EXHIBIT 10.23
ASSET PURCHASE AND SETTLEMENT AGREEMENT
This Asset Purchase and Settlement Agreement (this "Agreement") is made
as of February 28, 1997 by and among Palomar Medical Technologies, Inc., a
Delaware corporation ("Palomar"), Nexar Technologies, Inc., a Delaware
corporation which is a majority owned subsidiary of Palomar ("Nexar"),
Technovation Computer Labs, Inc., a Nevada corporation ("Seller"), and Xxxxx X.
Xxxxxxxx.
W I T N E S S E T H:
WHEREAS, Xxxxx X. Xxxxxxxx has conceived, developed, authored, made or
otherwise acquired or asserted ownership of technology, proprietary information
and/or intellectual property for facilitating the installation, replacement or
upgrading of personal computer components, such technology, proprietary
information and/or intellectual property including but not limited to United
States Patent Application Serial No. 08/409,317, filed on 3/23/95, entitled
"System Permitting the External Replacement of the CPU and/or DRAM XXXXx
Microchip Board" and further including but not limited to an "additional" patent
application on Hamirani's behalf, as referred to in a letter dated December 19,
1996, from Hamirani's counsel, Law Offices of Xxx X. Xxxxxxxx, to Xx. Xxxxxx X.
Xxxxxxxxx;
WHEREAS, Nexar contends that it has been assigned certain technology,
proprietary information and/or intellectual property of Xxxxx X. Xxxxxxxx in
accord with a Key Employment Agreement executed by him on or about August 1,
1995 (the "Employment Agreement"); Xxxxx X.
Xxxxxxxx contends otherwise;
WHEREAS, Nexar contends that Xxxxx X. Xxxxxxxx was the holder of
certain rights to options in Palomar Electronics Corporation, a subsidiary of
Palomar, which rights lapsed unvested upon Xxxxx X. Xxxxxxxx'x termination of
employment on November 29, 1996; Xxxxx X. Xxxxxxxx contends otherwise;
WHEREAS, Xxxxx X. Xxxxxxxx contends that he is the holder of certain
rights to options in Nexar and/or Palomar Electronics Corporation; Nexar and
Palomar contend otherwise;
WHEREAS, Seller is the owner of assets including all technology,
proprietary information and/or intellectual property licensed to Nexar under the
License Agreement between the parties dated August 25, 1995 (the "License
Agreement"), and including technology, proprietary information and/or
intellectual property acquired from Xxxxx X. Xxxxxxxx;
WHEREAS, Seller and Xxxxx X. Xxxxxxxx desire to sell, and Palomar
desires to buy, all of the existing technology, proprietary information and/or
intellectual property of Seller and Xxxxx X. Xxxxxxxx pertaining to technologies
intended to facilitate the installation, replacement and upgrading of personal
computers, including without limitation all of the technology, proprietary
information and/or intellectual property licensed to Nexar under the License
Agreement, or otherwise owned by Seller;
WHEREAS, Xxxxx X. Xxxxxxxx'x employment with Nexar was terminated on
November 29, 1996 and Xxxxx X. Xxxxxxxx has raised certain issues in connection
with such termination;
WHEREAS, the parties wish to settle for all time all known and unknown
claims relating to Xxxxx X. Xxxxxxxx'x termination, the License Agreement, the
Employment Agreement, including Xxxxx X. Xxxxxxxx'x options claims, and further
wish to effect a sale of technology, proprietary information and intellectual
property described below by Seller and Xxxxx X. Xxxxxxxx to Palomar;
WHEREAS, Xxxxx X. Xxxxxxxx is a principal of Amerisel, Inc, a
California corporation (d/b/a Computer Universe) ("Computer Universe"), which
Nexar contends is indebted to it in the approximate amount of $271,000 for goods
sold by Nexar, and Nexar is willing to forgive such indebtedness in
consideration of the mutual covenants and obligations of the parties to this
Agreement and for mutual releases between Nexar and Computer Universe;
NOW, THEREFORE, in consideration of the mutual covenants,
representations and warranties hereinafter set forth, the parties hereby agree
as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.0 Definitions. As used in this Agreement, the term "Xxxxxxxx" refers
to Xxxxx X. Xxxxxxxx. As used in this Agreement, the term "affiliates" refers to
those persons listed on Exhibit 1.0 hereto.
1.1 Purchased Assets. Subject to the terms and conditions of this
Agreement, at the Closing (as defined in Section 1.4) Seller and Xxxxxxxx shall
sell, convey, transfer, assign and deliver to Palomar, and Palomar shall
purchase, all right, title and interest in the assets defined below
(collectively, the "Purchased Assets"):
(i) Technology. The Purchased Assets shall include all right,
title and interest in the following technology, proprietary
information, and intellectual property (collectively, the
"Technology"):
(a) ISPA and XPA. All right, title and interest in any
invention, modification, or advance (whether or not
patentable) created, developed, realized, acquired, owned,
conceived or made by or on behalf of Seller or Xxxxxxxx
(independently or with others), or in which Seller or Xxxxxxxx
have a legal or equitable right of ownership, through the
Closing Date (as defined in Section 1.4), pertaining to
technologies intended to facilitate the installation,
replacement, and/or upgrading of personal computer components
(including, by way of non-limiting example, technologies
sometimes referred to as "Inverted Socket Processor
Architecture,"
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"XXXX," "XXXX 0," "ISPA 2," "ISPA 3," "Cross Processor
Architecture," and/or "XPA");
(b) Patents and Applications. All right, title and interest in
all patents and patent applications owned by, acquired by,
issued to, naming, filed by or on behalf of, Seller or
Xxxxxxxx, or in which Seller or Xxxxxxxx have a legal or
equitable right of ownership, through the Closing Date,
disclosing or claiming any invention, modification, or advance
referred to in Section 1.1(i)(a); any further applications
claiming a right of priority from such patents or patent
applications (including, without limitation, any divisional,
continuation, continuation-in-part, or convention
applications); and any patents issuing on any such
applications; any reissue, reexamination or extension of any
such patents; such patents and applications including, by way
of non-limiting example, United States Patent Application
Serial No. 08/409,317, filed on 3/23/95, entitled "System
Permitting the External Replacement of the CPU and/or DRAM
XXXXx Microchip Board" (the "Patent Application") and the
aforementioned "additional" patent application (not yet filed)
referred to in the letter dated December 19, 1996, from
Hamirani's counsel to Xx. Xxxxxx X. Xxxxxxxxx (the "Additional
Patent Application");
(c) Copyright. All right, title and interest, if any should
exist, in any works of authorship, copyright applications or
copyright registrations created by, owned by, acquired by,
issued to, naming, filed by or on behalf of, Seller or
Xxxxxxxx, or in which Seller or Xxxxxxxx have a legal or
equitable right of ownership, through the Closing Date,
relating to any invention, modification, advance, technology,
patent, or application referred to in Sections 1.1(i)(a) - (b)
(as used herein and throughout this agreement, "copyright"
includes copyright, moral rights and semiconductor mask work
rights);
(d) Trademark. All right, title and interest, if any should
exist, in any trademarks, trademark applications or trademark
registrations, created by, owned by, acquired by, issued to,
naming, filed by or on behalf of, Seller or Xxxxxxxx, or in
which Seller or Xxxxxxxx have a legal or equitable right of
ownership, through the Closing Date, for use in connection
with goods or services relating to any invention,
modification, advance, technology, patent, or application
referred to in Sections 1.1(i)(a) - (b) (including, by way of
non-limiting example, actual or potential trademarks such as
"Inverted Socket Processor Architecture," "ISPA," "ISPA 1,"
"ISPA 2," "ISPA 3," "Cross Processor Architecture," and/or
"XPA"), as well as the goodwill of Seller's or Hamirani's
businesses (or that part of the such goodwill) connected with
the use of and symbolized by such trademarks; in the case of
trademarks and trademark applications for which there is an
intent to use, Seller and Xxxxxxxx acknowledge that assignment
of such trademarks and trademark applications is being made
concurrent with the assignment of such businesses or portions
thereof to which those trademarks and trademark applications
pertain, which businesses are ongoing and
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existing; the term "trademark" as used herein and throughout
this agreement refers to both trademarks and service marks;
(e) Trade Secrets. All right, title and interest, if any
should exist, in any trade secrets and know-how developed,
realized, acquired, owned, or made by or on behalf of Seller
or Xxxxxxxx (independently or with others), or in which Seller
or Xxxxxxxx have a legal or equitable right of ownership,
through the Closing Date, relating to any invention,
modification, advance, technology, patent, or application
referred to in Sections 1.1(i)(a) - 1.1(i)(b);
(f) Documentation. All right, title and interest, if any
should exist, to any documentation (in whatever form and
stored on whatever medium) created by, owned by, acquired by,
issued to, filed by or on behalf of, Seller or Xxxxxxxx, or in
which Seller or Xxxxxxxx have a legal or equitable right of
ownership, through the Closing Date, relating to any
invention, modification, advance, technology, patent, or
application referred to in Sections 1.1(i)(a) - 1.1(i)(b);
such documentation including, without limitation, all design
and engineering drawings and specifications (the
"Documentation");
(g) Prototypes. All right, title and interest, if any should
exist, to any prototypes, mock-ups, simulations, or other
implementations (whether or not completed or functional)
created, developed, realized, acquired, owned, or made by or
on behalf of Seller or Xxxxxxxx (independently or with
others), or in which Seller or Xxxxxxxx have a legal or
equitable right of ownership, through the Closing Date,
relating to any invention, modification, advance, technology,
patent, or application referred to in Sections 1.1(i)(a) -
1.1(i)(b);
(h) Other Seller Assets. All right, title and interest in the
technology, proprietary information and/or intellectual
property licensed to Nexar under the License Agreement,
including without limitation that constituting the "Licensed
Technology and Know-How", "Invention", "Technical
Information", Documentation", "Licensed Patent Rights", and
"Improvement" through the Closing Date;
(ii) Causes of Actions. The Purchased Assets shall also include all right,
title and interest in all causes of action, claims and similar rights
arising under law or contract for assignment or other transfer to
Seller or Xxxxxxxx, or for performance of duties on behalf of Seller or
Xxxxxxxx, relating to any invention, modification, advance, technology,
patent or application therefor, trademark, trademark registration or
application therefore, work of authorship, copyright registration or
application therefor, trade secret or know-how, documentation,
prototype mock-ups, simulations, or other implementations referred to
in Sections 1.1(i)(a) - 1.1(i)(g) through the Closing Date. In the
event Palomar and/or Nexar pursue a cause of action under this
paragraph and Seller and/or Xxxxxxxx are named as parties in any such
legal proceeding, then Palomar and/or Nexar agree to defend and hold
Seller and/or Xxxxxxxx harmless pursuant to paragraph 8.3 below except
insofar as such actions are the
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result of an act or omission by Seller and/or Xxxxxxxx in contravention
of the purposes and terms of this Agreement.
