EXHIBIT 2.3
PRODUCT ACQUISITION AGREEMENT
BETWEEN
PUMA TECHNOLOGY, INC.
D/B/A/ PUMATECH, INC.
AND
SWIFTTOUCH CORPORATION
DATED
NOVEMBER 7, 2000
PRODUCT ACQUISITION AGREEMENT
THIS PRODUCT ACQUISITION AGREEMENT is entered into as of November 7,
2000 ("Effective Date"), by and between Puma Technology, Inc., d/b/a Pumatech,
Inc., a Delaware corporation ("Purchaser"), and SwiftTouch Corporation, a
Delaware corporation ("Seller").
RECITALS
A. Seller owns all right title and interest in and to certain
Software Products (as defined herein) and Personal Property.
B. Purchaser desires to acquire the Software and the Personal
Property from Seller.
C. The parties desire that Seller sell, assign, transfer and
convey to Purchaser, and Purchaser purchase from Seller the
Software and Personal Property upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the representations, warranties
and agreements herein contained, the parties agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
set forth or referenced below: ]
1.1 "ANCILLARY DOCUMENTS" shall mean the documents or agreements
required by this Agreement to be executed or delivered by either party and
attached hereto as EXHIBIT A and EXHIBIT B.
1.2 "SOFTWARE PRODUCTS" shall mean the software products listed
on SCHEDULE 1.2 hereto.
1.3 "ENCUMBRANCES" shall have the meaning set forth in Section
4.4 hereof.
1.4 "EXCLUDED LIABILITIES" shall have the meaning set forth in
Section 2.2 hereof.
1.5 "INTANGIBLE ASSETS" shall mean all of Seller's interests in
intellectual property rights, software and data related to or used by Seller in
connection with Software Products as of the Closing Date, including without
limitation, (i) the patents, trademarks, service marks, copyrights and
applications therefor and registrations thereof, trade names and trade styles
listed on SCHEDULE 1.5 hereto, (ii) the US Patent Application 09/648261 (the
"Patent Application"), as more fully described in SCHEDULE 1.5, (iii) all rights
under the prepaid license agreement dated as of March 31, 1999, as amended,
between Seller, as successor-in-interest to Omnicontact Corporation, and Lernout
& Hauspie (the "L&H License"), as more fully described in SCHEDULE 1.5; (iv) all
trade
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secrets and know-how, processes, formulae, business and marketing plans
specific to the Software Products, and confidential and other proprietary
information owned by Seller specific to the Software Products or that may be
assigned by Seller; and (v) the computer software and data, including without
limitation, all source and object codes, all developer notes and documentation,
all manuals and other user materials, all publishing rights with respect thereto
and rights to derivations and modifications thereof, and all intangible data
comprising or related to the Software Products as of the Effective Date.
1.6 "PERSONAL PROPERTY" shall mean all servers and personal
computers and related computer hardware, equipment and other personal property
owned by Seller, as more fully described on Schedule 1.6.
1.7 "PURCHASE PRICE" shall have the meaning set forth in Section
2.3 hereof.
1.8 "TRANSFER TAXES" shall mean all sales taxes, use taxes,
conveyance taxes, transfer taxes, filing fees, recording fees, reporting fees
and other similar duties, taxes and fees, if any, imposed upon, or resulting
from, the transfer of the Software Products, Intangible Assets and Personal
Property hereunder, except federal, state or local income or similar taxes based
upon or measured by revenue, income, profit or gain from the transfer.
1.9 "TAX" shall mean any tax (including any income tax,
franchise tax, capital gains tax, gross receipts fee or tax, value-added tax,
surtax, excise tax, ad valorem tax, transfer tax, stamp tax, sales tax, use tax,
property tax, business tax, withholding tax or payroll tax), levy, assessment,
tariff, duty (including any customs duty), deficiency or fee, and any related
charge or amount (including any fine, penalty or interest), imposed, assessed or
collected by or under the authority of any Governmental Body.
1.10 "TAX RETURN" shall mean any return (including any
information return), report, statement, declaration, estimate, schedule, notice,
notification, form, election, certificate or other document or information filed
with or submitted to, or required to be filed with or submitted to, any
Governmental Body in connection with the determination, assessment, collection
or payment of any Tax or in connection with the administration, implementation
or enforcement of or compliance with any legal requirement relating to any Tax.
1.11 "GOVERNMENTAL BODY" shall mean any: (a) nation, state,
commonwealth, province, territory, county, municipality, district or other
jurisdiction of any nature; (b) federal, state, local, municipal, foreign or
other government; or (c) governmental or quasi-governmental authority of any
nature (including any governmental division, department, agency, commission,
instrumentality, official, organization, unit, body or entity and any court or
other tribunal).
1.12 "CODE" shall mean the Internal Revenue Code of 1986, as
amended and in effect on the date of this Agreement.
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ARTICLE II
PURCHASE AND SALE OF ASSETS;
2.1 PURCHASE AND SALE. Subject to and upon the terms and
conditions of this Agreement, Seller hereby sells, assigns, transfers, conveys
and delivers to Purchaser, and Purchaser purchases from Seller, all of Seller's
right, title and interest in and to the Software Products, Intangible Assets and
Personal Property.
2.2 RETAINED OBLIGATIONS. Purchaser does not assume, and Seller
does not transfer or assign, any liabilities or obligations of Seller existing
prior to or on the Closing Date, whether or not related to the Software
Products, and whether presently fixed and determined, contingent or otherwise.
All such liabilities and obligations ("Excluded Liabilities") shall remain
liabilities of Seller. Seller shall be solely liable to perform and discharge
such liabilities and obligations. Excluded Liabilities shall include, without
limitation, the following:
(i) Transfer Taxes and any federal, state or local
taxes, including, but not limited to, income or similar taxes based upon or
measured by revenue, income, profit or gain from the transfer of the Software
Products, Intangible Assets or Personal Property, or the operation of Seller's
business prior to and subsequent to the Closing Date;
(ii) any outstanding obligations of Seller for borrowed
money due to banks or other lenders or to any creditors;
(iii) any obligation of Seller for legal, accounting or
other professional fees, or any other costs or expenses of Seller which are
related to the consummation of the transactions contemplated herein;
(iv) any and all obligations related to the Software
Products or any license to the Software Products existing prior to the Closing
Date, including under Third Party Licenses (as defined below); and
(v) warranty liabilities, support obligations and all
other liabilities and obligations with respect to Software Products licensed by
Seller prior to the Closing Date.
