ASSET PURCHASE AGREEMENT Between Digital Turbine, Inc. as Purchaser, Digital Turbine Group, LLC, as Seller, and Peter A. Adderton and Fred E. Goldring, as Members Dated: December 28, 2011
Between
Digital Turbine, Inc.
as Purchaser,
Digital Turbine Group, LLC,
as Seller,
and
Xxxxx X. Xxxxxxxx
and
Xxxx X. Xxxxxxxx,
as Members
Dated:
December 28, 2011
TABLE OF CONTENTS
Page
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ARTICLE I
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SALE AND PURCHASE OF ASSETS
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1
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1.1
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Assets to be Transferred
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1
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1.2
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Title to Purchased Assets
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1
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1.3
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Nontransferable Assets
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1
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ARTICLE II
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NO ASSUMPTION OF LIABILITIES
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2
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2.1
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No Assumption of Liabilities
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2
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ARTICLE III
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PURCHASE PRICE, PAYMENT AND RELATED MATTERS
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2
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3.1
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Payment of the Purchase Price
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2
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3.2
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Changes in Parent Common Stock
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2
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3.3
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Excise Taxes; Title Insurance Premiums
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2
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ARTICLE IV
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CLOSING
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2
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4.1
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Time and Place
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2
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4.2
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Transactions at the Closing
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3
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ARTICLE V
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REPRESENTATIONS AND WARRANTIES OF SELLER AND THE MEMBERS
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4
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5.1
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Organization; Capitalization; Authority; Due Authorization
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4
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5.2
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No Violation
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4
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5.3
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Regulatory Approvals and Other Consents
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5
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5.4
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Title to Purchased Assets
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5
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5.5
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Financial Condition
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5
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5.6
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Inventory; Prepaid Items
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5
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5.7
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Ownership of Real Property
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6
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5.8
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Tangible Personable Property
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6
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5.9
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Intellectual Property
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6
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5.10
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Agreements
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7
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5.11
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Compliance with Applicable Laws; Governmental Matters
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8
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5.12
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Tax Matters
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8
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5.13
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Pensions and Benefit Plans
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8
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5.14
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Litigation
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8
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5.15
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Employees
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9
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5.16
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Insurance
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9
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5.17
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Minute Books
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9
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5.18
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No Broker
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9
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5.19
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Absence of Adverse Changes
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9
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5.20
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Necessary Properties
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9
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5.21
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Full Disclosure
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9
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5.22
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Investment Representations
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9
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ARTICLE VI
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REPRESENTATIONS AND WARRANTIES OF PURCHASER
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11
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6.1
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Due Incorporation
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11
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6.2
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Authority to Execute and Perform Agreements
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11
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TABLE OF CONTENTS
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6.3
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Due Authorization; Enforceability
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11
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6.7
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Issuance of Shares
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11
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ARTICLE VII
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INDEMNIFICATION
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11
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7.1
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Indemnification by Seller and Members
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11
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ARTICLE VIII
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TERMINATION; REMEDIES
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12
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8.1
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Specific Performance
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12
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8.2
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Attorneys’ Fees
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12
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ARTICLE IX
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COVENANTS AND AGREEMENTS OF THE PARTIES AFTER CLOSING
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12
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9.1
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Covenants Against Competition
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12
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9.2
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Change of Name of Seller
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14
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9.3
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Sale Restriction
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15
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9.4
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Change of Name of Purchaser
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15
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ARTICLE X
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DEFINITIONS
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15
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10.1
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Definitions
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15
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10.2
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Other Defined Terms
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19
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10.3
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Other Interpretive Provisions
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20
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ARTICLE XI
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MISCELLANEOUS
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20
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11.1
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Expenses of Sale
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20
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11.2
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Publicity
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20
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11.3
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Notices
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21
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11.4
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Survival of Representations and Warranties
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22
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11.5
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Further Assurances
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22
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11.6
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Amendments
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22
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11.7
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Entire Agreement
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22
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11.8
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Governing Law and Venue
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22
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11.9
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Arbitration
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22
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11.10
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Attorneys’ Fees
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23
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11.11
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Binding Effect
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23
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11.12
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Assignment
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23
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11.13
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Counterparts
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23
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11.14
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Severability
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23
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11.15
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No Third Party Rights
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23
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11.16
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Construction
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23
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Exhibit 4.2(c)(i)
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Form of Assignment and Xxxx of Sale
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Exhibit 4.2(c)(ii)
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Software Assignment
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Exhibit 4.2(c)(iii)
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Trademark Assignment
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Exhibit 4.2(j)
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Form of Xxxxx Xxxxxxxx Employment Agreement
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Exhibit 5.9
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Intellectual Property
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Exhibit 5.10
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Contracts
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-ii-
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, effective as of December 28, 2011 (the “Effective Date”), is made and entered into by and between Digital Turbine, Inc., a Delaware corporation (“Purchaser”); Digital Turbine Group, LLC, a California limited liability company (“Seller”); and Xxxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx, the sole members of Seller (the “Members”).