As used in this Section 1.1, the terms patent, patent application,
trademark, trademark application, trademark registration, copyright, copyright
application, copyright registration, and the like, refer to the corresponding
domestic, international, regional and foreign intellectual property rights, if
any should exist. Thus, by way of non-limiting example, the references in
Section 1.1(i)(b) to patents and patent application refers to domestic patents
and patent applications, international patents and patent applications, regional
patents and patent applications, and foreign patents and patent applications.
The purchase and sale transactions described above in this Section 1.1
is herein referred to as the "Asset Sale."
1.2 No Assumption of Liabilities. Neither Nexar nor Palomar shall
assume any liabilities or obligations of Seller or Xxxxxxxx whatsoever,
including, without limitation, any obligation or liability relating to any of
the agreements included in the Purchased Assets or product warranty, liability
or similar claims relating to products delivered or services performed on or
prior to the date of the Closing or any other claims arising out of actions (or
inaction) or other events initially occurring on or prior to the date of the
Closing. It is agreed that Seller and Xxxxxxxx shall be solely liable for all
liabilities and obligations arising from Seller's or Hamirani's respective
ownership, possession, use or operation of the Purchased Assets, the sale,
licensing or other disposition of the Technology, and other incidents and
occurrences relating to the Purchased Assets during the period on or prior to
the date of the Closing.
1.3. Escrow Agent; Escrow Agreement. Union Bank of California or other
appropriate California financial institution shall serve as Escrow Agent
pursuant to the terms of an Escrow Agreement substantially in the form of
Exhibit 1.3 hereto and to be mutually agreed upon by the parties thereto which
shall be executed at the Closing by the parties hereto and said Escrow Agent.
1.4 The Closing. On the earlier of April 30, 1997 or the closing of the
initial public offering of the common stock of Nexar (the "Closing Date"), (i)
Seller and Xxxxxxxx will deliver to Palomar and Nexar the various certificates,
instruments and documents referred to in Section 6.1, and (ii) Palomar and Nexar
will deliver, or cause to be delivered, to Seller, Xxxxxxxx, Computer Universe
and the Escrow Agent, as the case may be, the consideration specified in Section
5.1(b), (c), (d) and (e) and the various instruments and documents referred to
in Section 6.2 (the "Closing"). If the closing of the initial public offering of
the common stock of Nexar occurs before April 30, 1997, then the Closing shall
occur on the same date as the closing of the Nexar initial public offering and
the Closing will be first in time. The Closing shall take place at the offices
of Ropers, Majeski, Xxxx & Xxxxxxx, 00 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx,
or such other place as agreed to by the parties.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER AND XXXXXXXX
Seller and Xxxxxxxx each jointly and severally represent and warrant to
Palomar and Nexar that the following are true and complete as of the date
hereof.
2.1 Organization, Standing and Power. Seller is a corporation duly
organized, validly existing and in good standing under the laws of Nevada and
has full corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted. Seller is duly qualified
and in good standing as a foreign corporation in California and every other
jurisdiction where the conduct of its business or the character of its
properties requires such qualification, or Seller believes qualification is
unnecessary at this time. Seller has duly obtained all permits, licenses and
other qualifications under all applicable laws, regulations, ordinances or
orders of public authorities, or otherwise, that Seller believes are necessary
to the current conduct of its business. Seller has no subsidiaries and does not
control directly or indirectly or have any direct or indirect equity
participation in any corporation, partnership, trust or other business.
2.2 Authority and Binding Obligation. This Agreement has been duly
authorized, executed and delivered by each of the Seller and Xxxxxxxx, and
Seller has the corporate power and authority to enter into and perform the
obligations to be performed by it hereunder, and Xxxxxxxx has the power and
authority to enter into and perform the obligations to be performed by him
hereunder. This Agreement and the Bills of Sale and other instruments of
transfer and agreements of Seller and Xxxxxxxx referred to in Section 6.1
respectively constitute the valid and binding obligations of Seller and
Xxxxxxxx, enforceable against each in accordance with their respective terms,
except that such enforceability may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to enforcement of
creditor's rights generally and is subject to general principles of equity.
2.3 No Consents Necessary. No consents or approvals of or notifications
to any governmental authority or other person not a party hereto is required in
connection with the execution and delivery of this Agreement by Seller and
Xxxxxxxx or the performance by Seller and Xxxxxxxx of all of their respective
obligations hereunder.
2.4 No Breach. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will (a) violate any
provision of the charter or bylaws of Seller or Hamirani's affiliates, or any
material law, regulation, ordinance, judgment or decree applicable to Seller or
Xxxxxxxx or any of their respective properties or assets; (b) violate, conflict
with or result in the breach or termination of, or otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time, or both, would constitute) a default under the terms of any material
written contract, mortgage, lease, bond, indenture, agreement, franchise or
other instrument or obligation of Seller or Xxxxxxxx; or (c) result in the
creation of any lien or encumbrance (collectively, "Liens") upon the Purchased
Assets.
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2.5 Intellectual Property.
(a) Seller and/or Xxxxxxxx own the Technology in its entirety both
legally and beneficially that is to be sold, conveyed, transferred, assigned and
delivered to Palomar by this Agreement. Seller and/or Xxxxxxxx have not
assigned, licensed, transferred or otherwise conveyed any rights in the
Technology to Computer Universe, Xxxxxx Xxxxxxxx, Xxxxx Xxxxxxxx or others.
(b) Seller and/or Xxxxxxxx own legally enforceable rights to make, use,
sell, offer for sale, import, disclose, duplicate, distribute, display and to
prepare derivatives of apparatus, processes, articles of manufacture, works of
authorship and copies in any medium, goods and services embodying the
Technology, subject, prior to the close of business on the date hereof, only to
the terms of the License Agreement.
Exhibit 2.5(a) sets forth a true and complete list of all
trademarks, trademark applications, trademark registrations, patents and patent
applications, copyright applications, copyright registrations, included in the
Technology (collectively, the "Assigned Applications/Registrations"), and
specifies (i) for each such trademark application, trademark registration,
patent application, patent, copyright application, and copyright registration,
the jurisdiction in which it has been filed and/or issued, the date of filing,
the application number, and the registration number (where applicable), and (ii)
for each such trademark, the identity of the xxxx, its dates of first use
anywhere and first use in interstate commerce, the goods and/or services with
which it is used, and the jurisdictions in which it has been used.
Exhibit 2.5(b) sets forth a true and complete list of all
tangible and intangible assets, other then the Assigned
Applications/Registrations, included in the Purchased Assets, including without
limitation apparatus, articles of manufacture, prototypes and Documentation or
other tangible media, contract rights, causes of action, claims and similar
rights, whether accrued or not.
Exhibit 2.5(c) sets forth a true and complete list of all
material third-party patents, trademarks, copyrights, know-how, proprietary
information or other technology (including software) (the "Third Party
Intellectual Property Rights"), and any other property of third parties which
are incorporated in, are, or form a part of, the Technology. Exhibit 2.5(c) also
sets forth a true and complete list of (i) all material licenses, sublicenses
and other agreements as to which Seller and/or Xxxxxxxx is a party and pursuant
to which any person is authorized to use any of the Technology and/or the
Assigned Applications/Registrations; (ii) all material licenses, sublicenses and
other agreements as to which Seller is a party and pursuant to which Seller
and/or Xxxxxxxx is authorized to use any Third Party Intellectual Property
Rights relating to any technology referred to in Section 1.1(i)(a); and (iii)
all material licenses, sublicenses and other agreements as to which Seller
and/or Xxxxxxxx is a party and pursuant to which Seller and/or Xxxxxxxx is
authorized to make, use, sell, offer for sale, import, disclose and/or modify
any Technology and/or the Assigned Applications/Registrations.
