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Exhibit 10.16
ASSET PURCHASE AND LICENSE AGREEMENT
This Agreement (this "Agreement") is made and entered into as of November 10,
1999, by and between Polaroid Corporation, a Delaware corporation with its
principal place of business at 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
00000 ("Polaroid"), and Robotic Vision Systems, Inc., a Delaware corporation
with its principal place of business at 0 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 ("RVSI").
WHEREAS, Polaroid and RVSI are parties to that certain Product Development
and Marketing Agreement, dated as of September 30, 1997 (the "Product
Development Agreement"), pursuant to which Polaroid and RVSI agreed to develop,
produce, manufacture and market a hand held commercial symbology imager for
identification and machine vision applications (the "Imager") and related
products.
WHEREAS, pursuant to the terms and conditions of the Product Development
Agreement, Polaroid and RVSI have developed, produced, manufactured and marketed
the Imager and one or more related products. For purposes of this Agreement, the
term "Imager Products" shall mean any product, including components and
sub-systems of such products, the manufacture, use or sale of which would, but
for the license granted herein, infringe or contribute to the infringement of
one or more valid claims of the Imager Patents (as such term is defined
immediately below). Under this Agreement, a claim shall be presumed valid unless
and until it has been held invalid by a final judgement of a court of competent
jurisdiction from which no appeal can be or is taken. For purposes of this
Agreement, the term "Imager Patents" means those patents and patent applications
set forth in Schedule 2.1(a), including U.S. and foreign patents, reissues,
re-examinations and registrations; their pending U.S. and foreign patent
applications and provisional applications and all divisions, continuations, and
continuations-in-part of such applications; and all patents that may be
subsequently granted on any such U.S. and foreign applications and all
provisionals, reissues, extensions, re-examinations and registrations thereof.
WHEREAS, Polaroid and RVSI now desire to terminate the Product Development
Agreement and Polaroid desires to sell and convey to RVSI the assets of Polaroid
relating to the Imager Product(s) which are herein defined as "Acquired Assets",
and RVSI desires to purchase such assets and to grant to Polaroid a
non-exclusive license to use certain of such Acquired Assets on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements herein and for
other consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Termination of the Product Development Agreement
1.1 Termination. Upon the Closing (as hereinafter defined) of this
Agreement, the Product Development Agreement shall be terminated and shall
immediately be null and void and of no further force and effect.
1.2 Mutual Release. Each of Polaroid and RVSI hereby releases and
discharges the other, its predecessors and affiliates, and the officers,
directors, agents, representatives and employees of any of them, from and
against any and all claims, demands, actions, suits and liabilities of any kind
whatsoever either now have or may ever have had or will have against the other,
whether or not now known, from the beginning of time to the date hereof, under
or relating to the Product Development Agreement.
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2. Purchase and Sale of Assets
2.1 Assets Purchased. Subject to the terms and conditions of this
Agreement, at the Closing, Polaroid shall sell, convey, transfer, assign and
deliver to RVSI and RVSI shall purchase, acquire and accept from Polaroid (i)
all of Polaroid's right, title and interest in the intellectual property assets
set forth on Schedule 2.1(a) hereto including the Imager Patents (the "IP
Acquired Assets"), and (ii) the other assets set forth on Schedule 2.1(b)
attached hereto (the "Non-IP Acquired Assets" and, together with the IP Acquired
Assets, the "Acquired Assets").
2.2 No Assumption of Liabilities. Anything in this Agreement to the
contrary notwithstanding, RVSI shall not assume, and shall not be deemed to have
assumed, any liability or obligation of Polaroid whatsoever, known or unknown,
fixed or contingent.
3. Consideration and Payment
Subject to the terms and conditions of this Agreement, in reliance upon
Polaroid's representations, warranties and agreements contained herein, and in
consideration of Polaroid's sale, assignment, transfer and delivery of the
Acquired Assets at the Closing, RVSI shall pay Polaroid the following
consideration:
3.1 Purchase Price for Acquired Assets. The purchase price (the "Purchase
Price") for the Acquired Assets shall be $2,000,000.
