ASSET PURCHASE AGREEMENT BY AND BETWEEN OPTICON SYSTEMS INC., AND FUTURETECH CAPITAL LLC Dated as of August 19, 2004
Confidential
BY
AND BETWEEN
OPTICON
SYSTEMS INC.,
AND
FUTURETECH
CAPITAL LLC
Dated
as of August 19, 2004
ASSET
PURCHASE AGREEMENT (this Agreement) dated as of August 19, 2004, by and between
OPTICON SYSTEMS INC., a Nevada corporation (OPTICON), and FUTURETECH CAPITAL
LLC, a Florida corporation (”FTC”).
WHEREAS,
FTC is engaged in the business of developing, marketing and licensing
telecommunication network asset management software, otherwise known as its
OptiCon Network Manager, including Releases 3.x, 4.x and any related products
currently under development. (“OptiCon”);
WHEREAS,
subject to the terms and conditions set forth in this Agreement, FTC wishes
to
sell to OPTICON, and OPTICON wishes to purchase from FTC, substantially all
of
the assets that are used by FTC to conduct OptiCon related business, all as
identified or described herein, and FTC wishes to transfer to OPTICON, and
in
connection therewith the parties hereto wish to make certain agreements related
to such purchase, sale, assignment and assumption; and
WHEREAS,
as a condition to the willingness of, and as an inducement to, OPTICON, FTC
to
enter into this Agreement, contemporaneously with the execution and delivery
of
this Agreement, FTC, OPTICON entering into the Related Agreements (as defined
below).
NOW,
THEREFORE, in consideration of the mutual benefits to be derived from this
Agreement and the representations, warranties, covenants, agreements, conditions
and promises contained herein and therein, the parties hereby agree as follows:
ARTICLE
I
PURCHASE
AND SALE OF ASSETS; CLOSING
| 1.1 |
Purchase
and Sale of Acquired Assets. Upon the terms and subject to the conditions
set forth in this Agreement, at the Closing, FTC shall sell, transfer,
assign and deliver to OPTICON, and relinquish to OPTICON in perpetuity,
free and clear of all Encumbrances, all right, title and interest
in and
to all of the Acquired Assets of OptiCon. As used in this Agreement,
the
term Acquired Assets means all of the assets, properties, goodwill
and
rights of FTC in OptiCon identified as follows, but excluding, however,
such assets, rights and properties that constitute the Excluded Assets
(as
defined in Section 1.2):
|
| A. |
all
right, title and interest of FTC in the OptiCon and OptiCon Network
Manager brand name;
|
| B. |
all
of the tangible personal property of FTC related to OptiCon as listed
in
Section 1.1.B of the Disclosure Schedule;
|
| C. |
all
rights of FTC in OptiCon, to the extent transferable, under all Federal,
state, local and foreign governmental licenses, consents, approvals,
authorizations, permits, orders decrees and other compliance agreements
relating in any manner to, or used in connection with the operation
of,
OptiCon, including those listed in Section 1.1.C of the Disclosure
Schedule;
|
| D. |
all
OptiCon Intellectual Property Rights and Licensed Software (as defined
in
Sections 3.1.H and 3.1.I, respectively), and the goodwill associated
therewith, licenses and sublicenses granted in respect thereto and
rights
thereunder, together with all claims against third parties for profits
and
all costs, losses, claims,
liabilities,
|
fines,
penalties, damages and expenses (including interest which may be imposed in
connection therewith), court costs, and reasonable fees and disbursements of
counsel, consultants and expert witnesses (collectively, Damages) incurred
by
reason of the past infringement, alleged infringement, unauthorized use or
disclosure or alleged unauthorized use or disclosure of any OptiCon Intellectual
Property Rights, together with the right to ▇▇▇ for, and collect the same,
or to
▇▇▇ for injunctive relief, for OPTICON’s own use and benefit, and for the use
and benefit of its successors, assigns or other legal representatives;
| E. |
all
customer, supplier, advertiser and mailing lists of FTC in OptiCon,
including all copies thereof (in whatever media such copies may exists),
relating in any manner to, or used in connection with, the operation
of
OptiCon, and all rights in and to the information contained therein;
|
| F. |
all
business and financial records, books, ledgers, files, plans, documents,
correspondence, lists, plats, architectural plans, drawings, notebooks,
specifications, creative materials, advertising and promotional materials,
marketing materials, studies, and reports relating in any manner
to, or
used in connection with the operation of, OptiCon or to the Acquired
Assets, in whatever media they exist;
|
| G. |
all
goodwill of FTC relating to OptiCon; and
|
| H. |
all
Inventory relating to OptiCon as listed in Section 1.1.H of the Disclosure
Schedule.
|
| 1.2 |
Excluded
Assets. Notwithstanding Section 1.1, the following assets shall be
excluded from this Agreement and shall not be sold, conveyed, assigned,
transferred or delivered to OPTICON pursuant hereto:
|
| A. |
all
written or oral contracts, agreements, guaranties, understandings,
deeds,
mortgages, indentures, leases, license agreements, commitments,
undertakings or other documents or instruments relating in any manner
to
OptiCon (excluding third party software licenses described in Section
3.1.I);
|
| B. |
all
accounts receivable of FTC, all other rights to receive payment and
all
rights in respect of prepaid items however evidenced, whether by
notes,
instruments, chattel paper or otherwise, relating in any manner to,
or
arising out of the operation of, OptiCon;
|
| C. |
all
tangible personal property of FTC not listed in the Disclosure Schedule;
|
| D. |
all
insurance policies maintained by FTC with respect to OptiCon and
any
prepaid insurance expenses or premiums;
|
| E. |
all
payments made by FTC which constitute prepaid Taxes of OptiCon and
all
refunds or credits of Taxes and claims for refunds or credits of
Taxes and
other governmental charges to the extent such refunds relate to periods
ending on or prior to the Closing Date;
|
| F. |
all
pension, health or welfare plans, any post-retirement benefits for
any
current or former employees of FTC who were or are employees of OptiCon
and all payments made by FTC which constitute prepaid expenses of
OptiCon
relating to such excluded employee benefits;
|
| G. |
all
interest in or claim against any Plan;
|
| H. |
all
corporate minute books and stock records;
|
| I. |
all
claims, deposits, prepayments, prepaid expenses, refunds, causes
of
action, chooses in action, rights of recovery, rights of set off
and
rights of recoupment relating in any manner to the items set forth
in this
Section 1.2;
|
|
J.
|
the
names “Corning” and “Siecor” and any trademarks, tradenames or logos,
trade dress, brand names or service marks containing the words “Corning”
or “Siecor” (except OptiCon brand name); and
|
| K. |
all
other tangible or intangible assets not used solely for OptiCon.
|
No
more
than one hundred and twenty (120) days after the Closing Date, OPTICON shall
modify all OptiCon software, documentation, packaging, labeling, brochures
and
sales aids bearing the “Corning” or “Siecor” trademarks by reasonable means to
show customers and potential customers of OptiCon that the ownership and
responsibility for the assets has transferred to OPTICON.
| 1.3 |
Assumption
of Liabilities. OPTICON shall not assume, discharge or perform any
of
FTC's Liabilities related to OptiCon.