No claims are currently pending or, to the knowledge of Seller or
Xxxxxxxx, threatened by any person or entity, nor do Seller or Xxxxxxxx know of
any valid grounds for any bona fide claims
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(i) to the effect that the manufacture, use, sale, offering for sale, import,
disclosure, duplication, distribution, display, licensing, assignment, and/or
preparation of derivatives based on any product, process, work of authorship or
copy utilizing the Technology infringes on any copyright, patent, trademark, or
trade secret of a third party; (ii) against the use by Seller or Xxxxxxxx of the
any trademarks, trade names, trade secrets, copyrights, patents, patent
applications, technology, know-how or computer software programs and
applications relating to any technology referred to in Section 1.1(i)(a) used in
their respective businesses as currently conducted; (iii) challenging the
ownership, validity or effectiveness of any of Assigned
Applications/Registrations, the Technology, and/or the Purchased Assets; or (iv)
challenging Seller's or Hamirani's license or legally enforceable right to make
use of Third Party Intellectual Rights. Notwithstanding the above, all parties
are aware, as evidenced by Nexar's recent filings with the Securities and
Exchange Commission, that Xxxxxx X. Xxxx may have a threatened claim regarding
the subject technology.
To the knowledge of Seller and Xxxxxxxx, all patents, patent
applications, trademarks, trademark applications, registered trademarks,
copyright applications, and registered copyrights included in the Technology are
valid and subsisting. To the knowledge of Seller and Xxxxxxxx, there is no
material unauthorized use, infringement or misappropriation of any Assigned
Applications/Registrations or the Technology by any third party, including any,
current or former officer, director, stockholder, or employee of Seller or
Xxxxxxxx. Notwithstanding the above, Seller and/or Xxxxxxxx may have a claim
against GDA for material unauthorized use, infringement or misappropriation of
the Technology in design work for Nexar (all right, title and interest in such
claim, as well as in any related cause of action or similar rights arising under
law or contract, are assigned and transferred to Palomar pursuant to Section
1.1(ii) hereof).
(c) All copies of any source code for software or firmware constituting
part of the Technology are in Seller's and/or Hamirani's possession and control
(and shall be delivered to Palomar upon Closing) and no officers, employees,
agents, outside consulting or contract engineers or designers or actual or
potential customers of Seller, or any other third party, have any rights to or
possess such source code.
(d) There are no licenses or other authorizations not possessed by
Seller or Xxxxxxxx which are required for Palomar and Nexar to utilize, modify,
market and distribute the Technology and Documentation to at least the same
extent as Seller and/or Xxxxxxxx prior to the Closing Date.
(e) Seller and Xxxxxxxx have taken all appropriate actions to protect
the secrecy and confidentiality of the Technology and the non-public information
included in the Documentation. To the knowledge of Seller and Xxxxxxxx, the
Assigned Applications/Registrations are presently protectable and are not part
of the public domain or literature, nor have they been used, divulged or
appropriated for the benefit of any past or present employees or other persons,
or to the detriment of Seller or Xxxxxxxx. All persons who have been involved in
the development of the Technology and Documentation have executed
confidentiality and nondisclosure agreements covering all non-public information
included in the Documentation in the forms previously delivered to Palomar.
Notwithstanding the above, Seller and/or Xxxxxxxx have not obtained a written
Nondisclosure Agreement with HCL-Hewlett Packard, Ltd. or HCL America ("HCL
America") relating to design
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work performed for Seller and/or Xxxxxxxx regarding United States Patent
Application Serial No. 08/409,317. Seller and/or Xxxxxxxx have not assigned,
licensed, transferred or otherwise conveyed any rights in the Technology to HCL
America.
(f) Seller and/or Xxxxxxxx pay no royalty under any Technology and have
the right to bring actions for the infringement thereof (except as limited by
the License Agreement).
(g) There are no legal or governmental proceedings pending, other than
patent, trademark, and copyright application prosecution proceedings, relating
to the Technology, and to Seller's and Hamirani's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or others.
(h) Seller and/or Xxxxxxxx are not aware of any facts that would
preclude assignment to Palomar and Nexar of clear title to the Technology,
including without limitation the Assigned Applications/Registrations, free from
any encumbrances or liens.
(i) The Seller and/or Xxxxxxxx have complied with the USPTO duty of
candor and disclosure for each of the patents and patent applications included
in the Technology.
(j) The Seller and/or Xxxxxxxx are not aware of any facts which would
render any patent, copyright or trademark registrations included in, or that may
issue from the Technology, unenforceable or invalid.
(k) The Seller and/or Xxxxxxxx are unaware of any facts which would
preclude the grant of a patent, trademark registration or copyright registration
from pending applications therefor included in the Technology.
2.6 Agreements and Other Arrangements. Exhibit 2.6 lists all of the
agreements and other arrangements, if any, to which Seller or Xxxxxxxx are a
party or by or to which they or their assets are bound or subject and which are
material to Seller or Xxxxxxxx, their businesses, the Technology, including,
without limitation, the following: (a) design, engineering, manufacturing,
assembly, joint venture and partnership agreements; (b) license agreements; (c)
agreements with any outside consulting or contract engineers or designers or
other representative of Seller or Xxxxxxxx. There have been delivered or made
available to Nexar true and complete copies of all of the agreements and other
arrangements listed in Exhibit 2.6 and all other Exhibits hereto. All such
agreements and arrangements are in full force and effect and constitute legal,
valid and binding obligations upon Seller and/or Xxxxxxxx and, to their
knowledge, the respective other parties thereto, enforceable in accordance with
their respective terms (except that such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting or relating
to enforcement of creditors' rights generally and is subject to general
principles of equity). Seller and/or Xxxxxxxx have paid in full or accrued all
material amounts due by it thereunder and has satisfied in all material
respects, or provided for, all of its material liabilities and obligations
thereunder. Except as disclosed in Exhibit 2.6, Seller and/or Xxxxxxxx are not
in default under any material provision of any such agreement or arrangement,
nor, to its knowledge, is any other party to such agreement or
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arrangement in default of any material provision thereunder, nor does any
condition exist that, with notice or lapse of time or both, would constitute a
default thereunder, which default would have a materially adverse effect on
Seller and/or Xxxxxxxx or their respective businesses.
2.7 No Employees. Other than Xxxxx X. Xxxxxxxx, Seller has no employees
and no employee has ever been compensated for any services rendered for or on
behalf of Seller or is due any such compensation for services rendered. Any
individual or entity engaged by Seller or Xxxxxxxx to perform any design,
engineering, manufacturing or assembly services with respect to the Technology
has been retained strictly on the basis of work-for-hire and no liens or
ownership interest of any kind whatsoever has arisen in connection with any such
services.
2.8 Purchase of Securities for Investment. The Seller and/or Xxxxxxxx
are acquiring the Palomar Shares (as defined in Section 5.1(b)) for its own
account for investment purposes only and not with a view to distribution. Each
of Seller and Xxxxxxxx has such knowledge and experience in financial and
business matters, either alone or with advisors, that each is capable of
evaluating the merits and risks of acquiring the Palomar Shares.
2.9 Affiliates. The affiliates of Xxxxxxxx are listed on Exhibit 1.0
hereto. Xxxxxxxx is the sole shareholder of Seller. Other than Seller and
Computer Universe, Xxxxxxxx does not have any other affiliated businesses.
2.10 No Excluded Technology. There is no technology, proprietary
information or intellectual property owned by Seller or Xxxxxxxx, or in which
Seller or Xxxxxxxx have a legal or equitable right of ownership, which will not
be included in the Purchased Assets transferred to Palomar and Nexar by the
Bills of Sale and other instruments of transfer referred to in Section 6.1 of
the Agreement, and which are related to the Technology.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PALOMAR AND NEXAR
Palomar and Nexar each represent and warrant to Seller that the
following are true and complete as of the date hereof:
3.1 Organization, Standing and Power. Each of Nexar and Palomar is a
corporation duly organized, validly existing and in good standing under the laws
of Delaware, duly qualified as a foreign corporation to do business in
Massachusetts and California and has full corporate power and authority to own,
lease and operate its respective properties and to carry on its respective
business as proposed to be conducted.
3.2 Authority and Binding Obligation. This Agreement has been duly
authorized, executed and delivered by each of Nexar and Palomar, and each of
Nexar and Palomar has the corporate power and authority to enter into and
perform the obligations to be performed respectively
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by each hereunder. This Agreement constitutes the valid and binding obligations
of each of Nexar and Palomar, enforceable against each in accordance with its
respective terms, except that such enforceability may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting or relating to
enforcement of creditor's rights generally and is subject to general principles
of equity.
3.3 Consents and Approvals. No consents or approvals of nor
notification to any governmental authority or other person not a party hereto is
required in connection with the execution and delivery of this Agreement by
Nexar and Palomar or the performance by Nexar and Palomar of their respective
obligations hereunder.
3.4 No Breach. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will (a) violate any
provision of the charter or by-laws of Nexar or Palomar nor any material law,
regulation, ordinance, judgment or decree applicable to Nexar or Palomar or
their respective properties or assets; or (b) violate or conflict with any
agreement to which Nexar or Palomar is a party.
ARTICLE IV
SETTLEMENT OF CLAIMS
4.1. Seller and Xxxxxxxx shall deliver to Palomar and Nexar at the
Closing a duly executed General Release identical in form to Exhibit 4.1 hereof.
