Exhibit 10.4
Confidential
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "Agreement") entered into as of
March 28, 2000, by and between RTS Wireless, Inc., a Delaware corporation
(the "Company"), and America Online, Inc., a Delaware corporation (the
"Purchaser"). Certain capitalized terms used in this Agreement are defined
in Exhibit A attached hereto.
Recitals
The Company is a developer, manufacturer and provider of software that
enables Internet- and corporate intranet-based information content and services
to be delivered to wireless devices (the "Business").
The Company desires to raise capital to finance its business operations
and in furtherance thereof desires to issue and sell to the Purchaser the
securities specified herein, and the Purchaser is willing to acquire such
securities, all on the terms and subject to the conditions set forth in this
Agreement.
Agreement
In consideration of the mutual promises, covenants and conditions
hereinafter set forth, the parties hereto mutually agree as follows:
1. Authorization and Sale of the Preferred Shares.
1.1 Authorization. The Company has authorized the issuance and sale
pursuant to the terms and conditions hereof of 5,000 shares (the "Preferred
Shares") of its Series A Preferred Stock, par value $.01 per share (the "Series
A Preferred Stock"), having the rights, restrictions, privileges and preferences
set forth in the Certificate of Designation attached hereto as Exhibit B (the
"Certificate of Designation").
1.2 Issuance and Sale. On the terms and subject to the conditions
hereof, at the Closing, the Company will issue and sell to the Purchaser, and
the
Purchaser will purchase from the Company, the Preferred Shares, at a purchase
price of $1,000.00 per share, or an aggregate purchase price of $5,000,000 (the
"Purchase Price").
1.3 Stockholder Rights. The Purchaser shall have the rights
specified in the Investors Rights Agreement attached as Exhibit C hereto.
2. Closing.
2.1 Closing. The closing (the "Closing") of the sale and purchase of
the Preferred Shares under this Agreement shall take place at the offices of
Xxxxxx & Xxxxxx, 000 Xxxxxxx Xxxxxx, X.X., Xxxxxxxxxx XX at 10:00 a.m. on
March 28, 2000 or at such other time, date and place as are mutually agreeable
to the Company and the Purchaser. The date of the Closing is hereinafter
referred to as the "Closing Date."
2.2 Deliveries. At the Closing, the Company will deliver to the
Purchaser certificates registered in the Purchaser's name representing the
aggregate number of Preferred Shares issued and sold by the Company to the
Purchaser, as determined pursuant to Section 1.2 above, and the Purchaser will
deliver to the Company the Purchase Price by wire transfer thereof to the
Company Account. The parties shall also deliver all documents required to be
delivered at the Closing pursuant to Section 2.3 hereof.
2.3 Conditions to Closing.
(a) Conditions to Obligations of the Purchaser. The
obligations of the Purchaser to purchase Preferred Shares at the Closing are
subject to the fulfillment on or prior to the Closing Date of the following
conditions, any of which may be waived by the Purchaser:
(i) Representations and Warranties Correct; Performance
of Obligations. The representations and warranties made by the Company in
Section 3 hereof shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing Date
with the same force and effect as if they had been made on and as of such date,
and the Company shall have performed all obligations, covenants and agreements
herein required to be performed by it on or prior to the Closing.
(ii) Consents and Waivers. The Company shall have
obtained any and all consents (including all governmental or regulatory
consents, approvals or authorizations required in connection with the valid
execution, delivery and performance of this Agreement and the Related
Agreements), permits and waivers necessary or appropriate for consummation of
the transactions contemplated by this Agreement or any Related Agreement.
(iii) Related Agreements. Each of the Related Agreements
shall have been executed and delivered by the Company.
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(iv) Certificate of Designation. The Certificate of
Designation shall have been filed with the Delaware Secretary of State and a
certified copy thereof shall have been delivered to the Purchaser.
(v) Compliance Certificate. The Company shall have
delivered to the Purchaser a certificate, executed by the President and Chief
Financial Officer of the Company, dated as of the Closing Date, certifying the
fulfillment of the conditions specified in subsections (a)(i) and (ii) of this
Section 2.3.
(vi) Secretary's Certificate. The Company shall have
delivered to the Purchaser a certificate, executed by the Secretary of the
Company, dated as of the Closing Date, certifying the authenticity of attached
copies of the Certificate of Designation, the Company's Certificate of
Incorporation, the Company's Bylaws and resolutions of the Board of Directors of
the Company approving the transactions contemplated hereby.
(vii) Opinions of Company's Counsel. The Purchaser shall
have received from Xxxxxx Xxxxxx LLP an opinion, dated the date of the Closing,
substantially in the form attached hereto as Exhibit D.
(viii) Other Documents. The Purchaser shall have
received such other certificates and documents as it shall have reasonably
requested.
(b) Conditions to Obligations of the Company. The Company's
obligation to issue and sell the Preferred Shares at the Closing is subject to
the fulfillment on or prior to the Closing Date of the following conditions, any
of which may be waived by the Company:
(i) Representations and Warranties. The representations
and warranties made by the Purchaser in Section 4 hereof shall have been true
and correct when made, and shall be true and correct on such Closing Date with
the same force and effect as if they had been made on and as of such date.
(ii) Related Agreements. Each of the Related Agreements
shall have been executed and delivered by the Purchaser.
3. Representations and Warranties Relating to the Company and its
Subsidiaries. Except as otherwise set forth in the Disclosure Schedule attached
hereto as Exhibit E (the "Company Disclosure Schedule"), the Company represents
and warrants to the Purchaser as set forth below. For purposes of this Section
3, "Company" shall mean the Company and all of its subsidiary and affiliated
corporations or business entities.
3.1 Organization and Good Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Company has full corporate power and authority to carry
on its business
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as now conducted and as it is proposed to be conducted, and is duly qualified or
licensed to do business and in good standing in each jurisdiction in which the
nature of its business or properties makes such qualification or licensing
necessary, except where the failure to so qualify or be licensed would not have
a Material Adverse Effect. The Company is the successor by merger to Real Time
Strategies, Inc., a New York corporation (the "Predecessor"); the merger of the
Predecessor with and into the Company was effective on March 16, 2000.
