**Exhibit10.1**

 

**PATENT PURCHASE AGREEMENT**

 

This PATENT PURCHASE AGREEMENT (this “***Agreement***”) is entered into, as ofthe Effective Date (defined below), by and between Embedded Technologies, LLC,a Delaware limited liability company, with an office at c/o InfoLogix, Inc.,101 E. County Line Road, Suite 210, Hatboro, PA 19040 (“***Seller***”) and Intellectual VenturesFund 68 LLC, a Nevada limited liability company, with an address at 7251 W MeadBlvd, Ste. 300, Las Vegas, NV 89128 (“**Purchaser**”).  The parties hereby agree as follows:

 

**1.             BACKGROUND**

 

1.1          Selleris owner of record of US Patent 6,121,960 and South Korea Patent KR 10-0627378,entitled “Touch Screen Systems and Methods, and Seller owns lapsed USprovisional patent applications, and lapsed or abandoned foreign patentapplications, that correspond to said US and South Korean Patents.

 

1.2          Sellerobtained ownership of the US and South Korean Patents and the lapsed andabandoned applications by conveyances from VIA, Inc. of Burnsville,Minnesota, who was formerly the owner, and from Community National Bank, whoheld a security interest in the properties of VIA, Inc., as a part of acourt approved plan by which VIA, Inc. emerged from bankruptcy in 2004.

 

1.3          Sellerhas disclosed Seller’s due diligence files and documentation on the patents andapplications and documentation on the bankruptcy of VIA, Inc. toPurchaser, insofar as documentation is available to Seller, includingdocumentation of Pre-bankruptcy Agreements (defined below) entered by VIA, Inc.or its predecessors.

 

1.4          Sellerwishes to sell to Purchaser all its right, title, and interest in such patentsand applications and the causes of action to sue for infringement thereof andother enforcement rights.

 

1.5          Purchaserwishes to purchase from Seller all right, title, and interest in the AssignedPatent Rights (defined below), free and clear of any restrictions, liens,claims, and encumbrances, other than the Pre-Bankruptcy Agreements (as definedbelow).

 

**2.             DEFINITIONS**

 

**“*AbandonedAssets*”****means those specific provisional patent applications, patentapplications, patents and other governmental grants or issuances listed on ***Exhibit C*** (as such list may beupdated based on Purchaser’s review pursuant to paragraph 3.1).

 

**“*AssignedPatent Rights*”****means the Patents and the additional rights set forth in paragraph 4.2.

 

**“*AssignmentAgreements*”** means theagreements assigning ownership of the Assigned Patent Rights and the AbandonedAssets from the inventors and/or prior owners to Seller.

 

**“*CommonInterest Agreement*”**means an agreement, in the form set forth on ***Exhibit E***,setting forth the terms under which Seller and Purchaser will protect certaininformation relating to the Patents under the common interest privilege.

 

**“*Docket*”** means Seller’s or its agents’ list or other means of trackinginformation

 

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relating to the prosecution or maintenance of thePatents throughout the world, including, without limitation, the names,addresses, email addresses, and phone numbers of prosecution counsel andagents, and information relating to deadlines, payments, and filings, whichlist or other means of tracking information is current as of the EffectiveDate.

 

**“*Effective Date*”**meansthe date set forth as the Effective Date on the signature page of thisAgreement.

 

**“*Executed Assignments*”** means both the executed and witnessed Assignment of Patent Rights in ***Exhibit B****,*****the executed Assignment of Rights in CertainAssets in ***Exhibit C,***each assigned by a duly authorized representative of Seller, and the additionaldocuments Seller may be required to execute and deliver under paragraph 5.3.

 

**“*Live Assets*”**meansUS Patent 6,121,960 and South Korea Patent KR10-0627378, and any of theprovisional patent applications and US or foreign patent applications listed on***Exhibits A and/or B***(as such lists may be updated based on Purchaser’s review pursuant toparagraph 3.1).

 

**“*Patents*”** means, excluding the Abandoned Assets, all

 

(a) Live Assets;

 

(b) patents orpatent applications

 

(i)            to which any of the Live Assetsdirectly or indirectly claims priority,

(ii)           for which any of the Live Assetsdirectly or indirectly forms a basis for priority, and/or

(iii)          that were co-owned applications thatincorporate by reference, or are incorporated by reference into the Live Assetsfor the purpose of claiming priority under 35 U.S.C. §119(e);

 

(c) reissues,reexaminations, extensions, continuations, continuations in part, continuingprosecution applications, requests for continuing examinations, divisions, andregistrations of any item in any of the foregoing categories (a) and (b);

 

(d) foreign patents,patent applications and counterparts relating to any item in any of theforegoing categories (a) through (c), including, without limitation,certificates of invention, utility models, industrial design protection, designpatent protection, and other governmental grants or issuances; and (e) anyitems in any of the foregoing categories (b) through (d) whether ornot expressly listed as Live Assets******andwhether or not claims in any of the foregoing have been rejected, withdrawn,cancelled, or the like.

 

***“Pre-bankruptcyAgreements”*** means the agreementslisted in ***Exhibit F***.

 

**“*****Primary Warranties*****”**means,collectively, the representations and warranties of Seller set forth inparagraphs 6.1, 6.2, 6.3, 6.4, and 6.5 hereof.

 

**“*****Prosecution History Files*****”**means all files, documents andtangible things, as those terms have been interpreted pursuant to rules andlaws governing the production of documents and things, constituting, comprisingor relating to the investigation, evaluation, preparation, prosecution,maintenance, defense, filing, issuance, registration, assertion or enforcementof the Patents.

 

**“*****Transmitted Copy*****”** has the meaning set forth in paragraph8.12.

 

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**3.             TRANSMITTAL, REVIEW, CLOSING CONDITIONS AND PAYMENT**

 

3.1          Transmittal.** **Withintwenty (20) calendar days following the later of the Effective Date or thedate Purchaser receives a Transmitted Copy of this Agreement executed bySeller, Seller will send to Purchaser, or its legal counsel, the itemsidentified on ***Exhibit D*** (the “***Initial Deliverables***”).  Seller acknowledges and agrees that Purchasermay request, and Seller will promptly deliver to Purchaser or its legalcounsel, as directed by Purchaser, such additional documents as are reasonablyavailable to Seller and are requested by Purchaser, based on Purchaser’s reviewof the Initial Deliverables (such additional documents and the InitialDeliverables are, collectively, the “***Deliverables***”),and that as a result of Purchaser’s review, the lists of Live Assets on ***Exhibits******A*** and ***B*** and thelist of Abandoned Assets on***Exhibit C***,may be revised by Purchaser, with mutual agreement of Seller (evidenced by oneor more Executed Assignments), both before and after the Closing to conformthese lists to the definition of Patents (and these revisions may thereforerequire the inclusion of additional provisional patent applications, patentapplications, and patents on ***Exhibit A***and ***B*** or ***Exhibit C***).  To the extent any of the Live Assets areremoved for any reason, the payment in paragraph 3.4 may be reduced by mutualagreement of the parties.  If originalsof the Deliverables are not delivered to Purchaser prior to Closing, Sellerwill cause (i) such originals of the Deliverables to be sent to Purchaseror Purchaser’s representative promptly if and after such originals are locatedor after such originals become available to Seller, and (ii) Seller willdeliver to Purchaser a declaration, executed under penalty of perjury, detailingSeller’s efforts to locate such unavailable original documents and detailsregarding how delivered copies were obtained.