4.2. Palomar and Nexar shall deliver to Seller and Xxxxxxxx at the
Closing a duly executed General Release identical in form to Exhibit 4.2 hereof.
4.3. Seller and Xxxxxxxx shall cause Computer Universe to deliver to
Nexar at the Closing a duly executed General Release identical in form to
Exhibit 4.3(a) hereof; Nexar shall deliver to Computer Universe at the Closing a
duly executed General Release identical in form to Exhibit 4.3(b) hereof.
ARTICLE V
CONSIDERATION
5.1 Consideration. The consideration for the Purchased Assets and
releases by Seller, Xxxxxxxx and Computer Universe of all subject claims shall
be as follows:
(a) $75,000 in the aggregate, which shall be paid to Seller and/or
Xxxxxxxx on the date of execution of this Agreement by the
parties hereto; and
11
(b) The number of shares of the common stock of Palomar, $.01 par
value per share ("Palomar Common Stock"), which have an
aggregate market value (based on the per share closing bid of
the Palomar Common Stock on the business day immediately prior
to The Nasdaq Stock Market on the Closing Date of $1,500,000
(the "Palomar Shares"), to be delivered to Seller and/or
Xxxxxxxx on the Closing Date; and
(c) $425,000 in the aggregate to be paid to Seller and/or Xxxxxxxx
on the Closing Date; and
(d) $700,000 in deferred consideration to be delivered to the
Escrow Agent on the Closing Date pursuant to the terms of the
Escrow Agreement; and
(e) $50,000 to be paid to Computer Universe on the Closing Date
pursuant to the terms of the mutual releases between Nexar and
Computer Universe in the form of Exhibits 4.3(a) and (b)
attached hereto.
ARTICLE VI
CLOSING
6.1. Obligations of Seller and Xxxxxxxx at the Closing. At the Closing,
Seller and Xxxxxxxx shall deliver or cause to be delivered to Palomar and/or
Nexar the following:
(a) (i) Bills of Sale identical in form to Exhibit 6.1(a)(i), and
such other instruments of transfer for the Purchased Assets
(including by non-limiting example assignments of patents,
patent applications, copyrights and trademarks) in form and
substance reasonably satisfactory to Palomar, Nexar and their
counsel and sufficient to convey to Palomar all of Seller's
and Hamirani's right, title and interest in and to the
Purchased Assets; and (ii) such instruments of transfer shall
include, by non-limiting example, assignments of the Patent
Application, the Additional Patent Application and other
technology in the form of an Assignment of Technology
identical in form to Exhibit 6.1(a)(ii) sufficient for
recordation with the United States Patent and Trademark Office
and other governmental offices;
(b) all Documentation and any tangible or intangible reduction to
practice or other representation of the Technology not already
in Palomar's or Nexar's possession; and
(c) a counterpart to the Escrow Agreement, duly executed by
Seller, Xxxxxxxx and the Escrow Agent;
(d) a counterpart of the Investment and Registration Rights
Agreement in the form of Exhibit 6.1(d) ("Investment
Agreement"), duly executed by Seller and Xxxxxxxx;
12
(e) a General Release identical in form to Exhibit 4.1, duly
executed by Seller and Xxxxxxxx;
(f) a General Release identical in form to Exhibit 4.3(a), duly
executed by Computer Universe;
(g) all copies of the Assigned Applications/Registrations
(including the Patent Application and the Additional Patent
Application not yet filed), along with copies of the Patent
Application's entire history of prosecution, or "file
history", before the respective government offices (such file
history to include, but not be limited to, copies of the
application, filing receipts, office actions, responses,
notices of allowability and/or allowance, and any other
correspondence between the applicant and respective government
office with respect to such Assigned
Applications/Registrations), which copies Palomar and Nexar
shall have a right to conduct a nonqualitative inspection at
the Closing; and
(h) such other certificates, and documents and instruments as
Nexar may reasonably request to effectuate and evidence the
transactions contemplated hereby and the satisfaction of the
obligations of Seller and Xxxxxxxx under this Agreement.
6.2 Obligations of Nexar and Palomar at the Closing. At the Closing,
Palomar and Nexar shall deliver or cause to be delivered to Seller and Xxxxxxxx
the following:
(a) the $425,000 cash consideration specified in Section 5.1(c);
(b) the Palomar Shares;
(c) the $700,000 deferred consideration to be delivered to the
Escrow Agent pursuant to the Escrow Agreement;
(d) the $50,000 cash consideration to be delivered to Computer
Universe;
(e) a General Release identical in form to Exhibit 4.2, duly
executed by Nexar and Palomar;
(f) a General Release identical in form to Exhibit 4.3(b), duly
executed by Nexar;
(g) a counterpart to the Escrow Agreement, duly executed by
Palomar;
(h) a counterpart to the Investment Agreement, duly executed by
Palomar; and
(i) a copy of the lock-up agreement between Nexar and its
directors and officers; and
13
(j) such other certificates, documents and instruments as Seller
may reasonably request to effectuate and evidence the
transactions contemplated hereby and the satisfaction of the
obligations of Palomar and Nexar under this Agreement. By the
Closing Date, Seller and Xxxxxxxx will provide specific
Closing instructions regarding which portions of the
consideration shall be made out to Seller as opposed to
Xxxxxxxx.
ARTICLE VII
OTHER COVENANTS AND AGREEMENTS
7.1 Prior Agreement Terminated. The License Agreement to which Nexar
and Seller are parties, shall be automatically terminated and have no further
force and effect as of the close of business on the Closing Date and neither
party shall thereafter have any liability whatsoever to the other thereunder.
7.2 Non-Compete; Non-Disparagement; No Bad Acts. Xxxxxxxx and Seller
agree that neither will during the period commencing upon execution of this
Agreement and ending on the Closing Date, either alone or jointly with, or as
manager or agent for, any person, corporation, partnership, joint venture or
other business organization, directly or indirectly engage or participate in,
assist or consult with in any manner or in any capacity, or have any interest in
or make any loan to any person, corporation, partnership, joint venture or other
business organization, or any company, which is engaged in manufacturing,
development, or sale of products incorporating any technology referred to in
Section 1.1(i).
Xxxxxxxx and Seller further agree that neither will during the period
ending six months following the Closing Date, either alone or jointly with, or
as manager or agent for, any person, corporation, partnership, joint venture or
other business organization, directly or indirectly, solicit any person or
persons in the employment of Palomar or Nexar in any capacity whatsoever to
terminate such association and work for Xxxxxxxx, Seller, or any affiliates.
Commencing upon execution of this Agreement through the period ending
12 months following the Closing Date, the parties mutually agree that they will
not make any statement, orally or in writing, which disparages or damages the
reputation, quality of work, capabilities or integrity of any other party, as
the law provides, or do any wrongful act or omission which may damage the
reputation, quality of work, capabilities or integrity of any other party, as
the law provides.
Commencing upon execution of this Agreement through the period ending
12 months following the Closing Date, the parties mutually agree that they will
not interfere with or damage any beneficial or contractual relationship of the
other party, as the law provides.
7.3 Further Assurances of Seller and Xxxxxxxx. Commencing upon
execution of this Agreement (and thereafter, as applicable), Seller and Xxxxxxxx
shall (i) maintain the pendency,
14
validity and enforceability of Assigned Applications/Registrations and shall not
allow them to go abandoned or reduce their scope; (ii) maintain the secrecy of
all legally protectable trade secrets and know-how included in Technology; and
(iii) take no other actions tending to reduce the scope of the Technology and/or
Purchased Assets. After the Closing, Seller and Xxxxxxxx each hereby covenant
that they will (i) execute, acknowledge and deliver any further assignments,
conveyances and other assurances, documents and instruments of transfer
reasonably requested by Palomar and/or Nexar from time to time and shall take
any other action consistent with the terms of this Agreement that may be
reasonably requested by Palomar and/or Nexar for the purpose of selling,
transferring, assigning, granting, conveying, delivering or confirming to
Palomar and/or Nexar as of the date of the Closing (or such other date
thereafter as the parties shall deem appropriate) any or all of the Purchased
Assets; (ii) provide any further facts and documents as may be known and
accessible to Seller and/or Xxxxxxxx requested by Palomar and/or Nexar relating
to the Technology, and testify (at Palomar and/or Nexar's cost) as to the same
in any interference, opposition, litigation or proceeding related thereto, and
(iii) execute, acknowledge and deliver any further instruments or affidavits
reasonably requested by Palomar and/or Nexar from time to time to apply for,
obtain maintain, and enforce patents, copyrights, trade secrets and other
proprietary rights in the Technology assigned hereunder or to otherwise carry
out the purposes hereof. Neither the Seller nor Xxxxxxxx shall retain any copies
of the Purchased Assets or materials disclosing or containing nonpublic aspects
of the same. If requested by Palomar and/or Nexar, Seller and/or Xxxxxxxx, at
Palomar and/or Nexar's cost, shall prosecute or otherwise enforce in Seller's
and/or Hamirani's own names for the benefit of Palomar and/or Nexar any claims,
rights or benefits that are transferred to Palomar and/or Nexar by this
Agreement and that require prosecution or enforcement in Seller's and/or
Hamirani's names.
7.4 Further Assurances of Palomar and Nexar. All officers and directors
of Nexar shall agree to hold their shares of Nexar stock for a period not less
than six (6) months from the date of closing of Nexar's initial public offering.
