or any corresponding provision of state, local or foreign income tax law) apply
to any disposition of a subsection (f) asset (as such term is defined in Section
341(f)(4) of the Code) owned by the Seller or the Principal.
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4.9 No Brokers or Finders. The Seller and the Principal have not, nor
have any of their respective Affiliates, officers, directors or employees on
their behalf, employed any broker or finder or incurred any liability for any
brokerage or finder's fee or commissions or similar payment in connection with
any of the Contemplated Transactions.
4.10 Financial Statements. The Seller has never prepared financial
statements other than its Tax Returns. Notwithstanding, there has been no
material adverse change in the business, operations or financial condition of
the Seller or any event, condition or contingency that could reasonably be
expected to result in such a material adverse effect with respect to the Seller
or its business.
4.11 Compliance with Law. The operations of the Seller have been
conducted in all material respects in accordance with all applicable Laws
including without limitation any Laws pertaining to the insurance industry.
Neither the Seller nor the Principal has received any notification of any
asserted present or past failure to comply with any such Laws, and the Seller is
in compliance in all respects with all limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in any such Laws. The Seller Licenses constitute all licenses,
permits, orders, certificates, authorizations or other approvals of Governmental
Bodies required for the conduct of its business under applicable Laws. The
Seller is not in violation of any such Seller License. All such Seller Licenses
are in full force and effect, and to Seller's knowledge, no suspension or
cancellation thereof has been threatened.
4.12 Title to Property; Sufficiency; Encumbrances.
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(a) The Seller owns all the properties and assets used by it in the
conduct of its business, including, without limitation, the Assets, and with
respect to contract rights, is a party to and enjoys the right to the benefits
of all Contracts used in or relating to the conduct of its business. The Seller
has good and marketable title to, or, in the case of leased assets, valid and
subsisting leasehold interests in, all of its assets and properties (including,
without limitation, the Assets), free and clear of all Encumbrances.
(b) Following the consummation of the Contemplated Transactions, the
Purchaser will own, pursuant to good and marketable title, or lease, under valid
and subsisting leases, or otherwise retain its respective interest in, the
Assets without incurring any penalty or other adverse consequence, including,
without limitation, any increase in rentals, royalties, or licenses or other
fees imposed as a result of, or arising from, the consummation of the
Contemplated Transactions.
4.13 Intellectual Property Rights.
(a) The Seller's Intellectual Property constitutes all of the Intellectual
Property related to or used or held for use in connection with the Battery Brain
Product (including future development of the Battery Brain Product) that is
owned by, licensed to, or registered in the name of, the Seller.
(b) The Seller has not (i) licensed any of the Seller's Intellectual
Property in source code form or any other form to any party, or (ii) entered
into any agreements granting exclusive or other rights to any of the Seller's
Intellectual Property.
(c) There are no (i) licenses, sublicenses and other agreements as to
which Seller is a party and pursuant to which any person is authorized to use
any of the Seller's Intellectual Property, and (ii) licenses, sublicenses and
other agreements as to which Seller is a party and pursuant to which Seller is
authorized to use any third party Intellectual Property including any patents,
trademarks or copyrights, including software ("Third Party Intellectual Property
Rights") which are incorporated in, are or form a part of the Battery Brain
Product.
(d) To the best of Seller's knowledge, there is no authorized use,
disclosure, infringement or misappropriation of any Seller Intellectual Property
rights by any third party, including any customer, shareholder, employee,
consultant or former employee or consultant of Seller; and no unauthorized use,
disclosure, infringement or misappropriation of any Third Party Intellectual
Property rights by Seller or any third party, including any customer,
shareholder, employee, consultant or former employee or consultant of Seller.
(e) Seller has not entered into any agreements to indemnify its Customers
or any other third party against any charge of infringement of any Seller's
Intellectual Property.
(f) All patents, patent applications, registered trademarks, trademark
applications, service marks and copyrights that are owned by the Seller and
constitutes part of the Seller's Intellectual Property, have been delivered to
Purchaser and are valid and in good standing with all fees and filings due as of
the Closing Date duly made.