A. Seller is engaged in the business of the development and marketing of a customized user interface and content management system for mobile entertainment devices (the “Business”).
B. Purchaser wishes to purchase from Seller, and Seller wishes to sell to Purchaser, the Business together with the Purchased Assets (as defined below), upon the terms and subject to the conditions of this Agreement.
ARTICLE I
ARTICLE II
ARTICLE III
ARTICLE IV
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(a) Purchaser shall deliver the Stock Certificate to Seller in accordance with Section 3.1 (which shall occur within three (3) business days following the Closing Date);
(b) Purchaser shall provide to Seller a certificate of good standing with respect to its jurisdiction of formation;
(c) Seller shall deliver to Purchaser an Assignment and Xxxx of Sale, assignments in registrable form of all trademarks, service marks, patents, copyrights and registrations or applications for the same included within the Purchased Assets, in the form of Exhibits 4.2(c)(i) through 4.2(c)(iii), together with such other instruments of sale, transfer, conveyance, assignment and confirmation, and Seller shall take such further actions, as Purchaser may reasonably deem necessary or desirable in order to transfer, convey and assign to Purchaser, and to confirm Purchaser’s title to, all of the Purchased Assets, to put Purchaser in actual possession and operating control thereof and to assist Purchaser in exercising all rights with respect thereto;
(d) Seller shall deliver to Purchaser (i) a cashier’s or certified check drawn by Seller to the order of Purchaser in the aggregate amount of all of Seller’s cash on hand and in banks or, at Purchaser’s option, an assignment of all of Seller’s bank accounts in form and substance satisfactory to Purchaser; and (ii) all instruments and securities constituting a part of the Cash and Cash Equivalents as of the Effective Time, duly endorsed to the order of Purchaser;
(e) Seller shall deliver to Purchaser all of the Books and Records of Seller;
(f) Seller shall provide to Purchaser a certificate of good standing with respect to its jurisdiction of formation and each other jurisdiction in which Seller does business;
(g) Seller shall deliver to Purchaser security interest reports, obtained by Seller at its sole expense, dated not earlier than five (5) days prior to the Closing Date, showing that as of the date of said report there are no financing statements on file with respect to any of the Purchased Assets except as permitted hereunder;
(h) Seller shall deliver to Purchaser the latest Tax bills affecting the Purchased Assets, including, without limitation, any and all assessment notices, whether special or general, local, state or otherwise;
(i) Seller shall deliver to Purchaser all other properties, documents and certificates required to be delivered to Purchaser hereunder, to the extent not theretofore delivered;
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(j) Xxxxx Xxxxxxxx shall execute and deliver the employment agreement in the form of Exhibit 4.2(j), which shall be effective as of the Effective Time;
(k) Seller shall deliver to Purchaser a fully executed copy of (A) the DT AUS Assignment and (B) the License Agreement between Seller and DTPL, each of which shall be in form satisfactory to Purchaser, in its sole and absolute discretion, which shall be effective at or prior to the Effective Time;
(l) Purchaser shall have received from DT AUS an executed copy of a first amendment to the License Agreement between Seller and DTPL in form satisfactory to Purchaser, in its sole and absolute discretion, which shall be effective at the Effective Time; and
(m) Seller shall deliver to Purchaser copies of any and all consents and approvals required to consummate the transactions contemplated under this Agreement, together with a listing of any consents or approvals that have not been so obtained as of the Effective Time.
