ASSET PURCHASE AGREEMENT Among SANZ, INC., SOLUNET STORAGE, INC. and SPADAC INC. Dated as of August 6, 2007
EXHIBIT
2.01
Among
SANZ,
INC.,
SOLUNET
STORAGE, INC.
and
SPADAC
INC.
_________________________
Dated
as
of August 6, 2007
_________________________
This
Asset Purchase Agreement
(this
“Agreement”)
is
entered into as of August 6, 2007, by and among SPADAC Inc.,
a
Delaware corporation (the "Purchaser"),
Sanz,
Inc.,
a
Colorado corporation (“SI”)
and
Solunet
Storage,
Inc.,
a
Delaware corporation (together with SI, the "Seller").
Certain capitalized terms used in this Agreement are defined in Exhibit A.
Recitals
A. The
Purchaser desires to acquire by way of purchase and assumption, and the Seller
wishes to transfer by way of sale and assignment, all of the Seller's right,
title and interest in and to all tangible and intangible assets (the
"Assets")
necessary for the Seller to conduct the operations of EarthWhere, a division
of
the Seller involved in the development and sale of geospatial data management
and distributions solutions (“EarthWhere”).
The
Assets include, without limitation, all contracts listed in Exhibit
B-1
(the
"Assignable
Contracts");
all
contracts that require consent to assign listed in Exhibit
B-2 (the
“Contracts
Requiring Consent,”
and
collectively with the Assignable Contracts, the “Contracts”);
the
personal property listed in Exhibit B-3;
all
copies and versions of the Products and Software; all of the Intellectual
Property Rights; all papers and records (in paper or electronic format) in
the
care, custody or control of the Seller or any of its representatives relating
to
the operations of EarthWhere, including, without limitation, all purchasing
and
sales records, customer and vendor lists, accounting and financial records,
Product documentation, Product specifications, source code, marketing
requirement documents and software release orders; and any other assets,
tangible or intangible, or rights of the Seller related to the operations of
EarthWhere and the Products.
B. In
consideration for the sale and assignment of the Assets, the Purchaser is
willing to pay the consideration provided for herein and to assume only the
liabilities and obligations under the Contracts, as provided for in this
Agreement.
Now,
Therefore,
in
consideration of the purchase price and the mutual promises and covenants
contained in this Agreement, and intending to be legally bound, the parties
agree as follows:
AGREEMENT
1.
Purchase
and Sale of Assets.
Subject to the terms and conditions of this Agreement, on the Closing Date
(or
thereafter with respect to the Contracts Requiring Consent as provided for
in
§
8),
the
Seller will sell, assign, transfer, convey and deliver to the Purchaser, and
the
Purchaser will purchase from the Seller, all of Seller's right, title and
interest in and to the Assets.
2. Assumption
of Obligations.
The Purchaser shall not assume nor will the Purchaser have any obligations
or
liabilities of the Seller, except that
the
Purchaser will assume the obligations of the Seller under the Contracts but
only
to the extent such obligations (A) arise after the Closing Date (including
performance obligations related to Contracts entered into prior to the Closing),
(B) do not arise from or relate to any Breach by the Seller of any provision
of
any of such Contracts, (C) do not arise from or relate to any event,
circumstance or condition occurring or existing on or prior to the Closing
Date
that, with notice or lapse of time, would constitute or result in a Breach
of
any of such Contracts, and (D) are ascertainable (in nature and amount) solely
by reference to the express terms of such Contracts. The Purchaser shall not
assume any obligations of any contracts or agreements except those Contracts
set
forth on Exhibit
B-1 and those
Contracts set forth
on
Exhibit B-2 upon
receiving a Consent or Sublicense thereto.
3.
Consideration.
In consideration for the Assets and for the other promises and covenants
contained herein and in the other agreements to be delivered by the Seller
hereunder, the Purchaser will deliver to the Seller, six hundred thousand
dollars ($600,000) (the “Purchase
Price”)
as
follows: (a) cash in the amount of three hundred thousand dollars ($300,000),
payable by wire transfer or delivery of other immediately available funds at
the
Closing (the “Initial
Tranche”);
and
(b) cash in the amount of three hundred thousand dollars ($300,000), payable
by
wire transfer or delivery of other immediately available funds two (2) business
days following notification to the Purchaser of the occurrence of the Subsequent
Tranche Trigger (the
“Subsequent
Tranche”).
4. Closing
Date.
The sale and purchase of the Assets and the assignment and assumption of
liabilities contemplated by this Agreement will take place at the offices of
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 0000 X Xxxxxx, XX, Xxxxx Xxxxx,
Xxxxxxxxxx, XX 00000, at 10:00 a.m. on August 6, 2007, or at such other place
and date as the Purchaser may determine (the "Closing").
The
date on which the Closing actually takes place shall be referred to as the
"Closing
Date."
5.
Closing
Date Deliveries.
(a)
Mutual
Closing Date Deliveries.
At the Closing, each of the parties will execute and deliver to the other the
following:
(i)
an
Instrument of Assignment and Assumption, in the form attached as Exhibit
C;
(ii) a
Xxxx of
Sale, in the form attached as Exhibit
D
(executed and delivered by the Seller only);
(iii) documents
in forms reasonably satisfactory to Purchaser, sufficient to enable transfer
of
all Intellectual Property Rights and proper recordation thereof (“IP
Assignments”);
and
(iv) such
other documents necessary to effect the transactions contemplated by this
Agreement as either the Buyer’s or the Seller’s counsel may reasonably
request.
(b)
Seller's
Closing Date Deliveries.
At the Closing, the Seller will deliver to the Purchaser the
Assets.
2
(c)
Purchaser's
Closing Date Deliveries.
At the Closing, the Purchaser will deliver to the Seller the Initial Tranche.
6.
Representations
and Warranties of the Seller.
The Seller makes the following representations and warranties to the Purchaser
as of the date hereof, except as set forth in the disclosure schedule
accompanying this Agreement (the “Disclosure
Schedule”).
The
Disclosure Schedule will be arranged in paragraphs corresponding to the lettered
and numbered paragraphs contained in this § 6:
(a)
Title
to Assets.
Except as set forth on § 6(a) of the Disclosure Schedule, the Seller has good
and marketable title to the Assets, free and clear of any encumbrance or
restriction on transfer, except to the extent third-party Consents are required
for the assignment of any of the Contracts, and the Assets constitute all of
the
tangible and intangible assets used in or necessary for the lawful operation
of
EarthWhere as conducted as conducted on and immediately prior to the Closing
Date.
(b)
Contracts.
Except as set forth on § 6(b) of the Disclosure Schedule, to the Knowledge of
the Responsible Officers, each Contract is valid and in full force and effect,
and is enforceable by the Seller in accordance with its terms. To the Knowledge
of the Responsible Officers, no Person has materially violated or materially
breached, or declared or committed any material default under, any Contract;
and
no event has occurred, and, except insofar as the Contracts require Consent
for
any assignment, to the Knowledge of the Responsible Officers no circumstance
or
condition exists, that might (with or without notice or lapse of time) (i)
result in a material violation or material breach of any of the provisions
of
any Contract, (ii) give any Person the right to declare a default or exercise
any remedy under any Contract, (iii) give any Person the right to accelerate
the
maturity or performance of any Contract, or (iv) give any Person the right
to
cancel, terminate or modify any Contract. The Seller represents and warrants
to
the Purchaser that the Purchaser shall have no obligation or responsibility
to
the Seller or any third party with regard to the costs of performance under
the
Contracts for the period prior to the Closing Date.
(c)
Compliance
with Legal Requirements.
Except as set forth on § 6(c) of the Disclosure Schedule, the Seller is in full
compliance in all material respects with each Legal Requirement that is
applicable to the discharge of the Seller's obligations under the Contracts
except where failure would have no material adverse effect, and the Seller
has
not received, at any time, any notice or other communication (in writing or
otherwise) from any Governmental Body or any other Person regarding (A) any
actual, alleged, possible or potential violation of, or failure to comply with,
any such Legal Requirement, or (B) any actual, alleged, possible or potential
obligation on the part of the Seller to undertake, or to bear all or any portion
of the cost of, any cleanup or any remedial, corrective or response action
of
any nature, in each case, in connection with EarthWhere.
(d)
Proceedings;
Orders.