A copy of the lock-up agreement confirming same shall be provided to Seller and
Xxxxxxxx at the Closing. Palomar and Nexar shall not fund any litigation or
other legal proceeding (except any defense or counterclaim) brought in the name
of any Palomar or Nexar director, officer, employee, or any others against
Seller or Xxxxxxxx for the period ending four years following the Closing Date.
ARTICLE VIII
INDEMNIFICATION
8.1 Survival of Representations and Warranties. The representations and
warranties made by each of the parties in this Agreement shall be deemed to have
been relied upon by the other parties hereto and shall survive the Closing,
provided that in no event shall any party be entitled to seek indemnification in
respect of any breach of a representation or warranty made herein pursuant to
this Article VIII unless the party seeking indemnification has made a written
claim therefor pursuant to Section 9.9 prior to January 1, 2000.
15
8.2 Indemnification Provisions.
(i) In the event Seller and/or Xxxxxxxx breaches (or in the
event any third party alleges facts that, if true, would mean Seller
and/or Xxxxxxxx has breached) any of their representations, warranties,
and covenants contained herein, provided that Palomar and/or Nexar
makes a written claim for indemnification against Seller and/or
Xxxxxxxx by notice to Xxxxxxxx pursuant to Section 9.9 prior to January
1, 2000, then Seller and Xxxxxxxx jointly and severally agree to
indemnify Nexar and Palomar from and against the entirety of any
actions, suits, proceedings, hearing, investigations, charges,
complaints, claims, demands, injunctions, judgments, orders, decrees,
rulings, damages, dues, penalties, fines, costs, amounts paid in
settlement, liabilities, obligations, taxes, liens, losses, expenses,
and fees, including court costs and reasonable attorney's fees and
expenses ("Adverse Consequences") Nexar or Palomar may suffer through
and after the date of the claim for indemnification (including any
Adverse Consequences Nexar or Palomar may suffer after December 31,
1999) resulting from, arising out of, relating to, in the nature of, or
caused by the breach (or the alleged breach).
(ii) In the event Palomar or Nexar breaches (or in the event
any third party alleges facts that, if true, would mean Palomar or
Nexar has breached) any of its representations, warranties, and
covenants contained herein, provided that Xxxxxxxx makes a written
claim for indemnification against Palomar or Nexar pursuant to Section
9.9 prior to January 1, 2000, then Palomar and Nexar agree to indemnify
each of the Seller and Xxxxxxxx from and against the entirety of any
Adverse Consequences the Seller or Xxxxxxxx may suffer through and
after the date of the claim for indemnification (including any Adverse
Consequences the Seller or Xxxxxxxx may suffer after December 31, 1999)
resulting from, arising out of, relating to, in the nature of, or
caused by the breach (or the alleged breach).
8.3 Matters Involving Third Parties.
(i) If any third party shall notify any party (the
"Indemnified Party") with respect to any matter (a "Third Party Claim")
which may give rise to a claim for indemnification against any other
party (the "Indemnifying Party") under this Article VIII, then the
Indemnified Party shall promptly notify each Indemnifying Party thereof
in writing; provided, however, that no delay on the part of the
Indemnified Party in notifying any Indemnifying Party shall relieve the
Indemnifying Party from any obligation hereunder unless (and then
solely to the extent) the Indemnifying Party thereby is prejudiced.
(ii) Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its
choice reasonably satisfactory to the Indemnified Party so long as (A)
the Indemnifying Party notifies the Indemnified Party in writing within
15 days after the Indemnified Party has given notice of the Third Party
Claim that the Indemnifying Party will indemnify the Indemnified Party
from and against the entirety of any Adverse Consequences the
Indemnified Party may suffer resulting from, arising out of, relating
to, in the nature of, or caused by the Third Party Claim, (B) the
16
Indemnifying Party provides the Indemnified Party with evidence
reasonably acceptable to the Indemnified Party that the Indemnifying
Party will have the financial resources to defend against the Third
Party Claim and fulfill its indemnification obligations hereunder, (C)
the Third Party Claim involves only money damages and does not seek an
injunction or other equitable relief, (D) settlement of, or an adverse
judgment with respect to, the Third Party Claim is not, in the good
faith judgment of the Indemnified Party, likely to establish a
precedential custom or practice materially adverse to the continuing
business interests of the Indemnified Party, and (E) the Indemnifying
Party conducts the defense of the Third Party Claim actively and
diligently.
(iii) So long as the Indemnifying Party is conducting the
defense of the Third Party Claim in accordance with Section 8.3(ii)
above, (A) the Indemnified Party may retain separate co-counsel at its
sole cost and expense and participate in the defense of the Third Party
Claim, (B) the Indemnified Party will not consent to the entry of any
judgment or enter into any settlement with respect to the Third Party
Claim without the prior written consent of the Indemnifying Party (not
to be withheld unreasonably), and (C) the Indemnifying Party will not
consent to the entry of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior written consent of
the Indemnified Party (not to be withheld unreasonably).
(iv) In the event any of the conditions in Article 8.3(ii)
above is or becomes unsatisfied, however, (A) the Indemnified Party may
defend against, and consent to the entry of any judgment or enter into
any settlement with respect to, the Third Party Claim in any manner it
reasonably may deem appropriate (and the Indemnified Party need not
consult with, or obtain any consent from, any Indemnifying Party in
connection therewith), (B) the Indemnifying Parties will reimburse the
Indemnified Party promptly and periodically for the costs of defending
against the Third Party Claim (including reasonable attorneys' fees and
expenses), and (C) the Indemnifying Parties will remain responsible for
any Adverse Consequences the Indemnified Party may suffer resulting
from, arising out of, relating to, in the nature of, or caused by the
Third Party Claim to the fullest extent provided in this Article VIII.
8.4 Other Indemnification Provisions. The foregoing indemnification
provisions are in addition to, and not in derogation of, any statutory,
equitable, or common law remedy any party may have for breach of representation,
warranty, or covenant.
ARTICLE IX
GENERAL PROVISIONS
9.1 Publicity. Neither Xxxxxxxx nor Seller or any of their affiliates
shall issue any press release or other public statement with respect to the
transactions contemplated by this Agreement
17
without the prior written consent of Palomar and Nexar, which consent will not
be unreasonably withheld.
9.2 Headings. The subject headings of the Sections and subsections of
this Agreement are included for purposes of convenience only and shall not
affect the interpretation of any of its provisions.
9.3 Entire Agreement; Amendments and Waivers. This Agreement
constitutes the entire agreement among the parties pertaining to the subject
matter contained herein and supersedes all prior agreements, representations and
understandings of the parties. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by the party to be bound.
No waiver of any of the provisions of this Agreement shall be deemed a waiver of
any other provision, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in writing by the
party making the waiver.
9.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.5 Severability; Reformation. In case any one or more of the
provisions (or parts of a provision) contained in this Agreement shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
(or part of a provision) of this Agreement; and this Agreement shall, to the
fullest extent lawful, be reformed and construed as if such invalid, illegal or
unenforceable provision (or part of a provision) had never been contained
herein, and such provision (or part) reformed so that it will be valid, legal
and enforceable to the maximum extent possible, consistent with the parties'
intent.
9.6 Other Parties. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under this Agreement on
any persons other than the parties to it and their respective successors and
permitted assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action against any party to this Agreement.
9.7 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. Neither this Agreement nor any of the rights, interests and obligations
hereunder shall be assigned by any of the parties hereto without the prior
written consent of the other, which consent shall not be unreasonably withheld,
except that Palomar may assign this Agreement to any of its subsidiaries
(provided that Palomar remains obligated hereunder) or to any purchaser of all
or substantially all of the capital stock or assets of Palomar, whether by
merger or otherwise.
9.8 Governing Law. Except for the General Releases in the form of
Exhibits 4.1, 4.2, 4.3(a) and 4.3(b) which shall be construed in accordance
with, and governed by, the laws of the State
18
of California, this Agreement and the exhibits hereto shall be construed in
accordance with, and governed by, the laws of The Commonwealth of Massachusetts,
including, without limitation, its statutes of limitations, but without giving
effect to its rules governing choice of law.
9.9 Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and delivered by personal delivery,
mail, overnight courier or telecopy. Such communications shall be deemed given,
if by personal delivery, when received; if by mail, when mailed by certified or
registered mail (postage prepaid and return receipt requested); or if by
overnight courier or telecopy, when delivered to such courier or sent by
telecopy (provided that the party giving such communication has confirmation of
such courier delivery or telecopy delivery), and, in each case, addressed to the
party to whom notice is to be given as set forth below:
Palomar:
Palomar Medical Technologies, Inc.
00 Xxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx, Chairman
Nexar:
Nexar Technologies, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Chairman and Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxx, Esq.
Xxxxxx, Hall & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
19
Seller and Xxxxxxxx:
c/o Xxxxx X. Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Telephone:
Facsimile:
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Ropers, Majeski, Xxxx & Xxxxxxx
00 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may change its address or the individual(s) to whom notice is to be
given for purposes of this Section 9.9 by giving the other parties notice of the
new address or individual in the manner set forth above; provided that any such
notice of change of address or individual shall not be in effect until received.