|
| 1.4 |
Excluded
Liabilities. OPTICON is not assuming any Liabilities of FTC related
to
OptiCon or any of its Affiliates. OPTICON shall have no liability
whatsoever for any Liabilities of FTC related to OptiCon which are
not
specifically assumed under Section 1.3, and, without limiting the
generality of the foregoing, OPTICON shall not be deemed to assume,
nor
shall it assume the following Liabilities (the Excluded Liabilities):
|
| A. |
any
and all Liabilities arising under or relating to any written or oral
contracts, agreements, guaranties, understandings, deeds, mortgages,
indentures, leases, licenses, commitments, undertakings or other
documents
or instruments to which FTC’s OptiCon or any Affiliate thereof is a party;
|
| B. |
any
and all Liabilities of FTC in OptiCon or any of its Affiliates in
respect
of any indebtedness for or guarantees of borrowed money;
|
| C. |
any
and all Liabilities of FTC in OptiCon to any Affiliate or current
or
former stockholder of FTC;
|
| D. |
any
and all Liabilities of FTC in OptiCon or any of its Affiliates for
or in
respect of Taxes including, without limitation, any Taxes resulting
from
or relating to the consummation of the transaction contemplated hereby
(including any state Taxes that may become due as a result of any
Bulk
Sale or similar statute that may be assessed against OPTICON following
the
Closing);
|
| E. |
any
and all Liabilities of FTC or any of its Affiliates arising out of
or
relating, directly or indirectly, to any property of which FTC or
such
Affiliate has disposed or proposed to dispose, including any and
all
Liabilities to any other person or entity incurred in connection
with any
sale or proposed sale of (i) all or any substantial part of FTC or
any
Affiliate, or any other business combination or proposed business
combination, (ii) any real property of FTC or any Affiliate, (iii)
any
other business or (iv) any securities of FTC, any Affiliate or any
other
entity;
|
|
F.
|
any
and all Liabilities arising out of or relating, directly or indirectly,
to
any Employee Plan or the termination thereof including, without
limitation, FTC's Incentive Compensation Plan and FTC's obligations
to
OptiCon Employees under such plan;
|
| G. |
any
and all Liabilities with respect to fees and expenses incurred by
FTC or
any of its Affiliates in connection with the sale or proposed sale
or
other disposition or proposed disposition of all or part of the assets
or
capital stock of FTC or any Affiliate (including the Transaction
Expenses);
|
| H. |
any
and all Liabilities of FTC or any of its Affiliates to any present
or
former employee or independent contractor of FTC or any Affiliate
thereof;
|
|
I.
|
any
and all Liabilities of FTC or any of its Affiliates for any Actions
against FTC or any Affiliate, including any Actions pending or threatened
against FTC as of the Closing Date;
|
|
J.
|
any
and all Liabilities of FTC or any of its Affiliates for damage or
injury
to person or property including,
without limitation, those resulting from or arising out of environmental
claims;
|
| K. |
any
and all Liabilities of FTC or any of its Affiliates arising out of
or
resulting from noncompliance with any Federal, state, local or foreign
laws, ordinances, regulations or orders;
|
| L. |
any
and all Liabilities of FTC or any of its Affiliates arising out of,
relating to or resulting from any obligation to indemnify any person
or
entity (including officers and directors of FTC);
|
| M. |
any
and all Liabilities of FTC or any of its Affiliates arising under
this
Agreement or any of the Related Agreements;
|
| N. |
any
and all Liabilities of FTC or any of its Affiliates for any accounts
payable;
|
| O. |
any
and all other Liabilities attributable in any manner to the Excluded
Assets; and
|
| P. |
any
and all other Liabilities of FTC or any of its Affiliates that are
not
Assumed Liabilities.
|
| 1.5 |
Continuing
Liabilities. Notwithstanding anything contained herein to the contrary,
to
the extent that any Assumed Liability assumed by OPTICON pursuant
to
Section 1.3, or any Damages imposed on OPTICON by operation of law
or
otherwise in connection with, or which otherwise arises out of or
in
relation to, the transactions contemplated hereby (other than OPTICON's
assumption of the Assumed Liabilities assumed by it pursuant to Section
1.3), results from or arises out of an event or condition which is
continuing or continuous in nature, OPTICON shall assume and discharge
only that portion of such Assumed Liability or Damage that results
from or
arises out of that part of the event which occurs or condition which
exists after the Closing, without, however, releasing FTC from its
obligation to discharge that portion of such Assumed Liability or
Damage
that results from that part of the event which occurs or condition
which
exists prior to the Closing; provided, however, that FTC shall discharge
all of such continuing or continuous Assumed Liabilities or Damages,
including, without limitation, those Assumed Liabilities assumed
by
OPTICON pursuant to Section 1.3 if and to the extent they result
from a
breach by FTC of any of its representations, warranties or covenants
hereunder.
|
| 1.6 |
Closing.
The closing of the transactions contemplated by this Agreement (the
Closing) will take place at 10:00 a.m. (Eastern time) on September
19th,
2004 (Closing Date), unless the parties agree to another date in
writing.
The Closing shall take place at the offices of Opticon Systems Inc.’s,
Dallas Office, unless the parties agree to another time or place
in
writing. As used herein, the term Business Day shall mean any day
other
than a Saturday, Sunday or day on which banks are permitted to close
in
the City and State of New York. All transactions contemplated to
take
place at the Closing shall be deemed to be effective as of 5:00 p.m.
on
the Closing Date (the Effective Time) and events taking place, and
periods
ending after the Effective Time shall be deemed to have taken place,
or
ended, after the Closing.
|
| 1.7 |
Closing
Obligations. At the Closing, in addition to the agreements set forth
in
Article IV, the parties shall execute and deliver the following documents:
|
| A. |
FTC,
or their Affiliates, as the case may be, shall deliver to OPTICON:
|
| (i) |
a
▇▇▇▇ of sale for all of the tangible Acquired Assets in the form
of
Exhibit A attached hereto (the ▇▇▇▇ of Sale) executed by FTC;
|
| (ii) |
an
assignment of all of the Acquired Assets that are intangible personal
property (except the Assigned Intellectual Property Assets) in the
form of
Exhibit B attached hereto, which assignment shall also contain OPTICON’s
undertaking and assumption of the Assumed Liabilities (the Assignment
and
Assumption Agreement) executed by FTC;
|
| (iii) |
an
assignment of all OptiCon Trademarks in the form of Exhibit C attached
hereto (the Trademark Assignment) executed by FTC;
|
| (iv) |
a
general assignment of all Assigned Intellectual Property Assets in
the
form of Exhibit D attached
hereto (the IP Assignment) executed by FTC; and
|
| (v) |
all
such other bills of sale, assignment and assumption agreements,
endorsements, intellectual property right assignments, certificates
of
title, consents and other good and sufficient instruments and documents
of
conveyance and transfer, all dated the Closing Date and in a form
reasonably satisfactory to OPTICON, as OPTICON reasonably shall deem
necessary or appropriate to vest in or confirm to OPTICON full and
complete right, title and interest in and to all of the Acquired
Assets
(collectively, the Other Assignments).
|
| B. |
OPTICON
shall deliver to FTC, as the case may be:
|
| (i) |
the
Assignment and Assumption Agreement executed by
OPTICON;
|
| (ii) |
the
Trademark Assignment executed by OPTICON; and
|
| (iii) |
the
IP Assignment executed by OPTICON.
|
On
the
Closing Date, FTC shall transfer all of the Acquired Assets, including OptiCon
Intellectual Property Rights, to such location or locations as OPTICON
reasonably may request.
| 1.8 |
Further
Assurances. At any time and from time to time after the Closing,
at the
request of OPTICON and without further consideration, FTC will execute
and
deliver such other instruments of sale, transfer, conveyance, assignment
and confirmation, and will take such further action, as may be reasonably
requested in order to more effectively transfer, convey and assign
to ,
and to confirm OPTICON's title to, the Acquired Assets, and each
of the
parties shall execute such other documents and take such further
action as
may be reasonably required or desirable to carry out the provisions
of
this Agreement and the transactions contemplated hereby.
