Exhibit 10
ASSET PURCHASE AGREEMENT
DATED AS OF FEBRUARY 14, 2007
BY AND BETWEEN
HNI, LLC
AND
COMCAM, INC.
ASSET PURCHASE AGREEMENT
THIS ASSET
PURCHASE AGREEMENT (this “ Agreement ”), is
made and entered into as of this 14th day of February, 2007, by and
between HNI, LLC , a Connecticut limited liability company
(the “ Seller ”), and COMCAM, INC ., a
Delaware corporation (the “ Purchaser ”).
Purchaser and Seller are sometimes collectively referred to herein
as the “Parties” and individually as a “
Party ”.
RECITALS
WHEREAS,
Seller owns certain intellectual property assets, and Purchaser
desires purchase such intellectual property assets upon the terms
and subject to the conditions set forth in this Agreement;
NOW,
THEREFORE , in consideration of the foregoing and of the
respective representations, warranties, covenants, and agreements
herein contained, and intending to be legally bound, the Parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Capitalized
terms used but not defined in this Agreement shall have the
meanings ascribed to them in Exhibit A hereto (such meanings
applicable to both the singular or plural forms of the terms so
defined), and Exhibit A is hereby incorporated herein by
reference.
ARTICLE II
SALE AND PURCHASE
Section 2.01 . Purchase and Sale of Assets
. Upon the terms and subject to the conditions set forth in this
Agreement, at the Closing (as defined in Section 4.01 below),
Purchaser shall purchase, acquire and accept from Seller, and
Seller shall sell, transfer, assign, convey and deliver to
Purchaser, all of the Seller’s right, title and interest in
and to the intellectual property assets of Seller listed and
described in Schedule I hereto, and any tangible embodiments of
such intellectual property assets, including without limitation
documentation, manuals, and demonstration cases (collectively, the
“ Assets ”), subject, however, to Seller’s
rights set forth in Article VIII below.
Section 2.02 . Excluded Assets .
Notwithstanding any other provision of this Agreement to the
contrary, the Assets shall not include any assets of Seller not
expressly set forth in Section 2.01 above, which shall remain the
property of Seller, including without limitation:
(a) all cash on hand or on deposit;
and
(b) all rights of Seller under this
Agreement or any of the Ancillary Documents.
Section 2.03. Liabilities . From and after the
Closing, Purchaser shall assume and pay when legally due any and
all liabilities, obligations and commitments relating to the
Assets, except for those liabilities, obligations and commitments
of Seller under this Agreement or any Ancillary Document.
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Section 2.04 . Subsequent Documentation
. At any time and from time to time after the Closing
Date, Seller shall, upon the request of Purchaser, and Purchaser
shall, upon the request of Seller, promptly execute, acknowledge,
and deliver, or cause to be executed, acknowledged, and delivered,
such further instruments and other documents, and perform or cause
to be performed such further acts, as may be reasonably required to
evidence or effectuate (a) the sale, conveyance, transfer,
assignment, and delivery hereunder of any of the Assets, (b) the
performance by the Parties of any of their other respective
obligations under this Agreement, and (c) to carry out the
purposes and intent of this Agreement, provided, however, that the
expenses incurred by any such Party in complying with any such
request shall be reimbursed by the requesting Party.
ARTICLE III
CONSIDERATION
Section 3.01 . Note. In consideration for
the sale of the Assets, the Purchaser shall issue on the Closing
Date to the Seller a certain convertible debenture in the original
principal amount of $125,000.00, in the form of Exhibit
B attached hereto and made a part hereof (the “
Note ”). Purchaser’s obligations under the Note
shall be secured by a certain Security Agreement executed by
Purchaser in favor of Seller, in the form of Exhibit
C attached hereto and made a part hereof (the “
Security Agreement ”).
Section 3.02. Fair Consideration . The
Parties acknowledge and agree that the consideration provided for
in this Article III represents fair consideration and
reasonable equivalent value for the sale and transfer of the
Assets, and the transactions, covenants, and agreements set forth
in this Agreement, which consideration was agreed upon as the
result of arm’s-length good-faith negotiations among the
Parties and their respective representatives.