References in any representation contained in this Section 3 to the Company and
its business and assets include, where appropriate, references to the
Predecessor and its business and assets as well as references to the business
and assets of the subsidiary referred to in Section 3.6 of the Company
Disclosure Schedule.
3.2 Capital Structure. As of the date hereof, the authorized capital
stock of the Company consists of the following shares, and all of the issued and
outstanding shares as hereinafter set forth have been duly authorized and
validly issued, are fully paid and nonassessable and have been offered, issued,
sold and delivered by the Company in compliance with all applicable federal and
state securities laws:
(a) Preferred Stock. There are a total of 1,000,000 authorized
shares of the Company's Preferred Stock, $.01 par value (the "Preferred Stock"),
of which 5,000 shares have been designated as Series A Preferred Stock. There
are no shares of Preferred Stock issued and outstanding prior to the
consummation of the transactions contemplated hereby.
(b) Common Stock. There are a total of 250,000,000 authorized
shares of the Company's common stock, par value $.01 per share ("Common Stock").
The issued and outstanding shares of Common Stock are as set forth on Section
3.2(b) of the Company Disclosure Schedule.
(c) Options, Warrants, Reserved Shares, Treasury Stock.
Section 3.2(c) of the Company Disclosure Schedule sets forth a list of options,
warrants, rights (including conversion or preemptive rights) and agreements for
the purchase or acquisition from the Company of any shares of the Company's
capital stock or any securities convertible into or ultimately exchangeable or
exercisable for any shares of the Company's capital stock, including any
obligation on the part of the Company in any manner to issue any shares of its
capital stock or other securities. Except as expressly set forth in Section
3.2(c) of the Company Disclosure Schedule, none of the Company's outstanding
capital stock, or stock issuable upon exercise or exchange of any outstanding
options, warrants or rights, is subject to any preemptive rights, rights of
first refusal or other rights to purchase such stock (whether in favor of the
Company or any other person), pursuant to any agreement or commitment of the
Company. The Company holds no shares of its capital stock in its treasury.
(d) Security Holders. Section 3.2(d) of the Company Disclosure
Schedule contains a complete and accurate list of the names of all current
stockholders of the Company and all current holders of outstanding warrants,
options, or other rights ultimately exchangeable, exercisable or convertible for
or into capital stock,
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segregated by the type of security held by each such holder and setting forth
the amount of such security held by such holder and, in the case of securities,
exchangeable, exercisable or convertible into Common Stock, the amount of Common
Stock into which such securities are exchangeable, exercisable or convertible.
3.3 Power, Authorization and Validity. The Company has the corporate
power, legal capacity and corporate authority to enter into and perform its
obligations under this Agreement and each of the Related Agreements. The
execution, delivery and performance by the Company of this Agreement and each of
the Related Agreements have been duly and validly approved and authorized by all
necessary corporate action on its part. No authorization, consent, or approval,
governmental or otherwise, is necessary to enable the Company to enter into this
Agreement or any of the Related Agreements and to perform its obligations
hereunder or thereunder. This Agreement is, and each of the Related Agreements
when executed and delivered by the Company will be, the valid and binding
obligations of the Company, enforceable in accordance with their respective
terms.
3.4 No Violation of Existing Agreements. Neither the execution and
delivery of this Agreement or any Related Agreement nor the consummation of the
transactions or performance of the Company's obligations contemplated hereby or
thereby will conflict with, result in a material breach or violation of, or
cause a default under, any provision of the Company's Certificate of
Incorporation or Bylaws, each as is currently in effect, any instrument,
contract or agreement that is material to the business of the Company or any
judgment, writ, decree, order, law, statute, ordinance, rule or regulation
applicable to the Company.
3.5 Representations Regarding Preferred Shares and Conversion
Shares. All corporate action has been taken on the part of the Company, its
officers, directors and shareholders necessary for the authorization and
creation, issuance and delivery of the Preferred Shares and the Conversion
Shares. The Preferred Shares and the Conversion Shares when issued in compliance
with the provisions of this Agreement and the Certificate of Designation, will
be validly issued, fully paid and nonassessable and, assuming the accuracy of
each of the Purchaser's representations in Section 4 of this Agreement, issued
in compliance with all applicable federal and state securities laws. None of the
Preferred Shares issued pursuant to this Agreement, and none of the Conversion
Shares, are subject to any preemptive rights, rights of first refusal, or other
rights to purchase such stock (whether in favor of the Company or any other
person), pursuant to any agreement or commitment of the Company.
3.6 Subsidiary. Except as set forth in Section 3.6 of the Company
Disclosure Schedule, the Company does not own of record or beneficially any
capital stock or equity interest or investment in any corporation, association,
partnership, limited partnership, limited liability company, trust or other
entity.
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3.7 Financial Statements.
(a) The Company's unaudited consolidated balance sheets as of
the end of December 31, 1998 and 1999 and unaudited consolidated statements of
operations, unaudited consolidated statements of equity (deficit) and unaudited
consolidated statements of cash flows for the years ended December 31, 1997,
1998 and 1999, including the notes thereto (collectively the "Company Financial
Statements"), all of which are attached to the Company Disclosure Schedule, have
been prepared in all material respects in accordance with GAAP. The Company
Financial Statements have been prepared in accordance with the books and records
of the Company and present fairly in all material respects the financial
position, results of operations, equity transactions and cash flows of the
Company as of and for the periods ending on their dates in accordance with GAAP.
Except and to the extent reflected or reserved against in the Company Financial
Statements, the Company does not have, as of the dates of the Company Financial
Statements, any material liabilities or obligations (absolute or contingent) of
a nature required to be or customarily reflected in a balance sheet (or the
notes thereto) prepared in accordance with GAAP. The reserves, if any, reflected
on the Company Financial Statements are adequate in all material respects in
light of the contingencies with respect to which they are made.