ARTICLE V
Seller and each of the Members, jointly and severally, hereby represent and warrant to Purchaser that:
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(a) Exhibit 5.9 sets forth, as of the date hereof, (i) a true and accurate identification of each registered and unregistered fictitious business name, trademark, service xxxx, trade name, domain name, URL, web site and slogan, and each registration and application for any of the foregoing, constituting a part of the Intellectual Property of Seller; (ii) a true and complete schedule of each statutory, common law and registered copyright, and each registration and application for any of the foregoing, constituting a part of such Intellectual Property; (iii) a true and complete schedule of each patent and associated invention, industrial model, process and design, technical information, know-how and operating maintenance or other manual and each registration and application for any of the foregoing, constituting a part of such Intellectual Property; (iv) each item of Software and associated documentation constituting a part of such Intellectual Property; (v) a true and complete list, without extensive or revealing descriptions, of each trade secret constituting a part of such Intellectual Property, including each related process or item of know-how or other technical data, and including, as to each such trade secret, the specific location of each writing, computer program or other tangible medium containing its complete description, specifications, source codes, charts, procedures, manuals and other descriptive material relating to it; and (vi) a true and complete list of all Contracts to which Seller is a party either as licensee or licensor relating to any item of such Intellectual Property. The consummation of the transactions contemplated herein will not adversely affect in any manner the nature or usefulness of any item of such Intellectual Property in the hands of Seller. As of the date hereof:
(i) Seller is the owner of all right, title and interest in and to each item of its Intellectual Property, free and clear of all Liens;
(ii) all trademarks, service marks, patents, copyrights and other state and federal registrations and all applications therefor listed in Exhibit 5.9 are valid and in full force and effect and are not subject to any Taxes, maintenance fees or actions falling due within ninety (90) days after the date hereof;
(iii) all of the Software of Seller performs in full compliance with all of the specifications therefor (including, without limitation, functional specifications) set forth in user manuals, promotional materials or license agreements;
(iv) accurate and complete copies of all source codes relating to all versions of each item of Software of Seller exist and have been made available to Purchaser;
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(v) all items of Software of Seller (other than licensed Software), including all prior versions thereof, were conceived, made and reduced to practice solely by Persons who were employees of Seller, and such Software resulted exclusively from work performed by those employees for Seller; any and all ideas, designs, concepts, techniques, inventions and discoveries which were conceived, made or reduced to practice by those employees relating in any way to such Software are “works made for hire” as a matter of law and are owned exclusively by Seller, and valid registrations exist and are in effect with respect to all of such Software;
(vi) there are no pending claims, actions, judicial or other adversary proceedings, disputes or disagreements involving Seller concerning any item of its Intellectual Property, and, to the Knowledge of Seller, no such action, proceeding, dispute or disagreement is threatened;
(vii) all current officers, employees and consultants of Seller (other than employees and consultants who have not been involved in developing any Intellectual Property of Seller and who have no managerial responsibilities) have executed and delivered to Seller agreements regarding the protection of proprietary information and the assignment to Seller of all Intellectual Property rights arising from the services performed for Seller by such Persons, and Seller has made available to Purchaser or its counsel copies of all such agreements; and
(viii) to the Knowledge of Seller, no employee or consultant of Seller is in violation of any term of any employment Contract, patent disclosure agreement, non-competition agreement or any other Contract or restrictive covenant relating to the right of such Person to be employed or engaged by Seller or to use the Intellectual Property rights of others.
(a) Each Seller Material Contract is the valid and binding obligation of the other contracting party enforceable in all material respects in accordance with its terms against the other contracting party and is in full force and effect, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Applicable Laws affecting creditors’ rights generally or by general equitable principles affecting the enforcement of contracts; and all rights of Seller thereunder are owned free and clear of any Liens;
(b) Seller has fulfilled all material obligations required pursuant to each Seller Material Contract to have been performed by it prior to the date hereof, and to Seller’s Knowledge and to the knowledge of the Members, Seller will be able to fulfill, when due, all of its obligations under each Seller Material Contract which remain to be performed after the date hereof;
(c) no other contracting party to any Seller Material Contract or has breached such Seller Material Contract in any material respect within the twelve (12) month period prior to the date hereof; to Seller’s Knowledge and to the knowledge of the Members, there is no anticipated material breach thereof by any such party; and there are not now, nor have there been in the twelve (12) month period prior to the date hereof, any disagreements or disputes between Seller and any other party to any Seller Material Contract relating to the validity or interpretation of such Seller Material Contract or to the performance by any party thereunder;
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(d) Seller is not a party to, nor bound by, any Contract, or any provision of its articles of organization or operating agreement which (i) restricts the conduct of its business anywhere in the world or its ability to sell products or services to a specified Person, (ii) grants most favored nation priority and/or terms to any Person, (iii) requires or may potentially require the renegotiation of government Contracts or (iv) any unusual or burdensome provisions which could reasonably be expected to have a material adverse effect; and
(e) Seller is not under any material liability or obligation with respect to the return of inventory or products sold by Seller which are in the possession of distributors, wholesalers, retailers or customers.