ARTICLE IV
CLOSING
Section 4.01. Closing . The Closing of the
transactions contemplated by this Agreement (the “
Closing ”) shall be deemed to take place at the
offices of Updike, Kelly & Spellacy, P.C., at One Century
Tower, 265 Church Street, New Haven, Connecticut 06510, at 10:00
a.m. EST on February 14, 2007, concurrently with the execution and
delivery of this Agreement and the other documents and agreements
set forth in this Article IV or at such other place and time, or on
such other date, as may be mutually agreed to by the Parties (the
“ Closing Date ”).
Section 4.02 . Deliveries by Seller
. At the Closing, Seller shall have delivered to
Purchaser the following agreements, documents and other items:
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(a)
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a counterpart of the Bill of Sale and Assumption Agreement, in
the form attached hereto as Exhibit D (the “
Bill of Sale ”), duly executed by Seller;
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(b)
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a counterpart of the Intellectual Property Assignment and
Assumption Agreement by and between Seller and Purchaser, in the
form attached hereto as Exhibit E (the “
IP Agreement ”), duly executed by Seller; and
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(c)
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a counterpart of the Security Agreement, duly executed by
Seller.
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Section 4.03. Deliveries by Purchaser.
At the Closing, Purchaser shall have delivered to
Seller the following agreements, documents and other items:
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(a) the Note, duly executed by
Purchaser;
(b) a counterpart of the Bill of Sale,
duly executed by Purchaser;
(c) a counterpart of the IP Agreement,
duly executed by Purchaser; and
(d) a counterpart of the Security
Agreement, duly executed by Purchaser.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
As a material
inducement to Purchaser to enter into this Agreement and to
consummate the transactions contemplated hereby, Seller represents
and warrants to Purchaser as follows:
Section 5.01 . Authorization of Transaction;
Validity . Seller has all requisite limited
liability company power and authority to enter into this Agreement
and all applicable Ancillary Documents and to carry out its
obligations hereunder and thereunder. The execution and delivery of
this Agreement and all Ancillary Documents, and the performance of
Purchaser’s obligations hereunder and thereunder, have been
duly authorized by all necessary limited liability company or other
action on the part of Purchaser, and no other limited liability
company or other proceedings on the part of Purchaser is necessary
to authorize such execution, delivery and performance. This
Agreement and the applicable Ancillary Documents have been duly
executed and delivered by Purchaser, and this Agreement and the
Ancillary Documents constitute Purchaser’s valid and binding
obligation, enforceable against Purchaser in accordance with its
and their terms, subject to (i) the effect of applicable
bankruptcy, insolvency, reorganization or moratorium, or other
similar laws, statutes or rules of general application relating to,
or affecting, the enforcement of creditors’ rights generally,
now or hereafter in effect, and (ii) rules of law governing
specific performance, injunctive relief or other equitable
remedies.
Section 5.02 . Brokers’ Fees
. No broker, finder, or Person is entitled to any
commission or finder’s fee in connection with Seller’s
execution and delivery of this Agreement or the Ancillary
Documents, or with the transactions contemplated hereby or
thereby.
Section 5.03. Disclaimer . EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES SET FORTH ABOVE, PURCHASER HEREBY
ACKNOWLEDGES THAT SELLER IS NOT MAKING, AND SELLER HEREBY
DISCLAIMS, ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE
ASSETS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, TITLE,
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT OF THE INTELLECUTAL PROPERTY RIGHTS OF THIRD
PARTIES, AND SELLER IS SELLING AND ASSIGNING SUCH ASSETS TO
PURCHASER “AS-IS” AND “WHERE-IS”.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby
represents and warrants to Seller as follows:
Section 6.01 . Authorization of Transaction
; Validity. Purchaser has all requisite corporate power and
authority to enter into this Agreement and all applicable Ancillary
Documents and to carry out its obligations hereunder and
thereunder. The execution and delivery of this Agreement and all
Ancillary Documents, and the performance of Purchaser’s
obligations hereunder and thereunder, have been duly authorized by
all necessary corporate or other action on the part of Purchaser,
and no other corporate or other proceedings on the part of
Purchaser is necessary to authorize such execution, delivery and
performance. This Agreement and the applicable Ancillary Documents
have been duly executed and delivered by Purchaser, and this
Agreement and the Ancillary Documents constitute Purchaser’s
valid and binding obligation, enforceable against Purchaser in
accordance with its and their terms, subject to (i) the effect of
applicable bankruptcy, insolvency, reorganization or moratorium, or
other similar laws, statutes or rules of general application
relating to, or affecting, the enforcement of creditors’
rights generally, now or hereafter in effect, and (ii) rules of law
governing specific performance, injunctive relief or other
equitable remedies.