3.2 Convertible Promissory Note and Registration Rights Agreement. At the
Closing, RVSI shall execute and deliver to Polaroid a Convertible Promissory
Note substantially in the form of Exhibit A attached hereto (the "Note"). As set
forth in Subsection 5.2(d) herein, at the Closing of this Agreement Polaroid and
RVSI shall enter into a Registration Rights Agreement substantially in the form
of Exhibit B attached hereto (the "Registration Rights Agreement"), providing
for registration rights of Polaroid with regard to shares of the Common Stock of
RVSI received in connection with the Note.
3.3 Royalties.
(a) In addition to the Purchase Price payments set forth in Section
3.1 above, RVSI shall pay Polaroid, on a quarterly basis, a royalty on the Net
Sales Price of any Imager Product(s) sold by RVSI following the date of this
Agreement through and including the date that is ten (10) years from the date of
this Agreement, at such rates as shall be determined pursuant to the royalty
schedule set forth on Schedule 3.3 attached hereto, and as otherwise more fully
set forth on such Schedule. Payments under this Section 3.3 shall be made within
thirty (30) days following the last day of each fiscal quarter in which RVSI has
sold any Imager Product(s) for which royalties are owed pursuant to this Section
3.3. Each royalty payment shall be accompanied by a report of RVSI setting forth
the basis upon which payments have been calculated pursuant to this Section. In
addition, RVSI shall provide Polaroid with an annual report within forty-five
days of the end of each calendar year for which RVSI was obligated to pay
royalties under this Section 3.3 (regardless of whether any royalties were
payable for such year) setting forth the total royalties paid (and payable) for
such year (indicating none if applicable) and the basis upon which such payments
were calculated pursuant to this Section.
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(b) For purposes of this Section 3.3, "Net Sales Price" shall mean
the gross income received by RVSI or its affiliates for the Imager Product(s)
sold or leased as determined in accordance with generally accepted accounting
principles (GAAP), consistently applied; provided, however, that if Imager
Product(s) are sold or leased in combination with other products, the Net Sales
Price for the Imager Product in such a case shall be computed by multiplying the
Net Sales Price of such combination product by a fraction, the numerator of
which shall be the cost of the Imager Product(s) contained in such combination
product and the denominator of which shall be the cost of the Imager Product(s)
and all other products in the combination product as determined in accordance
with generally accepted accounting principles consistently applied.
(c) In the event that RVSI obtains income by sublicensing any of the
IP Acquired Assets, such as patents, copyrights, know-how and trade secrets, to
third parties over the ten (10) year period from the date of this Agreement,
RVSI shall share such net sublicensing income equally with Polaroid on a 50/50
basis. Payments to Polaroid under this provision shall be made by RVSI on a
quarterly basis after collection by RVSI.
(d) RVSI shall keep and maintain complete and accurate books and
records regarding the sales of Imager Products in sufficient detail to enable
the payments due to Polaroid under this Section 3.3 to be determined. Polaroid
may examine such books and records (or have an examination made by a certified
public accountant of such books and records) for the purpose of verifying to
Polaroid the accuracy of RVSI's reports and royalty payments as provided herein.
Any such examination shall be conducted during RVSI's normal business hours and
in such manner as not to unduly interfere with RVSI's business. Polaroid shall
(and shall require its certified public accountants examining such books and
records) to hold in absolute confidence any information obtained during the
course of any such inspection, and neither Polaroid nor the certified public
accountant shall disclose to any other person, firm or corporation (other than
to the other) any information acquired as a result of any such inspection;
provided, however, that nothing contained herein shall be construed to prevent
Polaroid or the certified public accountant from supplying documents to or
testifying in any court, tribunal or agency of competent jurisdiction with
respect to the information obtained as a result of such examination in any
action instituted to enforce Polaroid's rights under this Agreement.
4. License to Polaroid With Regard to Certain Acquired Assets.
4.1 License. RVSI hereby grants to Polaroid a non-exclusive, worldwide
license in perpetuity to make, have made, use, sell, export or import and
practice the technology set forth on Schedule 4.1 attached hereto (the "Licensed
Technology") solely for use in the field of personal identification documents
including, without limitation, passports and identification cards such as
driver's licenses and credit cards. RVSI also grants Polaroid the right to grant
sublicenses to third parties to make, have made, use, sell, export or import and
practice the Licensed Technology for such applications.
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4.2 Royalty.