8
(a) Seller and each Member are “accredited investors” within the meaning of Rule 501 of Regulation D under the Securities Act and have sufficient knowledge and experience in investing so as to be able to evaluate the risks and merits of the investments in the Parent Common Stock;
9
(b) Seller and each Member understand that the Parent Common Stock has not been registered under the Securities Act and that it will be a “restricted security” and must be held until there has been compliance with the registration requirements of the Securities Act and applicable state securities laws, except as permitted under certain exemptions to such requirements contained in the Securities Act and the rules and regulations promulgated thereunder. Except any transfers of Parent Common Stock owned by Seller to the Members, Seller and the Members will not offer, sell, pledge, hypothecate, or otherwise transfer or dispose any of the Parent Common Stock unless such offer, sale, pledge, hypothecation or other transfer or disposition is registered under the Securities Act or exempt from the registration requirements thereof.
(c) Seller and each Member are able to financially bear the risks of loss of its or his entire investment in the Parent Common Stock issuable as the Stock Consideration hereunder;
(d) Seller and each Member are acquiring the Parent Common Stock for its or his own account and not with a view to or for sale in connection with any distribution thereof, except for the distribution thereof by Seller to each such Member; and
(e) Seller and each Member understand and consent to the placement of a legend on any certificate or other document evidencing Parent Common Stock stating that such Parent Common Stock has not been registered under the Securities Act and setting forth or referring to the restrictions on transferability and sale thereof. Each certificate evidencing the Parent Common Stock shall bear the legends set forth below, or legends substantially equivalent thereto, together with any other legends that may be required by any Applicable Law at the time of the issuance of the Parent Common Stock:
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL (I) SUCH OFFER, SALE, TRANSFER, PLEDGE OR HYPOTHECATION HAS BEEN REGISTERED UNDER THE ACT OR (II) THE ISSUER OF SUCH SECURITY HAS RECEIVED AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH THE ACT.
(f) Seller and each Member have had a full and complete opportunity to inquire and examine all information deemed by it or him to be relevant and material to make an informed decision about the transactions contemplated in this Agreement. Seller and each Member acknowledge and agree that it or he is not relying upon any representations or warranties of Purchaser except the representations and warranties specifically set forth in this Agreement.
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ARTICLE VI
Purchaser represents and warrants to Seller as follows:
6.1 Due Incorporation. Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the state of Delaware.
ARTICLE VII
11
ARTICLE VIII
12
ARTICLE IX
13
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ARTICLE X
“Accounts Receivable” of a Person shall mean all accounts, notes, accounts receivable, contract rights, drafts, and other forms of claims, demands, instruments, receivables and rights to the payment of money or other forms of consideration, whether for goods or other property sold or leased, services performed or to be performed, or otherwise, owned by that Person or in which that Person has any interest, together with all guarantees, security agreements and other rights and interests guaranteeing or securing the same.
“Affiliate” shall mean with respect to any Person (i) a Person directly or indirectly controlling, controlled by or under common control with such Person; (ii) a Person owning or controlling 10% or more of the outstanding voting securities of such Person; or (iii) an officer, director, member or partner of such Person or a member of the immediate family of an officer, director, member or partner of such Person. When the Affiliate is an officer, director, member or partner of such Person or a member of the immediate family of an officer, director, member or partner, any other Person for which the Affiliate acts in that capacity shall also be considered an Affiliate. For these purposes, control means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” shall mean this Asset Purchase Agreement, including all exhibits and schedules thereto, as the same may hereafter be amended, modified or supplemented from time to time in accordance with the provisions of Section 11.6.
“Applicable Law” shall mean, with respect to any Person, any domestic or foreign, federal, state or local statute, law, ordinance, rule, administrative interpretation, regulation, Order, writ, injunction, directive, judgment, decree or other requirement of any Authority applicable to such Person or any of its Affiliates or ERISA Affiliates or any of their respective properties, assets, officers, directors, general partners, managers, employees, consultants or agents (in connection with such officer’s, director’s, general partner’s, manager’s, employee’s, consultant’s or agent’s activities on behalf of such Person or any of its Affiliates or ERISA Affiliates).
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“Authority” shall mean any governmental, regulatory or administrative body, agency or authority, any court of judicial authority, any arbitrator or any public, private or industry regulatory authority, whether Federal, state, local or foreign.