2.3 PURCHASE PRICE; ESCROW. (a) In consideration for the
purchase of the Software Products and Intangible Assets, Purchaser shall deliver
to Seller the amount of $320,000 (Three Hundred and Twenty Thousand Dollars) and
issue to Seller 100,000 (One hundred Thousand) shares of Purchaser Common Stock
on the Closing Date. The shares of Purchaser Common Stock to be issued in
connection with this Agreement will be issued in a transaction exempt from
registration under the Securities Act of 1933, as amended (the "Securities Act")
by reason of Section 4(2) thereof and/or Regulation D promulgated under the
Securities Act and may not be re-offered or resold other than in conformity with
the registration requirements of the Securities Act
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and such other laws or pursuant to an exemption therefrom. Purchaser shall use
commercially reasonable efforts to prepare and file, within 90 days of the
Closing Date, a registration statement with the Securities and Exchange
Commission (the "SEC") covering the resale of such shares of Purchaser Common
Stock issued in connection with this Agreement and Purchaser will use
commercially reasonable efforts to cause such registration statement to become
effective as promptly as practicable under the filing and to keep such
registration statement effective until the earlier of 18 months year after the
effectiveness of such registration statement or such time as Purchaser receives
written notice that the disposition of all Purchaser Common Stock has been
completed. Purchaser's obligation in the preceding sentence to file the
registration statement is subject to the condition that Seller or any permitted
transferee provide Purchaser promptly all information relating to it for
inclusion in such registration statement. (b) On the Closing Date, and pursuant
to the escrow agreement attached hereto as EXHIBIT C, Seller shall deposit with
the Escrow Agent (as defined below) 12,000 shares of Purchaser Common Stock
issued to Seller at the Closing (the "Escrow Shares").
2.4 TAX CONSEQUENCES. The transactions contemplated by this
Agreement are intended to constitute a taxable sale of assets for federal and
state income tax purposes. Purchaser does not warrant or represent that the tax
consequences of the transactions hereunder and Seller has had an opportunity to
review with its own tax advisors the tax consequences of the transactions
contemplated by this Agreement, and Seller relies solely on its advisors and not
on any statements or representations by Purchaser.
2.5 ALLOCATION OF PURCHASE PRICE. Purchaser and Seller agree
that the Purchase Price shall be allocated as follows: $500,000 shall be
allocated to the L&H License; $1,300,000 shall be allocated to the Software
Products; and $20,000 shall be allocated to the Personal Property.
2.6 TRANSFER TAXES. All Transfer Taxes shall be promptly paid
by Seller.
ARTICLE III
THE CLOSING
3.1 TIME AND PLACE. The closing of the transactions contemplated
by this Agreement (the "Closing") shall take place at 10:00 a.m., local time, on
November __, 2000 at the offices of General Counsel Associates LLP, 0000
Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx, XX 00000, or at such other time and place as the
parties hereto may agree. The date on which the Closing actually takes place is
sometimes referred to herein as the "Closing Date."
3.2 SELLER'S OBLIGATIONS AT CLOSING. At the Closing, Seller
shall:
(a) execute and deliver to Purchaser (i) a xxxx of
sale and assignment (the "Xxxx of Sale"), in substantially the form of EXHIBIT
A, (ii) the patent assignment (the "Patent Assignment") in substantially the
form of EXHIBIT B; and the Escrow Agreement in substantially the form of
EXHIBIT C.
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(b) execute and deliver to Purchaser such other
instruments of conveyance, assignment and transfer, in form and substance
reasonably satisfactory to Purchaser, as shall be effective to vest in Purchaser
all rights and interests in, and good and valid title to, the Software Products,
Intangible Assets and Personal Property;
(c) deliver the Personal Property to Purchaser's
offices located in Nashua, New Hampshire within three businees days after the
Closing Date; and
(d) execute and deliver to Purchaser a receipt for the
Cash Payment.
3.3 PURCHASER'S OBLIGATIONS AT CLOSING. At the Closing:
(a) Purchaser shall deliver to Seller the Cash
Payment;
(b) Purchaser shall execute and deliver to Seller the
Xxxx of Sale and the Escrow Agreement;
(c) At the Closing, Purchaser shall cause one stock
certificates representing 88,000 shares of Purchaser Common Stock to be issued
in the name of SwiftTouch Corporation and delivered to Xxx Xxx; and
(d) At the Closing, Purchaser shall cause one stock
certificate, representing 12,000 shares of Purchaser Common Stock to be issued
in the name of SwiftTouch Corporation and for such stock to be deposited with
and U.S. Bank Trust National Association to act as escrow agent (the "Escrow
Agent"), under the Escrow Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Subject to and except for the information which is set forth on a list
of exceptions, contained in the Disclosure Schedule attached as SCHEDULE 4
hereto, Seller hereby represents and warrants to Purchaser as of the date of
this Agreement as follows:
4.1 ORGANIZATION. Seller is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware
and is duly qualified or licensed to do business as a foreign corporation and is
in good standing in Massachusetts.
4.2 AUTHORIZATION. This Agreement and all of the Ancillary
Documents to which Seller is or will be a party have been, or upon their
execution and delivery hereunder will have been, duly and validly executed and
delivered by Seller and constitute, or will constitute, valid and binding
agreements of Seller, enforceable against Seller in accordance with their
respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally or by general equitable principles or the exercise of
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judicial discretion in accordance with such principles. Seller has all requisite
power and authority to execute and deliver this Agreement and, at the time of
the Closing, will have all requisite power and authority to carry out the
transactions contemplated by this Agreement and the Ancillary Documents. All
necessary corporate action on the part of Seller has been taken to authorize the
execution and delivery of this Agreement and the Ancillary Documents.
4.3 NO CONFLICTS; CONSENTS. The execution and the delivery of
this Agreement and the Ancillary Documents by Seller do not, and the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof and thereof will not, conflict with, result in a breach of,
constitute a default (with or without notice or lapse of time, or both) under or
violation of, or result in the creation of any lien, charge or encumbrance
pursuant to, (i) any provision of the certificate of incorporation or bylaws of
Seller, (ii) to the knowledge of Seller, any judgment, order, decree, rule, law
or regulation of any court or governmental authority, foreign or domestic, or
(iii) any provision of any agreement, instrument or understanding to which
Seller is a party or by which Selleror any of its properties or assets is bound,
will such actions give to any other person or entity any interests or rights of
any kind, including rights of termination, acceleration or cancellation, in or
with respect to any of the Assets. No material consent of any third party or any
governmental authority is required to be obtained on the part of Seller to
permit the consummation of the transactions contemplated by this Agreement or
the Ancillary Documents.