9.10 Arbitration. For the period ending 12 months following the Closing
Date, or so long as there is deferred compensation held by the Escrow Agent
pursuant to the Escrow Agreement, the sole forum for the litigation of any
dispute arising under or in connection with this Agreement or any exhibit hereto
shall be by binding arbitration conducted by J.A.M.S/ENDISPUTE in San Francisco,
California by a person chosen by mutual agreement of the parties, and if the
parties fail to agree, chosen by J.A.M.S/ENDISPUTE. The parties agree that if
the amount in controversy exceeds $100,000, then the discovery procedures as
established by the Federal Rules of Civil Procedure shall be incorporated into
the J.A.M.S/ENDISPUTE applicable rules. The prevailing party in any such
proceeding shall be entitled to recover attorney's fees and costs incurred in
that proceeding.
* * * * *
20
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed under seal as of the date and year first above
written.
PALOMAR MEDICAL TECHNOLOGIES, INC.,
/s/ Xxxxx X. Xxxx By: Xxxxxx X. Xxxxxx
------------------------ ----------------------------------
Witness Treasurer and Chief Financial
Officer
NEXAR TECHNOLOGIES, INC.
/s/ Xxxxxxxx X. Xxxxx By: Xxxxxx X. Xxxxx
------------------------ ----------------------------------
Witness Chairman and
Chief Executive Officer
TECHNOVATION COMPUTER LABS, INC.
/s/ Xxxxxxx X. Xxxxxxx By: Xxxxx X. Xxxxxxxx
------------------------- ----------------------------------
Witness President
/s/ Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxx
------------------------- -----------------------------------
Witness Xxxxx X. Xxxxxxxx
21
Exhibit 1.0
Affiliates
Xxxxxxxx Xxxxxxxx
Technovation Computer Labs, Inc.
Amerisel, Inc. (d/b/a Computer Universe)
22
EXHIBIT 2.5(A)
LIST OF TRADEMARKS, TRADEMARK APPLICATIONS,
TRADEMARK REGISTRATIONS, PATENTS AND PATENT
APPLICATIONS, COPYRIGHT APPLICATIONS AND COPYRIGHT REGISTRATIONS
o United States Patent Application Serial No. 08/409,317, filed on March 23,
1995, entitled "System Permitting the External Replacement of the CPU
and/or DRAM XXXXx Microchip Board."
EXHIBIT 2.5(B)
LIST OF TANGIBLE AND INTANGIBLE ASSETS
1. All documents regarding United States Patent Application Serial No.
08/409,317, filed on March 23, 1995, entitled "System Permitting the
External Replacement of the CPU and/or DRAM XXXXx Microchip Board"
("Patent Application").
2. Assignment of the Patent Application to Technovation Computer Labs, Inc.
(presently in Nexar's possession).
3. All documents regarding the additional patent application not yet filed as
referred to in Xxxxxx Xxxxxxxx'x letter dated December 19, 1996, to Xxxxxx
X. Xxxxxxxxx.
4. All documents relating to design work to be performed by GDA and/or HCL
(presently in Nexar's possession).
5. All nondisclosure agreements with GDA, Frog Design, Studio Red and Inotec.
6. All document not otherwise listed in this Exhibit relating to the subject
Technology, including designs, schematics and/or drawings (most, if not
all, are currently in Nexar's possession).
EXHIBIT 2.5(C)
LIST OF MATERIAL THIRD-PARTY PATENTS, TRADEMARKS,
COPYRIGHTS, KNOW-HOW, PROPRIETARY INFORMATION
None.
EXHIBIT 2.6
LIST OF AGREEMENTS AND ARRANGEMENTS
1. The License Agreement referred to on the first page of the Asset Purchase
and Settlement Agreement.
2. A Product Development Agreement with GDA.
3. Non-Disclosure Agreements with GDA, Frog Design, Studio Red and Inotec.
EXHIBIT 4.1
TO ASSET PURCHASE AND SETTLEMENT AGREEMENT DATED AS OF FEBRUARY 28, 1997
BY AND AMONG PALOMAR MEDICAL TECHNOLOGIES, INC., NEXAR TECHNOLOGIES, INC.,
TECHNOVATION COMPUTER LABS, INC. AND XXXXX X. XXXXXXXX
GENERAL RELEASE
For due and adequate consideration, the receipt of which is hereby
acknowledged, Xxxxx X. Xxxxxxxx ("Xxxxxxxx") and Technovation Computer Labs,
Inc. ("TCL") (hereinafter jointly referred to as the "Releasing Parties"),
hereby jointly and severally remise, release and forever discharge Palomar
Medical Technologies, Inc. and Nexar Technologies, Inc. (f/k/a Dynasys Systems
Corporation) and all of their respective subsidiaries, including without
limitation Intelesys Corporation (f/k/a Dynasys/Intelligent Systems
Corporation), and each of their respective officers, directors, employees and
agents, except Xxxxxx X. Xxxxx and Xxxxxx X. Xxxx (hereinafter collectively
referred to as the "Released Parties") of and from all debts, demands, actions,
causes of action, suits, accounts, covenants, contracts, agreements, damages,
and any and all claims, obligations, demands and liabilities whatsoever of every
name and nature, both in LAW and in EQUITY, which any one or more of the
Releasing Parties now has or ever had from the beginning of the world to this
date against any one or more of the Released Parties, including, but without
limiting the generality of the foregoing, of and from any claim, obligation,
demand or liability arising out of (i) that certain Key Employee Agreement
entered into by and between Xxxxxxxx and Dynasys/Intelligent Systems Corporation
as of August 1, 1995; and (ii) that certain License Agreement entered into by
and between TCL and Dynasys Systems Corporation as of August 25, 1995.
Notwithstanding the generality of the foregoing, nothing herein shall release
any Released Party from any claim, obligation, demand or liability arising out
of that certain Asset Purchase and Settlement Agreement entered into as of
February 28, 1997 by and among the Releasing Parties and the Released Parties,
which agreement shall include all exhibits thereto.
The Releasing Parties understand and agree that all rights under
Section 1542 of the Civil Code of California and any similar right under the
laws of any other jurisdiction are expressly waived by the Releasing Parties.
Section 1542 of the Civil Code of California reads as follows:
A general release does not extend to claims which the creditor does not
know or suspect exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with debtor.
Notwithstanding these provisions of Section 1542 and any similar right under the
laws of any other jurisdiction, and for the purpose of implementing a full and
complete release and discharge of the Released Parties, the Releasing Parties
expressly acknowledge that this release is intended to include in its effect,
without limitation, all claims which they do not know or suspect to exist in
their favor at the time of execution hereof and that the settlement reflected in
this release contemplates the extinguishment of all such claims.
Witness the execution hereof under seal this ___ day of ____________,
1997.
-----------------------------------------
Xxxxx X. Xxxxxxxx
TECHNOVATION COMPUTER LABS, INC.
By:______________________________________
Xxxxx X. Xxxxxxxx, President
EXHIBIT 4.2
TO ASSET PURCHASE AND SETTLEMENT AGREEMENT DATED AS OF FEBRUARY 28, 1997
BY AND AMONG PALOMAR MEDICAL TECHNOLOGIES, INC., NEXAR TECHNOLOGIES, INC.,
TECHNOVATION COMPUTER LABS, INC. AND XXXXX X. XXXXXXXX
GENERAL RELEASE
For due and adequate consideration, the receipt of which is hereby
acknowledged, Palomar Medical Technologies, Inc. and Nexar Technologies, Inc.
(f/k/a Dynasys Systems Corporation) and all of their respective subsidiaries,
including without limitation Intelesys Corporation (f/k/a Dynasys/Intelligent
Systems Corporation) (hereinafter jointly referred to as the "Releasing
Parties"), hereby jointly and severally remise, release and forever discharge
Xxxxx X. Xxxxxxxx ("Xxxxxxxx") and Technovation Computer Labs, Inc. ("TCL") and
its officers, directors, employees and agents (hereinafter collectively referred
to as the "Released Parties") of and from all debts, demands, actions, causes of
action, suits, accounts, covenants, contracts, agreements, damages, and any and
all claims, obligations, demands and liabilities whatsoever of every name and
nature, both in LAW and in EQUITY, which any one or more of the Releasing
Parties now has or ever had from the beginning of the world to this date against
any one or more of the Released Parties, including, but without limiting the
generality of the foregoing, of and from any claim, obligation, demand or
liability arising out of (i) that certain Key Employee Agreement entered into by
and between Xxxxxxxx and Dynasys/Intelligent Systems Corporation as of August 1,
1995; and (ii) that certain License Agreement entered into by and between TCL
and Dynasys Systems Corporation as of August 25, 1995. Notwithstanding the
generality of the foregoing, nothing herein shall release any Released Party
from any claim, obligation, demand or liability arising out of that certain
Asset Purchase and Settlement Agreement entered into as of February 28, 1997 by
and among the Releasing Parties and the Released Parties, which agreement shall
include all exhibits thereto.
The Releasing Parties understand and agree that all rights under
Section 1542 of the Civil Code of California and any similar right under the
laws of any other jurisdiction are expressly waived by the Releasing Parties.
Section 1542 of the Civil Code of California reads as follows:
A general release does not extend to claims which the creditor does not
know or suspect exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with debtor.
Notwithstanding these provisions of Section 1542 and any similar right under the
laws of any other jurisdiction, and for the purpose of implementing a full and
complete release and discharge of the Released Parties, the Releasing Parties
expressly acknowledge that this release is intended to include in its effect,
without limitation, all claims which they do not know or suspect to exist in
their favor at the time of execution hereof and that the settlement reflected in
this release contemplates the extinguishment of all such claims.