“Books and Records” of a Person shall mean all books and records, ledgers, employee records, customer lists, files, correspondence, computer data bases, accounting information and other records of every kind, whether written, computerized or maintained in any other medium, which are owned by that Person or in which that Person has any interest.
“Code” means the Internal Revenue Code of 1986, as amended from time to time. Any reference to a specific section of the Code shall refer to the cited provision as the same may be subsequently amended from time to time, as well as to any successor provision(s).
“Contracts” of a Person shall mean all contracts, agreements, warranties, guaranties, indentures, bonds, options, leases, subleases, easements, mortgages, plans, collective bargaining agreements, licenses, commitments or binding arrangements of any nature whatsoever, express or implied, written or unwritten, and all amendments thereto, entered into or binding upon that Person or to which any property of that Person may be subject.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time. Any reference to a specific section of ERISA shall refer to the cited provision as the same may be subsequently amended from time to time, as well as to any successor provision(s).
“ERISA Affiliate” of a Person shall mean any other Person which, together with such Person, is required to be treated as a single employer under Section 414 of the Code.
“GAAP” means generally accepted accounting principles in the United States, consistently applied.
“Intellectual Property” of a Person shall mean all intangible properties owned by that Person or in which that Person has any interest (including the right to use by license or otherwise), and includes, without limitation, (a) all registered and unregistered trademarks, service marks, trade names, trade dress, logos, corporate names, slogans and commercial symbols, all applications therefor, and all associated goodwill, including, without limitation, the name “Digital Turbine,” any uses or derivation thereof and any logos representing such name; (b) all domain names and URLs, and all websites and the “look and feel” of all such websites (including, without limitation, each such website’s particular typefaces, color schemes, themes and the like); (c) all statutory, common law and registered copyrights, all applications therefor and all associated goodwill; (d) all patents and patent applications, all associated technical information, shop rights, know-how, trade secrets, processes, operating, maintenance and other manuals, drawings and specifications, process flow diagrams and related data, and all associated goodwill; (e) all software developed for Seller pursuant to an agreement between Seller and the software designer designating the software a “work made for hire,” all software developed by an employee of Seller, and all documentation thereof (including all electronic data processing systems and program specifications, functional specifications, source and object codes, algorithms, architecture, input data, report layouts and format, record file layouts, diagrams, narrative descriptions and flow charts) (collectively, the “owned software”) and all “off the shelf” software purchased in retail transactions (collectively, the “licensed software”) (the “owned software” and the “licensed software” collectively referred to herein as the “Software”); (f) all other mask works, moral rights, inventions, discoveries, improvements, processes, formulae (secret or otherwise), data, drawings, specifications, trade secrets, confidential information, financial, marketing and business data, pricing and cost models and information, business and marketing plans, operating procedures, customer and supplier lists, knowledge of customer preferences and buying practices and all other ideas (including those in the possession of third parties, but which are the property of that Person); (g) all drawings, records, books or other tangible media embodying the foregoing; (h) all rights to obtain and rights to register patents, trademarks and copyrights; and (i) all rights to xxx or recover and retain damages and costs and attorneys’ fees for present and past infringement of any of the foregoing.
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“Knowledge” shall mean, with respect to Seller, the actual knowledge of each of the Members and its managers, executive officers and key employees, the knowledge that each such Person would have acquired upon diligent inquiry and the knowledge that is imputed to each such Person and/or Seller by operation of Applicable Law.
“Licenses and Permits” of a Person shall mean all licenses and permits issued to that Person or in which that Person has any interest (including the right to use).
“Lien” shall mean any lien, encumbrance, pledge, mortgage, security interest, lease, charge, conditional sales contract, option, restriction, reversionary interest, right of first refusal, voting trust arrangement, preemptive right, claim under bailment or storage contract, easement or any other adverse claim or right whatsoever.
“Losses” shall mean all damages, awards, judgments, assessments, fines, sanctions, penalties, charges, costs, expenses, payments, Taxes, diminutions in value and other losses, however suffered or characterized, all interest thereon, all costs and expenses of investigating any claim, lawsuit or arbitration and any appeal therefrom, all actual attorneys’ fees incurred in connection therewith, whether or not such claim, lawsuit or arbitration is ultimately defeated and all amounts paid incident to any compromise or settlement of any such claim, lawsuit or arbitration.
“Order” shall mean any decree, order, judgment, writ, award, injunction, rule or consent of or by an Authority.