(g) Seller (i) has not been sued in any suit, action, proceeding, claim,
arbitration or investigation pending before any agency, court or tribunal,
foreign or domestic, which involves the Seller's Intellectual Property, a claim
of infringement of any patents, trademarks, service marks, copyrights or
violation of any trade secret or other proprietary right of any third party;
(ii) has not received any written notice that the manufacturing, marketing,
licensing or sale of its products infringes any patent, trademark, service xxxx,
copyright, trade secret or other proprietary right of any third party; and (iii)
has not brought any action, suit or proceeding for infringement of Intellectual
Property or breach of any license or agreement involving Intellectual Property
against any third party. To the best knowledge of Seller, no suit, action,
proceeding, claim, arbitration or investigation detailed in items (i) through
(iii) is threatened against the Seller. There is no judgment, decree or order
against Seller that could prevent, enjoin or materially alter or delay any of
the transactions contemplated by this Agreement.
(h) Seller has secured valid written assignments from all current and
former employees, consultants and any other person who contributed or
participated in the development or in the conception and development of portions
of Seller's Intellectual Property ("Consultants"), and such Consultants have
executed nondisclosure agreements in a form that has been made available to the
Purchaser, other than Xxxxx Xxxxxxxxx.
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(i) Seller has taken all commercially reasonable necessary and appropriate
steps to protect and preserve the confidentiality of all Seller's Intellectual
Property not otherwise protected by patents, patent applications or copyright
("Confidential Information"). All use, disclosure or appropriation of
Confidential Information owned by Seller by or to a third party has been
pursuant to the terms of a written agreement between Seller and such third
party, except to the extent that the failure to enter into a written agreement
did not or will not have a material adverse effect on the Purchaser. All use,
disclosure or appropriation of Confidential Information not owned by Seller has
been pursuant to the terms of a written agreement between Seller and the owner
of such Confidential Information, or is otherwise lawful.
(j) There are no actions that must be taken by Seller within one hundred
and eighty (180) days following the date of this Agreement that, if not taken,
will result in the loss of any of Seller's Intellectual Property, including the
payment of any registration, maintenance or renewal fees or the filing of any
responses, documents, applications or certificates for the purposes of
obtaining, maintaining, perfecting or preserving or renewing any of the Seller's
Intellectual Property.
(k) All of the rights and interests possessed by Seller in Seller's
Intellectual Property are fully and completely transferable and assignable to
Purchaser, free and clear of any Encumbrances, and no consent or approval of any
third party is required for such transfer and assignment.
(l) Except as would not otherwise materially impair Seller's ability to
account for, enforce its rights under, make use of, understand or memorialize
Seller's Intellectual Property, Seller has taken all reasonable steps, in
accordance with normal industry practice, to preserve and maintain notes and
records relating to Seller's Intellectual Property to cause the same to be
readily understood, identified and available.
(m) All software or other embodiments of Seller's Intellectual Property,
upon delivery to the Purchaser, shall be in good working order, regularly and
property maintained and tested, shall to the best of Seller's knowledge
substantially meet the specifications set forth in the documentation for such
item, and shall function properly and is suitable and adequate for use in the
ordinary course of business. Any software under development is transferred "as
is."
4.14 Contracts.
(a) Schedule 4.14 contains a true, complete and accurate list of all
Contracts, whether written or oral, to which the Seller is a party or by which
any of the Assets are bound (each, an "Assigned Contract"). The Seller has no
obligations under, and is not a party to any consulting or other Contract with
independent agents, sales representatives or other Persons which are not listed
on Schedule 4.14. The Seller is not a party to any Assigned Contract that is
subject to renegotiation or as to which the Seller has been advised that the
Assigned Contract will be terminated. The Seller is not obligated under any loan
agreement, promissory note or other evidence of indebtedness as a signatory,
guarantor or otherwise and has not otherwise guaranteed the performance by any
Person of the obligations of such Person under any Contract.
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(b) No consent of any party to any Assigned Contract is required in
connection with the execution, delivery and performance of this Agreement or the
Contemplated Transactions.