Section 6.02. Consents and Approval . The
execution, delivery and performance of this Agreement and the
Ancillary Documents by Purchaser, and the consummation by Purchaser
of the transactions contemplated hereby or thereby, will not
require any notice to, or consent, authorization or approval,
filing, or registration from, any court, governmental authority,
private entity, or any other third party.
Section 6.03 . No Conflicts . The
authorization, execution, delivery and performance of this
Agreement and the other Ancillary Documents, the consummation of
the transactions contemplated hereby and thereby, and the sale of
the Assets, will not conflict with or result in a breach of or
default under (or with due notice or lapse of time or both would
result in a default under) any statute, law, rule, regulation,
judgment, decree, writ, injunction, order or award of any
arbitrator, court or governmental authority, or any agreement or
instrument which is applicable to the Purchaser.
Section 6.04 . Brokers’ Fees. No
broker, finder, or Person is entitled to any commission or
finder’s fee in connection with Purchaser’s execution
and delivery of this Agreement and the Ancillary Documents, or with
the transactions contemplated hereby or thereby.
Section 6.05. Valid
Issuance .
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(a)
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The Note and the shares of the Purchaser’s capital stock
issuable upon the conversion of the Note (the “ Conversion
Stock ”), when issued, sold and delivered in accordance
with the terms of this Agreement and the Note, will be duly and
validly issued, fully paid and nonassessable.
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(b)
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The issuance of the Note is exempt from the registration and
prospectus delivery requirements of the U.S. Securities Act of
1933, as amended (the “ 1933 Act ”) and the
securities registration and qualification requirements of the
currently effective provisions of the securities laws of applicable
states.
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(c)
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The Note and the Conversion Stock, when issued, will be free of
any liens, claims, encumbrances or restrictions on transfer other
than restrictions on transfer under applicable laws.
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ARTICLE VII
INDEMNIFICATION
Section 7.01 . Indemnification by Seller
. Seller shall indemnify and hold harmless Purchaser and
its successors, members, managers, employees, officers, directors,
representatives, Affiliates and agents from and against any and all
damages, losses, obligations, liabilities, claims, encumbrances,
penalties, costs and expenses, including reasonable
attorneys’ fees (and costs and reasonable attorneys’
fees in respect of any suit to enforce this provision) (each, an
“ Indemnity Loss ”), arising from or relating
to:
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(a)
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any misrepresentation, breach of warranty or nonfulfillment of
any of the representations, warranties, covenants or agreements of
Seller in this Agreement, any of the Ancillary Documents, or any
certificate, document, schedule, exhibit, or instrument executed in
connection herewith or therewith;
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(b)
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any liability, cost or expense arising out of or relating to any
claim by any Person for a broker’s or finder’s fee
incurred as a result of any agreement or understanding of Seller
with any Persons in connection with the transactions contemplated
by this Agreement; and
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(c)
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any and all Proceedings, demands, assessments, audits or
judgments arising out of any of the foregoing.
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Section 7.02 . Indemnification by Purchaser
. Purchaser shall indemnify and hold harmless Seller and
Seller’s representatives, Affiliates and agents from and
against any and all Indemnity Losses resulting from or relating
to:
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(a)
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any misrepresentation, breach of warranty or nonfulfillment of
any of the representations, warranties, covenants or agreements of
Purchaser in this Agreement, any of the Ancillary Documents, or any
certificate, document, schedule, exhibit or instrument executed in
connection herewith or therewith;
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(b)
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any damage, liability, obligation or commitment of any nature
incurred by Seller, or due to third party claim, or relating to the
Assets;
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(c)
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any and all Proceedings, demands, assessments, audits or
judgments arising out of any of the foregoing.