 

3.2          Closing.  The closing of the sale of the AssignedPatent Rights and the assignment of the Abandoned Assets hereunder will occurwhen all conditions set forth in paragraph 3.3 have been satisfied or waivedand the payment set forth in paragraph 3.4 is made (the **“*Closing*”**). Purchaser and Seller will use reasonable efforts to carry out theClosing within thirty (30) calendar days following the later of the EffectiveDate or the date on which the last of the Deliverables was received byPurchaser.

 

3.3          ClosingConditions.  The following areconditions precedent to Purchaser’s obligation to make the payment in paragraph3.4.

 

(a)           Signature by Seller.  Seller timely executed this Agreement anddelivered a Transmitted Copy of this Agreement to Purchaser’s representativesby not later than June 10, 2010 at 5:00 p.m., Pacific Time andpromptly delivered two (2) executed originals of this Agreement toPurchaser’s representatives.

 

(b)           Transmittal of Documents.  Seller delivered to Purchaser all theDeliverables.

 

(c)           Compliance With Agreement.  Seller performed and complied in all respectswith all of the obligations under this Agreement that are to be performed orcomplied with by it on or prior to the Closing.

 

(d)           Representations and WarrantiesTrue.  Purchaser is satisfied that,as of the Effective Date and as of the Closing, the representations andwarranties of Seller contained in Section 6 are true and correct.

 

(e)           PatentsNot Abandoned.  Purchaser issatisfied that, as of the Effective Date and asof the Closing, none of the assets that areincluded in the Patents have expired, lapsed, been abandoned, or deemedwithdrawn.

 

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(f)            Deliveryof Executed Assignments.  Sellercaused the Executed Assignments to be delivered to Purchaser’s representatives.

 

(g)           Releaseof Security Interest.  Any interestthat Hercules, Inc. (and any successors thereto or affiliates thereof) hasor may have had in the Assigned Patent Rights (collectively, the ***“Hercules Security Interest”***) hasbeen fully and finally released pursuant to the form set forth in ***Exhibit G***, and Seller shallhave (i) caused a fully executed copy of any such release to be deliveredto Purchaser’s representatives, (ii) filed such release in any applicablejurisdictions, and (iii) caused satisfactory evidence of such filing to bedelivered to Purchaser’s representatives.

 

3.4          Payment.  At Closing, Purchaser will pay to Seller theamount of Two Million Two Hundred Thousand U.S. Dollars (US $2,200,000) by wiretransfer.  Prior to Closing, Seller willfurnish Purchaser with all necessary information to make a wire transfer to adesignated bank account of Seller. Purchaser may record the Executed Assignments with the applicable patentoffices only on or after Closing.

 

3.5          Terminationand Survival.  In the event allconditions to Closing set forth in paragraph 3.3 are not met within ninety (90)days following the Effective Date, Purchaser will have the right to terminatethis Agreement by written notice to Seller. Upon termination, Purchaser will return all documents delivered toPurchaser under this Section 3 to Seller. The provisions of Section 8 will survive any termination.

 

**4.             TRANSFER OF PATENTS AND ADDITIONAL RIGHTS**

 

4.1          Assignment of Patents. Upon the Closing, Seller hereby sells, assigns, transfers, and conveysto Purchaser all right, title, and interest in and to the Assigned Patent Rights.  Seller understands and acknowledges that, ifany rights in the Patents are assigned or licensed to Seller’s affiliates orsubsidiaries, Seller may be required prior to or concurrently with the Closingto perform certain actions to establish that Seller is the assignee of allrights or licenses in the Assigned Patent Rights of said affiliates orsubsidiaries, by recording appropriate assignments or presenting recordableassignments to that effect at the time of Closing.  On or before Closing, Seller will execute anddeliver to Purchaser the Assignment ofPatent Rights in the form set forth in ***Exhibit B***(as may be updated based on Purchaser’s review pursuant to paragraph 3.1).

 

4.2          Assignment of Additional Rights. Upon the Closing, Seller hereby also sells, assigns, transfers, andconveys to Purchaser all right, title and interest in and to all

 

(a)           inventions, invention disclosures, and discoveries described in any ofthe Patents or Abandoned Assets that (i) are encompassed by any claim inthe Patents or Abandoned Assets, and/or (ii) are subject matter capable ofbeing reduced to a patent claim in a reissue or reexamination proceedingbrought on any of the Patents or Abandoned Assets;

 

(b)           rights to apply inany or all countries of the world for patents, certificates of invention,utility models, industrial design protections, design patent protections, orother governmental grants or issuances of any type corresponding to any of thePatents and the inventions, invention disclosures, and discoveries therein;

 

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(c)           causes of action(whether known or unknown or whether currently pending, filed, or otherwise)and other enforcement rights under, or on account of, any of the Patents and/orthe rights described in subparagraph 4.2(b), including, without limitation, allcauses of action and other enforcement rights for (i) damages, (ii) injunctive relief, and (iii) any other remedies of any kind for past, current and futureinfringement; and

 

(d)           rights to collectroyalties or other payments under or on account of any of the Patents and/orany of the foregoing, but excluding any royalties paid under the Pre-BankruptcyAgreements prior to the Effective Date.

 

4.3          Assignment of Rights in CertainAssets.  Upon the Closing, Sellerhereby sells, assigns, transfers, and conveysto Purchaser all of Seller’s right, title, and interest in and to the AbandonedAssets.  On or before Closing, Sellerwill execute and deliver to Purchaser the Assignment of Certain Rights in the formset forth in ***Exhibit C*** (as may beupdated based on Purchaser’s review pursuant to paragraph 3.1).

 

4.4          License Back to Seller underPatents.  Upon the Closing, Purchaserhereby grants to Seller and to Seller’s parent company, InfoLogix, Inc.(***“Parent”***), under the Patents, andfor the lives thereof, a royalty-free, non-exclusive, non-sublicensable,non-transferable right and license (***“Seller License”***)to practice the methods and to make, have made, use, distribute, lease, sell,offer for sale, import, export, develop and otherwise dispose of and exploitany Seller products covered by the Patents (***“CoveredProducts”***).  The SellerLicense shall apply to the production and subsequent distribution of CoveredProducts under Seller’s or Parent’s trademarks and brands and in substantiallysimilar form as they are distributed by the Seller or Parent, by theirauthorized agents such as a distributor, replicator, VAR or OEM.  TheSeller License shall not cover foundry or contract manufacturing activitiesthat Seller may undertake on behalf of any person that is not Seller orParent.  As a result, Covered Productsshall exclude any products or services manufactured, produced or provided bySeller or Parent on behalf of any person that is not Seller or Parent (a) fromdesigns received in substantially completed form from a source other thanSeller or Parent and (b) for resale to such person that is not Seller orParent (or to customers of, or as directed by, any person that is not eitherSeller or Parent) on essentially an exclusive basis. The SellerLicense is nontransferable (by operation of law or otherwise), and anyattempted transfer will be void.

 

4.5          Pre-Bankruptcy Agreements.  Notwithstanding anything to the contraryherein, Purchaser acknowledges and agrees that the Patents are subject to thelicenses granted pursuant to the Pre-bankruptcy Agreements.

 

**5.             ADDITIONAL OBLIGATIONS**

 

5.1          FurtherCooperation.

 

(a)           Atthe reasonable request of Purchaser after Closing, Seller will execute anddeliver such other instruments and do and perform such other acts and things asmay be necessary or reasonably desirable for effecting completely theconsummation of the transactions contemplated hereby, including, withoutlimitation, execution, acknowledgment, and recordation of other such papers,and using commercially reasonable efforts to obtain the same from therespective predecessors or inventors, as necessary or desirable for fullyperfecting and conveying unto Purchaser the benefit of the transactionscontemplated hereby.