Without
|
limiting
the generality of the foregoing, FTC shall, from time to time and at no cost
to
OPTICON, cooperate with, and take all action reasonably requested by, OPTICON
to
effectively transition the Acquired Assets and the operation and ownership
of
OptiCon.
ARTICLE
II
PURCHASE
PRICE
| 2.1 |
Purchase
Price.
|
Purchase
Price. Purchase Price. Purchaser shall pay to Seller for the Assets a purchase
price (the "Purchase Price") of Forty Two Million Dollars ($42,000,000). The
purchaser shall offer the Seller Eighty Four Million Shares of Common in OptiCon
valued at $0.50 per share, for a total of Forty Two Million Dollars
($42,000,000) be paid at the closing of this transaction.
| 2.2 |
Allocation
of Purchase Price. The Purchase Price shall be allocated among the
Acquired Assets and the covenant not to compete to be entered into
by FTC
in connection with this Agreement and shall be consistent with the
requirements of Section 1060 of the Code, and the regulations thereunder.
OPTICON and FTC agree that such allocation shall be fair and equitable.
OPTICON and FTC agree to report this transaction for Tax purposes,
including the filing of Internal Revenue Service Form 8594 (Asset
Acquisition Statement), in accordance with such allocation and to
defend
such allocation before, and not take any positions that are inconsistent
with such allocation before, any Governmental Authority charged with
the
collection of Taxes, or in any judicial proceeding.
|
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
| 3.1 |
Representations
and Warranties of FTC. FTC hereby represents and warrants to OPTICON
that,
except as
disclosed in the disclosure schedule dated the date hereof, certified
by
FTC and delivered to OPTICON simultaneously herewith (which disclosure
schedule shall contain specific references to the representations
and
warranties to which the disclosures contained therein relate and
an item
on such disclosure schedule shall be deemed to qualify only the particular
subsection or subsections specified for such item) (the Disclosure
Schedule):
|
| A. |
Organization;
Good Standing; Qualification and Power. FTC (i) is a corporation
duly
organized, validly existing and in good standing under the laws of
the
State Florida, (ii) has all requisite corporate power and authority
to
own, lease and operate its properties and assets and to carry on
its
business as now being conducted, and as proposed to be conducted,
to enter
into this Agreement and the Related Agreements to which FTC is a
party, to
perform its obligations hereunder and thereunder, and to consummate
the
transactions contemplated hereby and thereby and (iii) except as
set forth
in Section 3.1.A of the Disclosure Schedule, is duly qualified and
in good
standing to do business in those jurisdictions listed in Section
3.1.A of
Disclosure Schedule and in all other jurisdictions where the failure
to be
so qualified and in good standing would have a material adverse effect
on
FTC, OptiCon or the business, properties, condition (financial or
otherwise), assets, liabilities, operations, results of operations,
prospects or affairs of FTC or of OptiCon (a OptiCon Material Adverse
Effect).
|
| B. |
[Intentionally
Omitted].
|
| C. |
Authority;
No Consents. The execution, delivery and performance by FTC of this
Agreement and the Related Agreements to which it is a party and the
consummation of the transactions contemplated hereby and thereby
have been
duly and validly authorized by all necessary corporate action on
the part
of FTC; and this Agreement has been, and the Related Agreements to
which
it is a party when executed and delivered by FTC will be, duly and
validly
executed and delivered and the valid and binding obligations of FTC,
enforceable against it in accordance with their respective terms.
Except
as set forth in Section 3.1.C of the Disclosure Schedule, the execution,
delivery and performance of this Agreement or the Related Agreements
to
which it is a party, the consummation by FTC of the transactions
contemplated hereby or thereby, nor compliance by FTC with any provision
hereof or thereof will (A) conflict with, (B) result in any material
violation of, (C) cause a material default under (with or without
due
notice, lapse of time or both), (D) give rise to any right of termination,
amendment, cancellation or acceleration of any obligation contained
in or
the loss of any material benefit under or (E) result in the creation
of
any Encumbrance on or against any assets, rights or property of FTC
under
any term, condition or provision of (x) any instrument or agreement
to
which FTC is a party, or by which FTC or any of its properties, assets
or
rights may be bound or (y) any
|
law,
statute, rule, regulation, order, writ, injunction, decree, permit, concession,
license or franchise of any Governmental Authority applicable to FTC or any
of
its properties, assets or rights or conflict with or result in any violation
of
FTC's Certificate of Incorporation or by- laws. No permit, authorization,
consent or approval of or by, or any notification of or filing with, any
Governmental Authority or other person or entity is required in connection
with
the execution, delivery and performance by FTC of this Agreement or the Related
Agreements or the consummation by FTC of the transactions contemplated hereby
or
thereby, except for (i) the consents listed in Section 3.1.C of the Disclosure
Schedule and (ii) such other consents, waivers, authorizations, filings,
approvals and registrations which if not obtained or made would not have a
OptiCon Material Adverse Effect or impair in any material respect the ability
of
FTC to consummate the transactions contemplated by this Agreement.
| D. |
Absence
of Changes. Since January 1, 2004 or such other date as is specifically
provided below, except as set forth in Section 3.1.D of the Disclosure
Schedule, there has not been:
|
|
(i.)
|
any
damage, destruction or loss to any of the Acquired Assets, whether
or not
covered by insurance, having or which could have a OptiCon Material
Adverse Effect;
|
|
(ii)
|
any
payment, discharge or satisfaction of any material Encumbrance on
any of
the Acquired Assets or Liability relating in any manner to, or arising
from the operation of, OptiCon by FTC or any cancellation by FTC
of any
material debts or claims relating in any manner to, or arising from
the
operation of, OptiCon or any amendment, termination or waiver of
any
rights of material value to FTC relating in any manner to, or arising
from
the operation of, OptiCon;
|
|
(iii)
|
any
license, sale, transfer, pledge, mortgage or other disposition of
any
material tangible or intangible asset (including any Intellectual
Property
Rights of FTC) relating in any manner to, or used in the operation
of,
OptiCon other than in the Ordinary Course of Business;
|
| (iv) |
any
labor dispute or any union organizing
campaign;
|
| (v) |
the
commencement of any litigation or other action by or against FTC
relating
in any manner to OptiCon;
|
| (vi) |
any
agreement, understanding, authorization or proposal, whether in writing
or
otherwise, for FTC to take any of the actions specified in items
(i)
through (v) above.
|
| E. |
Tax
Matters. FTC and each other corporation or entity (if any) included
in any
consolidated or combined tax return in which FTC has been included
have
filed and will file, in a timely and proper manner, consistent with
applicable laws, all Federal, state and local Tax returns and Tax
reports
required to be filed by them as they relate to OptiCon (the Tax Returns)
with the appropriate governmental agencies in all jurisdictions in
which
Tax Returns are required to be filed and have timely paid or will
timely
pay all amounts shown thereon to be due. All such Tax Returns will
be
correct and complete in all material respects at the time of filing.