4.4 TITLE TO ASSETS. Seller has good, valid and marketable title
to all of the Software Products, Intangible Assets and Personal Property sold by
Seller. The Software Products, Intangible Assets and Personal Property are free
and clear of restrictions on or conditions to transfer or assignment, and free
and clear of all material claims, liabilities, liens, pledges, mortgages,
restrictions and encumbrances of any kind, whether accrued, absolute, contingent
or otherwise ("Encumbrances") affecting them, except as provided in Section 4.7
with respect to previously granted Third Party Licenses. Seller hereby sells,
conveys, assigns, transfers and delivers to Purchaser good, valid and marketable
title and all the Seller's right and interest in and to the Software Products,
Intangible Assets and Personal Property, free and clear of any Encumbrances,
except as provided in Section 4.7 with respect to previously granted Third Party
Licenses.
4.5 LITIGATION AND CLAIMS. There are no claims, actions, suits,
proceedings or investigations in progress or pending before any court or
governmental agency, against or relating to the Software Products, any of the
Intangible Assets or any of the Personal Property, nor, to the best of Seller's
knowledge, any threat thereof. Seller is not a party to any decree, order or
arbitration award (or agreement entered into in any administrative, judicial or
arbitration proceeding with any governmental authority) with respect to the
Software Products, any of the Intangible Assets or any of the Personal Property.
4.6 ACCURACY OF MATERIAL FACTS; COPIES OF MATERIALS. No
representation, warranty or covenant of Seller contained in this Agreement or in
the Ancillary Documents contains or shall contain any untrue statement of a
material fact or omits to state material facts necessary in order to make the
statements contained therein not misleading. Seller has delivered to Purchaser
complete
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and accurate copies of each Third Party License.
4.7 PROPRIETARY RIGHTS.
(a) Seller owns all right, title and interest in and
to the Software Products and Intangible Assets, free and clear of all claims and
Encumbrances (including, without limitation, distribution rights). The
Intangible Assets include all of the patents, patent applications trademarks,
trade names, service marks and copyrights, and any applications for and
registrations of such rights, and all processes, formulae, methods, schematics,
technology, know-how, computer software and proprietary information that
comprise the Software Products as in existence on the Closing Date. Other than
pursuant to the L&H License, the Software Products do not include any technology
or software owned by a third party.
(b) SCHEDULE 4 contains a list of all licenses and
other agreements with third parties (the "Third Party Licenses") relating to any
licenses or other rights granted by or through Seller with respect to the
Software Products or any Intangible Asset.
(c) All of Seller's trademark or tradename
registrations, if applicable, related to the Software Products and all of
Seller's copyrights in any of the Software Products are valid and in full force
and effect; and consummation of the transactions contemplated hereby will not
alter or impair any such rights.
(d) No claims have been asserted against Seller (and
Seller is not aware of any claims that are likely to be asserted against Seller
or which have been asserted against others) by any person challenging Seller's
use or distribution of the Software Products or Intangible Assets. To Seller's
knowledge, there is no valid basis for any claim of the type specified in the
immediately preceding sentence that could in any material way relate to or
interfere with the continued enhancement and exploitation by Purchaser of any of
the Software Products.
(e) To Seller's knowledge, none of the Software
Products or Intangible Assets infringes on the rights of, constitutes
misappropriation of, or involves unfair competition with respect to, any
proprietary information or intangible property right of any third person or
entity, including without limitation any patent, trade secret, copyright,
trademark or trade name.
(f) Seller has not granted any third party any right
to manufacture, reproduce, distribute, market or exploit the Software Products
or Intangible Assets, or any adaptations, translations, or derivative works
based on the Software Products or Intangible Assets, or any portion thereof,
except as set forth on SCHEDULE 4. Except as provided on Schedule 4, no third
party has any right to manufacture, reproduce, distribute, market or exploit any
works or materials of which any of the Software Products are a "derivative work"
as that term is defined in the United States Copyright Act, Title 17, U.S.C.
Section 101.
(g) All designs, drawings, specifications, source
code, object code, documentation, flow charts and diagrams incorporating,
embodying or reflecting the Software
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Products at any stage of development (the "Software Components") were written,
developed and created solely and exclusively by employees of Seller without the
assistance of any third party, or were created by third parties who assigned
ownership of their rights to Seller in valid and enforceable agreements, which
are set forth on SCHEDULE 4. Seller has at all times used commercially
reasonable efforts to treat the Software Products and Software Components as
containing trade secrets and has not disclosed or otherwise dealt with such
items in such a manner as to cause the loss of such trade secrets by release
thereof into the public domain.
(h) The Patent Application was timely filed, in light
of any prior disclosure, offer for sale, use, reduction to practice or other
activity relevant thereto, and all filing fees with respect to the Patent
Application have been paid. Except as set forth in SCHEDULE 4.7(h), Seller has
received no action, correspondence or other communication from the U.S. Patent
and Trademark Office with respect to the Patent Application. The Patent
Application correctly identifies the inventors of the inventions disclosed and
claimed in the Patent Application, and each such inventor has duly assigned his
or her right, title and interest in the Patent Application, and inventions
claimed thereunder, to Seller. Seller owns all right, title and interest in and
to the Patent Application. Seller is unaware of any prior art or patent which
would bar the issuance of a patent based upon each claim of the Patent
Application, or which would otherwise invalidate any claim of the Patent
Application. Seller is unaware of any patent or other intellectual property
under which a license is required to practice the methods and inventions
disclosed in the Patent Application.
(i) The L&H License is in full force and effect.
Seller is not in material breach of any provision of the L&H License, and has
performed in all material respects all obligations of LICENSEE (as defined in
the L&H License) under the L&H License. There is no outstanding or, to Seller's
knowledge, threatened dispute or disagreement with respect to the L&H License.
Seller has prepaid $500,000 to Lernout & Hauspie under the L&H License as
prepaid royalties. As of the Closing Date, no amountof royalty have been earned
by or credited to Lernout & Hauspie under the L& H License. The only actions
required to assign the L&H License to Purchaser are notifying Lernout & Hauspie
in writing of the transaction and delivering the Xxxx of Sale attached hereto as
EXHIBIT A. Seller is the successor-in-interest of all right, title and interest
of Omnicontact Corporation under the L&H License and has full power and
authority to exercise the rights of LICENSEE under the L&H License.