(b) Except as may be disclosed in Section 3.8 of the Company
Disclosure Schedule, the Company has no material debts, liabilities or
obligations of any nature, whether accrued, absolute, contingent, or otherwise,
and whether due or to become due, that are not reflected or reserved against in
the Company Financial Statements.
3.8 Absence of Certain Changes and Events. Except as set forth in
Schedule 3.8 of the Company Disclosure Schedule, since December 31, 1999, the
Company has not:
(a) suffered any Material Adverse Change;
(b) suffered any damage, destruction or loss, whether or not
covered by insurance, in an amount in excess of $25,000;
(c) granted or agreed to make any increase in the compensation
payable or to become payable by the Company to any of its officers or employees,
except for normal raises for nonexecutive personnel made in the ordinary course
of business that are usual and normal in amount;
(d) declared, set aside or paid any dividend or made any other
distribution on or in respect of the shares of capital stock of the Company or
declared or agreed to any direct or indirect redemption, retirement, purchase or
other acquisition by the Company of such shares;
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(e) issued any shares of capital stock of the Company or any
warrants, rights, options or entered into any commitment relating to the shares
of capital stock of the Company;
(f) made any material change in the accounting methods or
practices it follows, whether for general financial or tax purposes, or any
change in depreciation or amortization policies or rates adopted therein;
(g) sold, leased, abandoned or otherwise disposed of any real
property or any machinery, equipment or other operating property other than in
the ordinary course of its business;
(h) sold, assigned, transferred, licensed or otherwise
disposed of any patent, trademark, trade name, brand name, copyright (or pending
application for any patent, trademark or copyright), invention, work of
authorship, process, know-how, formula or trade secret or interest thereunder or
other intangible asset except in the ordinary course of its business;
(i) been involved in any dispute involving any employee that
would reasonably be expected to result in a Material Adverse Change;
(j) entered into any commitment or transaction (including
without limitation any borrowing or capital expenditure) that requires the
Company to pay an aggregate amount in excess of $250,000;
(k) incurred any material liabilities, either contingent or
otherwise, matured or unmatured (whether or not required to be reflected in
financial statements in accordance with GAAP, and whether due or to become due),
except for accounts payable or accrued salaries that have been incurred by the
Company since the end of the last fiscal year, in the ordinary course of its
business and consistent with the Company's past practices;
(1) permitted or allowed any of its material property or
assets to be subjected to any mortgage, deed of trust, pledge, lien, security
interest or other encumbrance of any kind, except those permitted under Section
3.9 hereof, other than any purchase money security interests incurred in the
ordinary course of its business;
(m) made any capital expenditure or commitment for additions
to property, plant or equipment individually in excess of $50,000, or in the
aggregate in excess of $250,000;
(n) paid, loaned or advanced any amount to, or sold,
transferred or leased any properties or assets to, or entered into any agreement
or arrangement with any of its affiliates within the meaning of the rules and
regulations promulgated under the Securities Act of 1933 ("Affiliates"),
officers, directors or
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shareholders or, to the Company's knowledge, any Affiliate or associate of any
of the foregoing;
(o) made any amendment to or terminated any agreement that, if
not so amended or terminated, would be material to the business, assets,
liabilities, operations or financial performance of the Company;
(p) entered into any agreement in contemplation of the
transactions specified herein other than this Agreement and the Related
Agreements; or
(q) agreed to take any action described in this Section 3.8 or
outside of the ordinary course of its business or which would constitute a
breach of any of the representations or warranties contained in this Agreement.
3.9 Title to Property and Assets. Except as set forth in Section 3.9
of the Company Disclosure Schedule, the Company owns and possesses its
properties and assets that are material to its business free and clear of all
mortgages, deeds of trust, liens, encumbrances, security interests and claims
except as reflected in the Company Financial Statements and except for statutory
liens for the payment of current taxes that are not yet delinquent and liens,
encumbrances and security interests that arise in the ordinary course of its
business and do not affect material properties and assets of the Company. With
respect to the property and assets it leases that are material to its business,
the Company is in compliance with such leases in all material respects. The
Company holds valid leasehold interests to its material leased properties and
assets free of any liens, encumbrances or security interests of any party other
than the lessors of such property and assets. The Company's properties and
assets are in all material respects in good operating condition and repair.
3.10 Proprietary Assets.
(a) Section 3.10(a)(i) of the Company Disclosure Schedule sets
forth, with respect to each Proprietary Asset of the Company registered with or
issued by any Governmental Body or for which an application has been filed with
any Governmental Body, (i) a brief description of such Proprietary Asset, and
(ii) the names of the jurisdictions covered by the applicable registration or
application or in which the Proprietary Asset has been issued. Section
3.10(a)(ii) of the Company Disclosure Schedule identifies and provides a brief
description of each Proprietary Asset licensed to the Company by any Person
(other than software licenses that are relating to unmodified commercial
computer software that is generally available in the ordinary course of
business), and identifies the license agreement under which such Proprietary
Asset is being licensed to the Company. The Company has good and marketable
title to all material Proprietary Assets used in or necessary for its business
as currently conducted and as proposed to be conducted, free and clear of all
material liens and other encumbrances, except for third party rights licensed to
it, as to which the Company has a valid right to use such Proprietary Assets
(all of the foregoing are referred to herein as the "Company Proprietary
Rights"). The Company is not obligated to make any material
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payment to any Person for the use of any Proprietary Asset. The Company has not
developed jointly with any other Person any Proprietary Asset with respect to
which such other Person has any rights or the Company has any obligations.
(b) The Company has taken all reasonable measures and
precautions necessary to protect and maintain the confidentiality and secrecy of
all its Proprietary Assets (except trademarks, issued patents and other
Proprietary Assets similarly known to the public and Proprietary Assets whose
value would be materially unimpaired by public disclosure) and otherwise to
maintain and protect the value of all its Proprietary Assets.