 

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(b)           Tothe extent any attorney-client privilege or the attorney work-product doctrineapplies to any portion of the Prosecution History Files and that is retainedafter Closing under Seller’s or Seller’s representatives’ normal documentretention policy, Seller will ensure that, if any such portion of theProsecution History File remains under Seller’s possession or control afterClosing, it is not disclosed to any third party unless (a) disclosure isordered by a court of competent jurisdiction, after all appropriate appeals toprevent disclosure have been exhausted, and (b) Seller gave Purchaserprompt notice upon learning that any third party sought or intended to seek acourt order requiring the disclosure of any such portion of the ProsecutionHistory File.  In addition, Seller willcontinue to prosecute, maintain, and defend the Patents at its sole expenseuntil the Closing.

 

(c)           Sellerwill cooperate with Purchaser, at the reasonable request of Purchaser afterClosing, in efforts by Purchaser to obtain from the respective inventors,prompt production of pertinent facts and documents, otherwise giving oftestimony, execution of petitions, oaths, powers of attorney, specifications,declarations or other papers and other assistance reasonably necessary forfiling patent applications, enforcement or other actions and proceedings withrespect to the claims under the Patents. Purchaser shall compensate Seller for any reasonable, documenteddisbursements and time incurred after Closing in connection with providingassistance under this subparagraph 5.1(c) in connection with anyenforcement or other infringement action regarding the Patents, under astandard billable hour rate of Seller; provided that Seller shall havefurnished Purchaser an advance, written estimate of the fees and costs for suchassistance and Purchaser shall have agreed in writing to pay such fees andcosts. Seller represents that (i) the inventors have never been employeesof Seller, and are not contractually obligated to Seller and (ii) Sellerhas no knowledge about the willingness or unwillingness of the inventors tocooperate following bankruptcy of VIA, Inc. or otherwise.

 

5.2          Paymentof Fees.  Seller will pay anymaintenance fees, annuities, and the like due or payable on the Patents untilthe Closing.  For the avoidance of doubt,Seller shall pay any maintenance fees for which the fee is payable (e.g., thefee payment window opens) on or prior to the Closing even if the surcharge dateor final deadline for payment of such fee would be after the Closing. Sellerhereby gives Purchaser a limited power-of-attorney to (a) executedocuments in the name of Seller after Closing but only insofar as necessary toeffectuate the recordation of the transfers of any portion of the Patents inany governmental filing office in the world and (b) to pay or to engagelegal counsel to pay maintenance fees and annuities in the name of Seller priorto Closing if Seller should fail or decline to pay such fees and annuitiesprior to Closing.

 

5.3          ForeignAssignments.  To the extent thePatents include non-United States patents and patent applications, Seller willdeliver to Purchaser’s representatives at Closing executed assignments inSeller’s possession.  Seller agrees afterClosing to execute and deliver to Purchaser further assignment documents thatPurchaser may provide in a form that may be required in the non-US jurisdictionto perfect the assignment to Purchaser of the non-U.S. patents and patentapplications.

 

**6.             REPRESENTATIONS AND WARRANTIES OF SELLER**

 

Seller hereby represents and warrants to Purchaseras follows that, as of the Effective Date and as of the Closing:

 

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6.1          Authority.  Seller is a company duly formed, validlyexisting, and in good standing under the laws of the jurisdiction of itsformation.  Seller has the full power andauthority and has obtained all third party consents, approvals, and/or otherauthorizations required to enter into this Agreement and to carry out itsobligations hereunder, including, without limitation, the assignment of theAssigned Patent Rights to Purchaser.

 

6.2          Titleand Contest.  Seller owns all right,title, and interest to the Assigned Patent Rights, including the right to suefor infringement of the Patents.  Sellerhas produced true and correct copies of the records of the respective patentoffice or governmental agency in each relevant jurisdiction showing applicantand owner identifications, assignments or changes of applicant identification,grants and releases of security interests, and related documentationestablishing the complete and correct chain of title for each of the LiveAssets ending with Seller in accordance with governing law and regulations inthe relevant jurisdictions. As of the Closing, Seller has obtained and properlyrecorded previously executed assignments for the Patents (excluding theAbandoned Assets) as necessary to fully perfect its rights and title therein inaccordance with governing law and regulations in each respectivejurisdiction.  As of the Effective Date,the Assigned Patent Rights are free and clear of all liens, claims, mortgages,security interests or other encumbrances, and restrictions, other than theHercules Security Interest and the Pre-Bankruptcy Agreements. As of theClosing, the Assigned Patent Rights are free and clear of all liens, claims,mortgages, security interests or other encumbrances, and restrictions otherthan the Pre-Bankruptcy Agreements. There are no actions, suits, investigations, claims, or proceedingsthreatened, pending, or in progress relating in any way to the Assigned PatentRights.  There are no currently existingcontracts, agreements, options, commitments, proposals, bids, offers, or rightswith, to, or in any person to acquire any of the Assigned Patent Rights.

 

6.3          ExistingLicenses and Obligations. There is no obligation imposed by astandards-setting organization to license any of the Patents on particularterms or conditions. *** ***Except as may be set forth inthe Pre-bankruptcy Agreements documented in ***Exhibit F***,no licenses under the Patents have been granted or retained by Seller, anyprior owners, or inventors.  To Seller’sknowledge following reasonable due diligence and investigation, no licenseeexercised an option under Section 365(n) of the United StatesBankruptcy Code, 11 U.S.C. §365(n) during the bankruptcy of VIA, Inc.,including those licensees or potential licensees or their successors asmentioned in the Pre-bankruptcy Agreements documented in ***Exhibit F***.  After Closing, except for the Seller Licensegranted herein or as may be set forth in the Pre-bankruptcy Agreementsdocumented in ***Exhibit F***, none ofSeller, any prior owner, or any inventor retain any rights or interest in theAssigned Patent Rights.******None ofthe Pre-bankruptcy Agreements******containsan exclusive grant or right and, except as expressly noted on ***Exhibit F***, each such license isnontransferable and nonsublicensable. True and correct copies of each of the Pre-bankruptcy Agreements havebeen provided to Purchaser.

 

6.4          Restrictionson Rights.  To Seller’s knowledgefollowing reasonable due diligence and investigation, and except as may be setforth in the Pre-bankruptcy Agreements documented in ***Exhibit F***,Purchaser will not be subject to any covenant not to sue or similarrestrictions on its enforcement or enjoyment of the Assigned Patent Rights orthe Abandoned Assets as a result of any prior transaction related to theAssigned Patent Rights or the Abandoned Assets.

 

6.5          Validity and Enforceability.  To Seller’s knowledge following reasonabledue diligence and investigation, none of the Patents or the Abandoned Assets(other than Abandoned Assets for which abandonment resulted from unpaid feesand/or annuities, or

 

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failureto request examination or otherwise to prosecute or maintain) has ever beenfound invalid, unpatentable, or unenforceable for any reason in anyadministrative, arbitration, judicial or other proceeding, and Seller does notknow of and has not received any notice or information of any kind from anysource suggesting that the Patents may be invalid, unpatentable, orunenforceable.  If any of the Patents areterminally disclaimed to another patent or patent application, all patents andpatent applications subject to such terminal disclaimer are included in thistransaction.  To Seller’s knowledgefollowing reasonable due diligence and investigation, to the extent “smallentity” fees were paid to the United States Patent and Trademark Office for anyPatent, such reduced fees were then appropriate because the payor qualified topay “small entity” fees at the time of such payment and specifically had notlicensed rights in any of the Patents to an entity that was not a “smallentity.”

