Exhibit 2.(i)
ASSET PURCHASE AGREEMENT
WORLD WIRELESS COMMUNICATIONS, INC.
ASYST, INC.
TRANSACTION DOCUMENTS
Snow, ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone (▇▇▇)▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
April 28, 1997
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
VP Mergers & Acquisitions
World Wireless Communications, Inc.,
Re: Letter of Intent for the acquisition of Asyst Corporation
Dear ▇▇▇▇:
We are in receipt of your proposed Letter of Intent dated April 15,
1997, have reviewed the same, and provide you with this alternate letter of
intent which shall serve as our counterproposal relative to the terms and
conditions of World Wireless Communications, Inc.'s (WWC) acquisition of Asyst
Corporation (Asyst). The acquisition of Asyst by WWC would be in the form of a
tax-free merger, the final form of which has not been established as of this
date. It will be accomplished so as to maximize the return to the Asyst
shareholders and also to meet the requirements of WWC and Asyst for their SEC
and tax requirements. The following, terms and conditions will make up the
major points of a formal agreement to be written by WWC's attorney within 10
days of the acceptance of this letter of intent.
Terms and Conditions
1 . In a tax-free exchange, WWC will exchange 30,000 shares of its
common stock for all of the common stock of Asyst, provided, however, that WWC
will Guarantee that at the time of closing, the 30,000 shares of its common
stock will have a fair market value (calculated by multiplying the number
of shares (30,000) BV the average of the ask and bid over-the-counter price
per share as of the date this agreement is signed and Asyst's major shareholders
provide to WWC their irrevocable proxies in favor of the transaction as set
forth in paragraph 5 below) equal to at least $300,000, such that if the fair
market value thereof is less (calculated as set forth above), WWC will add
shares as necessary to bring the fair market value of the WWC shares offered to
$300,000. In addition, the final form of the merger and overall acquisition
transaction shall incorporate such other provisions as may be necessary to
ensure that the interests of the Asyst shareholders are adequately protected.
2. ▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ will enter into consulting
agreements with WWC for which ▇▇▇ ▇▇▇▇ will be paid compensation in the form of
2,500 shares of WWC stock and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ will be paid compensation in
the form of 300 shares of WWC stock. In addition, WWC will deliver another
2,200 shares of WWC stock to ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ in payment of Asyst's
outstanding rental obligation to him. These agreements will be formalized in
writing), with such additional terms as are mutually agreeable to the parties
before the transaction can be completed.
3. WWC agrees to pay to Asyst's officers at closing, the sum of
$35,000 in cash, to retire Asyst's salary and compensation obligations owed to
Asyst's officers in the approximate total amount of $110,000. To the extent
that the WWC/Asyst merger is consummated on a tax-free basis as contemplated,
Asyst shall procure a release and waiver from its officers for any amounts
owed in excess of the $45,000 (the difference between $45,000 and $55,000
will be paid to the Asyst officers out of Asyst cash on hand).
4. Asyst will permit WWC to market its products during, the time
needed for the transaction to be completed. If any sales are Generated and the
transaction is not completed, Asyst will have to WWC an exclusive sales contract
to market it's products for which Asyst will be paid a reasonable royalty. WWC
will agree to pay a reasonable sales commission to Asyst.
5. Asyst will cause its major shareholders (▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇) to deliver to WWC within 5 days of the parties' execution of this
agreement, an irrevocable proxy in a form agreeable to the parties and their
legal counsel, wherein such major shareholders irrevocably appoint WWC their
proxy for voting their interests in any Asyst shareholder meeting called to
consider the transaction and matters related thereto.
6. Failure by WWC to perform within the time periods set forth
herein shall terminate this agreement and excuse any further performance on
Asyst's part.
7. All of the above is subject to the satisfactory due diligence of
both parties and the approval of their respective boards of directors and
shareholders.
8. The closing of the tax-free merger will take place as soon as
possible and in all events, within 60 days of the signing of this agreement.
Although the above terms and conditions are not all inclusive they are enough to
establish a base to which a formal contract can be written. If the above is in
accordance with our mutual understanding, Asyst would appreciate an acceptance
below by April 21, 1997.
Very truly yours,
ASYST, CORPORATION
/s/▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇
President
ACCEPTED AND AGREED TO this 28th day of April, 1997.
WORLD WIRELESS
COMMUNICATIONS, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
VP Mergers & Acquisitions
ASSET PURCHASE AGREEMENT
This AGREEMENT is made and entered into as of May 15, 1998, ("Effective
Date") between World Wireless Communications, Inc., ("WWC" or "Buyer"), a
Nevada corporation with its principal place of business at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and Asyst, Inc.,
("Asyst" or "Seller"), a Utah corporation with its principal place of
business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇
Recitals:
A. Asyst holds certain proprietary and intellectual property rights
in and to certain spread spectrum radio technology which is currently
licensed exclusively to WWC, and which it is willing to sell and convey to
WWC. Together with certain ownership interest in Asyst, in exchange for
certain restricted common stock; in WWC.
B. WWC desires to acquire ownership of the Asyst spread spectrum
radio technology, together with all rights, title and interest in and to all
related intellectual property rights, and, subject to the terms and conditions
herein, is further willing to advance to Asyst certain funds necessary to
permit Asyst to retire certain business debt and to satisfy certain operating
expenses, in consideration of certain stock in Asyst.