(c) Except where such infringement, misappropriation or
unlawful use, would not and could not reasonably be expected to be material in
impact or amount, either individually or in the aggregate, the Company is not
infringing, misappropriating or making any unlawful use of, and the Company has
not at any time, infringed, misappropriated or made any unlawful use of, any
Proprietary Asset owned or used by any other Person. No claims or notices (in
writing or otherwise) with respect to Proprietary Assets have been communicated
to the Company: (i) to the effect that the manufacture, sale, license or use of
any Proprietary Asset or product, practice of any process or provision of any
service as now made, sold, practiced, used or provided or currently offered or
proposed by the Company infringes or potentially infringes, or constitutes a
misappropriation or unlawful use of any copyright, patent, trade secret or other
intellectual property right of a third party, or (ii) challenging the ownership
or validity of any of the Company's rights to or interest in such Proprietary
Assets. The Company has received no notice to the effect that any patents or
registered trademarks, service marks or registered copyrights held by the
Company are invalid or not subsisting except for failures to be valid and
subsisting that would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on the Company. To the Company's knowledge,
no other Person is infringing, misappropriating or making any unlawful use of,
and no Proprietary Asset owned or used by any other Person infringes or
conflicts with, any Proprietary Asset used in or pertaining to the business of
the Company.
(d) The Company owns or has the right to use by license all
Proprietary Assets necessary, in the Company's reasonable judgment, to enable
the Company to conduct its business in the manner in which such business has
been and is being conducted. The Company has not licensed any of its Proprietary
Assets to any Person on an exclusive basis and the Company has not entered into
any covenant not to compete or contract limiting its ability to exploit fully
any of its Proprietary Assets or to transact business in any market or
geographical area or with any Person.
3.11 Contracts.
(a) Section 3.11(a) of the Company Disclosure Schedule
identifies each material license agreement, development agreement, manufacturing
agreement, distribution agreement or other agreement to which the Company is a
party.
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(b) Except as set forth in Section 3.11(b) of the Company
Disclosures Schedule:
(i) The Company has no agreements, contracts or
commitments that call for prospective fixed and/or contingent payments or
expenditures by or to the Company of more than $50,000 other than those entered
into in the ordinary course of its business concerning the sale of the Company's
products;
(ii) The Company has no purchase agreement, contract or
commitment that calls for fixed and/or contingent payments by the Company that
are in excess of the normal, ordinary and usual requirements of the Company's
business;
(iii) There is no outstanding sales contract, commitment
or proposal (including, without limitation, development projects) of the Company
that is reasonably likely to result, either individually or in the aggregate, in
any Material Adverse Change to the Company upon completion or performance
thereof;
(iv) The Company has no outstanding agreements,
contracts or commitments with officers, employees, agents, consultants,
advisors, salesmen, sales representatives, distributors or dealers that are not
cancelable by it on notice of not longer than thirty days and without liability,
penalty or premium exceeding $50,000 in any single instance or $75,000 in the
aggregate;
(v) The Company has not entered into any employment,
independent contractor or similar agreement, contract or commitment that is not
terminable on not more than thirty days' notice without penalty or liability of
any type, including without limitation severance or termination pay;
(vi) The Company has no collective bargaining or union
agreements, contracts or commitments;
(vii) The Company is not restricted by agreement from
competing with any person, from carrying on its business anywhere in the world
or otherwise operating its business in any manner it deems appropriate;
(viii) The Company has not guaranteed any obligations of
other Persons or made any agreements to acquire or guarantee any obligations of
other Persons; and
(ix) The Company has no outstanding loan or advance to
any Person; nor is it party to any line of credit, standby financing, revolving
credit or other similar financing arrangement of any sort that would permit the
borrowing by the Company of any sum not reflected in the Company Financial
Statements.
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(c) The Company has delivered to the Purchaser accurate and
complete copies of all written contracts identified in Section 3.11(a) and (b)
of the Company Disclosure Schedule, including all amendments thereto. Sections
3.11(a) and (b) of the Company Disclosure Schedule contain a complete list of
all the material contracts to which the Company is a party. The Company has not
entered into any material oral contracts. Each contract identified in Sections
3.11(a) and (b) of the Company Disclosure Schedule (a "Company Material
Contract") is valid and in full force and effect, is enforceable by the Company
in accordance with its terms, subject to (i) laws of general application
relating to insolvency and the relief of debtors and (ii) rules of law governing
specific performance, injunctive relief and other equitable remedies, and will
continue to be so immediately following the Closing Date. No such contract,
agreement or instrument contains any liquidated damages, penalty or similar
provision. To the Company's knowledge, no party to any such contract, agreement
or instrument intends to cancel, withdraw, modify or amend such contract,
agreement or instrument.
(d) (i) The Company has not violated or breached, or committed
any default under, any Company Material Contract in any material respect, and,
to the Company's knowledge, no other Person has violated or breached, or
committed any default under, any Company Material Contract in any material
respect; and
(ii) to the Company's knowledge, no event has occurred,
and no circumstance or condition exists, that (with or without notice or lapse
of time) will, or could reasonably be expected to, (A) result in a material
violation or breach of any of the provisions of any Company Material Contract,
(B) give any Person the right to declare a default or exercise any remedy under
any Company Material Contract, (C) give any Person the right to accelerate the
maturity or performance of any Company Material Contract or (D) give any Person
the right to cancel, terminate or modify any Company Material Contract.
(e) None of the Company Material Contracts contains any
provision which would require the consent of third parties to the sale and
issuance of the Preferred Shares or any of the other transactions as
contemplated hereunder or under any of the Related Agreements or which would be
altered as a result of such transaction.
3.12 Registration Rights. Except as provided in the Investors Rights
Agreement, the Company has not granted or agreed to grant to any person or
entity any rights (including piggyback registration rights) to have any
securities of the Company registered with the U.S. Securities and Exchange
Commission or any other governmental authority.
