Exhibit
10.27
ASSET PURCHASE AGREEMENT
BETWEEN
ACS TECHNOLOGIES GROUP, INC.
AND
FINDEX.COM, INC.
October 18, 2007
TABLE OF CONTENTS
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Page
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1. DEFINITIONS
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1
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2. BASIC
TRANSACTION
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3
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(a) Purchase
and Sale of Assets
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3
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(b) Acquired
Assets
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3
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(c) Liabilities
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5
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(d) Assigned
Contracts
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5
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(e) Purchase
Price
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6
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(f) The
Closing
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6
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(g) Deliveries
at the Closing
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6
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(h) Further
Assurances
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7
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3. REPRESENTATIONS
AND WARRANTIES OF THE SELLER
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7
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(a) Organization
of Seller
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7
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(b) Authorization
of Transaction
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7
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(c) Noncontravention
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7
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(d) Brokers'
Fees
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8
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(e) Title
to Acquired Assets
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8
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(f) Software
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8
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(g) Online
Properties
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8
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(h) Inventories
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8
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(i) Proprietary
Rights
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9
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(j) Non-Infringement
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9
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(k) Legal
Compliance
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9
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(l) Contracts
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9
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(m) Litigation
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10
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(n) Product
Warranty
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10
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(o) Product
Liability
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10
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(p) Customer
Base
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10
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(q) Accounts
Receivable
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10
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(r) Disclosure
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11
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4. REPRESENTATIONS
AND WARRANTIES OF THE BUYER
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11
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(a) Organization
of Buyer
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11
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(b) Authorization
of Transaction
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11
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(c) Noncontravention
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11
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(d) Brokers’
Fees
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11
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5. INTENTIONALLY
DELTED
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11
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6. ADDITIONAL
CLOSING DOCUMENTS OR ACTIONS
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11
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(a) Additional
Closing Documents or Actions of Seller
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11
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(b) Additional
Closing Documents or Actions of Buyer
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12
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7. POST-CLOSING
COVENANTS
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12
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8. INDEMNIFICATION
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12
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(a) Indemnification
by Seller
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12
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(b) Indemnification
by Buyer
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13
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(c) Notice
of Claim
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13
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(d) Defense
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14
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(e) Time
for Claims
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14
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(f) Reduction
by Insurance Proceeds
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14
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9. MISCELLANEOUS
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14
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(a) Press
Releases and Public Announcements
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14
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(b) No
Third-Party Beneficiaries
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14
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(c) Entire
Agreement
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14
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(d) Succession
and Assignment
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15
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(e) Counterparts
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15
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(f) Headings
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15
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(g) Notices
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15
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(h) Governing
Law
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16
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(i) Amendments
and Waivers
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16
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(j) Severability
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16
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(k) Expenses
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16
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(l) Construction
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16
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(m) Incorporation
of Exhibits and Schedules
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17
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(n) Submission
to Jurisdiction
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17
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(o) Arbitration
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17
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Exhibit
A - Form of Assignment of Intellectual Propert
Exhibit
B-1 - Form of Opinion of Counsel to Seller (M.M. Membrado,
PLLC)
Exhibit
B-2 - Form of Opinion of Counsel to Seller (Mazour Law, PC,
LLO)
Exhibit
C - Form of General Assignment, Bill of Sale and Assumption of
Liabilities Agreement
Exhibit
D - Product Warranties
Exhibit
E - Form of Partial Assignment of License Agreement (with
Riverdeep, Inc.)
Exhibit
F - Form of Agreement between Findex.com, Inc. and Riverdeep,
Inc.
Exhibit
G - Form of Contract for Consulting Services
Schedule
2(b)(i) - Software
Schedule
2(b)(viii) - Assigned Contracts
Purchase
Price Allocation Schedule
Disclosure
Schedule
THIS AGREEMENT IS SUBJECT TO ARBITRATION PURSUANT
TO
SECTIONS 15-48-10 THROUGH 15-48-240 OF THE SOUTH CAROLINA
CODE
ASSET PURCHASE AGREEMENT
THIS
ASSET PURCHASE AGREEMENT (together with all Schedules and
Exhibits hereto, this “Agreement”), dated as of
the 18th day of October, 2007, by and between ACS TECHNOLOGIES
GROUP, INC., a South Carolina corporation (the "Buyer"), and
FINDEX.COM, INC., a Nevada corporation (the "Seller"). Buyer
and Seller are referred to collectively herein as the
"Parties."