(j) Each person currently or formerly employed by
Seller (including independent contractors, if any) that has or had access to
confidential information of Seller relating to the Software Products has
executed a confidentiality and non-disclosure agreement in the form previously
provided to Purchaser. Such confidentiality and non-disclosure agreements
constitute valid and binding obligations of Seller and such person, enforceable
in accordance with their respective terms, except as enforceability may be
limited by general equitable principles or the exercise of judicial discretion
in accordance with such principles.
(k) No product liability or warranty claim with
respect to any Software Products has been communicated to or, to the knowledge
of Seller, overtly threatened against Seller nor, to
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the best of Seller's knowledge, is there any specific situation, set of facts or
occurrence that provides a basis for any such claim. Seller has provided to
Purchaser an accurate list of all known errors or "bugs" in the Software
Products.
(l) Seller has no debt obligation for borrowed money
that could now or hereafter give rise to a claim against the Software Products
or the Intangible Assets.
4.8 Tax Matters.
(a) All material Tax Returns required to be filed by
or on behalf of Seller with any Governmental Body on or before the date hereof
(the "Seller Returns") (i) have been filed in a timely manner, and (ii) have in
all material respects been accurately and completely prepared in compliance with
all applicable legal requirements. All material amounts shown on the Seller
Returns to be due on or before the date thereof have been paid. Seller has
delivered to Purchaser copies of all Seller Returns filed since the date of
Seller's formation and such copies are accurate and complete in all material
respects.
(b) Each material Tax required to have been paid, or
claimed by any Governmental Body to be payable, by Seller (whether pursuant to
any Tax Return or otherwise) has been duly paid in full on a timely basis. Any
material Tax required to have been withheld or collected by Seller has been duly
withheld and collected on a timely basis; and (to the extent required) each such
Tax has been paid to the appropriate Governmental Body on a timely basis.
(c) Seller's financial statements provided to
Purchaser fully accrue all actual and contingent liabilities for material Taxes
with respect to all periods through the dates thereof in accordance with
generally accepted accounting principles.
(d) No Seller Return relating to income Taxes has ever
been examined or audited by any Governmental Body. Except as set forth in Part
4.9(d) of the Disclosure Schedule, there has been no examination or audit of any
Seller Return, and no such examination or audit has been proposed or scheduled
by any Governmental Body. Seller has delivered to Purchaser accurate and
complete copies of all audit reports and similar documents (to which Seller has
access) relating to Seller Returns. No extension or waiver of the limitation
period applicable to any of Seller Returns has been granted (by Seller, or any
other Person), and no such extension or waiver has been requested from Seller.
(e) No claim or Legal Proceeding is pending or, to the
knowledge of Seller, has been threatened against or with respect to Seller in
respect of any material Tax. There are no unsatisfied liabilities for Taxes
(including liabilities for interest, additions to tax and penalties thereon and
related expenses) with respect to any notice of deficiency or similar document
received by Seller. There are no liens for Taxes upon any of the assets of
Seller, except liens for current Taxes not yet due and payable. Seller will not
be required to include any adjustment in its taxable income for any tax period
(or portion thereof) as a result of transactions or events occurring, or
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accounting methods employed, prior to the date hereof or as of the Effective
Date.
(f) There is no agreement, plan, arrangement or other
Contract covering any employee or independent contractor or former employee or
independent contractor of Seller that, considered individually or considered
collectively with any other such Contracts, will, or could reasonably be
expected to, give rise directly or indirectly to the payment of any amount that
would not be deductible pursuant to Section 280G or Section 162 of the Code.
Seller is not, and has never been, a party to or bound by any tax indemnity
agreement, tax sharing agreement, tax allocation agreement or similar Contract.
(g) Except as set forth in Part 4.9(g) of the
Disclosure Schedule, since Seller's formation, (i) no Governmental Body has
asserted any claim or otherwise made any allegation that Seller has failed or
may have failed to pay any sales tax, use tax or similar Tax, and (ii) Seller
has not engaged in any discussions or negotiations with any Governmental Body,
and has not sent any written communication to or received any written
communication from any Governmental Body, in connection with any possible
failure on the part of Seller to pay any sales tax, use tax or similar Tax.
(h) Seller has disclosed on its federal income Tax
Returns all positions taken therein that could give rise to a substantial
understatement of federal income Tax within the meaning of Code Sections
6662. Seller (A) has not been a member of an affiliated group filing a
consolidated federal income Tax Return and (B) does not have any liability
for the Taxes of any other person under Reg. Sections 1.1502-6 (or any similar
provision of state, local, or foreign law), as a transferee or successor, by
contract, or otherwise.
(i) Except as set forth in Part 4.9(i) of the
Disclosure Schedule, Seller is not a party to an Advance Pricing Agreement (or
any similar agreement under foreign law) and all transactions between Seller
(and any other commonly controlled parties) have been in accordance with the
arm's length standard in compliance with Code section 482 and the treasury
regulations thereunder.
(j) Seller is not regularly engaged in the business of
making sales at retail as contemplated by Chapter 64H, Section 1 of the General
Laws of Massachusetts.
(k) Except as set forth on schedule 4.9(k), Seller has
not issued stock or securities in exchange for services to any employee or
service provider. All outstanding shares of stock of Seller is, and has at all
times since its issuance been, fully vested and not subject to a substantial
risk of forfeiture (as defined in section 83 of the Code and the Regulations
thereunder), including any right of repurchase by the Seller.
4.9 INVESTMENT REPRESENTATIONS; LEGENDS.
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(a) Seller understands that the Purchaser Common Stock
has not been registered under the Securities Act, or under any state securities
laws, and will be issued pursuant to exemptions from registration contained in
the Securities Act and such state securities laws based in part upon the
representations of Seller contained herein.
(b) Seller is acquiring the Purchaser Common Stock
solely for its own account and not as a nominee for any other party and not with
a view toward the resale or distribution thereof.
(c) Seller is a sophisticated investor experienced in
investing in and able to fend for itself. Seller is able to bear the economic
risk of the purchase of the Purchaser's Common Stock, including a complete loss
of Seller's investment. Seller has been afforded an opportunity to ask such
questions of Purchaser's officers, employees, agents, accountants and
representatives concerning Purchaser's business, operations, financial
condition, assets, liabilities and other relevant matters as it has deemed
necessary or desirable.