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Section 7.03. Notice . If an indemnified
Party (the “ Claimant ”) believes that such
Party has suffered or incurred any Indemnity Loss, it shall so
notify the Party which the Claimant believes has an obligation to
indemnify (the “ Indemnifying Party ”) promptly
in writing describing such loss or expense, the amount thereof, if
known, and the method of computation of such loss or expense, all
with reasonable particularity (the “ Indemnification
Notice ”). If any action at Law, suit in equity, or
administrative action is instituted by or against a third party
with respect to which the Claimant intends to claim any liability
or expense as an Indemnity Loss under this Article VII, it shall
promptly notify the Indemnifying Party in writing of such action or
suit describing such loss or expense, the amount thereof, if known,
and the method of computation of such loss or expense, all with
reasonable particularity (the “ Litigation Notice
”) in lieu of an Indemnification Notice. To the extent
failure to promptly notify the Indemnifying Party of such action or
suit can reasonably be deemed to increase the liability or expense
to the Claimant, the Indemnifying Party shall not be obligated to
reimburse Claimant for the amount of such increase in liability or
expense.
Section 7.04. Defense of Claims . The Indemnifying
Party shall have twenty (20) calendar days after receipt of the
Litigation Notice to notify the Claimant that it acknowledges its
obligation to indemnify and hold harmless the Claimant with respect
to the Indemnity Loss set forth in the Litigation Notice and that
it elects to conduct and control any legal or administrative action
or suit with respect to an indemnifiable claim (the “
Election Notice ”). If the Indemnifying Party does not
give the foregoing Election Notice, the Claimant shall have the
right to defend, contest, settle, or compromise such action or suit
in the exercise of Claimant’s exclusive discretion;
provided, however , that the right of Claimant to
indemnification hereunder shall not be conclusively established
thereby. If the Indemnifying Party gives the foregoing Election
Notice, the Indemnifying Party shall have the right to undertake,
conduct, and control, through counsel of its own choosing and at
its sole expense, the conduct and settlement of such action or
suit, and the Claimant shall cooperate with the Indemnifying Party
in connection therewith; provided , however, that (a)
the Indemnifying Party shall not thereby consent to the imposition
of any injunction against the Claimant without the written consent
of the Claimant, (b) the Indemnifying Party shall permit the
Claimant to participate in such conduct or settlement through legal
counsel chosen by the Claimant, except as provided in clause (c)
below, (c) upon a final determination of such action or suit, the
Indemnifying Party shall promptly reimburse the Claimant, to the
extent required under this Article VII, for the full amount of any
Indemnity Loss incurred by the Claimant, except fees and expenses
of legal counsel that the Claimant incurred after the assumption of
the conduct and control of such action or suit by the Indemnifying
Party in good faith, and (d) the Claimant shall have the right to
pay or settle any such action or suit, provided ,
however , that in the event of such payment or settlement,
the Claimant shall waive any right to indemnity therefor by the
Indemnifying Party and no amount in respect thereof shall be
claimed as an Indemnity Loss under this Article VII. In the event
of a payment or settlement under this Section 7.04, the Claimant
shall also reimburse the Indemnifying Party for fees and costs
incurred by the Indemnifying Party prior to the payment or
settlement.
Section 7.05. Payment of Losses . The Indemnifying
Party shall pay to the Claimant in cash the amount to which the
Claimant may become entitled by reason of the provisions of this
Article VII within fifteen (15) business days after such amount is
finally determined either by mutual agreement of the parties or the
date on which both such amount and Claimant’s obligation to
pay such amount have been determined by a final judgment of the
trial court or administrative body having jurisdiction over such
Proceeding.
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ARTICLE VIII
ADDITIONAL RIGHTS
Until the stated
date of maturity set forth in the Note, regardless of whether the
Note has been sooner converted, the Purchaser shall not transfer,
license, sell or assign any of the Assets (or any rights therein)
without the prior written consent of the Seller, not to be
unreasonably withheld or delayed, except for the granting of
licenses in the ordinary course of business. Without limiting the
foregoing, it shall not be deemed unreasonable for the Seller to
withhold consent to any such sale or assignment to an Affiliate of
the Purchaser (i) until Seller receives substantially similar
securities in such Affiliate (including secured convertible notes
and any capital stock issued or issuable thereon) in exchange for
the securities in the Purchaser held by the Seller (including the
Note and any capital stock issued or issuable thereon), (ii) unless
Seller receives substantially similar rights from such Affiliate as
Seller has from the Purchaser at the time of such assignment, and
(iii) unless such Affiliate has substantially similar obligations
to Seller as Purchaser has to the Seller at the time of such
assignment.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Public Announcements . Purchaser
shall not make any public announcement of the transactions provided
for in or contemplated by this Agreement or any of the Ancillary
Documents without the prior written consent of Seller or as
required by Purchaser’s disclosure obligations under the
Exchange Act of 1934, as amended.