W
I T N E S S E T H:
WHEREAS,
Seller desires to sell certain of its assets, including
certain computer software and know-how related thereto, in
accordance with the terms and conditions of this Agreement;
and
WHEREAS,
Buyer desires to purchase such assets in accordance with the
terms and provisions hereof.
NOW,
THEREFORE, for and in consideration of the premises and the
mutual covenants, promises and agreements hereinafter set
forth, and for other good and valuable consideration set forth
hereinbelow, the Parties hereto hereby agree as
follows:
1.
DEFINITIONS
.
“
Accounts Receivable ”
has the meaning set forth in
Section 2(b)(vii) below.
“
Acquired Assets ”
has the meaning set forth in
Section 2(b) below.
“
Assigned Contracts ”
has the meaning set forth in
Section 2(b)(viii) below.
“
Assumed Liabilities ”
has the meaning set forth in
Section 2(c)(i) below.
“
Basis ”
means any past or present fact, situation, circumstance, status,
condition, activity, practice, plan, occurrence, event, incident,
action, failure to act, or transaction that forms or should form
the basis for any specified consequence.
“
Business Line ”
means the business of Seller related to developing and licensing
church management and administration software titles under the name
Membership Plus.
“
Buyer ”
has the meaning set forth in the preface above.
“
Closing ”
has the meaning set forth in
Section 2(f) below.
“
Closing Date ”
has the meaning set forth in
Section 2(f) below.
“
Code ”
means the Internal Revenue Code of 1986, as amended.
“
Consulting Services Agreement ”
has the meaning set forth in
Section 6(a)(iv) below.
“
Disclosure Schedule ”
has the meaning set forth in
Section 3 below.
“
Distribution Agreements ”
has the meaning set forth in
Section 2(d)(i) below.
“
Governmental Authority ”
means any federal, state, local, municipal, foreign, or other
government, or any governmental or quasi-governmental authority of
any nature (including any governmental agency, branch, department,
official, or entity and any court or other tribunal).
“
Inventories ”
has the meaning set forth in
Section 2(b)(iii) below.
“
Knowledge ”
means actual knowledge after reasonable investigation.
“
Liability ”
means any direct or indirect, primary or secondary, liability,
indebtedness, obligation, penalty, cost or expense (including costs
of investigation, collection and defense), claim, deficiency,
guaranty or endorsement of or by any Person of any type, whether
known or unknown, accrued or unaccrued, absolute or contingent,
liquidated or unliquidated, matured or unmatured, or otherwise, and
whether due or to become due.
“
Lien ”
means any lien, mortgage, pledge, security interest, option, right
of first refusal, charge, claim or encumbrance or other
restrictions of any kind or nature, except for (a) liens for Taxes
not yet due and payable and (b) liens for assessments and other
governmental charges or of landlords, carriers, warehouseman,
mechanics and material men incurred in the Ordinary Course of
Business, in each case for sums not yet due and payable or due but
not delinquent.
“
Material Adverse Effect ”
means, with respect to any Person, any state of facts, development,
event, circumstance, condition, occurrence or effect that,
individually or taken collectively with all other preceding facts,
developments, events, circumstances, conditions, occurrences or
effects (a) is materially adverse to the condition (financial or
otherwise), business, operations or results of such Person, or (b)
impairs the ability of such Person to perform its obligations under
this Agreement.
“
Online Properties ”
has the meaning set forth in
Section 2(b)(ii) below.
“
Ordinary Course of Business ”
means the ordinary course of business consistent with past custom
and practice (including with respect to quantity and
frequency).
“
Party ”
has the meaning set forth in the preface above.
“
Person ”
means a natural person or any legal, commercial or Governmental
Authority, including without limitation any corporation, general
partnership, joint venture, limited partnership, limited liability
company, trust, business association, group acting in concert, or
any person acting in a representative capacity.
“
Proprietary Rights ”
has the meaning set forth in
Section 2(b)(iv) below.