(d) Seller understands that each certificate or other
instrument representing the Purchaser's Common Stock may be endorsed with the
following legends:
(i) FEDERAL LEGEND. THE SECURITIES
REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS DEFINED IN
RULE 144 PROMULGATED UNDER THE ACT. THE SECURITIES MAY NOT BE SOLD OR OFFERED
FOR SALE OR OTHERWISE DISTRIBUTED EXCEPT (i) IN CONJUNCTION WITH AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE ACT OR (ii) IN COMPLIANCE
WITH RULE 144, OR (iii) PURSUANT TO AN OPINION OF COUNSEL, SATISFACTORY TO
BUYER, THAT SUCH REGISTRATION OR COMPLIANCE IS NOT REQUIRED AS TO SAID SALE,
OFFER OR DISTRIBUTION.
(ii) OTHER LEGENDS. Any other legends
required by the California Law or other applicable state laws.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
5.1 ORGANIZATION. Purchaser is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware
and is duly qualified or licensed to do business as a foreign corporation and is
in good standing in California.
5.2 AUTHORIZATION. This Agreement and all of the Ancillary
Documents to which Purchaser is or will be a party have been, or upon their
execution and delivery hereunder will have been, duly and validly executed by
Purchaser and constitute, or will constitute, valid and binding agreements of
Purchaser, enforceable against Purchaser in accordance with their respective
terms,
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except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
or by general equitable principles or the exercise of judicial discretion in
accordance with such principles. Purchaser has all requisite power and authority
to execute and deliver this Agreement and, at the time of the Closing, will have
all requisite power and authority to carry out the transactions contemplated by
this Agreement and the Ancillary Documents. All necessary corporate action on
the part of Purchaser has been taken to authorize the execution and delivery of
the Agreement and the Ancillary Documents.
5.3 NO CONFLICTS; CONSENTS. The execution and delivery of this
Agreement and the Ancillary Documents by Purchaser do not, and the consummation
of the transactions contemplated hereby and compliance with the provisions
hereof will not, conflict with, result in a breach of, constitute a default
(with or without notice or lapse of time, or both) under or violation of, or
result in the creation of any lien, charge or encumbrance pursuant to, (i) any
provision of the Certificate of Incorporation or By-laws of Purchaser, (ii) any
judgment, order, rule, law or regulation of any court or governmental authority,
foreign or domestic, or (iii) any provision of any agreement, instrument or
understanding to which Purchaser is a party or by which Purchaser is bound. No
consent of any third party or any governmental authority is required to be
obtained on the part of Purchaser to permit the consummation of the transactions
contemplated by this Agreement or the Ancillary Documents.
5.4 VALID ISSUANCE. The Purchaser Common Stock to be issued in
connection at the Closing will, when issued in accordance with the provisions of
this Agreement, be validly issued, fully paid and nonassessable.
5.5 SEC FILINGS; FINANCIAL STATEMENTS.
(a) Purchaser has filed with the SEC and has
heretofore made available to the Seller true and complete copies of each report,
registration statements and definitive proxy statement required to be filed by
Purchaser from December 31, 1998 until the date of this Agreement under the
Exchange Act (collectively, the "Purchaser SEC Documents"). As of their
respective dates or, if amended, as of the date of the last such amendment, the
Purchaser SEC Documents complied in all material respects with the applicable
requirements of the Securities Act or the Exchange Act (as the case may be), and
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(b) The consolidated financial statements contained in
the Purchaser SEC Documents: (i) complied as to form in all material respects
with the published rules and regulations of the SEC applicable thereto; (ii)
were prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods covered, except as may be
indicated in the notes to such financial statements and (in the case of
unaudited statements) as permitted by Form 10-Q of the SEC, and except that
unaudited financial statements may not contain footnotes and are
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subject to normal and recurring year-end audit adjustments (which will not,
individually or in the aggregate, be material in magnitude); and (iii) fairly
present the consolidated financial position of Purchaser and its subsidiaries as
of the respective dates thereof and the consolidated results of operations of
Purchaser and its subsidiaries for the periods covered thereby.
5.6 ACCURACY OF MATERIAL FACTS; COPIES OF MATERIALS. No
representation, warranty or covenant of Purchaser contained in this Agreement or
in the Ancillary Documents contains or shall contain any untrue statement of a
material fact or omits to state material facts necessary in order to make the
statements contained therein not misleading.
5.7 LITIGATION AND CLAIMS. There are no claims, actions, suits,
proceedings or investigations in progress or pending before any court or
governmental agency, against or relating to this transaction, nor, to the best
of Purchaser's knowledge, any threat thereof. Purchaser is not a party to any
decree, order or arbitration award (or agreement entered into in any
administrative, judicial or arbitration proceeding with any governmental
authority) with respect to this transaction.
5.8 FINANCING. Purchaser has (or at the Closing Date will have)
the financial resources necessary to consummate the transactions contemplated by
this Agreement.
ARTICLE VI
COVENANTS
6.1 TAX MATTERS. Seller covenants and agrees as follows:
(a) TAXES. Seller shall pay when due all (i) Transfer Taxes and
(ii) all other Taxes, in each case imposed on the Seller arising out of the
transactions described in this Agreement.
(b) TAX ELECTIONS. Seller will make no new elections with
respect to material Taxes, or any changes in current elections with respect to
material Taxes, affecting the purchased assets after the date of this Agreement
without the prior written consent of Purchaser, which consent shall not be
unreasonably withheld.
(c) CLEARANCE CERTIFICATE. Seller shall, within 90 days of the
Effective Date, provide Purchaser with a waiver from the commissioner of the
lien described in section 51 of Chapter 62C of the General Laws of
Massachusetts.
(d) COOPERATION AND RECORDS RETENTION. Seller shall use best
efforts to (i) retain and provide the Purchaser with any records or other
information which may be relevant to any Tax Return required to be filed by or
on behalf of Purchaser for any period ending on or after the Closing Date, and
to any audit or examination, proceeding or
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determination related thereto, and (ii) provide the Purchaser with any final
determination of any such audit or examination, proceeding or determination that
affects any amount required to be shown on any Purchaser Tax Return for any such
period. Without limiting the generality of the foregoing, Seller shall retain,
until the applicable statutes of limitations (including any extensions) have
expired, copies of all Tax Returns of Seller, supporting work schedules and
other records or information which may be relevant to such Purchaser returns for
all tax periods or portions thereof ending before or including the Closing Date
and shall not destroy or otherwise dispose of any such records without first
providing the Purchaser with a reasonable opportunity to review and copy the
same.
