DEVELOPMENT CAPITAL VENTURES,
LP
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1. AGREEMENT TO SELL AND PURCHASE CERTAIN
ASSETS
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1.1 Agreement to Sell and Purchase
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1.2 Treatment of Liabilities
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1.4 Supply and Licensing Agreement
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2.2 Allocation of Purchase Price
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4. REPRESENTATIONS AND WARRANTIES OF
SELLER
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4.1 Organization of Seller;
Authorizations
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4.2 Requisite Power and Authority
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4.3 Seller’s Requisite Consents;
Nonviolation
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4.4 No Undisclosed Liabilities
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4.8 Intellectual Property
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5.6 Discontinuation of Operations
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5.11 Post Closing Accounts Receivable
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6.1 Indemnification by the Seller
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6.2 Indemnification by the Purchaser
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7.2 Successors and Assigns
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7.4 Survival of Obligations
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7.6 Applicable Law; Jurisdiction
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ii
This ASSET PURCHASE AGREEMENT (this “
Agreement ”) is made as of the close of business on
September 30, 2009, by and among Socket Mobile, Inc., a
Delaware corporation, (“ Seller ”), Development
Capital Ventures, LP (“ Funder ”) located at
5820 Fitzhugh Street, Burke, VA 22015, and Quatech Inc., an Ohio
corporation (“ Purchaser ”).
1.
AGREEMENT TO SELL AND PURCHASE CERTAIN ASSETS
1.1 Agreement to Sell and
Purchase.
At the Closing, Seller will sell, convey,
transfer, assign and deliver to Funder, for the purpose of enabling
the purchase by Purchaser, and Purchaser will, upon completion of
arrangements with Funder, complete the purchase and assume from
Funder, all assets of Seller which pertain to Seller’s
serial card business (the “ Business ”),
free and clear of all liens, charges, claims, mortgages, pledges,
easements, encumbrances, security interests, adverse claims or any
other title defects or restrictions of any kind (collectively,
“ Encumbrances ”). For the purpose of this
transaction, Funder is deemed an intermediary who will fund the
purchase by Purchaser and enable its immediate transfer to
Purchaser. Accordingly, all references to Purchaser are made with
the expectation that all rights, title and interest in the Asset
Purchase Agreement and related documents have been transferred by
Funder to Purchaser. Until notification by Funder to Seller of the
completion of the transfer to Purchaser, Seller shall follow the
instructions from Funder as to the matters that Purchaser has
agreed to undertake. The assets of Seller which pertain to
Seller’s serial card business include, without
limitation:
(a) The tangible personal property and
assets of Seller, including without limitation the property listed
on Schedule 1.1 (a) to this Agreement, related to or used in
the Business (the “ Assets ”) as currently
conducted and as currently proposed to be conducted;
(b) All of Seller’s right, title and
interest in, to and under any contract, purchase order, license or
other agreement to the ownership, manufacture and distribution of
the Assets as listed on Schedule 1.1 (b) to this Agreement
(the “ Seller Contracts ”) ;
(c) All of Seller’s right, title and
interest in and to (i) all intangible assets of Seller,
including all Intellectual Property (as defined in
Section 4.8(n) below) of the Seller related to or used in
connection with the Business as currently conducted or as currently
proposed to be conducted (collectively, the “ Seller Owned
Proprietary Rights ”), including all engineering drawings
and specifications, data sheets and the Intellectual Property
described on Schedule 1.1(c) to this Agreement and
including without limitation all rights in and to use the name
“Socket Serial” and the date of first use of
each such mark in each respective country where such mark is used
(the “ Marks , (ii) the licenses, leases,
assignments, rights to use and other agreements for the license,
lease and assignment of, or provision of the right to use
Intellectual Property of another person that is related to or used
or useful in connection with the Business as currently conducted or
as currently proposed to be conducted, together with all rights,
privileges, prepaid fees, deposits, credits and claims of the
Seller thereunder (collectively, the “ Seller Licensed
Proprietary Rights Agreements ”), including without
limitation those listed on Schedule 1.1(c)(ii) hereto,
and (iii) all Intellectual Property that the Seller has a
right to use that is related to or used in connection with the
Business as currently conducted or as currently proposed to be
conducted under the Seller Licensed Proprietary Rights Agreements
(collectively, the “ Seller Licensed Proprietary
Rights ” and together with the Seller Owned Proprietary
Rights, the “ Seller Proprietary Rights ”),
including the Intellectual Property listed on Schedule
1.1(c)(iii) hereto.