“
Purchase Price ”
has the meaning set forth in
Section 2(e) below.
“
Retained Liabilities ”
has the meaning set forth in
Section 2(c)(ii) below.
“
Riverdeep Agreement ”
has the meaning set forth in
Section 6(a)(ii) below.
“
Riverdeep Assignment ”
has the meaning set forth in
Section 6(a)(ii) below.
“
Seller ”
has the meaning set forth in the preface above.
“
Software ”
has the meaning set forth in
Section 2(b)(i) below.
“
Taxes ”
means any federal, state, county, local, foreign or other tax,
charge, imposition or other levy (including interest or penalties
thereon) including without limitation income taxes, estimated
taxes, excise taxes, sales taxes, use taxes, gross receipts taxes,
franchise taxes, taxes on earnings and profits, employment and
payroll related taxes, property taxes, real property transfer
taxes, Federal Insurance Acquisitions Act taxes, any taxes or fees
related to unclaimed property, taxes on value added and import
duties, whether or not measured in whole or in part by net income,
imposed by the United States or any political subdivision thereof
or by any jurisdiction other than the United States or any
political subdivision thereof.
“
Third Party Intellectual Property Rights ”
has the meaning set forth in Section 3(j) below.
“
Transaction Documents ”
means each of this Agreement, the Consulting Services Agreement,
the Riverdeep Assignment, the Riverdeep Amendment, and each other
document, instrument, and certificate delivered in connection
therewith.
2.
BASIC TRANSACTION
.
(a)
Purchase and Sale of Assets .
On and subject to the terms and conditions of this Agreement, at
the Closing, Buyer agrees to purchase from Seller, and Seller
agrees to sell, transfer, convey, and deliver to Buyer, all of the
Acquired Assets for the consideration specified below in
this
Section 2 .
(b)
Acquired Assets .
The “
Acquired Assets ”
shall consist of the following assets, properties and contractual
rights of Seller:
(i)
Software .
All of Seller’s copyright rights in and to the computer
software and programs listed in
Schedule 2(b)(i) attached
hereto (including object and source code, in machine readable and
listing form), and all documentation (including internal
documentation, documentation made available to customers, and
training materials), flowcharts, source code notes, software tools,
compilers, test routines and information related thereto, in
whatever form, and all revisions, modifications, upgrades, updates,
enhancements, release levels and versions of the foregoing
(collectively, the “
Software ”),
including without limitation all rights to produce, create, market
and sell derivative works and modifications of the
Software.
(ii)
Online Properties .
The Internet websites maintained by Seller for the Business Line,
the homepage for which is located at www.MemPlusHome.com, and all
content, design concepts, code (php, html, css, javascript and
sql), text, graphics, images, data, video, audio (including without
limitation music used in time relation with text, images, or
video), URLs, navigational elements, links, pointers, technology
and software related thereto, including any modifications,
upgrades, updates, enhancements and related information or
documentation (collectively, the “
Online Properties ”).
(iii)
Inventories .
All inventories related to the Business Line as of the Closing
Date, including without limitation all expendables and consumables
and all advertising material, marketing material, copy,
camera-ready art, trade show booth set-ups, displays and other
materials and supplies to be used or consumed in connection with
the operation of the Business Line (collectively, the
“
Inventories ”).
(iv)
Proprietary Rights .
All patents, patent applications, copyrights, trade secrets, ideas,
know-how, domain names, metatags, trademarks, service marks, trade
names, and other proprietary rights based, in whole or in part, or
included in, covering or related to the Business Line or any
portion thereof (collectively, the “
Proprietary Rights ”),
including without limitation all of Seller’s copyright rights
and other Proprietary Rights in and to the Software and the Online
Properties.
(v)
Trade Names .
The name “Membership Plus” and all variations or
derivatives thereof, including all trademarks, service marks, trade
names or logos, together with any goodwill associated
therewith.
(vi)
Records .
All designs, drawings, procedures (including design, manufacturing,
test and maintenance procedures), records, specifications,
technical data, inventory records, customer and supplier lists and
records (including all prospective customer and leads lists),
pricing and cost information, and business and marketing plans and
proposals, in whatever form, related to, useful, utilizable or
necessary in connection with the operation of the Business
Line.
(vii)
Accounts Receivable .