NOW, THEREFORE, in consideration of the promises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein, Seller and Buyer hereby agree as follows:
1. Defined Terms
Capitalized terms in this Agreement have the meaning stated below or
defined elsewhere in this Agreement. A reference to a particular Exhibit is
to an Exhibit to this Agreement, and each Exhibit is incorporated into and
made a part of this Agreement by that reference.
1.1 Build Environment shall mean any and all devices, codes
(source and binary), Documentation, media or development tools (including
compilers, workbenches, tools, and higher-level or proprietary languages) that
have been used in, or are useful for, the development, maintenance or
implementation of the Products and Related Technology acquired by WWC
hereunder
1.2 Closing and Closing Date shall mean the event and date upon
which this Agreement is executed by the parties, following any and
all necessary stockholder approval, and the date upon which or, if
specifically stated, after which all documents and payments
identified herein shall be delivered and exchanged between the
parties set forth below.
1.3 Documentation shall mean all engineering notebooks,
schematics, diagrams, software, user manuals and other written materials or
machine-readable text and/or graphics that relate to the Products conveyed
hereby and are either owned currently by Seller, and all marketing collateral
relating, in any fashion to the Products, including, to the extent they may
exist, (i) all sales and sales promotional data, (ii) advertising materials,
(iii) all customer lists, registration databases, technical support databases
and other related files and databases pertaining to said Products.
Unless otherwise agreed between the parties, database lists shall be
furnished in a delimited ASCII format.
1.4 Intellectual Property shall mean all marks, copyrights
and trade secrets, proprietary information, processes and formulae and all
other intellectual property rights of any kind or nature in the Products,
including, all Documentation and all Related Technology.
1.5 Products shall mean all tangible and intangible product,
including all components, hardware and programming software, comprising that
certain spread spectrum radio commonly referred to by the Company as the SRL-
100 Spread Spectrum Transceiver." Product Code shall mean the computer
programming code (binary and source) for the Products or any circuit or
programmable processor included or incorporated into the Products.
1.6 Purchased Assets shall mean Products, all inventory of completed
Products and components, the Build Environment, Related Technology,
Documentation, and Intellectual Property, all as defined in this section 1,
together with all additional assets and tangible property identified as
Exhibit "A".
1.7 Related Technologv shall mean, to the extent owned by Seller or
comprised of Third-Party Materials licensed to Seller as of the Closing, all
existing technology authored, discovered, developed, made perfected, improved,
designed, engineered, devised, acquired, produced, conceived or first reduced
to practice by Seller, or any of its employees or contractors in the scope of
their employment or in association with them for the development of the
Products, that is necessary to the performance by the Products of their
intended functions or purposes, whether tangible or intangible, in any stage
of development. Related Technology shall include, without limiting or
expanding the foregoing, (a) any existing enhancements, designs, technology,
improvements, inventions, works of authorship, trade secrets, formulas,
processes, routines, subroutines, techniques, concepts, methods, ideas,
algorithms, source code, object code, flow charts, diagrams, circuit drawings
and annotations, programmers' notes, work papers, and work product; (b) any
existing documentation, development tools and associated documentation; and
(c) all rights of any kind in or to any of the foregoing, including, without
limitation, all proprietary rights and trade secrets and copyrights (whether
pending, applied for or issued) for the Products, regardless of whether any or
all of the foregoing constitutes copyrightable subject matter.
1.8 Statements or representations made "to the best knowledge and
belief' of 'a party, or terms of similar effect, shall mean to state that
the relevant party shall have conducted, or caused is officers, employees or
agents to conduct, an investigation within its own company as may be
reasonable and prudent under the circumstances and that, after such
investigation, no facts have come to the attention of the relevant party that
would cause the relevant party to reasonably conclude that the facts as to
which such best knowledge and belief are asserted contain any material
misstatement or omission. The obligation to investigate shall not require the
relevant party to inquire beyond its own current employees or its existing
company files and records.
2. Sale of Assets and Stock
2.1 Assets To Be Transferred. Effective upon the Closing Date, Seller
shall sell, assign and transfer to Buyer, and Buyer shall purchase from
Seller all of Seller's right, title and interest in and to all Purchased
Assets as defined above.
2.2 Instruments of Conveyance. In order to effectuate the sale,
assignment, transfer and conveyance contemplated by this Section 2,
Sellers will execute and deliver at the Closing, and thereafter as may be
reasonably required, dated as of the Closing Date' as defined in section 5
below, (1) a ▇▇▇▇ of Sale and assignment in form attached at Exhibit "B" and (2)
all other documents reasonably necessary to vest in or confirm to WWC good and
marketable title to the Purchased Assets and to transfer to Buyer possession
and use of the Purchased Assets.
3. Consideration for Purchase
3.1 Purchase Price. In consideration for and as the "Purchase Price"
of Seller's transfer and sale to Buyer of the Purchased Assets WWC shall and
does hereby transfer and convey to Asyst shares of restricted common stock of
WWC to be held or distributed as Asyst's directors may determine to be
appropriate.
3.1.1 It is acknowledged by both parties that THE SHARES OF WORLD
WIRELESS STOCK CONVEYED IN CONNECTION HEREWITH WILL NOT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND NO SALE OR DISPOSITION
THEREOF MAY BE MADE WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO OR AN OPINION OF COUNSEL FOR THE HOLDER, SATISFACTORY TO WORLD
WIRELESS COMMUNICATIONS, INC., THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
THE ACT OR RECEIPT OF A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE
COMMISSION.