(e) PREPARATION OF W-2'S, ETC. Seller shall withhold and pay
over to the appropriate tax authorities all applicable federal and state income
and employment taxes (including but not limited to FICA, FUTA, Medicare and
state disability insurance) and penalties and interest thereon required to be
withheld by Seller or otherwise required to be paid by Seller in connection
with: the issuance, if any, of Purchaser's securities to any employees of Seller
in connection with the transactions described in this Agreement.
(f) R&D CREDIT. Seller will use commercially reasonable efforts
to provide to Purchaser upon request all information necessary in order to
permit Purchaser to apply the provisions of Section 41(f)(3)(A) of the Code.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
7.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties contained in this Agreement shall survive the
Closing Date for a period equal to the date that is the first anniversary of the
Closing Date. After the expiration of such period, such representations and
warranties shall expire and be of no further force and effect, except as
follows: (i) representations and warranties contained in Article VIII shall
survive the Closing Date indefinitely; (ii) unless a claim or claims with
respect thereto shall have been asserted under this Article VII, in which case,
they shall survive until such claim is finally determined and paid, and (iii)
unless a claim or claims shall be based on fraud.
7.2 INDEMNIFICATION.
(a) Subject to the terms and conditions of this
Article VII, Seller agrees to indemnify, defend and hold harmless Purchaser, its
agents, shareholders, officers, directors, employees, consultants and attorneys
(all such persons and entities being collectively referred to as the "Purchaser
Group") from, against any and all loss, demand, action, cause of action,
assessment, damage, liability, cost or expense, including without limitation,
interest, penalties and reasonable attorneys' and other professional fees and
expenses incurred in the investigation, prosecution, defense or settlement
thereof ("Losses") asserted against, relating to, imposed upon or incurred by
Purchaser and/or any other member of the Purchaser Group by reason of, resulting
from, based
15
upon or arising out of any of the following (collectively, "Indemnifiable
Losses"):
(i) the breach, inaccuracy, untruth or incompleteness
of any representation or warranty of Seller contained in or made pursuant to
this Agreement or any Schedule or Ancillary Document delivered by Seller in
connection herewith;
(ii) a material breach of any covenant or agreement of
Seller contained in or made pursuant to this Agreement;
(iii) any Excluded Liability; or
(iv) any breach by Seller of this Article VII.
(b) The obligation of Seller to indemnify members of the
Purchaser Group for any Indemnifiable Losses is subject to the condition that
Seller shall have received an Indemnification Claim for all Indemnifiable Losses
for which indemnity is sought on or before the first anniversary of the Closing
Date.
(c) The provisions of Section 7.2(b) above shall not limit, in
any manner, Seller's obligation to indemnify members of the Purchaser Group for
any breach of any covenant or agreement of Seller to be performed by Seller
following the Closing, including, without limitation, Seller's obligation to
perform and discharge all Excluded Liabilities or Seller's obligations of
confidentiality pursuant to Section 8.7 of this Agreement, or Seller's
obligation to indemnify members of the Purchaser Group for claims based on
fraud.
7.3 PROCEDURES FOR INDEMNIFICATION.
(a) As used in this Article VII, the term "Indemnitee" means any
member of the Purchaser Group.
(b) A claim for indemnification hereunder (an "Indemnification
Claim") shall be made by Indemnitee by delivery of a written notice to Seller
requesting indemnification and specifying the basis on which indemnification is
sought in reasonable detail (and shall attach relevant documentation related to
the Indemnification Claim), the amount of the asserted Indemnifiable Losses and,
in the case of a Third Party Claim (as defined below), containing (by attachment
or otherwise) such other information as Indemnitee shall have concerning such
Third Party Claim.
(c) If the Indemnification Claim involves a Third Party Claim,
the procedures set forth in Section 7.4 hereof shall be observed by Indemnitee
and Seller.
(d) If the Indemnification Claim involves a matter other than a
Third Party Claim, Seller shall have 30 days to object to such Indemnification
Claim by delivery of a written
16
notice of such objection to Indemnitee specifying in reasonable detail the basis
for such objection. Failure to timely so object shall constitute a final and
binding acceptance of the Indemnification Claim by Seller, and the
Indemnification Claim shall thereafter be paid by Seller in accordance with
Section 7.3((e)) hereof. If an objection is timely delivered by Seller and the
dispute is not resolved within 20 business days from the delivery of such
objection (the "Negotiation Period"), such dispute shall be resolved in
accordance with the provisions of Section 8.1 hereof.
(e) Upon determination of the amount of an
Indemnification Claim, whether by (i) an agreement between Seller and
Indemnitee, (ii) an arbitration award, or (iii) a final judgment (after
expiration of all periods for appeal of such judgment) or other final
nonappealable order, Seller shall pay the amount of such Indemnification Claim
by check within 10 days of the date such amount is determined.
7.4 DEFENSE OF THIRD PARTY CLAIMS. Should any claim be made, or
suit or proceeding (including, without limitation, a binding arbitration or an
audit by any taxing authority) be instituted against Indemnitee which, if
prosecuted successfully, would be a matter for which Indemnitee is entitled to
indemnification under this Agreement (a "THIRD PARTY CLAIM"), the obligations
and liabilities of the parties hereunder with respect to such Third Party Claim
shall be subject to the following terms and conditions:
(a) Indemnitee shall give Seller written notice of any
such claim promptly after receipt by Indemnitee of notice thereof, and Seller
will undertake control of the defense thereof by counsel of its own choosing
reasonably acceptable to Indemnitee. Indemnitee may participate in the defense
through its own counsel at its own expense. The assumption of the defense of any
Third Party Claim by Seller shall be an acknowledgment by Seller that such Third
Party Claim is subject to indemnification under the provisions of this Article
VI and that such provisions are binding on Seller. If, however, Seller fails or
refuses to undertake the defense of such Third Party Claim within 10 days after
written notice of such claim has been delivered to Seller by Indemnitee,
Indemnitee shall have the right to undertake the defense, compromise and,
subject to Section 7.5, settlement of such Third Party Claim with counsel of its
own choosing. In the circumstances described in the preceding sentence,
Indemnitee shall, promptly upon its assumption of the defense of such Third
Party Claim, make an Indemnification Claim as specified in Section 7.3((a))
which shall be deemed an Indemnification Claim that is not a Third Party Claim
for the purposes of the procedures set forth herein. Failure of Indemnitee to
furnish written notice to Seller of a Third Party Claim shall not release Seller
from Seller's obligations hereunder, except to the extent Seller is prejudiced
by such failure.