(c) The Seller is not in default under any Assigned Contract, nor
has any event occurred, which through the passage of time or the giving of
notice, or both, would constitute a default by the Seller, would cause the
acceleration of any of the Seller's obligations thereunder, would result in the
creation of any Encumbrance or restriction on any of the Assets. No third party
is in default under any lease or contract to which the Seller is a party, nor
has any event occurred that, through the passage of time or the giving of
notice, or both, would constitute a default thereunder.
(d) Neither the Seller nor the Principal is a party to or bound by
any Contract which (i) limits the Seller or the Principal from competing in any
line of business or with any Person or in any geographic area or during any time
period or (ii) grants any Person any preferential right to purchase from the
Seller or the Principal, any properties or assets of the Seller or the Principal
or of any capital stock, or securities convertible into, any capital stock of
the Seller.
4.15 Affiliated Transactions. No Affiliate or other family member (i) has
borrowed or has been advanced funds from or loaned funds to the Seller, (ii) is
a party to a Contract with the Seller or (iii) has engaged in any transaction
with the Seller.
4.16 Ordinary Course. The business has been conducted only in the ordinary
and usual course of business consistent with past practice. Without limiting the
generality of the foregoing, the Seller has not: (i) suffered any adverse change
in its financial condition, the business or operations or in the Assets; or (ii)
sold, transferred, or otherwise disposed of any material portion of its
properties or Assets.
4.17 Employee Matters. The Seller is not (a) a party to any union,
collective bargaining or similar agreement; (b) providing or obligated to
provide any profit sharing, deferred compensation, bonus, savings, stock option,
stock purchase, pension, consulting, retirement, welfare or other incentive plan
or agreement; (c) providing or obligated to provide "fringe benefits" or any
employee perquisites to employees, including, without limitation, vacation, sick
leave, medical, hospitalization, insurance and related benefits; or (d) a party
to any employment or consulting agreement not terminable upon notice without
penalty. The Seller has no employees. No present or former employee of the
Seller has any claim on account of or for bonuses, vacation, time off earned or
otherwise.
4.18 Records. The Records are the true books and records of the business
of the Company and truly and accurately reflect the underlying facts and
transactions. The Records and the Seller's Intellectual Property contain all the
documentation required to operate the business constituting the Battery Brain
Product after the Closing Date as presently operated and no other records or
documents exist which are necessary to operate the business.
4.19 Investment Representations and Acknowledgement.
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(a) The Principal understands that the Shares have not been registered
under the Securities Act of 1933 as amended (the "Securities Act"). The
Principal also understands that the Shares are being offered and sold pursuant
to an exemption from registration contained in the Securities Act based in part
upon the Principal's and Seller's representations contained in the Agreement.
(b) The Principal further represents and warrants as follows:
(i) Economic Risk. The Principal has substantial experience in
evaluating private placement transactions of securities in companies
similar to the Purchaser so that it is capable of evaluating the merits
and risks in the transaction contemplated herein and has the capacity to
protect its own interests. The Principal must bear the economic risk of
this purchase indefinitely unless the Shares are registered pursuant to
the Securities Act, or an exemption from registration is available. The
Principal also understands that there is no assurance that any exemption
from registration under the Securities Act will be available and that,
even if available, such exemption may not allow the Principal to transfer
all or any portion of the Shares under the circumstances, in the amounts
or at the times the Principal might propose.
(ii) Purchase for Own Account. The Principal is acquiring the Shares
for the Seller's own account for investment only, and not with a view
towards their distribution.
(iii) Principal Can Protect its Own Interest. The Principal
represents that by reason of its, or of its management's, business or
financial experience, the Principal has the capacity to protect its own
interests in connection with the transactions contemplated in this
Agreement.
(iv) Purchaser Information. The Principal has received and read this
Agreement, all the filings made by the Purchaser with the Securities and
Exchange Commission and has had an opportunity to discuss the Purchaser's
business, management and financial affairs with the directors, officers
and management of the Purchaser. The Principal has also had the
opportunity to ask questions of, and receive answers from the Purchaser
and its management regarding the terms and conditions of transactions
contemplated herein.
(c) Transfer Restrictions. The Principal acknowledges and agrees that the
Shares are subject to restrictions on transfer as set forth in the applicable
provisions of the Securities Act and any other applicable securities laws. Each
certificate representing the Shares shall be endorsed with a legend as required
under applicable securities laws.