Section 9.02. Costs and Expenses . Except as
otherwise expressly provided herein, each of the Parties shall bear
all expenses and costs incurred by it in connection with this
Agreement and the Ancillary Documents and the transactions
contemplated by any of them, including, without limitation, the
fees and disbursements of any legal counsel, independent
accountants or any other Person or representative whose services
have been used by such Party.
Section 9.03. Further Assurances . From and after
the date of this Agreement, upon the reasonable request of any
Party and without consideration, the other Party shall execute and
deliver such agreements, instruments, documents and other writings
and take any other actions as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the
intent and purposes of this Agreement and the Ancillary Documents.
Subject to the terms and conditions of this Agreement and the
Ancillary Documents, each Party will use its commercially
reasonable efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary or desirable under
applicable Laws and regulations to consummate the transactions
contemplated by this Agreement and the Ancillary Documents.
Section 9.04. Addresses for Notices, Etc . All
notices, requests, demands and other communications that are
required or may be given pursuant to the terms of this Agreement
shall be in writing, and delivery shall be deemed sufficient in all
respects and to have been duly given as follows: (i) on the date of
service if delivered personally; (ii) at the time of receipt of
confirmation by the transmitting Party if by facsimile
transmission; (iii) on the third (3rd) day after mailing if mailed
by first-class mail return receipt requested, postage prepaid and
properly addressed as set forth in this Section 9.03; or (iv) on
the day after delivery to a nationally recognized overnight courier
service during its business hours or the Express Mail service
maintained by the United States Postal Service during its business
hours for overnight delivery against receipt, and properly
addressed as set forth in this Section 9.03:
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If to Purchaser, to:
Comcam, Inc.
Attn: Don Gilbreath
1140 McDermott Drive, Suite 200
West Chester, PA 19380
Telephone: (610) 436-8089
Facsimile: (610) 436-8079
If to Seller, to:
HNI, LLC
Attn: Thomas A. Conroy
c/o Next Generation Ventures
200 Corporate Place
2nd Bldg., 3rd Floor
Rocky Hill, CT 06067
Telephone: (860) 257-4262
Facsimile: (860) 257-4525
With a copy to
(which copy shall not constitute notice for the purposes of this
Agreement):
Gregg J. Lallier
Updike, Kelly and Spellacy, P.C.
One Century Tower
265 Church Street
New Haven, CT 06510
Telephone: (203) 786-8313
Facsimile: (203) 772-2037
Any Party may change its address or other contact information
for notice by giving notice to each other Party in accordance with
the terms of this Section 9.03.
Section 9.05. Headings . The article, section and
paragraph headings in this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this
Agreement.
Section 9.06. Construction
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(a)
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The Parties have participated jointly in the negotiation and
drafting of this Agreement and the Ancillary Documents, and, in the
event of an ambiguity or a question of intent or a need for
interpretation arises, this Agreement and the Ancillary Documents
shall be construed as if drafted jointly by the Parties and no
presumption or burden of proof shall arise favoring or disfavoring
any party by virtue of the authorship of any of the provisions of
this Agreement or any of the Ancillary Documents.
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(b)
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Except as otherwise specifically provided in this Agreement or
any of the Ancillary Documents (such as by “sole,”
“absolute discretion,” “complete
discretion”, or words of similar import), if any provision of
this Agreement or any of the Ancillary Documents requires or
provides for the consent, waiver or approval of a Party, such
consent, waiver or approval shall not be unreasonably withheld or
delayed.
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(c)
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Nothing in the schedules or exhibits to this Agreement or any of
the Ancillary Documents shall be deemed adequate to disclose an
exception to a representation or warranty made herein unless the
schedule or exhibit identifies the exception with particularity and
describes the relevant facts in reasonable detail.