FTC
has not agreed to, nor is it required to, make any adjustment under
Section 481(a) of the Code by reason of a change in accounting method
or
otherwise. As used in this Agreement, Tax means any of the Taxes
and Taxes
means, with respect to any entity, (A) all income taxes (including
any tax
on or based upon net income, gross income, income as specially defined,
earnings, profits or selected items of income, earnings or profits)
and
all gross receipts, sales, use, ad valorem, transfer, franchise,
license,
withholding, payroll, employment, excise, severance, stamp, occupation,
premium, property or windfall profits taxes, alternative or add-on minimum
taxes, customs duties and other taxes, fees, assessments or charges
of any
kind whatsoever, together with all interest and penalties, additions
to
tax and other additional amounts imposed by any taxing authority
(domestic
or foreign) on such entity and (B) any liability for the payment
of any
amount of the type described in the immediately preceding clause
(A) as a
result of being a transferee (within the meaning of Section 6901
of the
Code or any other applicable law) of another entity or a member of
an
affiliated or combined group.
|
| F. |
Title
to Assets, Properties and Rights and Related Matters. FTC
has good and valid title to all of the Acquired Assets free and clear
of
all Encumbrances of any kind or character other than Permitted
Encumbrances. The Acquired Assets are in good operating condition
and
repair in all material respects (ordinary wear and tear excepted).
The
Acquired Assets include all assets, properties and interests in properties
(real, personal and mixed, tangible and intangible) and all rights,
leases, licenses and other agreements necessary or desirable to enable
OPTICON to carry on OptiCon in the manner as normally conducted by
FTC and
as proposed to be conducted. Except for the Shared Assets being retained
by FTC, none of the assets, properties or rights being retained by
FTC are
used in, or necessary or desirable for, the operation of OptiCon
as
currently conducted or as proposed to be conducted. As used herein,
(A)
the term Encumbrances means and includes security interests, mortgages,
liens, pledges, guarantees, charges, easements, reservations,
restrictions, clouds, equities, rights of way, options, rights of
first
refusal and all other encumbrances, whether or not relating to the
extension of credit or the borrowing of money, (B) Permitted Encumbrances
means (i)
|
liens
for
taxes, assessments and other governmental charges or levies not due and payable,
or which currently are being contested in good faith by appropriate proceedings
and which are specifically listed on the appropriate section of the Disclosure
Schedule, (ii)
mechanics', workmen's, repairmen's, materialmen's, warehousemen's, vendors'
and
carriers' liens, and other similar liens arising in the Ordinary Course of
Business for charges which are not delinquent, or which currently are being
contested in good faith by appropriate proceedings and have not proceeded to
judgment and which specifically are listed on the appropriate section of the
Disclosure Schedule, and (iii) liens in respect of judgments or awards which
specifically are listed on the appropriate section of the Disclosure Schedule
and with respect to which there shall be a good faith current prosecution of
an
appeal or proceedings for review which is secured by an appropriate bond or
a
stay of execution pending such appeal or proceedings for review, and (C)
Ordinary Course of Business means the operation of OptiCon in the ordinary
course of business consistent with FTC's usual and customary practices in
managing and operating OptiCon as they existed on August 1, 2004 without regard
to the transactions contemplated hereby.
| G. |
[Intentional
omitted]
|
| H. |
Intellectual
Property.
|
| (i) |
Except
as set forth in Section 3.1.H(i)(1) of the Disclosure Schedule, FTC
has
good and valid title to, and owns free and clear of all Encumbrances,
has
the exclusive right to use, sell, transfer, license (or sublicense),
transmit, broadcast, deliver (electronically or otherwise) and dispose
of,
and has the right to bring actions for the infringement of, all
Intellectual Property Rights used in connection with or necessary
for the
conduct of OptiCon in the Ordinary Course of Business and as proposed
to
be conducted after the Closing Date, including all Intellectual Property
Rights set forth in Section 3.1.H(i)(2) of the Disclosure Schedule
(collectively, OptiCon Intellectual Property
Rights);
|
| (ii) |
The
execution, delivery and performance of this Agreement and the Related
Agreements and the consummation of the other transactions contemplated
hereby or thereby, will not breach, violate or conflict with any
instrument or agreement governing any OptiCon Intellectual Property
Rights
in any material respect, will not cause the forfeiture or termination
or
give rise to a right of forfeiture or termination of any OptiCon
Intellectual Property Right or materially impair the right of FTC
to use,
sell, license (or sublicense), transmit, broadcast, deliver
(electronically or otherwise) or dispose of, or to bring any action
for
the infringement of, any OptiCon Intellectual Property Right or portion
thereof;
|
|
(iii)
|
To
the knowledge of FTC, there are no royalties, honoraria, fees or
other
payments payable by FTC to any person by reason of the ownership,
use,
license (or sublicense), transmission, broadcast, delivery (electronically
or otherwise), sale, or disposition of any OptiCon Intellectual Property
Rights;
|
| (iv) |
Except
as set forth in Section 3.1.H(iv) of the Disclosure Schedule, neither
the
manufacture, marketing, license (or sublicense), sale, transmission,
delivery (electronically or otherwise), or use of any product or
service
currently or proposed to be licensed, sold, marketed, transmitted,
broadcast, delivered (electronically or otherwise) or used by FTC
or
currently under development by FTC violates any license (or sublicense)
or
agreement of FTC with any third party or infringes any common law
or
statutory rights of any other party, including, without limitation,
rights
relating to defamation, contractual rights, Intellectual Property
Rights
and rights of privacy or publicity; nor, to the knowledge of FTC,
is any
third party infringing upon, or violating any license (or sublicense),
transmission, broadcast, delivery, (electronically or otherwise)
or
agreement with FTC relating to, any OptiCon Intellectual Property
Right;
and there is no pending or threatened claim or litigation contesting
the
validity, ownership or right to use, manufacture, sell, license (or
sublicense), transmit, broadcast, deliver (electronically or otherwise)
or
dispose of any OptiCon Intellectual Property Right, nor is there
any basis
for any such claim. FTC has not received any notice asserting that
any
OptiCon Intellectual Property Right or the proposed use, manufacture,
sale, license (or sublicense), transmission, broadcast, delivery
(electronically or otherwise) or disposition thereof conflicts or
will
conflict with the rights of any other party, nor is there any basis
for
any such assertion;
|
| (v) |
All
works that were created, prepared or delivered by consultants, independent
contractors or other third parties for or on behalf of FTC (including
any
materials and elements created, prepared or delivered by such parties
in
connection therewith) (A) are and shall constitute works made for
hire
specially ordered or commissioned by FTC within the meaning of United
States' copyright law or (B) have been duly assigned to FTC in writing,
except to the extent that any failure to constitute a works made
for hire
or to assign any such work would not, either individually or in the
aggregate, have a OptiCon Material Adverse
Effect;
|
| (vi) |
Section
3.1.H(vi) of the Disclosure Schedule sets forth, for all OptiCon
Intellectual Property Rights, a complete and accurate list of all
United
States and foreign (a) Patents; (b) Trademarks (including Internet
domain
registrations and unregistered Trademarks); and (c) Copyrights (including
unregistered copyrights) indicating for each, the applicable jurisdiction,
registration number (or application number), and date issued (or
date
filed);
|
| (vii) |
To
the knowledge of FTC, Section 3.1.H(vii) of the Disclosure Schedule