 

6.6          Conduct.  To Seller’s knowledge following reasonabledue diligence and investigation, none of Seller, a prior owner or theirrespective agents or representatives have engaged in any conduct, or omitted toperform any necessary act, the result of which would invalidate any of thePatents or hinder their enforcement, including, without limitation,misrepresenting the Patents to a standard-setting organization.

 

6.7          Enforcement.Seller has not put a third party on notice of actual or potential infringementof any of the Patents or the Abandoned Assets. Except for communications in connection with sale of the Patents and theAbandoned Assets, true and correct copies of which communications have been providedto Purchaser, Seller has not invited any third party to enter into a licenseunder any of the Patents or the Abandoned Assets.  Seller has not initiated any enforcementaction with respect to any of the Patents or the Abandoned Assets.

 

6.8          PatentOffice Proceedings.  None of thePatents or the Abandoned Assets has been or is currently involved in anyreexamination, reissue, interference proceeding, or any similar proceeding, andno such proceedings are pending or threatened.

 

6.9          Fees.  To Seller’s knowledge following reasonabledue diligence and investigation, all maintenance fees, annuities, and the likedue or payable on the Patents have been timely paid.  For the avoidance of doubt, such timelypayment includes payment of any maintenance fees for which the fee is payableas of the Closing (e.g., the fee payment window is then open) even if thesurcharge date or final deadline for payment of such fee would be in thefuture.

 

6.10        Abandoned Assets.  To Seller’s knowledge following reasonabledue diligence and investigation, according to each applicable patent office,each of the Abandoned Assets has expired, lapsed, or been abandoned or deemedwithdrawn.

 

**7.             REPRESENTATIONS AND WARRANTIES OF PURCHASER**

 

Purchaser hereby represents and warrants to Seller****as follows that, as of the Effective Date and as of theClosing:

 

7.1          Purchaseris a limited liability company duly formed, validly existing, and in goodstanding under the laws of the jurisdiction of its formation.

 

7.2          Purchaserhas all requisite power and authority to (i) enter into, execute, anddeliver this Agreement and (ii) perform fully its obligations hereunder.

 

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**8.             MISCELLANEOUS**

 

8.1          Limitationof Liability.  THE TOTAL LIABILITY OFEITHER PURCHASER OR SELLER UNDER THIS AGREEMENT FOR ANY REASON SHALL NOT EXCEEDONE AND ONE HALF (1.5) TIMES THE PURCHASE PRICE SET FORTH IN PARAGRAPH 3.4 OFTHIS AGREEMENT.  THE PARTIES ACKNOWLEDGETHAT THE LIMITATIONS ON POTENTIAL LIABILITIES SET FORTH IN THIS PARAGRAPH 8.1WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.

 

8.2          Limitation on Consequential Damages.  EXCEPT IN THE EVENT OF SELLER’S OR PURCHASER’SINTENTIONAL MISREPRESENTATION, NEITHER PARTY WILL HAVE ANY OBLIGATION ORLIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OROTHERWISE, AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVEOR IMPUTED), REPRESENTATION, STRICT LIABILITY OR PRODUCT LIABILITY), FOR COVEROR FOR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL, MULTIPLIED, PUNITIVE,SPECIAL, OR EXEMPLARY DAMAGES OR LOSS OF REVENUE, PROFIT, SAVINGS OR BUSINESSARISING FROM OR OTHERWISE RELATED TO THIS AGREEMENT, EVEN IF A PARTY OR ITSREPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE PARTIES ACKNOWLEDGE THAT THESE EXCLUSIONSOF POTENTIAL DAMAGES WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDERTHIS AGREEMENT.

 

8.3          Compliance With Laws.  Notwithstanding anything contained in thisAgreement to the contrary, the obligations of the parties with respect to theconsummation of the transactions contemplated by this Agreement shall besubject to all laws, present and future, of any government having jurisdictionover the parties and this transaction, and to orders, regulations, directionsor requests of any such government.

 

8.4          Confidentialityof Terms.  The parties hereto willkeep the terms of this Agreement and the identities of the parties hereto andtheir affiliates confidential and will not now or hereafter divulge any of thisinformation to any third party except (a) with the prior written consentof the other party; (b) as otherwise may be required by law or legalprocess; (c) during the course of litigation, so long as the disclosure ofsuch terms and conditions is restricted in the same manner as is the confidentialinformation of other litigating parties; (d) in confidence to its legalcounsel, accountants, banks, and financing sources and their advisors solely inconnection with complying with or administering its obligations with respect tothis Agreement; (e) by Purchaser, to potential purchasers or licensees ofthe Assigned Patent Rights or the Abandoned Assets; (f)  in order toperfect Purchaser’s interest in the Assigned Patent Rights or the AbandonedAssets with any governmental patent office (including, without limitation,recording the Executed Assignments in any governmental patent office); or (g) toenforce Purchaser’s right, title, and interest in and to the Assigned PatentRights or the Abandoned Assets; provided that, in (b) and (c) above, (i) tothe extent permitted by law, the disclosing party will use all legitimate andlegal means available to minimize the disclosure to third parties, including,without limitation, seeking a confidential treatment request or protectiveorder whenever appropriate or available; and (ii) the disclosing partywill provide the other party with reasonable prior written notice of suchdisclosure.  Without limiting theforegoing, Seller will cause its agents involved in this transaction to abideby the terms of this paragraph, including, without limitation, ensuring thatsuch agents do not disclose or otherwise publicize the existence of thistransaction with actual or potential clients in marketing materials, orindustry conferences.

 

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8.5          GoverningLaw; Venue/Jurisdiction.  ThisAgreement will be interpreted, construed, and enforced in all respects inaccordance with the laws of the State of Delaware, without reference to itschoice of law principles to the contrary. Neither party will commence or prosecute any action, suit, proceeding orclaim arising under or by reason of this Agreement other than in the state orfederal courts located in Delaware. Purchaser and Seller irrevocably consent to the jurisdiction and venue ofthe courts identified in the preceding sentence in connection with any action,suit, proceeding, or claim arising under or by reason of this Agreement.

 

8.6          Notices.  All notices given hereunder will be given inwriting (in English or with an English translation), will refer to Purchaserand Seller and to this Agreement and will be delivered to the address set forthbelow by (i) personal delivery, (ii) delivery postage prepaid by aninternationally-recognized express courier service, or (iii) facsimile:

 
| If  to Purchaser                   | If  to Seller                            |
|------------------------------------|------------------------------------------|
| Intellectual  Ventures Fund 68 LLC | Embedded  Technologies, LLC              |
| 7251  W Mead Blvd                  | c/o  InfoLogix, Inc.                |
| Ste  300                           | 101  E. County Line Road, Suite 210 |
| Las  Vegas, NV 89128               | Hatboro,  PA 19040                       |
|                               |                                     |
|                               | Attn:                                    |   |
| Attn:  Managing Director           | Facsimile:                               |
| Facsimile:                         |                                     |

 

Notices are deemed given on (a) the date ofreceipt if actually received or shown to have been successfully transmitted (b) ifdelivery is by personal delivery or by express courier and is refused, the dateof refusal.  Notice given in any othermanner will be deemed to have been given only if and when received at theaddress of the person to be notified. Either party may from time to time change its address for notices underthis Agreement by giving the other party written notice of such change inaccordance with this paragraph.