3.13 Taxes.
(a) The Company has fully and timely, properly and accurately filed
all tax returns and reports required to be filed by it, including all federal,
foreign, state and local tax returns and estimates for all years and periods
(and portions thereof)
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for which any such returns, reports or estimates were due. All such returns,
reports and estimates were prepared in the manner required by applicable law in
all material respects. All income, sales, use, occupation, property or other
taxes or assessments due from the Company prior to the Closing Date have been
paid or will be paid on or before the Closing Date. There are no pending
assessments, asserted deficiencies or claims for additional taxes that have not
been paid. The reserves for taxes, if any, reflected on the Company Financial
Statements are adequate in all material respects, and there are no material tax
liens on any property or assets of the Company (other than liens for taxes not
yet due and payable). There have been no audits or examinations of any tax
returns or reports of the Company by any Governmental Body. No state of facts
exists or has existed which would constitute grounds for the assessment of any
penalty or any further tax liability in a material amount, either individually
or in the aggregate, beyond that shown on the respective tax reports, returns or
estimates. There are no outstanding agreements or waivers extending the
statutory period of limitation applicable to any federal, foreign, state or
local tax return or report for any period.
(b) All material taxes that the Company has been required to
collect or withhold have been duly withheld or collected and, to the extent
required, have been paid to the proper taxing authority.
(c) The Company is not a party to any tax-sharing agreement or
similar arrangement with any other Person.
(d) At no time has the Company been included in the federal
consolidated income tax return of any affiliated group of corporations.
(e) The Company is not currently under any contractual
obligation to pay to any Governmental Body any tax obligations of, or with
respect to any transaction relating to, any other Person or to indemnify any
other Person with respect to any tax, other than pursuant to this Agreement.
3.14 Employees. The Company is not a party to any collective
bargaining agreements and, to its knowledge, there are no attempts to organize
the employees of the Company. Section 3.14 of the Company Disclosure Schedule
lists all material employee benefit plans and programs of the Company. Copies of
any of the foregoing plans, programs, contracts, arrangements or understandings
have been made available to the Purchaser or its counsel. To the knowledge of
the Company, no employee of the Company is subject to any judgment, decree or
order of any court or administrative agency, or any other restriction that would
materially interfere with the use of his or her best efforts to carry out his or
her duties for the Company or that would conflict with the Company's business as
currently conducted. The Company has received no written notice from any former
employer that an employee of the Company has prior obligations to a former
employer that would interfere or conflict with such employee's ability to
perform his or her intended services for the Company. To the Company's
knowledge, no employee or advisor of the Company is or is now expected to be in
violation of any term of any employment contract, disclosure agreement,
proprietary
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information and inventions agreement or any other contract or agreement or any
restrictive covenant or any other common law obligation to a former employer
relating to the right of any such employee to be employed by the Company because
of the nature of the business conducted or to be conducted by the Company or to
the use of trade secrets or proprietary information of others, and the
employment of the Company's employees does not subject the Company or the
Company's shareholders to any liability. There is neither pending nor, to the
Company's knowledge, threatened any actions, suits, proceedings or claims, or,
to its knowledge, any basis therefor or threat thereof with respect to any
contract, agreement, covenant or obligation referred to in the preceding
sentence.
3.15 Insurance. The Company maintains and keeps in force with good
and responsible insurance companies fire, public liability, property damage and
other insurance in such amounts and with such coverage or risks as are customary
for similar businesses and adequate to the needs of the Company. The Company
Disclosure Schedule sets forth a list of such insurance, stating the name and
address of the insurance provider and the amount of insurance. The Company has
not done anything, either by way of action or inaction, that would reasonably be
expected to invalidate any of its insurance policies as a whole or in part.
3.16 Compliance with Environmental Requirements. The Company has
obtained all material permits, licenses and other authorizations which are
required under federal, foreign, state and local laws applicable to the Company
and relating to pollution or protection of the environment, including laws or
provisions relating to emissions, discharges, releases or threatened releases of
pollutants, contaminants, or hazardous or toxic materials, substances, or wastes
into air, surface water, groundwater, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants or hazardous or toxic
materials, substances, or wastes. The Company is in material compliance with all
terms and conditions of the required permits, licenses and authorizations. The
Company is not aware of, nor has the Company received written notice of, any
conditions, circumstances, activities, practices, incidents, or actions which
might reasonably form the basis of a claim, action, suit, proceeding, hearing,
or investigation of, by, against or relating to the Company, based on or related
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling, or the emission, discharge, release or threatened
release into the environment, of any pollutant, contaminant, or hazardous or
toxic substance, material or waste.
3.17 Compliance With Corporate Instruments and Laws. The Company is
not in violation of any provisions of its Certificate of Incorporation or Bylaws
as currently in effect. The Company is in compliance in all material respects
with all applicable laws, statutes, rules, and regulations of all governmental
and regulatory authorities which are applicable and the compliance with which is
material to the Company or its assets or business. The Company has complied in
all material respects at all times with any and all applicable federal, state
and foreign laws, rules, regulations, proclamations and orders relating to the
importation or exportation of its products. All
13
licenses, franchises, permits and other governmental authorizations held by the
Company and which are material to its business are valid and sufficient in all
respects for the business presently carried on by the Company.
3.18 Litigation. There is no suit, action, proceeding, claim or
investigation pending or, to the Company's knowledge, threatened against the
Company before any court or administrative agency which could have a Material
Adverse Effect or which questions or challenges the validity of this Agreement
or any Related Agreement. There is no judgment, decree, injunction, rule or
order of any court, governmental department, commission, agency, instrumentality
or arbitrator outstanding against the Company.
3.19 Corporate Documents. The Company has furnished to the Purchaser
or its counsel for their examination true and complete copies of the following
documents: (i) copies of its Certificate of Incorporation and Bylaws, each as
currently in effect, (ii) minute books containing required records setting forth
proceedings, consents, actions, and meetings of its shareholders, board of
directors and any committees thereof, and (iii) all material permits, orders,
and consents issued by any regulatory agency with respect to the Company, or any
securities of the Company, and all applications for such permits, orders, and
consents. The corporate minute books, stock certificate books, stock registers
and other corporate records of the Company are complete and accurate in all
material respects, and the signatures appearing on all documents contained
therein are the true signatures of the persons purporting to have signed the
same. All actions reflected in such books and records were duly and validly
taken in compliance in all material respects with the laws of the applicable
jurisdiction.