sets
forth a complete and accurate list of all license agreements granting
any
right to use or practice any rights under any OptiCon Intellectual
Property Rights, whether FTC is the licensee or licensor thereunder
(except for shrink-wrap licenses for off-the-shelf software used
by FTC
and other licensees identified in Section 3.1.I of the Disclosure
Schedule) and any assignments, consents, term, forbearances to ▇▇▇,
judgments, orders, settlements or similar obligations relating to
any
OptiCon Intellectual Property Rights to which FTC is a party or otherwise
bound (collectively, the License Agreements), indicating for each
the
title, the parties, date executed, whether or not it is exclusive
and the
Intellectual Property Rights covered thereby. The License Agreements
are
valid and binding obligations of FTC, enforceable in accordance with
their
terms, and there exists no event or condition, which will result
in a
violation or breach of, or constitute (with or without due notice
or lapse
of time or both) a default by FTC under any such License Agreement;
|
| (viii) |
All
Trademarks of FTC that constitute OptiCon Intellectual Property Rights
have been in continuous use by FTC. To the knowledge of FTC, except
as set
forth in Section 3.1.H(viii) of the Disclosure Schedule, there has
been no
prior use of such Trademarks by any third party which would confer
upon
said third party superior rights in such Trademarks; and
|
|
(ix)
|
As
used herein, the term Intellectual Property Rights shall mean all
intellectual property rights worldwide, including, without limitation,
trademarks, service marks, trade names, service names, URLs and Internet
domain names and applications therefore (and all interest therein),
designs, slogans and general intangibles of like nature, together
with all
goodwill related to the foregoing (including any registrations and
applications for any of the foregoing) (collectively, Trademarks);
patents
(including any registrations, continuations, continuations in part,
renewals and applications for any of the foregoing) (collectively,
Patents); copyrights (including any registrations, applications and
renewals for any of the foregoing (collectively, Copyrights); computer
programs and other computer software (including, but not limited
to the
software); databases; technology, trade secrets and other confidential
information, knowhow, proprietary technology, processes, formulae,
algorithms, models, user interfaces, customer lists, inventions,
source
codes and object codes and methodologies, architecture, structure,
display
screens, layouts, development tools, instructions, templates, marketing
materials, inventions, trade dress, logos and designs, software and
data
loaded on any acquired asset, and all documentation and media
constituting, describing or relating to the foregoing (collectively,
Trade
Secrets).
|
| I. |
Software.
|
| (i) |
Section
3.1.I of the Disclosure Schedule sets forth a true and complete list
of
all material software programs and applications licensed by FTC from
any
third party and used by FTC in the operation of OptiCon (the Licensed
Software).
|
| (ii) |
The
Licensed Software is validly held and used by FTC, as applicable,
and may
be used by FTC pursuant to the applicable license agreement with
respect
thereto without the consent of or notice to any third party. Each
of the
license agreements relating to the Licensed Software are valid and
binding
obligations, enforceable in accordance with their terms, and there
exists
no event or condition which will result in a violation or breach
of, or
constitute (with or without due notice or lapse of time or both)
a default
by FTC or the licensor under any such license agreement.
|
| J. |
[Intentionally
omitted]
|
| K. |
No
Defaults. Except as set forth in Section 3.1.K of the Disclosure
Schedule,
FTC has in all material respects performed all of the obligations
required
to be performed by it to date and is not in default or alleged to
be in
default under (i) its Certificate of Incorporation or by-laws, (ii)
the
Assumed Contracts or (iii) any other material agreement, lease, license,
contract, commitment, instrument or obligation relating to OptiCon
to
which it is a party or by which any of the Acquired Assets are or
may be
bound or affected, and there exists no event, condition or occurrence
which, with or without due notice or lapse of time, or both, would
constitute such a default or alleged default by it of any of the
foregoing.
|
| L. |
Litigation,
Etc. Except as set forth in Section 3.1.L of the Disclosure Schedule,
there are no (i) actions, suits, claims, investigations or legal
or
administrative or arbitration proceedings (collectively, Actions)
pending
or threatened against FTC relating in any manner to, or arising out
of the
operation of, OptiCon, nor is there any basis therefore, whether
at law or
in equity, or before or by any Federal, state, municipal, foreign
or other
governmental court, department, commission, board, bureau, agency
or
instrumentality (Governmental Authority), (ii) judgments, decrees,
injunctions or orders of any Governmental Authority or arbitrator
against
FTC relating in any manner to, or arising out of the operation of,
OptiCon, or (iii) disputes with customers or vendors of OptiCon.
Except as
set forth in Section 3.1.L of the Disclosure Schedule, there are
no
Actions pending or threatened, nor is there any basis therefore,
with
|
respect
to (A) any of the Acquired Assets or Assumed Liabilities, (B) the employment
by,
or association with, OPTICON, of any of the present officers or employees of
or
consultants to FTC (collectively, the Designated Persons), or (C) the use,
in
connection with OptiCon, of any information, techniques or processes presently
utilized or proposed to be utilized by FTC or any of the Designated Persons,
that OPTICON or any of the Designated Persons are or would be prohibited from
using as the result of a violation or breach of, or conflict with any agreements
or arrangements between any Designated Person and any other person, or any
legal
considerations applicable to unfair competition, trade secrets or confidential
or proprietary information. FTC has delivered to OPTICON all material documents
and correspondence relating to such matters referred to in Section 3.1.L of
Disclosure Schedule (including, in the case of clause (iii) of the first
sentence of this Section 3.1.L, any correspondence evidencing material customer
dissatisfaction with FTC or its products or services).
| M. |
Compliance;
Governmental Authorizations and Consents.
|
| (i) |
Except
as set forth in Section 3.1.M of the Disclosure Schedule, FTC has
complied
and is presently in compliance in all material respects with all
Federal,
state, local or foreign laws, ordinances, regulations and orders
applicable to the operation of OptiCon (including, without limitation,
laws, ordinances, regulations and orders applicable to labor, employment
and employment practices, terms and conditions of employment and
wages and
hours);
|
| (ii) |
FTC
has all Federal, state, local and foreign governmental licenses,
consents,
approvals, authorizations, permits, orders, decrees and other compliance
agreements necessary in the conduct of OptiCon as presently conducted
or
as proposed to be conducted, such licenses, consents, approvals,
authorizations, permits, orders, decrees and other compliance agreements
are in full force and effect, no violations are or have been recorded
in
respect of any thereof and no proceeding is pending or, to the knowledge
of FTC, threatened to revoke or limit any thereof, except to the
extent
that the failure to have any such license, consent, approval,
authorization, permit, order, decree or other compliance agreement,
to
maintain the same in full force and effect or to be in compliance
therewith would not, either individually or in the aggregate, have
a
OptiCon Material Adverse Effect; and
|
| (iii) |
Section
3.1.M of the Disclosure Schedule contains a true and complete list
of all
such governmental licenses, consents, approvals, authorizations,
permits,
orders, decrees and other compliance agreements relating in any manner
to,
or used in the operation of, OptiCon under which FTC is operating
or
bound, FTC is not in default or alleged to be in default under any
thereof
and FTC has furnished to OPTICON true and complete copies thereof.