Witness the execution hereof under seal this ___ day of ____________,
1997.
PALOMAR MEDICAL TECHNOLOGIES, INC.
By:______________________________________
Its:
hereunto duly authorized
NEXAR TECHNOLOGIES, INC.
By:______________________________________
Its:
hereunto duly authorized
EXHIBIT 4.3(A)
TO ASSET PURCHASE AND SETTLEMENT AGREEMENT DATED AS OF FEBRUARY 28, 1997
BY AND AMONG PALOMAR MEDICAL TECHNOLOGIES, INC., NEXAR TECHNOLOGIES, INC.,
TECHNOVATION COMPUTER LABS, INC. AND XXXXX X. XXXXXXXX
GENERAL RELEASE
For due and adequate consideration, the receipt of which is hereby
acknowledged, Amerisel, Inc. (d/b/a Computer Universe) (hereinafter referred to
as the "Releasing Party") hereby remises, releases and forever discharges Nexar
Technologies, Inc., its officers, directors, employees and agents, except Xxxxxx
X. Xxxxx and Xxxxxx X. Xxxx (hereinafter collectively referred to as the
"Released Party") of and from all debts, demands, actions, causes of action,
suits, accounts, covenants, contracts, agreements, damages, and any and all
claims, demands, obligations and liabilities whatsoever of every name and
nature, both in LAW and in EQUITY, which the Releasing Party now has or ever had
from the beginning of the world to this date against the Released Party.
The Releasing Party understands and agrees that all rights under
Section 1542 of the Civil Code of California and any similar right under the
laws of any other jurisdiction are expressly waived by the Releasing Party.
Section 1542 of the Civil Code of California reads as follows:
A general release does not extend to claims which the creditor does not
know or suspect exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with debtor.
Notwithstanding these provisions of Section 1542 and any similar right under the
laws of any other jurisdiction, and for the purpose of implementing a full and
complete release and discharge of the Released Party, the Releasing Party
expressly acknowledges that this release is intended to include in its effect,
without limitation, all claims which it does not know or suspect to exist in its
favor at the time of execution hereof and that the settlement reflected in this
release contemplates the extinguishment of all such claims.
Witness the execution hereof under seal this ___ day of ___________,
1997.
AMERISEL, INC.
By:______________________________________
Xxxxxx Xxxxxxxx, President
EXHIBIT 4.3(B)
TO ASSET PURCHASE AND SETTLEMENT AGREEMENT DATED AS OF FEBRUARY 28, 1997
BY AND AMONG PALOMAR MEDICAL TECHNOLOGIES, INC., NEXAR TECHNOLOGIES, INC.,
TECHNOVATION COMPUTER LABS, INC. AND XXXXX X. XXXXXXXX
GENERAL RELEASE
For due and adequate consideration, the receipt of which is hereby
acknowledged, Nexar Technologies, Inc. (hereinafter referred to as the
"Releasing Party") hereby remises, releases and forever discharges Amerisel,
Inc. (d/b/a Computer Universe), its officers, directors, employees and agents
(hereinafter collectively referred to as the "Released Party") of and from all
debts, demands, actions, causes of action, suits, accounts, covenants,
contracts, agreements, damages, and any and all claims, demands, obligations and
liabilities whatsoever of every name and nature, both in LAW and in EQUITY,
which the Releasing Party now has or ever had from the beginning of the world to
this date against the Released Party.
The Releasing Party understands and agrees that all rights under
Section 1542 of the Civil Code of California and any similar right under the
laws of any other jurisdiction are expressly waived by the Releasing Party.
Section 1542 of the Civil Code of California reads as follows:
A general release does not extend to claims which the creditor does not
know or suspect exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with debtor.
Notwithstanding these provisions of Section 1542 and any similar right under the
laws of any other jurisdiction, and for the purpose of implementing a full and
complete release and discharge of the Released Party, the Releasing Party
expressly acknowledges that this release is intended to include in its effect,
without limitation, all claims which it does not know or suspect to exist in its
favor at the time of execution hereof and that the settlement reflected in this
release contemplates the extinguishment of all such claims.
Witness the execution hereof under seal this ___ day of
________________, 1997.
NEXAR TECHNOLOGIES, INC.
By:______________________________________
Its:
hereunto duly authorized
EXHIBIT 6.1(A)(I)
TO ASSET PURCHASE AND SETTLEMENT AGREEMENT DATED AS OF FEBRUARY 28, 1997
BY AND AMONG PALOMAR MEDICAL TECHNOLOGIES, INC., NEXAR TECHNOLOGIES, INC.,
TECHNOVATION COMPUTER LABS, INC. AND BABAR XXXXXXXX
XXXX OF SALE
KNOW BY THESE PRESENTS: That, for valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Technovation Computer Labs,
Inc., a Nevada corporation ("SELLER"), hereby sells, conveys, transfers, assigns
and delivers to Palomar Medical Technologies, Inc., a Delaware corporation
("BUYER"), to have and hold forever for its own use and benefit, all of SELLER's
right, title and interest in and to the "Purchased Assets" as defined in the
Asset Purchase and Settlement Agreement dated as of February 28, 1997 (the
"Purchase Agreement") by and among BUYER, SELLER, Nexar Technologies, Inc. and
Xxxxx X. Xxxxxxxx, free and clear of any lien, encumbrance, claim or interest
whatsoever.
SELLER hereby constitutes and appoints BUYER, its successors and
assigns, the true and lawful attorneys of SELLER, with full power of
substitution, to demand and receive from time to time any and all of the
Purchased Assets, to defend or compromise any and all actions, suits or
proceedings in respect of any of the Purchased Assets, and to collect, for the
account of BUYER, all receivables and proceeds of any character included in the
Purchased Assets. SELLER hereby declares that said appointment made and powers
granted are coupled with an interest and are and shall be perpetual and
irrevocable and shall not be terminated by any act of SELLER or by the
occurrence of any other event or in any other manner or for any other reason.
This Xxxx of Sale shall be binding upon SELLER and its successors and
assigns and inure to the benefit of BUYER and its successors and assigns.
IN WITNESS WHEREOF, the Xxxx of Sale has been duly executed and sealed
on behalf of SELLER as of ____________, 1997.
TECHNOVATION COMPUTER LABS, INC.
By: _____________________________________
Xxxxx X. Xxxxxxxx, President
Witnessed By:
-----------------------------------------
EXHIBIT 6.1(A)(I)
TO ASSET PURCHASE AND SETTLEMENT AGREEMENT DATED AS OF FEBRUARY 28, 1997
BY AND AMONG PALOMAR MEDICAL TECHNOLOGIES, INC., NEXAR TECHNOLOGIES, INC.,
TECHNOVATION COMPUTER LABS, INC. AND BABAR XXXXXXXX
XXXX OF SALE
KNOW BY THESE PRESENTS: That, for valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Xxxxx X. Xxxxxxxx ("SELLER"),
hereby sells, conveys, transfers, assigns and delivers to Palomar Medical
Technologies, Inc., a Delaware corporation ("BUYER"), to have and hold forever
for its own use and benefit, all of SELLER's right, title and interest in and to
the "Purchased Assets" as defined in the Asset Purchase and Settlement Agreement
dated as of February 28, 1997 (the "Purchase Agreement") by and among BUYER,
SELLER, Technovation Computer Labs, Inc and Nexar Technologies, Inc., free and
clear of any lien, encumbrance, claim or interest whatsoever.
SELLER hereby constitutes and appoints BUYER, its successors and
assigns, the true and lawful attorneys of SELLER, with full power of
substitution, to demand and receive from time to time any and all of the
Purchased Assets, to defend or compromise any and all actions, suits or
proceedings in respect of any of the Purchased Assets, and to collect, for the
account of BUYER, all receivables and proceeds of any character included in the
Purchased Assets. SELLER hereby declares that said appointment made and powers
granted are coupled with an interest and are and shall be perpetual and
irrevocable and shall not be terminated by any act of SELLER or by the
occurrence of any other event or in any other manner or for any other reason.
This Xxxx of Sale shall be binding upon SELLER and its successors and
assigns and inure to the benefit of BUYER and its successors and assigns.
IN WITNESS WHEREOF, the Xxxx of Sale has been duly executed and sealed
on behalf of SELLER as of _____________, 1997.
-----------------------------------------
Xxxxx X. Xxxxxxxx
Witnessed By:
-----------------------------------------
EXHIBIT 6.1(A)(II)
ASSIGNMENT OF TECHNOLOGY
This Assignment is made as of the earlier of April 30, 1997 or the
closing of the initial public offering of the common stock of Nexar
Technologies, Inc., a Delaware corporation which is a majority owned subsidiary
of Palomar ("Nexar") (the "Closing Date") by and among Palomar Medical
Technologies, Inc., a Delaware corporation ("Palomar"), Nexar, Technovation
Computer Labs, Inc., a Nevada corporation ("Seller"), and Xxxxx X. Xxxxxxxx
("Xxxxxxxx").
WHEREAS, pursuant to the Asset Purchase and Settlement Agreement
effective among the parties as of February 28, 1997, Seller and Xxxxxxxx wish to
transfer and Palomar wishes to acquire the technology, proprietary information
and intellectual property described below.