(a) Polaroid shall pay RVSI, on a quarterly basis, a royalty on the
Net Sales Price of any products which incorporate the Licensed Technology
("Licensed Technology Products") sold by Polaroid following the date of this
Agreement through and including the date that is ten (10) years from the date of
this Agreement, at such rates as shall be determined pursuant to the royalty
schedule set forth on Schedule 4.2 attached hereto, and as otherwise more fully
set forth on such Schedule. Payments under this Section 4.2 shall be made within
thirty (30) days following the last day of each fiscal quarter in which Polaroid
has sold any Licensed Technology Product(s) for which royalties are owed
pursuant to this Section 4.2. Each royalty payment shall be accompanied by a
report of Polaroid setting forth the basis upon which payments have been
calculated pursuant to this Section. In addition, Polaroid shall provide RVSI
with an annual report within forty-five days of the end of each calendar year
for which Polaroid was obligated to pay royalties under this Section 4.2
(regardless of whether any royalties were payable for such year) setting forth
the total royalties paid (and payable) for such year (indicating none if
applicable) and the basis upon which such payments were calculated pursuant to
this Section.
(b) For purposes of this Section 4.2, "Net Sales Price" shall mean
the gross income received by Polaroid or its affiliates for the Licensed
Technology Product(s) sold or leased as determined in accordance with generally
accepted accounting principles (GAAP), consistently applied; provided, however,
that if Licensed Technology Product(s) are sold or leased in combination with
other products, the Net Sales Price for the Licensed Technology Product in such
a case shall be computed by multiplying the Net Sales Price of such combination
product by a fraction, the numerator of which shall be the cost of the Licensed
Technology Product(s) contained in such combination product and the denominator
of which shall be the cost of the Licensed Technology Product(s) and all other
products in the combination product as determined in accordance with generally
accepted accounting principles consistently applied.
(c) In the event that Polaroid obtains income by sublicensing any of
the Licensed Technology to third parties over the ten (10) year period from the
date of this Agreement, Polaroid shall share such net sublicensing income
equally with RVSI on a 50/50 basis. Payments to RVSI under this provision shall
be made by Polaroid on a quarterly basis after collection by Polaroid.
(d) Polaroid shall keep and maintain complete and accurate books and
records regarding the sales of Licensed Technology Products in sufficient detail
to enable the payments due to RVSI under this Section 4.2 to be determined. RVSI
may examine such books and records (or have an examination made by a certified
public accountant of such books and records) for the purpose of verifying to
RVSI the accuracy of Polaroid's reports and royalty payments as provided herein.
Any such examination shall be conducted during Polaroid's normal business hours
and in such manner as not to unduly interfere with Polaroid's business. RVSI
shall (and shall require its certified public accountants examining such books
and records) to hold in absolute confidence any information obtained during the
course of any such inspection, and neither RVSI nor the certified public
accountant shall disclose to any other person, firm or corporation (other than
to the other) any information acquired as a result of any such inspection;
provided, however, that nothing contained herein shall be construed to prevent
RVSI or the certified public accountant from supplying documents to or
testifying in any court, tribunal or agency of competent jurisdiction with
respect to the information obtained as a result of such examination in any
action instituted to enforce RVSI's rights under this Agreement.
(e) On and after the date that is ten (10) years from the date of
this Agreement, the license granted in Section 4.1 shall become a fully-paid up
and royalty free license and the obligations of Polaroid to pay any royalties
under this Section 4.2 (other than on any Net Sales of Licensed Technology
Products completed prior to such date) shall terminate and be of no further
force and effect.
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5. The Closing
5.1 Time and Place. The Closing of the transactions contemplated by this
Agreement shall take place at the offices of Polaroid at the time that this
Agreement is signed (the "Closing") or at such other place, date or time that
Polaroid and RVSI may agree.
5.2 Transactions at Closing. At the Closing:
(a) Polaroid shall duly execute and deliver to RVSI such deeds,
certificates, titles and other instruments of assignment and transfer with
respect to the Acquired Assets as RVSI may reasonably request and as may be
necessary to vest in RVSI good and marketable title to all of the Acquired
Assets, in each case free of all restrictions, liens, claims and encumbrances of
any kind or nature whatsoever, including without limitation a Patent Assignment
substantially in the form of Exhibit C attached hereto.
(b) Polaroid shall deliver or cause to be delivered to RVSI all of
the contracts and agreements of Polaroid included in the Acquired Assets, with
such assignments thereof and consents to assignments as are necessary to assure
RVSI of the full benefit of the same, and all of the business records, books and
records of Polaroid relating to the Acquired Assets.