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(d)
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The Parties acknowledge and agree that each breach of a covenant
or agreement in this Agreement or any of the Ancillary Documents
shall have independent significance.
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(e)
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Words of any gender used in this Agreement or any of the
Ancillary Documents shall be held and construed to include any
other gender; words in the singular shall be held to include the
plural and words in the plural shall be held to include the
singular, unless and only to the extent the context indicates
otherwise.
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(f)
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Reference to any Law means such Law as amended, modified,
codified, replaced or reenacted, in whole or in part, and in effect
from time to time, including rules and regulations promulgated
thereunder, and reference to any section or other provision of any
Law means that provision of such Law from time to time in effect
and constituting the substantive amendment, modification,
codification, replacement or reenactment of such section or other
provision.
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(g)
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“Hereunder,” “hereof,”
“hereto,” “herein,” and words of similar
import shall be deemed references to this Agreement as a whole and
not to any particular article, section or other provision
hereof;
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(h)
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“Including” (and with correlative meaning
“include”) means including without limiting the
generality of any description preceding such term.
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(i)
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“Or” is used in the inclusive sense of
“and/or”.
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(j)
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References to documents, instruments or agreements shall be
deemed to refer as well to all addenda, appendices, exhibits,
schedules or amendments thereto.
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Section 9.07. Severability . The invalidity
or unenforceability of any provision of this Agreement or any of
the Ancillary Documents shall in no way affect the validity or
enforceability of any other provision of this Agreement or any of
the Ancillary Documents.
Section 9.08. Entire Agreement . This Agreement
and the Ancillary Documents, including the Exhibits and Schedules
referred to and incorporated by reference herein and therein that
form a part of this Agreement and the Ancillary Documents, contain
the entire understanding of the Parties with respect to the subject
matter of this Agreement and the Ancillary Documents. There are no
representations, promises, warranties, covenants or undertakings
other than those expressly set forth in or provided for in this
Agreement or the Ancillary Documents. This Agreement and the
Ancillary Documents supersede all prior agreements and
understandings among the Parties hereto with respect to the
transactions contemplated by this Agreement and the Ancillary
Documents.
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Section 9.09. Amendments and Waivers . No
amendment, modification or change may be made to this Agreement or
to any of the Ancillary Documents, except pursuant to a written
instrument signed by each of the Parties hereto or thereto.
Compliance with any covenant or provision of this Agreement or any
of the Ancillary Documents may be waived if the Party benefiting
from such covenant or provision shall specifically consent or agree
thereto in a written instrument. Any waiver may be given subject to
satisfaction of conditions stated therein, and any waiver shall be
effective only in the specific instance and for the specific
purpose for which given.
Section 9.10. No Waiver; Cumulative Remedies . No
failure or delay on the part of any Party in exercising any right,
power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the
exercise of any other right, power or remedy hereunder. The rights
and remedies specified in this Agreement shall not be exclusive of
any other right or remedy and shall be cumulative and in addition
to every other right or remedy now or hereafter existing at Law or
in equity or by statute or otherwise that may be available to any
Party.
Section 9.11. Parties in Interest . Nothing in
this Agreement is intended to confer any rights or remedies under
or by reason of this Agreement on any Person other than Seller or
Purchaser and their respective successors and permitted
assigns.
Section 9.12. Successors and Assigns;
Assignment; Binding Effect; Assignment . This
Agreement shall be binding upon and inure to the benefit of each of
the Parties hereto and their respective successors and permitted
assigns. Seller may, without any prior notice to or consent of
Seller, assign or delegate, in whole or in part, its rights and
duties under this Agreement and the Ancillary Documents. Except as
expressly set forth herein, nothing in this Agreement shall confer
any claim, right, interest or remedy on any Person (other than the
Parties hereto) or inure to the benefit of any Person (other than
the Parties hereto). Purchaser shall not assign its rights or
obligations under this Agreement to any Person, except with the
prior written consent of the Seller, and any assignment in
contravention of the foregoing shall be null and void, and of no
effect.