There is no pending Proceeding, and no Person has threatened in writing to
commence any Proceeding: (i) that relates to or might affect the Assets or
the
discharge of the Seller's obligations under the Contracts; or (ii) that
challenges, or that may have the effect of preventing, delaying, making illegal
or otherwise interfering with, this Agreement. To the best of Seller's
knowledge, no event has occurred, and no claim, dispute or other condition
or
circumstance exists, that might directly or indirectly give rise to or serve
as
a basis for the commencement of any such Proceeding. The Seller is not subject
to any Order that relates to the Assets or the discharge of the Seller's
obligations under the Contracts.
3
(e)
Authority;
Binding Nature of Agreements.
The Seller has the absolute and unrestricted right, power and capacity to enter
into and to perform its obligations under this Agreement. This Agreement
constitutes a legal, valid and binding obligation of the Seller and is
enforceable against the Seller in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization and moratorium laws and other
laws of general application affecting enforcement of creditors' rights
generally, and to general equitable principles. The Seller and its affiliates
have not entered into any contract, agreement or understanding that restricts
the selling, licensing or other distribution of the Products, the providing
of
services related to the Products, or otherwise conducting the operations of
EarthWhere. Neither this Agreement nor the transactions contemplated by this
Agreement, including the assignment to the Purchaser, by operation of law or
otherwise, of any Contracts, will result, under the terms of any Contract,
in
(i) the Purchaser granting to any third party any right to or with respect
to
any technology or intellectual property rights owned by, or licensed to, the
Purchaser, (ii) the Purchaser being bound by, or subject to, any non-compete
or
other restriction on the operation or scope of its EarthWhere operations, or
(iii) the Purchaser being obligated to pay any royalties or other amounts to
any
third party in excess of those payable by the Seller upon Closing.
(f)
Noncontravention;
Consents.
Except insofar as the Contracts Requiring Consent require the Consent of the
contracting parties for any assignment and except as set forth on § 6(f) of the
Disclosure Schedule, neither the execution and delivery of this Agreement,
nor
the consummation of the transactions contemplated hereby (including the
assignments and assumptions referred to above), will (i) violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency,
or
court to which the Seller is subject, (ii) violate any provision of its charter
or bylaws, or (iii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
the Seller is a party or by which it is bound or to which any of its assets
are
subject. The Seller was not, and will not be required to make any filing with
or
give any notice to, or to obtain any Consent from, any Person in connection
with
the execution and delivery of this Agreement or the consummation or performance
of the transactions contemplated by this Agreement, except where failure would
have no material adverse effect.
(g)
Intellectual
Property Matters.
(i)
§
6(g)(i)
of the Disclosure Schedule lists
all
Assets that are Registered IP. All such Registered IP is currently in compliance
with formal legal requirements (including payment of filing, examination and
maintenance fees and proofs of use), and is not subject to any unpaid
maintenance fees or taxes or actions falling due within one hundred and eighty
(180) days after the date hereof. The Seller has not made any misrepresentations
to a government authority in the prosecution and maintenance of any Assets
that
are Registered IP, or otherwise impaired the enforceability of such Registered
IP through action or inaction.
4
(ii)
§
6(g)(ii) of the Disclosure Schedule sets
forth a complete and correct list of all licenses, agreements and other
contracts to which the Seller or any affiliate of the Seller is a party (i)
related to the licensing to, or acquisition of, any third party intellectual
property rights or technology related to or used in the EarthWhere operations
or
incorporated into any Products (other than “shrink-wrap” or similar object
code-only licenses for commercially available software the license fee for
which
is less than $1000.00), or (ii) related to the sale or licensing of any
Intellectual Property Rights, including any covenants not to xxx thereunder,
other than non-exclusive object code-only licenses granted by the Seller in
the
ordinary course and provided that forms of such licenses have been provided
to
the Purchaser.
(iii)
Except
as
set forth on § 6(g)(iii) of the Disclosure Schedule, the Products and Software
do not include or incorporate any open source, public source or freeware, or
any
modification or derivative thereof, including any version of any software
licensed pursuant to any GNU general public license or limited general public
license.
(iv)
The
Seller has taken all reasonable steps necessary to protect the proprietary
status of all trade secrets and other confidential information relating to
EarthWhere. To the Knowledge of the Responsible Officers, no third party
possesses any copy of any material source code to the Software included in
the
Assets. As of the Closing, the Seller will have delivered to the Purchaser,
and
neither the Seller nor any of its affiliates will have retained any copy of
any
source code to any of the Software.
(v)
The
conduct of the operations of EarthWhere has not and does not, and when conducted
by the Purchaser after the Closing in substantially the same manner will not,
infringe upon or misappropriate the intellectual property rights of any
person.
(vi)
To the
Knowledge of the Responsible Officers, no person or entity is infringing or
misappropriating the Intellectual Property Rights within the
Assets.
(vii)
The
Seller has taken reasonable steps and implemented reasonable procedures (based
on standard industry practices) to ensure that the Products and the Software
are
free from defects, bugs, viruses and other disabling codes that would have
a
material adverse effect on the Product or Software, and the Seller has disclosed
to the Purchaser all information about material defects, bugs, viruses and
other
disabling codes in the Products and the Software about which the Responsible
Officers have Knowledge, and has used a system and a procedure for tracking
those bugs, the results of which have been shared with the Purchaser and are
included in the Assets.
5
(h)
Environmental Matters.
To the Knowledge of the Responsible Officers, all property that is owned by,
leased to, controlled by or used by EarthWhere, and all surface water,
groundwater, soil and air associated with or adjacent to such property: (i)
is
free of any hazardous material and any harmful chemical or physical conditions;
and (ii) is free of any environmental contamination of any nature.
(i)
ITAR.
The C2PC Plug-in and Falcon View Plug-in (the “Restricted
Articles”)
are
defense articles under Category 121.8, End
Items -Software,
of the
U.S. munitions list and
the
Seller has not (i) exported the Restricted Articles, or (ii) provided access
to
the Restricted Articles by foreign nationals without a license under the
International Traffic in Arms Regulations (“ITAR”).
(j)
Disclaimer.
With respect to the Products
and those items listed on Exhibit B-3, the Seller makes no representations
or
warranties except as otherwise set forth herein and specifically disclaims
any
and all implied warranties or conditions of merchantability or fitness for
a
particular purpose.
7.
Representations
and Warranties of the Purchaser. The
Purchaser makes the following representations and warranties to the Seller
as of
the date hereof:
(a)
Authority;
Binding Nature of Agreements.
The Purchaser has the absolute and unrestricted right, power and authority
to
enter into and perform its obligations under this Agreement; the execution,
delivery and performance of this Agreement by the Purchaser has been duly
authorized by all necessary action on the part of the Purchaser and its Board
of
Directors; and this Agreement constitutes the legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization
and
moratorium laws and other laws of general application affecting enforcement
of
creditor's rights generally and to general equitable principals.
(b)
Organization
and Standing of Purchaser.
The Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
(c)
Noncontravention;
Consents.
Neither the execution and delivery of this Agreement, nor the consummation
of
the transactions contemplated hereby (including the assignments and assumptions
referred to above), will (i) violate any constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, governmental agency, or court to which the Purchaser is
subject, (ii) violate any provision of its charter or bylaws, or (iii) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which the Purchaser is a party or by which
it is bound or to which any of its assets are subject. The Purchaser was not,
and will not be required to make any filing with or give any notice to, or
to
obtain any Consent from, any Person in connection with the execution and
delivery of this Agreement or the consummation or performance of the
transactions contemplated by this Agreement, except where failure would have
no
material adverse effect.
6
(d)
Proceedings;
Orders.
There is no pending Proceeding, and no Person has threatened in writing to
commence any Proceeding that materially challenges, or that may have the effect
of materially preventing, delaying, making illegal or otherwise interfering
with, this Agreement. To the best of Purchaser’s knowledge, no event has
occurred, and no claim, dispute or other condition or circumstance exists,
that
might directly or indirectly give rise to or serve as a basis for the
commencement of any such Proceeding.
(e)
Litigation.
There
are no pending or, to the Knowledge of the Purchaser, threatened or anticipated
actions, suits, proceedings, hearings or investigations of, in or before any
court or quasi-judicial or administrative agency of any federal, state, local
or
foreign jurisdiction seeking to delay, limit or enjoin the transactions
contemplated by this Agreement.
(f)
ITAR.
The
Purchaser is a “US Person” as defined under ITAR and is registered with the
Department of State in compliance with ITAR.
(g)
Security Clearances.
The
Purchaser has a Top Secret-Rated Facility Security Clearance accreditation
and
is in good standing with the Defense Security Service.