4.21 Accuracy. All representations, warranties and certifications
contained in this Agreement, including any schedules delivered herewith, and all
the other documents delivered in connection with this Agreement and the
Contemplated Transaction delivered directly or indirectly by the Seller or the
Principal are true, correct and complete, do not contain any statement which is
false or misleading with respect to a material fact and do not omit to state a
material fact necessary in order to make the statements herein and therein not
false or misleading.
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5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
represents and warrants to the Seller as follows:
5.1 Organization and Good Standing. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Utah. The Purchaser has all requisite corporate or other power to own, operate
and lease its properties and carry on its business as the same is now being
conducted.
5.2 Authority Relative to Agreement. The Purchaser has all requisite power
and authority, corporate or otherwise, to execute, deliver and perform its
obligations under this Agreement and has taken all action, corporate or
otherwise, necessary in order to execute and deliver this Agreement and all
other instruments or agreements to be executed in connection herewith and to
consummate the Contemplated Transactions. This Agreement has been duly executed
and delivered by the Purchaser. This Agreement constitutes the valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms, subject to laws relating to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, marshaling or other laws and rules of
law affecting the enforcement generally of creditors' rights and remedies
(including such as may deny giving effect to waivers of debtors' or guarantors'
rights). Notwithstanding anything contained herein to the contrary, the Parties
agree and acknowledge that until and unless the shareholders of Purchaser duly
authorize the increase in the authorized share capital of the Purchaser, the
Shares cannot be validly issued; notwithstanding, the Shares are issuable as of
the dates provided for in this Agreement.
5.3 Absence of Conflict. Neither the execution and delivery of the
Transaction Documents by the Purchaser nor the consummation of the Contemplated
Transactions by the Purchaser will (a) violate, conflict with, result in a
breach or termination of, constitute a default under or give rise to a right to
terminate, amend, cancel or accelerate (or an event which, with notice or lapse
of time or both, would constitute the same) (i) any material Contract to which
the Purchaser is a party or by which any of its properties or assets is bound;
(ii) the Certificate of Incorporation or Bylaws of the Purchaser or (iii) any
Law, order of a Governmental Body or any other restriction of any kind or
character applicable to the Purchaser or any of its properties or assets; or (b)
result in the creation or imposition of any Encumbrance upon any properties or
assets of the Purchaser except where any such violation, conflict, breach,
termination, default, amendment, cancellation, acceleration or Encumbrance would
not have a material adverse effect on the Purchaser or the Contemplated
Transactions.
5.4 Consents and Approvals. No consent, waiver, registration, certificate,
approval, grant, franchise, concession, permit, license, exception or
authorization of, or declaration or filing with, or notice or report to, (a) any
Governmental Body and (b) any other Person (including, but not limited to, any
party to a Contract of the Purchaser), is required in connection with the
execution, delivery and performance of the Transaction Documents by the
Purchaser, other than approvals which have already been obtained and except
where the failure to obtain any such approval would not have a material adverse
effect on the Contemplated Transactions.
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5.5 No Brokers or Finders. The Purchaser has not, nor have any of its
Affiliates, officers, directors or employees on behalf of the Purchaser,
employed any broker or finder or incurred any liability for any brokerage or
finder's fee or commissions or similar payment in connection with any of the
Contemplated Transactions.
5.6 The Shares. The Shares are duly authorized, fully paid, and
non-assessable, and represent no less than twenty (20%) percent of the share
capital of the Purchaser on a fully-diluted basis as of the Closing Date. If the
Shares contemplated by Section 2.4(c) above are issued to the Principal, said
Shares shall be duly authorized, fully paid and non-assessable and shall
represent the appropriate percentage of the share capital of the Purchaser
pursuant to the terms of Section 2.4(c). The Shares shall be validly issued
immediately upon the Purchaser being duly authorized to do so. The Shares are
free and clear of any Encumbrances, other than as imposed by applicable
securities laws.
5.7 Accuracy. All representations, warranties and certifications contained
in this Agreement, including any schedules delivered herewith, and all the other
documents delivered in connection with this Agreement and the Contemplated
Transaction delivered directly or indirectly by the Purchaser are true, correct
and complete, do not contain any statement which is false or misleading with
respect to a material fact and do not omit to state a material fact necessary in
order to make the statements herein and therein not false or misleading.