“Parent Common Stock” means common stock of NeuMedia, Inc., a Delaware corporation and the parent of Purchaser, par value $0.0001 per share.
“Person” shall mean any entity, corporation, company, association, joint venture, joint stock company, partnership, trust, organization, individual (including personal representatives, executors and heirs of a deceased individual), nation, state, government (including agencies, departments, bureaus, boards, divisions and instrumentalities thereof), trustee, receiver or liquidator, as well as any syndicate or group that would be deemed to be a Person under Section 13(d)(3) of the Securities Exchange Act of 1934.
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“Prepaid Items” of a Person shall mean all prepaid items (such as insurance deposits, municipal or local tax payments or deposits, utility deposits and the like), deferred charges, reserve accounts and other security and similar deposits owned by that Person or in which that Person has any interest.
“Purchased Assets” shall mean all of the Business, goodwill, assets, properties and rights of every nature, kind and description, whether tangible or intangible, real, personal or mixed, wherever located and whether or not carried or reflected on the Books and Records of Seller, which are owned by Seller or in which Seller has any interest (including the right to use), including, but not limited to the following:
(a) all Intellectual Property of Seller;
(b) all transferable Licenses and Permits of Seller;
(c) all Accounts Receivable of Seller;
(d) all Cash and Cash Equivalents of Seller;
(e) all Books and Records of Seller;
(f) all rights of Seller under express or implied warranties from the suppliers of Seller with respect to the Purchased Assets, to the extent assignable;
(g) all of Seller’s claims, causes of action, choses in action, rights of recovery and rights of set-off of any kind;
(h) all of Seller’s right to receive mail and other communications, including, without limitation, all telephone and facsimile numbers and electronic mail and addresses of Seller;
(i) all certifications and approvals from all certifying agencies issued to Seller and all of Seller’s rights to all data and records held by certifying agencies;
(j) all goodwill of the Business as a going concern; and
(k) all other properties, tangible and intangible, not otherwise referred to above which are owned by Seller or in which it has any interest.
“Securities Act” means the Securities Act of 1933, as amended.
“Seller Material Contracts” shall mean, collectively, the Contracts of Seller which are required to be identified in any Exhibit (including, without limitation, in Exhibit 5.10) by the terms and provisions of this Agreement.
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“Subsidiary” of a Person shall mean each corporation, limited liability company, partnership, joint venture, trust or other entity in which that Person has, directly or indirectly, an equity interest representing ten percent (10%) or more of any class of the capital stock thereof or other equity interest therein or the management and policies of which that Person has the ability to direct, whether by contract, voting power or otherwise.
“Tangible Personal Property” of a Person shall mean all machinery, equipment, vehicles, furniture, trade fixtures, computers, supplies, spare parts, tools, stores and other tangible personal property owned by that Person, leased by that Person or in which that Person has any other interest (including the right to use), other than the Inventories and the Books and Records of that Person.
“Tax” shall mean any federal, state, local or foreign tax, charge, fee, levy, deficiency or other assessment of whatever kind or nature (including without limitation, any net income, gross income, built-in gains, gross receipts, sales, use, value added, ad valorem, transfer, franchise, profits, license, withholding, payroll, employment, unemployment, excise, estimated, severance, stamp, occupation, real property, personal property, intangible property, occupancy, recording, minimum, environmental and windfall profits tax, including any liability therefor as a transferee (including without limitation under Section 6901 of the Code or any similar provision of Applicable Law), as a result of Treasury Regulation Section 1.1502-6 or any similar provision of Applicable Law, or as a result of any tax sharing or similar agreement, together with any interest, penalty, addition to tax or additional amount imposed by any Tax Authority. “Taxing” and Taxable” shall have the correlative meanings.
Term
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Section
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ADR
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Section 11.9
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Arbitrator
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Section 11.9
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Business
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Recital A
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Check Register
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Section 5.5(a)
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Closing
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Section 4.1
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DT AUS Assignment
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Exhibit 5.10
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DTPL
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Section 4.2(k)
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Effective Time
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Section 4.1
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Excluded Liabilities
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Section 2.1
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JAMS
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Section 11.9
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19
List
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Section 11.9
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Members
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Preamble
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Purchaser
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Preamble
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Purchaser Documents
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Section 6.2
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Restricted Period
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Section 9.1(a)
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Seller
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Preamble
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Seller Documents
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Section 5.1
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Stock Certificate
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Section 3.1
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Stock Consideration
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Section 3.1
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ARTICLE XI
20
To Seller:
c/o Xxxxx X. Xxxxxxxxx, Esq.