8.
Post-Closing
Date Covenants Of The Parties.
(a)
Third
Party Consents.
The parties acknowledge that the Contracts Requiring Consent require the Consent
of third parties, including without limitation, governmental agencies, for
the
effective assignment of those Contracts from the Seller to the Purchaser as
contemplated by this Agreement. The parties agree that they will each use
commercially reasonable efforts for a period of sixty (60) days following the
Closing to obtain such Consents; to the extent the Seller is unable to obtain
a
Consent to a Contract Requiring Consent prior to the end of the sixty (60)-day
period, the Seller agrees to sublicense all rights under such Contract to the
Purchaser upon the same terms received by the Seller (the “Sublicense”)
or to
provide the Purchaser with written notification setting forth in reasonable
detail an explanation as to the Seller’s good faith efforts to obtain such
Consents and the Legal Requirements or other reasons restricting such Consent
or
Sublicense (the “Written
Notice”).
The
“Subsequent
Tranche Trigger”
shall
occur at such time as the Purchaser has received from the Seller with respect
to
each Contract, (i) a Consent, (ii) a Sublicense or (iii) a Written Notice.
Prior
to
the time each required Consent is obtained, the parties agree that the Purchaser
will discharge and perform all duties and obligations of the Seller under each
Contract, the Purchaser shall be sublicensed such Contract and shall be entitled
to receive, directly from the contracting party or from the Seller, all payments
and other benefits under such Contract. During such sixty (60)-day period,
the
Seller agrees to use commercially reasonable efforts to continue to employ
and
make available to the Purchaser the services of Xxxxxxx Xxxxxxx, Xxxx Xxxxxx,
Xxxxx Xxxxxx and Xxxxx Xxxxxxx (the “Seller
Employees”).
Notwithstanding the above, to the extent the Seller Employees render services
under such Contracts, Seller shall receive the revenue on such Contracts and
such Seller Employees shall have such access to the Assets as is reasonably
necessary to perform under such Contracts.
7
(b)
Pre-Closing
Date Contract Revenue.
The parties acknowledge that the Purchaser shall be entitled to present invoices
under the Contracts for work performed under those Contracts prior to the
Closing Date. The Purchaser will refund to the Seller all payments for work
done
prior to the Closing Date, and the Purchaser will be entitled to receive the
full benefit of any amounts paid for work done after the Closing
Date.
Notwithstanding
the foregoing, with respect to any amounts received by the Seller relating
to
invoices listed on Exhibit
C-1,
the
Seller shall be entitled to all amounts thereunder. With respect to any amounts
received by the Seller relating to invoices listed on Exhibit
C-2,
the
Seller will be entitled to those amounts related to license fees and the
Purchaser will be entitled to those
amounts
relating to maintenance and support fees and professional services fees. The
Purchaser will be entitled to receive the full benefit of any other amounts
paid
under the Contracts, except for those commission amounts set forth on
Exhibit
C-3.
Exhibit
C-1
sets
forth all invoices outstanding prior to August 2, 2007. Exhibit
C-2
sets
forth all invoices outstanding on or after August 2, 2007, but prior to
Closing.
(c)
Employees.
The parties understand and agree that the Purchaser may offer employment
(terminable at will) to certain individuals engaged in services to EarthWhere
on
the date of this Agreement, at terms and conditions determined by the Purchaser
in its sole discretion. The Seller agrees that the Purchaser may solicit the
employment of and hire any such employees.
(d)
Transition. The
Seller will not take any action that is designed or intended to have the effect
of discouraging any lessor, licensor, customer, supplier, or other business
associate of EarthWhere from maintaining the same business relationships with
the Purchaser after the Closing as it maintained with the Seller prior to the
Closing.
(e)
Office
Space
and Access to Individuals. For
a period of thirty (30) days following the Closing Date, the Seller will permit
the Purchaser to occupy the office space related to the EarthWhere operations
and will provide the Purchaser with reasonable access to individuals with
knowledge of the EarthWhere operations.
(f)
ITAR. The Purchaser
agrees, to the extent the Restricted Articles are defense articles under
Category 121.8, End
Items -Software,
of the
U.S. munitions list, not to (i) export such Restricted Articles, or (ii) provide
access to such Restricted Articles by foreign nationals without a license under
ITAR.
(g)
Security
Clearances.
Upon
the transfer of the Contracts Requiring Consent to the Purchaser pursuant to
§
8(a) above, the Purchaser agrees that it shall have obtained all necessary
security clearances, including without limitation personnel and facility
clearances, and permits (collectively, the “Security
Clearances”)
to
accept assignment of the Contracts Requiring Consent.
(h)
Non-Competition;
Non-Solicitation.
Beginning on the Closing Date and ending on the first anniversary of the Closing
Date (the “Non-Compete
Period”),
the
Seller shall not directly or indirectly, without the prior written consent
of
the Purchaser, engage in a Competitive Business Activity (as defined below)
anywhere in the Restricted Territory (as defined below).
8
(i)
For
all
purposes of and under this Agreement, the term “Competitive
Business Activity”
shall
mean: (i) engaging in, managing or directing persons engaged in any
business competitive with or directly related to the EarthWhere operations;
(ii) acquiring or having an ownership interest in any entity that derives
revenues from any business in competition with the EarthWhere operations (except
for ownership of one percent (1%) or less of any entity whose securities have
been registered under the Securities Act of 1933, as amended, or Section 12
of the Exchange Act of 1934, as amended); or (iii) participating in the
operation, management or control of any firm, partnership, limited liability
company, corporation, entity or business that derives revenues from any business
in competition with the EarthWhere operations. Notwithstanding the foregoing,
a
Competitive Business Activity shall not include the acquisition by the Seller
of
a business that has operations that are competitive with or relates to the
EarthWhere operations, if the top line revenue relating to such operations
accounts for less than twenty-five percent (25%) of the acquired business (the
“Incidental
Acquisition Exception”).
For
all purposes of and under this Agreement, the term “Restricted
Territory”
shall
mean each and every country, province, state, city or other political
subdivision of the world, including those in which the Seller is currently
engaged in business or otherwise distributes, licenses or sells any
Products.
(ii)
In
addition, during the Non-Compete Period, the Seller shall not directly or
indirectly, either for itself or another Person (A) solicit for employment
or engagement, or encourage to leave their employment or engagement, or employ
or engage any individual who is an employee or otherwise provides services
to
the Purchaser, or (B) induce or attempt to induce any customer, supplier,
licensee, or business relation of the EarthWhere operations (as operated by
the
Purchaser) to cease doing, or reducing the amount of, business with the
Purchaser, or in any way interfere with the relationship between any customer,
supplier, licensee, or business relationship of the Purchaser except
as
it relates to the Incidental Acquisition Exception set forth above.
Notwithstanding the foregoing, the parties agree that nothing in this Agreement
shall prohibit the Seller from the general advertisement of positions of
employment in media of general circulation and access that do not specifically
target individuals otherwise covered by the restrictive covenants in this §
8(h).
(iii)
The
parties hereto agree that the duration and area for which the restrictive
covenants set forth in this § 8(h) are to be effective is reasonable. In the
event that any court determines that the time period or the area or both of
them
are unreasonable and such covenant is to that extent unenforceable, the parties
hereto agree that the covenant shall remain in full force and effect for the
greatest time period and in the greatest area that would not render it
unenforceable. The parties hereto agree that damages are an inadequate remedy
for any breach of this covenant and that Purchaser shall, whether or not it
is
pursuing any potential remedies at law, be entitled to equitable relief in
the
form of preliminary and permanent injunctions without bond or other security
upon any actual or threatened breach of this covenant. In the event of a breach
by the Seller of any covenant set forth in this § 8(h), the term of such
covenant will not run in favor of the Seller from the time of the commencement
of any breach until such time as the breach shall be cured by the Seller to
the
satisfaction of the Purchaser. No waiver of any breach of the foregoing covenant
shall be implied from the forbearance or failure of the Purchaser to take action
thereon.
9
9.
Indemnification
(a)
Survival
of Representations and Covenants.
The representations, warranties, covenants and obligations of each party shall
survive the Closing Date and shall remain in full force and effect for ninety
(90) days following the Closing Date. For purposes of this Agreement, each
statement or other item of information set forth in any Disclosure Schedule
or
in any update thereto shall be deemed to be a representation and warranty made
by the Seller in this Agreement.
(b)
Indemnification.