Section 9.13. Governing Law; Jurisdiction . The
internal Laws of the State of Connecticut shall govern the
interpretation, construction and enforcement of this Agreement and
the Ancillary Documents and all transactions and agreements
contemplated by any of them, notwithstanding any state’s
choice of Law rules to the contrary. Each Party hereby irrevocably
agrees that any legal action or proceeding arising out of or
relating to this Agreement, any Ancillary Document or any
agreements or transactions contemplated hereby or thereby may be
brought in the courts of the State of Connecticut or of the United
States of America located in the State of Connecticut and hereby
expressly submits to the personal jurisdiction and venue of such
courts for the purposes thereof and expressly waives any claim of
improper venue and any claim that such courts are an inconvenient
forum.
Section 9.14. Waiver of Jury Trial . EACH PARTY
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
UNDER THIS AGREEMENT OR ANY OF THE ANCILLARY DOCUMENTS OR UNDER ANY
AMENDMENT, CONSENT, WAIVER, INSTRUMENT, DOCUMENT, OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
WITH ANY OF THEM OR ARISING FROM ANY RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE ANCILLARY DOCUMENTS.
EACH PARTY AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.
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Section 9.15.
Counterparts.
This Agreement may be
executed in any number of counterparts, and each such counterpart
hereof shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement
(notwithstanding that all of the parties are not signatories to the
original or the same counterpart, or that signature pages from
different counterparts are combined), and it shall not be necessary
when making proof of this Agreement or any counterpart thereof to
account for any other counterpart, and the signature of any party
to any counterpart shall be deemed to be a signature to and may be
appended to any other counterpart. For purposes of this Agreement,
a document (or signature page thereto) signed and transmitted by
facsimile machine or other electronic means is to be treated as an
original document. The signature of any party on any such document,
for purposes hereof, is to be considered as an original signature,
and the document transmitted is to be considered to have the same
binding effect as an original signature on an original document. At
the request of any party, any facsimile or other electronic
signature is to be re-executed in original form by the parties
which executed the facsimile or other electronic signature. No
party may raise the use of a facsimile machine or other electronic
means, or the fact that any signature was transmitted through the
use of a facsimile machine or other electronic means, as a defense
to the enforcement of this Agreement.
Section 9.16. Survival of Representations and
Warranties . Except as specifically set forth elsewhere in
this Agreement, all representations and warranties made in this
Agreement or in any of the Ancillary Documents (or any other
certificate or instrument delivered in connection with any of them)
shall indefinitely survive the execution and delivery of this
Agreement and the Ancillary Documents, and the Closing. No
investigation or review carried out by or on behalf of any Party
shall impair the rights of that Party to rely upon those
representations and warranties or to seek to enforce any remedies
with respect to any breach or violation thereof.
Section 9.17. Captions. The captions of the
Articles and Sections of this Agreement are solely for convenient
reference and shall not be deemed to affect the meaning or
interpretation of any provision of this Agreement.
Section 9.18. Schedules, Exhibits and Certificates
. All Schedules and Exhibits referred to herein form an integral
part of this Agreement and shall be deemed to be part of this
Agreement to the same extent as if set forth in the text of this
Agreement. All statements contained in certificates and other
instruments attached hereto or delivered or furnished on behalf of
any Party hereto shall be deemed representations and warranties of
that Party pursuant to this Agreement.
[INTENTIONALLY LEFT BLANK — SIGNATURE PAGE
FOLLOWS]
11
[
Signature Page to Asset Purchase Agreement]
IN WITNESS
WHEREOF , the Parties hereto have executed, or caused to be
executed by their duly authorized representatives, this Agreement
as of the date first above written.
COMCAM, INC.
By: /s/ Don Gilbreath
Its Chief Executive Officer
HNI, LLC
By: Next Generation Ventures, LLC
Its Member
By: /s/ Thomas A. Conroy
Thomas A. Conroy Its Manager
12
Schedule I
Assets
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1.
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Common law trademark rights to “Radia”.
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2.
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Patent No. 6,975,220, and the inventions and technology
associated with such patent.
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3.
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Software (inclusive trademark rights, patent rights, trade
secret rights and copyrights therein) known as the “Radia
Virtual Incident Responder System”, and all accompanying
brochures, manuals and materials thereto.
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4.
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PLC Board specifications and design layout (inclusive trademark
rights, patent rights, trade secret rights and copyrights there
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