All billed and unbilled notes receivable, accounts receivable and
other receivables or rights to payments due to Seller in connection
with the Business Line existing as of the Closing Date
(collectively, the “
Accounts Receivable ”),
including without limitation those Accounts Receivable set forth
on
Schedule 3(q) hereto.
(viii)
Assigned Contracts .
Subject to Section 2(d) hereof, all of the rights of Seller arising
after the Closing Date under the distribution agreements, license
agreements, and other agreements set forth on
Schedule 2(b)(viii) hereto
(collectively, the “
Assigned Contracts ”).
(ix)
Other .
All other assets of Seller exclusively used in or related to the
Business Line.
(c)
Liabilities .
(i)
Assumed Liabilities .
Buyer shall assume and pay or perform when due all obligations of
Seller arising after the Closing Date under the Assigned Contracts
(collectively, the “
Assumed Liabilities ”),
which obligations arise in accordance with the terms of such
Assigned Contracts after the Closing Date, except to the extent any
such obligations relate to a default thereunder by Seller, or an
event which with notice or lapse of time or both would constitute a
default thereunder by Seller, occurring on or prior to the Closing
Date.
(ii)
Retained Liabilities .
Except for the Assumed Liabilities, Buyer shall not assume and
Seller shall retain all liabilities or obligations directly or
indirectly arising out of or related to the Acquired Assets or the
operation of the Business Line on or prior to the Closing Date,
whether such liabilities or obligations are known or unknown,
disclosed or undisclosed, matured or unmatured, accrued, absolute
or contingent (collectively, the “
Retained Liabilities ”),
including without limitation: (A) liabilities and obligations for
Taxes of any kind, including without limitation Taxes related to or
arising solely from the transfers contemplated hereby (which
transfer or sales taxes shall be the sole responsibility of
Seller); (B) liabilities and obligations for damage or injury to
person or property; (C) liabilities and obligations for or
otherwise arising out of sales of the Software or services related
thereto or grants of licenses by Seller on or prior to the Closing
Date; and (D) liabilities and obligations for payables incurred or
otherwise related to the Acquired Assets or the operation of the
Business Line on or prior to the Closing Date. Without limiting the
foregoing, Buyer shall not assume or become liable for any
obligations or liabilities of Seller not specifically described
in
Section 2(c)(i) above
and specifically included in the Assumed Liabilities.
Notwithstanding anything herein to the contrary, Seller shall pay
or perform all Retained Liabilities no later than when they become
due and payable or are to be performed.
(d)
Assigned Contracts .
(i)
The
parties acknowledge that the Software is sold or distributed
by Seller pursuant to the terms of certain distribution
agreements and consignment agreements between Seller and third
party retailers (collectively, the “
Distribution Agreements ”),
including but not limited to those distribution agreements and
consignment agreements set forth on
Schedule 3(l) hereto.
The parties have agreed that the Distribution Agreements will not
be assigned to Buyer at Closing; provided, however, that (A) Buyer
shall be entitled to receive all benefits relating to the Software
under such Distribution Agreements, including but not limited to
all payments due to Seller for the sale or distribution of the
Software thereunder, (B) Seller shall be responsible for performing
all obligations of Seller relating to the Software under such
Distribution Agreement, during the term of the Consulting Services
Agreement between Seller and Buyer, and (C) upon the expiration or
earlier termination of the Consulting Services Agreement, Seller
shall use commercially reasonable efforts and shall cooperate with
Buyer in entering into new distribution or consignment agreements
with such third party retailers, designed to provide Buyer the
benefits provided to Seller under such Distribution
Agreements.
(ii)
Notwithstanding
anything herein to the contrary, the transfer of the Assigned
Contracts shall be by assignment only, and nothing in this
Agreement shall be construed as an attempt to agree to assign
any rights thereunder or under any other Acquired Asset that
by law or agreement is not assignable without the consent of
the other party or parties thereto or of any Governmental
Authority, as the case may be, unless such consent shall be
given. If and to the extent the assignment of any Assigned
Contract requires the consent of another Person, then: (A)
such Assigned Contract shall not be deemed assigned and shall
constitute an assumed liability of Buyer until such consent is
obtained; (B) the Parties shall
use commercially reasonable efforts and shall cooperate with
each other in seeking such consent or entering into reasonable
arrangements, designed to provide Buyer the benefits
thereunder ;
and (C) Buyer shall be obligated to perform and discharge the
obligations of Seller arising after the Closing Date under any
such Assigned Contract only after such consent is
obtained.