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(d) all of the Seller’s customer
lists and other records, files, data, reports, lists, ledgers,
market studies, books and records used in or relating to the
Business as currently conducted or as currently proposed to be
conducted (including such records as are contained in any computer
media).
1.2 Treatment of Liabilities.
(a) In connection with the sale of the
Assets to Purchaser, Purchaser will assume only the following
liabilities of Seller (collectively, the “ Assumed
Liabilities ”): those obligations of Seller relating to
the Assigned Contracts or breaches of any product warranties
offered in connection with the Assets arising out of sales of the
Assets made by Purchaser from and after the Closing in accordance
with the terms thereof, but excluding any obligations arising as a
result of any breach, default or failure to perform by Seller under
any Assigned Contract or product warranties offered in connection
with the Assets prior to the Closing except as described in
Schedule 1.2 relating to the assumption of warranty customer
support by Purchaser .
(b) Except for the Assumed Liabilities,
Purchaser will not assume, and will not be liable for, any of
Seller’s debts, liabilities, taxes, obligations, contracts or
commitments of any nature or kind whatsoever, whether existing as
of the Closing or arising thereafter, known or unknown, contingent
or otherwise, including any payroll liabilities and obligations of
Seller (the “Excluded Liabilities”). All Excluded
Liabilities will be solely those of Seller and will be satisfied by
Seller, and Purchaser shall have no liability under any
circumstances.
(a) Within five (5) days from the
Closing Date, Seller shall arrange for delivery, at the sole
expense of Seller, of the Assets listed in Article 1.1(c) to
Purchaser at Purchaser’s address specified in
Section 7.3 of this Agreement. Electronic transfer may be used
as mutually agreed between the parties. Seller shall retain all
risk of loss and damage regarding the Assets until such time as the
Assets are delivered to Purchaser pursuant to this
Section 1.3, at which time the risk of loss and damage to the
Assets shall pass to Purchaser.
(b) Seller shall retain and use the assets
listed in Article 1.1 (a), consisting primarily of on hand and
consigned inventory components and tooling, during the month of
September to supply inventory to the Purchaser and to Distributors
as described under Article 1.5, Transition Services. Purchaser
shall compile by October 15, 2009 a list of inventory
components as of the end of September for purchase by Purchaser at
Seller’s cost. These dates may be modified by mutual
agreement of the parties. Inventory components to be purchased
shall consist only of inventory deemed useable by Purchaser in
Purchaser’s sole discretion. Seller’s cost shall
consist of material, labor and overhead.
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1.4 Supply and Licensing Agreement
Seller is also in the business or designing,
manufacturing and selling HIS3 computer chips (the “
Chips ”) which are a component used in the
manufacturing of certain of the Assets. The Chips are not included
in the definition of “Assets” and are not included in
this sale. Seller and Purchaser will enter into a supply, support
and limited licensing agreement (the “ Supply and
Licensing Agreement ”), in substantially the form
attached hereto as Schedule 1.4 , pursuant to which
Seller will, among other things, continue to manufacture the Chips
and sell them to Purchaser. Seller and Purchaser are also entering
into a Cordless Serial Adapter License to enable Purchaser to use
Seller’s Bluetooth software with the Cordless Serial Adapter
Product. Such license is included in the “Supply and
Licensing Agreement, in substantially the form attached hereto as
Exhibit 1.4.