(b) Indemnitee and Seller shall cooperate with each
other in all reasonable respects in connection with the defense of any Third
Party Claim, including making available records relating to such claim and
furnishing employees of Indemnitee as may be reasonably necessary for the
preparation of the defense of any such Third Party Claim or for testimony as
witness in any proceeding relating to such claim.
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7.5 SETTLEMENT OF THIRD PARTY CLAIMS. Unless Seller has failed
to fulfill its obligations under this Article VI, no settlement by Indemnitee of
a Third Party Claim shall be made without the prior written consent by or on
behalf of Seller, which consent shall not be unreasonably withheld or delayed.
If Seller has assumed the defense of a Third Party Claim as contemplated by
Section 7.4((a)), no settlement of such Third Party Claim may be made by Seller
without the prior written consent by or on behalf of Indemnitee, which consent
shall not be unreasonably withheld or delayed. In the event of any dispute
regarding the reasonableness of a proposed settlement, the party that will bear
the larger financial loss resulting from such settlement shall make the final
determination in respect thereto, which determination shall be final and binding
on all involved parties.
7.6 EXCLUSIVE REMEDY; LIMITATIONS. Absent fraud, willful
misrepresentation, or willful deceit, from and after the Closing Date, recourse
of the Indemnitee to the Escrow Amount in the Escrow Fund shall be the sole and
exclusive remedy of the Indemnitee for Indemnifiable Losses relating to any
claim relating to this Agreement. SwiftTouch shall not be required to make any
indemnification, compensation or reimbursement payment pursuant to Section 7.2
until such time as the total amount of all Indemnifiable Losses incurred by the
Indemnitees exceeds $50,000. If the total amount of such Indemnifiable Losses
exceeds $50,000, then the Indemnitees shall be entitled to be indemnified
against all Damages and not only for the portion of such Indemnifiable Losses
exceeding $50,000; provided, that any such amounts shall be decreased by the
amount of any insurance proceeds payable in respect of the Indemnifiable Loss
actually received.
ARTICLE VIII
GENERAL
8.1 GOVERNING LAW; JURISDICTION. It is the intention of the
parties hereto that the internal laws of the State of California (irrespective
of its choice of law principles) shall govern the validity of this Agreement,
the construction of its terms, and the interpretation and enforcement of the
rights and duties of the parties hereto. Any disputes arising under this
Agreement shall be resolved in the federal or state courts located in Santa
Xxxxx County, California, and the parties hereto irrevocably and unconditionally
submit to the jurisdiction of such courts.
8.2 RESTRICTIONS ON SALE OF PURCHASER COMMON STOCK.
(a) The registration rights granted to Seller under
Section 2.3 are not transferable to any other person or entity, except by
operation of law or to a trust for the benefit of Seller or to a partner or
other affiliate or an employee, shareholder or creditor of Seller.
(b) Seller agrees, by acquisition of the Purchaser
Common Stock, that, upon receipt of a written notice from Purchaser of (x)
the happening of any event which makes any statements made in the
registration statement or related prospectuses filed pursuant to Section 2.3,
or any documents
18
incorporated or deemed to be incorporated therein by reference, untrue in any
material respect or which requires the making of any changes in such
registration statement or prospectus so that, in the case of such registration
statement it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make, the
statements therein not misleading, and that in the case of the prospectus, it
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (y) that, in the reasonable and good faith judgment of Purchaser's
Board of Directors, it is advisable to suspend use of the prospectus for a
discrete period of time due to undisclosed material pending corporate
developments, Seller will forthwith discontinue, for a period not to exceed 30
days, disposition of such Purchaser Common Stock covered by such registration
statement or prospectus until Seller is advised in writing by Purchaser that use
of the applicable registration statement or prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
or deemed to be incorporated by reference in such registration statement or
prospectus. Purchaser shall use all reasonable efforts to insure that the use of
the registration statement or prospectus may be resumed as soon as practicable,
and in any event shall not be entitled to require Seller to suspend use of any
registration statement or prospectus for more than two non-consecutive 30 day
periods in any twelve month period.
(c) Seller hereby agrees that it shall not
directly or indirectly sell, offer to sell, contract to sell (including,
without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of more than 35,000 shares of Purchaser Common
Stock in any two week period (other than transfers to those persons set forth
in subsection (a) above who agree to be similarly bound). In order to enforce
the foregoing covenant, Purchaser may impose stop-transfer instructions with
respect to the Purchaser Common Stock issued to Seller.
8.3 REGISTRATION RIGHTS. Purchaser agrees that it
will:
(a) As promptly as practicable after it is
necessary to do so, prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement, and use its best efforts to
cause each such amendment to become effective as promptly as practicable
after it is filed, as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such registration statement.
(b) A reasonable number of days prior to filing
any registration statement, prospectus or amendment or supplement thereto
with the Commission, furnish a copy of such registration statement,
prospectus or amendment or supplements to Seller for Seller's review.
(c) Furnish to Seller such number of
prospectuses, preliminary prospectuses, final prospectuses and such other
documents as Seller may reasonably request in order to facilitate the public
sale or other disposition of the Registrable Securities being sold by Seller.
19
(d) Notify Seller, (A) of the time when such
registration statement has become effective, and (B) at any time when a
prospectus is required to be delivered under the Securities Act in connection
with such registration statement (1) of the happening of any event as a result
of which such registration statement, such prospectus, any prospectus supplement
or any document incorporated by reference in any of the foregoing contains an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they are made, not misleading or (2) that
Purchaser is in possession of material information that it deems advisable not
to disclose in a registration statement.
(e) Advise Seller promptly after Purchaser shall
receive notice or obtain knowledge thereof, of the issuance of any stop order by
the Commission suspending the effectiveness of such registration statement or
the initiation or threatening of any proceeding for such purpose and promptly
use its reasonable efforts to prevent the issuance of any stop order or to
obtain its withdrawal (at the earliest practicable date) if such stop order
should be issued.
(f) Apply for listing and use its best efforts to list
the Registrable Securities being registered on any national securities exchange
on which a class of Purchaser's equity securities is listed or, if Purchaser
does not have a class of equity securities listed on a national securities
exchange, apply for qualification and use its best efforts to qualify the
Registrable Securities being registered for inclusion on the automated quotation
system of the National Association of Securities Dealers, Inc.