(e)
Purchase Price .
In consideration of the sale, transfer, conveyance, assignment and
delivery of the Acquired Assets, and in reliance upon the
representations and warranties made herein by Seller, Buyer shall
pay to Seller the sum of One Million Six Hundred Seventy-Five
Thousand and 00/100 ($1,675,000.00) Dollars (the “
Purchase Price ”).
The Purchase Price shall be payable by Buyer to Seller in cash or
by wire transfer or delivery of other immediately available funds
at the Closing.
(f)
The Closing .
The
closing of the transactions contemplated by this Agreement (the
“
Closing ”)
shall take place simultaneously with the execution and delivery of
this Agreement at the offices of Seller and Buyer with deliveries
by facsimile or wire transfer. The hour and date of the Closing are
referred to herein as the “
Closing Date ”.
The parties agree and intend that the Closing shall be effective as
of 11:59 p.m. on the Closing Date.
(g)
Deliveries at the Closing .
At or before the Closing: (i) Seller will deliver to Buyer the
various certificates, instruments, and documents referred to
in
Section 6(a) below;
(ii) Buyer will deliver to Seller the various certificates,
instruments, and documents referred to in
Section 6(b) below;
(iii) Seller will execute, acknowledge (if appropriate), and
deliver to Buyer (A) assignments (including Proprietary Rights
transfer documents) in the forms attached hereto as
Exhibit A and
Exhibit C ,
and (B) such other instruments of sale, transfer, conveyance, and
assignment as Buyer and its counsel may reasonably request; (iv)
Buyer will execute, acknowledge (if appropriate), and deliver to
Seller (A) an assumption in the form attached hereto as
Exhibit C and
(B) such other instruments of assumption as Seller and its counsel
reasonably may request; and (v) Buyer will deliver to Seller the
Purchase Price specified in
Section 2(e) above.
(h)
Further Assurances .
If, at any time following the Closing Date, Buyer shall consider or
be advised that any deeds, bills of sale, assignments or assurances
or any other acts or things are necessary, desirable or proper (i)
to vest, perfect or confirm, of record or otherwise, in Buyer its
right, title and interest in, to or under any of the Acquired
Assets, or (ii) otherwise to carry out the purposes of this
Agreement, Seller shall execute and deliver all such deeds, bills
of sale, assignments and assurances and shall do all such other
acts and things as may be necessary, desirable or proper to vest,
perfect or confirm Buyer’s right, title and interest in, to
and under any of the Acquired Assets and otherwise to carry out the
purposes of this Agreement.
3.
REPRESENTATIONS AND WARRANTIES OF THE SELLER
. Seller
represents and warrants to Buyer that the statements contained in
this
Section 3 are
correct and complete as of the Closing Date, except as set forth in
the disclosure schedules accompanying this Agreement and initialed
by the Parties (each and “
Schedule ”
and collectively, the “
Disclosure Schedule ”).
The Disclosure Schedule is arranged in pages corresponding to the
lettered and numbered paragraphs contained in this
Agreement.
(a)
Organization of Seller .
Seller is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
incorporation and has full power and authority to carry on its
current business and to own, use and sell its assets and
properties, including the Acquired Assets. Seller is duly qualified
to do business as a foreign corporation and is in good standing
under the laws of each state or other jurisdiction in which the
conduct of the Business Line requires such qualification, except
where the failure to be so qualified is not reasonably anticipated
to have a Material Adverse Effect.
(b)
Authorization of Transaction .
Seller has full power and authority (including full corporate power
and authority) to execute and deliver this Agreement and to perform
its obligations hereunder. Without limiting the generality of the
foregoing, the Board of Directors of Seller and, to the extent
required by applicable law, Seller’s shareholders have duly
authorized the execution, delivery, and performance of this
Agreement by Seller. This Agreement constitutes the valid and
legally binding obligation of Seller, enforceable in accordance
with its terms and conditions.
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