EXHIBIT 10.7(b)
▇▇▇▇ OF SALE AND ASSIGNMENT
This ▇▇▇▇ of Sale and Assignment is made as of December 16,
1998, by Serus LLC, a Utah limited liability company (the "Seller") in favor of
Serus Acquisition Corporation, a Delaware corporation (the "Purchaser").
WITNESSETH
WHEREAS, pursuant to and in connection with that certain Asset
Purchase Agreement dated December 17, 1998, by and between Purchaser and Seller
(the "Asset Purchase Agreement"), Seller has agreed to assign, transfer, set
over and convey to Purchaser each and all of the assets described therein for
good and valuable consideration received by Seller from Purchaser (capitalized
terms not otherwise defined in this ▇▇▇▇ of Sale and Assignment have the meaning
given them in the Asset Purchase Agreement);
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein, the parties hereby agree as follows:
1. Upon the terms and subject to the conditions set forth in the Asset Purchase
Agreement, at the Closing, Seller hereby conveys, sells, transfers, assigns and
delivers to Purchaser, and Purchaser hereby purchases from Seller, all right,
title and interest of Seller at the Closing in and to the assets, properties,
and rights of the Seller of every kind, nature and description, personal,
tangible and intangible, known or unknown, wherever located, including, without
limiting the generality of the foregoing (but excluding the "Excluded Assets,"
as such term is defined in Section 1.2 of the Asset Purchase Agreement):
a. All interests in machinery, equipment, copiers, computers, furniture,
fixtures, supplies, other tangible personal property and fixed assets and all
proprietary rights relating thereto;
b. All lease deposits, prepaid expenses, prepaid property taxes and all other
current assets;
c. All claims and rights under all agreements, contracts, contract rights,
licenses, evidences of indebtedness, purchase and sale orders, quotations and
other executory commitments (but, except as provided in Section 2.1, of the
Asset Purchase Agreement excluding any liabilities associated therewith);
d. All franchises, licenses, permits, consents, authorizations and approvals of
any federal, state or local regulatory, administrative or other governmental
agency or body;
e. All Intellectual Property;
f. Originals of all sales invoices, revenue registers and accounts receivable
records, and originals of all warranties on all supplies and equipment, files,
papers and all other records of Seller, that relate to the Business;
g. All rights under express or implied warranties from suppliers of Seller
and/or the Business to the extent assignable;
h. All causes of action, judgments and claims or demands of whatever kind or
description of Seller, or that arise out of or relate to the Business;
i. All rights and interests of Seller to the proceeds of insurance claims
arising from damage to the Assets prior to Closing;
j. All employee and customer lists and records of Seller;
k. All interests in the lease of office space including all leasehold
improvements thereto, and all related rights; and
l. All goodwill of the Business.
2. Seller hereby constitutes and appoints Purchaser, its successors and
permitted assigns, the true and lawful attorney of Seller with full power of
substitution, in the name of Purchaser, or the name of Seller, on behalf of and
for the benefit of Purchaser, to collect the items being transferred to
Purchaser as provided herein, to endorse, without recourse, checks, notes and
other instruments in respect of such items in the name of Seller, to institute
and prosecute, in the name of Seller or otherwise, all proceedings that
Purchaser may deem proper in order to collect, assert, or enforce any claim,
right or title of any kind in or to the Assets as provided herein, to defend and
compromise any and all actions, suits or proceedings in respect of any of the
Assets and to do all such acts and things in relation thereto as Purchaser may
deem advisable. Seller agrees that the foregoing powers are coupled with an
interest and shall be irrevocable by Seller directly or indirectly in any manner
or for any reason. Seller further agrees that Purchaser shall retain for its own
account any amounts collected pursuant to the foregoing powers, and Seller shall
pay to Purchaser, if and when received, any amounts that shall be received by
Seller on or after the date hereof in respect of the Assets as provided herein.
Purchaser agrees, subject to the exclusions and limitations contained herein and
in the Asset Purchase Agreement, to perform, pay or discharge the Assumed
Liabilities (as defined in the Asset Purchase Agreement).
3. Seller will from time to time, at Purchaser request and without further cost
or expense to Purchaser, execute and deliver to Purchaser such other instruments
of transfer and take such other actions as Purchaser may reasonably request so
as more effectively to transfer the Assets to Purchaser free of mortgages, deeds
of trust, liens, encumbrances, security interests and claims.
4. Notwithstanding anything contained in this ▇▇▇▇ of Sale and Assignment to the
contrary, nothing in this ▇▇▇▇ of Sale and Assignment will constitute a transfer
or an attempted transfer of any contracts or permits that are not capable of
being transferred without the consent, approval, novation or waiver of a third
person or entity (including, without limitation, a governmental agency), or any
contracts or permits the transfer or attempted transfer of which would
constitute a breach of such contract or permit or violation of any law.
5. This ▇▇▇▇ of Sale and Assignment will be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns, but will not be assignable or delegable by any party without the prior
written consent of the other party; provided, however, that nothing in this ▇▇▇▇
of Sale and Assignment is intended to limit Purchaser's ability to assign or to
transfer any of the Assets following the date hereof.
6. This ▇▇▇▇ of Sale and Assignment and the legal relations among the parties
hereto will be governed by and construed in accordance with the laws of the
State of California.
7. This ▇▇▇▇ of Sale and Assignment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned has executed this ▇▇▇▇ of
Sale and Assignment as of the day and year above first written.
SELLER:
SERUS LLC,
a Utah limited liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
PURCHASER:
SERUS ACQUISITION CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