3.20 No Brokers. Neither the Company nor, to the Company's
knowledge, any Company shareholder is obligated for the payment of fees or
expenses of any broker or finder in connection with the origin, negotiation or
execution of this Agreement or any Related Agreement or in connection with any
transaction contemplated hereby or thereby.
3.21 Related Party Transactions.
(a) None of the Company's Affiliates, officers, directors,
shareholders or employees, or any Affiliate of any of such Person, has any
material interest in any property, real or personal, tangible or intangible,
including Proprietary Assets used in or pertaining to the business of the
Company, except for the normal rights of a stockholder, or, to the knowledge of
the Company, any supplier, distributor or customer of the Company.
(b) Except for this Agreement and the Related Agreements,
there are no agreements, understandings or proposed transactions between the
Company and any of its officers, directors, employees, Affiliates, or, to the
Company's knowledge, any Affiliate thereof.
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(c) To the best of the Company's knowledge, no employee,
officer or director of the Company has any direct or indirect ownership interest
in any firm or corporation with which the Company is affiliated or with which
the Company has a business relationship, or any firm or corporation that
competes with the Company, except that employees, officers or directors of the
Company may own stock in publicly traded companies that may compete with the
Company. To the Company's knowledge, no member of the immediate family of any
officer or director of the Company is directly or indirectly interested in any
material contract with the Company.
3.22 Disclosure. The statements by the Company contained in this
Agreement, the exhibits hereto, and the certificates and documents required to
be delivered by the Company to the Purchaser under this Agreement, taken as a
whole, do not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements contained herein and
therein not misleading in light of the circumstances under which such statements
were made.
3.23 Securities Act. Subject to the accuracy of the Purchaser's
representations in Section 4 hereof, the offer, sale and issuance of the
Preferred Shares in conformity with the terms of this Agreement and the issuance
of Conversion Shares upon conversion of the Preferred Shares constitute or will
constitute transactions exempt from the registration requirements of Section 5
of the Securities Act of 1933, as amended, and the qualification or registration
requirements of any applicable state securities laws as such laws exist on the
date hereof.
4. Representations and Warranties of Purchaser and Restrictions on
Transfer Imposed by the Securities Act of 1933 and Applicable State Securities
Laws.
4.1 Representations and Warranties by The Purchaser. The Purchaser
represents and warrants to the Company as follows:
(a) The Preferred Shares and the Conversion Shares
(collectively, the "Securities") are being or will be acquired for the
Purchaser's own account, for investment and not with a view to, or for resale in
connection with, any distribution or public offering thereof within the meaning
of the Securities Act of 1933, as amended (the "Securities Act"), or applicable
state securities laws.
(b) The Purchaser understands that (i) the Securities have not
been registered under the Securities Act by reason of their issuance in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act pursuant to Section 4(2) thereof and have not been qualified
under any state securities laws on the grounds that the offering and sale of
securities contemplated by this Agreement are exempt from registration
thereunder, and (ii) the Company's reliance on such exemptions is predicated on
the Purchaser's representations set forth herein. The Purchaser understands that
the resale of the Securities may be restricted indefinitely, unless a subsequent
disposition thereof is registered under the Securities Act and registered under
any state securities law or is exempt from such registration.
15
(c) The Purchaser is an "Accredited Investor" as that term is
defined in Rule 501 of Regulation D promulgated under the Securities Act. The
Purchaser is able to bear the economic risk of the purchase of the Securities
pursuant to the terms of this Agreement, including a complete loss of the
Purchaser's investment in the Securities.
(d) The Purchaser has the full right, power and authority to
enter into and perform the Purchaser's obligations under this Agreement and each
Related Agreement, and this Agreement and each of the Related Agreements
constitute valid and binding obligations of the Purchaser enforceable in
accordance with their terms. The execution, delivery and performance by the
Purchaser of this Agreement and each of the Related Agreements have been duly
and validly approved and authorized by all necessary corporate action on its
part.
(e) No consent, approval or authorization of or designation,
declaration or filing with any Governmental Body on the part of the Purchaser is
required in connection with the valid execution and delivery of this Agreement
or any Related Agreement.
4.2 Legend. Each certificate representing the Securities may be
endorsed with the following legends:
(a) THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
ARE "RESTRICTED SECURITIES" AS DEFINED IN RULE 144 PROMULGATED UNDER THE ACT.
THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE DISTRIBUTED
EXCEPT (I) IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SHARES UNDER THE ACT, OR (II) IN COMPLIANCE WITH RULE 144 OR (III) OTHERWISE
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE ACT.
(b) Any other legends required by applicable securities laws.
The Company may instruct its transfer agent not to register the transfer of the
Securities, unless the conditions specified in the foregoing legends are
satisfied.
4.3 Removal of Legend and Transfer Restrictions.
Any legend endorsed on a certificate pursuant to Section
4.2(a) and the stop transfer instructions with respect to such Securities shall
be removed and the Company shall issue a certificate without such legend to the
holder thereof (a) if such Securities are registered under the Securities Act
and a prospectus meeting the requirements of Section 10 of the Securities Act is
available, (b) if such legend may be properly removed under the terms of Rule
144 promulgated under the Securities Act, or
16
(c) if such holder provides the Company with an opinion of counsel for such
holder, reasonably satisfactory to legal counsel for the Company to the effect
that a sale, transfer or assignment of such Securities may be made without
registration.