None of
such licenses, consents, approvals, authorizations, permits, orders,
decrees and other compliance agreements shall be affected in any
material
respect by the transactions contemplated hereby or by any of the
Related
Agreements.
|
| N. |
Environmental
Matters.
|
| (i) |
To
the knowledge of FTC, FTC has complied with and is in compliance
with all
Federal, state, local and foreign laws, statutes (civil and criminal),
common laws, ordinances, codes, regulations, rules, notices, permits,
judgments, requirements, standards, guidelines, judicial and
administrative orders and decrees applicable to it and its properties,
assets, operations and businesses relating to pollution, worker and
public
health and safety, and/or environmental protection (collectively
Environmental Laws), including without limitation Environmental Laws
relating to air, water, land and the generation, release, storage,
use,
handling, transportation, treatment, discharge, disposal or other
handling
of Wastes, Hazardous Wastes and Hazardous Substances (as such terms
are
currently defined in any applicable Environmental
Law);
|
| (ii) |
To
the knowledge of FTC, FTC has obtained and adhered to all necessary
material permits and other approvals necessary to treat, transport,
store,
dispose of and otherwise handle Wastes, Hazardous Wastes and Hazardous
Substances and has reported, to the extent required by all Environmental
Laws, all past and present sites owned and operated by FTC where
Hazardous
Wastes or Hazardous Substances have been treated, stored, disposed
of or
otherwise handled;
|
|
(iii)
|
To
the knowledge of FTC, there have been no emissions, spills, discharges,
releases or threats of releases (as defined in Environmental Laws)
at,
from, in or on any property owned, leased or operated by FTC except
as
permitted by Environmental Laws;
|
| (iv) |
To
the knowledge of FTC, FTC has not transported or disposed of Wastes,
Hazardous Wastes and/or Hazardous Substances or arranged for the
transportation of Hazardous Wastes and Hazardous Substances to any
on-site
or off-site location, which site is the subject of any Federal, state,
local or foreign enforcement action or any other investigation which
could
lead to any claim against FTC, or OPTICON for any clean-up cost,
remedial
work, damage to natural resources or personal injury, including without
limitation any claim under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (CERCLA); and
|
| (v) |
To
the knowledge of FTC, FTC does not or will not have any liability
in
connection with any release of
|
any
Hazardous Waste or Hazardous Substance into the environment,.
For
purposes hereof, the term Environmental Laws includes, without limitation,
the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.
(S) 9601 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. (S)
6901
et seq., the Federal Water Pollution Control Act, 33 U.S.C. (S) 1251 et seq.,
the Clean Air Act, 42 U.S.C. (S)1857 et seq., the Occupational Safety and Health
Act of 1970, 29 U.S.C. (S) 651 et seq., and the Toxic Substances Control Act,
15
U.S.C. (S) 2601 et seq.
| O |
[Intentionally
Omitted].
|
| P |
Brokers.
FTC has not, nor have any of its officers, directors, security holders
or
employees, employed any broker or finder or incurred any liability
for any
brokerage fees, commissions or finders' fees in connection with the
transactions contemplated hereby.
|
| Q |
Customers.
Section 3.1.R of the Disclosure Schedule sets forth a true and complete
list of at least the twenty (20) largest revenue producing customers
of
FTC (taking into account only the revenues from OptiCon) during the
period
from January 1, 2004 to the date hereof.
|
ARTICLE
IV
RELATED
AGREEMENTS
On
or
prior to the Closing Date, the following agreements (such agreements, together
with the ▇▇▇▇ of Sale, Assignment and Assumption Agreement, Trademark Assignment
and Other Assignments being herein collectively referred to as the Related
Agreements) are being executed and delivered by the respective parties thereto:
ARTICLE
V
CONDITIONS
PRECEDENT
| 5.1 |
Conditions
to Each Party's Obligations. The obligations of each party to perform
this
Agreement and to consummate the transactions contemplated hereby
are
subject to the satisfaction of the following conditions unless waived
(to
the extent such conditions can be waived) by all parties hereto:
|
| A. |
Approvals.
All authorizations, consents, orders or approvals of, or declarations
or
filings with or expiration of waiting periods imposed by any Governmental
Authority necessary for the consummation of the transactions contemplated
hereby shall have been obtained or made or shall have occurred.
|
| B. |
Legal
Action. No temporary restraining order, preliminary injunction or
permanent injunction or other order preventing the consummation of
the
transactions contemplated hereby shall have been issued by any Federal
or
state court or other Governmental Authority and remain in effect.
|
|
C.
|
Legislation.
No Federal, state, local or foreign statute, rule or regulation shall
have
been enacted which prohibits, restricts or delays the consummation
of the
transactions contemplated by this Agreement or any of the conditions
to
the consummation of such transactions.
|
SECTION
6
INDEMNIFICATION
| 6.1 |
Indemnity
by FTC
-
FTC shall defend, indemnify and hold OPTICON, its officers, directors,
employees, subsidiaries and Affiliates harmless from and against
all
Losses arising out of or resulting from:
|
(a)
any
breach of the representations and warranties made by FTC in or pursuant to
this
Agreement or the failure of such representations and warranties to be true
and
correct;
(b)
any
failure by FTC to carry out, perform, satisfy and discharge any of their
covenants, agreements, undertakings, liabilities or obligations under this
Agreement or under any of the documents delivered by any FTC pursuant to this
Agreement;
(c)
any
liability imposed on OPTICON arising out of any FTC failure to comply with
any
applicable bulk sales or bulk transfer laws;
| 6.2 |
Indemnity
by OPTICON -
OPTICON will indemnify and hold FTC harmless from and against all
Losses
arising out of or resulting from:
|
(a)
any
breach of any representations and warranties made by OPTICON in or pursuant
to
this Agreement or the failure of such representations and warranties to be
true
and correct;
(b)
any
failure by OPTICON to carry out, perform, satisfy and discharge any of its
covenants, agreements, undertakings or obligations under this Agreement; and
| 6.3 |
Notice
of Claim -The
indemnified party shall promptly notify the indemnifying party in
writing
in reasonable detail of any claim, demand, action or proceeding for
which
indemnification will be sought under this Section 6. If such claim,
demand, action or proceeding is a third party claim, demand, action
or
proceeding (a “Third Party Claim”), the indemnifying party will have the
right at its expense to assume the defense thereof using counsel
reasonably acceptable to the indemnified party or the indemnifying
party.