 

8.7          Relationshipof Parties.  The parties hereto areindependent contractors.  Nothing in thisAgreement will be construed to create a partnership, joint venture, franchise,fiduciary, employment or agency relationship between the parties.  Neither party has any express or impliedauthority to assume or create any obligations on behalf of the other or to bindthe other to any contract, agreement or undertaking with any third party.

 

8.8          EquitableRelief.  Seller acknowledges andagrees that damages alone would be insufficient to compensate Purchaser for abreach by Seller of this Agreement and that irreparable harm would result froma breach of this Agreement.  Seller herebyconsents to the entering of an order for injunctive relief to prevent a breachor further breach, and the entering of an order for specific performance tocompel performance of any obligations under this Agreement.

 

8.9          Severability.  If any provision of this Agreement is foundto be invalid or unenforceable, then the remainder of this Agreement will havefull force and effect, and the invalid provision will be modified, or partiallyenforced, to the maximum extent permitted to effectuate the original objective.

 

8.10        Waiver.  Failure by either party to enforce any termof this Agreement will not be deemed a waiver of future enforcement of that orany other term in this Agreement or any other agreement that may be in placebetween the parties.

 

10

----

 

8.11        Miscellaneous.  This Agreement, including itsexhibits, constitutes the entire agreement between the parties with respect tothe subject matter hereof and merges and supersedes all prior andcontemporaneous agreements, understandings, negotiations, and discussions.  Neither of the parties will be bound by anyconditions, definitions, warranties, understandings, or representations withrespect to the subject matter hereof other than as expressly provided herein.  The section headings contained in this Agreementare for reference purposes only and will not affect in any way the meaning orinterpretation of this Agreement.  Thisparties acknowledge that the intent of the parties is that the Agreement is notintended to confer any right or benefit on any third party (including, but notlimited to, any employee or beneficiary of any party), and no action may becommenced or prosecuted against a party by any third party claiming as athird-party beneficiary of this Agreement or any of the transactions contemplatedby this Agreement**. **Nooral explanation or oral information by either party hereto will alter themeaning or interpretation of this Agreement. No amendments or modifications will be effective unless in a writingsigned by authorized representatives of both parties.  The terms and conditions of this Agreementwill prevail notwithstanding any different, conflicting or additional terms andconditions that may appear on any letter, email or other communication or otherwriting not expressly incorporated into this Agreement.  The following exhibits are attached heretoand incorporated herein:  ***Exhibit A*** (entitled “Patents to beAssigned”); ***Exhibit B*****(entitled“Assignment of Patent Rights”); ***Exhibit C***(entitled “Assignment of Rights in Certain Assets”); ***ExhibitD***(entitled “List of Initial Deliverables”); ***Exhibit E***(entitled “Common InterestAgreement”); ***Exhibit F***(entitled “Pre-bankruptcyAgreements”); and ***Exhibit G***(entitled “Releaseof Security Interest”).

 

8.12        Counterparts;Electronic Signature; Delivery Mechanics.  ThisAgreement may be executed in counterparts, each of which will be deemed anoriginal, and all of which together constitute one and the sameinstrument.  Each party will execute andpromptly deliver to the other parties a copy of this Agreement bearing theoriginal signature.  Prior to suchdelivery, in order to expedite the process of entering into this Agreement, theparties acknowledge that a Transmitted Copy of this Agreement will be deemed anoriginal document.  **“*Transmitted Copy*”** means a copy bearing asignature of a party that is reproduced or transmitted via email of a .pdffile, photocopy, facsimile, or other process of complete and accuratereproduction and transmission.

 

8.13        Publicity and SECReporting.  Seller may divulge the terms of thisAgreement or identity of the parties hereto as reasonably necessary in thejudgment of Seller’s legal counsel to comply with public disclosure duties ofpublic companies, provided that such disclosure will be limited to the specificinformation that is required by law to be disclosed, and in no eventwill Seller file with the Securities and Exchange Commission (***“SEC”***) or otherwise disclose any ofthe following information: (1) any identifying information regarding Purchaseror its affiliates, other than Purchaser’s name (but excluding such informationrequired to be disclosed by the SEC under any laws or regulations enacted oradopted after the Effective Date); (2) any identifying information regardingthe Patents, including without limitation patent numbers and patent applicationnumbers (but excluding such information required to be disclosed by the SECunder any laws or regulations enacted or adopted after the Effective Date); or(3) any of the exhibits to this Agreement (but excluding such informationrequired to be disclosed by the SEC under any laws or regulations enacted oradopted after the Effective Date).  In the event that Seller discloses anyidentifying information regarding Purchaser or its affiliates that is requiredto be disclosed by the SEC under any laws or regulations enacted oradopted after the Effective Date, Seller will use commercially reasonableefforts to obtain from the SEC confidential treatment of such information.

 

11

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Inwitness whereof, intending to be legally bound, the parties have executed thisPatent Purchase Agreement as of the Effective Date.

 
| SELLER:                         | PURCHASER:                 |
|---------------------------------|----------------------------|
|                            |                       |
| **EMBEDDED  TECHNOLOGIES, LLC** | **NAME  OF PURCHASER LLC** |
|                            |                       |
|                            |                       |
| By:                             | /s/  Eric N. Rubino        |   | By: | /s/  Joe Kesiqura |
|                            |                       |   |   |   |
| Name:  Eric N. Rubino           | Name:  Joe Kesiqura        |
|                            |                       |
| Title:  Chief Operating Officer | Title:  Authorized Person  |

 

**Effective Date: June 3, 2010**

 

12

----

 

***Exhibit A***

 

**PATENTS TO BE ASSIGNED**

 
| **Patent  or Application No.**                     | ** ** | **Country** | ** ** | **Filing Date** | ** ** | **Title of Patent and First  Named Inventor**                |
|----------------------------------------------------|------------|-------------|------------|-----------------|------------|--------------------------------------------------------------|
| 6,121,960  (on application no. 08/919,527)         |       | US          |       | 08/28/1997      |       | Touch  screen systems and methods

 

David  W. Carroll |
| 10-0627378  (on application no. KR10-1999-7001648) |       | KR          |       | 02/27/1999      |       | Touch  screen systems and methods

 

David  W. Carroll |

 

----

 

***Exhibit B***

 

**ASSIGNMENT OF PATENT RIGHTS**

 

Forgood and valuable consideration, the receipt of which is hereby acknowledged,Embedded Technologies, LLC, a Delaware limited liability company, with anoffice at c/o InfoLogix, Inc., 101 E. County Line Road, Suite 210, Hatboro, PA19040 (**“*Assignor*”**),does hereby sell, assign, transfer, and convey unto Intellectual Venture Fund68 LLC, a Nevada limited liability company, having an address at 7251 W MeadBlvd Ste 300 Las Vegas, NV 89128 (**“*Assignee*”**),or its designees, all right, title, and interest that exist today and may existin the future in and to any and all of the following (collectively, the **“*Patent Rights*”**):

 

(a)           the provisionalpatent applications, patent applications and patents listed in the table below(the “***Patents***”);

 
| **Patent  or Application No.** | ** ** | **Country** | ** ** | **Filing Date** | ** ** | **Title of Patent and First  Named Inventor**                |
|--------------------------------|------------|-------------|------------|-----------------|------------|--------------------------------------------------------------|
| 6,121,960                      |       | US          |       | 08/28/1997      |       | Touch  screen systems and methods

 

David  W. Carroll |
| 10-0627378                     |       | KR          |       | 02/27/1999      |       | Touch  screen systems and methods

 

David  W. Carroll |

 