3.2 Additional Agreement to Loan Funds. In addition to the
foregoing, WWC has agreed to loan to Asyst up to 563,000 to retire certain
business debt and to satisfy certain operating expenses, as the parties may
agree. Asyst shall execute an unsecured promissory note, in form attached at
Exhibit "E" under which it shall agree to repay said loan on WWC's demand,
which demand shall be withheld until the earlier of (1) registration of the
restricted shares of WWC stock transferred to Asyst hereunder in consideration
for the Purchased Assets
or (2) expiration of one year from the date of WWC's transfer of said stock to
Asyst. Interest on funds actually advanced shall accrue at the annual rate of
10% from the date(s) of advance to the date of repayment, with no prepayment
penalty. In exchange for and in consideration of said loan, and in lieu of a
cash loan origination fee, Asyst shall cause to be transferred to WWC 20,000
shares of new common stock of Asyst, restructured after a capital
Reorganization and reverse stock split authorized by Asyst shareholders at a
special shareholders meeting held on May 7, 1998. Although there is neither
an agreement nor a current plan by Asyst to distribute to Asyst shareholders
any portion of the WWC stock to be conveyed to Asyst as provided in
paragraph 3.1 above, in the event that the Asyst Board, in its absolute
discretion, determines at some time to distribute said stock; or proceeds
thereof among shareholders existing at that time, WWC hereby agrees to waive
rights to participate in an) such distribution. The Asyst stock transferred to
WWC shall be restricted stock issued pursuant to SEC Rule 144 and subject to
the limitations and restrictions on resale under that Rule. However, WWC
shall have "piggyback" rights to register said stock; upon registration of
any other Asyst common stock.
4. Limited Assumption of Obligations
4.1 Product-Related Liabilities. Buyer hereby assumes all liabilities
and obligations relating to the Purchased Assets arising from and after the
Closing Date. As to liabilities and obligations arising, prior to the Closing
Date, Buyer assumes only such liabilities of Seller as relate specifically to
the Purchased Assets and related technology and component inventory, and only
to the extent and upon the express precondition that such liabilities are
disclosed and identified at Exhibit "C" hereto and not otherwise acknowledged
on Exhibit ' C" as satisfied at closing. Obligations listed on said Exhibit
"C" as owing to ▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ will be satisfied at
closing by cash payment of 517,500 to each, from funds loaned to Asyst by
WWC pursuant to paragraph 3.3 above, and by the transfer of 7,900 shares
of restricted WWC common stock; to ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇. Any obligation or
liability not specifically thus disclosed or satisfied at closing shall
remain the sole liability and responsibility of Seller.
4.2 Liabilities Not Assumed. Except for liabilities and obligations
specifically acknowledged and described in paragraph 4.1 above, Buyer does
not assume and shall not be deemed to assume or in any way to be liable
for any liabilities of any sort existing or otherwise incurred by Seller up
to the Closing Date, including specifically but not limited to tax liabilities,
liability for violations of law, employee liabilities, claims or liabilities
relative to damage or injuries beyond the warranties granted to customers by
Seller' any litigation pending or threatened against Seller, and any
improperly recorded liabilities under generally accepted accounting
principles. All liabilities not expressly assumed by Buyer shall be
paid by the individual or entity responsible therefor, w which individual or
entity further hereby agrees to indemnify and hold Buyer harmless against
all such liabilities, including any liability not expressly assumed which
may be imposed as a matter of law.
5. Closing Date and Delivery
5.1 Closing Date. The closing of this Agreement shall be held at
Buyer's of offices at 1 00 PM. on May 8, 1995, or at such other time and
place upon which the parties hereto shall agree.
5.2 Delivery of Instruments and Pavement. The following are to be
satisfied at the Closing:
(a) Seller shall execute and deliver to Buyer (i) original and
fully-executed bills of sale, together with all other documents
reasonably required to vest in WWC as of the Closing Date all of Seller's
rights, title and interest in and to the Purchased Assets and as may be
required to transfer possession and use of the Purchased Assets; (ii) a true,
correct and complete copy of all software included in the Purchased Assets;
(iii) the originals and all copies of all Documentation; (iv)the originals and
all copies of all documentation, including specifically but not limited to all
engineering notes, notebooks, drawings and computer databases; (v) a true and
correct copy of or list describing the complete Build Environment for the
Products; and (vi) true and correct copies of all other documents specified
and required to be delivered by Seller at Closing. If, after the Closing Date,
Seller discovers any of the foregoing items, Seller shall promptly deliver
the same to WWC without risking default under this Agreement.
(b) Buyer shall execute or cause to be executed by all necessary
officers and shall deliver to Seller an original stock certificate
representing the shares of WWC restricted common stock which are part of the
Purchase
Price hereunder, and shall further issue to Seller a receipt acknowledging
satisfaction and payment in full of all monetary debts and obligations for
advances to Seller of monies and professional services prior to the Closing
Date, in accordance with Section 3.1 hereof.