(g) Use its best efforts to file with the Commission
in a timely manner all reports and other documents required of Purchaser under
the Securities Act and the Securities Exchange Act of 1934, as amended.
(h) All Registration Expenses incurred in connection
with any registration proceedings pursuant to Section 1.2 will be borne by
Purchaser. Seller shall pay all Selling Expenses. For purposes of this Section
8.3, "Registration Expenses" means all expenses incurred in connection with any
registration, qualification or compliance pursuant to this Section 8.3, fees and
expenses of compliance with securities or blue sky laws, including, without
limitation, all registration, filing and qualification fees, printing expenses,
messenger and delivery expenses, fees and disbursements of counsel for
Purchaser, expenses of any special audits incidental to or required by such
registration. "Selling Expenses" means all underwriting discounts and selling
commissions applicable to the sale of Purchaser Common Stock.
8.4 ASSIGNMENT; BINDING UPON SUCCESSORS AND ASSIGNS. Neither of
the parties hereto may assign any of its rights or obligations hereunder without
the prior written consent of the other party; provided, however, that Purchaser
may assign its rights under this Agreement to any successor of Purchaser through
any merger or consolidation, or purchase of all or substantially all
20
of Purchaser's stock or all or substantially all of Purchaser's assets. This
Agreement will be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and assigns.
8.5 SEVERABILITY. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent be held to be
invalid or unenforceable, the remainder of this Agreement and the application of
such provision to other persons or circumstances shall be interpreted so as best
to reasonably effect the intent of the parties hereto.
8.6 ENTIRE AGREEMENT. This Agreement, the Exhibits and Schedules
hereto, the documents referenced herein, and the exhibits thereto, constitute
the entire understanding and agreement of the parties hereto with respect to the
subject matter hereof and thereof and supersede all prior and contemporaneous
agreements or understandings, inducements or conditions, express or implied,
written or oral, between the parties with respect hereto and thereto.
8.7 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
8.8 CONFIDENTIALITY. "Confidential Information" as used in this
Agreement shall mean any and all technical and non-technical information
including patent, copyright, trade secret, and proprietary information,
techniques, sketches, drawings, models, inventions, know-how, processes,
apparatus, equipment, algorithms, software programs, software source documents,
and formulae included in the Software Products and Intangible Assets. Seller
agrees that it will not make use of, disseminate, or in any way disclose
Confidential Information to any person, firm or business and will use reasonable
efforts to ensure that its employees and consultants do not make use of,
disseminate, or in anyway disclose Confidential Information to any person, firm
or business. Seller will immediately give notice to Purchaser of any
unauthorized use or disclosure of the Confidential Information of which it
becomes aware.
8.9 EXPENSES; NO BROKERS.
(a) The parties shall each pay their own legal,
accounting and financial advisory fees and other out-of-pocket expenses incurred
incident to the negotiation, preparation and carrying out of this Agreement and
the transactions herein contemplated.
(b) Each party represents and warrants to the other
that no person has acted as a broker, finder or in any similar capacity in
connection with the transactions contemplated hereby. Each party shall indemnify
the other against, and agrees to hold the other harmless from, all liabilities
and expenses (including reasonable attorneys' fees) in connection with any claim
by any person for compensation as a broker, finder or in any similar capacity,
by reason of services allegedly rendered to the indemnifying party in connection
with the transactions contemplated hereby.
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8.10 OTHER REMEDIES. Except as otherwise provided herein, any and
all remedies herein expressly conferred upon a party shall be deemed cumulative
with and not exclusive of any other remedy conferred hereby or by law on such
party, and the exercise of any one remedy shall not preclude the exercise of any
other.
8.11 AMENDMENT AND WAIVERS. Any term or provision of this
Agreement may be amended, and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either retroactively
or prospectively) only by a writing signed by the party to be bound thereby. The
waiver by a party of any breach hereof for default in payment of any amount due
hereunder or default in the performance hereof shall not be deemed to constitute
a waiver of any other default or any succeeding breach or default. No action
taken pursuant to this Agreement, including without limitation any investigation
by or on behalf of any party, shall be deemed to constitute a waiver by the
party taking such action of compliance with any representation, warranty,
condition or agreement contained herein.
8.12 NOTICES. All notices and other communications hereunder will
be in writing and will be deemed given (i) upon receipt if delivered personally
(or if mailed by registered or certified mail), (ii) the day after dispatch if
sent by overnight courier, (iii) upon dispatch if transmitted by telecopier or
other means of facsimile transmission (and confirmed by a copy delivered in
accordance with clause (i) or (ii)), properly addressed to the parties at the
following addresses:
Seller:
Purchaser: Puma Technology, Inc.
0000 Xxxxx Xxxxx Xxxxxx, #000
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone No.: (000) 000-0000
Facsimile: (000) 000-0000
WITH A COPY TO:
General Counsel Associates LLP
0000 Xxxxxxxx Xxxxx Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
22
Either party may change its address for such communications by giving
notice thereof to the other party in conformity with this Section.
8.13 CONSTRUCTION AND INTERPRETATION OF AGREEMENT.
(a) This Agreement has been negotiated by the parties
hereto and their respective attorneys, and the language hereof shall not be
construed for or against either party.
(b) The titles and headings herein are for reference
purposes only and shall not in any manner limit the construction of this
Agreement, which shall be considered as a whole.
8.14 NO JOINT VENTURE. Nothing contained in this Agreement shall
be deemed or construed as creating a joint venture or partnership between any of
the parties hereto. No party is by virtue of this Agreement authorized as an
agent, employee or legal representative of any other party. No party shall have
the power to control the activities and operations of any other and their status
is, and at all times, will continue to be, that of independent contractors with
respect to each other. No party shall have any power or authority to bind or
commit any other. No party shall hold itself out as having any authority or
relationship in contravention of this Section.
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8.15 ABSENCE OF THIRD PARTY BENEFICIARY RIGHTS. No provisions of
this Agreement are intended, nor shall be interpreted, to provide or create any
third party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, shareholder, partner of any party hereto or any other
person or entity unless specifically provided otherwise herein, and, except as
so provided, all provisions hereof shall be personal solely between the parties
to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
November 7, 2000.
PUMA TECHNOLOGY, INC.
By:
Name:
Title:
SWIFTTOUCH CORPORATION
By:
Name:
Title:
24