The Seller hereby agrees to hold harmless, indemnify, compensate and reimburse
the Purchaser and its officers, directors and affiliates (each, an "Indemnified Party")
for
any Damages that are directly or indirectly suffered or incurred by the
Indemnified Party or to which any Indemnified Party may otherwise become subject
during the ninety (90) day period immediately following the Closing Date
(regardless of whether or not such Damages relate to any third-party claim)
and
that arise directly or indirectly from or as a direct or indirect result of,
or
are directly or indirectly connected with, any of the following matters, but
excluding in all events lost profits, lost opportunities, consequential,
punitive or other special damages:
(i)
any
Breach of any representation or warranty made by the Seller in this Agreement,
or any representation, warranty, statement, information or provision in any
other document delivered by one party to the other pursuant to this Agreement,
or any covenant or obligation of the Seller under this Agreement;
(ii)
any
Liability to which it or any of its successors or assigns may become subject
and
that arises directly or indirectly from or relates directly or indirectly to
any
service performed by or on behalf of the Seller on or at any time prior to
the
Closing Date; or
(iii)
any
Proceeding relating directly or indirectly to any Breach, alleged Breach,
Liability or matter of the type referred to in the foregoing clauses (including
any Proceeding commenced by any Indemnified Party for the purpose of enforcing
any of its rights under this § 9).
(c)
Threshold.
The liability of Seller under this § 9 shall not exceed two hundred thousand
dollars ($200,000); provided,
however,
that
the limitation on the indemnification obligations of the Seller that is set
forth in this § 9(c) shall not apply to any Breach arising directly or
indirectly from any circumstance of which the Seller had Knowledge on or prior
to the Closing Date, or in the case of willful misconduct or fraud. The Seller
shall have no obligation to indemnify the Indemnified Party(s) under this § 9
until such time as the Indemnified Party(s) have suffered Damages in excess
of
ten thousand dollars ($10,000) individually or in the aggregate, at which time
all Damages shall be subject to indemnification hereunder.
10
(d)
Setoff.
In addition to any rights of setoff or other rights that any Indemnified Party
may have at common law or otherwise, any Indemnified Party shall setoff any
claim for indemnification under this § 9 only against the Subsequent
Tranche;
provided,
however,
that
subject to § 9(c), in no event shall any setoff, in combination with
indemnification exceed the amounts in § 9(c).
(e)
Exclusivity of Remedies.
Notwithstanding any other provision in this Agreement, the indemnification
remedies and other remedies provided in this § 9 shall be the exclusive remedy
of the Indemnified Party(s) against the Seller with respect to this Agreement,
the Assets and the transactions contemplated by this Agreement, except in the
case of a Breach arising directly or indirectly from any circumstance of which
the Seller had Knowledge on or prior to the Closing Date, or in the case of
willful misconduct or fraud.
(f)
Defense
of Third Party Claims.
In the event of the assertion or commencement by any Person of any claim or
Proceeding with respect to which Seller may become obligated to indemnify,
hold
harmless, compensate or reimburse any Indemnified Party pursuant to this § 9,
the Indemnified Party shall have the right, at its election and at its risk,
to
assume the defense of any such claim or Proceeding on its own as set forth
below. If the Indemnified Party so proceeds with the defense of any such claim
or Proceeding on its own:
(i)
all
reasonable expenses relating to the defense of such claim or Proceeding shall
be
borne and paid exclusively by the Seller;
(ii)
the
Seller shall make available to the Indemnified Party any documents and materials
in the former's possession or control that may be necessary to the defense
of
such claim or Proceeding;
(iii)
the
Indemnified Party shall keep the Seller informed of all material developments
and events relating to such claim or Proceeding; and
(iv)
the
Indemnified Party shall have the right to settle, adjust or compromise such
claim or Proceeding with the consent of the Seller; provided,
however,
that
the Seller shall not unreasonably withhold such consent.
(g)
Exercise
of Remedies by Third Parties.
No Indemnified Party (other than a party to this Agreement or any successor
thereto or assign thereof) shall be permitted to assert any indemnification
claim or exercise any other remedy under this Agreement unless such party (or
any successor thereto or assign thereof) shall have consented to the assertion
of such indemnification claim or the exercise of such other remedy.
10. Miscellaneous
Provisions
(a)
Further Assurances.
Each party hereto shall execute and/or cause to be delivered to each other
party
hereto such instruments and other documents, and shall take such other actions,
as such other party may reasonably request (at or after the Closing Date) for
the purpose of carrying out or evidencing this Agreement.
11
(b)
Fees and Expenses.
Each party shall bear its own expenses in connection with the negotiation and
execution of this Agreement and the other agreements and documents contemplated
hereunder.
(c)
Attorneys Fees.
If any legal action or other legal proceeding relating to this Agreement or
the
enforcement of any provision of this Agreement is brought against any party
hereto, the prevailing party shall be entitled to recover reasonable attorneys'
fees, costs and disbursements (in addition to any other relief to which the
prevailing party may be entitled).
(d)
Notices.
Any notice or other communication required or permitted to be delivered to
any
party under this Agreement shall be in writing and shall be deemed properly
delivered, given and received when delivered (by hand, by registered mail,
by
courier or express delivery service or by facsimile) to the address or facsimile
number set forth beneath the name of such party below (or to such other address
or facsimile number as such party shall have specified in a written notice
given
to the other parties hereto):
if
to the
Seller:
Sanz,
Inc.
0000
Xxxxxxx Xxxxx,
Xxxxx 000
Xxxxxxxxx,
XX
00000-0000
Attention:
Chief
Executive Officer
Facsimile:
(000)
000-0000
with
a
copy to:
Xxxxxxx
Xxx &
Xxxxxx, LLC
0000
Xxxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxx,
XX
00000
Attention:
Xxxxxx X.
Xxxxxxx, Esq.
Xxxxxx
X. XxXxxxxxx,
Esq.
Facsimile:
(000)
000-0000
if
to the
Purchaser:
SPADAC
Inc.
0000
Xxxxx Xxxxxx
Xxxxx, Xxxxx 000
XxXxxx,
XX 00000
Attention:
Xxxx
Xxxxx, Chief Executive Officer
Facsimile:
(000)
000-0000
12
with
a
copy to:
Xxxxxx
Xxxxxxx
Xxxxxxxx & Xxxxxx
0000
X Xxxxxx, XX,
Xxxxx Xxxxx
Xxxxxxxxxx,
XX
00000
Attention:
Xxxx X.
Xxxxxxxxxx, Esq.
Facsimile:
(000)
000-0000
(e)
Publicity.
On and at all times after the Closing Date, no press release or other publicity
concerning this Agreement shall be issued or otherwise disseminated by or on
behalf of either party without the prior written consent of the other party;
provided,
however,
that
either party may make any public disclosure it believes in good faith is
required by applicable law or any listing or trading agreement concerning its
publicly traded securities (in which case the disclosing party will use its
reasonable best efforts to advise the other party prior to making such
disclosure) and the Purchaser and the Seller otherwise agree to keep the
existence and terms of this Agreement strictly confidential.
(f)
Governing
Law; Venue.
This Agreement shall be construed in accordance with, and governed in all
respects by, the internal laws of the State of Delaware (without giving effect
to principles of conflicts of laws). Any dispute between the parties connected
with this Agreement shall be submitted to the sole jurisdiction of the courts
of
the State of Delaware, or, if it has or can acquire jurisdiction, in the United
States District Court for the District of Delaware. Each of the parties consent
to the jurisdiction of such courts (and of the appropriate appellate courts)
in
any such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may
be
served on any party anywhere in the world.
(g)
Successors
and Assigns.
This Agreement shall be binding upon and inure to the benefit of the parties
named herein and their respective successors and permitted assigns, and on
all
Indemnitees. No party may assign any or all of its rights under this Agreement
to any other Person without the prior written consent of the other party
hereto.
(h)
Amendments.
This Agreement may not be amended, modified, altered or supplemented other
than
by means of a written instrument duly executed and delivered on behalf of the
parties hereto.
(i)
Severability.
In the event that any provision of this Agreement, or the application of any
such provision to any Person or set of circumstances, shall be determined to
be
invalid, unlawful, void or unenforceable to any extent, the remainder of this
Agreement, and the application of such provision to Persons or circumstances
other than those as to which it is determined to be invalid, unlawful, void
or
unenforceable, shall not be impaired or otherwise affected and shall continue
to
be valid and enforceable to the fullest extent permitted by law.