(c) RVSI shall execute and deliver the Note to Polaroid
substantially in the Form of Exhibit A attached hereto.
(d) RVSI shall execute and deliver to Polaroid the Registration
Rights Agreement substantially in the form of Exhibit B attached hereto.
6. Representations and Warranties of Polaroid
Except as may be otherwise set forth on a schedule to this Agreement,
Polaroid represents and warrants to RVSI as follows:
6.1 Organization, Power and Standing. Polaroid is a corporation duly
organized, validly existing and in good standing under the laws of Delaware with
all requisite power and authority to own its properties and assets and to carry
on its business as such business is now conducted.
6.2 No Required Consents. No consents, approvals, authorization,
declaration or filing, including without limitation any consent, approval or
authorization of or declaration or filing with any governmental authority or any
other person or entity is required on the part of Polaroid in connection with
the execution and delivery of this Agreement and the Registration Rights
Agreement, the sale of the Acquired Assets or the transactions provided for
herein.
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6.3 Power and Authority. Polaroid has full power and authority and has
taken all required action necessary to permit it to execute and deliver this
Agreement and the Registration Rights Agreement, to perform all of its
obligations contained herein and therein and to carry out the transactions
contemplated hereby and thereby, and none of such actions will violate any
provisions of the charter or By-laws of Polaroid or violate, or be in conflict
with, or constitute a default (or an event which, with notice or lapse of
time or both, would constitute a default) under, or result in the termination
of, or accelerate the performance required by, or cause the acceleration of the
maturity of any debt or obligation pursuant to, or result in the creation or
imposition of any security interest, lien or other encumbrance upon the Acquired
Assets under any agreement, mortgage, instrument, commitment order or judgment
known to Polaroid to which Polaroid is a party or by which it may be bound, or
to which the properties of Polaroid are subject, or violate any statute or law,
or any judgment, decree, order, regulation or rule of any court or governmental
authority. Polaroid is not now insolvent and the performance of its obligations
under this Agreement will not render Polaroid insolvent or result in a
fraudulent conveyance or transfer under any applicable law relating to
bankruptcy or insolvency.
6.4 Valid and Binding Obligation. This Agreement and the Registration
Rights Agreement have been duly authorized by all necessary corporate action on
the part of Polaroid and constitute, and each other instrument or agreement to
be executed and delivered by Polaroid in accordance herewith or therewith will
constitute, the valid and binding agreement of Polaroid, enforceable against
Polaroid in accordance with its respective terms except that (i) such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights,
and (ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
6.5 No Contracts or Obligations Affecting Acquired Assets. Polaroid has
not entered into any contract, license agreement, lease or any other agreement
which materially or adversely affects the rights of RVSI described in this
Agreement.
6.6 Rights and Interests in the Acquired Assets. Polaroid has good, valid
and marketable rights and interests in all of the Non-IP Acquired Assets.
6.6.1 Pursuant to this Agreement, Polaroid will transfer and assign
the Non-IP Acquired Assets to RVSI free of all restrictions, liens, claims and
encumbrances of any kind or nature whatsoever. No third party is owed any fee,
royalty or other payment with respect to any of the Non-IP Acquired Assets.
Pursuant to this Agreement, Polaroid will transfer all of Polaroid's right,
title and interest in and to the IP Acquired Assets.
6.6.2 Polaroid has complete and unrestricted power and the full and
unqualified right to transfer, sell, assign and convey each and all of the
Non-IP Acquired Assets pursuant hereto together with all rights, title and
interests thereto without the consent of any other person or party and free and
clear of all title defects or objections, liens, claims, mortgages, security
interests, pledges, conditional sales or other title retention agreements,
leases, charges, restrictions against transfer or assignment, and encumbrances,
whatsoever (including without limitation any licenses or distribution rights).
6.6.3 Any bills of sales, deeds, endorsements, assignments and other
instruments executed and delivered by Polaroid will be valid and binding
obligations of Polaroid, enforceable in accordance with their terms, and will
effectively vest in RVSI all of Polaroid's rights and interests in all of the
Acquired Assets.
6.7 No Brokers. No finder, broker, agent, or other intermediary has acted
for or on behalf of Polaroid in connection with the negotiation or consummation
of the transactions contemplated by this Agreement.