NOW, THEREFORE, for one dollar ($1.00) and other valuable consideration
the receipt of which they hereby acknowledge, Seller and Xxxxxxxx hereby assign
to Palomar, its successors and assigns, all right, title and interest in the
following technology, proprietary information, and intellectual property
(collectively, the "Technology"):
(a) ISPA and XPA. All right, title and interest in any invention,
modification, or advance (whether or not patentable) created,
developed, realized, acquired, owned, conceived or made by or on behalf
of Seller or Xxxxxxxx (independently or with others), or in which
Seller or Xxxxxxxx have a legal or equitable right of ownership,
through the Closing Date, pertaining to technologies intended to
facilitate the installation, replacement, and/or upgrading of personal
computer components (including, by way of non-limiting example,
technologies sometimes referred to as "Inverted Socket Processor
Architecture," "ISPA," "ISPA 1," "ISPA 2," "ISPA 3," "Cross Processor
Architecture," and/or "XPA");
(b) Patents and Applications. All right, title and interest in all
patents and patent applications owned by, acquired by, issued to,
naming, filed by or on behalf of, Seller or Xxxxxxxx, or in which
Seller or Xxxxxxxx have a legal or equitable right of ownership,
through the Closing Date, disclosing or claiming any invention,
modification, or advance referred to in Section (a); any further
applications claiming a right of priority from such patents or patent
applications (including, without limitation, any divisional,
continuation, continuation-in-part, or convention applications); and
any patents issuing on any such applications; any reissue,
reexamination or extension of any such patents; such patents and
applications including, by way of non-limiting example, United States
Patent Application Serial No. 08/409,317, filed on 3/23/95, entitled
"System Permitting the External Replacement of the CPU and/or DRAM
XXXXx Microchip Board" (the "Patent Application") and the "additional"
patent application (not yet filed) referred to in the letter dated
December 19, 1996, from Hamirani's counsel to Xx. Xxxxxx X. Xxxxxxxxx
(the "Additional Patent Application");
(c) Copyright. All right, title and interest, if any should exist, in
any works of authorship, copyright applications or copyright
registrations created by, owned by, acquired by, issued to, naming,
filed by or on behalf of, Seller or Xxxxxxxx, or in which
ASSIGNMENT OF TECHNOLOGY
Page 2
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Seller or Xxxxxxxx have a legal or equitable right of ownership,
through the Closing Date, relating to any invention, modification,
advance, technology, patent, or application referred to in Sections (a)
- (b) (as used herein and throughout this agreement, "copyright"
includes copyright, moral rights and semiconductor mask work rights);
(d) Trademark. All right, title and interest, if any should exist, in
any trademarks, trademark applications or trademark registrations,
created by, owned by, acquired by, issued to, naming, filed by or on
behalf of, Seller or Xxxxxxxx, or in which Seller or Xxxxxxxx have a
legal or equitable right of ownership, through the Closing Date, for
use in connection with goods or services relating to any invention,
modification, advance, technology, patent, or application referred to
in Sections (a) - (b) (including, by way of non-limiting example,
actual or potential trademarks such as "Inverted Socket Processor
Architecture," "ISPA," "ISPA 1," "ISPA 2," "ISPA 3," "Cross Processor
Architecture," and/or "XPA"), as well as the goodwill of Seller's or
Hamirani's businesses (or that part of the such goodwill) connected
with the use of and symbolized by such trademarks; in the case of
trademarks and trademark applications for which there is an intent to
use, Seller and Xxxxxxxx acknowledge that assignment of such trademarks
and trademark applications is being made concurrent with the assignment
of such businesses or portions thereof to which those trademarks and
trademark applications pertain, which businesses are ongoing and
existing; the term "trademark" as used herein and throughout this
agreement refers to both trademarks and service marks;
(e) Trade Secrets. All right, title and interest, if any should exist,
in any trade secrets and know-how developed, realized, acquired, owned,
or made by or on behalf of Seller or Xxxxxxxx (independently or with
others), or in which Seller or Xxxxxxxx have a legal or equitable right
of ownership, through the Closing Date, relating to any invention,
modification, advance, technology, patent, or application referred to
in Sections (a) - (b);
(f) Documentation. All right, title and interest, if any should exist,
to any documentation (in whatever form and stored on whatever medium)
created by, owned by, acquired by, issued to, filed by or on behalf of,
Seller or Xxxxxxxx, or in which Seller or Xxxxxxxx have a legal or
equitable right of ownership, through the Closing Date, relating to any
invention, modification, advance, technology, patent, or application
referred to in Sections (a) - (b); such documentation including,
without limitation, all design and engineering drawings and
specifications (the "Documentation");
(g) Prototypes. All right, title and interest, if any should exist, to
any prototypes, mock-ups, simulations, or other implementations
(whether or not completed or functional) created, developed, realized,
acquired, owned, or made by or on behalf of Seller or Xxxxxxxx
(independently or with others), or in which Seller or Xxxxxxxx have a
legal or equitable right of ownership, through the Closing Date,
relating to any invention, modification, advance, technology, patent,
or application referred to in Sections (a) - (b); and
(h) Other Seller Assets. All right, title and interest in the
technology, proprietary information and/or intellectual property
licensed to Nexar under the License Agreement
ASSIGNMENT OF TECHNOLOGY
Page 3
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between the parties dated August 25, 1995 (the "License Agreement"),
including without limitation that constituting the "Licensed Technology
and Know-How", "Invention", "Technical Information", Documentation",
"Licensed Patent Rights", and "Improvement";
As used in Section (a) - (h), the terms patent, patent application,
trademark, trademark application, trademark registration, copyright, copyright
application, copyright registration, and the like, refer to the corresponding
domestic, international, regional and foreign intellectual property rights, if
any should exist. Thus, by way of non-limiting example, the references in
Section (b) to patents and patent application refers to domestic patents and
patent applications, international patents and patent applications, regional
patents and patent applications, and foreign patents and patent applications.
The assignment of all right, title and interest in any invention,
modification, or advance referred to in Section (a) includes by way of
non-limiting example the right to file patent applications and obtain patents,
utility models, industrial models and designs for any such invention,
modification, or advance in the name of Palomar, its successors, assigns or
nominees, throughout the world, including all rights of priority, all rights to
publish cautionary notices reserving ownership of such invention, modification,
or advance and all rights to register said invention, modification, or advance
in appropriate registries.
Seller and Xxxxxxxx hereby authorize and request any official whose
duty is to issue the patents referred to in Section (b) to issue such any and
all such patents to Palomar, its successors, assigns or nominees.
The assignment of all right, title and interest in any works or
authorship, copyright applications or copyright registrations referred to in
Section (c) includes by way of non-limiting example the right to secure such
copyright registrations therein or any resulting registrations in the name of
Palomar, its successors, assigns or nominees, as claimant and the right to
secure renewals, reissues, and extensions of any such copyright or copyright
registration in the United States of America or any foreign country.
Schedule I, attached hereto, sets forth a true and complete list of all
trademarks, trademark applications, trademark registrations, patents and patent
applications, copyright applications, copyright registrations, included in the
Technology, and specifies (i) for each such trademark application, trademark
registration, patent application, patent, copyright application, and copyright
registration, the jurisdiction in which it has been filed and/or issued, the
date of filing, the application number, and the registration number (where
applicable), and (ii) for each such trademark, the identity of the xxxx, its
dates of first use anywhere and first use in interstate commerce, the goods
and/or services with which it is used, and the jurisdictions in which it has
been used.
Seller and Xxxxxxxx each hereby covenant that they will (i) execute,
acknowledge and deliver any further assignments, conveyances and other
assurances, documents and instruments of transfer reasonably requested by
Palomar and/or Nexar from time to time and shall take any other action
consistent with the terms of this Assignment that may be reasonably requested by
ASSIGNMENT OF TECHNOLOGY
Page 4
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Palomar and/or Nexar for the purpose of selling, transferring, assigning,
granting, conveying, delivering or confirming to Palomar and/or Nexar as of the
date of the Closing (or such other date thereafter as the parties shall deem
appropriate) any or all of the Technology; (ii) provide any further facts and
documents as may be known and accessible to Seller and/or Xxxxxxxx requested by
Palomar, its successors, assignees or nominees relating to the Technology, and
testify (at Palomar's and/or Nexar's (and each of their successors', assignees'
or nominees') cost) as to the same in any interference, opposition, litigation
or proceeding related thereto, and (iii) execute, acknowledge and deliver any
further instruments or affidavits reasonably requested by Palomar, its
successors, assignees or nominees from time to time to apply for, obtain
maintain, and enforce patents, copyrights, trade secrets and other proprietary
rights in the Technology assigned hereunder or to otherwise carry out the
purposes hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed under seal as of the date and year first above
written.
TECHNOVATION COMPUTER LABS, INC.
By:_______________________________________
Xxxxx X. Xxxxxxxx, President
________________________________________
Xxxxx X. Xxxxxxxx
________________________________________________________________________________
STATE OF _______________________
SS.
COUNTY OF _____________________
Before me this ________day of _________, 19____, personally appeared
Xxxxx X. Xxxxxxxx, known to me to be the person whose name is subscribed in the
foregoing Assignment and acknowledged that he executed the same as his free act
and deed for the purposes therein contained
------------------------------
NOTARY PUBLIC
[Notary's Seal Here] My Commission Expires:
________________________________________________________________________________