The indemnified party shall have the right to participate, at its
own
expense, with respect to any such Third Party Claim. In connection
with
any such Third Party Claim, the parties shall cooperate with each
other
and provide each other with access to relevant books and records
in their
possession. No such Third Party Claim shall be settled without the
prior
written consent of the indemnified party. If a firm written agreement
is
made by, or with the approval of the indemnifying party to settle
any such
Third Party Claim and the indemnified party unreasonably refuses
to
consent to such settlement, then: (a) the indemnifying party shall
be
excused from, and the indemnified party shall be solely responsible
for,
all further defense of such Third Party Claim; (b) the maximum liability
of the indemnifying party relating to such Third Party Claim shall
be the
amount of the proposed settlement if the amount thereafter recovered
from
the indemnified party on such Third Party Claim is greater than the
amount
of the proposed settlement; and (c) the indemnified party shall pay
all
attorneys’ fees and legal costs and expenses incurred after rejection of
such settlement by the indemnified party.
|
| 6.4 |
Termination
of Indemnification
|
(a)
As to
OPTICON.
The
right of OPTICON to be indemnified under this Section 6 shall survive:
(i)
as to
matters described in Section 6.1(a), 6.1(b) and 6.1(c) (to the extent the suit,
action or proceeding applies to the foregoing sections), until 12 months
following the Closing Date;
(ii)
as
to matters described in Section 6.1(e), until the termination of the applicable
statute of limitations (including any waivers or extensions thereof agreed
to by
OPTICON).
(a)
As
to
FTC.
The
right of any FTC to be indemnified under this Section 6 shall survive until
24
months following the Closing Date, except for those matters described in Section
6.2(c), which shall survive until the termination of the applicable statute
of
limitations (including any waivers of extensions thereof agreed to by FTC).
(b)
Exceptions.
Notwithstanding subsections (a) and hereof:
(i)
any
indemnity claim based on fraudulent misrepresentations or fraudulent material
omission or fraudulent breach of warranty shall survive without any time
limitations; and
(ii)
any
indemnity claim based on any matter which has been described in a notice to
an
indemnifying party pursuant to Section 6.3 of this Agreement prior to the
expiration of the applicable time limitation set forth in subsections (a) and
(b) above shall survive until the claim is finally resolved.
| 6.5 |
Claims
Net of Insurance and Tax Benefits
|
The
amount which FTC is required to pay to, for, or on behalf of the OPTICON
pursuant to this Section 6 shall be reduced (including, without limitation,
retroactively) by any insurance proceeds actually recovered or tax benefit
actually received by or on behalf of the OPTICON in reduction of the related
indemnifiable loss. Amounts required to be paid, as so reduced, are hereinafter
sometimes called an “Indemnity
Payment”.
If the
OPTICON shall have received, or if the FTC shall have paid on its behalf, an
indemnity payment in respect of an indemnifiable loss and shall subsequently
receive, directly or indirectly, insurance proceeds
OPTICON
SYSTEMS INC Asset Purchase Agreement of FUTURETECH CAPITAL LLCCONFIDENTIAL
(which
duplicate in whole or in part, amounts paid by FTC) or a tax benefit in respect
of such indemnifiable loss, then the OPTICON shall promptly pay to FTC the
amount of such insurance proceeds or tax benefit, or, if less, the amount of
the
Indemnity Payment.
| 6.6 |
Exclusive
Remedy
|
Except
in
cases of fraud or where a party is entitled to an equitable remedy,
indemnification pursuant to this Section 6
shall
be
the exclusive remedy of the parties for any losses. The only legal action which
may be asserted by any party hereto against the other party with respect to
any
matter which is the subject of this Agreement shall be a contract action to
enforce, or to recover damages for a breach of this Section 6.
ARTICLE
VII
NON-COMPETITION
| 7.1 |
In
order to induce OPTICON to enter into this Agreement and to consummate
the
transactions contemplated hereby, FTC hereby covenant as follows,
which
covenants shall be in addition and without prejudice to any other
noncompetition, nonsolicitation and/or similar covenants to which
FTC may
be subject from time to time:
|
| A. |
Covenant
Not to Compete. FTC
agree that, for a period of three (3) years after the Closing
Date (the
“Restricted Period”), except as provided below, none of them nor any of
their subsidiaries or Affiliates (whether or not presently existing)
(each
a “Restricted Party”) shall compete, directly or indirectly, with OPTICON
in its conduct of the OptiCon Business; provided, however that
nothing
described herein shall prevent FTC from (i) selling products
pursuant to
the Reseller Agreement or (ii)
providing any service to its customers other that those sevices
directly
related to OptiCon.
|
| B. |
Restriction
on Solicitation of Employees. During
the Restricted Period, neither FTC nor any of their Affiliates
shall
directly or indirectly recruit, solicit, induce, or attempt to
induce any
of the employees or independent contractors of OPTICON or any
of their
Affiliates to terminate their employment or contractual relationship
with
the other party or any such Affiliate; and neither FTC nor any
of their
Affiliates shall assist any other Person to do so, or be a proprietor,
equityholder, investor (except as an investor holding not more
than 1% of
the capital stock or other securities of a publicly held company),
lender,
partner, director, officer, employee, consultant or representative
of any
Person who does or attempts to do so. However, the foregoing
covenant of
non-solicitation shall not be violated by FTC’ or their Affiliates’, use
of employment advertisements placed in general or mass media
publications.
|
|
C.
|
Restrictions
on Solicitations of Customers. During the Restricted Period, neither
FTC nor any of their Affiliates shall directly or indirectly solicit,
divert, take away, or attempt to divert or take away, from OPTICON
or any
of its Affiliates, any of the business or patronage of its customers,
clients, accounts, vendors or suppliers, and neither FTC nor any
of their
Affiliates shall assist any other Person to do so, or be a proprietor,
equityholder, investor (except as an investor holding not more than
1% of
the capital stock or other securities of a publicly held company),
lender,
partner, director, officer, employee, consultant or representative
of any
Person who does or attempts to do so.
|
| D. |
Equitable
Relief. FTC
hereby acknowledge that any breach by any of them of their obligations
under this Article VII would cause substantial and irreparable
damage to
OPTICON and its Affiliates; and that money damages would be an
inadequate
remedy therefore, and accordingly, acknowledge and agree that
the other
party or any Affiliate shall be entitled to an injunction, specific
performance, and/or other equitable relief to prevent the breach
of such
obligations (in addition to all other rights and remedies to
which such
party may be entitled in respect of any such
breach).
|
| E. |
Enforceability.
In
the event that a court of competent jurisdiction determines that
any of
the provisions of this Article VII would be unenforceable as
written
because they cover too extensive a geographic area, too broad
a range of
activities, or too long a period of time, or otherwise, then
such
provisions shall automatically be modified to cover the maximum
geographic
area, range of activities, and period of time as may be enforceable,
and
in addition, such court or arbitrators are hereby expressly authorized
so
to modify this Agreement and to enforce it as so modified. No
invalidity
or enforceability of any section of this Agreement or any portion
thereof
shall affect the validity or enforceability of any other section
or of the
remainder of such section.
|
ARTICLE
VIII
MISCELLANEOUS
| 8.1 |
Expenses.