5.3 Necessary Action After Closing: The parties shall deliver or
cause to be delivered to one another such other instruments and documents as
may be necessary or appropriate to evidence the proper execution, delivery
and performance of this Agreement. If, at any time after the Closing
Date, any further action is necessary or appropriate to carry out the purposes
of this Agreement, the panics shall take all such lawful action. All revenue
received by Seller or otherwise generated in connection with the manufacture
or sale of the Products or Related Technology, including all license fees or
royalties, from whatever source, shall, from and after the Closing Date, belong
to Buyer, whether or not formal assignments of contracts under or in
connection with which such revenues arise shall have been effected as of the
date of any such revenue receipt. Any and all payments directed to or otherwise
received by Seller for sales, fees or other business arising from and after the
Date of Closing shall thus be promptly transferred and accounted to Buyer.
6. Indemnification.
6.1 Indemnification by Asyst. Asyst and ▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, as current of occurs and principal shareholders, shall indemnify,
defend and hold harmless WWC, its successors and assigns, together with the
officers, directors, agents and employees of each, at and any time after the
Closing, from and against any and all demands, claims, actions or causes of
action, assessments, losses, damages, liabilities, costs and expenses,
including reasonable fees and expenses of counsel, other expenses of
investigation, handling, and litigation, and settlement amounts, together
with interest and penalties asserted against, resulting to, imposed upon,
or incurred by WWC and the other persons and entities so indemnified,
directly or indirectly, by reason of, resulting from or arising in connection
with any of the following: (a) any breach by Seller of any representation,
warranty or agreement of Seller contained in or made pursuant to this Agreement
or any other agreements or instruments to be executed and delivered in
connection with the transactions contemplated hereby; or (b) any Seller
liability not expressly assumed by WWC under section 4 above; (c) any failure by
the Company to obtain required government, shareholder and contract consents,
any failure to comply with "bulk sales" or similar laws relating to notices to
creditors except for claims associated with those liabilities expressly
assumed by WWC.
6.2 Indemnification by WWC. WWC shall indemnify, defend and hold
harmless Asyst, its successors and assigns, together with the officers,
directors, agents and employees of each, at and any time after the Closing,
from and against any and all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, costs and expenses, including
reasonable fees and expenses of counsel, other expenses of investigation,
handling, and litigation, and settlement amounts, together with interest and
penalties asserted against, resulting to, imposed upon, or incurred by WWC
and the other persons and entities so indemnified, directly or indirectly, by
reason of, resulting from or arising in connection with any of the following:
(a) any breach of any representation, warranty or agreement of Buyer contained
in or made pursuant to this Agreement or any other agreements or instruments
to be executed and delivered in connection with the transactions contemplated
hereby; or (b) any of the liabilities or obligations assumed under section 4
above.
6.3 Notice of Claim. The party entitled to indemnification under
this Section 5 (the Claimant") shall promptly deliver to the party liable
for such indemnification (the "Obligor") notice in writing of any claim for
recovery hereunder, specifying in reasonable detail the nature of the
threatened loss or exposure and, if known, the amount or an estimate of the
amount of the liability arising therefrom. The Claimant shall provide to the
Obligor as promptly as practicable thereafter information and documentation
reasonably requested by the Obligor to support and verify the claim asserted,
provided that, in so doing, it may restrict or condition and disclosure in
the interest of preserving privileges of importance in any foreseeable
litigation. There is no contractual limitation on the period within which the
Company may notify WWC of any claim for indemnification. Any notice by WWC
seeking indemnification from the Company or its individual indemnitors must be
made before the end of two years after the Closing Date, provided that there is
no limitation on the time during which indemnification may be sought or
obtained by WWC for (1) losses based on excluded liabilities, (2) any breach
of any covenant or agreement of future performance of the Company or major
shareholders other than those relative to
representations and warranties of the parties, and (3) any instance of fraud
or any willful breach by the Company of any provision of the Purchase
Agreement. Furthermore, WWC may seek indemnification for up to five
years from the Closing Date relative to the Company's representations and
warranties relative to the obtaining of shareholder approval of the Purchase
Agreement, the Company's marketable title to the technology and other assets
being sold to WWC, the Company's title to its intellectual property, and
matters relative thereto, the existence or absence of third-party components
in the Company's spread-spectrum digital radio technology, the existence of
third-party interests or marketing rights in systems, any litigation, claim,
action, suit, and the like pending or threatened against the Company,
environmental compliance issues as to the Company, taxes, or brokers or
finders fees.
6.4 Defense. If Obligor assumes the defense or the prosecution of
any Claim, including the employment of counsel, consultants or accountants,
Obligor shall do so at its own cost and expense. The Claimant shall have the
right to employ counsel separate from counsel employed by the Obligor in any
such action and to participate therein, but Claimant alone shall be
responsible for the fees and expenses of such separate counsel. The Claimant
shall have the right to determine and adopt (or, in the case of a proposal by
the Obligor to approve) a settlement of such matter in its reasonable
discretion, except that Claimant need not consent to any settlement that (a)
imposes any nonmonetary obligation or (b) Obligor agrees to pay in full.
Obligor shall not be liable for any settlement effected without its prior
written consent, which shall not be unreasonably withheld. Whether or not the
Obligor elects to defend or prosecute such claims, all parties hereto shall
cooperate in the defense thereof and shall furnish such records, information
and testimony, and attend such conferences, discovery proceedings, hearings,
trials, and appeals as may be reasonably requested in connection therewith.