(b)           all patents andpatent applications (i) to which any of the Patents directly or indirectlyclaims priority, (ii) for which any of the Patents directly or indirectly formsa basis for priority, or (iii) that were co-owned applications that for thepurpose of claiming priority under 35 U.S.C. §119(e) incorporate by reference,or are incorporated by reference into the Patents;

 

(c)           all reissues,reexaminations, extensions, continuations, continuations in part, continuingprosecution applications, requests for continuing examinations, divisions,registrations of any item in any of the foregoing categories (a) and (b);

 

(d)           all foreignpatents, patent applications, and counterparts relating to any item in any ofthe foregoing categories (a) through (c), including, without limitation,certificates of invention, utility models, industrial design protection, designpatent protection, and other governmental grants or issuances;

 

(e)           all items in any of the foregoing incategories (b) through (d), whether or not expressly listed as Patents andwhether or not claims in any of the foregoing have been rejected, withdrawn,cancelled, or the like;

 

----

 

(f)            inventions, inventiondisclosures, and discoveries described in any of the Patents and/or any item inthe foregoing categories (b) through (e) that (i) are encompassed by any claimin the Patents and/or any item in the foregoing categories (b) through (e),and/or (ii) are subject matter capable of being reduced to a patent claim in areissue or reexamination proceeding brought on any of the Patents and/or anyitem in the foregoing categories (b) through (e);

 

(g)           all rights to apply in any or all countries ofthe world for patents, certificates of invention, utility models, industrialdesign protections, design patent protections, or other governmental grants orissuances of any type corresponding to any item in any of the foregoingcategories (a) through (f), including, without limitation, under the ParisConvention for the Protection of Industrial Property, the International PatentCooperation Treaty, or any other convention, treaty, agreement, orunderstanding;

 

(h)           all causes of action (whether known orunknown or whether currently pending, filed, or otherwise) and otherenforcement rights under, or on account of, any of the Patents and/or any itemin any of the foregoing categories (b) through (g), including, withoutlimitation, all causes of action and other enforcement rights for

(1)       damages, (2)       injunctive relief, and (3)       any other remedies of any kind

for past, current,and future infringement; and

 

(i)            all rights to collect unpaid royalties andother payments under or on account of any of the Patents and/or any item in anyof the foregoing categories (b) through (h), but excluding any royalties paidprior to the date hereof under any pre-existing license agreements disclosed toAssignee by Assignor.

 

Assignorhereby authorizes the respective patent office or governmental agency in eachjurisdiction to issue any and all patents, certificates of invention, utilitymodels or other governmental grants or issuances that may be granted upon anyof the Patent Rights in the name of Assignee, as the assignee to the entireinterest therein.

 

Assignorwill, at the reasonable request of Assignee and without demanding any furtherconsideration therefore, do all things reasonably necessary, proper, oradvisable, including without limitation, the execution, acknowledgment, andrecordation of specific assignments, oaths, declarations, and other documentson a country-by-country basis, to assist Assignee in obtaining, perfecting,sustaining, and/or enforcing the Patent Rights.

 

Theterms and conditions of this Assignment of Patent Rights will inure to thebenefit of Assignee, its successors, assigns, and other legal representativesand will be binding upon Assignor, its successors, assigns, and other legalrepresentatives.

 

INWITNESS WHEREOF this Assignment of Patent Rights is executedat                            on                                                                                    .

 

2

----

 

**ASSIGNOR:**

 

**EmbeddedTechnologies, LLC**

 

 
| By:                             |   |   |
|---------------------------------|--------|--------|
| Name:                           |   |   |
| Title:                          |   |   |
| *(Signature  MUST be attested)* |

 

 

**ATTESTATION OF SIGNATURE PURSUANT TO 28 U.S.C. § 1746**

 

Theundersigned witnessed the signature of                                  to the above Assignment of Patent Rights on behalf of Embedded Technologies,LLC and makes the following statements:

 

1.             I am over the age of 18 andcompetent to testify as to the facts in this Attestation block if called uponto do so.

 

2.                                    ispersonally known to me (or proved to me on the basis of satisfactory evidence)and appeared before me on                      , 20     to execute the aboveAssignment of Patent Rights on behalf of Embedded Technologies, LLC.

 

3.                                     subscribedto the above Assignment of Patent Rights on behalf of Embedded Technologies,LLC.

 

Ideclare under penalty of perjury under the laws of the United States of Americathat the statements made in the three (3) numbered paragraphs immediately aboveare true and correct.

 

EXECUTEDon                                      (date)

 
|         |   |   |
|--------------|--------|--------|
| Print  Name: |   |   |   |
|              |        |        |  |

 

3

----

 

***Exhibit C***

 

**ASSIGNMENT OF RIGHTS IN CERTAIN ASSETS**

 

For good and valuable consideration, the receipt of which is herebyacknowledged, Embedded Technologies, LLC, a Delaware limited liability company,with an office at c/o InfoLogix, Inc., 101 E. County Line Road, Suite 210,Hatboro, PA 19040 (**“*Assignor*”**),does hereby sell, assign, transfer, and convey unto                        LLC [Name of Purchaser], a                  [State of Formation] limited liability company, having an address at                              [Addressof Purchaser] (**“*Assignee*”**),or its designees, all of Assignor’s right, title, and interest in and to anyand all of the following provisional patent applications, patent applications,patents, and other governmental grants or issuances of any kind (the “***Certain Assets***”):

 
| **Patent  or Application No.** | ** ** | **Country** | ** ** | **Filing Date** | ** ** | **Title of Patent and First  Named Inventor**                                       |
|--------------------------------|------------|-------------|------------|-----------------|------------|-------------------------------------------------------------------------------------|
| 10/247,748                     |       | US          |       | 09/19/2002      |       | Touch  screen systems and methods

 

David  W Carroll                         |
| 60/024,780                     |       | US          |       | 08/28/1996      |       | Screen  peripheral device for wearable personal computer

 

David  W. Carroll |
| CA2264167                      |       | CA          |       | 08/28/1997      |       | Touch  screen systems and methods

 

David  W. Carroll                        |
| EP97941345.7                   |       | EP          |       | 08/28/1997      |       | Touch  screen systems and methods

 

David  W. Carroll                        |
| JP09-011687                    |       | JP          |       | 08/28/1997      |       | Touch  screen systems and methods

 

David  W. Carroll                        |
| PCT/US1997/014176              |       | WO          |       | 08/28/1997      |       | Touch  screen systems and methods

 

David  W. Carroll                        |
| 60/028,028                     |       | US          |       | 10/09/1996      |       | Input  device for wearable personal computer

 

David  W. Carroll             |
| 60/036,195                     |       | US          |       | 01/21/1997      |       |  

                                                                       |

 

OnAssignor’s information and belief, each of the assets (patents or applications)listed above is believed to have lapsed or gone abandoned.  Assignor nevertheless assigns to Assignee allAssignor’s rights to the inventions, invention disclosures, and discoveriesthat may be found in the assets listed above, whether or not capable of revivalof prosecution or otherwise being effective or helpful to support a cause ofaction upon which to sue or 

 

----

 

otherwiseenforce any claims under such assets for past, present or future infringement,together with the rights, if any, to revive prosecution of claims under suchassets and to sue or otherwise enforce any claims under such assets for past,present or future infringement.

 

Assignorhereby authorizes the respective patent office or governmental agency in eachjurisdiction to make available to Assignee all records regarding the CertainAssets.

 

Theterms and conditions of this Assignment of Rights in Certain Assets will inureto the benefit of Assignee, its successors, assigns, and other legalrepresentatives and will be binding upon Assignor, its successors, assigns, andother legal representatives.

