2.6
CLOSING DELIVERIES AND POST-CLOSING CESSATION OF SELLER'S SOFTWARE
BUSINESS
(A)
AT THE CLOSING, BUYER SHALL DELIVER THE
PURCHASE CONSIDERATION.
(B)
AT THE CLOSING, BUYER AND SELLER SHALL EACH
EXECUTE AND DELIVER THE CLOSING DOCUMENTS TO ONE ANOTHER.
(C)
SIMULTANEOUSLY WITH THE CLOSING, SELLER
SHALL DELIVER TO BUYER PHYSICAL POSSESSION OF ALL OF THE ACQUIRED ASSETS,
SUBJECT TO SELLER'S LICENSE FROM BUYER TO POSSESS AND USE COPIES OF CERTAIN OF
THOSE ASSETS TO OPERATE THE SUPPORT BUSINESS AFTER CLOSING AS SET FORTH IN
SECTION 6 BELOW.
(D)
PROMPTLY AFTER THE CLOSING, SELLER SHALL
UNDERTAKE AN ORDERLY EXIT OF THE SOFTWARE BUSINESS.
SELLER WILL PROMPTLY
PUBLISH ON ITS WEBSITE, AND TRANSMIT TO EACH OF ITS LICENSEES WHO ARE PARTIES TO
ONGOING MAINTENANCE OBLIGATIONS, AN ANNOUNCEMENT, IN A FORM APPROVED BY BUYER,
STATING THAT SELLER WILL BE EXITING THE BUSINESS AND WILL NO LONGER MARKET OR
SELL THE SOFTWARE, EXCEPT FOR PROVIDING SUPPORT TO EXISTING LICENSEES AS
REQUIRED BY ITS EXISTING CONTRACTUAL COMMITMENTS (SEE EXHIBIT C).
3.
REPRESENTATIONS AND WARRANTIES OF
SELLER
The Parties constituting Seller jointly and severally represent and warrant to
Buyer that the statements contained in this Section 3 are true, correct and
complete as of the date hereof, and will be true, correct and complete as of the
Closing Date:
3.1
ORGANIZATION AND AUTHORITY
(A)
THE PARTIES CONSTITUTING SELLER ARE
CORPORATIONS DULY ORGANIZED, AND VALIDLY EXISTING UNDER THE LAWS OF NEVADA
(SHEA) AND GEORGIA (THE COMPANY), EACH WITH ALL REQUISITE CORPORATE POWER,
AUTHORITY AND CAPACITY TO EXECUTE AND DELIVER THIS AGREEMENT AND THE CLOSING
DOCUMENTS AND TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE CLOSING
DOCUMENTS. SELLER HAS DULY APPROVED AND AUTHORIZED THIS AGREEMENT AND THE
CONTEMPLATED TRANSACTIONS.
5
(B)
NEITHER THE EXECUTION AND DELIVERY OF THIS
AGREEMENT NOR THE CONSUMMATION OR PERFORMANCE OF ANY OF THE CONTEMPLATED
TRANSACTIONS WILL, DIRECTLY OR INDIRECTLY (WITH OR WITHOUT NOTICE OR LAPSE OF
TIME) CONTRAVENE, CONFLICT WITH, OR RESULT IN A VIOLATION OF, ANY PROVISION OF
THE ARTICLES OR CERTIFICATE OF INCORPORATION OF, OR THE BYLAWS OF, OF SELLER, OR
ANY CONTRACT OR UNDERTAKING BY WHICH SELLER OR THE ACQUIRED ASSETS MAY BE BOUND.
3.2
TITLE TO ASSETS
(A)
SELLER HAS, AND AT CLOSING WILL HAVE, GOOD
TITLE TO ALL OF THE ACQUIRED ASSETS, AND SELLER HAS THE UNRESTRICTED RIGHT TO
TRANSFER THESE RIGHTS TO BUYER, FREE AND CLEAR OF ALL MORTGAGES, LIENS, PLEDGES,
CHARGES OR ENCUMBRANCES OF ANY KIND OR CHARACTER.
3.3
INTELLECTUAL PROPERTY
(A)
THE COMPANY OWNS, OR IS LICENSED OR
OTHERWISE POSSESSES LEGALLY ENFORCEABLE RIGHTS TO USE, ALL SOFTWARE INTELLECTUAL
PROPERTY THAT IS OR HAS BEEN USED IN THE SOFTWARE BUSINESS. EXCEPT AS SET FORTH
IN SCHEDULE 3.3(A), THE COMPANY HAS NOT (I) LICENSED OR DELIVERED ANY SOURCE
CODE TO ANY THIRD PARTY OR (II) ENTERED INTO ANY EXCLUSIVE AGREEMENTS RELATING
TO ANY SOFTWARE INTELLECTUAL PROPERTY WITH ANY THIRD PARTY. SELLER IS NOT
CONTRACTUALLY OBLIGATED TO PROVIDE THE SOFTWARE IN THE FUTURE TO ANY THIRD
PARTY, UNDER LICENSE OR OTHERWISE, EXCEPT TO THE LICENSEES PURSUANT TO