5. Indemnity.
5.1. Indemnity.
(a) The Company hereby agrees to indemnify and defend and hold
harmless the Purchaser, its Affiliates, successors and assigns and each of their
respective officers, directors, employees and agents (the "Indemnified Parties")
from and against, and agrees to pay or cause to be paid to the Indemnified
Parties all amounts equal to the sum of, any and all claims, demands, costs,
expenses, losses and other liabilities of any kind (including without limitation
all reasonable legal fees and expenses) that the Indemnified Parties may incur
or suffer (collectively, "Damages") which arise or result from any breach of or
failure by the Company to perform any of its representations, warranties,
covenants or agreements in this Agreement or any Related Agreement. The rights
of the Purchaser hereunder shall be in addition to, and not in lieu of, any
other rights and remedies which may be available to it by law.
(b) Anything to the contrary notwithstanding, the Company
shall not be required to indemnify (whether such indemnification is pursuant to
this Section 5 or otherwise) any Indemnified Party for breaches of any
representation or warranty made in this agreement except to the extent that the
Damages suffered by the Indemnified Party as a result of such breach exceed
$50,000.
5.2 Procedures.
(a) If a third party shall notify an Indemnified Party with
respect to any matter that may give rise to a claim for indemnification under
the indemnity set forth above in Section 5.1, the procedure set forth below
shall be followed.
(i) Notice. The Indemnified Party shall give to the
party providing indemnification (the "Indemnifying Party") written notice of any
claim, suit, judgment or matter for which indemnity may be sought under Section
5.1 promptly but in any event within thirty days after the Indemnified Party
receives notice thereof; provided, however, that failure by the Indemnified
Party to give such notice shall not relieve the Indemnifying Party from any
liability it shall otherwise have pursuant to this Agreement except to the
extent that the Indemnifying Party is actually prejudiced by such failure. Such
notice shall set forth in reasonable detail (i) the basis for such potential
claim and (ii) the dollar amount of such claim. The Indemnifying Party shall
have a period of fifteen days within which to respond thereto. If the
Indemnifying Party does not respond within such fifteen-day period, the
Indemnifying Party shall be deemed to have accepted responsibility for such
indemnity.
17
(ii) Defense of Claim. With respect to a claim by a
third party against an Indemnified Party for which indemnification may be sought
under this Agreement, the Indemnifying Party shall have the right, at its
option, to be represented by counsel of its choice and to assume the defense or
otherwise control the handling of any claim, suit, judgment or matter for which
indemnity is sought, which is set forth in the notice sent by the Indemnified
Party, by notifying the Indemnified Party in writing to such effect within
fifteen days of receipt of such notice; provided, however, that the Indemnified
Party shall have the right to employ counsel to represent it if, in the
Indemnified Party's reasonable judgment based upon the advice of counsel, it is
advisable in light of the separate interests of the Indemnified Party, to be
represented by separate counsel, and in that event the reasonable fees and
expenses of such separate counsel shall be paid by the Indemnifying Party. If
the Indemnifying Party does not give timely notice in accordance with the
preceding sentence, the Indemnifying Party shall be deemed to have given notice
that it does not wish to control the handling of such claim, suit or judgment.
In the event the Indemnifying Party elects (by notice in writing within such
fifteen-day period) to assume the defense of or otherwise control the handling
of any such claim, suit, judgment or matter for which indemnity is sought, the
Indemnifying Party shall indemnify and hold harmless the Indemnified Party from
and against any and all reasonable professional fees (including attorneys' fees,
accountants, consultants and engineering fees) and investigation expenses
incurred by the Indemnifying Party prior to such election, notwithstanding the
fact that the Indemnifying Party may not have been so liable to the Indemnified
Party had the Indemnifying Party not elected to assume the defense of or to
otherwise control the handling of such claim, suit, judgment or other matter. In
the event that the Indemnifying Party does not assume the defense or otherwise
control the handling of such matter, the Indemnified Party may retain counsel,
as an indemnification expense, to defend such claim, suit, judgment or matter.
(iii) Final Authority. The parties shall cooperate in
the defense of any such claim or litigation and each shall make available all
books and records which are relevant in connection with such claim or
litigation. In connection with any claim, suit or other proceeding with respect
to which the Indemnifying Party has assumed the defense or control, the
Indemnifying Party will not consent to the entry of any judgment or enter into
any settlement with respect to any matter which does not include a provision
whereby the plaintiff or claimant in the matter releases the Indemnified Party
from all liability with respect thereto, without the written consent of the
Indemnified Party. In connection with any claim, suit or other proceeding with
respect to which the Indemnifying Party has not assumed the defense or control,
the Indemnified Party may not compromise or settle such claim without the
consent of the Indemnifying Party, which shall not be unreasonably withheld and
shall be deemed to have been given if the Indemnified Party provides the
Indemnifying Party with a written notice setting forth the material terms of
such compromise or settlement and the Indemnifying Party does not object thereto
in writing within ten days of its receipt of such notice.
(b) Claims Between the Indemnifying Party and the Indemnified Party.
Any claim for indemnification under this Agreement which does not result from
the assertion of a claim by a third party shall be asserted by written notice
given by the
18
Indemnified Party to the Indemnifying Party. The Indemnifying Party shall have a
period of thirty days within which to respond thereto. If the Indemnifying Party
does respond within such thirty-day period and rejects such claim in whole or in
part or does not respond, the Indemnified Party shall submit the dispute to
arbitration in accordance with Section 7.2 hereof.
6. Use of Proceeds. The Company hereby covenants and agrees that all of
the net proceeds received by it from the issuance and sale of the Preferred
Shares shall be used for the purpose of developing and conducting the Business,
and no part of such net proceeds shall be used to (i) repay any Person any funds
expended by it or advanced by it to the Company prior to the Closing, unless
agreed to in writing by the Purchaser; provided, however, that the Company shall
be permitted, without any written agreement by the Purchaser, to pay any and all
of its debts and obligations (including but not limited to accounts payable,
accrued expenses and indebtedness) as such items become due pursuant to their
terms, and may prepay the principal amount outstanding (which principal amount
is currently approximately $1,300,000) under the promissory note (plus interest
thereon) issued to The Chase Manhattan Bank pursuant to the General Loan and
Collateral Agreement dated October 6, 1997 and the promissory note issued in
connection therewith; and (ii) pay any broker's fees or commissions or similar
payments of any kind.