 

DATEDthis      day of                20    .

 

**ASSIGNOR:**

 

**EmbeddedTechnologies, LLC**

 

 
| By:    |   |   |
|--------|--------|--------|
| Name:  |   |   |
| Title: |   |   |

 

----

 

***Exhibit D***

 

LIST OF INITIAL DELIVERABLES

 

Seller will cause the following to be delivered toPurchaser, or Purchaser’s representative, within the time provided in paragraph3.1 of the attached Patent Purchase Agreement:

 

(a)                                  U.S. Patents.  For each item of the Patents that is anissued United States patent, and for each Abandoned Asset that forms the basisfor priority for such issued U.S. patent (whether a patent or similarprotection has been issued or granted),

 

(i)                                     acertified copy of United States Patent 6,121,960, and a written explanation, inaccordance with paragraph (e) below, of efforts undertaken to discover thelocation of the original ribbon copy

(ii)                                  originals(or copies in accordance with paragraph (e) below, of all AssignmentAgreements and agreement(s) containing assignment terms or obligations inSeller’s possession or control,

(iii)                               all materials representing conception and/or reduction to practice inSeller’s possession or control,

(iv)                              a printout of the Docket,

(v)                                 copiesof all relevant license and security agreements in Seller’s possession orcontrol;

 

(b)                                 Non-U.S. for each Live Asset forwhich a non-United States patent or similar protection has been issued orgranted,

 

(i)                                     the original certificate issued by the Korean government

(ii)                                  a copy of each pending foreign application in Seller’s possession orcontrol

(iii)                               a printout of the Docket, (iv)                              originals (or copies in accordance with paragraph (e) below ) ofall Assignment Agreements and agreement(s) containing assignment terms orobligations in Seller’s possession or control,(v)                                 materials evidencing applicant change(s) of name, if any, and (vi)                              copies of all known relevant license and security agreements in Seller’spossession or control;

 

(c)                                  Patent Applications.  For each item of the Patents that is a patent application,

 

(i)                                     acopy of the patent application, as filed, in Seller’s possession or control,

(ii)                                  ifunpublished, a copy of the filing receipt and the non-publication request, ifavailable,

(iii)                               originals (or copies in accordance with paragraph (e) below) of allAssignment Agreements and agreement(s) containing assignment terms orobligations in Seller’s possession or control

(iv)                              a printout of the Docket, if any

(v)                                 allmaterials representing conception and/or reduction to practice in Seller’spossession or control

(vi)                          evidence of foreign filing license (or denial thereof) in Seller’spossession or control,

(vii)                           copies of all relevant license and security agreements in Seller’spossession or control, and(viii)                        the Prosecution History Files in Seller’s possession.

 

(d)                                 Common InterestAgreement.  Seller willdeliver any Initial Deliverables to be delivered by Seller under paragraph (c) aboveto Purchaser’s legal counsel, together with two (2) executed originals of theCommon Interest Agreement.

 

(e)                              Thorough Search/Declaration.  If originals of the Initial Deliverables arenot available and delivered to Purchaser prior to Closing, Seller will cause (i) suchoriginals of the Initial Deliverables to be sent to Purchaser or Purchaser’srepresentative promptly if and after such originals are located and (ii) anappropriate executive officer of Seller to deliver to Purchaser a declaration,executed by such officer under penalty of perjury, detailing Seller’s effortsto locate such unavailable original documents and details regarding howdelivered copies were obtained.

 

Capitalized terms used in this Exhibit D aredefined in the Patent Purchase Agreement to which this Exhibit D isattached.

 

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*** ***

***Exhibit E***

** **

**COMMON INTEREST AGREEMENT**

 

THISCOMMON INTEREST AGREEMENT (**“Agreement”**) isentered into between the undersigned legal counsel (**“Counsel”**),for themselves and on behalf of the parties they represent (as indicatedbelow).

 

**1.****                   ****Background.**

 

1.1                 ,a              limitedliability company (**“Purchaser”**)and Embedded Technologies, LLC, a Delaware company (**“Seller”**)(Purchaser and Seller are sometimes hereafter referred to herein as a **“party”** or the **“parties”**),have entered into an agreement under which Purchaser will acquire all rights incertain patent applications filed or to be filed throughout the world andincluding all rights of Seller in certain related patents and patentapplications that are believed to have lapsed or gone abandoned (allcollectively the **“Patent Matters”**).

 

1.2               The parties have a commoninterest in the Patent Matters and have agreed to treat their communicationsand those of their Counsel relating to the Patent Matters as protected by thecommon interest privilege.  Furtheranceof the Patent Matters requires the exchange of certain proprietary documentsand information, the joint development of legal strategies and the exchange ofattorney work product developed by the parties and their respective Counselhereafter.

 

**2.****                   ****CommonInterest.**

 

2.1               The parties have a common,joint and mutual legal interest in cooperating with each other, to the extentpermitted by law, to share such information protected by the attorney-clientprivilege and by the work product doctrine with respect to the Patent Matters.  Any counsel or consultant retained by a partyor their Counsel to assist in the Patent Matters shall be bound by, andentitled to the benefits of, this Agreement.

 

2.2               In order to further theircommon interest, the parties and their Counsel shall exchange privileged andwork product information, orally and in writing, including, without limitation,factual analyses, mental impressions, legal memoranda, source materials, draftlegal documents, prosecution history files and other information (hereinafter **“Common Interest Materials”**).  The sole purpose for the exchange of theCommon Interest Materials is to support the parties’ common interest withrespect to the prosecution and enforcement of the Patent Matters.  Any Common Interest Materials exchanged shallcontinue to be protected under all applicable privileges and no such exchangeshall constitute a waiver of any applicable privilege or protection.

 

**3.****                   ****Nondisclosure.**

 

3.1               The parties and theirCounsel shall use the Common Interest Materials solely in connection with thePatent Matters and shall take appropriate steps to protect the privileged andconfidential nature of the Common Interest Materials.  Neither party nor their respective Counselshall produce privileged documents or information unless or until directed todo so by a final order of a court of competent jurisdiction, or upon the priorwritten consent of the other party.  Noprivilege or objection shall be waived by a party hereunder without the priorwritten consent of the other party. The obligations under this paragraph willnot apply either to Purchaser after closing of the acquisition of the PatentMatters or to Seller with respect to any dispute with Purchaser related to suchpotential acquisition.

 

3.2               Except as herein provided,in the event that either party or their Counsel is requested or required in thecontext of a litigation, governmental, judicial or regulatory investigation orother similar proceedings (by oral questions, interrogatories, requests forinformation or documents, subpoenas, civil investigative demands or similarprocess) to disclose any Common Interest Materials, the party or their Counselshall immediately inform the other party and their Counsel and shall assert allapplicable privileges, including, without limitation, the common interestdoctrine, the joint prosecution privilege.

 

**4.****                   ****Relationship;Additions; Termination.**

 

4.1               This Agreement does notcreate any agency or similar relationship among the parties.  Through the Closing (as defined in the PatentPurchase Agreement executed by Purchaser and Seller), neither party nor theirrespective Counsel has the authority to waive any applicable privilege ordoctrine on behalf of any other party.

 

4.2               Nothing in this Agreementaffects the separate and independent representation of each party by itsrespective Counsel or creates an attorney client relationship between theCounsel for a party and the other party to this Agreement.