7. Covenant and Obligation Not to Compete. As part of the inducement to WWC
to enter into this Agreement, and in separate consideration for the Purchase
Price paid or to be paid for the Purchased Assets, Seller and ▇▇▇ ▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, as officers and principal shareholders of Seller
("Principals"), hereby agree as follows:
7.1 Seller and Principals shall not compete with WWC by engaging in
any line of business that involves the manufacture, sale, distribution or
marketing of spread-spectrum radios or related technology or of any product
that is also manufactured, sold, distributed or marketed by WWC, nor shall
Seller and Principals provide services, whether as of officers, directors,
employees or consultants, paid or unpaid, for or with any company or
enterprise which competes with WWC in the manufacture, sale, distribution or
marketing products.
7.2 This obligation not to compete shall have effect in all geographical
regions, states, countries and territories throughout the world from or into
which WWC manufactures, sells, distributes or markets its products, and
remain, in effect for a period of five (5) years from the Closing Date.
7.3 The parties agree that damages resulting from any violation of
this covenant not to compete are difficult to quantify and are thus subject
to agreement of liquidated damages. Thus, in case of a violation of the
above obligation not to compete, any one of Seller or Principals as shall
be in violation hereof shall pay to WWC liquidated damages of $10,000.00.
Should such person, despite receipt of a further written warning letter
from WWC, continue such violation, said person shall pay an additional $95,000
per month during each month that such violation continues. These rights and
obligations are not exclusive and shall not preempt any additional claims or
rights available to WWC, including rights to pursue additional damages and
to seer; court orders requiring discontiuance of the prohibited conduct, all
of which rights are expressly reserved.
8 Representations anti Warranties of Seller Subject only to such
exceptions as may be described in any attached Schedule of
Exceptions at Exhibit "D" and which both refer specifically to the
representations and warranties of this Agreement and which further reasonably
identified the basis for an exception thereto, Seller and Principals, jointly
and severally, make the following representations and warranties to WWC, as
of the Closing Date:
8.l Organization and Standing. Asyst is a corporation duly organized
and existing under the laws of the State of Utah, will be in good standing
under such laws, and has the corporate power and lawful authority to own its
assets and properties and to carry on its business as now conducted
8.2 Corporate Power and Authority. Asyst has all requisite corporate
power to execute and deliver this Agreement and all related agreements,
assignments and related documents. All action on the part of Asyst, its
officers, directors and stockholders, has been taken, to the extent necessary
for the authorization, execution, delivery and performance of this Agreement
and all related agreements and assignments. When executed and delivered by
Asyst, this Agreement and all related agreements and assignments will
constitute valid and binding obligations of Seller and will be enforceable in
accordance with their respective teens. Neither the execution of this
Agreement and any related agreements and assignments, nor the consummation of
the transactions contemplated hereby, will violate or conflict with any
applicable law, regulation, ordinance, zoning requirement, governmental
restriction, order, judgment or decree applicable to the Seller or the
Purchased Assets, or any other contract or agreement to which the Seller is a
party.
8.3 Title to Tangible Property. WWC shall obtain good and marketable
title to all of the tangible property included in the Purchased Assets,
including all Documentation and related business records of Asyst, free and
clear of all title defects, liens, restrictions, claims, charges, security
interests or other encumbrances of any nature whatsoever, including any
mortgages, leases, chattel mortgages, conditional sales contracts, collateral
security arrangements or other title or interest retention arrangements.
8.4 Title to Intellectual Property. Buyer shall own all
Intellectual Property included in or relating to the Purchased Assets,
including any copyrights, patents, trademarks (registered or existing at
common law) and all trade names associated with the Purchased Assets. The
Documentation is sufficient to identify and support rights to said
Intellectual Property.
8.5 Trade Secret Protection Preserved. To the best of Sellers'
collective knowledge and belief, and except only for valid licenses of the
same to other parties fully disclosed to WWC, the Build Environment and all
trade secrets to the Products and Related Technology have at all times been
maintained in confidence and have been disclosed by Seller only to employees
and consultants having a "need to know" the contents thereof in connection
with the performance of their duties to Seller.
8.6 Personnel Agreements. To the best of Seller's knowledge and
belief, all personnel, including employees, agents, consultants and
contractors, who have contributed to or participated in the conception and
development of the Products and Related Technology or Intellectual Property
on behalf of Seller either have been party to a "work-for-hire" arrangement or
agreement with Seller that has afforded Seller full, effective and original
ownership of all tangible and intangible property thereby arising, or have
executed appropriate instruments of assignment in favor of Seller as assignee
that have conveyed to Seller full, effective and exclusive ownership of all
tangible and nontangible property thereby arising.
8.7 No Claims. To the best of Seller's knowledge and belief, no
claims are currently being asserted by any person or entity to the use of the
Intellectual Property, and Seller does not know of any valid basis for any
such claim. Setter's use of the Intellectual Property (including any patents
and trademarks) does not, to Seller's best knowledge and belief, infringe on
the rights of any other person. Seller has not granted, transferred or
assigned any right or interest in the Products, the Documentation, the Build
Environment or the Intellectual Property to any person or entity, except as
such has been expressly disclosed to Buyer in any Schedule of Exceptions
hereto.