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Except for the representations and warranties of Polaroid explicitly set
forth in this Agreement by Polaroid, RVSI acknowledges and agrees that the
Acquired Assets are being conveyed and sold to RVSI on an "as is, where is"
basis, without any representations and warranties and EXCEPT AS EXPRESSLY STATED
IN THIS AGREEMENT, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF
LAW OR OTHERWISE, REGARDING OR RELATING TO THE ACQUIRED ASSETS. POLAROID
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
ANY PURPOSE.
7. Representations and Warranties of RVSI
Except as may be otherwise set forth on a schedule to this Agreement, RVSI
represents and warrants to Polaroid as follows:
7.1 Organization, Power and Standing. RVSI is a corporation duly
organized, validly existing and in good standing under the laws of Delaware with
all requisite power and authority to own its properties and assets and to carry
on its business as such business is now conducted.
7.2 No Required Consents. No consents, approvals, authorization,
declaration or filing, including without limitation any consent, approval or
authorization of or declaration or filing with any governmental authority or any
other person or entity is required on the part of RVSI in connection with the
execution and delivery of this Agreement, the Registration Rights Agreement, the
Note, the license to Polaroid of the Licensed Technology or the transactions
provided for herein.
7.3 Power and Authority. RVSI has full power and authority and has taken
all required action necessary to permit it to execute and deliver this
Agreement, the Registration Rights Agreement, and the Note, to perform all of
its obligations contained herein and therein and to carry out the transactions
contemplated hereby and thereby, and none of such actions will violate any
provisions of the charter or By-laws of RVSI or violate, or be in conflict with,
or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or cause the acceleration of the
maturity of any debt or obligation pursuant to, or result in the creation or
imposition of any security interest, lien or other encumbrance under any
agreement, mortgage, instrument, commitment order or judgment known to RVSI to
which RVSI is a party or by which it may be bound, or to which the properties of
RVSI are subject, or violate any statute or law or any judgment, decree, order,
regulation or rule of any court or governmental authority. RVSI is not now
insolvent and the performance of its obligations under this Agreement, the
Registration Rights Agreement or the Note will not render RVSI insolvent or
result in a fraudulent conveyance or transfer under any applicable law relating
to bankruptcy or insolvency.
7.4 Valid and Binding Obligation. This Agreement, the Registration Rights
Agreement and the Note have been duly authorized by all necessary corporate
action on the part of RVSI and constitute, and each other instrument or
agreement to be executed and delivered by RVSI in accordance herewith or
therewith will constitute, the valid and binding agreement of RVSI, enforceable
against RVSI in accordance with its respective terms except that (i) such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights,
and (ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
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7.5 No Contracts or Obligations Affecting Licensed Technology. RVSI has
not entered into any contract, license agreement, lease or any other agreement
which materially or adversely affects the rights of Polaroid to the Licensed
Technology pursuant to Section 4 of this Agreement.
7.6 No Brokers. No finder, broker, agent, or other intermediary has acted
for or on behalf of Polaroid in connection with the negotiation or consummation
of the transactions contemplated by this Agreement.
7.7 Reservation of Stock. For so long as amounts under the Note remain
outstanding and unpaid, RVSI shall reserve and maintain a sufficient number of
shares of its Common Stock for issuance upon conversion of all outstanding
principal and accrued but unpaid interest under the Note.
Except for the representations and warranties of RVSI explicitly set forth
in this Agreement by RVSI, Polaroid acknowledges and agrees that the Licensed
Technology is being licensed to Polaroid on an "as is, where is" basis, without
any representations and warranties and EXCEPT AS EXPRESSLY STATED IN THIS
AGREEMENT, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR
OTHERWISE, REGARDING OR RELATING TO THE LICENSED TECHNOLOGY. RVSI SPECIFICALLY
DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PURPOSE.
8. Additional Representations and Covenants
8.1 Covenant of Further Assurances. Subject to the provisions of Section
8.3 herein, Polaroid shall, from time to time following the Closing, upon the
reasonable request of RVSI and without further cost or expense to RVSI, execute,
acknowledge, seal and deliver all such instruments and documents of conveyance
and transfer, and do all such further things as RVSI may reasonably request to
perfect the transfer and delivery to RVSI of all of the rights and interests in
the Acquired Assets and to more effectively consummate the transactions
contemplated hereby. RVSI shall, from time to time following the Closing, upon
the reasonable request of Polaroid and without further cost or expense to
Polaroid, execute, acknowledge, seal and deliver all such agreements,
instruments and documents, and do all such further things as Polaroid may
reasonably request to perfect the license of the Licensed Technology to Polaroid
or to effect or perfect any permitted sublicense by Polaroid of any Licensed
Technology to a third party and to more effectively consummate the transactions
contemplated hereby.