 

4.3               This Agreement shallcontinue until terminated upon the written request of either party.  Upon termination, each party and theirrespective Counsel shall return any Common Interest Materials furnished by theother party.  Notwithstandingtermination, this Agreement shall continue to protect all Common InterestMaterials disclosed prior to termination. Sections 3 and 5 shall survive termination of this Agreement.

 

**5.****                   ****GeneralTerms.**

 

5.1               This Agreement is governedby the laws of the State of Delaware, without regard to any choice of lawprinciples to the contrary.  In the eventany provision of this Agreement is held by any court of competent jurisdictionto be illegal, void or unenforceable, the remaining terms shall remain ineffect.  Failure of either party toenforce any provision of this Agreement shall not be deemed a waiver of futureenforcement of that or any other provision.

 

5.2               The parties agree that abreach of this Agreement would result in irreparable injury, that money damageswould not be a sufficient remedy and that the non-breaching party shall beentitled to equitable relief, including injunctive relief, as a non-exclusiveremedy for any such breach.

 

5.3               Notices given under thisAgreement shall be given in writing and delivered by messenger or overnightdelivery service or facsimile to a party and their respective Counsel at theirlast known address, and shall be deemed to have been given on the day received.

 

5.4               This Agreement is effectiveand binding upon each party as of the date it is signed by or on behalf of aparty and may be amended only by a writing signed by or on behalf of eachparty.  This Agreement may be executed incounterparts.  Any signature reproducedor transmitted via email of a .pdf file, photocopy, facsimile or other processof complete and accurate reproduction and transmission shall be considered anoriginal for purposes of this Agreement.

 

ThisAgreement is being executed by each of the undersigned Counsel with the fullyinformed authority and consent of the respective party it represents.

 
| Counsel  for |   |   | Counsel  for Embedded Technologies, LLC |
|--------------|--------|--------|-----------------------------------------|
|         |   |   |
|         |   |   |
| By:          |   |   | By:                                     |   |
| Date:        |   |   | Date:                                   |   |
|              |        |        |                                         |  |  |

 

----

*** ***

***Exhibit F***

 

**PRE-BANKRUPTCY AGREEMENTS**

 

1- Ceridian License Agreement

2- Amendment 1 to Ceridian License Agreement

3- Amendment 2 to Ceridian License Agreement

4- Amendment 3 to Ceridian License Agreement

5- Amendment 4 to Ceridian License Agreement

 

----

*** ***

***Exhibit G***

 

TERMINATION AND RELEASE OF SECURITY INTEREST

 

ThisTERMINATION AND RELEASE OF SECURITY INTEREST (“Termination and Release”) ismade May       , 2010 by and among HERCULESTECHNOLOGY GROWTH CAPITAL, INC., (“Lender”), a Maryland corporation with aplace of business at 400 Hamilton Ave, Suite 310, Palo Alto, CA 94301, andINFOLOGIX, INC., a Delaware corporation (“InfoLogix”), INFOLOGIXSYSTEMS CORPORATION, a Delaware corporation (formerly known as Info Logix, Inc.,a Delaware corporation) (“ISC”), INFOLOGIX-DDMS, INC., a Delawarecorporation (“DDMS”), OPT ACQUISITION LLC, a Delaware limited liability company(“Opt”), and EMBEDDED TECHNOLOGIES, LLC, a Delaware limited liability company (“Embedded”)(together with InfoLogix, ISC, DDMS, and OPT collectively referred toherein as “Borrower”).

 

WITNESSETH:

 

WHEREAS,Borrower and Lender entered a Loan and Security Agreement dated May 1,2008, an Amended and Restated Loan and Security Agreement dated November 20,2009, as Amended by that certain Amendment No. 1 to Amended and RestatedLoan and Security Agreement dated as of February 19, 2010, and thatcertain Amendment No. 2 to Amended and Restated Loan and SecurityAgreement dated as of April 6, 2010, and the Amendment No. 3 to Amendedand Restated Loan and Security Agreement executed on even date herewith (as maybe amended, restated, or otherwise modified, the “Loan Agreement”), pursuant towhich Lender has agreed to extend and make available to Borrower certainadvances of money;

 

WHEREASpursuant said Loan and Security Agreement and said Amendments No. 1 and 2,Borrower granted to Lender a security interest in certain intellectual propertyincluding US Patent 6,121,960, granted September 19, 2000 on applicationSN 08/919527, filed August 28, 1997, and South Korea Patent 10-0627378,granted September 15, 2006 on application No. KR 10-1999-7001648,filed August 28, 1997, as well as other intellectual property as providedtherein, which grant of a security interest was recorded May 5, 2008 atReel 020897/0325 of the US Patent Office records.

 

WHEREAS,Borrower has proposed for valuable consideration to sell US Patent 6,121,960and KR Patent 10-0627378 to [Name of Purchaser Entity], free and clear of anysecurity interest of Lender, and Lender has consented to such sale and hasagreed to release Lender’s security interest in US Patent 6,121,960 and KRPatent 10-0627378 such that said sale can proceed.

 

NOWTHEREFORE, for good and valuable consideration, the receipt and sufficiency of whichare hereby acknowledged, Lender, HERCULES TECHNOLOGY GROWTH CAPITAL, INC.,agrees and does hereby terminate, release and discharge its security interestin and lien on US Patent 6,121,960 and KR Patent 10-0627378, including (i) allreissues, reexaminations, renewals and extensions thereof; (ii) all rightscorresponding thereto throughout the world; (iii) all causes of actionrelated thereto, whether presently existing or hereafter arising; and (iv) allhereafter collected proceeds thereof (such as, by way of example, licenseroyalties and proceeds for actions for infringements), other than amountsreceived by Borrower in consideration of said sale, without representation,warranty, or recourse of any kind or nature, while retaining in full force its securityinterest in all other properties secured by the Loan and Security Agreement andsaid Amendments Nos. 1 and 2.

 

----

 

INWITNESS WHEREOF, the parties have executed this Termination and Release bytheir duly authorized officers as of the date first above written, intending tobe legally bound and intending that this instrument be recorded.

 
| BORROWER:                                           |                       |
|-----------------------------------------------------|----------------------------|
|                                                |                       |
| INFOLOGIX, INC.                                |                       |
|                                                |                       |
| By:                                                 |                       |   |
| David  T. Gulian, President and CEO                 |                       |
|                                                |                       |
| INFOLOGIX  SYSTEMS CORPORATION                      |                       |
|                                                |                       |
| By:                                                 |                       |   |
| David  T. Gulian, President                         |                       |
|                                                |                       |
| OPT  ACQUISITION LLC                                |                       |
| By:  InfoLogix Systems Corporation, its sole Member |                       |
|                                                |                       |
| By:                                                 |                       |   |
| David  T. Gulian, President                         |                       |
|                                                |                       |
| EMBEDDED  TECHNOLOGIES, LLC                         |                       |
| By:  InfoLogix Systems Corporation, its sole Member |                       |
|                                                |                       |
| By:                                                 |                       |   |
| David  T. Gulian, President                         |                       |
|                                                |                       |
| INFOLOGIX  — DDMS, INC.                   |                       |
|                                                |                       |
| By:                                                 |                       |   |
| David  T. Gulian, President                         |                       |
|                                                |                       |
|                                                |                       |
| LENDER:                                             |                       |
| HERCULES  TECHNOLOGY GROWTH CAPITAL, INC.      |                       |
| a  Maryland corporation                             |                       |
|                                                |                       |
|                                                |                       |
| By:                                                 |                       |   |
| Name:                                               | K.  Nicholas Martitsch     |   |
| Its:                                                | Associate  General Counsel |   |
|                                                     |                            |  |  |

 

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