8.8 Disclosure. No representation, warranty or statement made by
Setter in this Agreement or in any document or certificate furnished or to be
furnished to Buyer pursuant to this Agreement contains or will contain any
untrue statement or omits or will omit to state any fact necessary to make
the statements contained herein or therein not misleading. Seller has
disclosed to Buyer all requested facts, records, documents and financial
statements known or reasonably available to Seller that are material to the
transaction contemplated by this Agreement. Seller is aware of no claims or
threatened claims or lawsuits against it by any person or entity. Furthermore,
Seller has fully disclosed to Buyer and has furnished copies of all known
policies of insurance owned by the Company.
8.9 Tax Matters. Seller has (i) made and shall continue to make
current and timely payment of all applicable taxes required of Seller on or
in connection with any of the Purchased Assets or to Seller's employees.
Furthermore, Seller is not involved in any dispute with any tax authority nor
has Seller received any notice of any deficiency, audit or other indication
of deficiency from any tax authority.
9. Representations anti Warranties of WWC. WWC represents and warrants to
Sellers as follows.
9.1 Organization and Standing. WWC is a corporation duly organized
and existing under the laws of the State of Nevada and will be in good
standing under such laws; it has the corporate power and lawful authority to
own its assets and properties and to carry on its business as now conducted.
9.2 Corporate Power and Authority. WWC has all requisite corporate
power to execute and deliver this Agreement and all related agreements,
assignments and related documents. All action on the part of WWC, its
officers, directors and stockholders has been taken to the extent necessary
for the authorization, execution, delivery and performance of this Agreement
and all related agreements and assignments. When executed and delivered by
WWC, this Agreement shall be a valid and binding obligation of WWC and will
be enforceable in accordance with its terms.
9.3 Disclosure. No representation, warranty or statement
made by WWC in this Agreement or in any document or certificate furnished or to
be furnished to Seller pursuant to this Agreement contains or will
contain any untrue statement or omits or will omit to state any fact necessary
to make the statements contained herein, or therein not misleading. WWC has
disclosed to Seller all facts known or reasonably available to WWC that are
material to the transaction contemplated by this Agreement.
9.4 Truth at Closing. All of the representations, warranties and
agreements of Buyer contained in this section 9 shall be true and correct and
in full force and effect on and as of the Closing Date.
10. Conditions to Closing
10.1 Conditions to Seller's Obligations. Seller's obligation to enter
into the transactions contemplated hereby at the Closing is subject to the
fulfillment as of the Closing Date of the following conditions, any or all of
which may be waived by Seller:
10.l.1 All other agreements and documents contemplated by this
Agreement shall have been executed.
10.1.2 All covenants, agreements and conditions contained in this
Agreement to be performed by, Buyer on or before the Closing Date shall have
been performed or complied with in all respects
10.1.3 Buyer shall have delivered to Sellers a certificate,dated on the
Closing Date and signed by Buyer, stating that all representations and
warranties made by Buyer in this Agreement are true and complete in all
material respects and that there has been no material change in Buyer's
business or financial condition or in Buyer's ability to perform its
obligations under this Agreement, between the date of this Agreement
and the Closing Date.
10.2 Conditions to Buyer's Obligations. The obligation of WWC to
enter into and complete the Closing, is subject, at its option, to the
fulfillment on or prior to the Closing Date of the following conditions, any
or all of which may be waived by Buyer:
10.2.1 All other agreements, assignments and documents contemplated
by this Agreement shall have been executed.
10.2.2 All covenants, agreements and conditions contained in this
Agreement to be performed by Seller on or before the Closing Date shall have
been performed or complied with in all respects.
10.2.3 Seller shall have delivered to Buyer a certificate, dated on
the Closing Date and signed by Seller, stating that all representations and
warranties made by Seller in this Agreement are true and complete all
material respects and that there has been no material change in Seller's
business or financial condition or in its ability to perform its obligations
under this Agreement, between the date of this Agreement and the Closing Date.
10.2.4 Any and all permits and approvals from any governmental or
regulatory body required for the consummation of the Closing shall have been
obtained, or the waiting period therefor shall have expired, or the right of
the governmental or regulatory body to object to the Closing shall have been
waived in writing.
10.3 Termination Prior to Closing. This Agreement may be terminated
at any time prior to Closing by mutual consent by the parties, by either
party if the Closing has not occurred on or before June 15, 1998, or by
either party if the other party shall fail to perform in any material respect
its agreements contained herein or materially breached any representation,
warranty, agreement or covenant that is not cured with in 10 days after the
party has been notified of the breach.
11. Miscellaneous Covenants and Agreements.
11.1 Expenses of Sale. The parties agree that each of them shall
bear its own direct and indirect expenses incurred in connection with the
negotiations and preparation of this Agreement and the consummation and
performance of the transactions contemplated hereby. All transfer,
documentary, gross receipts, use taxes and similar liabilities, if any,
resulting from the sale, assignment, transfer and delivery hereunder of the
Purchased Assets, and to the extent said liability arises under the laws of
the State of Utah shall be paid by WWC.
11.2 Consulting Services. ▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ have agreed
to provide consulting services to WWC for a period of not to exceed six
months for purposes of transitioning manufacturing and marketing efforts
directed to the Purchased Technology. In consideration for said services, WWC
will convey to ▇▇▇ ▇▇▇▇ 3,300 restricted shares of WWC common stock; and to
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ 300 restricted shares of WWC common stock. Such
conveyance shall be made at closing.