8.2 Recordation. RVSI shall be responsible, at its sole cost and expense,
for the preparation, legalization and recording of any documents and for
obtaining any third party or governmental approvals or consents which may be
necessary to effect and record the assignment or transfer of Acquired Assets
under this Agreement.
9. Tax Treatment
Polaroid and RVSI shall treat and report the transactions contemplated by
this Agreement in all respects consistently for purposes of any federal, state
or local tax, including without limitation with respect to calculation of gain,
loss and basis. The parties hereto shall not take any actions or positions
inconsistent with the obligations set forth herein. To the extent required, both
RVSI and Polaroid agree to file with the Internal Revenue Service an IRS Form
8594 (Asset Acquisition Statement under Section 1060) with respect to the
acquisition by RVSI of the Acquired Assets, with their respective federal income
tax returns for the 1999 tax year.
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10. Indemnification
10.1 Indemnification by Polaroid. Polaroid shall indemnify and hold
harmless RVSI and its officers, directors, employees, agents, representatives,
advisors and consultants against any judgments, claims, demands, assessments,
damages, liabilities, losses and expenses (including without limitation
settlement costs and reasonable legal or other expenses for investigating,
bringing or defending any actions or threatened actions) of any kind or nature
whatsoever which may be sustained or suffered by RVSI (i) as a result of any
breach of or falsity in any material respect as to any of the representations,
warranties, covenants or agreements of Polaroid contained herein or provided
pursuant hereto, or (ii) as to any claim based on or growing out of the Acquired
Assets prior to the Closing the liability for which is not expressly assumed by
RVSI hereunder.
10.2 Indemnification by RVSI. RVSI shall indemnify and hold harmless
Polaroid and its officers, directors, employees, agents, representatives,
advisors and consultants against any judgments, claims, demands, assessments,
damages, liabilities, losses and expenses (including without limitation
settlement costs and reasonable legal or other expenses for investigating,
bringing or defending any actions or threatened actions) of any kind or nature
whatsoever which may be sustained or suffered by Polaroid (i) as a result of any
breach of or falsity in any material respect as to any of the representations,
warranties, covenants or agreements of RVSI contained herein or provided
pursuant hereto, or (ii) as to any claim based on or growing out of the Acquired
Assets after the Closing the liability for which is not retained by Polaroid
hereunder.
10.3 Notice; Defense of Claims. The indemnified party shall give written
notice to the indemnifying party of each claim for indemnification hereunder,
specifying the amount, if known, and the nature of the claim. The indemnifying
party may participate, at its expense, in the defense of any such matter or its
settlement and may review all settlements as to which there may be a claim for
indemnification, or, if authorized by the indemnified party, the indemnifying
party (if it so desires) may take over the defense of such matter with counsel
reasonably acceptable to the indemnified party so long as such defense is
competent and expeditious. At no expense to the indemnified party, the
indemnified party shall make available to the indemnifying party such
information as may be necessary to participate in such defense. Failure to give
notice of a matter which may give rise to an indemnification claim shall not
affect the rights of the indemnified party to indemnification from the
indemnifying party.
10.4 Limitation on Liabilities. Notwithstanding the foregoing, no
indemnification obligations shall be owing unless and until the total liability
relating to such indemnification obligations exceeds $25,000, with any amounts
equal to or less than such $25,000 to be treated as a deductible payable by the
indemnified party. In no event shall the liability of either Polaroid or RVSI
under this Section 10 exceed the total of the Purchase Price and any payments,
actual or payable, under Section 3 herein. The indemnified party may offset any
payment obligations to the indemnifying party against any indemnification
obligations owed to it by the indemnifying party.
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11. Miscellaneous
11.1 Survival of Representations, Warranties and Covenants.
Notwithstanding any investigation conducted before or after the Closing and
notwithstanding any actual or implied knowledge or notice of any fact or
circumstance which RVSI or Polaroid may have as a result of such investigation
or otherwise, each of RVSI and Polaroid shall be entitled to rely upon the
representations, warranties and covenants of the other in this Agreement, and
each of the representations, warranties and covenants contained in this
Agreement or made in connection with the Closing hereunder shall survive the
Closing for a period of six (6) months.