(j)
Parties
in Interest.
Except for the provisions of § 9 hereof, none of the provisions of this
Agreement is intended to provide any rights or remedies to any Person other
than
the parties hereto and their respective successors and assigns (if any).
13
(k)
Entire
Agreement.
This Agreement sets forth the entire understanding of the parties relating
to
the subject matter thereof and supersedes all prior agreements and
understandings among or between any of the parties relating to the subject
matter thereof.
(l)
Counterparts.
This Agreement may be executed in one or more counterparts, each of which will
be deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
14
The
Parties to this Asset Purchase Agreement have caused this Agreement to be
executed and delivered effective as of August 6, 2007.
SPADAC
Inc.
a Delaware corporation
|
||
|
|
|
By: | /s/ Xxxx Xxxxx | |
Xxxx Xxxxx, Chief Executive Officer |
||
Sanz,
Inc.
a Colorado corporation
|
||
|
|
|
By: | /s/ Xxxx Xxxxx | |
Xxxx Xxxxx, Chief Executive Officer |
||
Solunet
Storage, Inc.
a Delaware corporation
|
||
|
|
|
By: | /s/ Xxxxx Xxxxxxxxx | |
Xxxxx Xxxxxxxxx, Chief Financial |
||
Attachments:
Exhibit
A
- Certain Definitions
Exhibit
A
Certain
Definitions
For
purposes of this Agreement (including this Exhibit A):
Breach.
There
shall be deemed to be a "Breach" of a representation, warranty, covenant,
obligation or other provision if there is or has been any material inaccuracy
in
or material breach of, or any material failure to comply with or perform, such
representation, warranty, covenant, obligation or other provision; and the
term
"Breach" shall be deemed to refer to any such inaccuracy, breach, failure,
claim
or circumstance.
Closing.
"Closing"”
shall have the meaning set forth in § 4.
Closing
Date. "Closing
Date" shall have the meaning set forth in § 4.
Consent.
"Consent"
shall mean any approval, consent, ratification, permission, novation, clearance,
waiver or authorization (including any Governmental Authorization) by any
Person.
Damages.
"Damages" shall include any loss, damage, injury, Liability, claim, demand,
settlement, judgment, award, fine, penalty, tax, fee (including any reasonable
legal fee, expert fee, accounting fee or advisory fee), charge, cost (including
any cost of investigation) or expense of any nature.
Governmental Authorization.
"Governmental Authorization" shall mean any:
(a) permit,
license, certificate, franchise, concession, approval, consent, novation,
ratification, permission, clearance, confirmation, endorsement, waiver,
certification, designation, rating, registration, qualification or authorization
that is, has been or, to the Knowledge of the Responsible Officers, may in
the
future be issued, granted, given or otherwise made available by or under the
authority of any Governmental Body or pursuant to any Legal Requirement;
or
(b)
right
under any Contract with any Governmental Body.
Governmental Body.
"Governmental Body" shall mean any nation, principality, state, commonwealth,
province, territory, county, municipality, district or other jurisdiction of
any
nature, federal, state, local, municipal, foreign or other
government.
Intellectual
Property Rights.
“Intellectual Property Rights” shall mean all patent, copyright, trademark,
trade-secret and other intellectual-property rights of the Seller that (x)
are
used in, primarily related to or reasonably necessary for the operations of
EarthWhere, the material items of which are listed or described in Exhibit
B-3,
(y) are
embodied by the Products or Software, or (z) are otherwise listed on
Exhibit
B-1,
Exhibit B-2 or
Exhibit B-3,
including:
16
(a) the
right
to register, prosecute, maintain or record any of such Intellectual Property
Rights with any government entity; and
(b) the
right
to all past and future income, royalties, damages and payments due with respect
to such Intellectual Property Rights, including without limitation rights to
damages and payments for past, present or future infringements or
misappropriations thereof, as well as all goodwill associated with such
Intellectual Property Rights.
Knowledge.
“Knowledge”
shall mean the knowledge of the Responsible Officers after reasonable
inquiry of those employees of the Company whom such persons reasonably believe
would have actual knowledge of the matters represented or the knowledge after
such due diligence as a similarly situated person would have made or exercised
in the management of the affairs of the Company.
Legal
Requirement.
"Legal
Requirement" shall mean any federal, state, local, municipal, foreign or other
law, statute, legislation, constitution, principle of common law, resolution,
ordinance, code, edict, decree, proclamation, treaty, convention, rule,
regulation, ruling, directive, pronouncement, requirement, specification,
determination, decision, opinion or interpretation issued, enacted, adopted,
passed, approved, promulgated, made, implemented or otherwise put into effect
by
or under the authority of any Governmental Body.
Liability.
"Liability" shall mean any debt, obligation, duty or liability of any nature
(including any unknown, undisclosed, unmatured, unaccrued, unasserted,
contingent, indirect, conditional, implied, vicarious, derivative, joint,
several or secondary liability), regardless of whether such debt, obligation,
duty or liability would be required to be disclosed on a balance sheet prepared
in accordance with GAAP and regardless of whether such debt, obligation, duty
or
liability is immediately due and payable.
Order.
"Order"
shall mean any:
(a) order,
judgment, injunction, edict, decree, ruling, pronouncement, determination,
decision, opinion, verdict, sentence, subpoena, writ or award that is, has
been
issued, made, entered, rendered or otherwise put into effect by or under the
authority of any court, administrative agency or other Governmental Body or
any
arbitrator or arbitration panel; or
(b) Contract
with any Governmental Body that is, has been entered into in connection with
any
Proceeding.
Person.
"Person" shall mean any individual, entity or Governmental Body.
Proceeding.
"Proceeding" shall mean any action, suit, litigation, arbitration, proceeding
(including any civil, criminal, administrative, investigative or appellate
proceeding and any informal proceeding), prosecution, contest, hearing, inquiry,
inquest, audit, examination or investigation that is, has been commenced,
brought, conducted or heard by or before, or that otherwise has involved or
may
involve, any Governmental Body or any arbitrator or arbitration
panel.
17
Products.
“Products” shall mean Seller’s entire line of EarthWhere products, including all
derivative works and custom code and all versions of such products and products
under development, and including the products listed on Exhibit
B-3.
Registered
IP.
“Registered IP” shall mean all United States, international and foreign
intellectual property rights that are the subject of an application,
certificate, filing, registration or other document issued, filed with, or
recorded by any state, government or other public legal authority.
Responsible
Officers. “Responsible
Officers” shall mean Xxxx Xxxxx, Xxxxx Xxxxxxxxx, Xxxxxx Xxxxxx and Xx
Xxxx.
Software.
“Software” shall mean all software, in both object- and source-code form, that
is included in or part of any version of the Products, and including the
software listed on Exhibit
B-3,
all
versions of the foregoing software, and any software from which any of the
foregoing software was derived.
Sublicense.
“Sublicense” shall have the meaning set forth in §8(a).
Written
Notice.
Written
Notice shall have the meaning set forth in §8(a).
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
18
SELLER
DISCLOSURE
SCHEDULE
Introduction
The
following are exceptions to the representations and warranties of Sanz, Inc.,
a
corporation organized under the laws of Colorado (“SI”), and Solunet Storage,
Inc., a corporation organized under the laws of Delaware (“SSI” and collectively
with SI, “Seller”), contained in the Asset Purchase Agreement (the “Agreement”)
dated August 6, 2007, by and among SPADAC Inc., a corporation organized under
the laws of Delaware (“Buyer”), and Seller, and constitutes the “Disclosure
Schedule” as defined in the Agreement. The section numbers in this Disclosure
Schedule correspond to the section numbers in the Agreement. Any terms defined
in the Agreement shall have the same meaning when used in this Disclosure
Schedule as when used in the Agreement, unless the context otherwise requires.
Notwithstanding any materiality qualifications in any of Seller’s
representations or warranties in the Agreement, for administrative ease, certain
items have been included herein which are not considered by the parties to
be
material to the business, assets, results of operations, prospects or affairs
of
Seller. The inclusion of any item hereunder shall not be deemed to be an
admission by Seller that such item is material to the business, assets, results
of operations, prospects or affairs of Seller, nor shall it be deemed an
admission of any obligation or liability to any third party. Any item contained
in any section of the Disclosure Schedule shall be deemed to be contained in
any
other section of the Disclosure Schedule where it is apparent from the
disclosure made in the original section that such disclosure would apply to
another section of the Disclosure Schedule as though fully set forth in such
other section.