00000 Xxxxxxx Xx. #000
Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
To the Members:
Xxxxx X. Xxxxxxxx
#12 Sail Vista
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
and
Xxxx X. Xxxxxxxx
00000 Xxxxxx Xxxxx Xxxx.
Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
To Purchaser:
00000 Xxxxxxx Xxxx., 0xx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
With a copy to:
Loeb & Loeb LLP
00000 Xxxxx Xxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
21
11.8 Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the conflicts of laws principles thereof. Any suit brought hereon, whether in contract, tort, equity or otherwise, shall be brought in the state or federal courts sitting in Los Angeles, California, the parties hereto hereby waiving any claim or defense that such forum is not convenient or proper.
22
[Remainder of page intentionally left blank, signatures follow]
23
PURCHASER:
|
||
DIGITAL TURBINE, INC., a Delaware corporation
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||
By:
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/s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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||
Title: Corporate Secretary
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SELLER:
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DIGITAL TURBINE GROUP, LLC, a California limited liability company
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By:
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/s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
|
||
Title: Manager
|
||
MEMBERS:
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||
/s/ Xxxxx X Xxxxxxxx
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||
Xxxxx X. Xxxxxxxx
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||
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
|
Exhibit 4.2(c)(i)
Form of Assignment and Xxxx of Sale
ASSIGNMENT AND XXXX OF SALE
This Assignment and Xxxx of Sale (this “Agreement”) is made and entered into this 28th day of December, 2011, by and between Digital Turbine Group, LLC, a California limited liability company (hereinafter “Seller”), and Digital Turbine, Inc., a Delaware corporation (hereinafter “Buyer”), and is made with reference to the following:
A. Buyer and Seller have heretofore executed that certain Assert Purchase Agreement, dated of even date herewith (the “Purchase Agreement” herein).
B. Pursuant to the Purchase Agreement, Seller has agreed to sell to Buyer, and Buyer has agreed to purchase from Seller, certain assets of Seller hereinbelow described.
C. Buyer and Seller now desire to consummate the transfer of all of the assets as provided in the Purchase Agreement.
ARTICLE XII
12.1 For valuable consideration, the receipt and sufficiency of which Seller hereby acknowledges, Seller, pursuant to and in compliance with the Purchase Agreement, does hereby sell, convey, transfer, assign and deliver to Buyer, and Buyer does hereby accept from Seller, all of Seller’s right, title and interest in and to all of the Purchased Assets, as defined in the Purchase Agreement.
TO HAVE AND TO HOLD all such interests and assets hereby assigned, transferred and conveyed unto Buyer, its successors and assigns, to its and their own use and behalf forever.
ARTICLE XIII
Seller shall, at any time and from time to time after the date hereof, upon the request of Buyer, execute, acknowledge and deliver all such further acts, deeds, assignments, transfers, conveyances, powers of attorney and assurances, and take all such further actions, as shall be necessary or desirable to give effect to the transactions hereby consummated and to collect and reduce to the possession of Buyer any and all of the interests and assets hereby transferred to Buyer. Without limiting the generality of the foregoing, Seller hereby appoints Buyer, and its successors and assigns, the true and lawful attorney of Seller, in the name of Buyer or in the name of Seller but for the benefit and at the expense of Buyer, to demand and receive any and all interests and assets hereby transferred; to give releases and acquittances for or in respect of the same or any part thereof; to endorse, collect and deposit any checks, drafts or other instruments payable to Seller which constitute accounts receivable hereby assigned or relate to payments for goods and/or services provided by Seller or Buyer in connection with the accounts or rights under contract hereby assigned; to institute and prosecute, in the name of Seller or otherwise, any and all proceedings at law, in equity or otherwise, which Buyer, or its successors and assigns, may deem necessary or advisable to collect, assert or enforce any claim, right, title, debt or account hereby assigned; and to defend and compromise any and all actions, suits or proceedings in respect of any of the interests and assets hereby assigned that Buyer, or its successors or assigns, shall deem necessary or advisable. Seller hereby declares that the foregoing powers are coupled with an interest and shall be irrevocable.
ARTICLE XIV
It is understood that Seller, contemporaneously with the execution and delivery of this Agreement, is further executing and delivering to Buyer certain other assignments and instruments of transfer which in particular cover certain of the interests and assets hereinabove assigned, the purpose of which is to supplement, facilitate and otherwise implement the transfers intended hereby.