6. POST-CLOSING COVENANTS.
6.1 Directors. Following the Closing, the Board of Directors of the
Purchaser shall consist of five (5) members. The Principal shall be entitled to
appoint 40% of the representatives to the Board of Directors of the Purchaser
(the "Levinas Directors"). Upon any retirement, resignation, death or disability
of any Levinas Director, the Principal shall have the sole right to appoint a
replacement.
6.2 Registration Rights. Purchaser and the Principal mutually agree to
negotiate, in good faith, an agreement regarding the registration rights of the
Principal for the Shares. The Principal shall be entitled to equal registration
rights with the controlling shareholders of the Purchaser, pro rata in
accordance with their holdings in the Purchaser, subject to a lock-up agreement.
6.3 Additional Investment. The parties agree that the Purchaser shall use
its best efforts to achieve the following goals within two (2) years after the
Closing Date:
(a) Consummate an equity raise for the Purchaser of not less than one
million five hundred thousand ($1,500,000) dollars at a Purchaser post-money
valuation of not less than twelve million ($12,000,000) dollars; provided, that
all equity raises within 120 days after the Closing Date which are based on a
post-money valuation which is $10,500,000 or greater, shall be counted toward
the $1,500,000; or
(b) Generate revenue for the Battery Brain Product in the aggregate amount
of two million ($2,000,000) dollars.
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If the Purchaser does not achieve either (a) or (b) at any time on or
prior to the second anniversary of the date hereof, the Principal shall be
entitled to receive, on the second anniversary date of the Closing Date, shares
in the Purchaser which equal 20% of the outstanding share capital of the
Purchaser on a fully-diluted basis (calculated as of said date).
6.5 Right of First Refusal. If the Purchaser shall for any reason cease to
manufacture, sell or otherwise cease to be involved in the Battery Brain
Product, then the Principal shall have the right to purchase the Battery Brain
Product from the Purchaser. The price and other terms of such right shall be
negotiated between the parties.
7. INDEMNIFICATION.
7.1 Indemnification by the Purchaser. The Purchaser shall indemnify and
hold harmless the Seller, the Principal and their respective Affiliates,
officers, directors, stockholders, employees and agents and the successors and
assigns of all of them, and shall reimburse each of them for any loss,
liability, claim, damage, expense (including, but not limited to, costs of
investigation and defense and attorneys' fees) (collectively, "Damages"),
arising from or in connection with any Damages resulting directly or indirectly
from the transaction contemplated by this Agreement, including without
limitation, the Xxxxxxxxx Claim.
7.2 Tax Loan. If there are any Taxes imposed on Principal and/or Seller as
a result of the receipt of the Shares, the Purchaser agrees to lend the
Principal and/or Seller, as the case may be, the amount of Damages owed as a
result thereof. Said loan shall be for a period of not less than 10 years.
8. MISCELLANEOUS.
8.1 Entire Agreement. This Agreement contains, and is intended as, a
complete statement of all of the terms and the arrangements between the Parties
with respect to the matters provided for, supersedes any previous agreements and
understandings between the Parties with respect to those matters, including
without limitation the Letter of Intent, is not intended to confer upon any
other Person any rights or remedies hereunder, and cannot be changed or
terminated orally.
8.2 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
8.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the law of the State of New York applicable to agreements made
and to be performed therein without giving effect to conflicts of law
principles. Each of the Parties agree to submit to the jurisdiction of the
federal or state courts located in the City of New York in any actions or
proceedings arising out of or relating to this Agreement. Each of the Parties,
by execution and delivery of this Agreement, expressly and irrevocably (i)
consent and submit to the personal jurisdiction of any of such courts in any
such action or proceeding; (ii) consent to the service of any complaint,
summons, notice or other process relating to any such action or proceeding by
delivery thereof to such party as set forth in Section 12.6 below and (iii)
waive any claim or defense in any such action or proceeding based on any alleged
lack of personal jurisdiction, improper venue or forum non conveniens or any
similar basis. EACH OF THE UNDERSIGNED HEREBY WAIVES FOR ITSELF AND ITS
PERMITTED SUCCESSORS AND ASSIGNS THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING INSTITUTED IN CONNECTION WITH THIS AGREEMENT.