11.3 Bulk Sales Law. The parties acknowledge that they knowingly are
not complying with any bulk sales laws or similar laws relating to notices to
creditors, which generally has the effect of holding WWC responsible to such
creditors for the liabilities of the Company predating the Closing Date.
However, no bull; sales statutes shall be construed to alter or expand the
parties obligations under this Agreement, between and among themselves,
including specifically limitations on liabilities assumed and agreement and
duty to indemnify against losses and liabilities not expressly assumed.
11.4 Governing Law. This Agreement shall be governed in all respects
by the laws of the State of Utah. Any action or proceeding;, brought be any
party against another arising out of or related to this Agreement shall be
brought in a state or federal court of competent subject matter jurisdiction
located within Salt Lake County, Utah, and each of the parties to this
Agreement consents to the personal jurisdiction of those courts.
11.5 Survival of Representations. Warranties and Covenants. Unless
otherwise specifically indicated, all representations, warranties and
covenants contained herein or made pursuant to this Agreement shall survive
the Closing and shall continue in full force and effect to the extent
necessary to effectuate the purposes of this Agreement.
11.6 Binding Effect. Except as specifically otherwise provided
herein, the provisions of this Agreement shall inure to the benefit of, and
be binding upon, the successors and assigns of the parties hereto.
11.7 Entire Agreement. This Agreement and any ancillary agreements
or other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and no party shall be liable or bound to any other party in any manner
by any representation, warranties or covenants except as specifically set
forth herein. Except as expressly provided herein, neither this Agreement nor
any item hereof may be amended, waived, discharged or terminated other than
by a written instrument signed by the party against whom enforcement of
any such amendment, waiver, discharge or termination is sought.
11.8 Notices. All notices and other communications required or
permitted under this Agreement shall be in writing and shall be delivered
personally or mailed by first class mail, postage prepaid addressed as
follows:
If to WWC:
World Wireless Communications, Inc.
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Snow, ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If to Asyst:
Asyst Corp.
Attn: ▇▇▇ ▇▇▇▇, President
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
2159 South ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇
11.8 Publicity. No press or publicity releases or announcement
concerning this Agreement or the transactions contemplated hereby shall be
issued without advance approval of the form and substance thereof by Seller
and Buyer
11.9 Confidentiality. The parties shall honor all confidentiality
agreements currently in place between or among them, which agreements survive
any termination of this Agreement.
11.10 Attorney's Fees. In the event of a default, the defaulting
party shall pay all costs and attorney's fees that the non-defaulting party
establishes were reasonably incurred by the non-defaulting party in enforcing
its rights under the terms of this Agreement, regardless of whether or not
suit is filed. Notwithstanding the foregoing, each party shall first give
thirty (30) days notice of any claimed default, specifying the default, and
no such costs and attorney's fees may be charged if the default is
cured or corrected within such thirty (30) day period.
11.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument
11.12 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision, provided that no such severability shall be effective
if it materially changes the economic benefit of this Agreement to any party.
11.13 Injunctive and Equitable Relief. Parties recognize that in the
event of a breach of the terms of this Agreement that damages may not always
be an adequate remedy, and therefore stipulate that injunctive or other
equitable relief shall be available to the non-breaching party.
IN WITNESS WHEREOF, this Agreement is hereby executed as of the date
first above written.
Seller: Buyer:
Asyst, Inc. World Wireless
Communications, Inc.
By:/s/ ▇▇▇ ▇▇▇▇ By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title:President Title: President & CEO
For purposes of individual undertakings under Sections 7 and 8:
/s/ ▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
Asset Purchase and Stock Exchange Agreement
Exhibit A
Asset List
Asyst's "SRL-100 Spread Spectrum Transceiver," and all related technology,
including all Product Code, all inventory of completed Products and
components, the Build Environment, Related Technology, Documentation, and
Intellectual property, all as defined in Section I of the Asset Purchase
Agreement, together with all additional assets and tangible property
identified in the lists and schedules attached hereto.
Asset Purchase and Stock Exchange Agreement
Exhibit B
▇▇▇▇ OF SALE
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which is hereby acknowledged, Asyst, Inc. ("Asyst") hereby sells, grants,
transfers, conveys, assigns and delivers unto World Wireless Communications,
Inc., a Nevada corporation ("WWC"), all of Seller's rights, title and
interest in and to the "Purchased Assets," as such term is defined in the
Asset
Purchase Agreement between Asyst and WWC, dated as of May 15, 1998,
("Agreement"), which assets include all Products, the Build Environment, Related
Technology, Documentation, and Intellectual Property, all as defined in section
I of the Agreement. together with all additional assets and tangible property
identified at Exhibit 'A," without reservation.
TO HAVE AND TO HOLD all of the properties, assets and rights granted and
transferred hereby, with the appurtenances thereof, unto WWC, its successors
and assigns forever, to and for their own use and benefit.