ARTICLE XV
This Agreement and the covenants and agreements herein contained shall inure to the benefit of and shall bind the respective parties hereto and their respective successors and assigns.
DIGITAL TURBINE GROUP, LLC
|
||
By:
|
||
Xxxxx X. Xxxxxxxx, Manager
|
||
DIGITAL TURBINE, INC.
|
||
By:
|
||
Xxxxx Xxxxxxx, Executive Vice President
|
Exhibit 4.2(c)(ii)
This Assignment is entered into as of December 28, 2011 by and between Digital Turbine Group, LLC, a California limited liability company (“Assignor”) and Digital Turbine, Inc., a Delaware corporation (“Assignee”).
WHEREAS, pursuant to that certain Asset Purchase Agreement dated December 28, 2011, Assignor agreed to sell its business and assets to Assignee, including the Software together with any developments, modifications, adaptations, improvements, enhancements, revisions, iterations or versions (the “Technology”) and any and all related intellectual property rights
1. Assignor hereby grants, transfers, assigns, and conveys to Assignee all of its rights, title, and interests in the Software and the Technology, and all of the copyrights (including derivative works), trademarks (including the accompanying goodwill), patents, trade dress, trade secrets, and other intellectual property rights whether registered or unregistered, moral rights, and as well as all other rights of whatever nature whatsoever in the Software and the Technology in the United States and throughout the universe; and
2. Assignor hereby waives any and all claims that it may now or hereafter have in any jurisdiction to so-called “moral rights” or “droits morals” in connection with the Software or the Technology.
3. Without limiting the generality of the foregoing grant, Assignor acknowledges that Assignee and its successors and assigns shall have the sole and exclusive right in perpetuity and throughout the universe to use, reproduce, license, exploit, sell, assign, make derivative works from, or otherwise dispose of all or any part of the Software or the Technology, in any format or version, by any means and in any media, now known or hereafter developed.
4. Assignor represents and warrants that:
a. Assignor is the sole owner of the Software and the Technology;
b. Neither the Software nor the Technology infringes the rights of any third party
c. the assignment of rights made hereunder in connection with the Software and the Technology is free and clear of any liens, encumbrances, obligations, security interests, irregularities, pledges, or other defects; and
d. Assignor is not aware of any third party claims with respect to the Software or the Technology.
5. Assignor agrees to execute and deliver such additional documents as may be reasonably necessary to establish the ownership of record of the copyrights, trademarks, patents, and other rights hereby assigned or to otherwise effectuate the intent of this Assignment.
Digital Turbine Group, LLC
|
Digital Turbine, Inc.
|
|||
By:
|
By:
|
|||
Xxxxx X. Xxxxxxxx, Manager
|
Xxxxx Xxxxxxx, Executive Vice President
|
|||
Date:
|
|
Date:
|
Exhibit 4.2(c)(iii)
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, DIGITAL TURBINE GROUP, LLC, a California limited liability company (“Assignor”), hereby sells, assigns, and transfers to (“Assignor”) and DIGITAL TURBINE, INC., a Delaware corporation (“Assignee”), absolutely and forever, the entire right, title, and interest, whether statutory or at common law, throughout the world, in and to the xxxx DIGITAL TURBINE (the “Xxxx”), together with the goodwill of the business symbolized by the Xxxx, any and all corresponding registrations and applications as well as all causes of action for any and all previously occurring infringements of the rights being assigned and the right to receive and retain the proceeds relating to those infringements.
Assignor agrees to execute any further papers and to do such other acts as may be necessary and proper to vest full title in and to the Xxxx and other corresponding rights in the Assignee.
By:
|
||
Name: Xxxxx X. Xxxxxxxx, Manager
|
State of California
|
}
|
|
County of
|
}
|
On __________________ before me, ______________________, personally appeared ________________________________________________________ personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
|
(Seal)
|
Exhibit 4.2(j)
Form of Xxxxx Xxxxxxxx Employment Agreement
See Exhibit 10.1
Exhibit 5.9
Software assigned to Seller pursuant to the DT AUS Assignment
Software acquired from MagNet Solutions, Inc. pursuant to November 1, 2010 agreement
Exhibit 5.10
Assignment, dated as of the date hereof, by and between Seller and DTPL (the “DT AUS Assignment”)
License Agreement, dated as of the date hereof, by and between Seller and DTPL