SELLER AND BUYER WILL COOPERATE IN A
MUTUALLY AGREEABLE ARRANGEMENT UNDER WHICH BUYER WOULD OBTAIN THE BENEFITS AND
ASSUME THE OBLIGATIONS THEREUNDER IN ACCORDANCE WITH THIS AGREEMENT, INCLUDING
SUBCONTRACTING, SUB-LICENSING, OR SUBLEASING TO BUYER, OR UNDER WHICH SELLER
WOULD ENFORCE FOR THE BENEFIT OF BUYER, WITH BUYER ASSUMING SELLER'S
7
OBLIGATIONS, ANY AND ALL RIGHTS OF SELLER AGAINST A THIRD PARTY THERETO. SELLER
WILL PROMPTLY PAY TO BUYER WHEN RECEIVED ALL MONIES RECEIVED BY SELLER UNDER ANY
PURCHASED ASSET OR ANY CLAIM OR RIGHT OR ANY BENEFIT ARISING THEREUNDER, EXCEPT
TO THE EXTENT THE SAME REPRESENTS AN EXCLUDED ASSET. IN SUCH EVENT, SELLER AND
BUYER SHALL, TO THE EXTENT THE BENEFITS THEREFROM AND OBLIGATIONS THEREUNDER
HAVE NOT BEEN PROVIDED BY ALTERNATE ARRANGEMENTS SATISFACTORY TO BUYER AND
SELLER, NEGOTIATE IN GOOD FAITH AN ADJUSTMENT IN THE CONSIDERATION PAID BY BUYER
FOR THE PURCHASED ASSETS, TO THE EXTENT NOT OTHERWISE ADJUSTED PURSUANT TO
SECTION 2.06(B).
2.06
PURCHASE PRICE; CLOSING.
(A)
THE PURCHASE PRICE FOR THE PURCHASED ASSETS (THE "PURCHASE PRICE")
IS (I) $4,340,000 IN CASH, SUBJECT TO ADJUSTMENT AS PROVIDED IN SECTION 2.06(C)
(AS ADJUSTED, THE "INITIAL CASH PAYMENT"), (II) THE EARNOUT PAYMENTS AND
(III) THE ASSUMPTION OF THE ASSUMED LIABILITIES.
(B)
THE CLOSING (THE "CLOSING") OF THE PURCHASE AND SALE OF THE
PURCHASED ASSETS AND THE ASSUMPTION OF THE ASSUMED LIABILITIES HEREUNDER SHALL
TAKE PLACE AT THE OFFICES OF CHOATE, HALL & STEWART LLP, BOSTON, MASSACHUSETTS
AS SOON AS POSSIBLE, BUT IN NO EVENT LATER THAN TWO BUSINESS DAYS AFTER
SATISFACTION OF THE CONDITIONS SET FORTH IN ARTICLE X, OR AT SUCH OTHER TIME OR
PLACE AS BUYER AND SELLER MAY AGREE. AT THE CLOSING,
(I)
BUYER SHALL PAY TO SELLER THE INITIAL CASH PAYMENT BY WIRE
TRANSFER IN IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT MAINTAINED BY SELLER, SUCH
ACCOUNT TO BE DESIGNATED BY SELLER BY WRITTEN NOTICE TO BUYER NOT LATER THAN TWO
BUSINESS DAYS PRIOR TO THE CLOSING DATE.
(II)
SELLER AND BUYER SHALL ENTER INTO AN ASSIGNMENT AND ASSUMPTION
AGREEMENT SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT A, AND SELLER
SHALL DELIVER TO BUYER SUCH DEEDS, BILLS OF SALE, ENDORSEMENTS, CONSENTS,
ASSIGNMENTS AND OTHER GOOD AND SUFFICIENT INSTRUMENTS OF CONVEYANCE AND
ASSIGNMENT (THE "CONVEYANCE DOCUMENTS") AS THE PARTIES AND THEIR RESPECTIVE
COUNSEL SHALL DEEM REASONABLY NECESSARY OR APPROPRIATE TO VEST IN BUYER ALL
RIGHT, TITLE AND INTEREST IN, TO AND UNDER THE PURCHASED ASSETS.
(III)
EACH OF SELLER AND BUYER SHALL EXECUTE AND DELIVER EACH OF THE
ANCILLARY AGREEMENTS TO BE ENTERED INTO BY IT AT THE CLOSING, IN EACH CASE
SUBSTANTIALLY IN THE FORM ATTACHED AS AN EXHIBIT TO THIS AGREEMENT.
(IV)
SELLER SHALL HAVE ARRANGED WITH BUYER FOR THE PHYSICAL DELIVERY OF
THE PERSONAL PROPERTY AND ALL COPIES OF THE BUSINESS INTELLECTUAL PROPERTY, AND
THE PHYSICAL EMBODIMENT THEREOF, INCLUDING, WITHOUT LIMITATION, SOURCE CODE AND
ALL COPIES OF ALL VERSIONS OF THE SOURCE CODE FOR THE CLEARSTORY PRODUCTS.
(V)
WITHOUT PREJUDICE TO BUYER'S RIGHTS UNDER SECTION 11.02 AND
ARTICLES X AND XI, SELLER SHALL DELIVER