19
Section
6(a) - Title to Assets
1. Liens
on
Acquired Assets pursuant to
a.
Credit
and Security Agreement, dated May 31, 2001, by and between SI and Xxxxx
Fargo Business Credit, Inc., as amended; and
b.
Security Agreement, dated October 12, 2005, by and between San Holdings, Inc.,
parent company of SI, and Avnet, Inc., as amended.
2.
U.C.C.
Financing Statements
Debtor(s)
|
Creditor(s)
|
Financing Statement
Number/File
Number
|
Jurisdiction
|
|||
SI
|
Xxxxx
Fargo Business Credit Inc. and Xxxxx Fargo Bank, National
Association
|
20012037572 (amended
by statement numbers 20032098358, 20032098360, 20052032770, 20062004182,
20062005511 and 20062007864)
|
Colorado
|
|||
SI
|
Xxxxx
Fargo Business Credit Inc.
|
20032098359 (amended
by statement number 20052032771)
|
Colorado
|
|||
SI
|
Avnet,
Inc.
|
20052046775 (amended
by statement number 20052069188 and statement number
2005F105330)
|
Colorado
|
|||
SSI
|
Xxxxx
Fargo Business Credit, Inc.
|
50906256
|
Delaware
|
20
Section
6(b) - Contracts
See
items
1, 2, 4, and 5 set forth on Section 6(f) of the Disclosure
Schedule.
21
Section
6(c) -Compliance with Legal Requirements
See
items
1, 2 and 4 set forth on Section 6(f) of the Disclosure Schedule.
22
Section
6(f) - Non-Contravention
1. |
Seller
was required to register with the U.S. Department of State as a
manufacturer of defense articles on development of the Restricted
Articles
but neglected to register at that time. Seller filed on July 9, 2007,
a
Statement of Registration with the U.S. Department of State and intends
to
file a voluntary disclosure regarding this failure to register
timely.
|
2. |
Seller
is required to notify the U.S. Defense Security Service of the
transactions contemplated by the Agreement or any documents related
thereto.
|
3. |
Consents
from the other parties to the contracts and agreements set forth
on
Exhibit
B-2
(the Contracts Requiring Consent) are required in connection with
the
assignment thereof to Buyer.
|
4. |
Novations
from all government agencies holding prime contracts and agreements
set
forth on Exhibit
B-2
are required in connection with the assignment thereof to
Buyer.
|
5. |
Release
of the liens set forth on Section 6(a) of the Disclosure Schedule
encumbering the Assets is required.
|
23
Section
6(g)(i) - Intellectual Property
1. |
Patent
Applications.
|
a. |
U.S.
Patent Application No.: 10/990,205
|
i. |
Title/Subject:
Systems and Methods for Provisioning Geospatial
Data
|
ii. |
Date
of filing: November 16, 2004
|
iii. |
European
Patent Application No.: 05257039.7
|
b. |
U.S.
Patent Application No.: 11/359,680
|
i. |
Title/Subject:
Methods and Apparatus for Providing a Configurable Geospatial Data
Provisioning Framework
|
ii. |
Date
of filing: February 22, 2006
|
2. |
Trademark
|
a. |
Word
Xxxx: EarthWhere
|
i. |
Serial
No.: 77075481
|
ii. |
Class
of goods covered
|
1. |
IC
009. US 021 023 026 036 038. G & S: Computer software for gathering,
provisioning and rendering geospatial data; software for accessing
databases of geographic spatial data sets; software for analyzing,
processing and sampling geospatial data; software for retrieving
geospatial data from geospatial databases and transporting results
of
processed geospatial data sets. First Use: May 29, 2002. First Use
in
Commerce: May 29, 2002
|
2. |
IC
042. US 100 101. G & S: Computer services in the field of geospatial
information systems, namely geospatial analytical services, design
and
development of spatially-based decision support systems and databases,
and
consultation related thereto. First Use: May 29, 2002. First Use
in
Commerce: May 29, 2002
|
iii. |
Filing
Date: January 3, 2007
|
iv. |
Federal
Renewal Date: January 3, 2017 if the appropriate affidavit is filed
between January 3, 2012 and January 3, 2013 and the trademark is
still in
use at that time.
|
v. |
Countries
Registered: United States
|
3. |
Copyrights
- None.
|
4. |
Domain
Names
|
a. | xxx.xxxxxxxxxx.xxx |
24
Section
6(g)(ii) - Intellectual Property
5. |
Licenses,
sublicenses, agreements or permissions to which Division is a party
relating to any of the Intellectual
Property.
|
a. |
Open
Source Licenses
|
i. |
Apache
License Version 2.0.
|
ii. |
BSD
License
|
iii. |
Common
Public License v 1.0
|
iv. |
BBN
public license
|
v. |
Public
License
|
vi. |
General
Public License
|
vii. |
Lesser
General Public License
|
viii. |
SUN
License
|
ix. |
ActiveState
Community License
|
x. |
Microsoft
License under VS
|
xi. |
MIT
Style License
|
b. |
Private
Licenses
|
i. |
Inbound
|
1. |
Macrovision
Corporation dated May 14, 2004
|
2. |
Pictometry
International Corporation dated June 26,
2006
|
3. |
LizardTech,
Inc. dated May 7, 2004
|
4. |
Environmental
Research Institute, Inc. dated May 12,
2005
|
5. |
LizardTech,
Inc. dated January 27, 2005
|
6. |
Click
through license with EJ Technologies
|
ii. |
Outbound
|
1. |
United
States Army Corps of Engineers, Albuquerque, N.M. dated September
1,
2004
|
2. |
U.S.
Army Space and Missile Defense Command/U.S. Army Forces Strategic
Command
dated November 6, 2006
|
3. |
General
Dynamics, AIS dated October 29,
2005
|
4. |
U.S.
Army Office of Assistant Chief of Staff for Installation Management
dated
January 12, 2006
|
5. |
Defense
Intelligence Agency (DIA) - Underground Facility Analysis Center
dated
October 31, 2006
|
6. |
DigitalGlobe,
Inc. dated November 26, 2003
|
7. |
The
Defense Threat Reduction Agency/BDC dated March 21,
2005
|
8. |
General
Dynamics, AIS dated March 31, 2005
|
9. |
General
Dynamics, AIS dated May 5, 2006
|
10. |
ISPA
Technology, LLC dated September 22,
2004
|
11. |
Joint
Warfare Analysis Center dated August 29,
2006
|
12. |
Marine
Corps Intelligence Activity dated September 13,
2006
|
13. |
NOAA
Coastal Services Center dated March 31,
2006
|
14. |
U.S.
Northern Command dated August 29,
2006
|
15. |
Ohio
Department of Administrative Services dated December 1,
2006
|
16. |
Oregon
Bureau of Land Management dated August 31,
2006
|
17. |
MTMCTEA
dated April 22, 2005
|
18. |
SOCOM
dated August 15, 2006
|
19. |
The
Titan Corporation dated April 22,
2005
|
20. |
University
of Denver dated July 28, 2006
|
21. |
U.S.
Department of Agriculture (“USDA”) - Aerial Photography Field Office dated
August 20, 2004
|
22. |
USDA
dated November 16, 2004
|
23. |
U.S.
Geological Survey (“USGS”) - NMD dated July 14,
2006
|
24. |
Information
Manufacturing Corporation dated September 22,
2006
|
25. |
GlobeXplorer,
LLC dated July 29, 2004
|
26. |
Digital
Globe, Inc. dated July 17, 2003
|
27. |
The
Xxxxxxx Map Company, Inc. dated April 13,
2006
|
28. |
USTRANSCOM
dated June 7, 2007
|
29. |
SOCOM
dated June 29, 2007
|
30. |
Space
Missile & Defense Battle Lab dated August 3,
2007
|
25
Section
6(g)(iii) - Intellectual Property
See
Section 3(g)(ii) of the Disclosure Schedule.
26
Exhibit
B-1
Assignable
Contracts
1. |
Subcontract
Agreements
|
a. |
Parallel
Incorporated dated September 25,
2006
|
2. |
License
Agreements
|
a. |
Outbound
|
i. |
The
Xxxxxxx Map Company, Inc. dated April 13,
2006
|
ii. |
U.S.
Army Corps of Engineers, Albuquerque, N.M. dated September 1,
2004
|
iii. |
U.S.
Army Space and Missile Defense Command/U.S. Army Forces Strategic
Command
dated November 6, 2006
|
iv. |
General
Dynamics, AIS dated October 29,
2005
|
v. |
U.S.