Seller and Purchaser agree that they shall enter
into a transitional services arrangement pursuant to the mutually
agreed upon schedule and timeframe provided for on
Schedule 1.5 hereto. Seller will provide Purchaser with
those certain services listed on Schedule 1.5 , which
shall include, among other things, providing Purchaser with
warranty support training and information, secondary customer
support services and facilitating communications between Purchaser
and Seller’s distributors and manufacturers.
Schedule 1.5 also provides for continued supply of product by
Seller to distributors and to Purchaser during September, for the
accounting for post-closing shipments by Seller on behalf of
Purchaser to facilitate revenue recognition and earnings by
Purchaser for all post-closing shipments, and for the transfer of
customer warranty support in its entirety to Purchaser as of
September 30, 2009.
The purchase price (the “ Purchase
Price ”) for the Rights and Intangible and Tangible
Assets, excluding Finished Product and Component Inventory items,
described in Articles 1.1 (a), 1.1 (b) and 1.1 (c) will
be $500,000. $450,000 is payable in full, via wire transfer of
immediately available United States funds, at the Closing. The
balance of $50,000 shall be payable upon the attainment by
Purchaser of $250,000 in quarterly sales revenue from the sale of
SocketSerial products in any quarter through and including the
quarter ending December 31, 2010. The purchase price for the
Finished Product and Component inventory items described in
Article 1.1 (a) will be an amount equal to Seller’s
cost of these assets, such cost to consist of material, labor and
overhead.
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2.2 Allocation of Purchase
Price.
On the Closing Date, the Purchase Price for the
Assets will be allocated in accordance with a schedule to be
prepared by Purchaser which will be reasonably acceptable to Seller
(the “ Allocation ”), which such Allocation
shall be conclusive and binding on both the Purchaser and Seller.
The parties agree to file tax returns reflecting the sale and
purchase consistent with such schedule.
Seller will be responsible for the payment of
all transfer and sales taxes, if any, incurred in connection with
the sale of the Assets to Purchaser.
The closing of the transactions contemplated
hereby (the “Closing”) shall take place simultaneously
with the execution and delivery of this Agreement. The date of the
Closing is hereinafter referred to as the “Closing
Date.” The Closing shall be effective as of 4:00 p.m. Pacific
time (which shall be considered the Close of Business time) on the
Closing Date.
At the Closing, Seller will execute and deliver,
or cause to be executed and delivered, to Purchaser the following
documents (collectively, the “ Related Agreements
”) or take, or cause to be taken, the following
actions:
(a) A Bill of Sale for the Assets
(conveying title thereto free and clear of all
Encumbrances);
(b) An assignment of trademarks and
proprietary rights agreement in the form attached hereto as
Exhibit 3.2(d) ;
(c) The Supply and Licensing
Agreement;
(d) Copies of resolutions of the board of
directors of Seller authorizing the execution, delivery and
performance of this Agreement and the other agreements contemplated
by this Agreement and consummation of the transactions contemplated
by thereby, which resolutions have been certified by the Secretary
of Seller as being valid and in full force and effect;
(e) Those consents set forth on
Schedule 4.3 hereto;
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(f) All Encumbrances on the Assets shall be
satisfied in full on or prior to Closing (or simultaneously
therewith) and Seller shall have provided Purchaser with evidence
of such satisfaction which is satisfactory to Purchaser;
and
(g) Such other documents and certificates
as are required by the terms of this Agreement or as may be
reasonably requested by Purchaser.
3.3 Purchaser Deliveries.
At the Closing, Funder and Purchaser
will:
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(a)
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pay to Seller the Purchase
Price;
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(b)
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execute and deliver to Seller the
Asset Purchase Agreement;
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(c)
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deliver the Allocation pursuant to
Section 2.2; and
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(d)
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execute and deliver to Seller the
Supply and Licensing Agreement.
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(a) On or before the Closing, Purchaser may
elect, at its sole discretion, to issue one or more purchase orders
(the “ Purchase Orders ,” and each a “
Purchase Order ”) for delivery to Purchaser in
September selected finished goods inventory
(“Inventory”) of Seller, at a purchase price equal to
Selle

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