11.2 Amendments, Waiver By Written Instrument. This Agreement may be
amended, modified or supplemented, and any obligations hereunder may be waived,
only by a written instrument executed by the party against which enforcement is
sought. The waiver by either party hereto of a breach of any provisions of this
Agreement shall not operate as a waiver of any subsequent breach. No failure on
the part of either party to exercise, and no delay in exercising, any right or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or remedy by such party preclude any other or
further exercise thereof or the exercise of any right or remedy. All rights and
remedies hereunder are cumulative and are not exclusive of any rights and
remedies provided by law.
11.3 Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be delivered by hand, sent via a reputable nationwide overnight courier
service or mailed by first class certified or registered mail, return receipt
requested, postage prepaid: (i) if to Polaroid, to the address set forth at the
beginning of this Agreement, Attention: Xxxx Xxxxxx, Corporate Counsel, and (ii)
if to RVSI, to the address set forth at the beginning of this Agreement,
Attention: Xxxxxx Xxxxx, or to such other address as Polaroid or RVSI shall have
specified by notice in writing. Notices provided in accordance with this Section
11.3 shall be deemed delivered upon personal delivery, one business day after
being sent via reputable nationwide overnight courier service, or two business
days after deposit in the mail.
11.4 Expenses. Each party hereto shall pay its own expenses and taxes in
connection with the transactions contemplated hereby.
11.5 Integration. This Agreement (including all exhibits and schedules
hereto) constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
whether written or oral, between the parties in connection with such subject
matter. This Agreement shall inure to the benefit of, and be binding upon, the
parties hereto and their respective legal representatives, successors and
permitted assigns.
11.6 Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the substantive laws of The Commonwealth of
Massachusetts.
11.7 Severabilty. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provisions in any other jurisdiction.
11.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
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11.9 Assignment. This Agreement may not be assigned by either party
without the prior written consent of the other; provided, however, that either
party may, without the consent of the other, assign its rights hereunder (i) to
any of its affiliates and (ii) in the event of the acquisition of the assigning
party or of all or any part of any product line or division using or
contemplating the use of, in the case of RVSI, the Acquired Assets, or in the
case of Polaroid, the Licensed Technology, to the person or entity acquiring the
assigning party or such product line or division.
11.10 Public Announcements. Polaroid and RVSI shall coordinate and work
with each other with regard to the timing and content of any public releases
regarding this Agreement and the transactions contemplated thereby. Neither
party shall make any public announcement or release without the prior consent of
the other; provided, however, that such consent (i) shall not be unreasonably
withheld, and (ii) shall be deemed to be given by and at the date of any
required disclosure or filing under the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, any applicable state securities
laws and any rules and regulations promulgated under any of them, in the event
no response is received provided that the party seeking consent shall have made
its best efforts to request such consent a reasonable period of time before such
date.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Agreement as an agreement under seal as of the date first above written.
Polaroid Corporation Robotic Vision Systems, Inc.
By: /s/ Xxxxxxx X. X'Xxxxx, Xx. By: /s/ Xxxxxx Xxxxx
_______________________________ _________________________________
Name: Xxxxxxx X. X'Xxxxx, Xx. Name: Xxxxxx Xxxxx
Title: Executive Vice President Title: Vice President
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SCHEDULE 2.1(a)
IMAGER PATENTS
IN
IP ACQUIRED ASSETS
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APPLICATION
INTERNAL SERIAL NO. FILING TITLE STATUS
DOCKET NO. OR DATE
PATENT NO.
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C-8355 09/156,483 9/11/98 Multi-Modally Grippable Device and Method of Use Pending
Polaroid
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C-356DES 29/093,498 9/11/98 Hand-Held Imager - Design Application Pending
Polaroid
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C-8357 09/152,229 9/11/98 Optical Focusing Device and Method Pending
Polaroid
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C-8361 09/151,496 9/11/98 Variable Focus Optical System Pending
Polaroid
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C-8374 09/226,980 1/8/99 Electrochemical Marking Stencil, Method and System Pending
Polaroid
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RVCI-002 09/151,766 9/11/98 Symbology Imaging and Reading Apparatus and Method Pending
RVSI
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