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8.4 Further Assurances. In case at any time after the Closing, any further
action or the execution and delivery of any additional documents or instruments
shall be necessary or desirable to carry out the purposes of this Agreement and
render effective the consummation of the Contemplated Transactions, the Parties
shall take such actions and execute such additional documents and instruments as
may be reasonably requested by any other Party.
8.5 Headings. The table of contents and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the Agreement
of the Parties and shall not in any way affect the meaning or interpretation of
this Agreement. All references in this Agreement to Sections, Schedules and
Exhibits are to sections, schedules and exhibits to this Agreement, unless
otherwise indicated.
8.6 Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given when (a) delivered by hand, (b)
transmitted by facsimile (and confirmed by return facsimile), or (c) delivered,
if sent by Express Mail, Federal Express or other nationally recognized
overnight delivery service or registered or certified mail, return receipt
requested, to the addressee at the following addresses or facsimile numbers (or
to such other addresses, or facsimile number as a party may specify by notice
given to the other party pursuant to this provision):
If to the Purchaser, to:
Xxxxxxx.xxx, Inc.
c/o Xxxxx Xxxxx & Associates
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
If to the Seller or the Principal, to:
Xxxxxx X. Xxxxxxx
0-00 Xxxxx Xxxxx
Xxxx Xxxx, XX 00000
Tel: 000-000-0000/000-000-0000
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8.7 Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors and
permitted assigns and heirs and representatives. Except as specifically set
forth herein, nothing in this Agreement shall create or be deemed to create any
third party beneficiary rights in any Person who is not a Party. The Seller and
the Principal shall not assign this Agreement or of any their rights or
obligations hereunder without the prior written consent of the Purchaser.
8.8...Counterparts. This Agreement may be executed in any number of
counterparts and by facsimile, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have executed this instrument
as of the date and year first above written.
XXXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxx
-------------------------
Name: Xxxx Xxxxx
Title: President
PURISYS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx, individually
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DISCLOSURE SCHEDULE
This Disclosure Schedule is made and given pursuant to the Asset Purchase
Agreement dated as of March 23, 2005 (the "Agreement") among Purisys Inc.,
Xxxxxxx.xxx, Inc. and Xxxxxx Xxxxxxx. Unless the context otherwise requires, all
capitalized terms used in this Disclosure Schedule shall have the respective
meanings ascribed to such terms in the Agreement.
The information, descriptions and disclosures contained in a particular
part of the Disclosure Schedule will be deemed to be automatically disclosed in
(a) another part of the Disclosure Schedule if a cross reference to such other
part of a schedule is made, and (b) any other part of the Disclosure Schedule
where relevance of such disclosure to another numbered or lettered part would be
reasonably apparent from such disclosure, notwithstanding any reference to
"None" with respect to any part of the Disclosure Schedule.
Schedule 2.1(vii)
Physical Assets; Equipment
Five sets of a telephone system
Two Computers
Three Printers
IC programmer
Schedule 2.2
Assumed Liabilities
1. Purchaser shall assume all warranties and service the Battery Brain
Products which have been sold prior to the Closing Date
2. Purchaser is aware of a claim by Xxxxx Xxxxxxxxx, an Israeli engineer who
claims he was involved in the initial design of the Battery Brain Product
(the "Xxxxxxxxx Claim")
Schedule 4.14
Contracts
Agreement dated November 23, 2002 between Xxxxxx X. Xxxxxxx and Purisys Inc. and
Xxx. Xxxx Man, and the Patent Registration Statement
Memorandum dated August 20, 2001 between China National Aer-Technology Imp & Exp
Corp and Purisys Inc.
Sales Representative Agreement dated as of July 10, 2001 by and between Purisys
Inc. and IAT Automotive, Inc.
Letter with Purisys Inc. and Xxxxxx Xxxxxxxx dated November 20, 2001
Proprietary Information Agreement dated as of September 12, 2001 between Exide
Technologies and Purisys Inc.
Other confidentiality agreements with third parties