Army Office of Assistant Chief of Staff for Installation Management
dated
January 12, 2006
|
vi. |
Defense
Intelligence Agency - Underground Facility Analysis Center dated
October
31, 2006
|
vii. |
DitigalGlobe,
Inc. dated November 26, 2003
|
viii. |
The
Defense Threat Reduction Agency dated March 21,
2005
|
ix. |
General
Dynamics, AIS dated March 31, 2005
|
x. |
General
Dynamics, AIS dated May 5, 2006
|
xi. |
ISPA
Technology, LLC dated September 22,
2004
|
xii. |
Joint
Warfare Analysis Center dated August 29,
2006
|
xiii. |
Marine
Corps Intelligence Activity dated September 13,
2006
|
xiv. |
NOAA
Coastal Services Center dated March 31,
2006
|
xv. |
U.S.
Northern Command dated August 29,
2006
|
xvi. |
Ohio
Department of Administrative Services dated December 1,
2006
|
xvii. |
Oregon
Bureau of Land Management dated August 31,
2006
|
xviii. |
MTMCTEA
dated April 22, 2005
|
xix. |
SOCOM
dated August 15, 2006
|
xx. |
The
Titan Corporation dated April 22,
2005
|
xxi. |
University
of Denver dated July 28, 2006
|
xxii. |
U.S.
Department of Agriculture (“USDA”)- Aerial Photography Field Office dated
August 20, 2004
|
xxiii. |
USDA
dated November 16, 2004
|
xxiv. |
U.S.
Geological Survey (“USGS”) - NMD dated July 14,
2006
|
xxv. |
Information
Manufacturing Corporation dated September 22,
2006
|
xxvi. |
GlobeXplorer,
LLC dated July 29, 2004
|
xxvii. |
DigitalGlobe,
Inc. dated July 17, 2003
|
xxviii. |
USTRANSCOM
dated June 7, 2007
|
xxix. |
SOCOM
dated June 29, 2007
|
xxx. |
Space
Missile & Defense Battle Lab dated August 3,
2007
|
27
3. |
Support
Services Agreements
|
a. |
The
Xxxxxxx Map Company, Inc. dated April 13,
2006
|
b. |
U.S.
Army Space and Missile Defense Command/U.S. Army Forces Strategic
Command
dated November 6, 2006
|
c. |
General
Dynamics, AIS dated October 29,
2005
|
d. |
U.S.
Army Office of Assistant Chief of Staff for Installation Management
dated
January 12, 2006
|
e. |
Defense
Intelligence Agency - Underground Facility Analysis Center dated
October
31, 2006
|
f. |
DitigalGlobe,
Inc. dated November 26, 2003
|
g. |
The
Defense Threat Reduction Agency dated March 21,
2005
|
h. |
General
Dynamics, AIS dated March 31, 2005
|
i. |
General
Dynamics, AIS dated May 5, 2006
|
j. |
ISPA
Technology, LLC dated September 22,
2004
|
k. |
Joint
Warfare Analysis Center dated August 29,
2006
|
l. |
Marine
Corps Intelligence Activity dated September 13,
2006
|
m. |
NOAA
Coastal Services Center dated March 31,
2006
|
n. |
U.S.
Northern Command dated August 29,
2006
|
o. |
Ohio
Department of Administrative Services dated December 1,
2006
|
p. |
Oregon
Bureau of Land Management dated August 31,
2006
|
q. |
MTMCTEA
dated April 22, 2005
|
r. |
SOCOM
dated August 15, 2006
|
s. |
The
Titan Corporation dated April 22,
2005
|
t. |
University
of Denver dated July 28, 2006
|
u. |
USDA
- Aerial Photography Field Office dated August 20,
2004
|
v. |
USDA
dated November 16, 0000
|
x. |
XXXX
- XXX dated July 14, 2006
|
x. |
USTRANSCOM
dated June 7, 2007
|
y. |
SOCOM
dated June 29, 2007
|
z. |
Space
Missile & Defense Battle Lab dated August 3,
2007
|
28
Exhibit
B-2
Contract
Requiring Consents
1. |
Teaming
Agreements
|
a. |
Geodecisions,
a division of Gannett Xxxxxxx, Inc. dated January 27,
2005
|
b. |
L-3
Titan ,AMSD (SPAWAR ACCETS) (Northcom) Dated
1/30/2006
|
2. |
License
Agreements
|
a. |
Inbound
|
i. |
Macrovision
Corporation dated May 14, 2004
|
ii. |
LizardTech,
Inc. dated May 7, 2004
|
iii. |
LizardTech,
Inc. dated January 27, 2005
|
3. |
Purchase
Orders
|
a. |
Advanced
Engineering & Sciences a division of ITT Industries,
Inc.
|
b. |
NOAA
Coastal Services Center
|
c. |
U.S.
Northern Command
|
d. |
SDDCTEA
|
e. |
L3
Communications Titan Corporation
|
f. |
USDA-FSA
Aerial Photography Field Office
|
g. |
Parallel
Inc.
|
h. |
USGS
|
x. |
Xxxx
Xxxxx Xxxxxxxx
|
j. |
Marine
Corps Intelligence Activity
|
k. |
USTRANSCOM
|
l. |
Space
Missile & Defense Battle Lab
|
4. |
Government
contracts requiring security clearance and consent to assignment
|
a. |
L-3
Communications Titan Corporation dated February 6, 2007
|
b. |
Advanced
Engineering & Sciences a division of ITT Industries, Inc. dated
February 8, 2005 (Geosage)
|
c. |
Titan
Corporation (JWAC) Purchase Order dated September 25,
2006
|
d. |
General
Dynamics (MCIA) Purchase Order dated October 10,
2006
|
e. |
General
Dynamics (TRANSCOM J2) Purchase Order dated June 07,
2007
|
5. |
Government
Contracts Requiring Novation
|
a. |
USDA
- FSA Aerial Photography Field Office Independent Contractor
Agreement
|
b. |
Contract
with the USGS
|
c. |
SPAWAR
(USNORTHCOM) Purchase Order dated August 25, 2006
|
29
Exhibit
B-3
DESCRIPTION
|
Acq.