As used in this Agreement, Transaction Costs shall mean, with respect
to
any party, all actual, out-of-pocket expenses incurred by such party
to
third parties, in connection with this Agreement and the
Related
|
Agreements
and all other transactions provided for herein and therein. Each party hereto
shall bear its own Transaction Costs in connection with the transactions
contemplated by this Agreement.
| 8.2 |
Entire
Agreement. This Agreement (including the Disclosure Schedule and
the
Exhibits attached hereto), the Related Agreements and the other writings
referred to herein contain the entire agreement among the parties
hereto
with respect to the transactions contemplated hereby and supersede
all
prior agreements or understandings, written or oral, among the parties
with respect thereto.
|
| 8.3 |
Interpretation.
Descriptive headings are for convenience only and shall not control
or
affect the meaning or construction of any provision of this Agreement.
The
words include, includes and including when used herein shall be deemed
in
each case to be followed by the words without limitation. The word
herein
and similar references mean, except where a specific Section or Article
reference is expressly indicated, the entire Agreement rather than
any
specific Section or Article. The table of contents and the headings
contained in this Agreement are for reference purposes only and shall
not
affect in any way the meaning or interpretation of this Agreement.
|
| 8.4 |
Notices.
All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered personally
or
sent by nationally-recognized overnight courier or by registered
or
certified mail, postage prepaid, return receipt requested, or by
electronic mail with a copy thereof to be delivered by mail (as aforesaid)
within 24 hours of such electronic mail, or by facsimile, with
confirmation as provided above addressed as follows:
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(i)
if to
OPTICON , to:
OPTICON
SYSTEMS INC. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: Chief
Executive Officer Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ with a copy to (which shall not
constitute notice):
▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇
Law Group, P.A.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇
▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:
727/▇▇▇-▇▇▇▇
Telefax:
866/323-6096
E-mail:
▇▇▇▇▇▇@▇▇▇.▇▇▇
(ii)
if
to FTC, to:
FUTURETECH
CAPITAL LLC
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇-▇
▇▇.
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Legal Counsel
Fax:
▇▇▇-▇▇▇-▇▇▇▇
with
a
copy to (which shall not constitute notice):
or
to
such other address as the party to whom notice is to be given may have furnished
to the other party in writing in accordance herewith. All such notices or
communications shall be deemed to be received (a) in the case of personal
delivery, on the date of such delivery, (b) in the case of nationally-recognized
overnight courier, on the next business day after the date when sent, (c) in
the
case of facsimile transmission or electronic mail, upon confirmed receipt,
and
(d) in the case of mailing, on the third business day following the date on
which the piece of mail containing such communication was posted.
| 8.6 |
Counterparts.
This Agreement may be executed in any number of counterparts by original
or facsimile signature, each such counterpart shall be an original
instrument, and all such counterparts together shall constitute one
and
the same agreement.
|
| 8.7 |
Governing
Law; Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without reference
to its
conflicts of laws provisions. The parties irrevocably and unconditionally
submit to the exclusive jurisdiction of the federal courts sitting
in
Delaware over any suit, action or proceeding arising out of or relating
to
this Agreement or any Related Agreement. The parties irrevocably
and
unconditionally
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waive
any
objection to the laying of venue of any such suit, action or proceeding brought
in such court and any claim that any such suit, action or proceeding brought
in
such court has been brought in an inconvenient forum. The parties agree that
a
final judgment in any such suit, action or proceeding brought in such court
shall be conclusive and binding upon the parties and may be enforced in any
other courts to whose jurisdiction other parties are or may be subject, by
suit
upon such judgment.
| 8.8 |
Benefits
of Agreement. All the terms and provisions of this Agreement shall
be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. This Agreement shall
not be
assignable by any party hereto without the consent of the other parties
hereto; provided, however, that anything contained herein to the
contrary
notwithstanding, each of OPTICON may assign and delegate any or all
of its
respective rights and obligations hereunder to any other direct or
indirect wholly-owned subsidiary of OPTICON; provided further, however,
that any of the rights granted to and obligations of OPTICON under
this
Agreement (other than the payment of the Purchase Price) may also
be
exercised or performed by any entity controlled by or under common
control
with OPTICON (each, an OPTICON Affiliate); provided that such OPTICON
Affiliate agrees to be bound by all of the applicable provisions
hereof
governing such exercise or performance and that FTC promptly receives
written notice of any such exercise or performance.
|
| 8.9 |
Pronouns.
As used herein, all pronouns shall include the masculine, feminine,
neuter, singular and plural thereof whenever the context and facts
require
such construction.
|
| 8.10 |
Amendment,
Modification and Waiver. This Agreement shall not be altered or otherwise
amended except pursuant to an instrument in writing signed by OPTICON,
and
FTC; provided, however, that any party to this Agreement may waive
in
writing any obligation owed to it by any other party under this Agreement.
The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach.
|
| 8.11 |
No
Third Party Beneficiaries. Nothing express or implied in this Agreement
is
intended to confer, nor shall anything herein confer, upon any person
other than the parties and the respective successors or assigns of
the
parties, any rights, remedies, obligations or liabilities whatsoever,
except to the extent that such third person is an Indemnified Person
or
Indemnifying Person in respect of the indemnification provided in
accordance with Article VII of this Agreement.
|
| 8.12 |
Consents.
Except as otherwise expressly provided in this Agreement, any consent
or
approval of OPTICON requested or permitted hereunder may be given
or
withheld in OPTICON's sole discretion, provided that, such consent
or
approval shall not be unreasonably withheld.
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| 8.13 |
Interpretation.
This Agreement has been negotiated between the parties and will not
be
deemed to be drafted by, or the product of, any party. As such, this
Agreement will not be interpreted in favor of, or against, any party.
|
| 8.14 |
No
Joint Venture. No party hereto shall make any warranties or
representations, or assume or create any obligations, on the other
party's
behalf except as may be expressly permitted hereunder or in writing
by
such other party. Each party hereto shall be solely responsible for
the
actions of all its respective employees, agents and representatives.
|
| 8.15 |
Specific
Performance. The transactions contemplated by this Agreement are
unique
transactions and any failure on the part of FTC to complete the
transactions contemplated by this Agreement or any of the Related
Agreements on the terms of this Agreement or any of the Related Agreements
will not be fully compensable in damages and the breach or threatened
breach of the provisions of this Agreement or any of the Related
Agreements would cause OPTICON irreparable harm. Accordingly, in
addition
to and not in limitation of any other remedies available to OPTICON
for a
breach or threatened breach of this Agreement or any of the Related
Agreements, OPTICON will be entitled to specific performance of this
Agreement or any of the Related Agreements upon any breach by FTC,
and to
an injunction restraining any such party from such breach or threatened
breach.
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IN
WITNESS WHEREOF, each of the parties hereto has caused this Asset Purchase
Agreement to be executed on its behalf as of the day and year first above
written.
OPTICON
SYSTEMS INC.
By:
/s/
Name:
Title:
President
FUTURETECH
CAPITAL LLC.
By:
/s/
Name:
▇▇▇
▇▇▇▇▇▇
[SIGNATURE
PAGE TO ASSET PURCHASE AGREEMENT]