For the consideration aforesaid, and to the extent that the same maybe
required to effect the purpose of this ▇▇▇▇ of Sale and of the Agreement,
Seller hereby constitutes and appoints WWC, its successors and assigns, the
true and lawful attorney or attorneys of Seller, with full power of
substitution, for Seller and, subject to Seller's prior written consent, in
Seller's name and stead, or otherwise, but on behalf of and for the sole
benefit of WWC, its successors and assigns, to demand and receive from time
to time any and all properties hereby given, granted, bargained, sold,
assigned, transferred, conveyed, set over, confirmed and delivered and give
receipts and releases for and in respect to the same and any part thereof; and
further to enforce said property rights by lawsuit or other legal action if
deemed by WWC to be appropriate.
Seller further covenants that Seller' its successors and assigns, shall
execute, acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered to WWC all such further deeds, bills of sale,
transfers, assignments, conveyances, powers of attorney, or other documents
necessary to convey and confirm unto WWC, its successors and assigns, the
properties hereby granted, sold, assigned, transferred, conveyed and
delivered as WWC, its successors and assigns, shall reasonably require.
All terms not otherwise defined herein shall have the meanings defined in
the Asset Purchase Agreement above referenced and entered into between WWC and
Asyst.
IN WITNESS WHEREOF, Asyst has caused this instrument to be executed as
of May 15, 1998.
Asyst, Inc.
By /s/ ▇▇▇ ▇▇▇▇
Name: ▇▇▇ ▇▇▇▇
Title:Pres
Asset Purchase and Stock; Exchange Agreement
Exhibit C
Asyst Liabilities Assumed by WWC
or Satisfied at Closing
The following Asyst Liabilities will be assumed at closing:
1. Stock Transfer Agent costs and fees Unknown
The following Asyst Liabilities assumed by WWC will be paid at closing:
1. ▇▇▇ ▇▇▇▇ - Compensation $17,500.00
2. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ - Rent $39,500.00
3. ▇▇▇▇▇▇▇ McRenolds-Audit Expenses/Accounting Services $ 3,167.00
4. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, P.C. - Attorney $ 3,262.50
Asset Purchase and Stock Exchange Agreement
Exhibit D
Schedule of Exceptions
The following are specifically excepted from representations and warranties
contained in the Asset Purchase and Stock; Exchange Agreement:
1. As to Section 8.6 entitled "Personnel Agreements," Asyst has not
obtained written "work-for-hire" agreements from ▇▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, the two persons who were instrumental in developing the Products,
Related Technology and Intellectual Property. However, Asyst has obtained and
has delivered to World Wireless copies of assignments from ▇▇. ▇▇▇▇▇ and ▇▇.
▇▇▇▇▇▇▇▇ conveying to Asyst their respective rights in and to the
intellectual property in projects on which they worked for Asyst.
Asset Purchase and Stock Exchange Agreement
Exhibit E
PROMISSORY NOTE
(Unsecured)
Date: May 8, 1998
FOR VALUE RECEIVED, the undersigned, ASYST, INC., ("Maker") hereby
promises to pay to the order of WORLD WIRELESS COMMUNICATIONS, INC. ("Payee"),
at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,▇▇ at
such other place as the Payee may designate in writing, the principal sum of
SIXTY-FIVE THOUSAND AND NO/100 DOLLARS ($65,000.00), in lawful money of the
United States of America, with interest thereon at the rate of Ten Percent
(10.0%) per annum, calculated from the date hereof until paid. Said principal
and all accrued interest hereunder shall be due and payable at Payee's
above-referenced address or at such other place as Payee may designate in
writing, upon demand, which demand shall be withheld for a period of one year
from the date hereof. Interest and principal are payable only to the holder
of this Note.
The principal amount of this Promissory Note, with interest accrued to
date of payment, may be prepaid in whole or in part at any time without
penalty. Any prepayment will be applied first to the payment of accrued and
unpaid interest, with any balance to be applied to reduce the principal. The
original note shall be surrendered upon receipt of full and final payment
hereunder.
In connection herewith, the undersigned has further transferred or
caused to be transferred and conveyed to Payee Twenty Thousand (90,000)
shares of restricted and newly-authorized common stock of Asyst, Inc., and all
rights, title and interest therein,, which Payee has accepted in lieu of
origination fees for the funds advanced.
THE SHARES OF STOCK THUS TENDERED HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND NO SALE OR DISPOSITION THEREOF MAY BE MADE
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL FOR THE HOLDER, SATISFACTORY TO WORLD WIRELESS COMMUNICATIONS, INC.,
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT OR RECEIPT OF A
NO-ACTION
LE11ER FROM THE SECURITIES AND EXCHANGE COMMISSION.
This Promissory Note shall be governed by and construed according to
Utah law. None of the teens or provisions may be waived, altered, modified or
amended except as Payee, as Holder, may consent in a writing duly signed by
Holder or his authorized agent. The covenants, terms and conditions contained
herein apply and bind the heirs, successors, executors, administrators and
assigns of the parties. If any provision or any word, term, clause or other
part of any provision of this Promissory Note shall be invalid for any
reason, the same shall be ineffective but the remainder of this Promissory
Note shall not be affected and shall remain in full force and effect
The undersigned agree(s) to pay reasonable attorneys' fees, court costs
and all other costs of collection if this Note is placed in the hands of an
attorney for collection, after demand, and hereby waive diligence,
presentment, notice of nonpayment, protest and notice of protest, and agree
that the holder may extend the time for payment and/or take additional
security without releasing anyone liable hereon or without releasing any
security provided herewith.
ASYST. INC.
By /s/ ▇▇▇ ▇▇▇▇