Date
|
Sun
Blade 100 workstation
|
04/30/02
|
Raptor
PCI card demo
|
04/30/02
|
Monitor,
Keyboard, SDRAM
|
08/07/02
|
291GB
Sun StorEdge D1000, RAID 5 storage, Sun Fire V480
|
10/03/02
|
Sun
StorEdge 3310 SN#S023900016C
|
12/31/02
|
StorEdge
expansion rack, SCSI, PCI network adaptor
|
12/31/02
|
SunFire
280R servers + assoc. equip
|
01/13/03
|
Upgrade
Essentials to Advantage SW - Hardy exp report
|
02/05/03
|
Sun
Cobalt LX50 - Linux Srvr SNSKRBB307C0080
|
03/03/03
|
2X1GB
PC 133 SDRAM modules SN #NA111
|
03/04/03
|
Dell
PowerEdge 2650 Dual 2.6GHZ
|
03/05/03
|
Sun
Cobalt LX50 - Linux Srvr SN KRBB230C0124
|
04/07/03
|
Computer
Monitor for trade show
|
04/24/03
|
RoboDemo
License for Xxxx Xxxxx
|
05/01/03
|
(3)
Dell Optiplex Gx260, Viewsonic, Sun 19" monitors
|
05/07/03
|
(2)
Dell Optiplex GX260
|
05/07/03
|
(2)
72GB SCSI Hard Disk Drives
|
06/24/03
|
SunFire
V65x Server
|
07/10/03
|
SunFire
V65x Server - misc costs
|
07/10/03
|
!GB
Base Memory for Sun Fire Server
|
08/01/03
|
SUSE
Linux for US Army Pilot
|
12/10/03
|
Product
Dev Software Eng
|
01/31/04
|
Computer
Eqp - Product Development
|
02/09/04
|
Sun
Fire V65x Gen Purpose 2U Rack Mt, CO
|
04/07/04
|
Memory
Upgrade DRS702/1024 - Xxx Xxxxxx - Vienna, VA
|
07/30/04
|
Xxxx
MicroProducts Q Logic QLA2342-CK
|
02/28/05
|
Server
for Earthwhere - CO IT Room
|
04/27/05
|
2
Servers for Earthwhere - CO IT Room
|
04/27/05
|
Earthwhere
Website - Design & Programming
|
07/27/05
|
Software
VMARE - to create a Virtual Workstation - Test Environment
|
09/28/05
|
Desktop
GX620/520 DAO - Service Tag # Xxxx Xxxxxx
|
11/10/05
|
1
GB Module for Dell PowerEdge 2650 400 MHz FSB System - Earthwhere
Group
|
01/25/06
|
2.8GHz/2MB
Cache, Xeon, 800MHzFront Side Bus for PowerEdge 2850
|
01/25/06
|
1
Poweredge 6850 Server - Service Tag # 7HD4891 & 2 Poweredge 2850
Servers - Service Tag #CBR6891 - 8BR6891
|
02/28/06
|
Latitude
D620 Laptop - Xxxxxxxx Xxxxxxxxxx - Service Tag # 9T442B1
|
06/14/06
|
Earthwhere
Server - Xxxxx Xxxx Service Tag # 8M772B1
|
06/30/06
|
OptiPlex
GX620 Desktop Pentium D 830/3GJz Rostic Sheykhet Service Tag #
6L072B1
|
06/30/06
|
Shuttle
P 3100 XPC Business System Equipment used for Trade Shows
|
06/30/06
|
PC
Earthwhere LAB - P 3100b
|
06/30/06
|
Additional
Memory to supply backup for all EW Servers
|
07/31/06
|
Latitude
D620 Laptop - Xxxx Xxxxx - Service Tag # J0T6TB1
|
09/30/06
|
Latitude
D620 Laptop - Xxxx Xxxxx - Service Tag # 10T6TB1
|
09/30/06
|
Shuttle
P 3100 XPC Business System for EW Trade Shows
|
10/05/06
|
Latitude
D620 Laptop - (Xxxxxx Xxxxxxx) Xxxx Xxxxxx - Service Tag #
59KB2C1
|
11/20/06
|
Demonstration
Workstation for EW Trade Shows & EW Conference Demos
|
11/30/06
|
Demonstration
Workstation for EW Trade Shows & EW Conference Demos
|
11/30/06
|
Latitude
D610 Laptop - Xxxxx Xxxxxx - Asset Tg # 736
|
11/30/06
|
Latitude
D610 Laptop - Xxxxx Xxxxxxx
|
11/30/06
|
30
EXHIBIT
C
ASSIGNMENT
AND ASSUMPTION AGREEMENT
This
Assignment and Assumption Agreement (this “Agreement”) is made and entered into
as of the 6th
day of
August, 2007 by and among Sanz, Inc., a Colorado corporation (“Sanz”), Solunet
Storage, Inc., a Delaware corporation (“Solunet” and, collectively with Sanz,
“Assignor”), and SPADAC Inc., a Delaware corporation (“Assignee”). All
capitalized terms used but not defined herein shall have the meanings ascribed
to such terms in the Asset Purchase Agreement dated August 6, 2007 by and among
Assignor and Assignee (the “Asset Purchase Agreement”). Capitalized terms used
but not defined herein shall have the meaning assigned to such terms in the
Asset Purchase Agreement.
WITNESSTH
WHEREAS,
Assignor and Assignee are parties to the Asset Purchase Agreement, pursuant
to
the terms and conditions of which Assignor agreed, among other things, to assign
to Assignee, and Assignee agreed to assume, upon the Closing, the Assumed
Liabilities; and
WHEREAS,
Assignor and Assignee are executing and delivering this Agreement for the
purpose of assigning to Assignee the Assumed Liabilities, and Assignee does
hereby assume and agree to pay, discharge and perform the Assumed Liabilities,
effective upon the Closing.
NOW,
THEREFORE, in consideration of the premises, terms and conditions of the Asset
Purchase Agreement, and other good and valuable consideration, the receipt
and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, Assignor by these presents does assign to Assignee and its successors
and assigns, forever (subject to the terms hereof) all of Assignor’s right,
title and interest, legal and equitable, in and to, and its obligations under,
the Assumed Liabilities and Assignee does hereby assume and agree to pay,
discharge and perform the Assumed Liabilities, effective upon the Closing.
*
* * *
*
31
IN
WITNEW
WHEREOF, Assignor and Assignee have caused this Assignment and Assumption
Agreement to be executed this 6th
day of
August, 2007.
ASSIGNOR: | ||
SANZ, INC. | ||
|
|
|
By: | /s/ Xxxx Xxxxx | |
By:
Xxxx Xxxxx
Its:
CEO
|
||
SOLUNET STORAGE, INC. | ||
|
|
|
By: | /s/ Xxxxx Xxxxxxxxx | |
By:
Xxxxx Xxxxxxxxx
Its:
CFO
|
||
ASSIGNEE: | ||
SPADAC INC. | ||
|
|
|
By: | /s/ Xxxx Xxxxx | |
By:
Xxxx Xxxxx
Its:
CEO
|
||
32
EXHIBIT
C-1 REDACTED
SANZ
EarthWhere AR Aging as of 08/02/2007
Customer
#
|
Customer
Name
|
Inv
Date
|
Inv
#
|
Terms
|
Balance
|
|
***
|
***
|
***
|
***
|
***
|
***
|
|
Shipped
on 8/3, to be invoiced on 8/6 since FOB Destination:
|
||||||
Commission
calculation:
|
GP
|
Commission
|
||||
Maintenance
|
***
|
***
|
||||
PS
|
***
|
***
|
***
Confidential treatment has been requested. The confidential portions have been
omitted and filed separately with the SEC pursuant to Rule 24b-2 promulgated
under the Securities Exchange Act of 1934, as amended.
33
EXHIBIT
C-2 REDACTED
Inv
No
|
Date
|
Cust
No
|
Cust
Name -
Xxxx
To
|
Ship
To
|
SOItemNumber
|
SODescription
|
Rev
|
Cost
|
Check
|
Aug-07
|
[Separate
column is included for each month through
June,
2010]
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
Total
Deferred Maintenance Revenue as of 8/3/07 $***
|
***Confidential
treatment has been requested. The confidential portions have been omitted and
filed separately with the SEC pursuant to Rule 24b-2 promulgated under the
Securities Exchange Act of 1934, as amended.
34
EXHIBIT
C-3 REDACTED
Customer
#
|
Customer
Name
|
Inv
Date
|
Inv
#
|
Commission
|
|
***
|
***
|
***
|
***
|
***
|
Maintenance
***
|
PS
***
|
|||||
Total
***
|
|||||
***
Confidential treatment has been requested. The confidential portions have been
omitted and filed separately with the SEC pursuant to Rule 24b-2 promulgated
under the Securities Exchange Act of 1934, as amended.
35
EXHIBIT
D
XXXX
OF SALE
KNOW
ALL
MEN BY THESE PRESENTS, that Sanz, Inc., a Colorado corporation (“Sanz”), and
Solunet Storage, Inc., a Delaware corporation (collectively with Sanz,
“Seller”), pursuant to that certain Asset Purchase Agreement dated August 6,
2007 (the “Asset Purchase Agreement”) by and among Seller and SPADAC Inc., a
Delaware corporation (“Buyer”), and for and in consideration of the Purchase
Price, has bargained and sold, and by these presents does grant, bargain, sell,
assign, convey, transfer, set over and deliver to Buyer and its successors
and
assigns, all right, title, and interest that Seller possesses and has the right
to transfer in and to the Assets. Capitalized terms used but not defined herein
shall have the meaning assigned to such terms in the Asset Purchase Agreement.
TO
HAVE
AND TO HOLD all of the Assets hereby conveyed unto Buyer and its successors
and
assigns, to and for its and their own use and benefit forever.
Seller
and Buyer hereby further undertake that each will execute such additional
documents and take such further action as may be reasonably required, at the
sole cost and expense of the requesting party, in order to confirm and further
effectuate the sale and assignment of the Assets to Buyer. This instrument
shall
be binding upon Seller and their successors and assigns and shall inure to
the
benefit of Buyer and its successors and assigns.
*
* * *
*
36
IN
WITNESS WHEREOF, Seller has caused this Xxxx of Sale to be duly executed as
of
this 6th
day of
August, 2007.
SANZ, INC. | ||
|
|
|
By: | /s/ Xxxx Xxxxx | |
By:
Xxxx Xxxxx
Its:
CEO
|
||
SOLUNET STORAGE, INC. | ||
|
|
|
By: | /s/ Xxxxx Xxxxxxxxx | |
By:
Xxxxx Xxxxxxxxx
Its:
CFO
|
||
37