7. Miscellaneous.
7.1 Waivers and Amendments. With the written consent of the
Purchaser, the obligations of the Company and the rights of the Purchaser under
this Agreement may be waived (either generally or in a particular instance,
either retroactively or prospectively and either for a specified period of time
or indefinitely), and with the same consent the Company may enter into a
supplementary agreement for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement. Neither
this Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, but only by a statement in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought.
7.2 Arbitration. Any controversy or claim arising out of or relating
to this Agreement or any of the Related Agreements, or the breach hereof or
thereof, shall be settled by arbitration administered by the American
Arbitration Association under its Commercial Arbitration Rules, and judgment on
the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. Such arbitration shall be conducted by a panel of three
arbitrators, each party having the right to select one arbitrator with the third
arbitrator to be selected in accordance with the rules of the American
Arbitration Association.
7.3 Governing Law. This Agreement shall be governed in all respects
by the laws of the Commonwealth of Virginia without regards to the principles of
conflicts of laws thereof.
19
7.4 Survival. The representations, warranties, covenants and
agreements made herein shall survive the execution of this Agreement and the
Closing of the transactions contemplated hereby.
7.5 Successors and Assigns. Except as otherwise expressly provided
herein and subject to the Related Agreements and applicable law, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties hereto.
7.6 Entire Agreement. This Agreement, the Related Agreements and
other exhibits to this Agreement and the other documents delivered pursuant
hereto constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof.
7.7 Notices, etc. All notices, requests and other communications
hereunder shall be in writing and shall be deemed to have been duly given at the
time of receipt if delivered by hand or by facsimile transmission or three days
after being mailed, registered or certified mail, return receipt requested, with
postage prepaid, to the address or facsimile number (as the case may be) listed
for each such party below such party's signature page hereto or, if any party
shall have designated a different address or facsimile number by notice to the
other parties given as provided above, then to the last address or facsimile
number so designated.
7.8 Separability. In case any provision of this Agreement shall be
declared invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
7.9 Expenses. Each of the parties shall bear its respective expenses
and legal fees incurred with respect to this Agreement, each of the Related
Agreements and the transactions contemplated hereby and thereby.
7.10 Titles and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
7.11 Counterparts. This Agreement may be executed simultaneously in
any number of counterparts and may be executed by facsimile. Each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute one agreement.
7.12 Publicity. Neither of the parties to this Agreement, nor any of
their affiliates, shall issue any press release or otherwise make any public
announcement or disclosure with respect to this Agreement, any of the Related
Agreements or any of the transactions contemplated hereby or thereby without the
prior written consent of each of the other party, unless such disclosure is
required by applicable law.
20
7.13 "Knowledge". When used in this Agreement, any representation
made "to the knowledge of the Company," "to the best of the Company's knowledge"
or with similar "knowledge" qualifications mean that such representation
includes the knowledge of the Company's Chief Executive Officer, Chief Operating
Officer and Chief Financial Officer.
IN WITNESS WHEREOF, the Company has executed this Agreement as of the day
and year first above written.
RTS WIRELESS, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------
Name: /s/ Xxxxxxx Xxxxxxx
-------------------
Title: Executive Vice President & COO
------------------------------
Address: RTS Wireless, Inc.
00 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Ring,
Chief Executive Officer
Telecopier: 000-000-0000
copy to: Xxxxxx Xxxxxx LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
Telecopier: 000-000-0000
AMERICA ONLINE, INC.
By: /s/ Xxxxx Clerizio
------------------
Name: /s/ Xxxxx Clerizio
-------------------
Title: Vice President
-------------------
Address: America Online, Inc.
0000 XXX Xxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopier: 000-000-0000
21
Confidential
EXHIBIT A
CERTAIN DEFINITIONS
For purposes of the Agreement to which this Exhibit A is attached, the
following terms have the following meanings:
"Business Day" means any day other than a Saturday, Sunday or other day on
which the national or state banks located in the State of New York or the
Commonwealth of Virginia are authorized to be closed.
"Common Stock" means the common stock, par value $.01 per share, of the
Company.
"Company Account" means an account of the Company designated in a written
notice delivered to the Purchaser at least two Business Days prior to the date
of any required payment by the Purchaser to the Company under the Agreement.
"Company Products" means all versions and implementations of any product
which has been, is being or is intended to be marketed by the Company.
"Conversion Shares" means shares of Common Stock issuable upon conversion
of the Preferred Shares.
"GAAP" means United States generally accepted accounting principles
consistently applied.
"Governmental Body" means any: (a) nation, state, commonwealth, province,
territory, county, municipality, district or other jurisdiction of any nature;
(b) federal, state, local, municipal, foreign or other government; or (c)
governmental or quasi-governmental authority of any nature (including any
governmental division, department, agency, commission, instrumentality,
official, organization, unit, body or entity and any court or other tribunal).
"Material Adverse Change" means a change which would have a Material
Adverse Effect.
"Material Adverse Effect." An event, violation or other matter will be
deemed to have a "Material Adverse Effect" on the Company if such event,
violation or other matter would be material in impact or amount to the Company's
business, intellectual property rights or condition, or, taken as a whole, its
assets, liabilities, operations, or financial performance.
"Person" means any individual, entity or Governmental Body.
"Proprietary Asset" means: (a) any patent, patent application, trademark
(whether registered or unregistered), trademark application, trade name,
fictitious business name,
service xxxx (whether registered or unregistered), service xxxx application,
copyright (whether registered or unregistered), copyright application, maskwork,
maskwork application, trade secret, know-how, customer list, franchise, system,
computer software, computer program, invention, design, blueprint, engineering
drawing, proprietary product, technology, proprietary right or other
intellectual property right or intangible asset; and (b) any right to use or
exploit any of the foregoing.
"Related Agreements" means (a) the Investors Rights Agreement
substantially in the form attached as Exhibit C to the Agreement; and (b) any
other agreement or document entered into by any of the parties in connection
with the Agreement or any of the transactions contemplated thereby.
2
